Williams v. Bagley

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 13, 2004
• Docket: 02-3461
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Williams v. Bagley No. 02-3461 ELECTRONIC CITATION: 2004 FED App. 0268P (6th Cir.) File Name: 04a0268p.06 GENERAL’S OFFICE OF OHIO, Columbus, Ohio, Michael L. Collyer, ATTORNEY GENERAL’S OFFICE OF OHIO, Cleveland, Ohio, for Appellee. UNITED STATES COURT OF APPEALS ROGERS, J., delivered the opinion of the court, in which FOR THE SIXTH CIRCUIT SUTTON, J., joined. MERRITT, J. (pp. 79-88), delivered a _________________ separate dissenting opinion.

WILLIE WILLIAMS, JR., X _________________ Petitioner-Appellant, - OPINION - - No. 02-3461 _________________ v. - > ROGERS, Circuit Judge. An Ohio jury convicted the , petitioner, William J. Williams, Jr., of four counts of MARGARET BAGLEY, Warden, - aggravated murder, and, on the jury’s recommendation, the Respondent-Appellee. - trial court sentenced Williams to death. After unsuccessfully N challenging his convictions and sentence on direct appeal and Appeal from the United States District Court in state post-conviction proceedings, Williams filed a petition for the Northern District of Ohio at Akron. for a writ of habeas corpus, which set forth twenty-four No. 00-02103—James Gwin, District Judge. claims for relief, in the United States District Court for the Northern District of Ohio. The district court denied Argued: January 29, 2004 Williams’s petition, finding that Williams had procedurally defaulted the majority of his claims and rejecting the balance Decided and Filed: August 13, 2004 of his claims on the merits. However, it issued Williams a certificate of appealability for all claims, and Williams’s Before: MERRITT, ROGERS, and SUTTON, Circuit appeal is now before the court. For the following reasons, we Judges. affirm the judgment of the district court.

_________________ BACKGROUND

COUNSEL I. THE MURDERS.

ARGUED: John B. Gibbons, Cleveland, Ohio, for The Ohio Supreme Court made the following factual Appellant. Carol Ann Ellensohn, ATTORNEY GENERAL’S findings on direct review: OFFICE OF OHIO, Columbus, Ohio, for Appellee. ON BRIEF: John B. Gibbons, Cleveland, Ohio, John F. Williams controlled the drug trafficking at the McCaffrey, McLAUGHLIN & McCAFFREY, Cleveland, Kimmelbrooks housing project in east Youngstown, Ohio, for Appellant. Carol Ann Ellensohn, ATTORNEY Ohio. After an extended absence from the area, Williams returned to find that Alfonda R. Madison, Sr., William L.

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Dent, Eric Howard, and others had taken over the drug looking for Madison and Howard, who were roommates. trade at the Kimmelbrooks project. Williams wanted to Jessica answered the door and told Wynn that Madison regain control of the drug business, so he decided to rob was not home and Howard was asleep. As Wynn walked and kill Madison and others. back towards his car, Williams told Jessica to call Wynn back into the house because Wynn could identify them. Williams had three juvenile accomplices: his sixteen- Inside the house, Williams held Wynn at gunpoint and year-old girlfriend Jessica M. Cherry; her sixteen- or handcuffed him. seventeen-year-old brother, Dominic M. Cherry; and Dominic Cherry’s seventeen-year-old “cousin” (i.e., best Upon William’s orders, Jessica walked to a pay phone friend), Broderick Boone. On August 27, 1991, and called and asked for Dent for the purpose of luring Williams bought walkie-talkies at a Radio Shack store. him to the house. When Dent arrived with Howard, The devices had a combined microphone-earphone Williams and his accomplices ambushed them and forced earpiece that left the user’s hands free. Williams also them to lie down in the bathroom. Williams strangled bought batteries and duct tape. Williams, Dominic, and Madison and Wynn, and then instructed Jessica to turn Broderick later tested the walkie-talkies. up the stereo. Going from room to room, Williams shot each of the four victims in the head with Madison’s gun. Before the murders, Williams outlined his plan to his three accomplices. During this meeting, Williams drew The group left Madison’s house, but Williams, according interior and exterior diagrams of Madison’s house. to Jessica, went back in “to make sure they were all Williams later ordered Dominic to burn these, but dead.” Later, back at Williams’s apartment, he embraced Dominic burned only one diagram. In addition, Williams his juvenile accomplices and rewarded them with drugs. supplied each accomplice with a gun. Williams Williams warned them not to tell anyone what they had purchased Jessica’s gun from a neighbor. done or he would kill them. On September 1, 1991, Jessica met with Madison and The next day, September 2, 1991, Williams and Jessica discussed a drug deal. Later that night, Williams and his were driving to pick up Williams’s son in Youngstown three accomplices arrived at Madison’s home by car. when another car rammed theirs and the people in the Williams armed the three juvenile accomplices with guns other car shot at them. Jessica and Williams fled the and a walkie-talkie and sent them inside, while he waited scene. When Jessica and Williams returned to the outside with a walkie-talkie. Once inside, the three vicinity of the accident, officers transported them to the accomplices drew their guns on Madison. Then, after Youngstown Police Department and later released them receiving word via walkie-talkie that the situation was after questioning them about the traffic accident. Later secure, Williams, armed with a semiautomatic, entered that night, Williams, Jessica, Dominic, and Broderick the house carrying a duffel bag containing handcuffs, fled to Pennsylvania. Williams and the three juveniles duct tape, and gloves. Inside, Williams handcuffed and returned to the Youngstown area and parted company. bound Madison and put tape over his mouth. On September 24, 1991, Dominic turned himself in, and Thirty to forty-five minutes later, Theodore Wynn, Jr., a gave a statement about the murders. Later, officers recently discharged Air Force sergeant, came to the door, arrested Jessica and Broderick, and the latter also gave No. 02-3461 Williams v. Bagley 5 6 Williams v. Bagley No. 02-3461

statements. Following their arrests, Jessica, Dominic, II. PROCEDUR AL HISTORY . and Broderick were held at the Mahoning County Juvenile Justice Center (“JJC”). While Williams was a fugitive, a Mahoning County Grand Jury returned a nine count indictment against Williams. After Williams was arrested in connection with the murders. his capture, a Mahoning County Grand Jury returned a Shortly after being arrested, he escaped from jail on superseding indictment charging Williams with twelve counts October 15, 1991. While Williams remained a fugitive of aggravated murder, four counts of kidnapping, and one from justice, a Mahoning County Grand Jury indicted count of aggravated burglary. Each of the aggravated murder him on four counts of aggravated murder, four counts of counts included a pair of felony-murder specifications and a kidnapping, and one count of aggravated burglary. multiple-murder specification, which rendered Williams eligible for the death penalty. See Ohio Rev. Code Ann. On January 12, 1992, the armed Williams and two other § 2929.04(A) (Anderson 2003). accomplices, Paul R. Keiper, Jr., and a juvenile named Eric Fields, appeared at the JJC. The three deceived a Williams entered a plea of not guilty to all charges and receptionist and were permitted to enter. Once inside, specifications. On Williams’s motion, the trial court Williams held the receptionist and a deputy sheriff transferred venue from Mahoning County to Summit County. hostage, demanding to see Jessica, Dominic, and At the guilt phase of his trial, the jury found Williams guilty Broderick. After lengthy negotiations, Williams of all charges and specifications. On Williams’s motion, the surrendered to authorities. At trial, Keiper testified that trial court merged the twelve aggravated murder counts into Williams planned to kill the three juveniles because he four counts and the three specifications per count into a single knew they had made statements to the police regarding multiple-murder specification per count. At the penalty phase the murders. of his trial, the jury recommended a sentence of death for each count of aggravated murder, and the trial court adopted this *** recommendation.2 Additionally, the trial court sentenced Williams for the kidnapping and aggravated burglary Jessica, Dominic, and Broderick all entered into plea convictions. agreements with the Mahoning County Prosecutor’s Office. All three pled guilty to delinquency by reason of complicity to aggravated murder, complicity to aggravated burglary, and complicity to kidnapping. All three testified against Williams. State v. Williams, 679 N.E.2d 646, 650-51 (Ohio 1997).1 2 Under Ohio’s capital punishment scheme, a jury must recommend a sentence of death if it finds, by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors. Ohio Rev. Code A nn. § 2929.03(D)(2) (Anderson 2003). If the jury recommends a sentence of death, the trial court must independently review the eviden ce. If it finds, beyo nd a reasonable doubt, that the aggravating circumstances outweigh 1 any mitigating factors, the trial court must impo se a sentence of death. Id. “Williams” has been substituted for “the appellant” in this excerpt. § 2929.03(D)(3) No. 02-3461 Williams v. Bagley 7 8 Williams v. Bagley No. 02-3461

Williams appealed, raising nine assignments of error.3 On Ohio’s capital punishment scheme, in the Ohio Court of November 1, 1995, the Ohio Court of Appeals affirmed the Common Pleas. The matter sat dormant until October 20, judgment and sentence of the trial court. In addition to 1998, when the state filed a motion for leave to respond to overruling Williams’s assignments of error, the court Williams’s petition. The court granted the motion, finding concluded that the aggravating circumstances outweighed the that the state had not received proper notice of the petition. mitigating factors and that Williams’s sentence was not On October 29, 1998, the state moved for summary judgment, disproportionate to the death sentences imposed in similar arguing that Williams’s sole claim was barred by the doctrine cases.4 On June 11, 1997, the Ohio Supreme Court affirmed of res judicata. In his response, which was filed on November the judgment of the Ohio Court of Appeals. In addition to 19, 1998, Williams ignored the constitutional issue raised in rejecting Williams’s propositions of law, the court concluded his petition and instead requested leave to amend his petition. that the aggravating circumstances outweighed the mitigating He claimed that he was attempting to interview his factors and that Williams’s sentence was neither excessive accomplices, who had testified against him at trial, and that he nor disproportionate when compared to the sentences imposed expected Jessica Cherry to recant her original testimony. in similar cases. On January 12, 1998, the United States Supreme Court denied Williams’s petition for writ of On December 15, 1998, the court denied Williams’s certiorari. petition. It held that the doctrine of res judicata barred Williams’s constitutional challenge to Ohio’s capital Williams fared no better in state post-conviction punishment scheme. Further, it denied Williams a hearing on proceedings. On September 20, 1996, Williams filed his his actual innocence claim on the ground that he had not Petition to Vacate or Set Aside Sentence, which set forth a presented any affidavits or other evidence supporting his single cause of action challenging the constitutionality of contention that his accomplices intended to recant their testimony.

3 On December 24, 1998, Williams filed a motion requesting Spe cifically, he raised the following issues: (1) juro r misco nduc t; permission to interview Broderick Boone, one of his (2) denial of challenges for cause to “automa tic death penalty” jurors; accomplices, who was then incarcerated. On the same day, (3) sufficiency of the evidence; (4) admission of “other acts” evidence; (5) prosecutorial misconduct; (6) denial of motion to suppress the results Williams filed a motion requesting that the court reconsider of an “atomic ab sorption” test; (7) limitatio ns on cross-examination of and vacate its order denying his petition, arguing that he Do minic Cherry; (8) constitutionality of Ohio’s capital punishment needed time to interview his accomplices. On January 5, scheme; and (9) denial of motion to qua sh the ind ictment due to 1999, the court denied both motions. irregularities in the selection of the gra nd jury.

4 Williams appealed to the Ohio Court of Appeals, Under Ohio’s capital punishment scheme, the Ohio Court of contending that the Court of Common Pleas had abused its Appeals and the Ohio Supreme C ourt each must ind ependently review the discretion by denying his request for a court order permitting record and “determine whether the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors an interview of Broderick Boone and by refusing to permit in the case, and whether the sentence of death is appropriate.” Ohio Rev. him to amend his petition. On November 17, 1999, the court Code Ann. § 2929.05(A) (Anderson 2003 ). In determining whether a affirmed the judgment of the Court of Common Pleas. On sentence of death is appropriate, the courts must consider “whether the February 16, 2000, the Ohio Supreme Court declined sentence is excessive or disp roportionate to the penalty imposed in similar jurisdiction over Williams’s appeal, finding that it did not cases.” Id. No. 02-3461 Williams v. Bagley 9 10 Williams v. Bagley No. 02-3461

involve any substantial constitutional questions. On However, on April 15, 2002, the district court amended its October 2, 2000, the United States Supreme Court denied April 12 order and issued Williams a certificate of Williams’s petition for writ of certiorari. appealability. Williams filed a timely notice of appeal. On August 18, 2000, Williams filed a Notice of Intent to ANALYSIS File Habeas Corpus Petition in the United States District Court for the Northern District of Ohio. Counsel was I. STANDARDS OF REVIEW appointed, and, on January 31, 2001, Williams filed his Petition for a Writ of Habeas Corpus, which raised 24 claims A. Standard of Review and AEDPA for relief.5 On February 20, 2001, Williams filed a motion to conduct discovery pursuant to Rule 6 of the Rules Governing In a habeas proceeding, this court reviews a district court’s Section 2254 Cases. On June 22, 2001, the district court legal conclusions de novo and its factual findings for clear denied Williams’s motion, holding that Williams had not error. Wickline v. Mitchell, 319 F.3d 813, 817 (6th Cir. demonstrated “good cause” entitling him to discovery. On 2003). However, when a district court bases its decision on April 12, 2002, the district court denied Williams’s petition. a transcript from the petitioner’s state trial, and thus makes no It held that Williams had procedurally defaulted the majority credibility determinations or other apparent findings of fact, of his claims and that the balance of his claims lacked merit. the district court’s factual findings are reviewed de novo. The district court also denied Williams’s request for an Miller v. Francis, 269 F.3d 609, 613 (6th Cir. 2001). evidentiary hearing, finding that no material factual dispute made such a hearing necessary. On the same day, the district The standards set forth in the Antiterrorism and Effective court denied Williams a certificate of appealability. Death Penalty Assistance Act (“AEDPA”) govern our review of the state court decisions because Williams filed his petition on January 31, 2001, well after AEDPA’s effective date of 5 April 24, 1996.6 See Woodford v. Garceau, 538 U.S. 202, W illiams raised the following issues in his petition: (1) juror bias; 210 (2003); Macias v. Makowski, 291 F.3d 447, 450 (6th Cir. (2) retention of “automatic death penalty” jurors; (3) improper dismissal of jurors; (4) Batson claim; (5) ineffective assistance of counsel at the 2002). Pursuant to AEDPA, a writ of habeas corpus will not guilt phase of trial; (6) prosecutorial misconduct; (7) Brady violations; issue unless the state court’s adjudication of the claim (8) denial of right to expe rts; (9) various errors b y trial court; (10) admission of crime-scene photographs; (1 1) lack of a comp lete (1) resulted in a decision that was contrary to, or transcript of pro ceed ings; (12 ) cumulative error; (13) ineffective involved an unreasonable application of, clearly assistance at the penalty phase of trial; (14) ineffective assistance of established Federal law, as determined by the Supreme app ellate counsel; (15) improper aggravating circumstances; (16) omission of mitigation evidence at the penalty phase of trial; (17) Court of the United States; or improper jury instruction on sympathy at the p enalty phase; (18) lack of meaningful proportionality review; (19) improper standards of review employed by the O hio appellate courts; (20) lack of adeq uate state post- conviction procedures; (21) constitutionality of Ohio’s capital punishment scheme; (22) aggravating factors did not outweigh mitigating factors; (23 ) allocation to the defendant of the burden of production for 6 mitigating evidence during the penalty phase; and (2 4) failure of Ohio’s W illiams’s argument that AE DP A wo uld have an im perm issible capital punishment scheme to narrow the class of persons eligible for the retroactive effect if applied to his petition is discussed infra in Section death penalty. I(B). No. 02-3461 Williams v. Bagley 11 12 Williams v. Bagley No. 02-3461

(2) resulted in a decision that was based on an In all cases in which a state prisoner has defaulted his unreasonable determination of the facts in light of the federal claims in state court pursuant to an independent evidence presented in the State court proceeding. and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can 28 U.S.C. § 2254(d) (2001). Under the “contrary to” clause, demonstrate cause for the default and actual prejudice as a court may grant a writ of habeas corpus “if the state court a result of the alleged violation of federal law, or arrives at a conclusion opposite to that reached by [the demonstrate that failure to consider the claims will result Supreme Court] on a question of law or if the state court in a fundamental miscarriage of justice. decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, Coleman v. Thompson, 501 U.S. 722, 750 (1991). 529 U.S. 362, 412-13 (2000). Under the “unreasonable application” clause, a court may grant a writ of habeas corpus B. Applicability of AEDPA Where Conviction “if the state court identifies the correct governing legal Predated AEDPA principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the In this case, Williams’s petition was filed after the effective prisoner’s case.” Id. at 413. date of AEDPA, but he was convicted before that date. Williams contends that the application of AEDPA is therefore “[C]learly established Federal law, as determined by the “impermissibly retroactive” pursuant to Landgraf v. USI Film Supreme Court of the United States,” refers to “the holdings, Products, 511 U.S. 244 (1994). Without elaboration, he as opposed to the dicta, of [the Supreme] Court’s decisions as recites that the application of AEDPA to his petition “attaches of the time of the relevant state-court decision.” Id. at 412. new legal consequences to pre-enactment conduct” by The state court decision need not cite Supreme Court cases, “affecting [his] substantive rights,” by “changing the legal or even evince an awareness of Supreme Court cases, “so consequences of pre-enactment conduct,” by “giving a quality long as neither the reasoning nor the result of the state-court or effect to acts which they lacked or failed to contemplate decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 prior [to] their performance,” and by “changing the relief that (2002) (per curiam). is available by restricting [his] right to such relief.” This argument is unavailing. Moreover, the findings of fact made by a state court are presumed correct, and the petitioner has the burden of Landgraf establishes a two-part inquiry to assess whether rebutting the presumption of correctness by clear and to apply “a federal statute enacted after the events in suit.” Id. convincing evidence. 28 U.S.C. § 2254(e)(1). The at 280; see also Singleton v. Smith, 241 F.3d 534, 541 (6th presumption of correctness also applies to factual findings Cir. 2001). First, the court must “determine whether made by a state appellate court based on the state trial record. Congress has expressly prescribed the statute’s proper reach. Brumley v. Wingard, 269 F.3d 629, 637 (6th Cir. 2001) If Congress has done so, there is no need to resort to judicial (citing Sumner v. Mata, 449 U.S. 539, 546-47 (1981)). default rules.” Landgraf, 511 U.S. at 280. Second, if “the statute contains no such express command, the court must Finally, under long-standing law, claims which have been determine whether the new statute would have retroactive procedurally defaulted generally are not subject to review. In effect, i.e., whether it would impair rights a party possessed particular, when he acted, increase a party’s liability for past conduct, or No. 02-3461 Williams v. Bagley 13 14 Williams v. Bagley No. 02-3461

impose new duties with respect to transactions already effect because the petitioner “might well have waited to file completed,” in which case the traditional presumption against that initial motion” had he foreseen AEDPA’s revision of retroactive legislation applies. Id. In determining whether a § 2255). statute would have a retroactive effect, “familiar considerations of fair notice, reasonable reliance, and settled II. THE TRIAL COURT’S REFUSAL TO INVESTIGATE expectations offer sound guidance.” Id. at 270. “A statute ALLEGED JUROR BIAS does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute’s Each of Williams’s challenges to the trial court’s conduct enactment.” Id. at 269. of voir dire is, in the end, without merit.

