                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 16a0254p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


 PERCY HUTTON,                                         ┐
                               Petitioner-Appellant,   │
                                                       │
                                                       │
        v.                                              >      No. 13-3968
                                                       │
                                                       │
 BETTY MITCHELL, Warden,                               │
                              Respondent-Appellee.     │
                                                       ┘
                         Appeal from the United States District Court
                        for the Northern District of Ohio at Cleveland.
                  No. 1:05-cv-02391—Christopher A. Boyko, District Judge.

                                  Argued: March 16, 2016

                            Decided and Filed: October 12, 2016

               BEFORE: MERRITT, ROGERS, and DONALD, Circuit Judges.
                              _________________

                                        COUNSEL

ARGUED: Michael J. Benza, Chagrin Falls, Ohio, for Appellant. Katherine E. Mullin,
OFFICE OF THE OHIO ATTORNEY GENERAL, Cleveland, Ohio, for Appellee. ON BRIEF:
Michael J. Benza, Chagrin Falls, Ohio, Alan C. Rossman, Jillian S. Davis, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Katherine E. Mullin,
Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL, Cleveland, Ohio, for
Appellee.

    DONALD, J., delivered the opinion of the court in which MERRITT, J., joined, and
ROGERS, J., joined in part. MERRITT, J. (pp. 23–27), delivered a separate concurring opinion.
ROGERS, J. (pp. 28–33), delivered a separate opinion dissenting in part.




                                              1
No. 13-3968                            Hutton v. Mitchell                                Page 2


                                      _________________

                                           OPINION
                                      _________________

       BERNICE BOUIE DONALD, Circuit Judge. Percy Hutton, an Ohio death row inmate,
appeals the United States District Court for the Northern District of Ohio’s denial of his
28 U.S.C. § 2254 habeas petition. Hutton was convicted and sentenced to death for murdering
Derek “Ricky” Mitchell and attempting to kill Samuel Simmons, Jr. on September 16, 1985.

       In his habeas petition, Hutton asserted thirteen grounds for relief. Of the thirteen claims,
six were certified for appeal. One claim gives this Court the most pause, as it requires us to
revisit Hoffner v. Bradshaw, 622 F.3d 487 (6th Cir. 2010), and again question whether a state
court’s independent review of a death sentence during sentencing can cure any omission in a jury
instruction. For the reasons that follow, we REVERSE the district court’s decision in part,
CONDITIONALLY GRANT Hutton’s habeas petition, and REMAND this case to the district
court with instructions to order Hutton’s release from custody unless the state grants a new
sentencing hearing within 180 days from the date that this Court issues the mandate.

                                                I.

       A.     Factual Background

       In the last state adjudication of Hutton’s habeas petition claims, the Ohio Supreme Court
made the following findings of fact as to what likely unfolded on the days the crimes for which
Hutton was convicted were committed:

               {¶ 1} In 1986, a jury found that Appellant, Percy “June” Hutton,
       murdered Derek “Ricky” Mitchell and attempted to kill Samuel Simmons Jr. on
       September 16, 1985. Hutton was convicted of aggravated murder with two death
       specifications. After a penalty hearing, the trial court sentenced Hutton to death.

              {¶ 2} Hutton had once been a close friend of Mitchell and Simmons.
       However, Hutton became angry with the two men because he believed that they
       had stolen from him. On Friday, September 13, or Saturday, September 14, 1985,
       outside the house where Samuel Simmons Jr., then lived, Hutton confronted
       Simmons over the theft of a sewing machine belonging to Hutton.
No. 13-3968                           Hutton v. Mitchell                                Page 3


              {¶ 3} Claiming that he had seen Mitchell trying to sell the machine,
      Hutton demanded its immediate return. Simmons suggested that Hutton talk to
      Mitchell. During this conversation, Mitchell arrived. He and Hutton entered the
      residence and went upstairs together. When they returned, according to Simmons,
      Hutton said that “it wasn’t what he was looking for and if he found out we had
      anything to do with what was missing or stolen he was going to kill us.” Hutton
      also told Mitchell, “I’m tired with you f* * *ing with me and stuff like that.”

              {¶ 4} Around midnight on Monday, September 16, 1985, Hutton drove to
      Simmons’s house in a gray Chrysler Cordoba, accompanied by Bruce Laster,
      whose sister was engaged to Hutton. Hutton asked Simmons to come with him
      and help him work on a car. When Simmons got into Hutton’s car, he noticed a
      .22-caliber rifle lying on the back seat.

             {¶ 5} Hutton drove to Mitchell’s house, stating that he wanted to talk to
      Simmons and Mitchell. When they arrived, Simmons went in and brought
      Mitchell outside, telling him that “June wanted to talk to him.” Hutton then
      confronted Mitchell, demanding the return of his sewing machine and accusing
      Mitchell of stealing some tires from Hutton’s backyard. Hutton said that he had
      hidden $750 in the sewing machine.

             {¶ 6} Mitchell denied taking the machine. However, Hutton insisted that
      Mitchell had tried to sell it to a Mr. Evans. Hutton demanded that Mitchell come
      with him to Evans’s house to settle the issue. Hutton threatened to “f* * *
      [Mitchell] up” if Evans confirmed Mitchell’s guilt.

             {¶ 7} Mitchell and Simmons got into the car. Before pulling away from
      the curb, Hutton pointed the rifle into Simmons’s side and said: “I don’t
      appreciate you all breaking in my sister’s house.”

             {¶ 8} Instead of going to Evans’s house, Hutton drove to a parking lot
      behind an RTA bus facility. Hutton got out of the car and ordered Mitchell to get
      out as well. Hutton and Mitchell then walked a short distance from the car.
      Simmons could not hear their conversation, but he saw Hutton put a pistol against
      Mitchell’s head.

              {¶ 9} Hutton and Mitchell returned to the car. With Mitchell giving
      directions, Hutton drove to an area known as “the Projects.” Hutton and Mitchell
      went into a building and emerged after a few minutes with a white sewing-
      machine case.

             {¶ 10} Hutton drove to his mother’s house, took the case inside, and
      returned to the car. He then drove to the next street and pulled into an alley where
      a Cadillac El Dorado was parked. Hutton told Simmons that the El Dorado was
      the car he wanted to work on. Simmons got out of Hutton’s car. Hutton then
No. 13-3968                           Hutton v. Mitchell                               Page 4


      moved his car to the other end of the street. Leaving Laster and Mitchell in the
      car, he walked back to the alley, where Simmons was waiting.

             {¶ 11} Hutton broke into the El Dorado with a screwdriver. When
      Simmons got inside, Hutton opened the hood and told him to try starting the
      engine. Hutton then walked back to Simmons, shot him twice in the back of the
      head, and ran up the alley.

              {¶ 12} Unable to move at first, lying half in and half out of the car,
      Simmons cried for help. He managed to get up and stagger away in search of
      assistance. Simmons went first to the nearby home of Hutton’s mother, then to
      Mary Etta Pollard’s house next door. He banged on Pollard’s front door and cried
      for help. Then he heard Hutton’s car coming out of the nearby alley. He ran into
      Pollard’s back yard and pounded on the back door, shouting that he had been shot.

              {¶ 13} Hutton drove up and stopped in front of Pollard’s house. He urged
      Simmons to “come here” or “come from back there.” Hutton noticed that
      Pollard’s son[, Allen Pollard,] was looking out from his front door and told him to
      close the door. Simmons begged Hutton to take him to the hospital. Hutton said,
      “Just shut up and get in the car,” and Simmons obeyed. Mitchell and Bruce
      Laster were in the car with Hutton.

               {¶ 14} Telling Mitchell that some unknown assailant had shot Simmons,
      Hutton drove to St. Luke’s Hospital. Simmons asked Mitchell to go inside with
      him, but Mitchell said, “No. We [are] going to get the mother-f* * *er that did
      this to you.”

             {¶ 15} At 2:30 a.m., Mitchell, Hutton, and Laster returned to Mitchell’s
      home. They woke Mitchell’s girlfriend, Eileen Sweeney, and took her to the
      hospital, where they dropped her off. Sweeney went into the hospital to visit
      Simmons. Telling her that Hutton had shot him, Simmons sent her to warn
      Mitchell to get out of the car. She went outside, but the car was gone.

              {¶ 16} Hospital security officer Paul Whitcomb saw a Chrysler Cordoba
      drop Simmons off and leave “in a hurry.” About half an hour later, Whitcomb
      saw the same car drop off Sweeney. After Sweeney went inside, Whitcomb saw
      the same car parked across the street from the hospital. He sent security officer
      Gary Barnhard to get the license number. As Barnhard drove past the car, he saw
      its two occupants crouch down in an attempt at concealment. Then the car left. A
      subsequent check of the license number disclosed that the gray Chrysler was
      registered to Hutton’s fiancée, Celeste Laster.

             {¶ 17} Hutton and Bruce Laster later returned to the hospital without
      Mitchell. Sweeney was still there. Hutton told her that Mitchell was at home and
      offered to drive her back. However, once he had Sweeney inside the car, Hutton
      took her to a park instead. There, Hutton and Sweeney got out of the car. Laster
No. 13-3968                           Hutton v. Mitchell                               Page 5


      then drove off, and Hutton proceeded to rape Sweeney. During the rape, Hutton
      told Sweeney that “Ricky wasn’t coming back.” According to Sweeney, Hutton
      had in his possession a small handgun with a white handle and a silver-colored
      barrel.

