                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                 File Name: 13a0353a.06

              UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                               X
                                                -
 JAMES O’NEAL,
                                                -
                           Petitioner-Appellant,
                                                -
                                                -
                                                    No. 11-3449
         v.
                                                ,
                                                 >
                                                -
                      Respondent-Appellee. -
 MARGARET BAGLEY, Warden,
                                               N
                 Appeal from the United States District Court
                for the Southern District of Ohio at Cincinnati.
            No. 1:02-cv-00357—Michael R. Barrett, District Judge.
                                Argued: June 11, 2013
                       Decided and Filed: December 23, 2013
            Before: MERRITT, COLE, and McKEAGUE, Circuit Judges.

                                 _________________

                                      COUNSEL
ARGUED: Kirstie N. Young, BIESER, GREER & LANDIS, LLP, Dayton, Ohio, for
Appellant. Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee. ON BRIEF: Kirstie N. Young, Michasel W. Krumholtz,
BIESER, GREER & LANDIS, LLP, Dayton, Ohio, Lawrence J. Greger, GREGER LAW
OFFICE, Dayton, Ohio, for Appellant. Brian S. Deckert, OFFICE OF THE OHIO
ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
    COLE, J., delivered the opinion of the court, in which McKEAGUE, J., joined.
MERRITT, J. (pp. 18–21), delivered a separate dissenting opinion.
                              ______________________

                               AMENDED OPINION
                              ______________________

       COLE, Circuit Judge. A jury convicted James O’Neal of the aggravated murder
of his wife, and a state trial court sentenced him to death at the jury’s recommendation.
The Ohio courts affirmed his conviction and sentence on direct review and denied post-


                                           1
No. 11-3449        O’Neal v. Bagley                                                Page 2


conviction relief. O’Neal then filed a petition for habeas corpus in federal court, which
the district court denied. We affirm.

                                            I.

       In September 1993, James O’Neal moved into a house in Cincinnati, Ohio, with
his wife Carol O’Neal, her four children, all from prior relationships, and his two sons,
also from prior relationships. The house was leased in Carol’s name from a private
landlord with rental assistance provided by the Hamilton County Section 8 Program.
The lease identified Carol as “the Tenant” and Carol’s children along with James as
“occupants,” but said nothing of James’s children. The house was crowded to be sure,
and perhaps for this reason, the arrangement did not last for long. On December 7, 1993,
a physical altercation between James and Carol ended with Carol kicking James and his
sons out of the house. She later filed a domestic complaint and made plans to change
the locks. While it is unclear where the boys went from there, it is undisputed that James
took to the streets. He left behind some clothes and personal effects, but made no
attempt to retrieve them.

       On December 11, 1993, James returned to the house bent on “teach[ing] [Carol]
a lesson” for kicking his sons out. He broke through a portion of the front door and,
once inside, followed Carol to an upstairs bedroom. There he fired three shots at Carol,
one of which fatally wounded her. Carol’s son Ricardo alleged that James attempted to
shoot him as well but gave up when the gun jammed. James fled the house. A police
canine unit found him later that evening hiding in a nearby house where he surrendered.
In a statement given to the police, James acknowledged that he had fought with Carol,
that she had subsequently kicked him and his sons out of the house, and that he had been
living on the streets ever since. He then confessed to returning to the house and shooting
Carol. A forensic examination eventually linked the bullet removed from Carol’s body
to the pistol in James’s possession at the time of his surrender.

       James was indicted for purposely causing Carol’s death during the commission
of an aggravated burglary, for purposely causing her death with prior calculation and
design, for the attempted murder of Ricardo, and for aggravated burglary. The
No. 11-3449         O’Neal v. Bagley                                                Page 3


indictment included four firearms specifications and two death-penalty specifications,
including one for murder during an aggravated burglary. The state trial court, however,
dismissed the charges and death-penalty specification relating to aggravated burglary on
the basis of spousal privilege. The trial court ruled that Ohio law precluded liability for
the lesser included offense of criminal trespass because one spouse could not exclude
the other from the marital home. The state appellate court reversed the trial court’s
decision after holding that spousal privilege was limited to civil matters and did not
affect criminal liabilities. State v. O’Neal, 658 N.E.2d 1102, 1103-04 (Ohio Ct. App.
1995) (O’Neal I).

       A trial ensued, and the jury convicted James on both counts of aggravated
murder, each accompanied by a death-penalty specification for murder during an
aggravated burglary, one count of aggravated burglary, and three firearms specifications.
On direct review, the Supreme Court of Ohio affirmed his conviction and sentence under
State v. Lilly, 717 N.E.2d 322 (Ohio 1999), an intervening decision in which the state
supreme court conclusively established that spousal privilege “is inapplicable in criminal
cases,” id. at 325. The court held that James was properly convicted of aggravated
burglary because he had committed a trespass against property that “was in Carol’s sole
custody and/or control” at the time of the murder. State v. O’Neal, 721 N.E.2d 73, 82
(Ohio 2000) (O’Neal II). James then sought post-conviction relief, which the Ohio
courts denied. He also filed a motion for reconsideration and a post-conviction petition
raising the issue of mental retardation under the United States Supreme Court’s recent
decision in Atkins v. Virginia, 536 U.S. 304 (2002), both to no avail.

