                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 14a0162p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


 MICHAEL DEAN SCOTT,                                     ┐
                                Petitioner-Appellant,    │
                                                         │
                                                         │       No. 11-4361
        v.                                               │
                                                          >
                                                         │
 MARC HOUK, Warden,                                      │
                               Respondent-Appellee.      │
                                                         ┘
                         Appeal from the United States District Court
                       for the Northern District of Ohio at Youngstown.
                       No. 4:07-cv-753—John R. Adams, District Judge.
                                     Argued: June 26, 2014
                               Decided and Filed: July 28, 2014

                 Before: COLE, GRIFFIN, and KETHLEDGE, Circuit Judges.

                                      _________________

                                          COUNSEL

ARGUED: David L. Doughten, Cleveland, Ohio, for Appellant. Megan Dillhoff, OFFICE OF
THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: David L.
Doughten, Cleveland, Ohio, John P. Parker, Cleveland, Ohio for Appellant. Charles L. Wille,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
                                   _________________

                                           OPINION
                                      _________________

       COLE, Circuit Judge. After his conviction in Ohio state court for two murders and the
aggravated robbery and kidnapping of one of his victims, petitioner Michael Dean Scott was
sentenced to death. Scott appealed and pursued post-conviction remedies in state court, to no
avail. He now seeks habeas relief under 28 U.S.C. § 2254. The district court denied relief.




                                                1
No. 11-4361           Scott v. Houk                                              Page 2

       Scott obtained a certificate of appealability and now presents four arguments: (1) that
Ohio’s “course-of-conduct” capital specification was unconstitutional as applied to his case;
(2) that the trial court erroneously failed to merge two other aggravating specifications, for
robbery and kidnapping; (3) that his trial counsel provided ineffective assistance, first by giving
him erroneous advice about the risks of making an unsworn statement, and second by failing to
present certain mitigating evidence at the penalty phase of trial; and (4) that Ohio’s method of
execution by lethal injection is unconstitutional.

       Scott did not present his first argument in state court, so it is procedurally defaulted.
AEDPA’s stringent standard of review applies to Scott’s second and third claims, and because
Scott cannot show that the Ohio courts reached a decision that contravened or unreasonably
applied Supreme Court precedent, he is not entitled to relief on these claims. Finally, as to his
fourth claim, Scott is currently challenging Ohio’s execution procedures in federal district court,
in a separate action brought under § 1983, and we conclude that consideration of this issue is
properly confined to that forum. We therefore must affirm the district court’s denial of relief.

                                         I. OVERVIEW
A. Factual Background

       The facts surrounding Scott’s crimes are not in dispute. The relevant events began on
August 24, 1999, in the early morning, as Scott and his friends Michael Wilson and Ryan Allen
were walking from a mall in Canton, Ohio, to another friend’s apartment. During their walk, a
man named Dallas Green drove by, and Scott yelled out to him. Although Scott and Green
apparently did not know each other, Green stopped his car and got out, and the group began
talking. As the Supreme Court of Ohio explained it, Green then insulted Scott and his friends,
“talking as if the others ‘were his girlfriends’” and “telling each, ‘You are my bitch.’” State v.
Scott, 800 N.E.2d 1133, 1137 (Ohio 2004).

       Green eventually returned to his vehicle. Scott asked Green for a ride, which Green
refused him, and then asked for the time. “When Green turned his head to look at the clock on
the dashboard, Scott pointed a .22 caliber handgun at him, said, ‘Now who the bitch mother
fucker,’ and then shot Green twice in the back and once in the left cheek.” Id. Green later died
from the gunshot wounds. Id.
No. 11-4361            Scott v. Houk                                               Page 3

       Scott and his friends fled the scene, and Scott warned them “that he would shoot them if
they told anybody about the shooting.” Id. Nevertheless, Scott told a third friend, Todd Jewell,
about the murder. A week or two later, in early September, he also told Jewell that he “wanted
to test drive a car and kill the owner.” Id. Jewell protested, pointing out that Scott could steal a
car without killing anyone.

       On Friday, September 10, 1999, Scott, along with Jewell and Scott’s girlfriend Kerry
Vadasz, “saw a Ford Probe with a ‘for sale’ sign in the window parked in the front yard of Ryan
Stoffer’s [grandmother’s house] in Canton, Ohio.” Id. Scott wrote down the telephone number
from the sign and again told Jewell that he planned to “call the owner, take the car for a test
drive, have Vadasz drive, and shoot the owner from the back seat.” Id. Scott made the
arrangements, and Jewell drove him to meet Stoffer. The three men then took a test drive, but
Scott did not attempt to kill Stoffer on this occasion. Instead, he told Stoffer that he would return
because he wanted his girlfriend to see the car.

       Two days later, Vadasz contacted Stoffer to set up a second test drive. Scott and Vadasz
met Stoffer at his grandmother’s house, and Stoffer’s mother watched as he got in the car with
Scott and Vadasz. Vadasz took the driver’s seat, Stoffer sat next to her in the passenger seat, and
Scott sat in the back. Vadasz then proceeded to drive “for the next hour and a half. As time
passed, Stoffer provided directions on how to return to his grandmother’s house, but ostensibly
because Vadasz had little experience with driving a standard transmission, Scott told her to keep
driving until she got used to it.” Id. at 1138.