This court, in line with other circuits, has held that the A. Background application of AEDPA to an application filed after AEDPA’s effective date, but which involves a crime and a conviction Williams argues that the trial court committed predating AEDPA, does not have a “retroactive effect.” Lott constitutional error by refusing to reexamine a venireman v. Coyle, 261 F.3d 594, 604 n.3 (6th Cir. 2001) (deeming (Juror Eddleman) after the testimony of another venireman petitioner’s argument that the application of AEDPA to a indicated that Eddleman may have concealed prior knowledge petition challenging a pre-AEDPA conviction “would be of the case on voir dire, by failing to dismiss Eddleman for unconstitutionally retroactive under Landgraf . . . wholly cause because of alleged bias, and by failing to dismiss for without merit”); Caldwell v. Bell, Nos. 99-6219 & 99-6307, cause another venireman (Juror Rohwedder) who testified to 2001 WL 549419, at **2 (6th Cir. May 17, 2001) (“Other overhearing conversations about “fear” of Williams. We note than making the general assertion that his ‘legal expectations at the outset that Williams has not cited—either in his brief or and entitlements were abruptly altered on April 24, 1996’ at oral argument—any Supreme Court precedent in support of when the AEDPA was enacted, Appellant advances no reason his claims. We therefore have been left to find for ourselves why this case constitutes an exception to the general rule the clearly established Federal law, as determined by the which requires the amendments to apply to petitions filed Supreme Court, underlying his argument. after April 24, 1996.”); Coe v. Bell, 209 F.3d 815, 823 (6th Cir. 2000); Trice v. Ward, 196 F.3d 1151, 1158-59 (10th Cir. The Sixth Amendment, made applicable to the States 1999); Mueller v. Angelone, 181 F.3d 557, 571 (4th Cir. through the Fourteenth Amendment, guarantees a criminal 1999). Williams has not demonstrated that his case merits a defendant a trial by an impartial jury. Morgan v. Illinois, 504 different result, given his failure to identify “any new legal U.S. 719, 726-27 (1992). “In essence, the right to jury trial consequences that, had he known of them in advance, might guarantees to the criminally accused a fair trial by a panel of have in any way affected his conduct before filing his habeas impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, petition,” Mueller, 181 F.3d at 572, and his failure to show 722 (1961). The presence of even a single biased juror that he had acquired any vested rights in pre-AEDPA deprives a defendant of his right to an impartial jury. See standards of review. Compare In re Hanserd, 123 F.3d 922, Morgan, 504 U.S. at 729. “Qualified jurors need not, 931 (6th Cir. 1997) (holding that the application of revised § however, be totally ignorant of the facts and issues involved.” 2255, which would have barred the petitioner, who had filed Murphy v. Florida, 421 U.S. 794, 799-800 (1975). his first § 2255 motion prior to AEDPA’s enactment, from filing a second § 2255 motion, would have had retroactive No. 02-3461 Williams v. Bagley 15 16 Williams v. Bagley No. 02-3461

To hold that the mere existence of any preconceived [renders] the defendant’s trial fundamentally unfair.” Id. at notion as to the guilt or innocence of the accused, 425-26. without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an Because the “[p]reservation of the opportunity to prove impossible standard. It is sufficient if the juror can lay actual bias is a guarantee of a defendant’s right to an impartial aside his impression or opinion and render a verdict jury.” Dennis v. United States, 339 U.S. 162, 171-72 (1950), based on the evidence presented in court. questions directed at potential bias may be constitutionally compelled. For example, when faced with the prospect of Irvin, 366 U.S. at 723. When faced with an allegation of bias, racial bias, a federal habeas court must inquire whether then, the question becomes “did a juror swear that he could “under all of the circumstances presented there was a set aside any opinion he might hold and decide the case on the constitutionally significant likelihood that, absent questioning evidence, and should the juror’s protestation of impartiality about racial prejudice, the jurors would not be as ‘indifferent have been believed.” Patton v. Yount, 467 U.S. 1025, 1036 as (they stand) unsworne.’” Ristaino v. Ross, 424 U.S. 589, (1984). A trial court’s finding of impartiality is a factual 596 (1976) (quoting Coke on Littleton 155b (19th ed. 1832)); determination entitled to 28 U.S.C. § 2254(e)’s presumption see also Turner v. Murray, 476 U.S. 28, 36-37 (1986) of correctness, Dennis v. Mitchell, 354 F.3d 511, 520 (6th Cir. (holding that a capital defendant accused of an interracial 2003), and may “be overturned only for ‘manifest error.’” crime is entitled to have prospective jurors informed of the Hill v. Brigano, 199 F.3d 833, 843 (6th Cir. 1999) (quoting race of the victim and questioned on the issue of racial bias). Patton, 467 U.S. at 1031). However, the Supreme Court has “stressed the wide discretion granted to the trial court in conducting voir dire in “[P]art of the guarantee of a defendant’s right to an the area of pretrial publicity and in other areas of inquiry that impartial jury is an adequate voir dire to identify unqualified might tend to show juror bias.” Mu’Min, 500 U.S. at 427. jurors.” Morgan, 504 U.S. at 729. “Without an adequate voir dire the trial judge’s responsibility to remove prospective Clearly established Supreme Court precedent dictates that jurors who will not be able impartially to follow the court’s “[w]hen a trial court is presented with evidence that an instructions and evaluate the evidence cannot be fulfilled.” extrinsic influence has reached the jury which has a Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981). reasonable potential for tainting that jury, due process However, “[t]he adequacy of voir dire is not easily the subject requires that the trial court take steps to determine what the of appellate review,” Morgan, 504 U.S. at 730, and “the trial effect of such extraneous information actually was on that court retains great latitude in deciding what questions should jury.” Nevers v. Killinger, 169 F.3d 352, 373 (6th Cir. 1999), be asked on voir dire.” Mu’min v. Virginia, 500 U.S. 415, overruled on other grounds by Harris v. Stovall, 212 F.3d 940 424 (1991). Of course, when reviewing a state court’s (6th Cir. 2000); cf. United States v. Rigsby, 45 F.3d 120, 124- conduct of voir dire, a federal habeas court’s “authority is 25 (6th Cir. 1995) (“When there is a credible allegation of limited to enforcing the commands of the United States extraneous influences, the court must investigate sufficiently Constitution.” Id. at 422. A state court’s refusal to pose to assure itself that constitutional rights of the criminal “constitutionally compelled” questions merits habeas relief. defendant have not been violated.”); United States v. Id. at 424-26. Questions are “constitutionally compelled” Shackelford, 777 F.2d 1141, 1145 (6th Cir. 1985) (“A trial only if “the trial court’s failure to ask these questions court’s refusal to permit an evidentiary hearing may constitute abuse of discretion when the alleged jury misconduct involves No. 02-3461 Williams v. Bagley 17 18 Williams v. Bagley No. 02-3461

extrinsic influences.”). Extrinsic influences include, for Finally, in McDonough Power Equipment, Inc. v. example, an attempt to bribe a juror, a juror’s application for Greenwood, 464 U.S. 548 (1984), the Supreme Court devised a job in the district attorney’s office, and newspaper articles a test for determining whether a juror’s non-disclosure during and media attention.7 United States v. Herndon, 156 F.3d voir dire necessitates a new trial. To obtain a new trial, a 629, 635 (6th Cir. 1998). party “must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further As indicated above, “[t]here is no per se rule that mere show that a correct response would have provided a valid exposure to media reports about a case merits exclusion of a basis for a challenge for cause.” Id. at 556. “The motives for juror.” McQueen v. Scroggy, 99 F.3d 1302, 1319 (6th Cir. concealing information,” the court explained, “may vary, but 1996); see also DeLisle v. Rivers, 161 F.3d 370, 382 (6th Cir. only those reasons that affect a juror’s impartiality can truly 1998) (en banc) (“[M]ere prior knowledge of the existence of be said to affect the fairness of a trial.” Id. Thus, the case, or familiarity with the issues involved, or even some McDonough teaches that the deliberate concealment of preexisting opinion as to the merits, does not in and of itself information on voir dire does not automatically give rise to a raise a presumption of jury taint.”). “To the contrary, in order presumption of bias. Zerka v. Green, 49 F.3d 1181, 1186 (6th to merit disqualification of a juror, the media reports must Cir. 1995). “If a juror is found to have deliberately concealed engender a predisposition or bias that cannot be put aside, material information, bias may be inferred. If, however, requiring the jury to decide a case one way or the other.” information is not concealed deliberately, the movant must McQueen, 99 F.3d at 1319. Generally, a defendant’s right to show actual bias.” Id. (internal quotation marks omitted) an impartial jury is secured if a juror attests that he can set (emphasis in original). aside any information he has obtained and render a verdict based on the evidence presented in court. Irvin, 366 U.S. at B. Trial Court’s Refusal to Reexamine Juror 722-23; DeLisle, 161 F.3d at 382. However, in Eddleman “extraordinary” cases, DeLisle, 161 F.3d at 382, where the trial atmosphere has been “utterly corrupted by press Williams argues that the trial court imperiled his right to an coverage,” Murphy, 421 U.S. at 798, a court must presume impartial jury by failing to dismiss Juror Eddleman for bias that pre-trial publicity has engendered prejudice in the after evidence arose which arguably indicated that she members of the venire. See, e.g., Sheppard v. Maxwell, 384 concealed prior knowledge of the case during voir dire and by U.S. 333, 358, 363 (1966) (finding that “inherently prejudicial refusing to reexamine Eddleman in light of that evidence. We publicity [] saturated the community” and that a “carnival conclude that the Ohio Supreme Court did not unreasonably atmosphere” reigned at trial); Irvin, 366 U.S. at 726 determine that Eddleman was not biased and did not (“[C]ontinued adverse publicity caused a sustained unreasonably apply clearly established federal law in holding excitement and fostered a strong prejudice” among the people that the trial court had not abused its discretion by refusing to of the county.). reexamine Eddleman.

7 Examples of “internal” influences, in contrast, include the behavior of jurors during deliberations, the jurors’ ability to hear and comp rehend trial testimony, and the physical and mental incompetence of a juror. United States v. Herndon, 156 F.3d 629 , 634 -35 (6 th Cir. 1998 ). No. 02-3461 Williams v. Bagley 19 20 Williams v. Bagley No. 02-3461

During voir dire, Eddleman denied having any prior this person or whatever. But the gist of what I got was knowledge of the case.8 Later in voir dire, another just what I told the Judge, that someone had told her, and venireman, Juror Parsons, claimed that Eddleman had told her I don’t know if it was her husband talked to someone or that Eddleman “heard [the case] was from Youngstown and whatever, just that there was a case in Youngstown and it had something to do with drugs,” but that Eddleman “didn’t it involved drugs. know if that was true.” J.A. at 2765. Under further questioning, Parsons elucidated, Oh, there was something else. I said, “This case is two years old, who can remember what you read two years To tell you the truth, I was only half listening because I ago?” And she said—I said, “Why would it take two don’t know if she had her information correct. She said years for the case to come to court?” And she said they that she had spoken to someone who lived in were unable to find the gentleman. I forgot about that. Youngstown and was familiar with the case and that it And that was all that was said. involved drugs and that’s all she knew and that’s all she told me, who read it in the newspaper, I believe. And J.A. at 2784-85. that’s basically all she knew. I don’t even know, like I said, if that’s correct. She didn’t know if that’s correct. Later, defense counsel requested that the court reexamine Eddleman in light of Parsons’s testimony. J.A. at 3026-27. J.A. at 2782. She further explained, The court tentatively denied the request, but agreed to give the matter further consideration. J.A. at 3032-33. However, I don’t know whether she herself had the conversation. at this time, the court did give a general instruction to the She said—like I said, I was only half listening because I venire admonishing the members not to discuss the case didn’t know if it was true or not and really didn’t care. among themselves or with others and to avoid media reports I don’t know whether it was someone in her family had about the case. J.A. at 3033-35. Additionally, in its spoken to someone in Youngstown or she had spoken to preliminary instruction to the jury, the court ordered the jurors to disregard any information about the case from an outside source and not to repeat any such information to other jurors. 8 Spe cifically, the following colloquy tran spired : J.A. at 3617. The court never called Eddleman back for further questioning. THE COURT: . . . Do you know any of the perso ns in this room , any parties? At the start of trial, Williams moved for a mistrial, arguing, JURO R EDD LEMAN : No, I don’t. inter alia, that the court had jeopardized Williams’s right to a fair trial by refusing to reexamine Eddleman, who was THE COURT : Do you know anything about this case? seated on the jury, in order to determine whether Eddleman had deliberately concealed prior knowledge of the case and JUROR ED DLEM AN: No. whether any prior knowledge of the case had prejudiced THE CO URT: Except what I said? Eddleman. J.A. at 617-18. The court denied Williams’s motion, reasoning that “[a]ll of the jurors selected testified JURO R EDD LEMAN : Just what I’ve heard thro ugh you. that they would be fair, impartial and base their verdict solely upon the evidence presented at trial.” J.A. at 892. J.A. at 2 715 . No. 02-3461 Williams v. Bagley 21 22 Williams v. Bagley No. 02-3461

Both the Ohio Court of Appeals and the Ohio Supreme the defendant or the case.” J.A. at 31. The district court Court held that the trial court had not abused its discretion by rejected Williams’s argument, concluding that the state refusing to examine Eddleman further. The Ohio Court of courts’ findings that Eddleman was not biased and had not Appeals found that Eddleman had not deliberately concealed deliberately concealed material information were not her knowledge of the case, as Eddleman’s responses to the unreasonable. J.A. at 143. It stated, “accepting the testimony court’s questions “were not necessarily inconsistent” with the that Eddleman was not aware of the accuracy of her remarks later attributed to her by Parson because “at best, statements, the court’s determination that Eddleman’s [Eddleman] seemed to have heard some gossip, the truth of responses on voir dire were truthful is not unreasonable in which was uncertain.” State v. Williams, No. 16418, 1995 light of the facts presented.” J.A. at 144. WL 641137, at *7 (Ohio. Ct. App. 1995). The court further determined that, even if Eddleman had deliberately concealed On appeal, Williams contends that Eddleman was biased information, “this fact would not inescapably lead to a against him and that the trial court “abused its discretion” presumption of bias” because “[t]he information that when it refused to recall Eddleman for further questioning. Eddleman purportedly knew and concealed—that the case Though Williams’s argument is somewhat muddy, there are was from Youngstown, it involved drugs, and that the state three distinct circumstances possibly underpinning his claim was unable to locate Williams for a period of time—consisted of bias. First, Eddleman may have lied about her prior of elemental facts concerning the case.” Id. knowledge of the case on voir dire.9 Second, Eddleman knew that Williams’s case “involved drugs,” that the case originated Because Williams had not challenged Eddleman for cause in Youngstown, and that Williams had eluded the authorities. on the ground of deliberate concealment, the Ohio Supreme Third, Eddleman learned of this information through a Court reviewed his claim under Ohio’s plain error rule. State conversation with a third party, most likely an acquaintance v. Williams, 679 N.E.2d 646, 652 (Ohio 1997). The court in Youngstown or a member of her family (who in turn had found that Eddleman had not “deliberately concealed the learned of the information from someone in Youngstown). conversation because she did not know whether those rumors were true. Thus, her voir dire response was truthful—she did In light of the record as it exists, the Ohio courts did not not know anything about the case.” Id. The court also held unreasonably determine that Eddleman was not biased. that the trial court sufficiently inquired into the alleged Williams insists that bias should be attributed to Eddleman misconduct. Id. at 652-53. The chief justice, joined by because she lied about her prior knowledge of the case on voir another justice, dissented, stating that the majority’s “strained dire.10 However, the record does not establish that Eddleman and unlikely interpretation of Eddleman’s response” neither deliberately concealed information on voir dire because there eliminated “legitimate concerns of concealment” nor absolved the trial court of “the obligation to investigate further in defense of Williams’s constitutional rights.” Id. at 665 9 In evaluating Williams’s claim, we assume that Pa rsons accurately (Moyer, C.J., dissenting). identified Eddleman as the woman she spoke with.