       In 2002, James filed a federal petition for habeas corpus, which raised eighteen
claims for relief in its amended form. The district court rejected the petition because he
had procedurally defaulted a number of claims and the rest failed on the merits. The
district court granted a certificate of appealability on four of those claims, which we
address in turn.
No. 11-3449         O’Neal v. Bagley                                                Page 4


                                            II.

       O’Neal first claims that the Supreme Court of Ohio violated his constitutional
right to due process by retroactively applying a novel construction of “spousal burglary
law” on direct review to unexpectedly reach his conduct. Specifically, he claims that the
state supreme court’s decision in Lilly subsequently enlarged the scope of the aggravated
burglary statute, depriving him of fair warning of what constituted the crime at the time
of the offense. A favorable outcome on this point would render him ineligible for the
death penalty.

                                            A.

       Before we address the merits of O’Neal’s claim, we must first establish the
appropriate standard of review. We generally review a district court’s denial of a federal
habeas petition de novo. Murphy v. Ohio, 551 F.3d 485, 493 (6th Cir. 2009). However,
where, as here, the petitioner filed his petition after the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), we may grant relief on
claims “adjudicated on the merits in State court proceedings” only if the challenged
adjudication “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court,”
28 U.S.C. § 2254(d)(1), or “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented” to the relevant state court,
id. § 2254(d)(2).

       The threshold question is whether O’Neal’s due process claim was adjudicated
on the merits in the state courts. O’Neal presented his claim in various forms—though
couched in state-law terms—to the state appellate court and the state supreme court on
direct review, where it failed to gain traction. He first invoked U.S. Supreme Court
precedent and the federal Constitution in a motion for reconsideration to the state
supreme court. That court denied the motion without comment. The parties agree that
his claim had been adequately presented by this point, meaning that the denial operates
as an adjudication on the merits for § 2254(d) purposes in the absence of an alternative
theory from O’Neal. See Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011) (“When
No. 11-3449         O’Neal v. Bagley                                                  Page 5


a federal claim has been presented to a state court and the state court has denied relief,
it may be presumed that the state court adjudicated the claim on the merits in the absence
of any indication or state-law procedural principles to the contrary.” (citation omitted)).
But O’Neal has advanced no such theory, and he even conceded in his briefs and again
at oral argument that the denial of his motion for reconsideration ultimately rested on
substantive rather than procedural grounds. Because the presumption of a merits
determination was never rebutted, we have little choice but to apply the deferential
standard of review prescribed by AEDPA.

        Accordingly, O’Neal is entitled to relief only if the Supreme Court of Ohio’s
decision contradicted or unreasonably applied clearly established federal law. 28 U.S.C.
§ 2254(d)(1). In other words, he must show that the challenged decision rested on “an
error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 131 S. Ct. at 786-87. This he cannot do.

                                             B.

        Under AEDPA, we look to the law as it stood on the date the Supreme Court of
Ohio adjudicated O’Neal’s claim. See Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).
The most important precedent is Bouie v. City of Columbia, 378 U.S. 347 (1964). In
Bouie, the U.S. Supreme Court articulated a general principle of fair warning inherent
in the Due Process Clause. This principle holds that retroactively “applying a novel
construction of a criminal statute to conduct that neither the statute nor any prior judicial
decision has fairly disclosed to be within its scope” is incompatible with the demands
of due process. United States v. Lanier, 520 U.S. 259, 266 (1997) (citations omitted).
It is in many respects the judicial counterpart to Article I’s Ex Post Facto Clause. See
Bouie, 378 U.S. at 353-54. The crucial test is “whether the statute, either standing alone
or as construed, made it reasonably clear at the relevant time that the defendant’s
conduct” could be criminally penalized. Lanier, 520 U.S. at 267; see Bouie, 378 U.S.
at 353-55. Thus, a defendant’s due process rights are violated when a court applies a
construction of the statute that “is unexpected and indefensible by reference to the law
which had been expressed prior to the conduct in issue.” Bouie, 378 U.S. at 354
No. 11-3449        O’Neal v. Bagley                                                   Page 6


(internal quotation marks and citation omitted). Our task is to decide whether the
Supreme Court of Ohio contradicted or unreasonably applied the law declared in Bouie
and its progeny in rejecting O’Neal’s due process claim.

       We begin with the relevant statutory language and the manner in which it had
been construed by the Ohio courts prior to the events in question. The jury convicted
O’Neal of, among other things, aggravated murder with an aggravated burglary death-
penalty specification, the latter of which is the nub of this appeal. The offense of
aggravated burglary is defined by statute in Ohio:

       (A) No person, by force, stealth, or deception, shall trespass in an
       occupied structure or in a separately secured or separately occupied
       portion of an occupied structure, when another person other than an
       accomplice of the offender is present, with purpose to commit in the
       structure or in the separately secured or separately occupied portion of
       the structure any criminal offense, if any of the following apply:
       (1) The offender inflicts, or attempts or threatens to inflict physical harm
       on another;
       (2) The offender has a deadly weapon or dangerous ordnance on or about
       the offender’s person or under the offender’s control.

