                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit Rule 206
                                File Name: 10a0372p.06

              UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                              _________________


                                               X
                                                -
 ARCHIE DIXON,
                                                -
                         Petitioner-Appellant,
                                                -
                                                -
                                                   No. 08-4019
          v.
                                                ,
                                                 >
                                                -
                      Respondent-Appellee. -
 MARC C. HOUK, Warden,
                                                -
                                               N
                 Appeal from the United States District Court
                 for the Northern District of Ohio at Toledo.
                No. 05-01290—James S. Gwin, District Judge.
                              Argued: August 5, 2010
                      Decided and Filed: December 9, 2010
               Before: MERRITT, SILER, and COLE, Circuit Judges

                                _________________

                                    COUNSEL
ARGUED: Michael J. Benza, LAW OFFICE OF MICHAEL J. BENZA, Chagrin Falls,
Ohio, for Appellant. Thomas E. Madden, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Lawrence J. Whitney,
BURDON & MERLITTI, Akron, Ohio, Henry F. DeBaggis, Cleveland, Ohio, for
Appellant. Thomas E. Madden, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee.
       MERRITT, J., delivered the opinion of the court, in which COLE, J., joined.
COLE, J. (pp. 9–23) , delivered a separate concurring opinion. SILER, J. (pp. 24–29),
delivered a separate dissenting opinion.




                                          1
No. 08-4019        Dixon v. Houk                                                  Page 2


                                 _________________

                                      OPINION
                                 _________________

       MERRITT, Circuit Judge. This is a coerced confession, death penalty case. On
November 4, 1993, at the police station house in Toledo, Ohio, petitioner Dixon, after
receiving Miranda warnings, advised detectives that he would not voluntarily answer
their questions without a lawyer present to advise him. Notwithstanding his refusal to
answer questions voluntarily, the detectives five days later devised a strategy to put
pressure on Dixon to confess by questioning him, without Miranda warnings. The
primary habeas corpus issue raised by Dixon is what effect the deliberate, planned police
decision to continue the questioning but not to give warnings under Miranda v. Arizona,
384 U.S. 436 (1966) — a strategy that also included an offer “to cut a deal” for Dixon
rather than his confederate (Hoffner) — has on the admissibility of a confession rendered
four hours later when he agreed to confess.

       The detective told Dixon at the end of the unwarned interrogation, “Now is the
time to say so [confess] because if Tim [Hoffner] cuts a deal it’s kind of like a bus is
leaving. The first one that gets on is the only one that gets on.” Ohio v. Dixon, 805
N.E.2d 1042, 1051 (2004). The police designed a strategy to get a coerced confession
without giving Miranda warnings. The confession would then be followed by the
warnings given in a tape recording before the confession was recorded. Based on this
inverted sequence of events — refusal to answer after Miranda warnings, re-
interrogation without warnings, confession, recorded warnings, recorded confession —
the prosecution argues that the warnings after the initial confession made the confession
“voluntary.” The question is whether the police can cleanse what would otherwise be
an inadmissible confession in this way. The Ohio trial judge said, “No,” but he was
reversed by the Ohio Supreme Court. We agree with the trial judge. A confession
obtained by this kind of police pressure is inadmissible under Miranda and coerced and
involuntary under the Due Process Clause. If the consequences of this kind of
deliberate, unlawful conduct specifically designed to violate Miranda and get a
No. 08-4019        Dixon v. Houk                                                   Page 3


confession is allowed to prevail, as our dissenting colleague contends, the time has come
to simply overrule Miranda.

                       I. Factual and Procedural Background

       On November 4, 1993, Dixon was interrogated at the police station and expressly
exercised his right to remain silent unless a lawyer were present, although he had not
been technically “arrested” at that time. The detectives were, therefore, on notice that
Dixon did not want to talk to them in the absence of his lawyer. After his formal arrest
for murder five days later on November 9, he was interrogated twice more. The
detective decided not to give him any Miranda warnings during the first of these two
sessions because as the Ohio Supreme Court found, in agreement with the trial court,
“the detectives believed that Dixon would invoke his right to counsel if he were issued
Miranda warnings,” which would foreclose further interrogation and defeat their effort
to get a confession. Ohio v. Dixon, 805 N.E.2d at 1049. The detectives’ coercive
strategy succeeded; in the first session, Dixon confessed to a closely related crime. Four
hours later, in the second session, Dixon capitulated to the pressure. The detectives
advised him of his Miranda rights, and he confessed to the murder.

       The Ohio trial judge immediately suppressed Dixon’s statements confessing to
the murder because “they were obtained as a result of a deliberate, bad faith plan on the
part of the police to violate his rights” under Miranda, including an “ultimately false”
statement by the interrogator in the form of a “promise of possible benefits” if Dixon
confessed. The trial judge also found that, although the detectives said that Dixon told
them during the second interrogation on November 9 that he had talked to his lawyer by
phone and was following his lawyer’s advice to confess, this statement by Dixon was
false. The trial judge found that he had not talked to his lawyer and that no lawyer
would likely have given him such advice. Ohio v. Dixon, Trial Court Opinion and
Journal entry, Appellant Appendix, Vol. 3, p. 1252. The State took an interlocutory
appeal on the suppression issue, and the Ohio Court of Appeals disagreed with the trial
judge and found the confession admissible despite the deliberate violation of Miranda.
Ohio v. Dixon, 656 N.E.2d 1 (1996). (This decision was later upheld by the Ohio
No. 08-4019         Dixon v. Houk                                                   Page 4


Supreme Court. 805 N.E.2d 1042.) Dixon was then convicted on the basis of the
confession of a brutal murder in which he participated with his associate in burying the
victim alive. The Ohio jury sentenced him to death and then sentenced his associate to
death.

         After exhausting both his direct and state post-conviction appeals, Dixon filed
for a writ of habeas corpus. Unlike the Ohio trial judge, the district court did not find
the interrogation to be coercive. It followed the ruling of the Ohio Supreme Court on
the Miranda violation and fully accepted its argument that Oregon v. Elstad, 470 U.S.
298 (1985), had held that confessions like the one in this case rendered under an
“interrogate first, warn later” police strategy were admissible. Because Miranda and
Elstad, as well as many other cases, forbid this type of deliberately coercive police
strategy that yields an involuntary confession, we reverse the district court and issue the
writ of habeas corpus.

