                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                  File Name: 14a0212p.06

                UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


 GREGORY ESPARZA,                                    ┐
                            Petitioner-Appellant,    │
                                                     │
                                                     │       No. 13-3358
       v.                                            │
                                                      >
                                                     │
 ED SHELDON, Warden,                                 │
                           Respondent-Appellee.      │
                                                     ┘
                      Appeal from the United States District Court
                      for the Northern District of Ohio at Toledo.
               No. 3:96-cv-07434—Christopher A. Boyko, District Judge.
                                 Argued: July 30, 2014
                          Decided and Filed: August 28, 2014

              Before: SILER, SUTTON and KETHLEDGE, Circuit Judges.

                                  _________________

                                      COUNSEL

ARGUED: Lori B. Riga, OFFICE OF THE FEDERAL PUBLIC DEFENDER/CAPITAL
HABEAS UNIT, Cleveland, Ohio, for Appellant. Ashon L. McKenzie, OFFICE OF THE OHIO
ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Lori B. Riga, Alan C.
Rossman, Vicki Ruth Adams Werneke, OFFICE OF THE FEDERAL PUBLIC
DEFENDER/CAPITAL HABEAS UNIT, Cleveland, Ohio, Jeffry F. Kelleher, JEFFRY F.
KELLEHER & ASSOCIATES, CO., Cleveland, Ohio, for Appellant. Ashon L. McKenzie,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.




                                            1
No. 13-3358             Esparza v. Sheldon                                      Page 2

                                      _________________

                                           OPINION
                                      _________________

       SUTTON, Circuit Judge.        Three decades ago, Gregory Esparza murdered Melanie
Gerschultz for just over a hundred dollars in cash. An Ohio jury sentenced him to death. After
the Ohio state courts refused to alter his sentence, Esparza unsuccessfully sought habeas relief in
federal district court. Because the Ohio courts reasonably rejected his claims, we affirm.

                                                I.

       On February 12, 1983, Melanie Gerschultz and James Barailloux were working the night
shift at a Toledo restaurant when Gregory Esparza walked inside. Wearing a ski mask and
brandishing a gun, he ordered someone to open the register. Melanie complied, but James
escaped through the back door and found help. When he returned, Esparza had fled, $110 was
missing from the register’s cash drawer, and Melanie lay dying on the floor from a bullet wound
in her neck.

       In October 1983, an Ohio grand jury indicted Esparza on one count of aggravated
robbery and one count of aggravated murder with a capital specification.           The trial court
appointed Thomas Stebbins and Norman Zemmelman as Esparza’s lawyers and scheduled trial
for January 23, 1984. When his lawyers asked for more time to interview potential witnesses,
the court delayed the trial until March 5. And when both of them withdrew—Zemmelman citing
a conflict of interest, Stebbins a dearth of experience—the court again delayed the trial until
replacement counsel could familiarize themselves with the case.         Jury selection eventually
started on April 30, 1984, and opening arguments began four days later. After hearing that
Esparza had confessed to a fellow inmate and to one of his siblings, among other evidence, the
jury convicted on both counts.

       In connection with the penalty phase of the trial, Esparza’s lawyers moved for an
“independent expert at state expense.” J.A. 270. They invoked two state statutes: Ohio Rev.
Code § 2929.024, which provides independent expert services to indigent defendants, and Ohio
Rev. Code § 2929.03(D)(1), which provides court-appointed expert services to capital
No. 13-3358              Esparza v. Sheldon                                    Page 3

defendants. The court denied the first request but granted the second, appointing the Court
Diagnostic and Treatment Center. Upon reading the Center’s report and finding it wanting,
Esparza’s lawyers asked the court to undo their § 2929.03 request, to keep its results from the
jury, to appoint an independent expert, and to grant a continuance of unspecified duration. The
court granted a one-day continuance to permit argument over the motion but ultimately denied
all four requests.