       Eventually, Scott “removed a .22 caliber handgun from his pants pocket and placed it on
the seat.” Id. Scott later explained in his confession to police that, “‘after about ten minutes,
[he] just lifted [the gun] up and sat it back behind the head rest of [Stoffer’s] chair. And just left
it sittin’ there for like two more minutes.’ Scott then fired six shots into the back of Stoffer’s
head.” Id.

       Scott and Vadasz disposed of Stoffer’s body, dumping it in a wooded area. Scott reacted
to the murder by boasting to Jewell and another friend about the shooting, and by driving
Stoffer’s car to work the next day. Over the following week, however, police received an
anonymous phone call linking Scott to Stoffer’s death. They also obtained telephone records
No. 11-4361           Scott v. Houk                                             Page 4

showing that the Stoffer household had received a call from the residence of Anthony Scott, the
petitioner’s brother. Scott was arrested, and Vadasz cooperated with the investigation by leading
police to Stoffer’s body and to the car. Police located other physical evidence as well.

       Ultimately, Scott confessed to Stoffer’s murder, providing a detailed account to police.
When asked about Green’s murder, “[h]e initially denied any involvement but then blurted out,
‘Okay, I did it,’” and again provided a detailed summary of the events. Id. at 1139.

B. Procedural History

       1. State Court Proceedings

       Scott was tried for the murders of both Green and Stoffer, and all other associated
offenses, in one proceeding held in the Stark County Court of Common Pleas in the spring of
2000. He was convicted and sentenced to death. While the state presented Scott’s confession,
eyewitness testimony, and forensic evidence, Scott’s counsel did not put forth any evidence
during the guilt phase of trial, instead conceding that the evidence of guilt was overwhelming.
Id.   Counsel did, however, call thirteen witnesses during the penalty phase and offered
documentary evidence of various mitigating circumstances. Id. The jury found Scott guilty and
recommended a sentence of death after concluding that three aggravating factors applied. The
court accepted this recommendation and sentenced Scott to death for Stoffer’s murder, and to
additional terms of imprisonment for his other convictions, including Green’s murder and the
aggravated robbery and kidnapping of Stoffer. Id. at 1140.

       Scott appealed to the Supreme Court of Ohio in May 2000. Among other points, Scott
argued that (1) the “course-of-conduct” aggravating circumstance was based on insufficient
evidence and was against the manifest weight of the evidence; (2) the separate specifications for
aggravated robbery and kidnapping were based on insufficient evidence and against the manifest
weight of the evidence; and (3) Scott’s trial counsel performed ineffectively by failing to object
to certain evidence. The court affirmed Scott’s conviction and sentence in January 2004. Id. at
1133, 1151. One justice dissented on the basis that Ohio’s course-of-conduct specification was
unconstitutionally vague as applied, although Scott had not presented that argument to the court.
Id. at 1151–52, (Pfeifer, J., dissenting).
No. 11-4361             Scott v. Houk                                                  Page 5

        Next, Scott filed a petition for post-conviction relief in the Stark County Court of
Common Pleas in January 2001. Scott again argued that his trial counsel was ineffective and
also claimed that death by lethal injection violates the Eighth Amendment. The trial court denied
Scott’s petition; Scott appealed, and the Court of Appeals for the Fifth District affirmed. State v.
Scott, No. 2005CA00028, 2006 WL 173171 (Ohio Ct. App. Jan. 23, 2006). The Supreme Court
of Ohio declined jurisdiction over the appeal in June 2006.

        Lastly, in April 2004, Scott sought relief in state court one final time through a
proceeding known as a Murnahan or Rule 26(B) appeal,1 which permits defendants to re-open
their direct appeal if they can first show ineffective assistance of appellate counsel. Scott’s
Murnahan application alleged that his appellate attorney had committed several errors, including
failing to argue that the course-of-conduct aggravating factor was unconstitutional under the
Eighth and Fourteenth Amendments. In July 2004, the Supreme Court of Ohio summarily
denied his application. State v. Scott, 811 N.E.2d 1148 (Ohio 2004) (table).

        2. Federal Habeas Proceedings

        Scott filed his habeas corpus petition in the Northern District of Ohio in June 2007,
raising fifteen grounds for relief. The district court issued a memorandum opinion and order
denying relief on all grounds, but then granted Scott a certificate of appealability to pursue his
claim that trial counsel had provided ineffective assistance during the penalty phase. This court
expanded the scope of the certificate to include the following additional claims:

        1.      [W]hether the “course-of-conduct” aggravating circumstance sufficiently
                narrows the requirements for death penalty eligibility (Claim 4).
        2.      [W]hether the trial court erred by failing to merge two capital
                specifications (Claim 11).
        3.      [W]hether lethal injection is an unconstitutional method of execution
                (Claim 14).

The district court had jurisdiction over Scott’s habeas petition pursuant to 28 U.S.C. § 2254(a),
and this court has jurisdiction under 28 U.S.C § 2253.