              {¶ 18} When Laster returned with the car, Sweeney saw Hutton remove
      two rifles from the trunk and put them in the rear passenger compartment. Hutton
      then drove Sweeney home to the apartment she shared with Mitchell.

             {¶ 19} When they arrived, Mitchell was not there. The door to the
      apartment had been damaged and the apartment was in disarray. Sweeney was
      too “scared and nervous” to drive, so Hutton drove her to the home of LaWanda
      Mitchell, the sister of Ricky Mitchell. Hutton followed Sweeney into LaWanda’s
      house. According to Sweeney, Hutton told her that “Ricky [Mitchell] wasn’t
      coming back,” and that “if [she] told, someone would be looking for [her].”

              {¶ 20} On Tuesday, September 17, Hutton drove to Indianapolis to enroll
      in a course for automotive mechanics at the Lincoln Technical Institute.

              {¶ 21} On September 30, 1985, the body of Derek Mitchell was found
      near an intersection in Cleveland with a large tire lying on the body. An autopsy
      disclosed that Mitchell had been shot to death. Two .22-caliber long rifle bullets
      were recovered from the body; a firearms expert testified that these could have
      been fired from either a rifle or a handgun. The expert testified that the bullets
      that killed Mitchell had the same class characteristics as a bullet that had been
      removed from Simmons’s head, but he could not tell whether all three had been
      fired from the same gun. The murder weapon was never found.

             {¶ 22} The defense presented evidence that Mitchell was not killed on
      September 16, 1985, but at some later time while Hutton was in Indianapolis.
      Denise Richardson testified that she spoke to Mitchell at 3:00 p.m. on September
      17, 1985, the day after the state claims Mitchell was murdered. According to
      Hutton, he was in Indianapolis at the time Richardson spoke to Mitchell. Hutton
      claimed that he stayed in Indianapolis until October 3, except for two brief visits
      to Cleveland on September 21 and 28. An employee of the Indianapolis YMCA
      saw Hutton there sometime after 4:00 p.m. on September 17. The YMCA
      employee testified that Hutton had paid rent for the period of September 17
      through October 3.

             {¶ 23} On October 4, 1985, Cleveland Police Detective Robert Moore
      spoke to Hutton on the telephone. Hutton agreed to return to Cleveland and
      surrender to Moore at a prearranged time and place. On October 5, Hutton
      surrendered.

             {¶ 24} Hutton and Laster were jointly indicted on two counts of
      aggravated murder for killing Derek Mitchell. The first count charged that they
No. 13-3968                                Hutton v. Mitchell                               Page 6


           committed the murder with prior calculation and design. [O].R.C. 2903.01(A).
           The second charged them with murdering Mitchell while committing, attempting,
           or fleeing the commission or attempted commission of kidnapping. [O].R.C.
           2903.01(B). Each murder count carried two capital specifications: a course-of-
           conduct specification, [O].R.C. 2929.04(A)(5), and a felony-murder kidnapping
           specification, [O].R.C. 2929.04(A)(7). Hutton and Laster were also indicted for
           kidnapping Mitchell and Simmons, and for the attempted murder of Simmons.
           Each count carried a firearm specification.

State v. Hutton, 797 N.E.2d 948, 952–55 (Ohio 2003).

           B.     Procedural History

           In 1986, an Ohio state jury convicted Hutton of aggravated murder (prior calculation and
design), aggravated murder (felony-murder), two counts of kidnapping, and attempted murder,
with a firearm specification attached to each count. Following the jury’s recommendation, the
trial court sentenced Hutton to death.

           On direct appeal, the Court of Appeals for Cuyahoga County found several trial errors
and set aside Hutton’s convictions and sentence, but the Ohio Supreme Court reversed and
remanded the case to the Ohio Court of Appeals to conduct an independent review of the
appropriateness of the death sentence. State v. Hutton, No. 51704, 1988 WL 39276, at *31 (Ohio
Ct. App. Apr. 28, 1988), rev’d, 559 N.E.2d 432, 447–48 (Ohio 1990). On remand, the Court of
Appeals determined that the death sentence was appropriate. State v. Hutton, 594 N.E.2d 692,
695 (Ohio Ct. App. 1991). Hutton did not appeal that decision.

           In September 1996, Hutton filed a petition for post-conviction relief in state trial court,
but the court denied him relief without an evidentiary hearing. The Ohio Court of Appeals
affirmed. State v. Hutton, No. 76348, 2004 WL 1575248, at *3 (Ohio Ct. App. July 15, 2004).
The Ohio Supreme Court declined further review. State v. Hutton, 819 N.E.2d 709 (Ohio 2004)
(table).

           In October 2000, Hutton’s motion for delayed appeal was granted. State v. Hutton,
736 N.E.2d 903, 903 (Ohio 2000) (table). In February 2001, Hutton unsuccessfully filed a
second petition for post-conviction relief. State v. Hutton, No. 80763, 2007 WL 2955663, at *3
(Ohio Ct. App. Oct. 11, 2007). The Ohio Supreme Court again declined further review. State v.
No. 13-3968                             Hutton v. Mitchell                                Page 7


Hutton, 883 N.E.2d 457, 457 (Ohio 2008) (table). Pursuant to Ohio Rule of Appellate Procedure
26(B), Hutton applied to reopen his direct appeal, contending ineffective assistance of appellate
counsel, but the Ohio Court of Appeals denied the application. State v. Hutton, No. 51704, 2000
WL 301097, at *2 (Ohio Ct. App. Mar. 20, 2000), aff’d, 797 N.E.2d 948, 964 (Ohio 2003).

        C.     Federal Habeas Procedural Facts

        In December 2005, Hutton filed a petition for a writ of habeas corpus in federal district
court. In June 2011, Hutton amended his petition, asserting thirteen grounds for relief. Without
conducting an evidentiary hearing, the district court denied habeas corpus relief but certified four
of the thirteen claims for appellate review. (R. 67.) This Court expanded the certification to
include two additional claims. Accordingly, we address each of Hutton’s claims in turn.

                                                II.

        We review de novo a district court’s denial of a habeas petition, particularly the
determinations involving matters of law or mixed questions of law and fact, and we review for
clear error the factual determinations. Gumm v. Mitchell, 775 F.3d 345, 359–60 (6th Cir. 2014).
Hutton filed his habeas petition in 2005; thus, it is subject to the requirements of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which became effective on
April 24, 1996. See Keeling v. Warden, 673 F.3d 452, 458 (6th Cir. 2012).

        Under AEDPA, a writ may not be granted unless the state court’s adjudication of the
claim

        (1)    resulted in a decision that 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)    resulted in a decision that was based on an unreasonable determination of
               the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)–(2). A federal habeas court may grant the writ under the “contrary to”
clause “if the state court arrives at a conclusion opposite to that reached by the Supreme Court on
a question of law, or if the state court decides a case differently than the Supreme Court on a set
of materially indistinguishable facts.” Van Tran v. Colson, 764 F.3d 594, 604 (6th Cir. 2014)
No. 13-3968                                       Hutton v. Mitchell                                      Page 8


(citing Brown v. Payton, 544 U.S. 133, 141 (2005)). The habeas petitioner has the burden of
rebutting, by clear and convincing evidence, the presumption that the state court’s factual
findings were correct. Id. (citing 28 U.S.C. § 2254(e)(1)).

                                                             A.

       First, we turn to Hutton’s claim that the trial court failed to instruct the jury on the list of
“aggravating circumstances.”              The Ohio statutory sentencing scheme for the death penalty
requires more than a finding of guilt; it also requires the jury to make a finding of aggravating
circumstances. The jury must then conclude that the aggravating circumstances outweigh the
mitigating circumstances to impose the death penalty. O.R.C. § 2929.04(A).

       In Hutton’s case, while the jury instructions listed the seven mitigating circumstances,
they neglected to define or list the “aggravating circumstances.”1 Thus, there was no indication


       1
           The full text of the jury instructions is as follows:
       The COURT: Ladies and gentlemen, you have now heard all the evidence and the arguments of
       counsel, and you will now decide whether you will recommend to the Court that the sentence of
       death shall be imposed upon the Defendant, and if not whether you will recommend that the
       Defendant be sentenced to life imprisonment with a parole eligibility after serving 20 full years of
       imprisonment, or to life imprisonment with parole eligibility after serving 30 full years of
       imprisonment.
       You will consider all the evidence, arguments, statements of the Defendant, pre-sentence
       investigation, mental examination report, and all other information and reports which are relevant
       to the nature and circumstances of any mitigating factors, including but not limited to the nature
       and background of the Defendant, and all of the following:
       1. Whether the victim of the offense induced or facilitated.
       2. Whether it is unlikely that the offense would have been committed but for the fact that the
       offender was under duress, coercion or strong provocation.
       3. Whether at the time of the committing of the offense the Defendant, because of a mental disease
       or defect, lacked substantial capacity to appreciate the criminality of his conduct, or to conform his
       conduct to the requirement of the law.
       4. The youth of the Defendant.
       5. The Defendant's lack of significant history of prior criminal convictions and delinquency
       adjudications.
       6. If the Defendant was a participant in the offense, but not the principal offender, the degree of
       the Defendant's participation in the offense and the degree of the Defendant's participation in the
       acts that led to the death of the victim.
       7. Any other factors that are relevant to the issue of whether the Defendant should be sentenced to
       death.
       The prosecution has the burden to prove beyond a reasonable doubt that the aggravating
       circumstances, of which the Defendant was found guilty, outweigh the factors in mitigation of
       imposing the death sentence.
       To outweigh means to weigh more than, to be more important than.
No. 13-3968                                   Hutton v. Mitchell                                        Page 9


in the jury instructions which aggravating circumstances the jury could review to make a
recommendation.        (Pet.’s Br. 46.)      However, Hutton’s trial counsel never objected to the
instruction, failing to preserve the claim on appeal.