Ohio Rev. Code Ann. § 2911.11(A). This provision makes clear that one of the essential
elements of the offense is a “trespass.” A separate statutory provision, in turn, defines
a trespass as knowingly intruding on the land or property of another “without privilege
to do so.” Id. § 2911.21(A)(1). O’Neal argues that his entry into the house was not
“without privilege” based on yet another statutory provision. That one, located in a
portion of the Ohio Code entitled “Domestic Relations,” notes that “[n]either husband
nor wife . . . can be excluded from the other’s dwelling, except upon a decree or order
of injunction made by a court of competent jurisdiction.” Id. § 3103.04. The gist of
O’Neal’s claim is that, at the time of the murder, he could not have also committed the
offense of aggravated burglary because spousal privilege precluded him from
committing the lesser included offense of criminal trespass.

       But the Ohio courts had not then settled on a definitive construction of the
intersecting and seemingly contradictory statutory provisions. After the aggravated
No. 11-3449        O’Neal v. Bagley                                                Page 7


burglary statute passed in 1974 and before December 1993, the state appellate courts
issued a number of discordant decisions. On the one hand, O’Neal relies on two
decisions that categorically held “‘one spouse cannot be criminally liable for trespass in
the dwelling of the other.’” State v. Middleton, 619 N.E.2d 1113, 1116 (Ohio Ct. App.
1993) (quoting State v. Herder, 415 N.E.2d 1000, 1004 (Ohio Ct. App. 1979)). Both
invoked the unqualified nature of spousal privilege in adopting a narrower construction
of the trespass provision. On the other hand, the state relies on two contemporaneous
decisions in which the state appellate courts declined to apply spousal privilege in the
criminal context. State v. Herrin, 453 N.E.2d 1104 (Ohio Ct. App. 1982); State v.
Winbush, 337 N.E.2d 639 (Ohio Ct. App. 1975). Both courts suggested instead that
under certain circumstances, including when violence or force is used, a husband out of
possession could be found guilty of trespass or burglary for entering the marital home
without his wife’s permission. Thus, when O’Neal acted, it was at least ambiguous
whether spousal privilege precluded criminal liability for trespass (and, by extension,
aggravated burglary) in the marital home all of the time, some of the time, or none of the
time.

        By 1995, however, the Ohio courts had decisively rejected any notion that
spousal privilege barred criminal liability. In the instant case, on appeal from the trial
court’s dismissal of the aggravated burglary charges and specifications against O’Neal,
the state appellate court held that a conviction for trespass or burglary was possible if
one spouse had established “sole possessory interest in the [marital] house” at the time.
O’Neal I, 658 N.E.2d at 1104 (noting that spousal privilege is not “equally applicable
to a criminal case and a civil case”). Four years later, the Supreme Court of Ohio took
up the issue for the first time in a different case. Lilly, 717 N.E.2d at 325 (“This case
presents the court with the question of whether [Ohio Rev. Code Ann. §] 3103.04
precludes prosecution of one spouse for burglary committed in the residence of the other
spouse.”). The state supreme court held once and for all that spousal privilege “is
inapplicable in criminal cases.” Id. It then announced a new rule—that “a spouse may
be criminally liable for trespass and/or burglary in the dwelling of the other spouse who
is exercising custody or control over that dwelling.” Id. The state supreme court later
No. 11-3449         O’Neal v. Bagley                                                 Page 8


upheld O’Neal’s conviction on direct review applying Lilly’s rule. See O’Neal II,
721 N.E.2d at 81-82.

        O’Neal now argues that doing so violated his due process rights by retroactively
expanding the aggravated burglary statute to reach his conduct. There might even be
something to his claim given a fresh review. However, as a habeas court, we have no
such opportunity, nor can we say that it was unreasonable for the Supreme Court of Ohio
to conclude that applying Lilly retroactively did not deprive O’Neal of his right to fair
warning by working an impermissible change in the law. And this is enough to doom
his claim under the exacting standard imposed on us by 28 U.S.C. § 2254(d)(1).

        This case bears only a faint resemblance to Bouie, in which the U.S. Supreme
Court held that South Carolina violated the defendants’ due process rights by
retroactively applying a new interpretation of a trespass statute that criminalized “the
act of remaining on the premises of another after receiving notice to leave,” 378 U.S. at
350, though the statute on its face required “proof of notice before entry,” id. at 356. For
starters, the decision in question here did not expand the scope of criminal liability
beyond the contours of previous judicial interpretation. Cf. id. (“The interpretation given
the statute by the South Carolina Supreme Court . . . has not the slightest support in prior
South Carolina decisions.”). As we have noted, two prior state appellate court decisions
raised the possibility that a defendant found to have broken into the marital home by
force without the permission of the spouse exercising control of the home would be
guilty of a trespass or more. Herrin, 453 N.E.2d at 1106 (“When defendant forcibly
entered the residence without his wife’s permission [and in spite of a court order], he
‘trespassed.’”); Winbush, 337 N.E.2d at 641 (“Although a husband has a possessory
interest in the abode of his spouse and, therefore, may not be found guilty of simple
trespass where no violence is involved because of his right to be there, he may not use
violence to enforce his possessory interest. In other words, one spouse may not use
violence to enter the abode of the other.”). Both decisions suggested that spousal
privilege had limited currency in the criminal context. Thus, when the Supreme Court
of Ohio resolved the uncertainty evident in the state appellate courts as it did in State v.
No. 11-3449        O’Neal v. Bagley                                                 Page 9


Lilly, 717 N.E.2d at 325-28, its new construction was not “unexpected and indefensible
by reference to [existing] law,” Bouie, 378 U.S. at 354, even if the custody-and-control
rule was not inevitable.