        1
          See State v. Murnahan, 689 N.E.2d 1021 (Ohio Ct. App. 1992), appeal denied, 678 N.E. 2d 1227 (Ohio
1997) (table).
No. 11-4361            Scott v. Houk                                               Page 6

                                          II. ANALYSIS

A. Standard of Review and AEDPA

       In an appeal from the denial of habeas relief, we review the district court’s legal
conclusions de novo and its factual findings for clear error. Adams v. Holland, 330 F.3d 398,
400 (6th Cir. 2003). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
requires courts to deny habeas relief to a claim adjudicated on the merits in state court unless the
state court’s decision (1) “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States”; or (2) “was
based on an unreasonable determination of the facts in light of the evidence presented” to the
state court. 28 U.S.C. § 2254(d). A state court decision is contrary to law as established by the
Supreme Court if it “arrives at a conclusion opposite to that reached by [the Supreme Court] on a
question of law” or if the “state court confronts facts that are materially indistinguishable from a
relevant Supreme Court precedent” and arrives at an opposite result.             Williams v. Taylor,
529 U.S. 362, 405 (2000). Under AEDPA, a state court’s factual determinations are presumed to
be correct. 28 U.S.C. § 2254(e)(1). The petitioner bears the burden of showing, with clear and
convincing evidence, that a court’s factual conclusions were unreasonable. Id.

       Moreover, a habeas petitioner typically must show that he has exhausted all available
state-court remedies and that his arguments are not procedurally defaulted. A claim will be
considered procedurally defaulted, and therefore unreviewable, if the petitioner fails to present
the claim in state court, or if he attempts to present the claim but it is dismissed due to his failure
to comply with a state procedural rule that serves as an “independent and adequate ground[] for
precluding relief.” Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). Procedural default,
however, may be excused if the petitioner can show cause for the default and prejudice resulting
from it. Id. If a state court has not decided a particular claim on the merits, and if that claim is
not procedurally defaulted, AEDPA deference does not apply, and “this court [will] review[]
questions of law and mixed questions of law and fact de novo.” Maples v. Stegall, 340 F.3d 433,
436 (6th Cir. 2003).
No. 11-4361           Scott v. Houk                                                Page 7

B. Constitutionality of Ohio’s “Course-of-Conduct” Aggravating Specification

        Under Ohio law, an individual convicted of aggravated murder may not be sentenced to
death unless at least one aggravating factor applies and the jury concludes that it has been proven
beyond a reasonable doubt. Ohio Rev. Code § 2929.04(A). Three aggravating specifications are
relevant to this case. The first reads as follows:

        Prior to the offense at bar, the offender was convicted of an offense an essential
        element of which was the purposeful killing of or attempt to kill another, or the
        offense at bar was part of a course of conduct involving the purposeful killing of
        or attempt to kill two or more persons by the offender.

Id. § 2929.04(A)(5) (emphasis added).

        Scott argues that the course-of-conduct aggravating factor, as applied to the facts of his
case, fails to adequately narrow the class of death-eligible defendants as required by Maynard v.
Cartwright, 486 U.S. 356 (1988), and Godfrey v. Georgia, 446 U.S. 420 (1980). The district
court concluded that because Scott had not raised this claim on direct appeal and could not raise
it thereafter, it is procedurally defaulted. Still, the court evaluated the merits and determined that
the aggravating circumstance passed constitutional muster.           We agree that this claim is
procedurally defaulted and do not consider the merits.

        In state proceedings, Scott presented two different arguments pertaining to the course-of-
conduct aggravating factor. Both are distinct from the claim he raises here. First, on direct
appeal, Scott argued that the jury had insufficient evidence to apply the aggravating factor.
Second, in an application to re-open his direct appeal, also known as a Murnahan application,
Scott claimed that his appellate counsel had performed ineffectively by failing to argue that the
course-of-conduct aggravating factor was unconstitutional.            Scott now relies on these
proceedings to argue that his course-of-conduct claim is properly before this court. He is wrong,
however, because neither of these instances preserved the claim Scott presents in his habeas
petition.

        To be eligible for relief under § 2254, a state prisoner typically must first pursue the
“same claim[s] under the same theory” in state court. Wagner v. Smith, 581 F.3d 410, 417 (6th
Cir. 2009). The claim that Scott made on direct appeal does not meet this requirement, as an
No. 11-4361           Scott v. Houk                                               Page 8

argument that the jury had insufficient evidence to apply the course-of-conduct aggravating
factor is substantively distinct from an argument that the factor itself is unconstitutionally broad
or vague. See, e.g., Rayner v. Mills, 685 F.3d 631, 643 (6th Cir. 2012); Pillette v. Foltz, 824 F.2d
494, 497 (6th Cir. 1987).