        In fact, the error was first discovered on review by the Ohio Supreme Court, during
which the majority acknowledged the error in a footnote and Judge Brown based his partial
dissent on the error.2 Hutton, 559 N.E. 2d 432, 449 n.1 (Ohio 1990) (“We observe that the trial
court did not instruct the jury in the penalty phase as to what the aggravating circumstances
were.”). The Ohio Supreme Court determined that Hutton had waived the claim since Hutton
failed to address it in his briefs.

        Asserting Gregg v. Georgia, Hutton claims that the trial court violated his due process
rights in causing the jury to have “untrammeled discretion” to sentence him. 428 U.S. 153
(1976) (finding that a defendant’s Eighth Amendment rights are violated where the jury is left
with “untrammeled discretion” to impose the death penalty). The district court likewise found
that the claim had been procedurally defaulted because of Hutton’s failure to raise it on appeal.
(R. 67, PageID 1704.) In the alternative, the district court found that the claim was meritless
because the Ohio Court of Appeals cured any possible error through its independent reweighing.
(Id. at 1704–06.) In making this decision, the district court largely relied upon our decision in

        The existence of mitigating factors does not preclude or prevent the death sentence. If the
        aggravating circumstances outweigh the mitigating factors.
        You are, of course, mindful of the definition given you earlier by the Court of the phrase
        reasonable doubt, and I will share that with you again. Reasonable doubt is present when after
        you have carefully considered and compared all the evidence, you cannot say you are firmly
        convinced of the truth of the charges.
        Reasonable doubt is a doubt based on reason and common sense. Reasonable doubt is not mere
        possible doubt because everything relating to human affairs or depending on moral judgment is
        open to some possible or imaginary doubt. Proof beyond a reasonable doubt is proof of such
        character that an ordinary person would be willing to rely and act upon it in the most important of
        his own affairs.
        You should recommend the sentence of death if you unanimously, that is all twelve of you, find
        proof beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating
        factors.
        If you do not so find, you should unanimously recommend either life sentence with parole eligibility after
        serving 20 years of imprisonment or life sentence with parole eligibility after serving 30 years of
        imprisonment.
        2
          “[B]ecause the sentencing phase of the trial was marred by a plain error in the jury instructions, I must
respectfully dissent from the remand for review of the death sentence.” State v. Hutton, 559 N.E.2d 432, 449 (Ohio
1990) (Brown, J., dissenting in part.).
No. 13-3968                             Hutton v. Mitchell                               Page 10


Hoffner. (Id.) In Hoffner, however, we relied on the Ohio Supreme Court’s adjudication of this
case. 622 F.3d at 506 (applying the reasoning in State v. Hutton, 797 N.E.2d at 958-59 (Ohio
2003), to the petitioner’s claim). If we were to rely solely on the ruling in Hoffner, we would be
applying a circular analysis—i.e., we would be finding that any state trial court error in Hutton’s
case was cured because the Ohio Supreme Court found that the error was cured. This would
abdicate our role as judges to independently review the case before us.

       As to the procedural default issue, the Supreme Court has made it explicitly clear that
when a “state prisoner has defaulted his federal claims in state court pursuant to an independent
and adequate state procedural rule, federal habeas review of the claims is barred unless the
prisoner can demonstrate cause for the default and actual prejudice . . . , or demonstrate that
failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 750 (1991) (emphasis added).

       In determining whether a federal claim has been procedurally defaulted, we apply the test
initially laid out in Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). We first consider
whether there is an applicable state procedural rule with which the petitioner failed to comply.
Id. Second, we decide whether the state courts actually enforced the state procedural sanction.
Id. Third, we determine whether the state procedural rule is an “adequate and independent” state
ground on which the state can foreclose review of a federal constitutional claim. Id. Fourth, the
petitioner must demonstrate that there was “cause” for him to not follow the procedural rule and
that he was actually prejudiced by the alleged constitutional error. Id.

       It is clear that Hutton defaulted this claim.           In Ohio, when a party fails to
contemporaneously object to an error, the error is deemed waived. Ohio R. Crim. P. 52.
Pursuant to Ohio’s contemporaneous objection rule, Ohio courts treat the failure to object as a
procedural default. Scott v. Mitchell, 209 F.3d 854, 866 (6th Cir. 2000). The United States
Supreme Court has specifically found that a default imposed for failure to object
contemporaneously is an adequate and independent state ground barring federal habeas review
absent a showing of cause and prejudice. Id. at 867 (citing Engle v. Isaac, 456 U.S. 107, 124–29
No. 13-3968                                    Hutton v. Mitchell                                        Page 11


(1982)). Consequently, because Hutton failed to object to the omission in the jury instructions
during trial, he procedurally defaulted his claim.3

        Where a petitioner cannot demonstrate the “cause and prejudice” necessary to overcome
a procedural default, a court may reach the merits of a procedurally defaulted claim where
review of the claim is necessary to correct or avoid a “fundamental miscarriage of justice.” See
Murray v. Carrier, 477 U.S. 478, 496 (1986) (finding that where a constitutional violation likely
resulted in the miscarriage of justice, a federal court may grant habeas relief even in the absence
of a showing of cause to overcome a procedural default). We first acknowledge, as the dissent
points out, that Hutton did not raise this claim in his opening brief and it is, therefore, considered
waived. As a general rule, this Court will not consider arguments not presented in a party’s
opening brief. See United States v. Johnson, 440 F.3d 832, 845–46 (6th Cir. 2006) (noting that
“‘an appellant abandons all issues not raised and argued in its initial brief on appeal.’”) (citations
omitted). However, because this rule is procedural and not jurisdictional, the Court may excuse
a default if the interest of justice so requires. See Thomas v. Arn, 475 U.S. 140, 155 (1985);
United States v. Lawrence, 735 F.3d 385, 430–31 (6th Cir. 2013).

        The Supreme Court has extended fundamental miscarriage of justice in capital cases to
mean actual innocence of the death penalty. See Sawyer v. Whitley, 505 U.S. 333, 347 (1992).
“[T]o show ‘actual innocence’ one must show by clear and convincing evidence that, but for the
constitutional error, no reasonable jury would have found the petitioner eligible for the death
penalty under the applicable state law.” Id. at 336. This “actual innocence” standard must focus
on the elements that render a defendant eligible for the death penalty. Id. at 347. Despite the
important interests served by state procedural rules, we cannot permit finality alone to provide a
sufficient reason for federal courts to compromise their protection of constitutional rights under
§ 2254. See Reed v. Ross, 468 U.S. 1, 15 (1984). In short, barring all procedurally defaulted


        3
           It should be well noted that Ohio law allows review of an unpreserved claim under the plain error
standard. See State v. Long, 372 N.E.2d 804, 806–07 (Ohio 1978). The basic inquiry in Ohio’s plain error analysis
is whether the defendant has been denied a “fair trial.” Scott, 209 F.3d at 866. In determining that Hutton
procedurally defaulted this claim, the Ohio Supreme Court did not analyze the constitutional challenge to the jury
instructions on its merits, nor did it apply plain-error review when it noted the absence of a contemporaneous
objection to the instruction. See Hutton, 797 N.E.2d at 959. Rather, the court merely ruled that Hutton’s failure to
object at trial operates as a procedural default.
No. 13-3968                             Hutton v. Mitchell                              Page 12


claims is not the standard. See Scott, 209 F.3d at 866. Relevant here, a criminal defendant has a
right to expect that the trial court will give complete and correct jury instructions. State v.
Williford, 551 N.E.2d 1279, 1283 (Ohio 1990). If there was a fundamental miscarriage of justice
in imposing a death sentence, we may find that the petitioner overcame the procedural default.

       Pursuant to O.R.C. § 2929.05(A), for death sentences, the Ohio Court of Appeals may
independently determine whether (1) the record supports the jury’s finding of the existence of
aggravating circumstances; (2) the aggravating circumstances outweigh any mitigating
circumstances; (3) trial court properly weighed the aggravating circumstances against the
mitigating circumstances; (4) the sentence of death is not disproportionate to the penalty imposed
in similar cases; and (5) the sentence of death is consequently appropriate.