       Nor did the Supreme Court of Ohio stretch the terms of a criminal statute beyond
recognition. Cf. id. at 352 (holding that an “unforeseeable . . . judicial expansion of
narrow and precise statutory language” deprives a defendant of due process). The plain
language of the aggravated burglary statute applies with equal force to all types of
persons, including spouses, Ohio Rev. Code Ann. § 2911.11(A), as does the plain
language of the criminal trespass statute, id. §§ 2911.21(A)(1), (E). Thus, the statutes
by their terms “made it reasonably clear at the relevant time” that O’Neal’s entry into
the house was criminal. Lanier, 520 U.S. at 267. It is true enough that the spousal-
privilege statute is drawn in equally categorical terms, which pull in precisely the
opposite direction. Ohio Rev. Code Ann. § 3103.04. But nothing on the face of that
statute, located in the “Domestic Relations” portion of the Ohio Code, suggests that it
modifies criminal liability. When the state supreme court decided Lilly, it merely
clarified the relationship between these provisions and gave effect to the plain terms of
each. 717 N.E.2d at 326-27. In so doing, it did not impermissibly expand “narrow and
precise statutory language.” Bouie, 378 U.S. at 352.

       Our conclusion is also consistent with U.S. Supreme Court precedent of more
recent vintage. In Metrish v. Lancaster, 133 S. Ct. 1781 (2013), the Court encountered
a situation remarkably parallel to the one before us. The defendant in that case admitted
to killing his girlfriend in 1993 and intended to assert a diminished-capacity defense that
was then on the books in the state appellate courts. Id. at 1785. However, by the time
of his retrial in 2005, “the Michigan Supreme Court had [recently] disapproved the series
of Michigan Court of Appeals decisions recognizing the diminished-capacity defense,”
preventing him from utilizing it. Id. (internal quotation marks, alterations, and citation
omitted). The defendant was convicted of murder and subsequently raised a Bouie claim
in his habeas petition, which the Court rejected. The Court explained that it had “never
found a due process violation . . . where a state supreme court, squarely addressing a
No. 11-3449         O’Neal v. Bagley                                                 Page 10


particular issue for the first time, rejected a consistent line of lower court decisions based
on the supreme court’s reasonable interpretation of the language of a controlling statute.”
Id. at 1792. This passage would seem to compel the same result here. As in that case,
Lilly represents the Supreme Court of Ohio’s first and only foray into the split among
lower state courts that had offered competing glosses on the aggravated burglary and
criminal trespass statutes. Its rejection of the gloss favoring spousal privilege was based
on a reasonable interpretation of the underlying statutes. In light of Lancaster, we
cannot fault the reasonableness of the Supreme Court of Ohio’s determination that
retroactively applying Lilly did not violate O’Neal’s due process rights.

        Like Lancaster, this is ultimately a case about deference. O’Neal may or may
not have a colorable claim that he was deprived of due process. But it is not sufficient
for O’Neal to show merely that his application of the relevant U.S. Supreme Court
precedent is more plausible than the state court’s application—he must demonstrate that
precedent requires his preferred outcome. Because fairminded disagreement as to
whether Lilly represented an “unexpected and indefensible” development in the law
remains possible, Bouie, 378 U.S. at 354, he cannot carry that burden. Our only choice
is to affirm. See Harrington, 131 S. Ct. at 784-85.

                                             III.

        O’Neal separately claims that the state presented insufficient evidence to support
his aggravated burglary conviction. He identifies two types of privilege—contractual
and spousal—that he says preclude a finding of guilt on the element of trespass. O’Neal
adds that, in any event, the evidence shows he had “a right to custody and control” of the
house under Lilly. We disagree.

        It is axiomatic that a criminal conviction must be supported by evidence that
leaves no reasonable doubt about the defendant’s guilt. Jackson v. Virginia, 443 U.S.
307, 316-18 (1979). Our task is to determine “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Id. at 319 (emphasis in
original). Because the Supreme Court of Ohio ruled on the merits, we may not grant
No. 11-3449            O’Neal v. Bagley                                           Page 11


relief on this claim unless its conclusion was objectively unreasonable. 28 U.S.C.
§ 2254(d)(1); see Sanborn v. Parker, 629 F.3d 554, 577 (6th Cir. 2010).

        Here, the Supreme Court of Ohio reasonably rejected O’Neal’s claim. When
construed in favor of the prosecution, the evidence presented at trial was sufficient for
“a rational trier of fact” to find the essential elements of aggravated burglary, including
trespass, beyond a reasonable doubt. See Jackson, 443 U.S. at 319. First, nowhere is
O’Neal identified as a tenant of the house in which he killed his wife, suggestive of an
unqualified privilege to enter. A housing assistance payments contract—introduced
(mistakenly) at trial as the lease—lists only Carol as the “family representative.” It says
nary a word about O’Neal. This fact does not stop him from making a convoluted
argument that he was a tenant by virtue of his status as a family member, but that
argument is tenuous at best. Even the actual lease, which was not brought in until the
post-conviction proceedings, clearly identifies Carol as the tenant and O’Neal as merely
an occupant. Based on the evidence presented at trial, a jury could have reasonably
found that O’Neal had no contractual privilege to enter the house on the day of the
murder. Second, a jury could have just as reasonably found that Carol exercised sole
custody and control over the house at the time of her murder. See Lilly, 717 N.E.2d at
325. Carol’s children and a responding police officer all testified that she had kicked
O’Neal and his sons out of the house four days earlier. In addition, Carol had filed a
domestic complaint and made plans to change the locks. O’Neal himself admitted to the
police that he no longer lived at the home when he broke through the door and killed
Carol, effectively undermining his claim.