        During the penalty phase, Esparza’s lawyers focused the jury’s attention on his troubled
youth. Esparza’s grandfather, Richard DeLa Rosa, testified that Esparza’s father Frank deserted
his mother Beatrice and “all the[ir eight] kids” when Esparza was young. J.A. 7450. Beatrice
started “going out again” shortly afterwards, often abandoning her children and leaving them in
her ten-year-old daughter’s care. Id. at 7453. The family “didn’t have no food,” “money,” or
“shoes to go to school,” and the children were sometimes sent home “because their hair was full
of lice.” Id. at 7450. Eventually, the police “load[ed] the whole bunch” into a “paddy wagon”
and placed them in a Children’s Home. Id. at 7454. DeLa Rosa took in most of Beatrice’s
children, but he left Esparza behind.

        Esparza’s aunt, Virginia Gonzales, testified that Beatrice died when Esparza was young.
She reported that Frank would whip Esparza with a wire hanger and would force his children to
sit outside in a bitterly cold hallway when he wanted to be alone.

        Esparza’s brother Peter testified that, as children, the two of them would steal food from
a corner store because “[t]here wasn’t nothing to eat in the house.” Id. at 7473. Frank came
home drunk “all the time” and “smack[ed] [the children] around.” Id. at 7474. Making matters
worse, Esparza “never really got too much attention with the family,” as evinced by the fact that
DeLa Rosa “left him in the Children’s Home” but took care of the others. Id. at 7477. Esparza’s
grandmother doted on Peter but ignored Esparza himself. Bounced from foster home to foster
home, Esparza had trouble keeping in touch with his relatives.

        Finally, Ralph Grennay, one of Esparza’s foster fathers, testified that he “enjoyed”
Esparza’s company and that Esparza “got along fine” with his family. Id. at 7494. Under his
tutelage, Esparza improved his grades, joined the Boy Scouts and a Youth for Christ church
group, and played middle school football. After two years, however, Esparza’s counselors,
No. 13-3358              Esparza v. Sheldon                                      Page 4

psychiatrists and psychologists recommended—against Grennay’s wishes—that Esparza begin
visiting his blood relatives more frequently. Id. at 7505. Grennay feared, with some foresight,
that removing Esparza would “take away everything we tried to work with him for.” Id. at 7510.

       To bolster their mitigation theory, Esparza’s lawyers also introduced more than two
hundred pages of records depicting his childhood in horrific terms. This “Family File” contained
psychological evaluations, his juvenile record and summaries of his troubled social history. One
entry reported that, when Esparza was two or three, “one of his brothers poured Drano on the
other children and they were all burned over their bodies.” R. 193-1 at 4. When he was five, he
“got his hand caught in a car” and was “dragged by his knees.” Id. A second entry set forth the
verbal and physical abuse, financial difficulties and pending divorce action that culminated in a
“[c]omplete family breakdown . . . in the early 1970’s.” R. 185-1 at 21. A third entry explained
why Esparza ended up in the Grennays’ care.            On a routine home visit, a social worker
discovered Esparza bleeding from the nose; his step-mother had beat him after an argument. A
fourth entry connected Esparza’s “deep-seated feelings of rejection” to his pattern of “delinquent
activity,” which it described as a “means of achieving peer acceptance.” R. 193-1 at 33.

       Despite his lawyers’ efforts, the jury sentenced Esparza to death, and the trial court
accepted its recommendation. The Ohio Court of Appeals and the Ohio Supreme Court affirmed
that sentence on direct appeal. When his attempts to secure state post-conviction relief failed,
Esparza filed a habeas petition in federal district court in 1996.