       After neglecting to attack the constitutionality of the aggravating factor on direct appeal,
Scott then raised it in his application for a Murnahan proceeding under Ohio Rule of Appellate
Procedure 26(B).     On several occasions, however, this court has held that a Murnahan
application “cannot function to preserve the underlying substantive claim” for habeas review.
Davie v. Mitchell, 547 F.3d 297, 312 (6th Cir. 2008) (internal quotation marks omitted); see also
Wogenstahl v. Mitchell, 668 F.3d 307, 338 (6th Cir. 2012); White v. Mitchell, 431 F.3d 517, 526
(6th Cir. 2005). Murnahan proceedings permit criminal defendants to apply to reopen their
appeals “based on a claim of ineffective assistance of appellate counsel.” Ohio R. App. P. 26(B);
see also Ohio Sup. Ct. Prac. R. 11.06. In his or her application, the defendant must identify
“[o]ne or more assignments of error . . . that previously were not considered on the merits in the
case by any appellate court or that were considered on an incomplete record because of appellate
counsel’s deficient representation.” Ohio R. App. P. 26(B)(2)(c). The application will be
granted if the court finds a “genuine issue as to whether the applicant was deprived of the
effective assistance of counsel on appeal.” Ohio R. App. P. 26(B)(5). Once an application has
been granted, the court will vacate its prior judgment and issue a new judgment if it concludes
that counsel’s performance was deficient and prejudiced the defendant.            Ohio R. App. P.
26(B)(5) & (9). Thus, by the text of the Ohio rules, Murnahan proceedings allow defendants to
re-open their appeals and raise new substantive claims only if their failure to raise these claims in
the first instance was due to ineffective assistance of their appellate counsel. See Wogenstahl,
668 F.3d at 338. The Supreme Court of Ohio denied Scott’s application to re-open his appeal,
evidently finding that Scott had not made a threshold showing of ineffective assistance. See
State v. Scott, 811 N.E.2d 1148 (Ohio 2004) (table).

       Ultimately, Scott failed to present his course-of-conduct claim to the state courts, and he
is no longer able to seek relief there due to Ohio’s filing deadlines as well as its res judicata
rules. See Ohio Rev. Code § 2953.21(A)(2) (postconviction relief); Hanna v. Ishee, 694 F.3d
No. 11-4361            Scott v. Houk                                              Page 9

596, 613–14 (6th Cir. 2012) (res judicata). As a result, this claim is procedurally defaulted. See
Anderson, 460 F.3d at 806 (citing O’Sullivan v. Boerckel, 526 U.S. 838, 847–48 (1999), and
Engle v. Issac, 456 U.S. 107, 125 n.28 (1982)). Scott does not argue cause for the default or that
it resulted in prejudice. See Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir. 2006). The
district court properly denied relief on this claim.

C. Trial Court’s Failure to Merge Two Aggravating Specifications

       Scott also argues that the trial court improperly failed to merge two statutory aggravating
specifications, one relating to robbery, and the other to kidnapping, on the basis that no separate
animus existed to support the kidnapping offense. See Ohio Rev. Code § 2929.04(A)(7) (listing,
as aggravating specifications, that “[t]he offense was committed while the offender was
committing, attempting to commit, or fleeing immediately after committing or attempting to
commit kidnapping . . . [or] aggravated robbery”). Because Ohio law requires fact-finders in a
capital case to weigh mitigating circumstances against aggravating ones, see id. § 2929.03(D)(2),
Scott argues that the application of these two separate factors, rather than one, improperly tilted
the scales in favor of the death penalty.

       Scott presented a part of this claim on direct appeal, where he argued that there was
insufficient evidence to find that both the aggravating circumstances for kidnapping and for
robbery applied beyond a reasonable doubt. The Supreme Court of Ohio rejected this argument
on the merits, noting that Scott admitted to detaining Stoffer in the car for an hour and a half, far
longer than necessary to kill him and steal the vehicle, while ignoring Stoffer’s attempts to return
to his grandmother’s house. See Scott, 800 N.E.2d at 1140–41 (citing Jackson v. Virginia,
443 U.S. 307 (1979), as well as Ohio cases). The state court’s conclusion is therefore subject to
AEDPA deference, and Scott cannot obtain relief unless the state court ignored or unreasonably
applied “clearly established Federal law” as determined by Supreme Court precedent or made an
“unreasonable determination of the facts in light of the evidence” available to it. 28 U.S.C.
§ 2245(d).

       The claim Scott makes in his habeas petition is, however, not identical to the one he
pursued on direct appeal. Rather than rely solely on the sufficiency-of-the-evidence standard,
Scott also draws on two separate lines of federal cases pertaining to the narrowing function of
No. 11-4361             Scott v. Houk                                             Page 10

statutory aggravating circumstances and double jeopardy, which he posits all overlap in such a
manner as to require the merger of his aggravating specifications for robbery and kidnapping.
(Pet’r’s Br. at 58–66.) Because this argument differs from the one he presented on direct appeal,
it is not immediately clear whether the district court correctly determined that this claim had
been preserved for habeas review. See Wagner, 581 F.3d at 417. We need not consider this
question, though, because the district court properly denied relief on the merits. See Mahdi v.
Bagley, 522 F.3d 631, 635 (6th Cir. 2008); Hudson v. Jones, 351 F.3d 212, 215–16 (6th Cir.
2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)) (declining to consider merits
where the procedural default issue is “complicated” and “unnecessary to [the] disposition of the
case”).