        To the extent O’Neal’s sufficiency claim invokes spousal privilege, it is little
more than an attempt to shoehorn his due process claim into a different category, and it
fails just the same.

                                            IV.

        O’Neal next claims that he received ineffective assistance of counsel during the
guilt phase of his trial because his attorney failed to present the actual lease, which
No. 11-3449        O’Neal v. Bagley                                               Page 12


allegedly supported his assertion of contractual privilege, and instead wrongly stipulated
that two other, less helpful documents were the lease. We again disagree.

       To succeed, O’Neal must show that his attorney’s performance fell “below an
objective standard of reasonableness” and that this poor performance caused him
prejudice.    Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Williams v.
Anderson, 460 F.3d 789, 800 (6th Cir. 2006). Prejudice occurs “if a reasonable
probability exists that but for [the attorney’s poor performance] the outcome of the
proceedings would have been different.” Williams, 460 F.3d at 800. The state appellate
court addressed this claim on the merits and concluded that O’Neal could not
demonstrate prejudice.     Because the state court did not unreasonably apply the
Strickland standard, we cannot grant relief. 28 U.S.C. § 2254(d)(1); see Brooks v.
Bagley, 513 F.3d 618, 624-25 (6th Cir. 2008).

       We too focus on the prejudice prong in rejecting O’Neal’s claim. In Ohio, a
trespass is one of the essential elements of aggravated burglary. Ohio Rev. Code Ann.
§ 2911.11(A). A person trespasses when he knowingly intrudes on the land or property
of another “without privilege to do so.” Id. § 2911.21(A)(1). O’Neal argues that, had
his counsel introduced the actual lease into evidence at trial, it would have established
that he had a contractual privilege to enter the house. He makes this point by way of
contrast. As noted above, a housing assistance payments contract and an accompanying
addendum were admitted together at trial as the “lease.” They list Carol as the “family
representative,” name O’Neal’s children, but contain no mention of O’Neal himself. The
actual lease, on the other hand, identifies Carol as “the Tenant” and identifies O’Neal
along with Carol’s children as “occupants.” But the latter is no more helpful. The mere
mention of O’Neal’s name would neither have changed the trespass calculus nor resulted
in a more favorable outcome. For one thing, the state court relied on evidence apart
from the “lease” to conclude that O’Neal committed aggravated burglary. The court
found that O’Neal took to the streets after Carol kicked him out, that Carol then filed for
a protection order, and that O’Neal subsequently entered the house only through the use
of force. O’Neal II, 721 N.E. 2d at 82. Accordingly, whether or not O’Neal was listed
No. 11-3449            O’Neal v. Bagley                                                         Page 13


on the lease, the state court found that he had relinquished possession when he
left—giving Carol custody and control over the house—such that he trespassed upon his
violent return. Id. For another thing, the lease does not conclusively prove what O’Neal
says it proves—that is, his status as a tenant with a contractual privilege to enter the
house. The lease terms only state that he is an “occupant,” as opposed to Carol, who is
clearly designated as the sole “Tenant.”

         Thus, O’Neal has not shown a reasonable probability that the outcome of the
proceedings would have been different had his counsel introduced the actual lease into
evidence.

                                                   V.

         Finally, O’Neal claims that he is mentally retarded and therefore ineligible for
execution under Atkins v. Virginia, 536 U.S. 304 (2002). As evidence, O’Neal points
to low scores on several IQ tests, significant limitations in his academic and social skills,
and school records showing onset before the age of eighteen. The trial court rejected his
claim following a post-conviction hearing on the grounds that O’Neal failed to prove
that he is mentally retarded by a preponderance of the evidence, as required under Ohio
law. Though the state appellate court faulted the trial court for applying an improper IQ
standard, it nonetheless affirmed the trial court’s determination because it was supported
by “reliable, credible evidence,” rendering any error “harmless.” The latter decision is
accorded AEDPA deference as the last reasoned state-court decision on the merits. See
28 U.S.C. § 2254(d). Thus, O’Neal is entitled to relief only if he can establish that the
state appellate court unreasonably determined the facts in light of the evidence presented
to it.1 Id. § 2254(d)(2); see also id. § 2254(e)(1) (providing that “a determination of a
factual issue made by a State court shall be presumed to be correct” in a subsequent
federal habeas proceeding and that the petitioner “shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence”).