       The district court found four of Esparza’s fifty-six claims to be well-taken: (1) a defective
indictment, (2) ineffective assistance of counsel at the penalty phase, (3) an improper denial of a
continuance request, and (4) cumulative error. We affirmed on the first ground without reaching
the others. Esparza v. Mitchell, 310 F.3d 414, 422 (6th Cir. 2002). But the Supreme Court
reversed the decision. Mitchell v. Esparza, 540 U.S. 12 (2003) (per curiam). On remand, the
district court reconsidered and then rejected Esparza’s remaining grounds for relief, see Esparza
v. Anderson, 2012 WL 2872149 (N.D. Ohio July 12, 2012), amended by 2013 WL 774155 (N.D.
Ohio Feb. 27, 2013), and granted him a certificate of appealability on the ineffective-assistance
and continuance claims, id. at *54.
No. 13-3358              Esparza v. Sheldon                                       Page 5

                                                 II.

       Two sets of rules govern Esparza’s claim that his lawyers provided constitutionally
ineffective assistance of counsel at the penalty phase of his trial. The first: He must establish the
prerequisites of an ineffective-assistance claim—that his lawyers provided deficient counsel and
that this defective representation prejudiced the outcome of the penalty-phase proceedings. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). The second: He must surmount the
Antiterrorism and Effective Death Penalty Act (AEDPA), which bars us from overriding a state
court’s ruling on the merits unless it unreasonably applied Supreme Court precedent. 28 U.S.C.
§ 2254(d). Through it all, he must establish that the state courts unreasonably departed from
Supreme Court precedent based on the record they had before them. Cullen v. Pinholster, 131 S.
Ct. 1388, 1398 (2011). New evidence developed during federal habeas proceedings, generally
speaking, is off limits. See Moore v. Mitchell, 708 F.3d 760, 784 & n.11 (6th Cir. 2013).
Esparza cannot meet these requirements.

       Reduced to its essence, Esparza’s theory is that his lawyers developed too much bad
evidence at the penalty phase of his trial and not enough good. We need not decide whether
“there is any reasonable argument that [Esparza’s] counsel satisfied Strickland’s deferential
standard” of performance, Harrington v. Richter, 131 S. Ct. 770, 788 (2011), or indeed whether
Esparza has accurately described his lawyers’ conduct. The Ohio courts rejected all of his
ineffective-assistance arguments for lack of prejudice.        Because their decisions were not
unreasonable, we must do the same.

                                                 A.

       Esparza blames trial counsel for not preparing for the penalty phase until a “mere five
days before [it] actually began.” Appellant Br. at 46. True or not, this allegation did not lead to
an investigation that produced little or no mitigation evidence. E.g., Wiggins v. Smith, 539 U.S.
510, 515–16 (2003). His lawyers put on four witnesses who described Esparza’s youth in
graphic detail. They also introduced more than two hundred pages of records that reinforced this
theory of leniency. On direct appeal, the Ohio Supreme Court described those records as
Esparza’s “most persuasive argument against . . . the death penalty.”            State v. Esparza,
529 N.E.2d 192, 199 (Ohio 1988). The trial judge’s sentencing opinion underlines the force of
No. 13-3358              Esparza v. Sheldon                                      Page 6

counsel’s presentation. It highlighted the “lamentable conditions [Esparza] endured throughout
his babyhood, childhood and adolescence” and referenced specific incidents discussed by
defense witnesses and the Family File alike. J.A. 180. “This court has encountered cases of
more miserable upbringing,” it continued, “but, praise God, not often.” Id. at 181.

       The existence of “some mitigation evidence,” true enough, does not “foreclose an inquiry
into whether a facially deficient . . . investigation might have prejudiced the defendant.” Sears v.
Upton, 130 S. Ct. 3259, 3266 (2010). But there is no prejudice under Strickland when a
thorough investigation “would barely have altered the sentencing profile presented” to the jury.
Id. Esparza can prevail only by pointing to new evidence that “differ[s] in a substantial way—in
strength and subject matter—from the evidence actually presented at sentencing.”            Hill v.
Mitchell, 400 F.3d 308, 319 (6th Cir. 2005). That simply is not the case here.