             II. The Errors of the Ohio Supreme Court under AEDPA

         To issue the writ, we must conclude that the state courts’ adjudication
(1) “involved an unreasonable application of, clearly established federal law, as
determined by the Supreme Court,” 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 proceedings.” 28 U.S.C. § 2254(d). The Ohio Supreme Court erred in both ways.
First, its reliance on Elstad as the basis for admitting the confession involved an
unreasonable application of that case. Second, its finding that Dixon’s confession, after
first asking for a lawyer, was not influenced, caused, or coerced by the detectives’
deliberate “confession first, warnings later” police strategy was based on an
unreasonable determination of the facts and flatly contradicted the trial court’s findings.
The detectives planned to get a confession by violating the Miranda warning
requirement after Dixon asked for a lawyer, and their plan worked four hours later when
they returned for further interrogation and got the confession.
No. 08-4019          Dixon v. Houk                                                   Page 5


       The Ohio Supreme Court relied on Oregon v. Elstad, 470 U.S. 298 (1985), for
its conclusion that Dixon’s confession was admissible and not coerced and involuntary
under Miranda and Due Process. In that case, an officer mentioned a burglary when he
came in to arrest the defendant at the defendant’s home. The defendant immediately
responded that he was involved. Elstad held that the momentary statement and response
had “none of the earmarks of coercion” that is likely to produce an involuntary
confession, id. at 316, and that the defendant’s later full-dress confession at the station
house after full and complete Miranda warnings was admissible. The Court in Elstad
defined the concept of a “coerced” confession and distinguished the case from other
cases in which the failure to warn was accompanied by “actual coercion or other
circumstances calculated to undermine the suspect’s ability to exercise his free will.”
Id. at 309. In a later case, Missouri v. Seibert, 542 U.S. 600 (2004), the U.S. Supreme
Court said that the holding in Elstad on its face was obviously designed to distinguish
a case exactly like Dixon’s in which the police follow a deliberate question-first, warn-
later strategy. The Supreme Court in Seibert said that Elstad stands for the proposition
that such a “police strategy adapted to undermine the Miranda warnings” renders the
confession inadmissible “because the question-first tactic threatens to thwart Miranda’s
purpose of reducing the risk that a coerced confession would be admitted.” Id. at 617.
Elstad itself is clear, and Seibert simply reinforced its meaning.

       In the instant case, five days before the question-first strategy was used, Dixon
had made it completely clear to the police that he did not want to talk to the detectives
without a lawyer present. Not only is the police strategy used here inconsistent with
Elstad and Seibert, it contravenes the clear language of Chief Justice Warren’s opinion
in Miranda itself.

               Once warnings have been given, the subsequent procedure is
       clear. If the individual indicates in any manner, at any time prior to or
       during questioning, that he wishes to remain silent, the interrogation must
       cease. At this point he has shown that he intends to exercise his Fifth
       Amendment privilege; any statement taken after the person invokes his
       privilege cannot be other than the product of compulsion, subtle or
       otherwise. Without the right to cut off questioning, the setting of in-
       custody interrogation operates on the individual to overcome free choice
No. 08-4019        Dixon v. Houk                                                    Page 6


       in producing a statement after the privilege has been once invoked. If the
       individual states that he wants an attorney, the interrogation must cease
       until an attorney is present. At that time, the individual must have an
       opportunity to confer with the attorney and to have him present during
       any subsequent questioning. If the individual cannot obtain an attorney
       and he indicates that he wants one before speaking to police, they must
       respect his decision to remain silent.

Miranda v. Arizona, 384 U.S. 436, 473-74 (1966) (emphasis added). The Supreme
Court has consistently maintained that the bright-line rule of Miranda against further
interrogation by police remains in effect. E.g., Edwards v. Arizona, 451 U.S. 477, 484-
85 (1981).

       Moreover, in contrast to the finding of the Ohio Supreme Court that Dixon’s
statements at the evening interrogation four hours later were “voluntary” and not “the
product of a compulsion, subtle or otherwise,” the trial judge who heard the testimony
of the witnesses found exactly the opposite. The trial court recounted that the detectives
had engaged in a thirty-minute interrogation of Dixon before Miranda warnings were
given and the tape recorder turned on. During that time they informed Dixon that his
confederate, Hoffner, had led police to the buried body of the victim. They advised
Dixon that they had not arrested Hoffner but let him go home, and then referred back to
the earlier afternoon interrogation that had ended with the detective’s advice to “get on
the bus” because “the first one that gets on it is the only one” who will get a “deal.”

       This sequence of events is in direct conflict with the findings of the Ohio
Supreme Court of “no coercion” or of the “voluntariness” of Dixon’s confession. The
Ohio Supreme Court attempted to purge the detectives’ offer of the “deal” of any
coercive effect by implausibly characterizing it only as a mere “admonition to tell the
truth.” On the contrary, the “cut-a-deal” dialogue was another step in the effort to get
a confession by persuading Dixon that he had no right to silence or a lawyer but rather
a duty to incriminate himself — the very opposite of his Miranda rights and his right to
due process. Holding out the promise of a “deal” to avoid the death penalty in return for
a confession, as the trial judge found, is a high-pressure tactic designed to override
Dixon’s previous five-day stand against talking. A confession given in response to such
No. 08-4019        Dixon v. Houk                                                    Page 7


tactics is not voluntary. See Mincey v. Arizona, 437 U.S. 385, 396-99 (1978) (positing
a per se rule against use of such a coerced confession).

       To summarize, there are three clear constitutional errors by the Ohio Supreme
Court that remove the case from AEDPA deference under 28 U.S.C. § 2254(d):

       1. The Ohio Supreme Court unreasonably applied Miranda v. Arizona in
refusing to require the police to terminate interrogation upon the exercise of the right to
have a lawyer present and in allowing the police to demand involuntary answers by re-
instituting the questioning without warnings.

       2. That court unreasonably applied Oregon v. Elstad by holding that the
deliberate, planned refusal to warn, followed by warnings after confession should be
treated the same as the momentary, innocent failure to warn in Elstad.

       3. That court’s finding that Dixon’s confession was voluntary resulted in a
decision that was based on an unreasonable determination of facts presented in the state
court proceeding. The “admonition” that Dixon should “cut a deal” was not simply “an
admonition to tell the truth.” It was part of the coercive strategy to get Dixon to confess
involuntarily. In this conclusion, we are in accord with the court that actually heard the
evidence and that was in the best position to determine the facts — the Ohio trial court.