         1
            O’Neal does not argue that the state appellate court’s decision contradicted or unreasonably
applied clearly established federal law. See 28 U.S.C. § 2254(d)(1). Therefore, the only standard relevant
to this claim is prescribed by § 2254(d)(2).
No. 11-3449        O’Neal v. Bagley                                               Page 14


       In Atkins, the U.S. Supreme Court held that executing mentally retarded
individuals is inconsistent with the Eighth Amendment’s prohibition on cruel and
unusual punishment. 536 U.S. at 321. The Court left it to the states to decide how to
“enforce [this] constitutional restriction” by defining mental retardation. Id. at 317
(quoting Ford v. Wainwright, 477 U.S. 399, 405, 416–17 (1986)). Ohio subsequently
took up that task in State v. Lott, 779 N.E.2d 1011 (Ohio 2002). Borrowing definitions
from the American Association of Mental Retardation and the American Psychiatric
Association, Lott established that an individual is mentally retarded if he has
“(1) significantly subaverage intellectual functioning, (2) significant limitations in two
or more adaptive skills, such as communication, self-care, and self-direction, and
(3) onset before the age of 18.” Id. at 1014. Under Lott, capital defendants challenging
their executions bear the burden of establishing that they are mentally retarded by a
preponderance of the evidence, id. at 1015, and the failure to satisfy any one of the three
criteria is enough to sink an Atkins claim. See id. at 1014 (describing the test for mental
retardation as a conjunctive one); accord State v. Burke, No. 04AP-1234, 2005 WL
3557641, at *3 (Ohio Ct. App. Dec. 30, 2005) (“An individual must meet all three
requirements to satisfy Lott’s definition of mental retardation.”). The Supreme Court of
Ohio acknowledged that “[w]hile IQ tests are one of the many factors that need to be
considered, they alone are not sufficient to make a final determination” on the issue of
mental retardation. Lott, 779 N.E.2d at 1014. Nevertheless, the court adopted a
rebuttable presumption that a defendant is not mentally retarded “if his or her IQ is
above 70.” Id.

       The state appellate court relied on factual determinations that O’Neal does not
suffer from significantly subaverage intellectual functioning and that he does not have
limitations in two or more adaptive skills. In challenging these determinations, O’Neal
says he “met the clinical definition of mental retardation at an early age,” and submits
several IQ tests and the extensive testimony of clinical psychologist Dr. Robert G.
Tureen in support. The separately administered IQ tests show that O’Neal scored below
70 on three occasions between 1968 and 2004, and only once scored above that bar,
No. 11-3449            O’Neal v. Bagley                                                         Page 15


receiving a 71 in 1994.2 Such low scores are consistent with “borderline mental
retardation,” even if they are not conclusive of it. Dr. Tureen’s testimony is more
comprehensive than the IQ scores. After evaluating O’Neal twice, once in 1994 and
again in 2004, Dr. Tureen found that O’Neal suffers from “mild cerebral dysfunction,”
which contributes to his “low level of intellectual function.” From this Dr. Tureen
concluded that O’Neal has a “significant limitation in academic skills.” Dr. Tureen also
found that O’Neal has little ability “to consider alternative modes of dealing with
situations which are stressful or which he finds in some way threatening,” which
contributes to his “difficulties in adjusting in the world.” This was taken as evidence
that O’Neal experiences significant limitations in his social skills as well. Based on
these findings, Dr. Tureen ultimately diagnosed O’Neal as suffering from “mild to
borderline mental retardation.”

         We do not doubt that such evidence may lead reasonable minds to conclude that
O’Neal is mentally retarded under Ohio law. Unfortunately, it is not enough on habeas
review that the evidence presented, selectively read, at times supports his mental
retardation claim. O’Neal’s case falls apart in the end because he fails to adequately
undermine by clear and convincing evidence the state court’s factual findings to the
contrary. The IQ scores and Dr. Tureen’s testimony generally do not call into question
the reams of separate record evidence presented to the state court suggesting that O’Neal
falls on the other side of the line drawn in Lott. Reasonable minds could just as easily
arrive at a determination that O’Neal is not mentally retarded in light of the record read
as a whole, which prevents us from granting relief. See 28 U.S.C. § 2254(d)(2).

         The three sub-70 IQ scores are insufficient on their own to prove O’Neal has
“significantly subaverage intellectual functioning.” See Lott, 779 N.E.2d at 1014–15.
It is true that these scores fell below the threshold associated with mental retardation, see
id., and, as the state trial court noted, were enough to rebut the presumption that O’Neal
is not mentally retarded by virtue of his single above-70 score. Nevertheless, O’Neal’s

         2
           In 1968, O’Neal scored a 64 on the Wechsler Intelligence Scale for Children. In 1994, he scored
a 71 on a Wechsler IQ test administered by Dr. Chiappone. In 2004, he scored a 67 on the Wechsler Adult
Intelligence Scale and a 63 on the Reynolds intelligence test administered by Dr. Tureen.
No. 11-3449            O’Neal v. Bagley                                                          Page 16


claim comes up short because there is significant unrebutted evidence in the record that
weighs against him. Dr. David Chiappone, another clinical psychologist who evaluated
O’Neal before trial, testified that O’Neal functions at a higher level than his “low IQ”
would suggest. Dr. Chiappone accordingly concluded that O’Neal is not mentally
retarded. A third clinical psychologist, Dr. W. Michael Nelson III, arrived at the same
conclusion after reviewing both evaluations and a host of other records at the state’s
behest, though he never met with O’Neal face-to-face. Dr. Nelson specifically noted that
O’Neal’s sub-70 IQ scores do not offset a lack of significant deficits in his adaptive
functioning. Such testimony provided a basis for the state court to reasonably determine
that O’Neal does not suffer from significantly subaverage intellectual functioning. And
without clear and convincing evidence undermining the credibility of Dr. Chiappone and
Dr. Nelson, we are not persuaded by O’Neal’s attempts to emphasize solely the portions
of Dr. Tureen’s testimony that support his claim. For better or worse, as a habeas court,
we are not in a position to pick and choose which evidence we think is best so long as
the presumption of correctness remains unrebutted. See 28 U.S.C. § 2254(e)(1).