10 In his federal habeas petition, Williams asserted that the The Ohio Supreme Court found that because Williams did not trial court “abused its discretion” by failing to reexamine challenge Eddleman on this ground, Williams waived this claim. Eddleman to determine whether she “had improperly Williams, 679 N.E.2d at 652. Ho wever, because the State has not relied on W illiams’s procedural default in this regard, we p roceed to the merits answered or evaded inquiries concerning [her] knowledge of of W illiams’s claim . See Trest v. C ain, 522 U.S. 87, 89 (1 997). No. 02-3461 Williams v. Bagley 23 24 Williams v. Bagley No. 02-3461

are eminently reasonable explanations for her negative answer of the trial. Finally, there is no indication that the source of to the trial court’s question, “Do you know anything about Eddleman’s information attempted to influence Eddleman in this case?” See Jones v. Cooper, 311 F.3d 306, 311-12 (4th any manner. Cir. 2002) (“Given these eminently reasonable explanations for the supposed discrepancies between the juror’s voir dire The rub, then, is whether the Ohio Supreme Court answers and the statements to the investigator, there is simply unreasonably applied Ristaino, Mu-Min, or other Supreme no basis upon which to conclude that the juror lied . . . .”). Court precedent on jury bias and the conduct of voir dire Eddleman may have misunderstood the court’s question or when it denied Williams’s request to reexamine Eddleman. her “knowledge” of the case may have temporarily slipped Ideally, of course, the trial court would have called Eddleman her mind. Or, as the Ohio Court of Appeals and the Ohio back for further questioning in order to determine whether in Supreme Court recognized, Eddleman may have responded fact Eddleman had prior knowledge of the case, whether any truthfully as her “knowledge” consisted of “gossip” of prior knowledge left her with any impressions or opinions questionable veracity. 11 Moreover, as discussed infra, even concerning the case, whether she could set aside any such if Eddleman deliberately concealed information, that fact impressions or opinions, and whether she deliberately alone does not give rise to a presumption of bias. Thus, concealed any prior knowledge. Upon final analysis, though, Williams cannot use Eddleman’s alleged lie to show that the we cannot say that the trial court’s failure to recall Eddleman Ohio Supreme Court unreasonably determined that Eddleman rendered Williams’s trial fundamentally unfair. Mu’Min, 500 was not biased. U.S. at 425-26. The Sixth Amendment does not obligate state trial courts to investigate every allegation of bias or juror Nor do the substance or the source of Eddleman’s prior misconduct. See id. at 427 (noting the “wide discretion knowledge of the case demonstrate that the Ohio courts granted to the trial court in conducting voir dire in the area of unreasonably determined that Eddleman was not biased. “[I]n pretrial publicity and in other areas of inquiry that might tend order to merit disqualification of a juror, the media reports to show juror bias”); Szuchon v. Lehman, 273 F.3d 299, 313 must engender a predisposition or bias that cannot be put (3d Cir. 2001); cf. United States v. Rigsby, 45 F.3d 120, 125 aside,” McQueen, 99 F.3d at 1319, and, as the Ohio Court of (6th Cir. 1995). Rather, a constitutional duty of inquiry arises Appeals observed, the information that Eddleman purportedly only when “under the circumstances presented there was a concealed consisted of “elemental facts,” Williams, 1995 WL constitutionally significant likelihood that, absent questioning 641137, at *7, which Eddleman learned anyway in the course about [the potential bias], the jurors would not be as indifferent as (they stand) unsworne,” Ristaino, 424 U.S. at 596 (internal quotation marks omitted), or when “a trial court 11 is presented with evidence that an extrinsic influence has Bo th the Ohio Court of Appeals and the Ohio Suprem e Court reached the jury which has a reasonable potential for tainting found that Eddleman responded truthfully to the trial court’s question that jury.” Nevers, 169 F.3d at 373. Here, Williams has not because she did not know whether the “gossip” she heard was accurate. Given the state of the record, this is a reasonable factual determination. shown that the Ohio appellate courts unreasonably concluded Nonetheless, however probab le the O hio ap pellate court’s explanation for that there was no constitutionally significant likelihood that, Eddleman’s answer, it is possib le that Eddleman lied to the trial court. absent questioning of Eddleman about her prior knowledge of Thus, the Ohio Supreme Court’s finding that Eddleman’s response was the case, a biased juror (Eddleman) would sit on Williams’s truthful does not by itself entirely dispose of Williams’s argument that the jury. trial court should have reexamined Eddleman in light of Parsons’s testimony. No. 02-3461 Williams v. Bagley 25 26 Williams v. Bagley No. 02-3461

Williams’s primary argument, as far as we can tell, is that United States v. Langford, 990 F.2d 65, 69 (2d Cir. 1993) further inquiry would have disclosed that Eddleman lied in (refusing to recognize “a per se rule based simply on whether response to the trial court’s question about her “knowledge” a prospective juror had lied, without respect to whether the of the case and that this act of dishonesty would have enabled dishonesty had a bearing on her impartiality”); cf. United Williams to challenge Eddleman for cause on the ground of States v. Boney, 977 F.2d 624, 634 (D.C. Cir. 1992) (refusing bias. The Ohio Supreme Court’s finding on a limited record to hold that “any false statement or deliberate concealment by that Eddleman responded truthfully to the court’s question a juror necessitates an evidentiary hearing”). As the Supreme does not logically foreclose Williams’s argument that further Court has held, “[t]he motives for concealing information questioning should have been allowed so that Williams could may vary, but only those reasons that affect a juror’s demonstrate the contrary, but the Ohio Supreme Court’s impartiality can truly be said to affect the fairness of a trial.” opinion can fairly be read as an explanation for why further McDonough, 464 U.S. at 556. Thus, courts have presumed inquiry was not constitutionally required. Overall, it was bias in cases where a juror has engaged in a pattern of deceit unlikely, at best, that Eddleman deliberately concealed her or has concealed information that bears on his impartiality. “knowledge” of the case. Williams offers no rationale for For instance, Williams v. Taylor, 529 U.S. 420, 441-42 Eddleman’s alleged prevarication,12 and it appears most (2000), held that an evidentiary hearing was merited where a probable that Eddleman either deemed the “gossip” juror had concealed that she had been represented by the unresponsive to the court’s question, as the Ohio appellate prosecutor in her divorce and that she had been married to a courts supposed, or misapprehended the question. The Ohio state witness, a deputy sheriff. And in Fields v. Woodford, Supreme Court’s opinion thus reasonably supports the trial 309 F.3d 1095, 1105-06 (9th Cir. 2002), the court held that an court’s determination not to have Eddleman questioned evidentiary hearing was necessary because a juror in a rape further. case concealed the fact that his wife had been raped. See also Green v. White, 232 F.3d 671, 677-78 (9th Cir. 2000) (a juror Moreover, even if Eddleman had deliberately concealed repeatedly concealed his prior conviction in order to get on prior knowledge of the case, this conduct would not have the jury and stated during jury deliberations that he knew the given rise to a presumption of bias on her part. As discussed defendant was guilty the minute he saw him and he wished he earlier, a court may, but need not, presume bias if a juror could get a gun and shoot the defendant himself); Dyer v. deliberately conceals material information on voir dire. Calderon, 151 F.3d 970, 982-83 (9th Cir. 1998) (en banc) (a Zerka, 49 F.3d at 1186; see also Fuller v. Bowersox, 202 F.3d juror in a murder trial lied repeatedly about her brother’s 1053, 1056 (8th Cir. 2000) (holding that “a juror’s apparent murder and refused to admit that certain of her relatives had dishonesty is not a sufficient predicate to obtaining a new been accused of crimes and that she herself had been a crime trial” (internal quotation marks and punctuation omitted)); victim). Conversely, courts have refused to presume bias where the juror’s dishonesty does not suggest partiality. The court in Solis v. Cockrell, 342 F.3d 392, 393, 399 (5th Cir. 12 2003), refused to presume bias where a juror failed to reveal In fact, the transcript of Ed dlem an’s voir dire belies any argument that Eddleman intentionally lied abou t her “knowledge” of the c ase in the fact that he lived near the defendant and had “known of” order to stay on the jury. H ad E ddleman been intent upon sitting on the the defendant for more than 20 years. The court in Jones held jury, she presumably wo uld have stated forthrightly that she co uld set that a juror’s failure to disclose that she had relatives who had aside any partiality for the d eath penalty and follow the court’s sentencing instructions, instead of vacillating in her answers as she did. See Section been arrested or subject to trials did not create an implication III(B ), infra. of bias. 311 F.3d at 311, 313. And in Langford, the court No. 02-3461 Williams v. Bagley 27 28 Williams v. Bagley No. 02-3461

found no bias because the juror gave false answers to avoid Rohwedder reported that she overheard “chatting” and embarrassment. 990 F.2d at 69-70. In the case at bar, “gossip” among other members of the venire about the case. Williams offers no explanation as to how a finding that J.A. at 3080. When asked whether she heard anyone say Eddleman deliberately concealed her “knowledge” of the case “anything about being afraid of Mr. Williams or his family,” might lead to a finding that Eddleman was biased, and we she responded, “Maybe in a general sense, that because of the have identified none. nature of the case there’s fear.” J.A. at 3080-81. She elaborated, Further, as the Ohio Court of Appeals concluded, the substance of the purportedly concealed information would not I think there’s a very high emotional level right now and have enabled Williams to challenge Eddleman for cause. with all, like you said, the waiting, the speculation, the Neither knowledge of “elemental facts,” which were disclosed not knowing, the anxiety part of it, and it’s very at trial, nor a conversation with a family member or a friend unnecessary. I feel that a lot of it has just mushroomed about the case, prior to impanelment, would disable and it’s too bad because you don’t have to be talking 24 Eddleman from serving as an impartial juror.13 As we said in hours a day, you don’t have to be worrying about things Scott v. Mitchell, 209 F.3d 854, 879 (6th Cir. 2000), that you shouldn’t have to worry about. I find fault with “[a]llegations of jury bias must be viewed with skepticism that part of the process. when the challenged influence occurred before the jurors took their oath to be impartial.” In summary, Williams has not J.A. at 3081. However, she volunteered, “I don’t think explained how further questioning of Eddleman might have anything that has been said in my presence has affected my yielded a finding that Eddleman was biased. Therefore, we opinion of anything. I’m just here to do what you ask me to cannot conclude that the Ohio courts unreasonably applied do.” J.A. at 3081-82. clearly established federal law in refusing to reexamine Eddleman. Also during voir dire, Rohwedder opined that “[i]t’s not just an ordinary day at the courthouse” because people C. Juror Rohwedder’s “Fear” entering the courthouse were required to pass through security, and she admitted “[i]t’s a little unnerving.” J.A. at Williams’s contention that Juror Rohwedder was biased 3082. However, the judge clarified that the security system because she overheard conversations among other veniremen had not been put in place for Williams’s trial but instead had about “fear” of Williams is without merit. During voir dire, been implemented earlier in the year. J.A. at 3083-84. Specifically, he advised that “since this case started I think all the employees go through it, or basically. I think that’s the 13 The cases cited by Williams provide an instructive comparison. In only change. We’ve had the security for months. And it had United States v. Herndon, 156 F.3d 629, 636-37 (6th Cir. 1998), a hearing nothing to do with this case at all. It had to do with the was required b ecause the juro r may have ha d unsucce ssful business judges wanting more security in the building.” J.A. at 3084. dealings with defendant. In United States v. Walker, 1 F.3d 423 , 429 (6th Cir. 1993), a hearing was required b ecause jurors were given transcripts When asked whether “there is an impression in your mind containing highlighted material which had been redacted from copies of then that Mr. Williams probably did this and that’s why there video tapes shown to the jury at trial. Finally, in United States v. Herring, has to be extra security,” Rohwedder replied, “Not 568 F.2d 1099, 11 03-04 (5th Cir. 1978), a hearing was required b ecause necessarily. I think everybody has to be guarded. There’s a jurors were potentially exposed during a trial to a newspap er article problem. You know, here we are.” J.A. at 3085. reporting death threats against a prosecution witness. No. 02-3461 Williams v. Bagley 29 30 Williams v. Bagley No. 02-3461

Williams did not challenge Rohwedder for cause and that she did not think that “anything that has been said in my mentioned Rohwedder only in passing in his motion for a presence has affected my opinion of anything.” J.A. at 3080- mistrial. Nevertheless, neither of the Ohio appellate courts 81. Similarly, after the court clarified that security at the invoked the plain error rule in reviewing Williams’s claim. courthouse had not been heightened due to Williams’s trial The Ohio Court of Appeals held that the trial court had not but rather had been improved months earlier, Rohwedder abused its discretion by failing to conduct further inquiry as indicated that this would not affect her impartiality. J.A. at to Rohwedder, noting that “Rohwedder stated that the venire 3083-85. In light of Rohwedder’s declarations of members talked about the trial, but that no specifics were impartiality, the Ohio courts’ finding of impartiality was a discussed.” Williams, 1995 WL 641137, at *7. The Ohio reasonable determination of the facts in light of the evidence Supreme Court held that the trial court had not abused its presented, and Williams has not succeeded in rebutting the discretion by permitting Rohwedder to sit on the jury, presumption of correctness afforded this finding. Simply put, explaining that, although Williams claimed that Rohwedder Williams has not identified any constitutional error possibly “was biased because she allegedly overheard discussion about meriting habeas relief in the trial court’s treatment of security and possible retaliation . . . Rohwedder indicated that Rohwedder. she had heard no such discussion.” Williams, 679 N.E.2d at 652. D. Trial Court’s Failure to Conduct Additional Voir Dire In his federal habeas petition, Williams referred to Rohwedder’s testimony regarding “juror discussion about fear In the course of challenging the seating of Eddleman and of the defendant” and her “observation of heightened Rohwedder on the jury, Williams asserts that the trial judge security,” in the course of arguing that the trial court failed to failed “to properly discharge his duty to guarantee, to a examine potential jurors “to assure [Williams] that an reasonable degree of certainty, that Petitioner received a fair impartial jury was impaneled.” J.A. at 30, 32. Interpreting trial from twelve jurors. In the face of actual juror the mention of Rohwedder as a challenge to Rohwedder’s misconduct and bias, the trial judge limited the voir dire impartiality, the district court held that “the state court was examination of suspect jurors and abdicated his reasonable in determining that Rohwedder was not biased.” responsibilities altogether to make further inquiry.” To the J.A. at 144. On appeal, Williams adopts the district court’s extent that this statement represents a challenge to the trial construction of his claim, arguing that Rohwedder “was court’s failure to conduct additional voir dire of jurors other clearly biased as she testified to juror discussion about fear of than Eddleman and Rohwedder, Williams’s claim falls short. [Williams] and that the observation of heightened security Williams has not shown that pre-trial publicity rose to a level increased the emotional level of jurors.” which infringed his right to a fair trial. See Hill, 199 F.3d at 844. Nor has he identified any particular juror who sat on his Whatever the particulars of his claim, Williams has not case, other than Eddleman and Rohwedder, who he believes shown that the trial court acted unreasonably with regard to was prejudiced against him. The Ohio Supreme Court held Rohwedder. Williams has not explained what further that the trial judge had not acted “unreasonably or arbitrarily questioning of Rohwedder was, in his estimation, restricted examination or investigation into the constitutionally required. Likewise, the charge of bias is preconceptions of prospective jurors.” Williams, 679 N.E.2d without merit. Rohwedder testified that she had heard at 653. As Williams offers only the above-quoted passage in “[n]othing specific” concerning juror fear of Williams, and No. 02-3461 Williams v. Bagley 31 32 Williams v. Bagley No. 02-3461

support of any claim, we cannot say that the Ohio Supreme A trial court’s finding as to a juror’s impartiality is a factual Court unreasonably applied clearly established federal law. determination entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). See Bowling v. Parker, 344 F.3d III. CHALLENGES FOR CAUSE TO “AUTOMATIC DEATH 487, 519 (6th Cir. 2003); Miniel v. Cockrell, 339 F.3d 331, PENALTY ” JURORS 338-39 (5th Cir. 2003). “[O]ur review is deferential, respecting the trial judge’s proximity to the venire and the The Ohio courts did not unreasonably apply the Supreme determinations of credibility and demeanor that voir dire Court’s decision in Morgan v. Illinois, 504 U.S. 719 (1992), involves.” Wolfe v. Brigano, 232 F.3d 499, 502 (6th Cir. in denying Williams’s challenges for cause to a pair of 2000). “The question is not whether the trial judge was alleged “automatic death penalty” jurors. wrong or right in his determination of impartiality, but merely whether his decision was ‘fairly supported by the record.’” A. Legal Standard Bowling, 344 F.3d at 519 (quoting Witt, 469 U.S. at 433). A capital defendant may challenge for cause any B. Challenge for Cause to Juror Eddleman “automatic death penalty” juror—i.e., any juror who would “vote to impose death automatically if the jury found the The state courts did not make an unreasonable defendant guilty.” Morgan, 504 U.S. at 728. As a general determination of fact in denying Williams’s challenge for rule, a defendant may excuse a juror for cause if “the juror’s cause to Juror Eddleman. Initially, when questioned by the views would prevent or substantially impair the performance court, Eddleman expressed her reluctance to impose the death of his duties as a juror in accordance with his instructions and penalty. Later, when pressed by defense counsel, Eddleman his oath.” Id. (quoting Wainwright v. Witt, 469 U.S. 412, 424 did testify that she would “probably” sentence a capital (1985)). Applying this rule in the capital context, “[a] juror defendant to death, given that any life sentence would carry who will automatically vote for the death penalty in every with it parole eligibility.15 However, she professed a case will fail in good faith to consider the evidence of “dislike” of all the sentencing options, and described a vote aggravating and mitigating circumstances as the instructions for a sentence of death as a “difficult decision.” More require him to do.” Id. at 729. “Therefore, based on the importantly, later, in response to specific questioning by the requirement of impartiality embodied in the Due Process trial court and defense counsel, she stated that she could Clause of the Fourteenth Amendment, a juror may challenge follow the court’s instructions and recommend a sentence of for cause any prospective juror who maintains such views.” life imprisonment with parole eligibility if the aggravating Id.14 circumstances did not outweigh the mitigating factors. Thus, the trial court’s conclusion that Eddleman could serve impartially is fairly supported by the record. 14 In his brief, W illiams comm ents that he “was forced to use 15 numerous peremptory challenges to remove [auto matic d eath penalty] At the time o f Williams’s trial, the possible penalties for an jurors for the court’s failure to excuse them for cause.” However, if a offender found guilty of an aggravated murd er charge and a death-penalty defendant remo ves a challenged juror by using a p erem ptory challenge, specification were death, life imprisonment with parole eligibility after he forgoes a later challenge to the trial court’s decision not to excuse the serving twenty full years of imprisonment, or life imprisonm ent with juror for cause. Bowling v. Parker, 344 F.3d 48 7, 521 (6th Cir. 2003); paro le eligibility after serving thirty full years of imp risonm ent. Ohio Wolfe v. Brigano, 232 F.3d 49 9, 502 (6th Cir. 2000). Rev. Cod e Ann. § 2929 .03(C)(2 ) (And erson 199 3). No. 02-3461 Williams v. Bagley 33 34 Williams v. Bagley No. 02-3461