       In addition, the last violation occurred in part because the Ohio Supreme Court
erroneously placed the burden of proof on Dixon to prove that his confession was
coerced. That court concluded that “Dixon has failed to explain how the detective’s
coercive subjective intent coerced him to a greater extent than if the Miranda violation
had been inadvertent.” 805 N.E.2d at 1050-51. This view is contrary to Supreme Court
law. E.g., Colorado v. Connelly, 479 U.S. 157, 167 (1986) (holding that “coercive
police activity is a necessary predicate to ‘suppression’ ” and when shown “the state
bears a ‘heavy’ burden in proving waiver”); North Carolina v. Butler, 441 US. 369, 373
(1979) (same). In Miranda itself the Court said that “a heavy burden rests on the
government”; the satisfaction of this burden “will not be presumed simply from the
silence of the accused after warnings are given or simply from the fact that a confession
No. 08-4019        Dixon v. Houk                                                  Page 8


was in fact eventually obtained.” 384 U.S. at 475. Here the confession was “eventually
obtained” but only after the police wore Dixon out with admittedly illegal interrogation,
the only purpose of which was to get him to confess against his will. The police used
both illegal questioning and, as the Ohio trial judge found, false enticement “to cut a
deal.”

         Accordingly, the petition for writ of habeas corpus is granted pursuant to
28 U.S.C. § 2254(d) and the State has 180 days to retry Dixon. In light of our ruling on
the coercive police interrogation issue, the other issues raised in the petition are
pretermitted.
No. 08-4019        Dixon v. Houk                                                    Page 9


                              _______________________

                                  CONCURRENCE
                              _______________________

       COLE, Circuit Judge, concurring. I concur in the majority opinion, but write
separately because I would also grant Dixon’s petition on his ineffective assistance of
counsel claim.

                                            I.

       At the penalty phase, Dixon’s counsel presented as “mitigating evidence” the
testimony of an employee of the Bureau of Sentence Computation for the Ohio
Department of Rehabilitation and Correction, who testified that Dixon would serve a life
sentence with no chance for parole. Counsel also admitted into evidence a copy of
Dixon’s birth certificate to establish his youth. Dixon contends that his counsel’s failure
to present additional mitigating evidence constitutes ineffective assistance of counsel.
He argues specifically, that evidence of his family history, which included evidence of
domestic violence, sexual abuse, alcoholism, possible incest, and lack of positive role
models, should have been presented. The Warden answers that if any such evidence had
been introduced, it would have opened the door for the prosecution to introduce evidence
of Dixon’s bad character and prior bad acts.

       The district court held an evidentiary hearing on Dixon’s ineffective assistance
of counsel claim. (R. 75.) It applied the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), 28 U.S.C. § 2241 et seq., to Dixon’s petition, and under its
deferential standard of review the district court affirmed the Ohio Court of Appeals’
denial of Dixon’s ineffective assistance claim. (R. 79, at 42.) Both parties on appeal
agree AEDPA governs this claim; however, we must make an independent determination
as to whether AEDPA applies. Brown v. Smith, 551 F.3d 424, 428 n.2 (6th Cir. 2008).

       In this case, AEDPA does not govern Dixon’s ineffective assistance of counsel
claim. When “new, substantial evidence” is presented to a federal district court on a
habeas claim that was not before the state court, the state court’s determination of the
No. 08-4019        Dixon v. Houk                                                  Page 10


issue could not have been on the merits, and thus is not entitled to AEDPA deference.
Brown, 551 F.3d at 429 (holding that the rule announced in Joseph v. Coyle, 469 F.3d
441, 469 (6th Cir. 2006), that AEDPA does not apply to habeas claims premised on
Brady material that appears for the first time during federal proceedings “applies
generally”). This rule only applies, however, if the threshold standard for admitting new
evidence is met.

       In Brown, we found that the district court erred in applying AEDPA to the
ineffective assistance claim on habeas review because “the counseling notes that
form[ed] the basis of the claim were not in the record before the Michigan Court of
Appeals, and that court explicitly acknowledged that its review was limited to mistakes
apparent on the record.” Id. at 428-29 (internal quotation marks and citation omitted).
On post-conviction review, the Ohio Court of Appeals applied the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984), and held that Dixon failed to prove his
ineffective assistance of counsel claim after reviewing the evidence Dixon submitted to
support his claim, a report prepared by a mitigation specialist and affidavits from several
individuals. State v. Dixon, 2000 WL 1713794, at *16 (Ohio Ct. App. Nov. 17, 2000).
At the federal evidentiary hearing, the district court heard evidence not before the state
court through the testimony of Dixon’s trial counsel, Mark Geudtner and Joe Scalzo, as
well as Gary Ericson (the mitigation specialist hired by Dixon’s trial counsel), Dr.
Christopher Layne (the psychologist hired by Dixon’s trial counsel) and Anna Marie
Dixon (Dixon’s mother). The district court thus based its decision to deny Dixon’s
petition for habeas corpus, at least in part, on “new, substantial evidence,” Brown,
551 F.3d at 429, not previously before the state courts. Therefore, AEDPA will not
apply if the district court properly allowed Dixon to admit new evidence.

       In order to admit new evidence on a habeas petition before a district court, the
following standard must be met: “(1) the petitioner must not be at fault for failing to
develop the evidence in state court, or (2) if the petitioner is at fault, the narrow
exceptions set forth in 28 U.S.C. § 2254(e)(2) apply.” Brown, 551 F.3d at 429 (citing
Holland v. Jackson, 542 U.S. 649, 652-53 (2004)). We review a district court’s decision
No. 08-4019         Dixon v. Houk                                                    Page 11


to hold an evidentiary hearing under an abuse-of-discretion standard. Lott v. Coyle, 261
F.3d 594, 602 (6th Cir. 2001). The district court found that Dixon diligently sought an
evidentiary hearing in the state courts, was repeatedly denied, and was not at fault for
failing to develop the record in state court. (R. 79, at 21.) If a petitioner is not barred by
28 U.S.C. § 2254(e)(2) from receiving an evidentiary hearing, the district court has
discretion to grant a hearing, Schriro v. Landrigan, 550 U.S. 465, 468 (2007), but it
must consider whether a hearing “could enable an applicant to prove the petition’s
factual allegations, which, if true, would entitle the applicant to federal habeas relief.”
Id. at 474. Dixon alleged that his counsel failed to create a mitigation strategy and had
no strategic reason for their failure to present mitigation evidence. The district court
correctly concluded that if these factual claims were true, it could entitle Dixon to relief
on his ineffective assistance claim. Therefore the district court did not abuse its
discretion in granting an evidentiary hearing on this claim.