       Most relevant here is that, at the time the Ohio Court of Appeals independently
reweighed the factors, the jury had not made the necessary finding of the existence of
aggravating circumstances. Thus, the jury could not have determined that the aggravating
circumstances outweighed the mitigating circumstances beyond a reasonable doubt without
knowing what the aggravating circumstances were. (Pet.’s Br. 43–44.) Without this finding, a
death sentence cannot stand.       Since the jury did not make the necessary aggravating
circumstances finding, Hutton argues that the Ohio Court of Appeals made its own finding of the
existence of aggravating circumstances, which the Supreme Court has repeatedly ruled as
unconstitutional. (Id.)

       In Hurst v. Florida, 136 S. Ct. 616, 619 (2016), the Supreme Court reiterated that “[t]he
Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence
of death.” Relying on Ring v. Arizona, 536 U.S. 584 (2002), the Supreme Court rejected the
sentencing scheme in Hurst at issue because the court—and not the jury—ultimately made the
“critical findings” about both “the existence and weight of aggravating circumstances” necessary
to impose a death sentence. Hurst, 136 S. Ct. at 621.

       In Ring, the Supreme Court rejected Arizona’s capital sentencing scheme because the
statute allowed a judge to find the facts necessary to sentence a defendant to death. Under state
law, Ring could not be sentenced to death without the finding of at least one aggravating
No. 13-3968                             Hutton v. Mitchell                                Page 13


circumstance. Id. at 592. The Supreme Court concluded that a state court judge’s finding of an
aggravating circumstance exposed Ring to greater punishment than that authorized by the jury’s
guilty verdict. Id. at 597. Had the judge not engaged in any fact finding, Ring would have
received a life sentence. Id. Thus, the Court ruled that Ring’s death sentence violated his right
to have a jury find the facts necessary to impose punishment. Id. In large part, this was because
the Court found that judicial fact finding for aggravating circumstances under certain state
sentencing schemes runs afoul of the rule in Apprendi, which states that any fact that “expose[s]
the defendant to a greater punishment than that authorized by the jury’s guilty verdict” is an
“element” that must be submitted to a jury. Apprendi v. New Jersey, 530 U.S. 466, 494 (2000).

       To be clear, the Supreme Court has also held that where a state appellate court conducts
an independent review of the record, reweighs the mitigating and aggravating circumstances, and
concludes that the death penalty was warranted, the Federal Constitution does not prevent a court
from upholding that death sentence even though it was based in part on an invalid or improperly
defined aggravating circumstance. Clemons v. Mississippi, 494 U.S. 738, 741, 750 (1990). In
fact, we have held that “[c]onsideration of a non-statutory aggravating circumstance, even if
contrary to state law, does not violate the Constitution.” Smith v. Mitchell, 348 F.3d 177, 210
(6th Cir. 2003) (citing Barclay, 463 U.S. at 956–58).

       However, Clemons and this case are significantly distinguishable in two ways. First, in
Clemons, only one or two invalidated aggravating circumstances were at issue, which means that
the jury in Clemons was still given a list of valid aggravating circumstances to guide its decision.
494 U.S. at 741. Even though the finding turned out to be an erroneous one, the jury in Clemons
was given guidance in making a finding as to what aggravating circumstances existed or applied
to the defendant’s case. Id. Second, in reweighing the circumstances in Clemons, the state
appellate court knew what the jury considered regarding aggravating circumstances before
reweighing the circumstances found by the jury.          Reweighing in Clemons only required
eliminating one or two aggravating circumstances but, arguably, the finding that the aggravating
circumstances outweighed the mitigating circumstances was still largely valid because it was
based on the jury’s consideration of valid circumstances. Id. at 744.
No. 13-3968                             Hutton v. Mitchell                                Page 14


       By contrast, here, the jury was not given an improperly defined aggravated circumstance.
Instead, the court gave the jury no guidance as to what to consider as aggravating circumstances.
Second, the jury was precluded from making the necessary findings of aggravating
circumstances in the first place. There is nothing in the record that indicates that the jury’s
finding that the aggravating circumstances outweighed the mitigating ones was actually based on
a review of any valid aggravating circumstances.

       Thus, the analysis of the Gregg and Ring courts more aptly apply to Hutton’s sentence.
Hutton’s death sentence was imposed by a judge’s factual finding—not the jury’s. Evidently,
not wishing to permit appellate reweighing for every trial court’s error, the Clemons Court
specified that in “some situations,” where there are “peculiarities” that make appellate
reweighing speculative or impossible, reweighing may not cure the error. Id. at 754.

       Because a death sentence in Ohio cannot be imposed without an aggravating-
circumstances finding, we need not consider at length whether a fundamental miscarriage of
justice resulted from the failure to define “aggravating circumstances” in the jury instructions. It
clearly did, as the jury, without proper instructions, could not have made a finding that
aggravating circumstances existed; thus, the harshest sentence Hutton could possibly have
received without that instruction was life—not death. To find otherwise renders due process
rights illusory. Thus, Hutton demonstrates a fundamental miscarriage of justice sufficient to
overcome the procedural default of his first claim.

       As previously mentioned, under AEDPA, the Court is required to defer to the state
court’s merits determination of a claim. See 28 U.S.C. § 2254(d). However, in the absence of a
state-court determination on the merits of a claim, AEDPA’s deferential standard has no
application, and the Court reviews the claim de novo. Henley v. Bell, 487 F.3d 379, 390 (6th Cir.
2007) (citing Linscott v. Rose, 436 F.3d 587, 592 (6th Cir. 2006)). The Supreme Court’s long-
standing precedent in Apprendi, Ring, and Gregg establish that Hutton’s constitutional rights
were violated. Therefore, we are compelled by precedent to find that the Ohio Court of Appeals’
findings of aggravating circumstances were not valid to permit a death sentence to stand.
No. 13-3968                             Hutton v. Mitchell                              Page 15


                                                B.

       Hutton’s second assignment of error is that Hutton’s appellate counsel was ineffective for
two reasons: first, counsel did not raise the claim based on the trial court’s failure to define
“aggravating circumstances” in the jury instructions, and second, counsel did not argue that trial
counsel was ineffective for failing to object to the erroneous jury instructions. Because the Ohio
Supreme Court adjudicated this claim on the merits, see Hutton, 797 N.E.2d at 958–59, AEDPA
applies to this claim.

       Allegations of ineffective assistance of counsel are considered in two parts. First, we
must determine whether the challenged act or omission fell below an objective standard of
reasonableness. Strickland v. Washington, 466 U.S. 668, 687–88 (1984). Second, we must
decide whether the defendant was prejudiced, such that there is a reasonable probability that, but
for counsel’s errors, the sentence would have been different. Id.

       While we ordinarily presume that counsel’s conduct falls within the range of reasonable
professional assistance, id. at 691, we do not require appellate counsel to raise every possible
issue in order to render constitutionally effective assistance, see Jones v. Barnes, 463 U.S. 745,
750–53 (1983).      Generally, only when omitted arguments are clearly stronger than those
presented, will the presumption of effective assistance of counsel be overcome.          Smith v.
Robbins, 528 U.S. 259, 288 (2000).

       Although the district court focused on the second Strickland prong, the court does not
need to reach that issue because counsel’s performance was likely not deficient. See Strickland,
466 U.S. at 697 (finding that a court need not address both components of the inquiry if the
defendant makes an insufficient showing on one). We cannot conclude here that the two omitted
arguments were “clearly stronger” than the other claims his counsel presented on direct appeal,
five for which the Ohio Court of Appeals granted relief. Given the vacated sentence Hutton’s
counsel obtained for his client on direct appeal, Hutton cannot reasonably prove that his
appellate counsel was deficient. Therefore, this claim fails.
No. 13-3968                            Hutton v. Mitchell                               Page 16


                                               C.

       Under the third assignment of error, Hutton contends that the trial court’s admission of
Eileen Sweeney’s testimony that he raped her denied him due process. (Pet.’s Br. 51–62.)
Hutton argues that Sweeney’s testimony was improper because Hutton had not been charged
with rape and that the allegation bore no probative value to the murder and kidnapping charges.
(R. 16-25, PageID 6528–29.) When Hutton raised this claim on direct appeal, the Ohio Court of
Appeals granted relief, finding that “the jury received this damaging testimony over Appellant’s
objection and improperly considered it as further proof of the Appellant’s commission of the
aggravated and attempted murders and kidnappings.” Hutton, 1988 WL 39276, at *22. The
Ohio Supreme Court acknowledged the erroneous admission but reversed the court of appeals,
deeming the error harmless because overwhelmingly strong evidence supported the murder and
kidnapping convictions. Hutton, 559 N.E.2d at 440. Hutton also raised the claim on state post-
conviction review and was subsequently barred by res judicata. The district court likewise
denied Hutton habeas relief, stating that “Hutton has not explained how the Ohio Supreme Court
‘used an improper standard to determine the error to be harmless’” as “it examined the ‘other
admissible evidence, standing alone,’ and found it to ‘constitute[] overwhelming proof of guilt.’”
(R. 67, Page ID 1703).