The court asked Eddleman several questions at the outset THE COURT: And if you unanimously find the concerning her willingness to recommend a death sentence to aggravating circumstances outweigh the mitigating the court. factors, then you would be required to make a recommendation of death sentence. COURT: . . . If you find yourself in that situation, could you make such a recommendation to the Court, that is, The converse is true if you don’t find that. That is, if the defendant receive the death sentence? the State fails to prove the aggravating circumstances outweigh the mitigating factors, then you have to JUROR EDDLEMAN: I believe in the death sentence recommend a life sentence and then decide which life but I think I would have a hard time deciding that’s sentence: 20 to life or 30 to life. what— JUROR EDDLEMAN: I understand. Okay. THE COURT: It is a difficult decision to make. THE COURT: Now, I know it’s not easy. Could you JUROR EDDLEMAN: It is. follow the instructions of the Court? THE COURT: There is no question about it. JUROR EDDLEMAN: Yes, I could. JUROR EDDLEMAN: The way I look at it is if you J.A. at 2718-19. were going to say the death sentence, that you should be willing to be one of the ones that would be there and Later during voir dire, defense counsel questioned push the button or pull the lever, whatever they do. And Eddleman at length about her ability to impose a life sentence I just don’t think I could do that. with parole eligibility. THE COURT: Nor would you ever be asked to. [DEFENSE COUNSEL]: The flip side of the sentencing issue, which I’m interested in, is whether or not you JUROR EDDLEMAN: I know that. would fairly consider the two life imprisonment sentencing alternatives if you were ever called upon to THE COURT: However, the Court will give you determine the sentence. Do you know what those two instructions of law, both at the end of the first phase and alternative are? The judge discussed them with you. also at the end of the second phase. JUROR EDDLEMAN: Life. JUROR EDDLEMAN: Uh-huh. [DEFENSE COUNSEL]: With parole eligibility after THE COURT: And you and the balance of the jury serving 20 full years is one alternative. The other is life would weigh in the second phase the aggravating with parole eligibility after serving 30 full years. circumstances against the mitigation—mitigating factors. JUROR EDDLEMAN: No, I wouldn’t. JUROR EDDLEMAN: Right. [DEFENSE COUNSEL]: I’m sorry, you wouldn’t? No. 02-3461 Williams v. Bagley 35 36 Williams v. Bagley No. 02-3461

JUROR EDDLEMAN: If he was convicted of the [DEFENSE COUNSEL]: I understand that’s what you murders I would say no, I would not consider that with are saying. Are you telling me that if the defendant were parole. convicted, that because there’s a possibility of parole after 20 years or after 30 years that you would [DEFENSE COUNSEL]: Okay. Do you want to tell me automatically vote for the death penalty? why not? JUROR EDDLEMAN: Oh— JUROR EDDLEMAN: Because if the murders were committed I don’t—I don’t believe that they should ever [DEFENSE COUNSEL]: Would you? be released. JUROR EDDLEMAN: No. I couldn’t say that. I guess *** I don’t like any three of the choices, is what I’m saying. [DEFENSE COUNSEL]: I will candidly tell you that I am now a little concerned that you cannot fairly consider *** the two life sentencing options. My concern is based upon what you just told me about being unable to [DEFENSE COUNSEL]: So that may make the rest of consider them if the defendant was eligible for parole at this easy since you don’t like either of the three. Do you some point in time. dislike them equally or do you dislike one more than the others? JUROR EDDLEMAN: I wouldn’t—I do not believe that there should even be parole considered if somebody JUROR EDDLEMAN: Let’s see. I would say I dislike would have committed the murder. That’s what I mean. all of them.

[DEFENSE COUNSEL]: I understand. I understand [DEFENSE COUNSEL]: Okay. that that’s how you feel and there are whole segments of society that feel the same way you do. I may feel the JUROR EDDLEMAN: I mean, you know. same way you do. But how I feel doesn’t account for anything in this case. And how you feel about eligibility [DEFENSE COUNSEL]: What are we going to do about for parole only bears upon this case if you cannot set that? You dislike all that. your feelings aside and follow the instructions of the Court. Am I making sense so far? JUROR EDDLEMAN: Change the rules.

JUROR EDDLEMAN: Just a minute. So I [DEFENSE COUNSEL]: Call our legislators, see if we would—well, what I’m saying, I would not believe in the can get a quick— parole so therefore I would not be able to, if it was not JUROR EDDLEMAN: Yes. the death sentence, I would not feel comfortable with the 20 year and the parole or the 30 year and the parole. [DEFENSE COUNSEL]: You understand that you only have those three options if you get to the point— No. 02-3461 Williams v. Bagley 37 38 Williams v. Bagley No. 02-3461

JUROR EDDLEMAN: Those three options, if it came [DEFENSE COUNSEL]: Is your bottom line, if I have right down to it, it would probably be the death penalty to determine the sentence I’ll vote death because there’s then. If there was any remote chance of them being eligibility for parole? paroled, I would probably go with the death penalty. JUROR EDDLEMAN: Yes. [DEFENSE COUNSEL]: Automatically, just because of the possibility of parole? J.A. at 2728-35.

JUROR EDDLEMAN: Yes. Following this exchange, the trial judge questioned Eddleman about her ability to follow the court’s instructions [DEFENSE COUNSEL]: And you are saying that even at sentencing. though you know that these three alternatives should start out even in your mind? You are being honest with me. THE COURT: If you find that the State did not do its job and you find the State did not prove that the JUROR EDDLEMAN: Yes. aggravating circumstances outweighed the mitigating factors, then you must recommend a life sentence. There [DEFENSE COUNSEL]: And because of what you are are two options. saying about the death penalty being automatic, because of the eligibility of parole, you would be unable to fairly JUROR EDDLEMAN: Two options. consider life imprisonment, am I right? THE COURT: You the jury would then decide, if that JUROR EDDLEMAN: If it was without ever a chance were the case, whether it would be 20 years to life or 30 of parole, yes. years to life. As pointed out by counsel there’s no eligibility for parole until that minimum time is served, [DEFENSE COUNSEL]: That’s not the way it is. be it 20 or 30. And not you or me determine after that if he has been rehabilitated, if he should be let out in JUROR EDDLEMAN: Since we don’t have a choice I society, the parole authority does that. would say the death penalty. But knowing that’s your choice, first finding whether [DEFENSE COUNSEL]: And you say that knowing that the State proved aggravating circumstances outweighed there are these life sentencing options that you should the mitigating factors then you must give the death consider? penalty, or if you find they didn’t prove [this] then you must vote for a life sentence. Can you follow the JUROR EDDLEMAN: Because whenever I think about instructions of law? it I would think well, maybe 30 years down the line somebody may be getting out of prison and might meet JUROR EDDLEMAN: Yes. up with one of my children or something. That’s what I’m thinking of whenever I think of it. THE COURT: You see your choice basically is in the finding of aggravating circumstances, whether they *** outweigh the mitigating factors. If you find the State No. 02-3461 Williams v. Bagley 39 40 Williams v. Bagley No. 02-3461

didn’t do their job and didn’t prove it then you must JUROR EDDLEMAN: Let me explain this. Depending recommend life. on the evidence, I don’t know how to explain it. JUROR EDDLEMAN: Life. [DEFENSE COUNSEL]: Take a deep breath and just tell us how you feel. THE COURT: If you find the State did it then you—that is beyond a reasonable doubt—then you must find for the JUROR EDDLEMAN: Depending on the evidence, I death penalty. Do you understand that? don’t know. I don’t know. JUROR EDDLEMAN: Yes. [DEFENSE COUNSEL]: Let me ask you one final question. J.A. at 2736-37. JUROR EDDLEMAN: Rephrase it, please. Finally, defense counsel again questioned Eddleman about her ability to follow the court’s instructions given her [DEFENSE COUNSEL]: If you had to go into a second opposition to parole. phase here would these three possible penalties start out equally in your mind? [DEFENSE COUNSEL]: Right now you have taken an oath to tell us the truth and obviously that’s what you are JUROR EDDLEMAN: Yes, equally. telling us. Your feelings regarding parole eligibility, will that affect the balancing that the Judge described for J.A. at 2737-39. you? The trial court denied Williams’s challenge for cause to JUROR EDDLEMAN: No, I don’t believe so. Eddleman without comment (J.A. at 2740), and the Ohio appellate courts affirmed this ruling. The Ohio Court of [DEFENSE COUNSEL]: Do you think you could set Appeals held that the trial court did not abuse its discretion by these feelings aside or do you think you cannot set these denying Williams’s challenge for cause. It noted that, after feelings aside? Eddleman gave “conflicting statements” concerning her ability to consider a life sentence given the parole eligibility, JUROR EDDLEMAN: Well, depending upon the “the trial court voir dired her and determined that she would evidence and everything I probably could. follow the instructions on the law.” State v. Williams, No. 16418, 1995 WL 641137, at *9 (Ohio Ct. App. Nov. 1, 1995). [DEFENSE COUNSEL]: Okay. I’m a little confused. It concluded that “Eddleman’s answers, on the whole, did not You understand why I’m confused or not? indicate that her views would impair her performance as a juror.” Id. JUROR EDDLEMAN: Okay. The Ohio Supreme Court also held that the trial court did [DEFENSE COUNSEL]: Okay. not abuse its discretion in denying Williams’s challenge for cause. It conceded that Eddleman “vacillated in her responses to questions concerning the death penalty.” State v. Williams, No. 02-3461 Williams v. Bagley 41 42 Williams v. Bagley No. 02-3461

679 N.E.2d 646, 654 (Ohio 1997). However, it noted that, in presented, and Williams has failed to rebut the presumption response to the trial court’s questioning, Eddleman “indicated of correctness properly afforded such a finding. that she understood the balancing process for aggravating circumstances and mitigating factors and agreed that she Eddleman did not stake a firm “pro-death-penalty” stance, could participate in that process, weigh the evidence fairly, but rather expressed ambivalence about the death penalty. In and make the appropriate recommendation.” Id. “Finding no response to initial questioning by the court, she admitted that abuse of discretion,” the court concluded, “we therefore defer a death sentence would be “a difficult decision.” J.A. at 2718. to the trial judge’s discretion to determine whether Eddleman She explained, “The way that I look at it is if you were going could indeed follow the law and be fair and impartial.” Id. at to say the death sentence, that you should be willing to be one 654-55. The chief justice, joined by another justice, of the ones that would be there and push the button or pull the dissented. He concluded, “Where statements suggesting bias lever, whatever they do. And I just don’t think I could do predominate in quantity, specificity, and certainty, countered that.” Id. She responded to the prosecutor that she “probably by a relatively few general statements that the juror believes could” sign the verdict form for a death sentence. J.A. at he or she can follow the law and be fair, deference to the trial 2725. Similarly, in response to defense counsel’s initial court defies the constitutional requirements.” Id. at 669 questioning, she revealed that, though she would not “feel (Moyer, C.J., dissenting). comfortable” giving a life sentence with parole eligibility, she did not like any of the sentencing options. J.A. at 2731-32; The district court held that the state courts’ determination see also J.A. at 2733 (“Juror Eddleman: Change the rules.”). that Juror Eddleman could be fair and impartial “was not in Only when pressed by defense counsel did she state that, any way unreasonable.” J.A. at 149. It noted that the trial given the three options, she “would probably go with the court “explained the applicable law to Eddleman, noting that death penalty” and that her “bottom line” was that she would in some circumstances the jury would be required to “vote for the death penalty because there’s eligibility for recommend a life sentence even though they found the parole.” J.A. at 2732-33. defendant guilty of murder,” and then “asked Eddleman whether she could follow the instructions of law regarding the In the end, however, in response to further questioning by proper imposition of the death penalty.” J.A. at 148. This the court and defense counsel, Eddleman indicated that she interrogation, the court determined, was more than “general could set aside her personal beliefs concerning parole and questions regarding Eddleman’s impartiality and fairness.” follow the court’s instructions. The court explained the Id. sentencing process in detail, and, in response to specific questions,16 Eddleman affirmed that she could follow the As the district court concluded, Williams has not shown that the state courts acted unreasonably in denying Williams’s challenge for cause. Williams does not argue that the state 16 In Morgan, the Court held that “general questions of fairness and courts incorrectly interpreted Morgan, but instead challenges impartiality” are not sufficient to estab lish a juro r’s impa rtiality, as a juror the state courts’ findings that Eddleman could set aside her “could in all truth and candor respond affirmatively, personally confident aversion to a life sentence with parole eligibility and follow that such dogmatic views are fair and impartial, while leaving the sp ecific the trial court’s sentencing instructions. This finding is a concern unpro bed .” 504 U.S. 719 , 735 (1992). However, in the case at reasonable determination of the facts in light of the evidence bar, the trial court inquired specifically about Eddleman’s ability to follow the court’s sentenc ing instructions. Com pare id. at 723 (jurors had been asked “whether each could be fair and impartial” and whether they could No. 02-3461 Williams v. Bagley 43 44 Williams v. Bagley No. 02-3461

court’s instructions. J.A. at 2736-37. Then, in response to options, and attested to her ability to follow the court’s further inquiries by defense counsel, Eddleman testified that instructions despite her aversion to parole. In sum, the trial she did not “believe” that her feelings regarding parole court’s finding of impartiality was “fairly supported by the eligibility would affect the balancing process just described record.” Bowling, 344 F.3d at 519. by the court, that she “probably could” set aside these feelings, and that the three sentencing options would “start C. Challenge for Cause to Juror Camp out equally” in her mind. J.A. at 2738-39. The state courts did not make an unreasonable The Supreme Court has observed that “it is not unusual on determination of the facts in denying Williams’s challenge for voir dire examination” for prospective jurors to give cause to Juror Camp. Although, when first questioned by “ambiguous and at times contradictory” testimony, Patton v. defense counsel, Camp expressed “concern” about sentencing Yount, 467 U.S. 1025, 1039 (1984), as has happened here. a capital defendant to a term of life with parole eligibility, Prospective jurors vary widely in education and experience, Camp later stated forthrightly that she would not and have had no briefing by lawyers prior to taking the stand. automatically vote for the death penalty and that she could They abide by Ohio’s sentencing procedures. Thus, the state courts’ finding of impartiality is fairly supported by the thus cannot be expected invariably to express themselves record. carefully or even consistently. Every trial judge understands this, and under our system it is that judge Like Eddleman, Camp was questioned at length about her who is best situated to determine competency to serve ability to impose a life sentence with parole eligibility during impartially. The trial judge properly may choose to voir dire. believe those statements that were the most fully articulated or that appeared to have been least influenced [DEFENSE COUNSEL]: Would you ever hesitate when by leading. you are considering these three options, would you ever hesitate to vote for one of the life sentences out of a Id. As the Court has instructed, “[i]t is here that the federal concern that the defendant might be placed back out on court’s deference must operate, for while the cold record the street through the parole process? [may] arouse[] some concern, only the trial judge [can] tell which of [the] answers was said with the greatest JUROR CAMP: That’s something to think about. comprehension and certainty.” Id. at 1040. [DEFENSE COUNSEL]: Okay. Would that concern These principles inform our conclusion that the trial court, cause you to simply reject out of hand those life and the Ohio appellate courts, reasonably determined that sentences? Eddleman could serve impartially. Eddleman evinced a lack of bloodthirst, professed a dislike for all the sentencing JUROR CAMP: It would be a concern. [DEFENSE COUNSEL]: Would it be—again I have to ask you to look inside yourself. Would it be a concern to follow the court’s “instructions on the law even though you may not such an extent that even though Judge would say to you, agree”). Mrs. Camp, you and the other jurors are to look at these No. 02-3461 Williams v. Bagley 45 46 Williams v. Bagley No. 02-3461

three options equally, do you think it would be such a first phase should automatically get the death penalty at concern that even though you would want to follow the second phase? Judge Winter’s instruction you would say I just don’t know if I can because I’m concerned about this parole JUROR CAMP: No. thing? *** JUROR CAMP: It would be one thing to be concerned about, along with everything else we would have to JUROR CAMP: Your question back to me was if consider. [everybody found guilty] beyond a reasonable doubt should be killed, I said no. [DEFENSE COUNSEL]: Okay. Do you think that your concern about that would substantially impair or alter *** your ability to do that weighing process that we talked about a minute ago? [DEFENSE COUNSEL]: That’s what I want to know. If we get to that second phase, you heard the Judge say JUROR CAMP: No. It would have to be weighed the prosecutor has to prove to you beyond a reasonable together. doubt that the aggravating circumstances outweigh the mitigating factors in order for you to vote for the death *** penalty, do you recall that?