       Esparza’s new evidence consists of eighteen affidavits submitted to the Ohio Court of
Common Pleas during state post-conviction review. The first fourteen were prepared by his
relatives and friends. From these he derives twenty-eight facts allegedly never presented to the
jury. In truth, his counsel did present many of these facts to the jury, including Fact 2 (“There
was never any food in the house for the Esparza children”) and Facts 3 and 4 (Frank drank
heavily and abused his family). And the others embellish themes already found in the trial-court
record. Consider, for example, Fact 1 (“There were rats and cockroaches in the house [where]
the Esparza children were raised”), Facts 15, 16, 17 and 18 (Esparza’s grandparents hated him
and refused to raise him in their home), and Fact 21 (Frank would beat Esparza “in the area of
his genitals”). None of the facts, whether these or the others, sufficiently differs in degree or
kind to meet Strickland’s high bar. The same holds true for the facts set forth in the three
affidavits from witnesses counsel did call: his brother Peter, his aunt Virginia, and his foster
father Ralph.

       The last affidavit, prepared by independent expert Dr. Julia Hawgood, does not introduce
new facts at all. It instead explains “the connection between [Esparza’s] childhood experiences”
and his crime, an explanation Esparza argues his lawyers never gave. Appellant Br. at 56–57.
The record contradicts this claim twice over.        Lead counsel Keithley Sparrow made this
connection the centerpiece of his closing argument. Sparrow reiterated Esparza’s “chaotic and
No. 13-3358              Esparza v. Sheldon                                       Page 7

disruptive childhood, the fact that he was constantly moved from place to place, the removal
from his family when he was 7 years old, the death of his mother when he was 8,” and the abuse
inflicted on him by his father. R. 189-1 at 49. He asked the jury to “[r]ead . . . th[e] family file.
Read about Greg Esparza. . . . There is a lot of information for you.” Id. at 50. And he
explicitly refracted Esparza’s actions through the lens of “what happened to him at age 7,” noting
that Esparza “didn’t have any control over what was happening to him, and he was removed
from a home which, while it wasn’t a nurturing home, was a family setting . . . . [W]hen you
weigh all of those factors, when you weigh his life, you will determine that mercy requires . . .
that your decision be a recommendation of life, not death.” Id. at 50–51.

       The record echoes Hawgood’s statements, making it difficult to conclude that this expert
testimony could have made a difference. Hawgood observed that Esparza’s experiences “formed
him into [a] person . . . who covered his vulnerability and sense of inadequacy with a tough,
hard-shelled, often callous ‘machismo’” characteristic of “Hispanic . . . street subculture[].” J.A.
2180–81. So did the Family File. See R. 193-1 at 22 (“[Esparza] portrays himself as a ‘tuff guy’
who is not going to be pushed around. Perhaps his defiant resentment toward authority . . . has
to do with the fact that he has been placed in so many different living conditions in the last five
years.”); R. 185-1 at 11 (“His behavior and attitude can be directly attributed to his father and the
[M]exican concept of ‘machismo.’”). Hawgood observed that Esparza lacked positive role
models and “long-term, consistent structure and guidance,” which intensified his “rebelliousness,
his anger, and his hardshell survival tactics.” J.A. 2179. So did the Family File. See R. 193-1 at
13 (“[Esparza] is in bad need of a very structured, stable environment . . . to learn a better way of
. . . ventilating aggression more appropriately.”). Hawgood observed that Esparza’s behavior
took a turn for the worse when he left the Grennays’ household, in whose care he had
experienced “relative success interpersonally” and “academic[ally].” J.A. 2180. So did the
Family File. See R. 185-1 at 8 (“[Esparza] seems to be adjusting quite well in this well
organized loving family. . . . Hopefully it will continue.”). And so indeed did Ralph Grennay’s
testimony at trial. See J.A. 7509–10. Because Hawgood’s affidavit added little to the trial court
record that was not already there, any omission of this kind of argument and evidence had no
cognizable prejudicial effect.
No. 13-3358             Esparza v. Sheldon                                     Page 8