       We agree. We review the admission for harmless error, assessing the alleged prejudicial
impact under the “substantial and injurious effect” standard as established in Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993). To warrant habeas relief, a questionable evidentiary
admission must not only be erroneous, but it must also be so infirm that it rendered the trial
fundamentally unfair, such that it had influence in determining the jury’s verdict. See Coe v.
Bell, 161 F.3d 320, 329 (6th Cir. 1998); see also McCarley v. Kelly, 801 F.3d 652, 665 (6th Cir.
2015). The Brecht test subsumes the limitations imposed by AEDPA. McCarley, 801 F.3d at
665 (citing Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015)).

       Hutton cannot show a substantial and injurious effect. In an effort to minimize the
prejudicial impact of the testimony, the court gave the jury a limiting instruction admonishing
the jury to refrain from considering the testimony “in any way, shape or form with respect to the
determination of guilt or innocence” with regard to Hutton’s charges. (R. 16-25, PageID 6531.)
No. 13-3968                              Hutton v. Mitchell                                 Page 17


Hutton has not indicated how the state’s adjudication of the claim was contrary to clearly
established law.     Notwithstanding the rape testimony, the record still contains strong
circumstantial evidence that connects Hutton to the crime, such that the erroneous admission
likely did not determine the jury’s verdict. Cf. Ford v. Curtis, 277 F.3d 806, 810–11 (6th Cir.
2002). Accordingly, the state court’s disposition of the claim was neither unreasonable nor
contrary to precedent. Hutton is not entitled to habeas relief on this ground.

                                                 D.

       In Hutton’s fourth assignment of error, Hutton contends that the prosecution violated
Brady v. Maryland, 373 U.S. 83 (1963), by withholding statements made to the police by
Bernard Holloway and Kim Lampkin. (Pet.’s Br. 62.) However, Hutton raised this claim for the
first time in his petition for post-conviction review. (R. 60, Page ID 1339.) The district court
accordingly determined that the claim related to Holloway and Lampkin was procedurally
defaulted because it was not raised in the state courts. (R. 67, Page ID 1681.) Notwithstanding
the default, the district court still reviewed the merits of the claim and found that Hutton failed to
meet the first two prongs of the Brady test. (R. 67, Page ID 1681–82.)

       To overcome the default, Hutton had to establish cause and prejudice, which can be
established by merely establishing the merits of his Brady claim. See Strickler v. Greene,
527 U.S. 263, 282 (1999) (“In this case, cause and prejudice parallel two of the three components
of the alleged Brady violation itself.”) To do so, Hutton must show that “(1) the evidence was
favorable to him, (2) the prosecutor withheld the evidence, and (3) he suffered prejudice, which
means that the suppressed evidence is material either to his conviction or his sentence.” Jones v.
Bagley, 696 F.3d 475, 486 (6th Cir. 2012) (citing Strickler, 527 U.S. at 280-82).          Favorable
evidence can only be “material” under Brady if a reasonable probability exists that, had the
evidence been disclosed, the result of the proceeding would have been different. Henness v.
Bagley, 644 F.3d 308, 324 (6th Cir. 2011) (quoting Cone v. Bell, 556 U.S. 449, 469–70 (2009)).
No. 13-3968                            Hutton v. Mitchell                              Page 18


              i.      Holloway’s Statement

       Holloway testified at trial that after Mitchell went missing, Hutton told Holloway that
Mitchell and Simmons had been robbing numbers houses. In a withheld police report, Holloway
mentioned only Simmons robbing the numbers houses.

       Hutton contends that Holloway’s withheld statement was material because Holloway
“clearly implied in his trial testimony that Mr. Hutton told him about Mitchell and Simmons
robbing the numbers house as a ruse to point suspicion for the murder towards the numbers
people and away from himself.” (Pet.’s Br. 64.) Hutton also argues that Holloway’s withheld
statement was a prior inconsistent statement that he could have used to impeach Holloway.
However, neither statement would have “resulted in a markedly weaker case for the prosecution
and a markedly stronger one for the defense.” Kyles v. Whitley, 514 U.S. 419, 441 (1995).
Holloway’s statements made to police did not corroborate anything materially different from the
testimony offered by Simmons, Jr. and Hutton, and the circumstantial evidence of the case. The
record reveals that Holloway, in his testimony, primarily stated details about Hutton’s visit to
Holloway and Simmons’ apartment, and Hutton’s communication with Mitchell and Simmons,
Jr. about the sewing machine, a matter about which Holloway knew little.

       Further, even if cause was established by Holloway’s two inconsistent statements as to
who Hutton said was involved in the alleged robbery of a “numbers house,” Hutton still cannot
show how he was prejudiced.       Holloway testified on direct examination that he had been
convicted of a “[s]tate drug law violation.” Consequently, credibility may have been an issue for
him. See Byrd v. Collins, 209 F.3d 486, 502 (6th Cir. 2000) (identifying a criminal conviction
resulting in incarceration for more than one year as impeachment evidence); Ohio Evid. R.
609(A).   Moreover, to the extent that Holloway’s testimony corroborated Simmons, Jr.’s
testimony, that corroboration was limited to testimony about when Hutton visited Holloway’s
apartment before the shooting of Simmons, which Hutton acknowledged in his own testimony.
Hutton cannot demonstrate that a different outcome would have resulted had the prosecution
disclosed Holloway’s statement to the police.
No. 13-3968                              Hutton v. Mitchell                                 Page 19


               ii.     Lampkin’s Statement

       At trial, Lampkin testified that she knew Hutton and that after Simmons was shot, she
became scared of Hutton and moved away. In a police statement that the prosecution never gave
to Hutton, however, Lampkin said that she did not know Hutton.

       Hutton argues that Lampkin’s withheld statement was important for impeachment
purposes because in her testimony, she implied that she was afraid of Mr. Hutton. However, this
material would not have made his case markedly stronger. Any potential impeachment of
Lampkin would not have produced a different result. Therefore, the claim fails.

                                                 E.

       Under Hutton’s fifth assignment of error, Hutton contends that trial counsel was
ineffective for failing to investigate and present available mitigation evidence. Specifically, he
claims that his trial counsel was constitutionally ineffective during the guilt phase of the trial for
failing to adequately consider and evaluate mitigating facts concerning (1) Hutton’s neighbor,
Allen Pollard; (2) Simmons, Sr.’s encounter with three men who were looking for Simmons, Jr.
on the night of the shooting; (3) the likelihood of Simmons, Jr. owing money to a drug dealer at
the time of the shooting due to his drug usage; and (4) information that the sewing machine
belonged to Sharon Booker, and not Hutton’s sister. He contends that further investigation
would have changed the outcome of the trial.

       Hutton raised the claim during the first state post-conviction proceedings, but the trial
court applied res judicata as a procedural bar, reasoning that Hutton could have raised the claim
on direct appeal but did not and therefore defaulted the claim. The trial court still reviewed the
claim on its merits and found that he did not sufficiently demonstrate deficient performance
under Strickland. The district court, on federal habeas corpus review, likewise imposed a
procedural bar and found that the claim did not entitle Hutton to habeas relief. (R. 67 PageID
1637–40.)

       Under Ohio’s res judicata doctrine, a defendant may not raise a claim in a post-conviction
proceeding that either could have been or actually was fully litigated at trial or on direct appeal.
No. 13-3968                             Hutton v. Mitchell                               Page 20


Hanna v. Ishee, 694 F.3d 596, 614 (6th Cir. 2012). Ohio courts permit an exception where the
defendant can establish an ineffective assistance of counsel claim based on references to
evidence that are outside the record on direct appeal. Id.

         Therefore, as with Hutton’s other ineffective assistance claim, to overcome the
procedural bar, Hutton must show deficient performance and prejudice, and that the state court’s
resolution of the claim was unreasonable. Loza v. Mitchell, 766 F.3d 466, 487 (6th Cir. 2014).
First, concerning the alleged failure to interview Allen Pollard, the district court found that his
testimony would have been cumulative of that offered at trial by his mother, Mary Pollard.
(R. 67, PageID 1651.) Mary Pollard testified on the prosecution’s behalf about events that
occurred near her home on the night of the murder and how she was neighbors to Hutton and his
mother. She also testified that after her husband left for work at midnight, she was upstairs in
her room when she heard “a lot of knocking next door to me on the [side of the] Hutton’s, like
bamming on the door, bam, bam, bam.” (R. 16-26, PageID 6927–28.) She testified that she
heard a person yelling, “I’m shot. I’m shot.” (R. 16-26, PageID 6929.) Then, as she described,
someone began to knock on her door yelling, “I’m shot. I’m shot.” (R. 16-26, PageID 6929.)

         Although she testified that Allen was downstairs when the knocking started and that
Allen reached the front door before she did, she made it clear that neither she nor Allen left the
house.    (Id.)   Mary Pollard’s testimony further revealed—in mitigating form—that Sam
Simmons left her yard when he heard Hutton driving by and acted “[l]ike he was glad to see”
him. (R . 16-26, PageID 6941–42.) It was reasonable for the court to find that Allen’s account
of what happened that night was no different from the account his mother provided in trial.