[DEFENSE COUNSEL]: [D]o you have an opinion or JUROR CAMP: We as a jury would have to feel that can you tell me how you feel about those life sentences there was beyond a reasonable doubt. as alternatives to the death penalty. [DEFENSE COUNSEL]: That’s right. JUROR CAMP: I think if someone’s sentenced to life then it should be life. JUROR CAMP: Right.

[DEFENSE COUNSEL]: Is your feeling about that so [DEFENSE COUNSEL]: That’s right. And if you have strong that it would cause you, if you are in the jury room a reasonable doubt as to whether those aggravating in a second phase, to say well, there’s a chance this guy circumstances outweigh the mitigating factors, then you might get out, I just can’t vote for life, I don’t care what as a juror have to pick one of those life sentences. the Judge said about weighing them, my feelings are so strong that I’m worried about this guy getting out? JUROR CAMP: Right.

JUROR CAMP: It could be. [DEFENSE COUNSEL]: Do you think you could do that? It’s a difficult decision, I know. Do you think you *** could do it?

[DEFENSE COUNSEL]: Are you saying that everybody JUROR CAMP: It would have to be proved to me that who is found guilty beyond a reasonable doubt at that it was—that actually the person is guilty. No. 02-3461 Williams v. Bagley 47 48 Williams v. Bagley No. 02-3461

[DEFENSE COUNSEL]: Okay. And then at the second J.A. at 149. It concluded that, “When the death penalty phase—that would be the first phase, where they have to process and the applicable laws were explained to her during prove it. voir dire, Camp indicated that she could follow the law and the court’s instructions to return an appropriate verdict.” Id. JUROR CAMP: If I had doubts then I wouldn’t vote for the death penalty. The state courts reasonably determined that Camp could set aside any disinclination to vote for a life sentence and follow [DEFENSE COUNSEL]: Okay when you say doubts— the trial court’s instructions. At worst, when initially questioned by defense counsel, Camp stated that parole was JUROR CAMP: If I had doubts. a “concern” and that her feelings about parole “could” cause her to disregard the judge’s instructions. J.A. at 2493 [DEFENSE COUNSEL]: You are talking about the (“[Parole] would be a concern.”); J.A. at 2496-97 (stating that weighing process that I described to you? her feeling that “if someone’s sentenced to life then it should be life” “could be” strong enough to prevent her from voting JUROR CAMP: Yes. for a life sentence). However, in response to further J.A. at 2493-2500. questioning by defense counsel, Camp indicated that she would not automatically vote for the death penalty and that The trial court denied Williams’s challenge for cause to she could apply the weighing process prescribed by Ohio law. Camp. It concluded that “the testimony would indicate that She responded “no” to defense counsel’s question, “Are you [Camp] could perform her duties as a juror in accordance with saying everybody who is found guilty beyond a reasonable the Court’s instruction and the evidence.” J.A. at 2502. doubt at [the] first phase should automatically get the death penalty at the second phase?” J.A. at 2498. She stated, The Ohio appellate courts affirmed the trial court’s ruling. “Your question back to me was if they are finding everybody The Ohio Court of Appeals held that the trial court had not beyond a reasonable doubt should be killed, I said no.” J.A. abused its discretion in denying Williams’s challenge for at 2499. She agreed that “if you have a reasonable doubt as cause. It acknowledged that Camp stated that the possibility to whether those aggravating circumstances outweigh the of parole “would be a concern,” but it noted that Camp “also mitigating factors, then you as a juror have to pick one of indicated that she would not automatically vote for the death those life sentences.” J.A. at 2499-2500. She stated that, “If penalty and that she would be able to consider equally all I had doubts then I wouldn’t vote for the death penalty.” J.A. three of the sentencing alternatives.” Williams, 1995 WL at 2500. Additionally, prior to defense counsel’s questioning, 641137, at *9. The Ohio Supreme Court also held that the Camp told the prosecutor, “I wouldn’t say kill everybody” trial court had not abused its discretion in denying Williams’s (J.A. at 2475-76), and that none of the sentencing alternatives challenge for cause, noting that Camp “did not automatically “would have a leg up.” J.A. at 2490. Simply put, Williams favor the death penalty” and “stated that she could consider has not adduced sufficient evidence to overcome the state all of the possible penalties and return the appropriate courts’ finding that Camp could set aside any bias toward the verdict.” Williams, 679 N.E.2d at 654. death penalty and follow the trial judge’s instructions.

The district court held that the trial court’s conclusion that Camp could be fair and impartial “was not unreasonable.” No. 02-3461 Williams v. Bagley 49 50 Williams v. Bagley No. 02-3461

IV. CONSTITUTIONAL CHALLENGES TO OHIO ’S CAPITAL Under Ohio’s capital punishment scheme, the appellate PUNISHMENT SCHEME courts17 are obligated to determine, among other things, “whether the sentence of death is appropriate.” Ohio Rev. Williams has preserved a number of constitutional Code Ann. § 2929.05(A) (Anderson 2003). “In determining challenges to Ohio’s capital punishment scheme. However, whether the sentence of death is appropriate, the court of this court has recently rejected each of these challenges and appeals . . . and the supreme court shall consider whether the has upheld the constitutionality of Ohio’s capital punishment sentence is excessive or disproportionate to the penalty scheme as a general matter. Smith v. Mitchell, 348 F.3d 177, imposed in similar cases.” Id. The appellate court “shall 214 (6th Cir. 2003). Williams has not directed the court to affirm a sentence of death only if the particular court is any authority—in particular, any Supreme Court persuaded from the record . . . that the sentence of death is the decision—compelling reconsideration of these decisions. appropriate sentence in the case.” Id. Thus, we conclude that the Ohio courts did not act contrary to, or unreasonably apply, clearly established federal law in The Ohio Supreme Court has held that the proportionality rejecting Williams’s constitutional challenges to Ohio’s review mandated by § 2929.05(A) “is satisfied by a review of capital punishment scheme. those cases already decided by the reviewing court in which the death penalty has been imposed.” Steffen, 509 N.E.2d at A. Ohio’s System of Proportionality Review 395. The appellate court “need only compare the case before it with other cases actually passed on by that court to Williams challenges Ohio’s system of proportionality determine whether the death sentence is excessive or review, whereby the Ohio Court of Appeals and the Ohio disproportionate”; it need not “consider any case where the Supreme Court “determine whether the penalty of death is death penalty was sought but not obtained or where the death unacceptable in the case under review because it is sentence could have been sought but was not.” Id. disproportionate to the punishment imposed on others convicted of the same crime.” State v. Steffen, 509 N.E.2d Williams argues that, by interpreting § 2929.05(A) in this 383, 394 (Ohio 1987). He contends that, in establishing fashion, Ohio has reduced its system of proportionality proportionality review, Ohio has created a constitutionally review “to a meaningless, capricious procedure in violation of protected liberty interest, and that Ohio has “reduced” the Due Process Clause.” He concedes that in Pulley v. proportionality review to “a meaningless, capricious Harris, 465 U.S. 37 (1984), the Supreme Court held that procedure in violation of the Due Process Clause.” Fatal to proportionality review is not constitutionally mandated, but Williams’s argument, this court has repeatedly rejected due maintains that the Ohio legislature created a constitutionally process challenges to Ohio’s system of proportionality protected liberty interest when it established a system of review. proportionality review. Thus, he insists that the Ohio Supreme Court’s decision as to what cases are “similar” for

17 Subsequent to Williams’s conviction, Ohio’s capital punishment scheme was amended to provide for direct appeal from the trial co urt to the Ohio Suprem e Co urt. See Ohio Rev. Co de Ann. § 292 9.05(A) (And erson 200 3). No. 02-3461 Williams v. Bagley 51 52 Williams v. Bagley No. 02-3461

purposes of § 2929.05(A) “must be made in an environs of consistently that, in “limiting proportionality review to other some ‘reasonable and non-capricious’ guiding principles, lest cases already decided by the reviewing court in which the those decisions be completely arbitrary” in violation of the death penalty has been imposed, Ohio has properly acted Due Process Clause. (emphasis in original) And he concludes within the wide latitude it is allowed.” Id.; see also Wickline, that, given Ohio Revised Code § 2929.021(A)’s requirement 319 F.3d at 824-25; Coleman, 268 F.3d at 453. Williams has that all capital indictments be reported to the Ohio Supreme not mustered any authority compelling this court to revisit Court, and given Ohio Revised Code § 2929.03(F)’s these decisions, and we must conclude that the state courts requirement that the trial court file an opinion with the did not unreasonably apply clearly established federal law in appellate courts explaining its sentencing decision in any rejecting Williams’s claim. capital case, the only reasonable interpretation of “similar cases” for purposes of § 2929.05(A) is all capitally indicted B. Prosecutorial Discretion cases, regardless of whether a sentence of death was imposed. Williams argues that Ohio’s capital punishment scheme Williams pressed this argument without success in his violates the Eighth and Fourteenth Amendments in that “[t]he direct appeal and before the district court. The Ohio Court of virtually uncontrolled discretion of prosecutors in indictment Appeals noted that the Ohio Supreme Court had rejected decisions allows for arbitrary and discriminatory imposition Williams’s very argument in Steffen, State v. Williams, No. of the death penalty.” However, as this court recognized in 16418, 1995 WL 641137, at *19 (Ohio Ct. App. Nov. 1, Wickline, such a challenge to Ohio’s capital punishment 1995), and the Ohio Supreme Court dismissed the entirety of scheme is foreclosed by Gregg v. Georgia, 428 U.S. 153 Williams’s constitutional challenge to Ohio’s capital (1976). 319 F.3d at 824. In Gregg, the defendant argued that punishment scheme in a single sentence. State v. Williams, Georgia imposed its death penalty in “an arbitrary and 679 N.E.2d 646, 660 (Ohio 1997). The district court held capricious manner” in that “the state prosecutor has unfettered that, since the Constitution does not require proportionality authority to select those persons whom he wishes to prosecute review, “any inadequacy in a state-provided proportionality for a capital offense and to plea bargain with them.” Id. at review, even if proven, does not entitle a petitioner to federal 199. In two opinions, six justices squarely rejected the habeas relief.” J.A. at 151. argument. Id. at 199 (opinion of Justices Stewart, Powell, and Stevens), 255 (White, J., concurring). Plainly, the Ohio This court has held repeatedly that Ohio’s system of courts did not act contrary to clearly established law in proportionality review complies with the dictates of the Due dismissing Williams’s claim. Process Clause. See Smith v. Mitchell, 348 F.3d 177, 214 (6th Cir. 2003); Wickline v. Mitchell, 319 F.3d 813, 824 (6th Cir. C. Mandatory Submission to the Jury of Pre-Sentence 2003); Cooey v. Coyle, 289 F.3d 882, 928 (6th Cir. 2002); Investigation and Mental Examination Reports Buell v. Mitchell, 274 F.3d 337, 368-69 (6th Cir. 2001); Requested by the Defendant Coleman v. Mitchell, 268 F.3d 417, 453 (6th Cir. 2001); Greer v. Mitchell, 264 F.3d 663, 691 (6th Cir. 2001); Byrd v. Williams challenges a provision in Ohio’s death penalty Collins, 209 F.3d 486, 539 (6th Cir. 2000). “Since statutes stating that, if a defendant requests a pre-sentence proportionality review is not required by the Constitution, investigation or a mental evaluation, the resulting report must states have great latitude in defining the pool of cases used for be submitted to the jury. This provision, he argues, impairs comparison.” Buell, 274 F.3d at 369. And this court has held a defendant’s right to effective assistance of counsel and right No. 02-3461 Williams v. Bagley 53 54 Williams v. Bagley No. 02-3461

to control the presentation of evidence in violation of the Fourteenth Amendments, in support of his argument, we Sixth and Fourteenth Amendments. Again, this court has cannot conclude that the Ohio courts acted contrary to clearly previously rejected Williams’s argument. established federal law in rejecting Williams’s claim. Under Ohio law, a capital defendant is entitled to a pre- D. The “Mandatory” Nature of Ohio’s Death Penalty sentence investigation and a mental examination. Ohio Rev. Code Ann. § 2929.03(D)(1) (Anderson 2003). However, a Williams argues that Ohio’s capital punishment scheme pre-sentence investigation and a mental examination are not creates a “mandatory death penalty” by requiring a sentence permitted unless requested by the defendant. Id. If a of death when the aggravating circumstances outweigh the defendant requests an investigation or an examination, the mitigating factors.18 This absence of discretion, he contends, resulting reports must be provided to the court, the jury, and denies a defendant an individualized determination of the the prosecutor. Id. Additionally, the jury and the court must appropriateness of the punishment in violation of the Eighth “consider” the report when sentencing the defendant. Id. and Fourteenth Amendments.

This court has rejected constitutional challenges to this Yet again, this court has squarely rejected Williams’s provision. Cooley, 289 F.3d at 925-26 (unpublished argument. In Buell, the court concluded appendix) (dismissing petitioner’s argument that the submission requirement “prevents defense counsel from Buell’s arguments are unavailing. In Proffitt v. Florida, giving effective assistance and prevents the defendant from 428 U.S. 242, 258, 96 S.Ct. 2960, 49 L.Ed.2d 913 effectively presenting his case”); Byrd, 209 F.3d at 539 (1976), the Supreme Court upheld a statutory scheme for (rejecting the argument that Ohio’s capital punishment weighing aggravating circumstances and mitigating scheme “violates defendants’ rights to due process and factors that is similar to Ohio’s, which lays out specific effective assistance of counsel by allowing presentence aggravating circumstances and mitigating factors that are investigation reports or mental examinations requested by to be considered at sentencing. Ohio Rev. Code defendants to be provided to the jury”); see also Dennis v. § 2929.04. The Court also has approved of a statute that Mitchell, 68 F. Supp. 2d 863, 904 (N.D. Ohio 1999) (same). did not enunciate specific factors to consider or a specific Moreover, it is difficult to see how the submission method of balancing the competing considerations. See requirement impaired Williams’s right to effective assistance Franklin v. Lynaugh, 487 U.S. 164, 172-73, 108 S.Ct. of counsel and right to control the presentation of evidence. 2320, 101 L.Ed.2d 155 (1988); Zant v. Stephens, 462 Williams was not required to, and did not, request the reports. Moreover, under Ohio Revised Code § 2929.024, indigent 18 capital defendants may obtain, at the state’s expense, an Under Ohio’s capital punishment scheme, “[i]f the trial jury expert (and other services) reasonably necessary for unanimously finds, by proof beyond a reasonable do ubt, that the aggravating circum stances the offender was found guilty of committing presenting a defense at the guilt phase or the penalty phase. outweigh the mitigating factors, the trial jury shall recommend to the See Glenn v. Tate, 71 F.3d 1204, 1209 n.2 (6th Cir. 1995) court that the sentence of death be imposed on the offender.” Ohio Rev. (“When an expert is retained under § 2929.024, the defendant Code. Ann. § 292 9.03 (D)(2) (A nderson 2 003 ). If, after rece ipt of a can decide for himself whether he wants to put the expert’s recommendation of death, and after an indep endent review of the findings before the jury.”). Finally, because Williams has not evidence, the trial court finds, by proof beyond a reasonable doubt, that the aggravating circumstances outwe igh the m itigating facto rs, “it shall cited any relevant authority, other than the Sixth and impose sentence of death on the offender.” Id. § 29 29.0 3(D )(3). No. 02-3461 Williams v. Bagley 55 56 Williams v. Bagley No. 02-3461

U.S. 862, 875, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). Id. at 460. This court, applying Supreme Court precedent, The Court has held that “it is constitutionally required has determined that Ohio’s scheme ensures such an that the sentencing authority have information sufficient individualized determination of the appropriateness of the to enable it to consider the character and individual penalty. Justice Stevens’ dissent from the Court’s denial of circumstances of a defendant prior to imposition of a a petition for writ of certiorari in Smith v. North Carolina, death sentence.” Sumner v. Shuman, 483 U.S. 66, 72, 459 U.S. 1056 (1982) (Stevens, J., dissenting denial cert.), 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987) (quoting noted that a potential ambiguity in a North Carolina jury Gregg,428 U.S. at 189-90 n.38, 96 S.Ct. 2909). The instruction might prevent a jury from determining “that death sentence imposed on Buell complies with Sumner as well is the appropriate punishment in a specific case.” Id. at 1057 as the Supreme Court’s holding in Blystone, 494 U.S. at (internal quotation marks omitted). It does not follow that a 305, 110 S.Ct. 1078, that a death penalty is constitutional statute requiring a sentence of death when the aggravating if it “is imposed only after a determination that the circumstances outweigh the mitigating factors is aggravating circumstances outweigh the mitigating unconstitutional, and in any event the opinion of a single circumstances present in the particular crime committed justice is not “clearly established Federal law” for purposes of by the particular defendant, or that there are no such federal habeas review. See Williams v. Taylor, 529 U.S. 362, mitigating circumstances.” In Buell’s case, both the jury 412 (2000) (“That statutory phrase refers to the holdings . . . at the penalty phase of trial and the reviewing courts of this Court’s decisions as of the time of the relevant state- specifically considered the aggravating circumstances court decision.”). The Ohio courts did not act contrary to, or and mitigating factors presented and determined that unreasonably apply, clearly established federal law in capital punishment was appropriate. By weighing these rejecting Williams’s “mandatory death penalty” argument. specific considerations, it cannot be said that a mandatory death penalty was imposed on Buell. E. Electrocution as a Method of Execution