       Precedent buttresses this conclusion. This case is not like Porter v. McCollum, 558 U.S.
30, 33 (2009), where counsel’s mitigation theory made no reference to Porter’s “abusive
childhood, his heroic military service . . . , his long-term substance abuse, and his impaired
mental health and mental capacity.” Nor is it like Sears, where counsel failed to uncover
evidence of physical abuse and “significant frontal lobe abnormalities” in the course of his
investigation. 130 S. Ct. at 3262. Nor, contrary to Esparza’s claim at oral argument, is it like
Glenn v. Tate, 71 F.3d 1204 (6th Cir. 1995), a pre-AEDPA case where counsel failed to uncover
evidence of organic brain damage.      But it is like Strickland.    There, counsel focused on
Washington’s “extreme emotional distress” and his decision to “accept[] . . . responsibility for
his crimes.” 466 U.S. at 699. Subsequent investigation revealed merely that “numerous people”
thought Washington “was generally a good person,” and that “a psychiatrist and a psychologist
believed he was under considerable emotional stress.” Id. at 700. The Supreme Court turned
Washington’s prejudice argument aside.

       Esparza’s rejoinders to this conclusion fall short. Esparza argues that, had his lawyers
investigated more thoroughly, they would not have put his grandfather—who allegedly despised
him—on the stand. Appellant Br. at 49. But he does not clothe this bare assertion of prejudice
with evidence from the record. Nor do we see how he could, given that the new affidavits
confirm DeLa Rosa’s testimony.

       Esparza faults his lawyers for failing to retain an independent psychologist, forcing him
to rely on the Center’s experts instead. See Reply Br. at 22–23. But Esparza’s lawyers correctly
invoked Ohio’s indigent-expert statute at trial. See Appellant Br. at 7, 12–13. Their only
mistake was to treat the indigent-expert statute as “intertwined” with Ohio’s capital-expert
statute (Ohio Rev. Code § 2929.03), which led them to believe that they were entitled to an
independent (and not a court-appointed) expert under the latter’s terms. Esparza, 529 N.E.2d at
194. Esparza does not explain how that mistake could have affected the trial court’s decision to
deny his request under the former. Nor can he argue that, in denying his request, the trial court
acted unreasonably. See Miller v. Colson, 694 F.3d 691, 699 (6th Cir. 2012) (holding that the
right to an independent psychiatrist is not a “clearly established federal law” under AEDPA).
No. 13-3358              Esparza v. Sheldon                                       Page 9

       Esparza adds that the Ohio Court of Appeals never mentioned Hawgood’s affidavit on
post-conviction review. Maybe so. But this fact does him no good. AEDPA deference applies
even when “the state court’s reasoning is flawed or abbreviated.” Holder v. Palmer, 588 F.3d
328, 341 (6th Cir. 2009).

       Because Esparza’s new evidence does not differ in “strength” or “subject matter” from
the evidence he submitted at trial, we must defer to the Ohio courts’ reasonable refusal to find
prejudice here. See Hill, 400 F.3d at 319.

                                                 B.

       Esparza separately criticizes trial counsel for seeking a psychological evaluation under
Ohio’s capital-expert statute. See Ohio Rev. Code § 2929.03(D)(1). Court-appointed experts
from the Court Diagnostic and Treatment Center conducted the examination, and the statute
required Esparza’s lawyers to disclose its results to the jury. After reading the report, his lawyers
tried—unsuccessfully—to take back their request. See R. 188-1 at 4–20. As Esparza sees it,
“The prejudice that flowed from the[] report[] is self-evident.” Appellant Br. at 62. The Ohio
courts, however, reasonably held otherwise.

       We begin by observing that the Center’s report reinforces the mitigation theory his
lawyers presented at trial. It emphasizes Esparza’s “extremely chaotic and disruptive childhood”
and supplies anecdotes that confirm his witnesses’ testimony and the information in his Family
File. See R. 186-1 at 67–68, 71. In many respects, then, the report bolsters his case.