         Second, Hutton claimed that his trial counsel was ineffective for failing to investigate
information provided by Simmons, Sr. that three men visited his home and asked where they
could find Simmons, Jr. (Pet.’s Br. 73.) However, Hutton fails to explain how Simmons, Sr.’s
encounter with the three men was relevant to his defense or how his counsel’s decision to not use
it prejudiced him.     (R. 67, PageID 1648.)       Therefore, he fails to demonstrate deficient
performance and prejudice. Nor can Hutton do so with respect to his claim that counsel should
have investigated witnesses to establish that the sewing machine belonged to Sharon Booker.
That fact was proved at trial by Hutton’s testimony.
No. 13-3968                             Hutton v. Mitchell                                 Page 21


       Last, Hutton contends that trial counsel should have investigated Simmons, Jr.’s drug use
and relationship with Mitchell. (Pet.’s Br. 74.) Despite Hutton’s submission of four individual
affidavits, the evidence presented at trial concerning Simmons, Jr.’s possible drug use was
stronger. For instance, at trial, the jury heard testimony from the surgical resident who examined
Simmons, Jr. in the emergency room after he was shot and who indicated that Simmons, Jr. was
likely using drugs. (R. 67, PageID 1648–50.)

       Therefore, each asserted claim fails to establish a claim for ineffective assistance of
counsel. The state court’s rejection of this claim was not contrary to clearly established law nor
did it involve an unreasonable application of clearly established law.

                                                 F.

       Last, Hutton contends that trial counsel was ineffective because counsel did not object to
the prosecution’s use of Hutton’s juvenile record as well as the prosecution’s reference to a prior
homicide conviction that had been overturned. (Pet.’s Br. 77; R. 16-29, PageID 7751.) Because
trial counsel did not object, the Ohio Supreme Court reviewed the claim for plain error and found
that none existed. Id. The state supreme court first found that “the [juvenile] record was part of
the [presentence report] and therefore subject to fair comment by the prosecutor. Merely reading
excerpts from the [presentence report] to the jury was not objectionable.” Hutton, 559 N.E.2d at
446. As such, the court did not find any ineffective assistance of counsel. Id. The court,
however, found that the prosecutor’s comments to the jury that the prior murder conviction had
been reversed were improper because this evidence was not contained in the presentence report.
Id. at 442. But the court did not address the claim that trial counsel was ineffective for failing to
object to these comments.

       On federal habeas corpus review, the district court denied the ineffective assistance
claim, finding that the Ohio Supreme Court’s resolution was neither unreasonable nor contrary to
clearly established law. We agree. We have noted that “[b]ecause the decision to object in a
particular instance is made in the strategic context of an entire trial, any single failure to object
does not constitute error unless the information introduced ‘is so prejudicial to a client that
failure to object essentially defaults the case to the state.”’ Hodge v. Haeberlin, 579 F.3d 627,
No. 13-3968                           Hutton v. Mitchell                              Page 22


649 (6th Cir. 2009). Although trial counsel did not object to the prosecutor’s comments, he
clarified in his closing argument which conviction had actually been overturned, and the
circumstances giving rise to the charged offenses. (R. 16-29, PageID 7754–55.) As with the
other ineffective assistance claims, Hutton cannot establish prejudice proving that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. Darden
v. Wainwright, 477 U.S. 168, 184 (1986).

                                             III.

       Accordingly, we REVERSE the judgment of the district court and CONDITIONALLY
GRANT habeas relief based on the first assignment of error, rejecting the remainder. We
REMAND the case to the district court with instructions to order Hutton’s release from custody
unless the state grants a new sentencing hearing within 180 days from the date that the mandate
issues from this Court.
No. 13-3968                            Hutton v. Mitchell                               Page 23


                                      _________________

                                       CONCURRENCE
                                      _________________

       MERRITT, Circuit Judge, concurring. I do not agree with my colleagues’ procedural
ruling that the Eighth Amendment claim in this case has not been decided by the Ohio Supreme
Court on the merits but rather is procedurally defaulted. My colleagues appear to believe that we
cannot review the merits of this claim directly in habeas corpus—due to a procedural default that
kept the Ohio Supreme Court from reviewing it on the merits. On page 10 of her opinion, Judge
Donald says, “Hutton defaulted this claim.” Judge Rogers makes the same statement in the first
paragraph of his dissenting opinion.     My reasoning is that the Eighth Amendment claim,
although not presented by Hutton’s ineffective appellate counsel on direct appeal, was clearly
and persuasively presented by three dissenting members of the Ohio Supreme Court. The full
Ohio Supreme Court had clear notice of the issue. The habeas law on this subject appears to be
that a state court is “presumed” to decide the merits of a federal issue when, as here, it has
indisputable notice of the question explained by three members as decisive.              In these
circumstances, the state court cannot be regarded as not having ruled on the merits when it
remains silent. In this case silence speaks volumes. The Supreme Court has held many times
that

       when a state court issues an order that summarily rejects without discussion all
       the claims raised by a defendant, including a federal claim that the defendant
       subsequently presses in a federal habeas proceeding, the federal habeas court must
       presume (subject to rebuttal) that the federal claim was adjudicated on the merits.

Johnson v. Williams, 133 S. Ct. 1088, 1091 (2013) (citing Harrington v. Richter, 562 U.S. 86,
98-99 (2011)). If we are to adhere to Johnson and Richter, it makes no sense at all to create
additional hurdles for Hutton to jump by ruling that the Ohio Supreme Court did not rule on the
Eighth Amendment issue that three dissenting justices discussed at length as an obvious
constitutional error. Although it is unclear why the Ohio Supreme Court majority did not
respond to the dissenting justices’ very clear, constitutional argument, it is clear, as the court
acknowledged in a subsequent opinion in 2003, that the point was before the court. In upholding
the death penalty, the majority simply chose to remain silent on the issue in order to avoid
No. 13-3968                                    Hutton v. Mitchell                                         Page 24


reversing the death penalty. Therefore, we must assume that the Ohio Supreme Court was aware
of the issue and ruled against Hutton on the Eighth Amendment issue.

                   I. Hutton’s Penalty Phase Invalid under Eighth Amendment

         Three dissenting justices on the Ohio Supreme Court said that the imposition of the death
penalty in this case is clearly unconstitutional under the Eighth Amendment and that the issue
must be reached and decided. Of the seven members of the Ohio Supreme Court when the case
was decided on direct appeal in 1990, three wrote an opinion upholding the death penalty in
Hutton’s case, one concurred in the result, and three dissented. The three dissenters wrote that
the imposition of the death penalty here clearly violated the basic doctrinal requirement of Gregg
v. Georgia, 428 U.S. 153, 196 (1976), that specific “aggravators” be present in the case and
explicitly defined by the trial court and explained to the jury as the aggravating factors to be
weighed by the jury against mitigating evidence.

         After ruling the death penalty unconstitutional in Furman v. Georgia, 408 U.S. 238
(1972), the Supreme Court in Gregg reconsidered and required a capital sentencing system in
which the jury must find “aggravating” factors in addition to simple murder and in which the
trial court must instruct the jury as to the process of weighing specific aggravators against
mitigating evidence.1 The dissenting justices in Hutton’s case noted that there were no such
qualifying aggravator-mitigator instructions at Hutton’s capital sentencing trial and that the
capital sentencing proceeding clearly violated constitutional standards:

         Without any instruction [at sentencing] defining “aggravating circumstances,” the
         jury was left “with untrammeled discretion to impose or withhold the death
         penalty.” Gregg v. Georgia (1976), 428 U.S. 153, 196, at fn. 47, 96 S. Ct. 2909,
         2936, at fn. 47, 49 L. Ed. 2d 859. This, the United States Constitution forbids.

State v. Hutton, 559 N.E.2d 432, 449 (1990).



         1
            The finding of the here-undefined aggravators must be made by the jurors, not by the court or the
prosecutor. The Supreme Court has subsequently held that this jury requirement includes the finding that the found
aggravators outweigh the mitigators. Hurst v. Florida, 136 S. Ct. 616 (2016). This entire process did not occur in
the trial in this case in 1986 — in part because apparently neither defense counsel nor the trial judge understood the
basic Eighth Amendment “aggravator” requirement for imposing capital punishment.
No. 13-3968                             Hutton v. Mitchell                               Page 25


       The three dissenters explained the situation at trial as follows:

       The trial court’s instructions to the jury correctly explained that the jury was
       required to weigh the aggravating circumstances against the mitigating factors,
       and could impose a sentence of death only if the aggravating circumstances
       outweighed the mitigating factors. Unfortunately, the court failed to tell the jury
       what the “aggravating circumstances” were.

       ….

       No jury (or anyone else) can weigh aggravating circumstances against mitigating
       factors without knowing what the aggravating circumstances are. This weighing
       process is the very purpose of the sentencing phase of a capital trial.

Id. at 448-49.

       The three dissenting justices also found that “defendant’s counsel did not object at trial”
to this constitutional error, an error that was so obvious after the Gregg case that the justices
found it to be “plain error” on the part of counsel and the lower court. As stated above, the three
justices who joined the single justice concurring in the result to make a majority simply did not
discuss this Eighth Amendment issue at all. They simply remained silent on the issue. Although
the majority did discuss ineffective assistance of counsel on several other points, they avoided
any discussion of whether trial counsel should have raised this issue that the dissenters viewed as
so obvious as to be “plain error.” Under such circumstances, we must presume that the majority
of the Ohio court rejected the Eighth Amendment issue 4-3.