274 F.3d at 368; see also Coleman, 268 F.3d at 442 (“[T]he Williams argues that Ohio’s “reliance on electrocution as Ohio scheme does not mandate the death penalty for any the statutorily-defined method of execution violates [the particular crime, and under § 2929.03(D) the death penalty Eighth Amendment’s] proscription against cruel and unusual decision making process is not shielded from judicial punishment.” However, this court has upheld the review.”); Byrd, 209 F.3d at 539 (dismissing petitioner’s constitutionality of electrocution as a method of execution. argument that Ohio’s capital punishment scheme Smith, 348 F.3d at 214; Buell, 274 F.3d at 370 (observing that unconstitutionally “fails to provide the sentencing authority “[e]lectrocution has yet to be found cruel and unusual with the option to choose a life sentence even if the punishment by any American court” and stating that “[w]e aggravating circumstances outweigh the mitigating factors”). decline to be the first”); Greer v. Mitchell, 264 F.3d 663, 691 (6th Cir. 2001); Byrd, 209 F.3d at 539. Moreover, Ohio law Williams has not cited any authority that compels now designates lethal injection as the sole means of reconsideration of this conclusion. The Supreme Court in execution, rendering his argument moot. Ohio Rev. Code Spaziano v. Florida, 468 U.S. 447 (1984), merely stated that Ann. § 2949.22 (Anderson 2003) (“[A] death sentence shall a state “must administer [the death penalty] in a way that can be executed by causing the application to the person, upon rationally distinguish between those individuals for whom whom the sentence was imposed, of a lethal injection of a death is an appropriate sanction and those for whom it is not.” drug or a combination of drugs of sufficient dosage to quickly No. 02-3461 Williams v. Bagley 57 58 Williams v. Bagley No. 02-3461

and painlessly cause death.”); State v. Mack, No. 62366, 2003 V. WILLIAMS’S PROCEDUR AL DEFAULTS WL 21185786, at *11 (Ohio. Ct. App. May 19, 2003) (“[A]ll arguments relating to electrocution are now moot because The district court concluded that most of Williams’s claims Ohio in November 2001, amended R.C. 2949.22 to eliminate were procedurally defaulted. We agree. electrocution as the means of execution.”). In short, Williams is not entitled to relief on the basis of his Eighth Amendment A. Legal Background argument. When a petitioner defaults on a federal claim in state court F. Other Constitutional Claims pursuant to an independent and adequate state procedural rule, federal habeas review of the claim is barred unless the Williams advances a number of additional constitutional petitioner can demonstrate (1) cause for the default and actual challenges to Ohio’s capital punishment scheme. Most prejudice, or (2) that the failure to consider the claim will notably, he argues that Ohio’s scheme (1) constitutes cruel result in a fundamental miscarriage of justice. Coleman v. and unusual punishment, (2) lacks a standard for determining Thompson, 501 U.S. 722, 750 (1991). This court applies a the existence of mitigating factors, (3) lacks a standard for four-part test to determine if a claim is procedurally defaulted. weighing aggravating factors against mitigating First, the court must determine whether there is a state circumstances, (4) permits the trier of fact to consider procedural rule applicable to the petitioner’s claim and aggravating circumstances at the trial phase, (5) improperly whether the petitioner failed to comply with the rule. Buell v. encourages guilty pleas, (6) lacks a compelling state interest Mitchell, 274 F.3d 337, 348 (6th Cir. 2001). Second, the and fails to use the least restrictive means, and (7) permits the court must determine whether the state court actually death penalty to be imposed in an arbitrary, capricious, and enforced the state procedural rule. Id. Third, the court must discriminatory manner. Williams has not cited any Supreme decide whether the state procedural rule is an adequate and Court precedent supporting his claims, and this court has independent state ground upon which the state can rely to squarely rejected most of Williams’s arguments. Smith, 348 foreclose review of a federal constitutional claim. Id. Fourth, F.3d at 213-14 (rejecting arguments (1)-(4)); Wickline, 319 if the preceding questions are answered in the affirmative, the F.3d at 824 (rejecting argument (7)); Cooey, 289 F.3d at 923- petitioner must demonstrate that there was cause for him to 26 (rejecting arguments (2)-(5) and (7)), Buell, 274 F.3d at neglect the procedural rule and that he was actually 367 (rejecting argument (7)); Coleman, 268 F.3d at 443 prejudiced by the alleged constitutional error. Id. (rejecting argument (4)); Greer, 264 F.3d at 690 (rejecting arguments (1) and (6)); Byrd, 209 F.3d at 539 (rejecting B. Ohio’s Doctrine of Res Judicata as an Adequate and arguments (5) and (7)). In summary, in dismissing Independent State Ground Williams’s constitutional challenges to Ohio’s capital punishment scheme, the Ohio courts did not act contrary to, Williams’s argument that Ohio’s doctrine of res judicata or unreasonably apply, clearly established federal law as does not constitute an adequate and independent state ground, determined by Supreme Court. and hence cannot bar review of a pair of Williams’s claims, is without merit. During voir dire, Williams objected to the prosecutor’s challenge for cause, based on Wainwright v. Witt, 469 U.S. 412 (1985), to a prospective juror allegedly holding anti-death-penalty views. Williams also objected, No. 02-3461 Williams v. Bagley 59 60 Williams v. Bagley No. 02-3461

based on Batson v. Kentucky, 476 U.S. 79 (1986), to the ground); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001) prosecutor’s use of a peremptory challenge to remove the (holding that “Ohio’s doctrine of res judicata as a procedural only remaining African-American from the jury panel. bar is regularly applied by the Ohio courts”); Mapes v. Coyle, However, Williams did not raise either of these issues on 171 F.3d 408, 421 (6th Cir. 1999) (rejecting argument that direct appeal or in his state post-conviction proceeding. Ohio’s doctrine of res judicata was not firmly established and regularly followed). Second, Williams has not explained the As the district court properly concluded, Williams relevance of his attack on the adequacy of Ohio’s system of procedurally defaulted these claims. Williams did not post-conviction review. In particular, he has not shown how exhaust his claims because he did not raise the claims on a lack of discovery, or any other alleged flaw in Ohio’s direct appeal in state court. As the Supreme Court held in system of post-conviction review, prevented him from raising O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999), “state his Batson claim or his Wainwright claim on direct appeal. prisoners must give the state courts one full opportunity to See Smith v. Anderson, 104 F. Supp. 2d 773, 792-93 (S.D. resolve any constitutional issues by invoking one complete Ohio 2000) (“Any perceived deficiencies in Ohio’s post- round of the State’s established appellate review process.” conviction system did not relieve petitioner of the obligation Because the claims would be procedurally barred under Ohio to raise these waived claims on direct appeal.” (internal law, they are procedurally defaulted for purposes of federal quotation marks omitted)). Moreover, this court has habeas review. Alley v. Bell, 307 F.3d 380, 385 (6th Cir. dismissed the contention that “res judicata was an inadequate 2002). Specifically, as the district court found, the claims are procedural bar . . . because he was denied a reasonable barred under Ohio’s doctrine of res judicata, which provides opportunity to present his claims in state court,” and held that in relevant part that a final judgment of conviction bars a res judicata is an adequate and independent state ground for convicted defendant from raising in any proceeding, except an barring habeas review of constitutional claims. Coleman v. appeal from that judgment, any issue that was raised, or could Mitchell, 268 F.3d 417, 427, 429 (6th Cir. 2001).19 have been raised, at trial or on appeal from that judgment. State v. Perry, 226 N.E.2d 104, 105-06 (Ohio 1967). Williams, however, contends that Ohio’s doctrine of res judicata does not constitute an adequate and independent state ground. First, he argues that Ohio courts do not consistently apply this procedural rule in capital cases. Second, he argues that Ohio’s post-conviction system does not meet the 19 In suppo rt of his argument, W illiams cites three d ated cases in requirements of due process in that it does not provide which this court excused a petitioner from the exhaustion requirement adequate discovery. because state procedures were ineffective to protect the rights of the petitioners. See Keener v. Ridenour, 594 F.2d 581 (6th C ir. 197 9); Allen Williams’s arguments are without merit. First, “this court v. Perini, 424 F.2d 134 (6th C ir. 197 0); Coley v. A lvis, 381 F.2d 870 (6th Cir. 1967). As this court has already observed, these cases concerned has rejected claims that Ohio has failed to apply [the doctrine forgiveness of the exhaustion requirement, not the adeq uacy o f res of res judicata] consistently.” Greer v. Mitchell, 264 F.3d judicata as a state ground justifying foreclosure of a federal constitutional 663, 673 (6th Cir. 2001); see also Monzo v. Edwards, 281 claim. Coleman v. Mitch ell, 268 F.3d 417 , 428 -29 (6 th Cir. 20 01). This F.3d 568, 577 (6th Cir. 2002) (deeming Ohio’s doctrine of res court has directly held in other cases that res judicata is an adequate and judicata an adequate and independent state procedural independent state ground, and those decisions are controlling on the issue. Id. No. 02-3461 Williams v. Bagley 61 62 Williams v. Bagley No. 02-3461

C. Ohio’s Contemporaneous Objection Rule as an the Ohio appellate court; the Ohio court examined the Independent State Law Ground record to determine if the allegedly improper remarks were “plain error.” One of Williams’s prosecutorial misconduct claims is procedurally barred by Ohio’s contemporaneous objection The basic inquiry in the plain error analysis is whether rule, which, contrary to Williams’s argument, is independent the defendant has been denied a “fair trial.” Whether a of federal law. Williams charges that the prosecutor engaged person is denied a fair trial is a question to be resolved by in prosecutorial misconduct by impermissibly vouching for applying the principles of federal constitutional law. the credibility of Williams’s accomplices during their Therefore, we conclude that the Ohio appellate court’s testimony. However, Williams did not object to the decision was not independent of federal law. prosecutor’s actions at trial, and the Ohio Court of Appeals and the Ohio Supreme Court reviewed Williams’s claim Id. under Ohio’s plain error standard. See State v. Smith, 731 N.E.2d 645, 655 (2000) (explaining that, under Ohio’s However, the Knuckles decision has been subject to “contemporaneous objection” rule, an appellant who fails to criticism, and this court has repeatedly held, in published object waives later review of the issue unless he shows plain decisions, that plain error review by an appellate court error). The district court held that Williams had procedurally constitutes enforcement of Ohio’s contemporaneous objection defaulted the claim under Ohio’s contemporaneous objection rule. See Gulertekin v. Tinnelman-Cooper, 340 F.3d 415, rule. J.A. at 134-35. 423-24 (6th Cir. 2003) (noting criticism of Knuckles and observing that “[w]e have previously held Ohio’s Conceding that Ohio’s contemporaneous objection rule is contemporaneous objection rule to constitute an adequate and firmly established and that the state courts actually enforced independent state ground”); Mason v. Mitchell, 320 F.3d 604, the rule against him, Williams argues that the rule is not 636 (6th Cir. 2003) (“The Ohio Supreme Court reviewed for independent of federal law. He cites a single unpublished plain error . . . thus barring federal habeas review absent a opinion which held that a decision by an Ohio appellate showing of cause and prejudice.”); Hinkle v. Randle, 271 F.3d court—holding that allegedly improper conduct by the 239, 244 (6th Cir. 2001) (“We have held that Ohio’s prosecutor did not constitute plain error—did not rest on an contemporaneous objection rule constitutes an adequate and independent state law ground. Knuckles v. Rogers, No. 92- independent state ground. . . . Moreover, we view a state 3208, 1993 WL 11874, at **2-3 (6th Cir. Jan. 21, 1993). appellate court’s review for plain error as the enforcement of Specifically, in Knuckles, the court reasoned, a procedural default.” (citations omitted)); Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000) (“Controlling In the case at bar, it is clear that Ohio has a precedent in our circuit indicates that plain error review does contemporaneous objection rule, and that the Ohio courts not constitute a waiver of state procedural default rules.”); treat the failure to object to a claimed error as a Scott v. Mitchell, 209 F.3d 854, 866-68 (6th Cir. 2000) procedural default. . . . Since [the petitioner] failed to (questioning Knuckles and holding that Ohio’s object contemporaneously to the allegedly improper contemporaneous objection rule was an inadequate and remarks, he violated Ohio’s contemporaneous objection independent ground). Our cases thus require the conclusion rule and committed a procedural default. However, the that Williams has procedurally defaulted his improper procedural default did not foreclose all consideration by vouching claim by failing to abide by Ohio’s No. 02-3461 Williams v. Bagley 63 64 Williams v. Bagley No. 02-3461

contemporaneous objection rule, an adequate and independent to press any particular allegations of misconduct in federal state ground. court. D. Failure to Raise Claim Under the Same Theory in As the district court observed, “[t]his Circuit has held that State Court the doctrine of exhaustion requires that a claim be presented to the state courts under the same theory in which it is later Williams has procedurally defaulted most of his theories of presented in federal court.” Wong v. Money, 142 F.3d 313, prosecutorial misconduct by failing to raise these specific 322 (6th Cir. 1998). As Williams’s ten allegations represent theories in state court. In federal court, Williams has alleged theories which are “separate and distinct from the one eleven incidents of prosecutorial misconduct.20 Williams did previously considered and rejected in state court,” id., he present a prosecutorial misconduct claim to the Ohio Court of procedurally defaulted these claims. Appeals and the Ohio Supreme Court; however, as discussed supra in Section V(C), this claim was based solely on the E. Ineffective Assistance of Appellate Counsel as allegation that the prosecutor improperly vouched for the Cause and Prejudice credibility of witnesses. Hence, the district court concluded Williams had procedurally defaulted the ten remaining Williams puts forward a pair of ineffective-assistance-of- allegations as they did not “rest on the same theory asserted appellate-counsel claims (“IAAC claims”) as “cause” for his in state court.” J.A. at 134. procedural defaults.21 The first IAAC claim that Williams asserts as “cause” for these defaults, which we term his On appeal, Williams simply asserts that he “raised “Direct Appeal” IAAC claim, alleges that Williams’s prosecutorial misconduct (claim 6) on direct appeal in state appellate counsel was ineffective for failing to raise the court.” Apparently, he argues that, by raising the flag of defaulted claims on direct appeal.22 However, Wilson prosecutorial misconduct in state court, he preserved his right 21 In addition to the claims d iscussed in Sections V(B)-(D), Williams procedurally defaulted a host of claims by failing to raise the claims in state court at all. These specific claims are: ineffective assistance of 20 counsel at the guilt phase; Brady violations; denial of right to expe rts; In addition to the charge that the prosecutor impermissibly vouched for the credibility of W illiams’s accom plices, see Section V (C), supra, various trial court errors; adm ission of crime sc ene p hotos; incom plete W illiams alleges the following instances of prosecutorial misconduct: transcript of proceedings; cumulative error; ineffective assistance of (1) introducing improper victim impact testimony; (2) comparing counsel at the mitiga tion ph ase; ineffective assistance of appellate W illiams to a wild animal during the guilt phase and the sentencing phase; counsel; improper aggravating circumstances; mitigation not provided; (3) mischa racterizing evidenc e during closing argument; (4) commenting improper jury instruction on sympathy; improper standards of review used on W illiams’s credibility after he made an unsworn statement during the by Ohio appellate courts; inadequacy of Ohio’s post-conviction relief penalty phase; (5) re lying on evidence illegally obtained by the police; procedures; and various constitutional challenges to Ohio’s capital (6) ignoring sustained objections by Williams to a line of questioning punishment schem e. W illiams concedes that he procedurally defaulted concerning a test for gunshot residue on W illiams’s hands; (7) advancing these claims, but attempts to revive them by means of the cause and retribution as a mo tive for sentencing W illiams to d eath during closing prejudice exception and the fundamental miscarriage o f justice gateway. argument at the penalty phase; (8) violating Brady; (9) arguing improper 22 aggravating circumstance; and (10) referring to the victims as “four shiny W illiams’s argument here is undeveloped. Apparently, he believes silver dollars” and to Williams as “a few rusty pennies” at the pe nalty that his Direct Appeal IAAC claim serves as “cause” for his procedural phase. default of his claim of ineffective assistance of trial counsel (his “Trial No. 02-3461 Williams v. Bagley 65 66 Williams v. Bagley No. 02-3461

procedurally defaulted his Direct Appeal IAAC claim as well (1) The law of IAAC with respect to Ohio criminal by failing to file a timely motion to reopen his direct appeal cases pursuant to Rule 26(B) of the Ohio Rules of Appellate Procedure. Therefore, he interposes his second IAAC claim We state here the accepted principles of law with regard to (his “Rule 26(B)” IAAC claim), in which he argues that his IAAC in the context of an Ohio criminal case. Attorney error appellate counsel’s failure to advise him of his right to file a does not amount to “cause” unless it rises to the level of a Rule 26(B) motion and the state’s failure to appoint counsel constitutional violation of the right to counsel under sua sponte to pursue a Rule 26(B) motion constituted IAAC, Strickland v. Washington, 466 U.S. 668 (1984). Monzo v. as “cause” for his default of his Direct Appeal IAAC claim. Edwards, 281 F.3d 568, 577 (6th Cir. 2002). Strickland However, assuming for argument’s sake that his Rule 26(B) mandates a two-part test to determine whether a defendant IAAC claim excuses his procedural default of his Direct was denied effective assistance of counsel: Appeal IAAC claim, his Direct Appeal IAAC claim fails on its merits and, therefore, cannot serve as “cause” for the First, defendant must show that counsel’s performance balance of his procedurally defaulted claims. was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This Co unsel” claim) (as well as for his failure to raise his Wa inwright and requires showing that counsel’s errors were so serious as Batson claims on direct ap peal), which in turns acts as “cause” for his to deprive the defendant of a fair trial, a trial whose result procedural default of those claims not raised at trial. H owever, it is not is reliable. clear that Williams could have raised his Tria l Counsel claim on direct app eal. One of W illiams’s two attorneys on direct appeal also represented 466 U.S. at 687. him in the trial court (J.A. at 16), and the parties have not addressed whether, under these circumstances, Ohio law would have permitted W illiams to raise his Trial Counsel claim on direct appeal and, if so, To satisfy the deficiency prong of Strickland, a defendant whether his counsel co uld have been expected to raise the Trial Counsel “must show that counsel’s representation fell below an claim on direct ap peal. Cf. Sta te v. Le ntz, 639 N.E .2d 7 84, 7 85 (Ohio objective standard of reasonableness.” Id. at 688. Because 1994) (holding that res jud icata does not bar a defendant from raising a “[i]t is all too tempting for a defendant to second-guess claim of ineffective assistance of trial counsel for the first time in a post- counsel’s assistance after conviction or adverse sentence, and collateral proceed ing if the de fendant was represented by the same counsel at trial and on direct appeal or if “an actual conflict of interest it is all too easy for a court, examining counsel’s defense after enjoined appellate counsel from raising a claim of ineffective assistance it has proved unsuccessful, to conclude that a particular act or of trial counsel on direct appeal”); State v. Cole, 443 N.E .2d 1 69, 1 71 n.1 omission of counsel was unreasonable,” a court “must indulge (Ohio 1982) (“[C]ounsel cannot realistically be expected to argue his own a strong presumption that counsel’s conduct falls within the incompetence”). Add itionally, if W illiams’s T rial Co unsel claim would wide range of reasonable professional assistance.” Id. at 689. have required resort to evidence outside the record, he could not have In other words, “the defendant must overcome the raised it on direct app eal. See State v. Booker, 579 N.E .2d 2 64, 2 68 (Ohio App. 1989). And, if W illiams could not have raised his Trial Counsel presumption that, under the circumstances, the challenged claim on direct appeal, his counsel’s performance on direct appeal cannot action might be considered sound trial strategy.” Id. (internal serve as “cause” for his default of the Trial Counsel claim. However, quotation marks omitted). because W illiams’s Direct Appeal IAAC claim fails on its merits, we have no reason to ascertain, and analyze, the specifics of W illiams’s argument. No. 02-3461 Williams v. Bagley 67 68 Williams v. Bagley No. 02-3461