         While O’Neal comes closer to succeeding on the adaptive skills prong, see Lott,
779 N.E.2d at 1014, it is not enough to rescue his claim. There can be no doubt that Dr.
Tureen’s testimony supports O’Neal’s contention that he has significant limitations in
at least two adaptive skills—academic and social. It is also beyond doubt that Dr.
Nelson identified “significant deficits in several conceptual areas” as well as “difficulties
in dealing with stressful situations in an effective manner.”3 But Dr. Nelson at the same
time noted that O’Neal functions at least in the borderline range of practical adaptive
skills. Further, he attributed O’Neal’s social limitations to “psychiatric difficulties” like
drug abuse and personality disorder rather than “specific intellectual/adaptive behavior
deficits.” This falls short of the kind of unambiguous evidence needed to clear the high
hurdle erected by § 2254(d)(2). Even Dr. Tureen was careful to note that O’Neal
presents a close case. With expert testimony split, as it often is, the state court chose to

         3
          Dr. Chiappone did not directly address O’Neal’s adaptive skills because he testified at the
mitigation hearing, not the Atkins hearing. Although introduced for a different purpose, his testimony from
the penalty phase of the trial remains relevant to the Atkins claim. See State v. Bays, 824 N.E.2d 167, 171
(Ohio Ct App. 2005); State v. Carter, 813 N.E.2d 78, 83 (Ohio Ct. App. 2004).
No. 11-3449       O’Neal v. Bagley                                             Page 17


credit Dr. Chiappone and Dr. Nelson over Dr. Tureen, and we cannot say from this
vantage that it was unreasonable to do so.

       O’Neal ultimately fails to show that the state court’s decision was inconsistent
with the record. Because he cannot carry the burden of rebutting the presumed
correctness of the state court’s decision, he is not entitled to relief on his mental
retardation claim. See 28 U.S.C. § 2254(e)(1).

                                         VI.

       For these reasons, we affirm.
No. 11-3449            O’Neal v. Bagley                                                           Page 18


                                       __________________

                                            DISSENT
                                       __________________

         MERRITT, Circuit Judge, dissenting. My colleagues in the majority make short
shrift of O’Neal’s mental retardation defense to his future execution. They do so very
simply by holding that “reasonable minds” could differ on the question of O’Neal’s
mental retardation. We are told that under the AEDPA we must accept the state court’s
conclusion “based on an over-70 IQ score” that “O’Neal does not suffer from
significantly subaverage intellectual function.” (Op. 16-17.) This conclusion makes no
sense because factual findings of intellectual normality “based on” a single “over-70 IQ
score” are completely inconsistent with modern scientific opinion found in the
psychiatric literature — the literature that the Atkins case requires the state and lower
federal courts to apply.1 We must apply neutral and objective standards as formulated
by the consensus of experts in the field. Indeed, the Supreme Court in Atkins recognized
that a single IQ test of 71, such as this one, could not be a proper basis for finding
normality. It stated that the retardation literature considers “that between 1 and 3 percent



         1
          The Supreme Court makes the general standard for mental retardation plain by quoting two
similar paragraphs from the two major scientific organizations that have formulated the standards for
mental retardation evaluation, as follows:
                   The American Association on Mental Retardation (AAMR) defines mental
         retardation as follows: “Mental retardation refers to substantial limitations in present
         functioning. It is characterized by significantly subaverage intellectual functioning,
         existing concurrently with related limitations in two or more of the following applicable
         adaptive skill areas: communication, self-care, home living, social skills, community
         use, self-direction, health and safety, functional academics, leisure, and work. Mental
         retardation manifests before age 18.” Mental Retardation: Definition, Classification,
         and Systems of Supports 5 (9th ed. 1992).
                   The American Psychiatric Association’s definition is similar: “The essential
         feature of Mental Retardation is significantly subaverage general intellectual functioning
         (Criterion A) that is accompanied by significant limitations in adaptive functioning in
         at least two of the following skill areas: communication, self-care, home living,
         social/interpersonal skills, use of community resources, self-direction, functional
         academic skills, work, leisure, health, and safety (Criterion B). The onset must occur
         before age 18 years (Criterion C). Mental Retardation has many different etiologies and
         may be seen as a final common pathway of various pathological processes that affect
         the functioning of the central nervous system.” Diagnostic and Statistical Manual of
         Mental Disorders 41 (4th ed. 2000). “Mild” mental retardation is typically used to
         describe people with an IQ level of 50-55 to approximately 70. Id., at 42-43.
Atkins v. Virginia, 536 U.S. 304, 308 n.3 (2002).
No. 11-3449        O’Neal v. Bagley                                               Page 19