          Scott’s argument cannot succeed because he does not cite any precedent from the United
States Supreme Court indicating that two or more aggravating factors must be merged when they
are based on the same underlying conduct. See Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir.
2005) (“Under AEDPA, if there is no clearly established Federal law, as determined by the
Supreme Court” that supports a petitioner’s argument, “the argument must fail.” (internal
quotation marks omitted)). To the extent that Scott claims there was insufficient evidence to
apply both factors, the Supreme Court of Ohio rejected this argument, and its conclusion was not
an unreasonable interpretation of the facts or the law. See Jackson, 443 U.S. at 324. The
remainder of Scott’s argument amounts to a request that we recognize a federal rule akin to
Ohio’s merger doctrine and apply it to the penalty phase of a capital trial. See State v. Jenkins,
473 N.E.2d 264, 292–97 (Ohio 1984). But AEDPA’s restrictive standard of review does not
permit us to fashion a new rule by extending existing precedent to an entirely new context. See
White v. Woodall, 134 S. Ct. 1697, 1706 (2014) (rejecting petitioner’s argument that because the
state court was constitutionally required to give an adverse-inference instruction at the guilt
phase of trial, it was also required to do so at the penalty phase). Scott cannot obtain relief on
this claim, and the district court correctly rejected it.

D. Ineffective Assistance of Trial Counsel

          Next, Scott argues that his trial counsel provided ineffective assistance during the penalty
phase of his trial in two ways: first, by mistakenly advising Scott that if he made an unsworn
No. 11-4361             Scott v. Houk                                            Page 11

statement to the jury, the prosecution could encourage the jury to draw negative inferences from
his decision not to testify under oath; and second, by failing to present certain mitigating
evidence regarding Scott’s childhood experiences with his adoptive family, with whom he lived
from the age of about ten until eighteen. The state courts considered both claims on the merits.
Although Scott did not present an argument regarding the unsworn statement on direct appeal,
the Supreme Court of Ohio nevertheless raised and rejected it sua sponte. See Scott, 800 N.E.2d
at 1145.      Scott did bring his claim regarding the mitigating evidence in post-conviction
proceedings, and it too was rejected. See Scott, 2006 WL 173171, at *4–5.

          AEDPA therefore applies to both claims of ineffective assistance. This is the case even
though the state court rejected both claims with only a cursory analysis of the applicable law.
See Harrington v. Richter, 131 S. Ct. 770, 784 (2011) (“Where a state court’s decision is
unaccompanied by an explanation,” § 2254(d) still applies, and “the habeas petitioner’s burden
still must be met by showing there was no reasonable basis for the state court to deny relief.”).

          Under the strictures of AEDPA, it is notably difficult to succeed on a claim of ineffective
assistance of counsel.      Scott must show not only that his trial counsel’s performance was
deficient, but also that it prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687
(1984).     An attorney’s performance is deficient if it falls “below an objective standard of
reasonableness.” Id. at 688. But “a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance,” and it is the
petitioner’s burden to show that this is not the case. Id. at 689. Moreover, to demonstrate
prejudice, the petitioner must show that there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694. This,
too, is a heavy burden, as counsel’s deficiencies must have been “so serious as to deprive the
defendant of a fair trial.” Id. at 687. Ultimately, a federal court cannot grant habeas relief on an
ineffective assistance claim simply because it disagrees with the state court’s analysis. “[T]he
question is not whether counsel’s actions were reasonable,” but “whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Richter, 131 S. Ct. at 788
(emphasis added).
No. 11-4361           Scott v. Houk                                             Page 12

       1. Erroneous Advice Regarding Unsworn Statement

       In Ohio, a defendant in a capital case may make a statement to the jury without taking an
oath or affirmation and without being subject to cross examination.              Ohio Rev. Code
§ 2929.03(D)(1). If a defendant opts to do so, the prosecutor may comment on the unsworn
statement, but only to remind jurors that the statement was not given under oath. See State v.
DePew, 528 N.E.2d 542, 554 (Ohio 1988).            Scott’s trial counsel either misunderstood or
miscommunicated this standard and erroneously warned Scott that, if he gave an unsworn
statement, the prosecutor could instruct jurors to draw an adverse inference from it. Thus, on
direct appeal, the Supreme Court of Ohio observed that Scott’s attorney had “misadvised” him.
Scott, 800 N.E.2d at 1145. We need not consider whether counsel’s conduct was deficient,
however, because Scott has failed to demonstrate prejudice.

       Scott argues that counsel’s poor advice deprived him of an opportunity to accept
responsibility for his acts and add evidence of mitigation. Although this amounts to an argument
that he was prejudiced, it is not persuasive for two key reasons. First, Scott conceded guilt at the
outset of trial, id. at 1144, and had therefore already acknowledged responsibility. Second, in the
penalty phase, Scott presented extensive mitigating evidence regarding his personal life,
including abuse he suffered during his early childhood. Id. at 1146–47. It is therefore unlikely
that Scott’s sentencers would have reached a different conclusion had they heard an unsworn
statement that merely reiterated what they already knew. Scott does not identify any particular
piece of mitigating information that he wished to share with the jurors and of which they were
not already aware.     Thus, in concluding that counsel’s mistaken advice did not meet the
Strickland standard, the state court could have reasonably determined that Scott could not show
prejudice. Richter, 131 S. Ct. at 788.