To provide effective assistance, appellate counsel need not Under Ohio law, claims of ineffective assistance of “raise every nonfrivolous claim on direct appeal.” Monzo, appellate counsel must be raised in a motion for reopening 281 F.3d at 579. In fact, the “process of winnowing out before the court of appeals pursuant to Ohio Rule of weaker arguments on appeal and focusing on those most Appellate Procedure 26(B), rather than in a post-conviction likely to prevail, far from being evidence of incompetence, is proceeding pursuant to Ohio Revised Code § 2953.21. State the hallmark of effective appellate advocacy.” Smith v. v. Murnahan, 584 N.E.2d 1204, 1208 (Ohio 1992); see also Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, Wickline v. Mitchell, 319 F.3d 813, 823 (6th Cir. 2003). Rule 463 U.S. 745, 751-52 (1983)). “Generally, only when 26(B) reads ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be A defendant in a criminal case may apply for reopening overcome.” Monzo, 281 F.3d at 579 (internal quotation of the appeal from the judgment of conviction and marks omitted) sentence, based on a claim of ineffective assistance of appellate counsel. An application for reopening shall be To satisfy the prejudice prong of Strickland, a defendant filed in the court of appeals where the appeal was “must show that there is a reasonable probability that, but for decided within ninety days from journalization of the counsel’s unprofessional errors, the result of the proceeding appellate judgment unless the applicant shows good would have been different. A reasonable probability is a cause for filing at a later time. probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The prejudice prong Ohio R. App. P. 26(B)(1). Williams did not file a Rule 26(B) “is not satisfied if there is strong evidence of a petitioner’s motion nor otherwise attempt to raise any ineffective- guilt and a lack of evidence to support his claim.” Rust v. assistance-of-appellate-counsel claim in state court. Zent, 17 F.3d 155, 162 (6th Cir. 1994). The petitioner “must show that absent his counsel’s error, the courts of appeal (2) Application of IAAC law in this case would have reasonable doubt with respect to his guilt.” Moore v. Carlton, 74 F.3d 689, 693 (6th Cir. 1996). The district court held that Williams’s Direct Appeal IAAC claim could not serve as cause for his procedural defaults A claim of ineffective assistance of counsel must be because he had procedurally defaulted the Direct Appeal presented to the state courts as an independent claim before it IAAC claim as well. J.A. at 125. The court further held that may be used to establish cause for a procedural default. Williams’s Rule 26(B) IAAC claim could not stand as Edwards v. Carpenter, 529 U.S. 446, 452 (2000). And, as the “cause” for his default of his Direct Appeal IAAC claim Supreme Court has recently instructed, “an ineffective- because Williams did not have a constitutional right to assistance-of-counsel claim asserted as cause for the counsel to pursue a Rule 26(B) motion. J.A. at 126. Finally, procedural default of another claim can itself be procedurally the court ruled that, even if Williams had preserved his Direct defaulted.” Id. at 453. However, the procedural default of an Appeal IAAC claim, this claim could not save the remaining ineffective assistance claim may “itself be excused if the claims from procedural default because Williams’s appellate prisoner can satisfy the cause-and-prejudice standard with counsel was not constitutionally ineffective. “Williams’s respect to that claim.” Id. (emphasis in original). counsel,” the district court concluded, “was not deficient for failing to raise on appeal nonfrivolous claims that counsel No. 02-3461 Williams v. Bagley 69 70 Williams v. Bagley No. 02-3461

decided as a matter of professional judgment not to press.” cause for filing at a later time.” Ohio R. App. P. 26(B) J.A. at 129. (emphasis added). Arguably, the “good cause” avenue is not open to Williams, as the Ohio appellate courts have proved We agree that Williams’s counsel on direct appeal was not unsympathetic to the claim that a lack of effective assistance ineffective for failing to raise the claims which are now of counsel serves as “good cause” for purposes of Ohio Rule procedurally defaulted. Before giving our reasons for this of Procedure 26(B), even in the wake of White v. Schotten. conclusion, though, we pause briefly to clarify a couple of See Eads v. Morgan, 298 F. Supp. 2d 698, 705 (N.D. Ohio matters. 2003) (collecting cases). However, the Ohio Supreme Court recently has accepted the following certified question from First, we note that this court continues to wrestle with the the United States District Court for the Northern District of issue of whether the Rule 26(B) procedure implicates the Ohio: “Is an application to reopen an appeal under Ohio Rule Sixth Amendment’s right to counsel. In White v. Schotten, of Appellate Procedure 26(B) part of the direct appeal from a 201 F.3d 743 (6th Cir. 2000), applying pre-AEDPA law, a judgment of conviction?” Morgan v. Eads, 805 N.E.2d 542 panel of this court held that Ohio criminal defendants have a (Ohio 2004). In any event, we need not resolve this issue federal constitutional right to effective assistance of counsel because we have the discretion to deny unexhausted claims on in connection with a Rule 26(B) application and that the their merits, which we exercise to the extent necessary. failure of petitioner’s counsel to file a timely Rule 26(B) 28 U.S.C. § 2254(b)(2); see also Lott v. Coyle, 261 F.3d 594, application constituted “cause” for his procedural defaults. 608 (6th Cir. 2001). Id. at 754. Later, in Lopez v. Wilson, 355 F.3d 931 (6th Cir. 2004), applying AEDPA, another panel held that the Ohio Assuming for argument’s sake that Williams’s Rule 26(B) Court of Appeals had not acted contrary to clearly established IAAC claim excuses his procedural default of his Direct federal law as determined by the Supreme Court in denying Appeal IAAC claim, his Direct Appeal IAAC claim fails on the petitioner’s request for appointment of counsel to file a its merits. Williams levels a broadside at his appellate Rule 26(B) motion. Id. at 933. The Lopez court counsel, charging that his counsel was constitutionally distinguished White on the ground that AEDPA requires ineffective for failing to raise any claims which the court greater deference to state court decisions. Id. at 938. deems procedurally defaulted. However, Williams “does not Subsequently, the court voted to vacate Lopez and hear the have a constitutional right to have his counsel press matter en banc. Lopez v. Wilson, No. 01-3875, 2004 WL nonfrivolous points if counsel decides as a matter of 934989 (6th Cir. Apr. 20, 2004). Because we can resolve this professional judgment not to press those points.” Coleman v. matter without deciding whether Williams had a Mitchell, 244 F.3d 533, 541 (6th Cir. 2001). His appellate constitutional right to Rule 26(B) counsel, and because, quite counsel was not deficient for failing to raise the procedurally- inexplicably, the parties have not addressed White, we set this defaulted claims as these claims are not clearly stronger than issue aside. the claims raised by his appellate counsel on direct appeal. Moreover, we have reviewed the substance of Williams’s Second, it is not entirely clear that Williams has exhausted procedurally defaulted claims and have determined that each his IAAC claims. Williams has not filed a Rule 26(B) claim of them lacks merit. Thus, he suffered no prejudice from his to date, and Rule 26(B)’s ninety day deadline has long appellate counsel’s performance. See Buell, 274 F.3d at 352. expired. However, Rule 26(B) recognizes an exception to the And because Williams has not established a constitutional ninety-day deadline in cases where “the applicant shows good violation of his right to counsel, his counsel’s performance No. 02-3461 Williams v. Bagley 71 72 Williams v. Bagley No. 02-3461

cannot serve as “cause” for his procedural defaults. Monzo, representation, is evidence which establishes Petitioner’s 281 F.3d at 577. ineligibility for the imposition of the death penalty.” Given the strong evidence of Williams’s guilt and Williams’s failure F. “Fundamental Miscarriage of Justice” Gateway to identify the new “evidence,” our review of the record in this case does not permit us to say that Williams has made a The district court properly concluded that Williams cannot showing of “actual innocence” permitting him to pass through escape his procedural defaults by means of the “fundamental the “fundamental miscarriage of justice” gateway. miscarriage of justice” gateway. A habeas petitioner can overcome a procedural default by demonstrating that “failure VI. WILLIAMS’S MOTION FOR DISCOVERY to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. 722, 750 (1991). The The district court did not abuse its discretion in denying “fundamental miscarriage of justice” gateway is open to a Williams’s motion for discovery. See Stanford v. Parker, 266 petitioner who submits new evidence showing that “a F.3d 442, 460 (6th Cir. 2001); Byrd v. Collins 209 F.3d 486, constitutional violation has probably resulted in the 516 (6th Cir. 2000). “Habeas petitioners have no right to conviction of one who is actually innocent.” Schlup v. Delo, automatic discovery.” Stanford, 266 F.3d at 460. Rule 6 of 513 U.S. 298, 327 (1995) (quoting Murray v. Carrier, 477 the Rules Governing Section 2254 Cases in the United States U.S. 478, 496 (1986)). “To establish the requisite probability, District Courts permits a petitioner “to invoke the processes the petitioner must show that it is more likely than not that no of discovery available under the Federal Rules of Civil reasonable juror would have convicted him in light of the new Procedure if, and to the extent that, the judge in the exercise evidence.” Id. The gateway is also available to a petitioner of his discretion and for good cause shown grants leave to do who demonstrates that he is “actually innocent” of the so, but not otherwise.” R. 6 R. Gov. 2254 Cases. Rule 6 sentence of death that has been imposed on him. To establish embodies the principle that a court must provide discovery in his “innocence” of the death penalty, a petitioner must “show a habeas proceeding only “where specific allegations before by clear and convincing evidence that, but for a constitutional the court show reason to believe that the petitioner may, if the error, no reasonable juror would have found the petitioner facts are fully developed, be able to demonstrate that he is . . . eligible for the death penalty under the applicable state law.” entitled to relief.” Bracy v. Gramley, 520 U.S. 899, 908-09 Sawyer v. Whitley, 505 U.S. 333, 336 (1992). Importantly, a (1997) (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)). claim of innocence in this context is “not itself a “The burden of demonstrating the materiality of the constitutional claim, but instead a gateway through which a information requested is on the moving party.” Stanford, 266 habeas petitioner must pass to have his otherwise barred F.3d at 460. constitutional claim considered on the merits.” Schlup, 513 U.S. at 315 (quoting Herrera v. Collins, 506 U.S. 390, 404 Rule 6 does not “sanction fishing expeditions based on a (1993)). petitioner’s conclusory allegations.” Rector v. Johnson, 120 F.3d 551, 562 (5th Cir. 1997); see also Stanford, 266 F.3d at As the district court concluded, Williams has not 460. “Conclusory allegations are not enough to warrant approached the “actual innocence” standard. In support of his discovery under [Rule 6]; the petitioner must set forth specific claim, Williams offers only the assertion that unidentified allegations of fact.” Ward v. Whitley, 21 F.3d 1355, 1367 “evidence that should have been presented at trial and the (5th Cir. 1994). mitigating phase, but was not due to ineffective No. 02-3461 Williams v. Bagley 73 74 Williams v. Bagley No. 02-3461

Williams requested leave to serve four requests for district court denied Williams’s request, concluding that production. The first request centered on an atomic “[a]ny discovery related to the state’s ‘transfer theory’ is absorption kit used to test Williams’s hands for gunshot unnecessary because the trial court excluded this theory from residue.23 During the trial, Jeffrey Lynn, a forensic scientist the jury’s consideration.” J.A. at 2048. at the Ohio Bureau of Criminal Identification and Investigation, testified that swabs from Williams’s right and The district court properly denied Williams’s first request l e f t p a l ms show ed levels of ba r ium a nd for production. As previously discussed, Williams has a n t i m o n y — s u b s t a n c e s co mm on ly f o u n d i n procedurally defaulted his ineffective assistance of counsel ammunition—consistent with gunshot residue. J.A. at 4587- claims. Moreover, the trial court—on the basis of trial 90. However, Williams’s accomplices had testified that counsel’s objections—instructed the jury to disregard Lynn’s Williams wore gloves during the murder; so, in order to testimony concerning the transfer theory, so Williams was not square this testimony with the results of the atomic absorption prejudiced by his trial counsel’s alleged failure to “deal with” test, the prosecutor attempted to elicit testimony from Lynn this testimony. As the Supreme Court held in Strickland v. that the barium and antimony found on Williams’s hands Washington, 466 U.S. 668 (1984), “any deficiencies in could have been transferred from the gloves to his hands counsel’s performance must be prejudicial in order to when Williams took the gloves off. J.A. at 4590-98. Lynn constitute ineffective assistance under the Constitution.” Id. was unable to offer an opinion on the state’s “transfer” theory at 692. Williams has not shown that the requested discovery to a reasonable degree of scientific certainty, and the trial could “resolve any factual disputes that could entitle him to court instructed the jury to disregard Lynn’s answers. J.A. at relief.” Stanford, 266 F.3d at 460. 4592-98. The second and third requests involved a diagram of Alfred 24 Before the district court, Williams indicated that he Madison’s house, the site of the murders.25 Two of required this discovery to pursue his ineffective assistance of Williams’s accomplices, Broderick Boone and Dominic counsel claim. J.A. at 171. Specifically, he claimed that his Cherry, testified that Williams drew two diagrams of the trial counsel “was not effective on the matters dealing with residence during a meeting attended by Broderick, Dominic, [Lynn’s testimony]” and that he “was not afforded an expert and Jessica Cherry, and that one of the diagrams was necessary to challenge the transfer theory.” J.A. at 171. The destroyed at Williams’s request. J.A. at 4050-51, 4199-4201,

25 23 Request for Production No. 2: Produce State’s Exhibit 11 and 11A Req uest for Pro duc tion N o. 1: Produce the atomic abso rption kit (original diagram of McGuffy Road residence and envelope), the major and samples submitted for examination to the Ohio Bureau of Criminal fingerprint cards for co-conspirators Bro derick Boon e and Jessica Cherry, Identification & Investigation, all documents identifying the testing and the identification of any finge rprint(s) in the indices of state or federal procedures and processes conducted on the samples, and all rep orts law enforcement authorities showing points of identification or generated or produced in connection with the analysis and/or testing of classifications similar to the latent unidentified fingerprints discovered on the sam ples. J.A . at 170 . State’s Exhibit 11. 24 Request for Produc tion N o. 3: Produce State’s Exhibit 11 and 11A Before this court, W illiams simp ly announces, “Good cause for (original diagram of McG uffy Road residence and envelope), the discovery clearly exists. Petitioner has asserted claim s in his petition for handwriting exem plars taken from Petitioner W illiams, and all a writ of habeas corpus which, when fully develop ed, will demo nstrate handwritings or exemplars of co-conspirators Jessica Cherry, Dominic that he is co nfined illegally and is entitled to relief.” Cherry and Broderick Boone. J.A. at 173. No. 02-3461 Williams v. Bagley 75 76 Williams v. Bagley No. 02-3461