of the population has an IQ between 70 and 75 or lower, which is typically considered
the cutoff IQ score for the intellectual function prong of the mental retardation
definition.” 536 U.S. at 309 n.4. The only relevant IQ testimony before the Ohio court
and this court was that O’Neal’s IQ scores were all below 70, taking into account Dr.
Robert Tureen’s testimony that the one 71 IQ score was something of an outlier. Dr.
Tureen, the only psychiatrist who actually testified and administered tests, said that the
71 score was the result of an old Wechsler test which turned out to be 67 when the
updated verison was readministered. These facts are never mentioned. The Ohio court
and this court seem to simply accept the 71 IQ score and then apply an Ohio
presumption of normal intellectual ability if there is one IQ score above 70.

       The American Association on Mental Retardation specifically cautions against
such a fixed cutoff: “IQ has typically dominated and thus has been overemphasized both
in terms of professional decision making and diagnosis . . . . This imbalance between
intelligence and adaptive behavior does not represent the current conceptualization of
mental retardation.” Mental Retardation: Definition, Classification, and Systems of
Supports 80 (10th ed. 2002). The most recent edition of the DSM, the American
Psychiatric Association’s guide to mental disorders, also reflects the current
understanding that a broader approach produces a more accurate assessment of mental
retardation than a heavy reliance on IQ scores — much less the Ohio court’s finding
based on one IQ test of 71. The manual states, “Individual cognitive profiles based on
neuropsychological testing are more useful for understanding intellectual abilities than
a single IQ score.” Diagnostic and Statistical Manual of Mental Disorders 37 (5th ed.
2013). A clinical evaluation provides the necessary context for interpreting IQ scores,
which cannot be viewed in isolation. See Mental Retardation: Definition, Classification,
and Systems of Supports 58 (“[A] fixed cutoff for diagnosing an individual as having
mental retardation . . . cannot be justified psychometrically.”).

       The one-test methodology for arriving at a “finding” of no retardation does not
comply with the standards established by modern scientific opinion as required by
No. 11-3449        O’Neal v. Bagley                                              Page 20


Atkins. We therefore make a major mistake when we defer to a finding based on one IQ
test, as the majority opinion suggests.

       The only other evidence that the majority cites for its insistence that we must
defer to the “findings” of the state court are the opinions of two mental health experts,
neither of whom testified at the Atkins mental retardation hearing, Drs. Nelson and
Chiappone. Dr. Nelson simply filed a short opinion without ever seeing, testing,
examining, or observing O’Neal. This procedure seems contrary to common sense as
well as the practice required by the American Association on Mental Retardation stating
that rendering an opinion about an individual’s adaptive skills depends on personal
contact, observation, and interviews. See Mental Retardation: Definition, Classification,
and Systems of Supports 85-86.

       Dr. Nelson, the state prosecutor, and the Ohio court rely on the fact that O’Neal
served as a dishwasher, briefly had custody of his children, and served as a Marine to
show that he performed well enough in his social adaptive functioning to be regarded as
normal. Dr. Nelson’s attitude towards dishwashing as a sign of intellectual functioning
and social adaptation is far-fetched.     O’Neal’s work with dishes, while perhaps
exemplary, did not involve much reasoning, logic, or any skill indicative of strong
adaptive behaviors. Retarded individuals can and do maintain employment and O’Neal
was no exception. See Diagnostic and Statistical Manual of Mental Disorders 43 (4th
ed. 2000). And his work history as a dishwasher was not without problems — Dr.
Nelson ignored the portions of the record that show that his work history was riddled
with absenteeism and tardiness. O’Neal’s military “skill” is considerably less impressive
when one considers that O’Neal went AWOL and was dishonorably discharged. His
temporary custody of his children as a “skill” is no evidence of adaptable social skills.
After all, O’Neal admitted to police that he did not even know where his young children
were living and he then killed their mother — not exactly an indication of domestic
normality. This set of facts offered in his uncross-examined opinion hardly rebuts Dr.
Tureen’s comprehensive testimony.
No. 11-3449         O’Neal v. Bagley                                               Page 21


        Dr. Chiappone offered his evidence at the mitigation phase of the original trial.
He did not purport to offer evidence concerning mental retardation as a bar to execution
under Atkins standards. He simply acknowledged that O’Neal had a low level of
intellectual ability and did not address adaptive skills or other factors recited in the
professional standards relied on in the Atkins opinion and developed by the psychiatric
profession.

        Implicit in the opinion of my colleagues in the majority is the suggestion that
they would reach a different conclusion if they did not have to “defer” to the state court’s
“findings.” My view is that the state court’s opinion, based mainly on its reliance on its
presumption, is a finding so far out of the mainstream of scientific opinion — indeed,
directly contrary to scientific opinion — as to deserve no deference. Moreover, the
Supreme Court opinion in Atkins, as quoted above, appears to say that presuming
normality from one IQ test of 71 is improper when the “cut off” of mental retardation
is considered to be 75. A state court opinion that defies both modern scientific opinion
and applicable language in Atkins deserves no deference.

        As to the other issues decided by my colleagues in the majority, I agree that
O’Neal is not entitled to habeas relief.