        Because the district court’s decision rested on properly admitted “new,
substantial evidence,” AEDPA is inapplicable and “the pre-AEDPA standard of review
[applies]: de novo for questions of law (including mixed questions of law and fact), and
clear error for questions of fact.” Brown, 551 F.3d at 430. “The performance and
prejudice components of Strickland present mixed questions of law and fact and are
reviewed de novo.” Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008).

                                             II.

        To prevail on an ineffective assistance of counsel claim, “the petitioner must
show that: (1) counsel’s performance was deficient, and (2) the deficient performance
prejudiced the defense so as to deprive the defendant of a fair trial.” Keith v. Mitchell,
455 F.3d 662, 670 (6th Cir. 2006) (citing Strickland, 466 U.S. at 687 (1984)).

        A.      Deficient Performance

        Dixon contends he was denied the effective assistance of counsel because his
counsel failed to investigate and present relevant mitigating evidence during the penalty
phase. Dixon had the assistance of Joe Scalzo and Mark Geudtner during both the guilt
No. 08-4019            Dixon v. Houk                                                              Page 12


and penalty phases of his trial. At the outset, they divided the responsibilities between
them; Geudtner was responsible for the pretrial motions and the trial, and Scalzo was
responsible for the penalty proceedings. In preparation for the penalty phase, they hired
Ericson, a licensed private investigator and mitigation specialist, and Dr. Layne, a
clinical psychologist. Ericson completed a fifty-one page mitigation report that included
extensive evidence of Dixon’s dysfunctional family and social history, and gave the
report to Scalzo. Ericson met with defense counsel early in the process, but had no
contact with them after that and never discussed his report with either Scalzo or
Geudtner. Dr. Layne conducted a battery of psychological tests on Dixon, but concluded
that the results would not have been helpful to Dixon in the penalty phase and did not
complete his report.

         Geudtner testified that he realized at the end of the trial that Scalzo had prepared
insufficiently for mitigation. Thus, Geudtner spent the weekend after the guilty verdict
was rendered developing three arguments to put before the jury in the mitigation phase.1
Geudtner planned to introduce evidence showing that: (1) Dixon had served eight
months in jail for a crime for which he was later exonerated by DNA evidence;
(2) Dixon offered to plead guilty if the death penalty were not sought and the
prosecution rejected his offer; and (3) other capital cases in the area did not result in the
death penalty for those defendants. Geudtner did not seek a ruling from the trial court
on whether such evidence would be admissible at the penalty phase, however, and the
court prohibited Geudtner from presenting it. Geudtner explained that he did not seek
a ruling on the admissibility of this evidence prior to the start of the penalty phase
because he did not want to give the prosecution a preview of his strategy. Unfortunately
for Dixon, this left defense counsel unclear about their overall strategy; the trial court
granted a continuance only until that afternoon for counsel to develop a mitigation
strategy.



         1
           To the extent that Geudtner tried to compensate for his co-counsel’s failures, his efforts are
laudable. They do not, however, constitute effective assistance. Failure to begin mitigation preparations
before the close of the guilt phase is objectively unreasonable under Strickland. See Jells v. Mitchell, 538
F.3d 478, 493 (6th Cir. 2008) (collecting cases).
No. 08-4019        Dixon v. Houk                                                  Page 13


       A defendant has “a constitutionally protected right—to provide the jury with the
mitigating evidence that his trial counsel either failed to discover or failed to offer.”
Williams v. Taylor, 529 U.S. 362, 393 (2000). In order to prove his counsel were
deficient, Dixon must show “that his ‘counsel’s representation fell below an objective
standard of reasonableness.’” Awkal v. Mitchell, 613 F.3d 629, 638 (6th Cir. 2010) (en
banc) (quoting Strickland, 466 U.S. at 688).         When deciding whether counsel’s
assistance was deficient at the penalty phase we do not decide “‘whether counsel should
have presented a mitigation case,’ but rather, ‘whether the investigation supporting
counsel’s decision not to introduce mitigating evidence of [petitioner’s] background was
itself reasonable.’” Jells v. Mitchell, 538 F.3d 478, 491 (6th Cir. 2008) (quoting Wiggins
v. Smith, 539 U.S. 510, 523 (2003)). When determining the reasonableness of counsel’s
investigation, the “quantum of evidence known to counsel must be considered, as well
as whether that evidence should have led a reasonable attorney to investigate further.”
Clark v. Mitchell, 425 F.3d 270, 284 (6th Cir. 2005) (citing Wiggins, 539 U.S. at 527).

       Dixon argues that his counsel were deficient in failing to introduce mitigating
evidence of Dixon’s dysfunctional family and social history, which included domestic
violence, possible incest, alcoholism, and negative role models, and by failing to call the
following witnesses: his mother, older brother, and his foster parents Nancy and Dale
Wolfe. The Warden argues that defense counsel’s “life means life” mitigation theme
was a strategic decision not to introduce details of Dixon’s past in order to avoid the
admission of evidence of Dixon’s bad character and prior bad acts. Dixon claims that
it was deficient for his counsel not to consider a way to cabin witnesses’ testimony to
avoid introduction of such evidence and for failing to make a motion in limine to exclude
his prior conviction.