       The report, it is true, also contains additional potentially damaging information. The
Center’s psychologist diagnosed Esparza with antisocial personality disorder, a personality type
predisposed to “drug and alcohol abuse,” “poor judgment,” and “encounters with the law.” R.
186-1 at 70. She added that “Esparza was the principal offender” in the “present offense.” Id. at
71. But Esparza’s attempts to show that this other information made a difference in his sentence
are not convincing.

       First, Esparza attacks the Center’s report for discussing all seven of Ohio’s statutory
mitigating factors, see Ohio Rev. Code § 2929.04(B), including ones his trial attorneys did not
raise. In effect, the report converted the absence of mitigation, he says, into the presence of
No. 13-3358              Esparza v. Sheldon                                     Page 10

aggravation in contravention of Ohio law. See Appellant Br. at 12. But the trial judge cured any
potential prejudice by instructing the jury to consider only one aggravating circumstance: the fact
that Esparza “committed the offense of Aggravated Murder while committing Aggravated
Robbery.” R. 189-1 at 81–82. Esparza offers no bases for overcoming the presumption that
juries “follow their instructions.” Richardson v. Marsh, 481 U.S. 200, 211 (1987).

        Second, Esparza argues that an antisocial personality disorder diagnosis is categorically
prejudicial. See Reply Br. at 27–30. That is not the case. Ohio state law, for one, recognizes the
disorder as a statutory mitigating factor. See State v. Seiber, 564 N.E.2d 408, 416 (Ohio 1990).
And, for another, we have held—under AEDPA’s deferential standard, no less—that the failure
to introduce evidence of a similar disorder caused prejudice. Williams v. Anderson, 460 F.3d
789, 805 (6th Cir. 2006). Although Esparza correctly observes that the diagnosis can harm as
much as it helps, its double-edged nature cuts against the categorical rule he espouses.

        Third, Esparza advances the more modest argument that the antisocial personality
disorder diagnosis prejudiced him in this instance, pointing to the featured role the State gave it
in its closing statement. See Appellant Br. at 58. But the Family File, submitted by his lawyers,
is replete with references to the disorder, its symptoms and Esparza’s lifelong pattern of
antisocial behavior. See R. 193-1 at 7, 8, 13, 20. It is difficult to see how the diagnosis could
have prejudiced Esparza when his own lawyers placed most of its constituent parts before the
jury.

        Even if the Family File had said nothing at all on this score, Esparza would face another
problem. At trial, his lawyers undercut the report’s credibility by impeaching the psychologists
responsible for it. The last defense witness, indeed, was Dr. William Seman, who supervised the
diagnosis. Through him they established that the Center had conducted only two evaluations
before Esparza’s, R. 188-1 at 102; that Esparza’s evaluation “deviate[d] . . . from the procedure”
the Center typically would have used, id. at 103; that the diagnosis took only two days from start
to finish, id. at 104, 110; and that antisocial personality disorder could “often” be treated in the
right setting and might even “spontaneous[ly]” enter “remission,” id. at 115. Dr. Charlene
Cassel, the diagnosing psychologist and the prosecution’s sole mitigation witness, admitted
much the same on cross-examination. R. 189-1 at 33–34, 38–39. Hawgood’s affidavit relies on
No. 13-3358              Esparza v. Sheldon                                   Page 11

these very admissions to question whether Esparza suffered from antisocial personality disorder
to begin with. J.A. 2184–85. So do Esparza’s own briefs. See Appellant Br. at 46–48; Reply
Br. at 25–27.

       Our precedent forecloses Esparza’s response: that his lawyers’ decision to introduce the
Family File was ineffective assistance too. See Appellant Br. at 75. As the Ohio courts
recognized, the File contained his best arguments for mercy. Without it, he would have been
forced to rely on his witnesses’ testimony alone. Having rejected a prejudice claim on nearly
identical facts before, see Keith v. Mitchell, 455 F.3d 662, 671–72 (6th Cir. 2006), we refuse
Esparza’s invitation to reconsider that result.