4267, 4274-75. The other diagram was recovered by the fingerprint would not have impugned Broderick’s or police and analyzed by Sheryl Lynn Harris, a fingerprint Dominic’s credibility. Regarding the handwriting samples, examiner at the Ohio Bureau of Criminal Identification and Williams makes no effort to explain how evidence that one of Investigation. During the trial, Harris testified that she found his accomplices—rather than Williams himself—drew the three fingerprints on the diagram and that she tested these diagram would enable him to show prejudice sufficient to fingerprints against samples from Williams and Dominic. sustain an ineffective assistance of counsel claim. As the J.A. at 4575-76. She further testified that two of the Supreme Court said in Strickland, the defendant “must show fingerprints belonged to Dominic and that the third fingerprint that there is a reasonable probability that, but for counsel’s did not belong to Williams or Dominic. J.A. at 4576. On unprofessional errors, the result of the proceeding would have cross-examination, she conceded that the third fingerprint was been different.” 466 U.S. at 694. not tested against samples from Broderick or Jessica. J.A. at 4581-82. The fourth request sought materials relating to any inducements offered to Jerome Gibson to testify against Before the district court, Williams stated that he required Williams.26 Gibson was incarcerated with Williams after this discovery to pursue his ineffective assistance of counsel Williams’s capture during the break-in at the JJC. J.A. at claim. J.A. at 173. Specifically, he contended that trial 4828. He testified that Williams confessed that he had counsel’s failure to ascertain whether the unidentified arranged the murder of four men in connection with a dispute fingerprint belonged to Broderick or Jessica, and to over “drugs” and “territory,” though Williams would not say commission a handwriting analysis to determine whether whether he actually shot the men himself. J.A. at 4829-32. Williams or one of his accomplices drew the diagram, He further testified that Williams confessed that he had constituted ineffective assistance. J.A. at 173-74. Williams broken into the JJC in order to “get the guys that turned maintained that Broderick’s and Dominic’s credibility would State’s evidence, made statements against him.” J.A. at 4832. have been seriously undermined if trial counsel had presented evidence that the fingerprint belonged to Broderick or Jessica Before the district court, Williams asserted that he “was or that Williams had not drawn the diagram. J.A. at 172-74. prejudiced by the government’s failure to disclose the The district court determined that the requested discovery information requested as such information constitutes would not aid Williams’s ineffective assistance claim, given favorable impeachment evidence which Petitioner’s counsel that Williams’s accomplices admitted viewing the diagrams. would have used to impeach the testimony of Jerome J.A. at 2048-49. Gibson.” J.A. at 175. Williams did not identify the specific claim(s) that he hoped to advance with the requested The district court did not abuse its discretion in denying discovery, though it appears that the discovery was directed Williams’s second and third requests for production. Again, at his Brady and ineffective assistance of counsel claims. Williams has procedurally defaulted his ineffective assistance of counsel claim. Moreover, Williams has not shown that the requested discovery could yield evidence enabling Williams 26 to prevail on his ineffective assistance claim. Broderick’s and Request for Produc tion N o. 4: Produce all information referring, Dominic’s testimony was consistent with a finding that relating or pertaining to any promise or inducement offered or conferred Broderick and Jessica viewed and handled the diagram, so upon Jerome Gibson: (a) at any time preceding Petitioner’s trial, and (b) in any way relating or resulting from his testimony at P etitioner W illiams’ evidence that the diagram bore Broderick’s or Jessica’s trial. J.A. at 1 74. No. 02-3461 Williams v. Bagley 77 78 Williams v. Bagley No. 02-3461

The district court did not abuse its discretion in denying Petitioner with regard to AEDPA’s ‘presumption of Williams’s fourth request for production. This request correctness’” (id. at 69), and requests that “he be granted an appears to be a classic “fishing expedition,” as Williams has evidentiary hearing in regard to all claims which were not identified the “inducements” he expects to uncover. determined to be procedurally defaulted, or to which the Moreover, regardless of the claim(s) underlying the request, presumption of correctness applies” (id. at 70-71). “However, Gibson’s prior convictions provided ample ammunition for even in a death penalty case, bald assertions and conclusory attacking Gibson’s credibility, and any evidence of allegations do not provide sufficient ground to warrant inducements for his testimony would have been cumulative. requiring the state to respond to discovery or to require an See J.A. at 4938-39 (defense counsel’s closing argument). As evidentiary hearing.” Bowling v. Parker, 344 F.3d 487, 512 the district court reasoned, “[b]ecause Gibson’s credibility (6th Cir. 2003) (internal quotation marks omitted). already had been seriously undercut by disclosing seven prior Manifestly, the district court did not abuse its discretion in felony convictions, any further impeachment of his testimony denying Williams’s request, given his failure to specify which would have been cumulative.” J.A. at 2049. As this court of his claims warranted an evidentiary hearing and what could stated in Byrd, “where undisclosed evidence merely furnishes be discovered through an evidentiary hearing. Stanford v. an additional basis on which to challenge a witness whose Parker, 266 F.3d 442, 460 (6th Cir. 2001). credibility has already been shown to be questionable or who is subject to extensive attack by reason of other evidence, the CONCLUSION undisclosed evidence may be cumulative, and hence not material.” 209 F.3d at 518 (internal quotation marks Based on our review of the record, the briefs, and the earlier omitted). Thus, Williams has not shown that the request for opinions in this case, and our consideration of oral argument, production might yield evidence enabling him to prevail on we conclude that Williams has not established a claim for any of his claims. habeas corpus relief. We further conclude that the district court did not abuse its discretion in denying Williams’s VII. WILLIAMS’S REQUEST FOR AN EVIDENTIARY requests for discovery and an evidentiary hearing. We HEARING therefore AFFIRM the judgment of the district court.

The district court did not abuse its discretion in denying Williams’s request for an evidentiary hearing. See Alley v. Bell, 307 F.3d 380, 389 (6th Cir. 2002) (“We review a district court’s decision not to conduct an evidentiary hearing for an abuse of discretion.”). The district court denied Williams’s request on the ground that it found no material factual dispute requiring such a hearing. J.A. at 142. On appeal, Williams suggests that the district court abused its discretion in denying his motion, but he fails to identify the subject of the proposed hearing. At his most specific, he demands a hearing in order to show that ineffective assistance of counsel serves as “cause” for any procedural defaults (Williams’s Br. at 44), claims that the lack of a hearing “has also prejudiced No. 02-3461 Williams v. Bagley 79 80 Williams v. Bagley No. 02-3461

_____________ Thus the conduct of the voir dire and the number of pro- death-penalty jurors versus the number of jurors who disfavor DISSENT the death penalty make a big difference in the outcome of the _____________ case. Execution may turn on the views of one juror.

MERRITT, Circuit Judge, dissenting. I would issue the The Sixth Amendment guarantees the right to an “impartial writ of habeas corpus because the jury selection process jury” in criminal prosecutions, not one biased in favor of violated Williams’ right to an “impartial jury” under the Sixth automatically imposing the death penalty. In the present case, Amendment, as explained by Chief Justice Moyer in his as Chief Justice Moyer suggests, we simply create a legal dissenting opinion in the Ohio Supreme Court in this case. fiction when we say that Williams had an “impartial” or neutral and unbiased jury insofar as the death penalty is Judge Rogers’ complex 77-page opinion for the Court concerned. The trial court in this case administered a double illustrates the highly complex, convoluted nature of our dose of lethal rulings at the voir dire — those jurors who federal death penalty jurisprudence which depends on disfavor the death penalty were excused for cause, those who multiple layers of intersecting state and federal doctrines and, favor the automatic imposition of the death penalty for through various door-closing devices like “procedural murder were not excused for cause. default,” prevents the Court from reaching many of Williams’ claims on the merits. (See, for example, footnote 21.) Such The state prosecutor “death qualified” the jury and stacked a system, as has been often noted by judges and scholars, it in favor of proponents of the death penalty before the case produces “randomized” executions with “no observable was tried. At the voir dire, the prosecutor was successful in differences between outcomes in the ‘standardless’ discretion having the court excuse for cause those jurors predisposed to disapproved of in Furman, and the ‘guided discretion’ upheld disfavor the death penalty. Even though a quarter of the in Gregg.” Zimring, The Contradictions of American Capital States and all members of the European Union have abolished Punishment 9 (2003). See Kozinski, Death: The Ultimate the death penalty, jurors who would agree with the policy of Run-On Sentence, 46 Case W. L. Rev. 1 (1995) (situation not these States and nations are said to be biased and different from the time the Supreme Court “wiped the slate unrepresentative and were eliminated from service on this clear of all death statutes” as our institutions “have gone jury. As a practical matter, this left a jury made up of pro- about recreating and expanding the death penalty”). death-penalty jurors.1

In such a randomized system, the capital case often is won 1 or lost at voir dire. The voir dire and the method of jury The practice of excusing jurors with scruples against the death selection become more important than the trial itself. penalty has a long history. Prior to 1968, state law controlled this pro cess Executions depend on “the line between innocence and guilt without federal court intervention. In Withersp oon v. Illinois, 391 U.S. 510 (1968), the Sup reme Court limited strictly such ju ror exclusion to just [which] is drawn with reference to reasonable doubt” by those jurors “wh o ma de unmistaka bly clear (1) that they would individual jurors, Schlup v. Delo, 513 U.S. 298, 329 (1995), automatically vote against the imposition of capital punishment without and on the fact that just 1 of the 12 jurors is empowered to regard to any evidence . . . or (2 ) that their attitude to ward the death prevent the imposition of the death penalty by finding at the penalty would prevent them from making an impartial decision as to the sentence stage that the mitigating factors outweigh the defendant’s guilt.” 39 1 U .S. at 52 2, n. 21 . This rule was reve rsed in Wainwright v. Witt, 469 U.S. 412 (1985), eliminating “the requirement aggravating factors. Mills v. Maryland, 486 U.S. 367 (1988). that a juror may be excluded only if he would never vote for the d eath No. 02-3461 Williams v. Bagley 81 82 Williams v. Bagley No. 02-3461

Chief Justice Moyer pointed out in his dissent for himself regarding a juror’s ability to be fair and impartial.” I and Justice Pfeifer that the state trial court went much further disagree. I believe this case represents precisely the sort than simply eliminating anti-death penalty jurors. It declined of rehabilitation the United States Supreme Court to excuse for cause jurors who would automatically impose intended to prohibit in Morgan v. Illinois when it held the death penalty for murder. His dissenting opinion explains that general questions to a prospective juror by the court the situation clearly: relating to fairness or impartiality cannot negate a statement by the prospective juror that he or she would I would also reverse this conviction on the ground that automatically vote for death. 504 U.S. at 735-736, 112 Williams was not adequately protected from juror bias in S. Ct. at 2233, 119 L. Ed. 2d at 506-507.2 favor of the death penalty. Of the nine prospective jurors for whom the trial court denied defense challenges for cause based on expression of death penalty bias, five 2 The Chief Justice then describes the Eddleman voir dire in detail, were excused upon the exercise of peremptory challenges 679 N.E.2d at 667-68: by defense counsel, another was excused for personal reasons, the number of one of the jurors was not reached, Eddleman unambiguously affirmed that her preference for the and two, Eddleman and Camp, were seated as jurors. death penalty would be automatic. Though consistent with her Appellant argues that each of these prospective jurors previous responses, such statements must arouse profound doubt as to whether impartiality would ever be possible for Eddleman. was biased in favor of the death penalty. With regard to The exchange was the following: Eddleman, Scanlon and Subecz, I agree. “[Defense Counsel]. You understand that you only have those .... three o ptions if you get to the po int”

Juror Eddleman again presents the greatest difficulties. “Juror Eddleman. Those three options, if it came right down The majority admits that Eddleman contradicted herself to it, it would probably be the death penalty then. If there was any remote chance of them being paroled, I would probably go on voir dire. Despite her repeated statements that she with the death penalty.” would prefer death and would not consider alternative life sentences, the majority concludes that the court’s “[Defense C ounsel] Automatically, just because of the rehabilitation of Eddleman was successful because “the possibility of parole.” trial judge’s questions were more than general inquiries “Juror Eddleman. Yes.”

“[Defense Counsel] And are you saying that even though you penalty” and “the extremely high burden of proof” which Witherspoon know that these three alternatives should start out even in your had impo sed upon the State. Id. at 421. In Witt a much more general mind? Y ou are being honest with me.” standard was substituted (i.e., that the juror’s view “would substantially impa ir the perfo rmance of his duties”), and the state trial judge was given “Juror Eddleman. Yes.” much bro ader discre tion in the process. Id. at 420. In the view of many scholars and judges, the result that has emerged is a double standard “[Defense Counsel] And because of what you are saying favor ing the pro secutio n in cap ital cases. See Ho ldridge, Selec ting about the death penalty being automatic, because of the Capital Jurors Uncommonly Willing to Condemn A Man to Die: Lower eligibility of paro le, you would be unable to fairly consider life Court’s Contrad ictory R ead ings o f Wainwright v. Witt and Morgan v. imprisonment, am I right?” Illinois, 19 Miss. C .L. Rev. 283, 301 -03 (1999). No. 02-3461 Williams v. Bagley 83 84 Williams v. Bagley No. 02-3461

State v. Williams, 679 N.E.2d 646, 664 (Ohio 1997). “Juror Eddleman. Yes.” After quoting the exchange between defense counsel and Then, after explaining the two phases of the trial and Eddleman in which the juror seven times said that she would the sentencing options, the court asked, “Can you follow always choose the death penalty over any other options such the instructions of law?” Eddleman answered, “Yes.” as life imprisonment (see footnote 1 below), the Chief Justice pointed out that the trial court’s attempt at rehabilitation was Id. at 668. ineffective: The trial judge also weighted the jury selection process in In contrast, Eddleman made very few responses favor of the death penalty with respect to juror Scanlon, as suggesting that she could set aside her bias. Following Chief Justice Moyer also pointed out in his dissenting the preceding exchange, the judge elicited a general opinion. Juror Scanlon gave the following set of answers to response. defense counsel’s questions on the death penalty:

“The Court: Mrs. Eddleman, do you agree that you can MR. INGRAM: And you have said that if you take listen to and follow the instructions of the Court?” someone else’s life and it’s a proven fact, that the death penalty should be imposed. JUROR SCANLON: Yes. “Juror Eddleman. If it was without ever a chance of parole, yes.” MR. INGRAM: Well, what I want to know is if you get to a second phase and there’s a murder which is a “[Defense C ounsel] T hat’s not the way it is. proven fact -- “Juror Eddleman. Since we don’t have a choice[,] I would say JUROR SCANLON: I would vote for the death the death penalty.” penalty. “[Defense Counsel] And you say that knowing that there are these life sentencing options that you sho uld co nsider.” MR. INGRAM: Every time?

“Juror Eddleman. Because whenever I think about it I would JUROR SCANLON: Yes. think well, maybe 30 years down the line somebody may be getting out of prison and might meet up with one of my children MR. INGRAM: Automatically? or something. T hat’s what I’m thinking of whenever I thin of it.” JUROR SCANLON: If it’s an option given, yes. .... MR. INGRAM: As long as the death penalty is an “[Defense Counsel] Is yo ur bo ttom line, if I have to determine option you would vote for it every time you have a the sentence I’ll vote death because there’s eligibility for choice where there’s been a finding of guilty for parole?” aggravated murder? “Juror Eddlem an. Yes.” No. 02-3461 Williams v. Bagley 85 86 Williams v. Bagley No. 02-3461

JUDGE SCANLON: Yes. MR. INGRAM: If you find someone guilty of willful and intentional murder -- .... JUROR SCANLON: Then I believe they should be MR. INGRAM: Did you say if he willfully and put to death. intentionally did it you would not even look at life imprisonment. MR. INGRAM: All the time? JUROR SCANLON: Right. JUROR SCANLON: Yes, sir. MR. INGRAM: If he willfully and intentionally did it MR. INGRAM: Regardless of what anybody says it should be death? about anything? JUROR SCANLON: Right. JUROR SCANLON: Yes, sir. MR. INGRAM: Automatically? MR. INGRAM: And you feel so strongly about it it may be very difficult for you to put your feelings out of JUROR SCANLON: Right. your mind, correct? MR. INGRAM: Regardless of what could be said JUROR SCANLON: In that sense, yes. about the defendant? MR. INGRAM: In light of everything that you just JUROR SCANLON: Right. told me, your feelings about the death penalty, in cases of willful and intentional murder, would prevent or MR. INGRAM: Because of the way you feel in a case substantially impair you from fairly considering life where a defendant willfully and intentionally murdered imprisonment as a sentencing option? someone you would want that defendant put to death? JUROR SCANLON: I guess so. JUROR SCANLON: Yes, sir. Instead of following the requirements of Morgan v. Illinois, MR. INGRAM: You wouldn’t even consider life 504 U.S. 719, 729 (1992) (“based on the requirement of imprisonment as an option? impartiality . . . a capital defendant may challenge for cause any juror” who will “automatically vote for the death penalty” JUROR SCANLON: Not if he intentionally took without really weighing the “aggravating and mitigating someone else’s life without any thought of what he did, circumstances”), that such a juror be excused for cause, the no. trial court overruled the defense objection. Defense counsel then had to exercise a peremptory challenge. Surely, if those .... who disfavor the death penalty may be excused for cause, the Chief Justice is correct that the failure to excuse Juror Scanlon for cause also violates the Sixth Amendment No. 02-3461 Williams v. Bagley 87 88 Williams v. Bagley No. 02-3461

requirement of an unbiased jury. Juror Scanlon said 16 times Amendment ground explained by Chief Justice Moyer and that she would automatically impose the death penalty for Justice Pfeifer. first degree murder. There is no question about her strong predisposition to impose the death penalty in every murder case. The Ohio death penalty system, as administered in this case, not only picks its jurors from those who favor the death penalty and eliminates those opposed. It picked jurors who would automatically impose the death penalty for first degree murder. That practice is inconsistent with the Sixth Amendment requirement assuring an “impartial jury” in criminal trials. The trial judge made fact findings and legal conclusions about the selection of the jury that practically assured the prosecution of a death verdict upon receiving a verdict of guilty. These errors not only violate Morgan v. Illinois, supra, but also the principle of Woodson v. North Carolina, 428 U.S. 280 (1976), invalidating under the Eighth Amendment the automatic or mandatory imposition of the death penalty. When those who disfavor the death penalty are excluded and strong death penalty proponents who would automatically impose it are included, the death penalty becomes the inevitable result. Mills v. Maryland, supra, which allows jurors to weigh aggravators and mitigators in favor of life also becomes a dead letter because the method of jury selection prevents such jurors from sitting. In upholding this system, the Court upholds the worst of double standards: get rid of jurors with death penalty scruples, keep the jurors who have no scruples about imposing it automatically. It is hard to think of a more unfair system of jury selection.3 I have serious doubts about the Court’s disposition of several other questions — particularly those involving questions of procedural default — but I would not reach those issues because I would grant the writ on the Sixth

3 See Ho ldridge, supra, note 1.