       Strickland dictates that counsel’s performance must be evaluated “under
prevailing professional norms.” 466 U.S. at 688. “[T]he ABA standards for counsel in
death penalty cases provide the guiding rules and standards to be used in defining the
‘prevailing professional norms’ in ineffective assistance cases.” Hamblin v. Mitchell,
354 F.3d 482, 486 (6th Cir. 2003). The Supreme Court has clarified though, that
No. 08-4019              Dixon v. Houk                                                             Page 14


“[r]estatements of professional standards . . . can be useful as ‘guides’ to what
reasonableness entails, but only to the extent they describe the professional norms
prevailing when the representation took place.” Bobby v. Van Hook, — U.S. —, 130
S.Ct. 13, 16 (2009) (citing Strickland, 466 U.S. at 688) (explaining that looking to the
ABA guidelines announced eighteen years after [the defendant] went to trial ignored the
limitations set by Strickland). The guilt and penalty phases of Dixon’s trial were
conducted in October-November 1995. Therefore, the guidelines in place at that time,
the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty
Cases (1989), are useful in determining what constitutes reasonable representation. As
explained in the guidelines, “[c]ounsel should consider all pretrial motions potentially
available” to address issues such as “matters of evidence or procedure at either the
guilt/innocence or penalty phase of trial which may be appropriately litigated by means
of a pretrial motion in limine.” Id. at § 11.5.1. With regards to presentation of evidence
at sentencing, counsel should present “all reasonably available evidence in mitigation
unless there are strong strategic reasons to forego some portion of such evidence.” Id.
at § 11.8.6. The ABA guidelines support the commonsense notion that when faced with
the possibility of the prosecution introducing damaging rebuttal evidence, counsel
should make reasonable efforts to prevent this from occurring.2

         Neither of Dixon’s attorneys filed a motion in limine to prohibit Dixon’s past
conviction from being admitted,3 nor did either attorney speak with any of the potential
witnesses or Ericson to develop a strategy to present mitigating evidence without
permitting the admission of potentially aggravating evidence from Dixon’s life. Of


         2
             The 2003 revised edition explicitly addresses this scenario and states that
         when faced with the possibility that any portion of the defense case will open the door
         to the prosecution’s presentation of otherwise inadmissible aggravating evidence[,]
         [c]ounsel should pursue all appropriate means (e.g., motions in limine) to ensure that the
         defense case concerning penalty is constricted as little as possible by this consideration.
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, § 10.11 (2003
rev. ed.).
         3
          Defense counsel filed a motion to exclude any evidence of other crimes, wrongs, or acts on
December 5, 1993, almost two years before the trial began. The trial court denied the motion finding that
“any evidentiary issues dealing with other criminal acts [would be] dealt with during trial as they arose.”
Nothing in the record indicates this issue was ever revisited by either party or the court.
No. 08-4019           Dixon v. Houk                                                            Page 15


course, if there were no legal avenue for counsel to pursue to prevent such evidence from
being admitted, failure to do so could not be considered unreasonable. A brief
examination of Ohio law is therefore necessary to determine whether counsel’s lack of
investigation of this issue was constitutionally deficient.

         Under Ohio law, the “history, character, and background of the offender” is a
statutory mitigation factor, Ohio Rev. Code § 2929.04(B), and defendants have “great
latitude in the presentation of evidence of [mitigation] factors.” Ohio Rev. Code
§ 2929.04(C). The Ohio Supreme Court has found that the prosecution’s burden of
proving beyond a reasonable doubt that the aggravating factors outweigh the mitigating
factors “empow[ers]” the prosecutor “to rebut mitigation evidence offered by the
defendant where the prosecutor has a good faith basis for believing that such evidence
is false.” State v. DePew, 528 N.E.2d 542, 554 (Ohio 1988). But this rebuttal is limited
“to those instances where the defense offers a specific assertion, by a mitigating witness
or by the defendant, that misrepresents the defendant’s prior criminal history.” State v.
Henness, 679 N.E.2d 686, 698 (Ohio 1997) (emphasis added). Additionally, evidence
of a defendant’s good character presented at mitigation allows the prosecution to rebut
with evidence of the defendant’s prior bad acts. Ohio R. Evid. 404(A)(1); see also State
v. Jalowiec,744 N.E.2d 163, 177-78 (Ohio 2000) (explaining that defendant opened the
door to rebuttal by “call[ing] several witnesses [at sentencing] to testify about what a
good person he was.”)4

         The relevant law demonstrates that evidence misrepresenting Dixon’s criminal
past, or evidence of his good character, might have opened the door to rebuttal evidence
by the prosecution. See Jalowiec, 744 N.E.2d at 177 (“The trial court has discretion to
determine what relevant evidence is admissible as proper rebuttal.”). But more
importantly, the details of Dixon’s dysfunctional family history would not. We
previously found this to be true when interpreting Ohio law in Mason v. Mitchell,
320 F.3d 604 (6th Cir. 2003). In Mason, we explained that, “[t]estimony that simply put


         4
         The Ohio rules of evidence apply to the penalty phase of a capital trial. State v. Lorraine, 613
N.E.2d 212, 220 (Ohio 1993).
No. 08-4019          Dixon v. Houk                                                Page 16


Mason’s childhood into context without misrepresenting it would not have been subject
to the prosecutor’s rebuttal evidence[.]” Id. at 627; see also id. at 622 (“[T]estimony in
this case concerned Mason’s troubled childhood . . . which would have aided him at
sentencing because it did not give the prosecutor the same opportunity for rebuttal that
evidence about good character or rehabilitation potential could have.”)

          This case is similar to Mason in another important respect. In Mason, defense
counsel obtained some mitigating information, and we explained that “the limited
information obtained by defense counsel did not discharge counsel’s duty to investigate,
but triggered the duty to investigate.” Mason, 320 F.3d at 624 n.12. To determine the
reasonableness of counsel’s investigation, we look at the “quantum of evidence known
to counsel” and whether “that evidence should have led a reasonable attorney to
investigate further.” Clark, 425 F.3d at 284 (citing Wiggins, 539 U.S. at 527) (emphasis
added).

          Here, Dixon’s counsel had a detailed, thorough mitigation report and several
witnesses willing and available to testify, yet neither attorney investigated a way to use
any of this evidence, either by discussing with potential witnesses or Ericson a way to
limit their testimony to only those subjects that would not “open the door” for the
prosecution, or by filing a motion in limine in the hope that the court would deny
admission of Dixon’s prior conviction. Scalzo explained that he was concerned about
the jury learning of Dixon’s criminal history, but also acknowledged that the evidence
could be found too prejudicial to be admitted. Scalzo could not remember if he and
Geudtner ever discussed the possibility of filing such motions, and there is no evidence
they ever discussed the mitigation phase. Geudtner stated that he left preparation of the
mitigation phase entirely to Scalzo, and realized at the end of the guilt-phase portion of
the trial that Scalzo “hadn’t prepared much” and “pretty much fell flat on his face.” He
described Scalzo’s performance as “overwhelmingly deficient.”