       It likewise is no answer to suggest that counsel could have impeached the diagnosis more
effectively by calling an expert such as Hawgood. Appellant Br. at 63. This is precisely the sort
of tactical judgment Strickland counsels against second-guessing, see 466 U.S. at 689, as the
Ohio Supreme Court has repeatedly held. E.g., State v. Thompson, 514 N.E.2d 407, 417 (Ohio
1987) (holding that a lawyer’s decision to rely on cross-examination in lieu of an expert is not
ineffective assistance). The Ohio courts reasonably concluded that Esparza’s lawyers neutralized
any prejudice the diagnosis might have caused. See Esparza, 529 N.E.2d at 196.

       Finally, Esparza proposes that, had the Center had time to review his full file, it would
never have diagnosed him with antisocial personality disorder in the first place. Maybe so. But
no cognizable prejudice occurred, or at least the state courts could have reasonably so concluded.
We have already explained why such a diagnosis is not categorically prejudicial. Indeed, there
often will be cases where its mitigation value exceeds its harmful effects. This case illustrates
the point: Unlike Hawgood’s explanation, an antisocial personality disorder diagnosis potentially
helps diminish Esparza’s moral responsibility for his actions. More, even if the diagnosis was
prejudicial, there is no guarantee that it would have stayed out of the trial. For any attempt by
defense counsel to introduce psychological evidence would have opened the door to a rebuttal
expert from the State.     Pinholster, 131 S. Ct. at 1410.    In sum, the Ohio courts did not
unreasonably apply established Supreme Court precedent when they determined that Esparza
was not prejudiced by the Center’s report.
No. 13-3358              Esparza v. Sheldon                                     Page 12

                                                 C.

       Esparza blames trial counsel for requesting a presentence investigation using the same
statute—and under the same terms—as they requested the Center’s report. See Ohio Rev. Code
§ 2929.03(D)(1). That investigation set forth his extensive criminal record (juvenile and adult),
R. 186-1 at 62–63, his addiction to painkillers, id. at 64, and his history of alcohol abuse, id.
And it described him as “at least a moderate physical threat to the community,” id. at 65, because
his criminal record “ha[d] escalated rapidly both in frequency and [aggressiveness],” id.
However, Esparza was not prejudiced by the investigation because the Family File had already
put each of these factors on full display.

                                                 III.

       Esparza’s denial-of-continuance claim is governed by standards that are well established
and difficult to meet. He must show that the trial court’s decision embodied an “unreasoning and
arbitrary insistence upon expeditiousness in the face of a justifiable request for delay.” Morris v.
Slappy, 461 U.S. 1, 11–12 (1983) (citations omitted). And he must show that the decision
“resulted in actual prejudice to his defense.” Franklin v. Bradshaw, 695 F.3d 439, 453 (6th Cir.
2012) (citations omitted). To prove “actual prejudice,” he must prove that a continuance “would
have made relevant witnesses available or added something to the defense.” Id. (citations
omitted).

       Esparza argues that the trial judge’s denial of his continuance request made it impossible
for his lawyers to prepare an adequate penalty-phase theory. We have already explained why
none of Esparza’s eighteen affidavits added anything meaningful to his defense, and why neither
the Center’s report nor the presentence investigation subtracted anything from his defense.
Because Esparza has failed to show prejudice, we hold that the Ohio courts reasonably rejected
his denial-of-continuance claim as well.

                                             *    *      *
       Today’s decision is not necessarily the end of the road for Esparza. Among other things,
he has the right to file a clemency application with the governor to reduce his sentence from
No. 13-3358             Esparza v. Sheldon                                Page 13

death to life in prison.   In light of the many uninvited difficulties in his childhood, this
application may be worth a serious look.

                                             IV.

       For these reasons, we affirm.