       2. Failure to Present Mitigating Evidence

       Scott also contends that his trial counsel was ineffective for failing to present certain
mitigating evidence regarding his experiences with his adoptive parents, Fred and Bettie Scott,
whom he claims were abusive. Although Scott concedes that his attorneys “did more than a
cursory investigation” to prepare for the penalty stage of his trial, he argues that they failed to
discover and develop evidence pertaining to the years he spent with the Scott family. (Pet’r’s Br.
No. 11-4361           Scott v. Houk                                             Page 13

at 38.) Scott claims that three witnesses were available to testify on this subject—two of whom
in fact did testify at the penalty phase, but on topics other than the Scott family, and one of
whom did not testify at all. In his petition for post-conviction relief from the state court, Scott
presented affidavits from these three individuals. Scott, 2006 WL 173171, at *4–5. The state
court conducted a de novo review of the affidavits and concluded that Scott’s trial counsel was
not ineffective under the Strickland standard for failing to put forward the evidence they
contained. Id.

       Although Strickland remains the overarching standard for ineffective-assistance claims,
the Supreme Court has further clarified what Strickland means in the particular context of
mitigation proceedings. See, e.g., Wiggins v. Smith, 539 U.S. 510 (2003); Williams, 529 U.S
392.   Defense attorneys in capital cases have a responsibility to investigate their client’s
background and to consider mitigating evidence. See Williams, 529 U.S. at 396. The scope of
the investigation required will vary from case to case, however, and a limited investigation is not
necessarily deficient so long as “reasonable professional judgments support” counsel’s decision
not to investigate further. Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 691); see
also Burger v. Kemp, 483 U.S. 776, 794–95 (1987).

       Wiggins v. Smith illustrates the sort of conduct that the Supreme Court considers
deficient. In that case, defense counsel neglected to investigate thoroughly their client’s personal
life and therefore failed to present evidence that he had suffered severe physical and sexual abuse
throughout his upbringing.       539 U.S. at 516–18.      Counsel did, however, conduct some
investigation and had reviewed a presentence report and social services records—both of which
should have alerted them to possible abuse and prompted them to dig deeper. Id. at 523–25. The
Supreme Court granted relief, rejecting the state court’s reasoning that counsel knew of
Wiggins’s “unfortunate childhood” but made a strategic choice to defend the case by arguing that
he was not wholly responsible for the murder. Id. at 518. Because “counsel chose to abandon
their investigation at an unreasonable juncture,” the reviewing court should not have deferred to
their judgment. Id. at 527–28. With this example in mind, we consider the evidence that was,
and was not, presented at Scott’s trial.
No. 11-4361             Scott v. Houk                                          Page 14

       Evidence presented at Scott’s penalty phase. Scott’s trial counsel presented thirteen
witnesses in total, ranging from family members to therapists and social workers. One of the
most important witnesses was Julia Mae Williams, Scott’s birth mother, who had custody of
Scott until he was about five years old. On the stand, Williams admitted to abusing Scott and to
suffering from drug and alcohol addictions during his early childhood. Her testimony was
corroborated by a social worker who worked with Scott and Williams at the time, and by Patrice
Turner, a friend and former neighbor who repeatedly witnessed Williams’s abusive behavior.
According to Turner, Williams consistently called Scott names, told him “she didn’t want him,”
struck him to the point of bruising him, and burned him with cigarettes.

       A social worker and mitigation specialist also testified as to Scott’s childhood as a whole,
based on his interviews with Scott, his relatives, and other people who knew him. Additionally,
two psychologists took the stand, one of whom treated Scott when he was about ten or eleven
years old, and the other of whom examined Scott shortly before trial and diagnosed him with
depression and alcohol and cannabis dependency.

       Lastly, Scott’s adoptive parents, Fred and Bettie Scott, described their decision to adopt
Scott, his transition into their household, and the behavioral problems he began to display as a
teenager. Both explained that they still loved Scott and continued to view him as part of their
family. Two of Scott’s siblings, who also had been adopted by the Scott family, offered similar
testimony.

       Overall, the mitigation evidence depicted the Scotts as caring and well-intentioned but
unusually strict, especially in regard to their religious views, which Scott never fully espoused.
The jury heard that Scott experienced difficulty integrating into the household but that he spent
several uneventful years there, until he began to distance himself from the Scott family around
the age of seventeen.

       Evidence not presented at Scott’s penalty phase. Notwithstanding the above testimony,
Scott argues that his trial counsel was ineffective for failing to introduce additional testimony
regarding his time living in the Scott household. In post-conviction proceedings, Scott submitted
three affidavits describing evidence that he believes counsel should have presented.
No. 11-4361           Scott v. Houk                                            Page 15

       The first affiant, Eric Calloway, lived in the Scott household as a foster child during an
undisclosed period. Nothing in Calloway’s affidavit indicates that he lived with the Scotts at the
same time as the petitioner, though, or that Calloway had any first-hand information about the
petitioner’s experience with them. Still, Calloway stated that during his time with the Scotts,
they required their foster children to do difficult household chores that were never assigned to
their biological children. Calloway further claimed that the Scotts beat their foster children with
machine belts when they did not complete chores satisfactorily, and that they forced him to
participate in religious activities and prohibited him from playing with children who were not
Jehovah’s Witnesses, as they were.