          To determine the reasonableness of counsel’s mitigation strategy, “‘a reviewing
court must consider the reasonableness of the investigation said to support that
strategy.’” Jells v. Mitchell, 538 F.3d 478, 492 (6th Cir. 2008) (quoting Wiggins,
No. 08-4019        Dixon v. Houk                                                 Page 17


539 U.S. at 527). Given the “great latitude” Ohio grants defendants in the presentation
of mitigation evidence, “professionally competent assistance in Ohio capital cases”
requires a “reasonably thorough investigation into all possible mitigation evidence that
would present a sympathetic picture of the defendant’s family, social, and psychological
background.” Id. at 495-96 (citing Wiggins, 539 U.S. at 524). “Strategic choices made
after thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments support the
limitations on investigation.” Strickland, 466 U.S. at 690-91 (emphasis added); see also
Spisak v. Mitchell, 465 F.3d 684, 704 (6th Cir. 2006) (“[A]ny decision to forego
mitigation evidence is unreasonable if not made after a reasonable determination to cease
further investigation.”), overruled on other grounds by Smith v. Spisak, 554 U.S. — , 130
S. Ct. 676 (2010). If counsel stops short of a thorough investigation, however, “‘the
deference owed to counsel’s strategic judgments about mitigation is directly proportional
to the adequacy of the investigations supporting such judgments.’” Eley v. Bagley,
604 F.3d 958, 973 (6th Cir. 2010) (quoting Jells, 538 F.3d at 492).

       Dixon’s counsel did not speak with any of the witnesses who could have testified
on Dixon’s behalf. Without any investigation regarding the extent to which rebuttal
evidence might be allowed, defense counsel abandoned the idea of introducing any
evidence related to Dixon’s extremely dysfunctional family in favor of a “life means
life” mitigation theme. Scalzo described his mitigation strategy as, “to go on more
economical things: How long is a person supposed to live while in prison, how much is
it going to cost, versus giving him death, from an economic standpoint.” Geudtner, who
began working on the penalty phase the weekend before it was set to begin, after
learning Scalzo had prepared nothing, testified that he never read Ericson’s report.
Counsel’s failure to make a thorough investigation of either law or facts made “a fully
informed decision with respect to sentencing strategy impossible.” Wiggins, 539 U.S.
at 527-28. Counsel’s decision not to present any of the evidence available to them in
No. 08-4019             Dixon v. Houk                                                                 Page 18


mitigation was not reasonable and their performance at the penalty phase was deficient
under Strickland.5

         B.        Prejudice

         A finding of deficient performance alone is insufficient for Dixon to prevail on
an ineffective assistance of counsel claim. “An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the
error had no effect on the judgment.” Strickland, 466 U.S. at 691. He must also
demonstrate prejudice, that is, a reasonable probability that the newly available
mitigation evidence would have led to a different outcome. Wiggins, 539 U.S. at 537.
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Thus, if there is a reasonable probability that a
single member of the jury would have found that the aggravating circumstances of the
crime did not outweigh the mitigating circumstances, Dixon is entitled to a new penalty-
phase trial. See State v. Robb, 723 N.E.2d 1019, 1044 (Ohio 2000) (only a unanimous
jury can impose death). Dixon has met this burden.

         To determine prejudice we must “reweigh the mitigation evidence against the
evidence of aggravation. . . . including evidence presented in habeas proceedings.”
Williams v. Anderson, 460 F.3d 789, 804 (6th Cir. 2006). “Prejudice is established
where, taken as a whole, the available mitigating evidence might well have influenced

         5
            Counsel’s deficient performance at the mitigation phase is particularly troubling when viewed
within the larger trial context. Counsel put on no case-in-chief and cross-examined only three of the state’s
fifteen witnesses at the guilt-phase portion of the trial. The trial transcript of the state’s witnesses was 364
pages long, with only eight of the pages covering cross-examination. Scalzo agreed that “there was very
little cross-examination of any witness.” Geudtner described their strategy once the trial started as to
“pretty much just to sit there and take it,” because he did not feel that they had “much of a chance to
prevail on the guilt phase of the trial.”
           Furthermore, Scalzo’s other explanation for not presenting mitigating evidence is similarly
unreasonable. Scalzo explained that he did not present evidence of Dixon’s family history because “it was
from our experience that juries weren’t buying that. In the situation—I didn’t want to upset them any more
than they already were about the crime.” Counsel’s explanation that he viewed the report as not helpful
is not a strategic decision, but rather “an abdication of advocacy.” Austin v. Bell, 126 F.3d 843, 849 (6th
Cir. 1997) (finding counsel’s failure to present mitigating witnesses “because he did not think it would do
any good,” even though several friends, relatives, experts and a minister were available and willing to
testify,“an abdication of advocacy” and not a strategy). When a defendant has been found guilty of death
penalty charges, he is “virtually guaranteed a sentence of death unless he [can] produce sufficient
mitigation evidence at the penalty phase to generate reasonable doubt in the mind of at least one juror.”
Frazier v. Huffman, 343 F.3d 780, 793 (6th Cir. 2003).
No. 08-4019        Dixon v. Houk                                                 Page 19


the sentencer’s appraisal of the petitioner’s moral culpability.” Jells, 538 F.3d at 498
(citation and internal quotations omitted).

       The jury found Dixon guilty of the following aggravating circumstances
presented at sentencing: (1) that he was the principal offender and committed the murder
during a robbery and kidnapping; and (2) that he had committed the murder with prior
calculation and design. Dixon, 805 N.E.2d at 1058. The evidence submitted at the
penalty phase in mitigation was Dixon’s age at the time of the offense (twenty years old)
and the testimony of the Chief of the Bureau of Sentence Computation, who testified to
the time of actual incarceration if the jury recommended a life sentence. The jury did
not hear any evidence related to Dixon’s background.

       In support of his ineffective assistance claim, Dixon submitted Ericson’s report
along with affidavits from James Eisenberg (a forensic and clinical psychologist), Paul
Dixon, Jr. (Dixon’s brother), Anna Marie Dixon (his mother), Nancy Wolfe (his former
foster mother), David Lewis (his high-school wrestling coach), and testimony of several
individuals from the federal court evidentiary hearing. Ericson’s mitigation report, more
than fifty pages in length, was the result of a comprehensive review of a multitude of
records, including, school, employment, hospital, psychological, and court records, as
well as interviews with Dixon’s mother, brother, former foster parents, former probation
officer, a deacon and Dixon’s church, and the mother of Dixon’s girlfriend.