       In the Ohio Supreme Court’s second opinion delivered in 2003 after a remand, it clearly
mentioned the fact that the trial court failed to define the “aggravating circumstances” and itself
suggested the possibility of “plain error.” But then instead of deciding the Eighth Amendment
question based on plain error, as found by their dissenting colleagues in the earlier opinion, the
Ohio Supreme Court again simply did not discuss the question further. It immediately shifted its
focus and treated the constitutional problem as a Sixth Amendment issue of ineffective
assistance of counsel. Skipping over the Eighth Amendment issue that the three dissenting
justices had decided in favor of Hutton, the Ohio Supreme Court simply concluded without
elaboration: “Failure to raise the waived instructional issue was not deficient performance
constituting ineffective assistance of counsel.” State v. Hutton, 797 N.E.2d 948, 959 (2003).
No. 13-3968                             Hutton v. Mitchell                                Page 26


                              II. Ineffective Assistance of Counsel

       Federal judges should not go out of their way to foreclose and prevent themselves from
reaching the merits of a constitutional issue that must be decided in favor of the accused if
reached—especially in a death case. That is the case here. No one can claim here that Hutton
did receive a fair trial, as the dissenting Ohio justices make clear. If federal judges are going to
stretch their minds a bit, it should be in favor of reaching the merits so that they make sure that
justice is done. But if Hutton’s Eighth Amendment claim was procedurally defaulted in the state
court, I would find, unlike my colleagues, that he suffered ineffective assistance of counsel by
both trial and appellate counsel so as to overcome the default. I would also necessarily find that
Hutton’s independent claim of ineffective assistance of counsel is meritorious.

       Under Strickland v. Washington, 466 U.S. 668, 687-88 (1984), Hutton’s counsel “fell
below an objective standard of reasonableness,” and “the deficient performance prejudiced the
defense” when trial counsel failed to identify and object to the faulty jury instruction during the
penalty phase. It is undisputed that the failure to give the omitted instruction was error and the
error was recognized by three of the Ohio Supreme Court justices as plain error. I would find
defense counsel’s failure to object in this circumstance, more than ten years after the Supreme
Court’s opinion on aggravators in Gregg v. Georgia, to constitute ineffective assistance of
counsel. As for appellate counsel, the contention that the Eighth Amendment issue arising from
the failure to give the instruction on aggravating circumstances was not equal to or stronger than
the issues actually raised by appellate counsel on direct appeal is without merit as confirmed by
the issue serving as the sole basis for the dissent by the three Ohio Supreme Court justices.
There can be no dispute that Hutton was prejudiced by the ineffectiveness. Hutton has therefore
clearly demonstrated cause and prejudice through ineffective assistance of counsel to excuse any
default on the Eighth Amendment issue. This may also amount to a due process error but, as
described above, the “untrammeled discretion” of the jury during its weighing of aggravators and
mitigators allowed the jury to impose the death penalty in violation of the Eighth Amendment.

       I would also find along with Judge Donald that a miscarriage of justice would occur if
any procedural default were not excused and we failed to reach the merits of Hutton’s Eighth
Amendment claim. The Supreme Court has stated that
No. 13-3968                             Hutton v. Mitchell                                Page 27


       in all cases in which a state prisoner has defaulted his federal claim in state court
       pursuant to an independent and adequate state procedural rule, federal habeas
       corpus review of the claim is barred unless the prisoner can demonstrate cause for
       the default and actual prejudice as a result of the alleged violation of federal law;
       or demonstrate that the failure to consider the claims will result in a fundamental
       miscarriage of justice.

Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir. 2006) (quoting Coleman v. Thompson,
501 U.S. 722, 749 (1991)). Hutton had a constitutional right to have a jury weigh the two
statutory aggravators against the mitigators.      By omitting the instruction on the proper
aggravators to be considered, the trial court allowed the jury unfettered discretion and violated
Hutton’s Eighth Amendment right. There is a reasonable likelihood that the result of the penalty
phase would have been different had the jury been properly instructed. To allow the death
sentence to be carried out when a crucial part of the procedure for choosing between life and
death was omitted would be a serious miscarriage of justice.

       Now twenty-five years later when Hutton makes the argument on both the Eighth and
Sixth Amendment issues, the state, as well as our dissenting colleague, falls back on procedural
default and AEDPA to avoid the merits. In my view, the argument of the dissenting justices of
the Ohio Supreme Court, and the full court’s rejection of it, should not block a federal court in
habeas from reaching and deciding the merits of the issues in this capital case. And when we
reach the merits, there is only one answer. The trial was unconstitutional, as the dissenting
justices found.

       I would issue the writ of habeas corpus for these reasons and give the state an opportunity
to retry the sentencing phase of the case. But now 30 years after the crime and the beginning of
Hutton’s incarceration, I do not believe it would be constitutional under the Eighth Amendment’s
standard of “evolving standards of decency that mark the progress of a maturing society” to
impose the death penalty. Trop v. Dulles, 356 U.S. 86, 100-01 (1958). The reimposition of the
death penalty 30 years later is certainly “unusual,” if not unique, and death is different in kind
from any other punishment.
No. 13-3968                                    Hutton v. Mitchell                                        Page 28


                                         ______________________

                                          DISSENTING IN PART
                                         ______________________

        ROGERS, dissenting in part. Percy Hutton’s jury-instructions claim is procedurally
defaulted, as it was not raised on direct appeal in the state courts. Hutton concedes as much.1
Review of that claim is possible, then, only by finding cause and prejudice for the default (which
the lead opinion does not do), or by stretching the narrow “fundamental miscarriage of justice”
exception far beyond its proper bounds (which the majority does). Not only does that exception
to procedural default not apply in this case, but Hutton never even raised the exception in the
district court or on appeal, waiving the argument in that court and in this one. The procedural
rules that constrain federal-court oversight of state criminal proceedings should not be so lightly
brushed aside.

        Federal courts generally do not entertain claims that are procedurally barred by an
“independent and adequate state procedural rule” unless a valid “cause” excuses the default.
Coleman v. Thompson, 501 U.S. 722, 750 (1991). Throughout federal and state post-conviction
litigation, Hutton has given only one reason for his failure to present the jury-instructions claim
on direct appeal: ineffective assistance of appellate counsel. The ineffective-assistance claim is
premised on appellate counsel’s failure to raise the jury-instructions issue and trial counsel’s
purported ineffectiveness for failing to object to the instructions. As the lead opinion concludes,
however, the ineffective-assistance claim warrants no relief, see Lead Op. ante at 15–16, and so
that claim cannot excuse Hutton’s default.2


        1
          Judge Merritt contends that there was no procedural default because the Ohio Supreme Court’s silence on
Hutton’s claim is a ruling on the merits. Even if the Ohio Supreme Court’s deciding on the merits somehow means
there was no default by Hutton, this court cannot presume that the state-court majority dismissed the claim on the
merits just because three dissenting justices discussed the claim, when Hutton did not even raise the claim on his
direct appeal to the state court. Furthermore, even if such a presumption were appropriate, it would be overcome in
this case. As the lead opinion notes, the state-court majority expressly stated it was not considering the merits of
Hutton’s jury-instructions claim. See State v. Hutton, 559 N.E.2d 432, 437 n.1 (Ohio 1990).
        2
           Judge Merritt states that Hutton “suffered ineffective assistance of counsel by both trial and appellate
counsel so as to overcome the default.” Merritt Op. ante at 4. Even if defense counsel prejudiced Hutton by
deficiently failing to object to the jury instruction during the penalty phase of trial, the lead opinion correctly
concludes that appellate counsel’s failing to raise an ineffective-assistance claim based on this failure was not
deficient, see Lead Op. ante at 16. The Ohio Court of Appeals reversed the judgment on five of appellate counsel’s
No. 13-3968                                    Hutton v. Mitchell                                        Page 29


        That leaves one possible ground for reviewing the merits of Hutton’s jury-instructions
claim: the so-called fundamental-miscarriage-of-justice exception to procedural default, an
argument that Hutton has waived.                 The exception is a narrow one, applying only in
“extraordinary case[s].” Gibbs v. United States, 655 F.3d 473, 477 (6th Cir. 2011) (quoting
Murray v. Carrier, 477 U.S. 478, 496 (1986)). To obtain a merits review of a constitutional
claim, a petitioner asserting this exception must generally show that an “alleged constitutional
error has resulted in the conviction of one who is actually innocent of the underlying offense.”
Dretke v. Haley, 541 U.S. 386, 388 (2004) (citing Murray, 477 U.S. 478; Sawyer v. Whitley,
505 U.S. 333 (1992)). In addition to cases involving factual innocence, the exception has been
applied in the capital sentencing process, but only to the small subset of cases where a habeas
“petitioner has shown by clear and convincing evidence that but for constitutional error, no
reasonable juror would find him eligible for the death penalty under [state] law.” Sawyer,
505 U.S. at 348. In such a case, the petitioner can be said to be “innocent” of the death penalty,
even if he is factually guilty of the capital crime. But Hutton has never argued, in this court or in
the district court, that he is ineligible for the death penalty. He has therefore unquestionably
waived the issue. Hutton’s decision not to raise the argument at any point in federal litigation
prevents us from analyzing whether he satisfies the fundamental-miscarriage-of-justice
exception. See Kuhn v. Washtenaw Cty., 709 F.3d 612, 624 (6th Cir. 2013); see also Foster v.
Michigan, 573 F. App’x 377, 392–93 (6th Cir. 2014).