       The second affiant, Patrice Turner, had testified at Scott’s penalty phase regarding his
early childhood with his biological mother. Her affidavit, however, included information that
she had not presented at trial. Turner stated that, like Scott, she had lived with Katherine
Wilson—Scott’s first foster mother, who cared for Scott from ages five to ten—but that, around
age twelve, she was moved from Wilson’s home to the Scotts’ home. She described the Scott
household as “so bad that [she] ran away.” According to Turner, the Scotts’ foster children were
required to cook meals and clean the house, while their other children were not, and were forced
to attend church services. Turner further opined that “the Scotts did not offer a warm and loving
home” and may have provided foster care “for the money.” Lastly, Turner noted that she had
provided this information to Scott’s trial counsel but that they did not use most of it. It seems
that Turner’s time in the Scott household preceded the petitioner’s by several years. See Scott,
2006 WL 173171, at *5 (noting that the petitioner “was not placed in the Scott home until well
after Ms. Turner had become an adult and had gotten married”).

       The third affiant, Lisa Hall, had also testified at Scott’s penalty phase, likewise on
different subjects than her affidavit addressed.    Hall too was a former foster child.       Hall
explained that she had lived with Scott in the home of Katherine Wilson, Scott’s first foster
mother, and continued to have some contact with Scott after he was moved to the Scotts’ home.
According to Hall, Scott did not like his new adoptive parents and the “different environment”
they provided. Hall’s affidavit did not comment on any abuse in the Scott household, but it did
No. 11-4361            Scott v. Houk                                            Page 16

state that the Scotts would not celebrate birthdays or other holidays due to their religion, and that
they forced Scott to proselytize with them.

       Ineffective-assistance analysis. Scott has not shown that he is entitled to relief under the
Strickland standard.    Defense counsel presented thirteen mitigation witnesses with varying
credentials and points of view, who collectively fashioned a detailed account of Scott’s terribly
difficult childhood and shed light on his transformation into a troubled adult. On these facts, we
cannot conclude that the state court unreasonably denied Scott’s claim that trial counsel was
deficient. Although the opinion rejecting this claim did not thoroughly explain the court’s
reasoning, see Scott, 2006 WL 173171, at *4–6, the court could have reasonably concluded
either that counsel’s performance was adequate or that Scott could not show prejudice, or both.
See Richter, 131 S. Ct. at 784.

       First, as the above summary demonstrates, Scott’s counsel conducted a reasonably
thorough investigation—one that, at the very least, complied with the requirements of Wiggins
and Strickland. Scott does not identify any important source of information that counsel failed to
consult. Of the three individuals who submitted affidavits in support of Scott’s post-conviction
claims, only one, Eric Calloway, had not participated in Scott’s mitigation proceedings.
Calloway’s affidavit, however, is of only limited relevance, given that he did not identify when
exactly he lived with the Scott family, and he offered nothing to suggest that his time there
overlapped with Scott’s.

       The state court also could have concluded that counsel’s decision not to offer further
testimony about the Scott household was sound trial strategy. As Patrice Turner stated in her
affidavit, Scott’s attorneys knew that Turner’s experience with the Scott family was less than
idyllic, but they did not question Turner about this on the stand. Scott’s attorneys may well have
chosen to depict the Scotts as kind and loving because they were willing to testify that they still
cared for Scott and thought of him as their son—thereby humanizing him. This theory is
supported by counsel’s closing statement, which argued that Scott was “irreparably damaged” by
his mother’s abuse, and that even his adoptive family, “these good people[,] couldn’t undo what
had been done.”
No. 11-4361           Scott v. Houk                                             Page 17

       Moreover, Scott has not demonstrated that any of defense counsel’s alleged oversights
were prejudicial to his defense. While Scott argues that his attorneys failed to present evidence
that the Scott family mistreated him, they did present extensive evidence of his biological
mother’s abusive behavior, which was by all accounts far more severe than anything described in
Calloway’s or Turner’s affidavits regarding the Scott family. Several mitigation witnesses
described the horrific abuse that Scott suffered at the hands of his mother during his first four
years of life. Pictures were presented, documenting his physical injuries. And still this evidence
did not convince the jury to choose a life sentence.

       Scott argues that, by depicting his adoptive parents as kind, loving people, Scott’s trial
counsel in fact supported the prosecution’s penalty-phase theory—that Scott had a chance to
reform himself but chose not to take it, and was therefore culpable for his actions. But, even
accepting this argument as true, we cannot grant relief unless there are no reasonable grounds
upon which the state court could have denied Scott’s ineffective-assistance claim. Richter,
131 S. Ct. at 788. It would not be unreasonable to conclude that evidence of harsh or even
abusive conditions in the Scott household would have failed to sway a jury that did not find
Scott’s deplorable childhood—plagued by physical brutality and emotional abuse—sufficiently
mitigating to spare him the death penalty. Because the state court’s denial of Scott’s claim was
not unreasonable, this court must deny relief.