       The report revealed the following details about Dixon. His family life was
dysfunctional and abusive, and he had no positive role models, outside of approximately
eighteen months living with foster parents. There was a family history of alcoholism.
Dixon’s father, uncle, paternal grandfather, and both maternal grandparents were
alcoholics, and his mother had a “drinking problem.” Dixon’s father was arrested
between seven and ten times for driving under the influence of alcohol and was ordered
by a court to attend an alcohol treatment program.

       Dixon’s father physically abused him. Lucas County Children Services records
revealed a history of abuse of both Dixon and his brother by both parents, but that
Dixon’s father was “particularly abusive when drinking especially to [Dixon].” Indeed,
No. 08-4019        Dixon v. Houk                                                  Page 20


Dixon’s mother filed, but later dropped, several domestic violence charges against
Dixon’s father. His father’s violence was not limited to Dixon, however. Dixon’s foster
mother described how employees at the local court feared Dixon’s father because he had
once made a death threat to a court employee. One evening, Dixon’s father shot six
rounds of his shotgun from inside the home because he was angry at Dixon’s mother.

       The accounts of abuse Dixon endured from his father are particularly troubling.
The father hit Dixon with a baseball bat, “kicked” him, “smacked” him, and “lost
control” with Dixon. In one instance, Dixon did not do what his father asked, causing
his father to “put his steel toed boots on” and kick Dixon “like a man;” as a result, one
of Dixon’s ribs is deformed. In another incident, Dixon’s father hit him in the face so
hard it left fingerprints. The police were called, but his mother explained that “luckily”
Dixon was asleep, with his face down where he had been hit. The police left without any
further investigation or arrest. Dixon himself described his father as “very aggressive”
and stated that his father beat him a number of times; Dixon’s brother described their
father as “explosive.”

       Ericson further reported that Dixon himself suffered from alcohol abuse,
polysubstance abuse, anxiety and depression. He began taking drugs when he was
thirteen years old, when “behavioral and family issues were most significant.” He
attended a treatment and rehabilitation center, and “[a]ttention was given to his lack of
understanding of the negative consequences of his drug involvement and the lack of a
male role model.”        Ericson’s report summarized medical records indicating that
individual counseling was recommended due to the high level of dysfunction within the
family, but that the family could not be motivated to follow through with these
suggestions.

       Additionally, Dixon’s brother, Paul Dixon, Jr., a Marine based in North Carolina,
was available to testify on Dixon’s behalf. Paul explained how he spent little time at
home during his youth, and how an environment away from his home allowed him to
“have abilities and qualities that are basic to most people, but not common to my
immediate family.” He described his family as “extremely tense,” “often disruptive and
No. 08-4019        Dixon v. Houk                                                  Page 21


perhaps dysfunctional.” He attested that Dixon did not have the benefit of an extended
removal from the family as he did, and how Dixon was “negatively affected because of
it.”

       Paul’s statements are supported by Dixon’s former foster parents, Nancy and
Dale Wolfe—who had Dixon in their care for about one to one and one half years. They
“observed a major backslide [in Dixon’s behavior]” and how he “became very defiant”
and “belligerent” when the court decided to release him back to his parents. Nancy
Wolfe explained how Dixon “modeled his behavior after his father.” Dixon told Dale
Wolfe that he was fearful of his father and did not want to go home.

       There is also evidence of incest and sexual abuse within the family. Dixon’s
sister was repeatedly molested by her maternal grandfather as a child. Records from
Lucas County Children Services indicate that sexual contact and possible intercourse
occurred between both brothers and their sister, as well as their father and their sister.
Both parents resisted counseling and characterized their sons’ behavior as “normal
curiosity.”

       A case worker with the Lucas County Court of Common Pleas, Juvenile
Division, did a case assessment on the Dixons after several sessions with the family. He
described sexual encounters between the siblings and felt they learned such behavior
from their father. When asked about the sexual inappropriateness, Dixon’s father
threatened the case worker and told him he was “asking for serious trouble.” The case
worker explained how the Dixon family was given the worst score regarding “family
system pathology” from “day one,” never improved, and was one of the worst families
with which he had worked.

       The Warden argues that details of Dixon’s childhood would have had little or no
effect on his sentence. The evidence belies such a conclusion. The evidence shows
Dixon’s family history was filled with chronic alcoholism, domestic violence, possible
incest, and negative role models. As Dr. Eisenberg explained, this information would
have provided the jury with “insight and understanding into the development of Dixon’s
No. 08-4019        Dixon v. Houk                                                Page 22


personality and pathology,” and “an understanding of the family dynamics that lead to
Mr. Dixon’s violent behavior.”

       The circumstances of the crime are heinous, there is no doubt. But at no point
during the trial did the jury hear any details of Dixon’s dysfunctional and abusive
upbringing. It is arguable whether any actually mitigating evidence was presented. The
introduction of Dixon’s birth certificate showed the jury that he was above the age of
eighteen when he committed the offense. The testimony of the Bureau of Sentence
Computation employee was even less helpful, as the Ohio Supreme Court explained that
“sentence computations [are] entitled to no weight in mitigation.” Dixon, 805 N.E.2d
at 1062 (citing State v. White, 709 N.E.2d 140, 155-56 (Ohio 1999). The large
discrepancy between the nominal evidence given to the jury and the available evidence
of Dixon’s dysfunctional family life demonstrates a reasonable probability that at least
one member would not have returned a sentence of death. See Rompilla v. Beard, 545
U.S. 374, 393 (2005) (finding prejudice where the evidence not presented at sentencing
“adds up to a mitigation case that bears no relation to the few naked pleas for mercy
actually put before the jury”).

       The evidence of Dixon’s family history would have presented the jury with a
different calculation to make at the penalty phase. As we have explained before,

       ‘I and the public know [w]hat all schoolchildren learn,’ it has been said,
       “[t]hose to whom evil is done [d]o evil in return.” W.H. Auden,
       “September 1, 1939.” While these words may not capture a satisfactory
       theory of morality, they assuredly suggest a plausible theory for sparing
       a life at a mitigation hearing[.]