        In any event, Hutton had good reason not to argue that exception.                         Any argument
concerning the fundamental-miscarriage-of-justice exception would have been a losing one, as a
jury would have been authorized to impose the death penalty if the jury instructions had correctly
defined “aggravating circumstances.” The proper inquiry is not whether a defendant is eligible
for the death penalty even with the alleged error. Compare Lead Op. ante at 14–15. The
exception instead focuses on what would have happened if no error had occurred. The Sawyer
Court used the phrase “but for constitutional error,” Sawyer, 505 U.S. at 348, a phrase that


assignments of error. State v. Hutton, No. 51704, 1988 WL 39276, at *6 (Ohio Ct. App. Apr. 28, 1988), rev’d,
559 N.E.2d 432 (Ohio 1990). It cannot be that under these circumstances appellate counsel’s failure to raise one
other colorable issue amounts to conduct that is so woefully inadequate as to constitute ineffective assistance.
Furthermore, a court must evaluate the objective reasonableness of counsel’s conduct without “the distorting effects
of hindsight.” Strickland v. Washington, 466 U.S. 668, 689 (1984).
No. 13-3968                                     Hutton v. Mitchell                                         Page 30


requires courts to ask whether, assuming that no error had occurred, a jury would have been
authorized by state law to impose the death penalty.3 In applying that standard, Sawyer thus
analyzed whether evidence that the state should have furnished to the defendant would have
prevented the jury from finding either of the necessary conditions for imposing the death
penalty—that the defendant was guilty of the crime and that one or more aggravating
circumstances applied. See id. at 349–50.

         Hutton’s eligibility for the death penalty is indisputable. A defendant becomes death-
eligible in Ohio when the jury convicts him of a capital murder count with an attached
“specification,” as that is the point at which the death penalty is placed on the table. See Wilson
v. Mitchell, 498 F.3d 491, 495 & n.2 (6th Cir. 2007). “Imposition of the death penalty for
aggravated murder is precluded unless one or more [statutorily defined specifications] is
specified in the indictment . . . and proved beyond a reasonable doubt.”                         Ohio Rev. Code
§ 2929.04(A). A specification is an “eligibility factor” that satisfies the Eighth Amendment’s
narrowing requirement. Wilson, 498 F.3d at 505; see also Brown v. Sanders, 546 U.S. 212, 216
(2006). In this case, the jury found two such factors—mass murder and felony murder—in the
process of convicting Hutton of two counts of aggravated murder. Both factors were included in
the indictment. That rendered Hutton eligible for the death penalty.

         As there is no question about the validity of the two specifications, any error in the
penalty-phase jury instructions did not affect Hutton’s eligibility for the death penalty. The
weighing of aggravating circumstances against mitigating evidence does not relate to eligibility.
“Once the narrowing requirement has been satisfied, the sentencer is called upon to determine
whether a defendant thus found eligible for the death penalty should in fact receive it.” Sanders,
546 U.S. at 216. At sentencing, the jury thus weighs the aggravating circumstances that “the
offender was found guilty of committing” against the mitigating evidence. See Ohio Rev. Code
§ 2929.03(D)(2). (The mass murder and felony murder specifications in Hutton’s indictment
doubled as aggravating circumstances for sentencing purposes. See id. § 2929.04(A)(5), (7).)

         3
          The Supreme Court in Sawyer also endorsed an Eleventh Circuit decision that stated the same test in
different words. That formulation required a petitioner to “show that absent the alleged constitutional error, the jury
would have lacked the discretion to impose the death penalty.” Sawyer, 505 U.S. at 347 n.15 (quoting Johnson v.
Singletary, 938 F.2d 1166, 1183 (11th Cir. 1991) (en banc)).
No. 13-3968                              Hutton v. Mitchell                                 Page 31


Any infirmity in the instructions on weighing does not negate a defendant’s earlier-determined
eligibility.

        A hypothetical example demonstrates how this case is different from the type of case that
the fundamental-miscarriage-of-justice exception targets.         Assume that a defendant was
convicted of aggravated murder and that the only aggravating circumstance that the prosecutor
argued was an “especially heinous, atrocious, or cruel” factor. At sentencing, the jury weighed
that factor against the mitigating evidence en route to the conclusion that the death penalty was
warranted. In such a case, the defendant on federal habeas review might be able to show that he
was not eligible for the death penalty, allowing the court to reach the merits of his procedurally
defaulted claim that an error affected his sentence. That is because the “heinous, atrocious, or
cruel” factor is unconstitutionally vague in most applications, see Maynard v. Cartwright,
486 U.S. 356, 364–65 (1988), and no other aggravating circumstances were present in the case.
“Sensible meaning is given to the term ‘innocent of the death penalty’ by allowing a showing in
addition to innocence of the capital crime itself a showing that there was no aggravating
circumstance or that some other condition of eligibility had not been met.” Sawyer, 505 U.S. at
345. Because no valid aggravating factors supported the defendant’s death sentence in the
hypothetical, the defendant would be “actually innocent” of that penalty. The same cannot be
said of this case.

        The Supreme Court’s decisions in Hurst v. Florida, 136 S. Ct. 616 (2016), and Ring v.
Arizona, 536 U.S. 584 (2002), have nothing to do with whether Hutton is eligible for the death
penalty. “[A] claim of ‘actual innocence’ is . . . a gateway through which a habeas petitioner
must pass to have his otherwise barred constitutional claim considered on the merits.” Gibbs,
655 F.3d at 477 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)). Hurst and Ring are
relevant, if at all, to the merits of Hutton’s claim that constitutional error occurred when the trial
judge failed to define the aggravating circumstances. Yet the merits are not reviewable in the
context of this case. A federal habeas court has no business reaching a defaulted claim if the
petitioner can show neither cause for the default nor that he was innocent of the death penalty.

        Even if it were proper to reach the merits, the Supreme Court’s decisions in Hurst and
Ring do not require the conclusion that constitutional error occurred. In those cases, state law
No. 13-3968                             Hutton v. Mitchell                               Page 32


required a judge, at a separate penalty hearing, to find aggravating circumstances before
sentencing a defendant to death. Hurst, 136 S. Ct. 619; Ring, 536 U.S. at 588. The Ohio capital
system, however, does not work that way. In Ohio, the jury weighs aggravating circumstances
and mitigating evidence at sentencing after it has already found the aggravating circumstances at
the guilt stage. Here, the jury found the mass-murder and felony-murder circumstances at the
guilt phase. Compare Maj. Op. ante at 12. What is more, the trial judge in the penalty-phase
instructions reminded the jury that it had made those findings, instructing the jury that “[t]he
prosecution has the burden to prove beyond a reasonable doubt that the aggravating
circumstances, of which the Defendant was found guilty, outweigh the factors in mitigation of
imposing the death sentence.” (Emphasis added.) This is therefore not a case in which the jury
found no aggravating circumstances, but rather a case in which the jury found aggravating
circumstances and later received instructions that did not spell out the aggravating circumstances
that the jury had previously found.

       That distinction makes all the difference for Sixth Amendment purposes.             As we
indicated in Webb v. Mitchell, 586 F.3d 383, 399 (6th Cir. 2009), another Ohio death-penalty
case, a state-law error in penalty-phase instructions on weighing may be cured by appellate
reweighing of the aggravating circumstances and the mitigating evidence. In that case, the state
trial judge erroneously instructed the jury at the penalty phase to consider the quantity of the
evidence in the weighing analysis rather than the quality. Id. at 397. In rejecting an ineffective-
assistance claim, we held that any argument that trial counsel could have raised would not have
been a strong one, reasoning that “[t]he Ohio Supreme Court has consistently held that . . .
‘careful independent reweighing’ cures errors by the jury or trial court in ‘weighing the
aggravating circumstances against any mitigating factors.’” Id. at 399 (quoting State v. Lott,
555 N.E.2d 293, 304 (Ohio 1990)); see also Hoffner v. Bradshaw, 622 F.3d 487, 506 (6th Cir.
2010). Nowhere did we suggest that a penalty-phase error in jury instructions runs afoul of the
Ring line of cases. In this case, as in Webb, the jury found the aggravating circumstances at the
guilt phase, before the error in the penalty-phase instructions. And here, as in Webb, the Ohio
Court of Appeals concluded that the death sentence was appropriate after reweighing the
aggravating circumstances against the mitigating evidence. See State v. Hutton, 594 N.E.2d 692,
694 (Ohio Ct. App. 1991). There is thus strong reason to doubt the merit of Hutton’s claim.
No. 13-3968                             Hutton v. Mitchell                             Page 33


       The judgment of the district court denying Hutton relief should be affirmed. I join all of
the lead opinion except Parts II.A and III.