E. Constitutional Challenge to Lethal Injection

       As his final claim for relief, Scott argues that death by lethal injection is cruel and
unusual in violation of the Eighth Amendment and violates his Fourteenth Amendment right to
due process. Scott’s petition alleges that lethal injection “inflicts torturous, gratuitous and
inhumane pain, suffering and anguish upon the person executed.” He concedes that the United
States Supreme Court has upheld the use of lethal injection but argues that in Baze v. Rees,
553 U.S. 35 (2008), the Court acknowledged that “the implementation of the method of
execution could implicate the Eighth Amendment.” (Pet’r’s Br. at 66 (emphasis added).) The
district court concluded that this claim was not procedurally defaulted, addressed it on the merits,
No. 11-4361                Scott v. Houk                                                         Page 18

and denied relief.2 On appeal, Scott does not present a substantive argument about lethal
injection, but rather requests that we remand this claim for further development in the district
court.

         As Scott’s counsel acknowledged at oral argument, Scott is a party in ongoing litigation,
brought under § 1983, to challenge the constitutionality of Ohio’s execution procedures. See
Docket, In re Ohio Execution Protocol Litig., No. 2:11-CV-01016-GLF-MRA (S.D. Ohio)
(Frost, J.). Counsel argued, however, that the relief Scott seeks from this court could not be
obtained through the protocol litigation, because Scott seeks to challenge the validity of his
sentence—an argument confined to habeas—and not merely the conditions of his confinement—
an argument cognizable under § 1983. See Adams v. Bradshaw, 644 F.3d 481, 482–83 (6th Cir.
2011) (citing Hill v. McDonough, 547 US. 573 (2006), and Nelson v. Campbell, 541 U.S. 637
(2004), and distinguishing between lethal-injection claims brought under § 2254 and § 1983).
Scott’s petition supports this characterization of his claim. It asserts that because lethal injection
cannot be administered in a constitutional manner, his “death sentence must be declared void.”
(Pet. for Writ, R. 12, PageID 125.)

         Although we understand Scott’s point—that the relief he seeks is available only through a
federal habeas claim—we decline to grant Scott’s request for a remand. As the law currently
stands, there is no merit to Scott’s assertion that his sentence is void because lethal injection is
unconstitutional. Simply put, lethal injection does not violate the Constitution per se, and Scott


         2
           Scott first raised this claim in his petition for post-conviction relief; he did not bring it on direct appeal.
As a result, the trial court handling his post-conviction petition rejected it as res judicata and declined to reach the
merits. The Ohio Court of Appeals affirmed. See Scott, 2006 WL 173171, at *6.
          Scott again raised this claim in his federal habeas petition. He then moved the district court to certify to the
Supreme Court of Ohio “the question of whether there exi[s]ts a postconviction forum to litigate the issue of Ohio’s
lethal injection protocol.” The federal court granted Scott’s motion and certified the question. The Supreme Court
of Ohio answered that “[t]here is no state postconviction relief or other state-law mode of action to litigate the issue
of whether a specific lethal injection protocol is constitutional under Baze v. Rees . . . or under Ohio law.” Scott v.
Houk, 939 N.E.2d 835, 836 (Ohio 2010). A concurrence further noted that this issue could be brought in a federal
action under § 1983. Id. at 838 (Lundburg Stratton, J., concurring).
          In light of the Supreme Court of Ohio’s own admission that Scott could not pursue this claim in any state
forum, we do not consider it procedurally defaulted due to Scott’s failure to raise it on direct appeal. Any attempt to
do so would clearly have been futile. See Turner v. Bagley, 401 F.3d 718, 724 (6th Cir. 2005) (“[A] habeas court
should excuse exhaustion where further action in state court would be an exercise in futility.” (internal quotation
marks omitted)); see also 28 U.S.C. § 2254(b)(1) (writ can be granted where “there is an absence of available State
corrective process”). Moreover, AEDPA deference does not apply because the state court did not consider this
claim on the merits. See Scott, 2006 WL 173171, at *6 (rejecting the claim on procedural grounds).
No. 11-4361           Scott v. Houk                                            Page 19

acknowledges as much in his brief. See Baze v. Rees, 553 U.S. 35; Cooey v. Strickland, 589 F.3d
210 (6th Cir. 2009). Therefore, in order to obtain relief from his sentence, Scott would first have
to gather facts showing that Ohio is unable to administer lethal injection in a constitutionally
permissible manner. And this is precisely the type of discovery that Scott can pursue in his
§ 1983 litigation.

       We are assured that Scott’s death sentence will not be carried out if, and so long as, a
federal court determines that Ohio is incapable of doing so in accordance with the law. The
district court properly denied this claim.

                                       III. CONCLUSION

       Whatever one may think of Scott’s actions, the state courts’ treatment of his legal claims,
and his death sentence, this court cannot provide the relief Scott seeks. In reviewing the habeas
petition of a state prisoner, our role is not to second-guess or supplant the state courts that
preceded us. We therefore affirm the district court’s denial of relief.