Johnson v. Bagley, 544 F.3d 592, 606 (6th Cir. 2008) (finding prejudice under Strickland
because the new evidence differed “from that heard by the jury not only in degree but
also in kind”); see also Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (“[E]vidence about
the defendant’s background and character is relevant because of the belief, long held by
this society, that defendants who commit criminal acts that are attributable to a
disadvantaged background . . . may be less culpable than defendants who have no such
excuse.”).
No. 08-4019         Dixon v. Houk                                                  Page 23


        In Williams v. Anderson, we found prejudice when similar facts were not
presented as mitigating evidence, namely, the defendant’s alcoholic and abusive mother,
lack of father figure, primary male role model’s career as a criminal, and a violence-
condoning environment. 460 F.3d 789, 804-05 (6th Cir. 2006); see also Morales v.
Mitchell, 507 F.3d 916, 951 (6th Cir. 2007) (Suhrheinrich, J., dissenting) (noting we
have “found prejudice when the jury was deprived of non-cumulative mitigating
evidence such as severe physical, psychological, or sexual abuse, a violent upbringing,
or abject poverty”). Additionally, we have found prejudice where the jury heard little
to no evidence in mitigation when compared to what evidence could have been presented
on the defendant’s behalf. See Hamblin v. Mitchell, 354 F.3d 482, 490, 493 (6th Cir.
2003) (finding prejudice where counsel did not present the jury with any mitigating
evidence and evidence of a childhood where “abuse, neglect, violence and hunger were
common” existed); Frazier, 343 F.3d 780, 797 (6th Cir. 2003) (no evidence presented
at the penalty phase except the defendant’s one-sentence plea for mercy and defense
counsel could have presented evidence of defendant’s brain injury).

        Dixon’s case is no different from those where have found prejudice in both
respects. The jury heard no evidence during the guilt phase of the trial that could be
considered mitigating. And the evidence presented at the penalty phase did not address
any actual mitigating factors.      Furthermore, the evidence of Dixon’s extremely
dysfunctional family never heard by the jury is similar to evidence in cases where we
have found prejudice. Had Dixon’s counsel presented to the jury evidence of the abusive
and tragic upbringing Dixon experienced, there is a reasonable probability that at least
one juror would have voted not to put him to death. Indeed, given the circumstances of
the offense, the submission of such evidence is precisely what was called for during the
penalty phase. The failure by Dixon’s counsel to present any of this evidence was
constitutionally deficient by any measure.

        Accordingly, while I join the majority opinion, I would also reverse the district
court’s denial of Dixon’s petition for a writ of habeas corpus on his ineffective assistance
of counsel claim.
No. 08-4019         Dixon v. Houk                                                Page 24


                                    ________________

                                        DISSENT
                                    ________________

         SILER, Circuit Judge, dissenting. I respectfully dissent from the majority
opinion finding that the Ohio Supreme Court unreasonably applied clearly established
federal law in deciding this case based on the evidence presented in the state court under
28 U.S.C. § 2254(b). Whether this court would rule otherwise is not the issue. Instead,
we must look at State v. Dixon, 805 N.E.2d 1042 (Ohio 2004), to see if it was contrary
to 28 U.S.C. § 2254(b). As the majority indicates, the Ohio Supreme Court found that
the second statement by Dixon to the officers on November 9, 1993, was admissible
under the authority of Oregon v. Elstad, 470 U.S. 298 (1985).

         Although Dixon has argued that the Ohio Supreme Court should have followed
Missouri v. Seibert, 542 U.S. 600 (2004), I agree with the majority when it indicates that
the Seibert decision was not binding upon the Ohio Supreme Court at the time it decided
State v. Dixon. The Ohio Supreme Court rendered its opinion in Dixon on April 14,
2004, and denied reconsideration on June 9, 2004. Seibert was not decided by the
United States Supreme Court until June 28, 2004. Nevertheless, we can review what
Seibert said about Elstad.

         The facts in this case resemble the facts in Elstad and Seibert, but are easily
distinguished. In Elstad, the accused made an initial inculpatory statement without
Miranda warnings at the time of his arrest at his home. His subsequent confession at
the sheriff’s office one hour later after being advised of his Miranda rights was
admissible. In Seibert, the accused was questioned first for 30 to 40 minutes without
Miranda warnings. After admitting her guilt, Seibert was given a 20-minute break, after
which the officers advised her of her Miranda rights, and she then admitted her guilt
again. However, as stated above, the Ohio Supreme Court did not have the Seibert
decision as evidence of clearly established federal law at the time of its decision in
Dixon.
No. 08-4019        Dixon v. Houk                                                 Page 25


        In our case, the officers at the time of the first interrogation on November 9
deliberately decided not to use the Miranda warnings, because they thought Dixon
would invoke his right to silence. Later, at the second interrogation on November 9,
circumstances had changed significantly. First, Dixon was initially arrested for forgery,
not murder. At the time of the first interrogation, the officers knew of the disappearance
of Hammer, the victim, but had not found the buried body. The first interview lasted
approximately 45 minutes, and the police focused their questions on Hammer’s
disappearance. Dixon denied knowledge of Hammer’s disappearance during that
interrogation, but admitted the forgery of Hammer’s automobile title. Dixon, 805 N.E.2d
at 1049. Also significant is that between the time of the first interview on November
9, which concluded at 3:30 p.m., and the second interview, which began at 7:30 p.m., the
police found Hammer’s body. At the second interview, before being questioned, “Dixon
volunteered that he had heard that police had found the body and asked whether Hoffner
[co-defendant] was in custody.” Id. Dixon also said that he had talked to his attorney
and wanted to tell the police what happened. The majority says that the trial judge found
otherwise, but the Ohio Supreme Court found that he told this to the detectives
questioning him. Id. at 1050. After being advised of his Miranda rights twice and
signing a waiver-of-rights form, Dixon implicated himself in Hammer’s death. Id.

        The Ohio Supreme Court correctly followed federal law. In Elstad, the Supreme
Court emphasized the coercive effect of the initial interview without Miranda warnings.
Thus, it said:

                There is a vast difference between the direct consequences
        flowing from coercion of a confession by physical violence or other
        deliberate means calculated to break the suspect’s will and the uncertain
        consequences of disclosure of a “guilty secret” freely given in response
        to an unwarned but noncoercive question, as in this case.

Elstad, 470 U.S. at 312. It went on to hold “that, absent deliberately coercive or
improper tactics in obtaining the initial statement, the mere fact that a suspect has made
an unwarned admission does not warrant a presumption of compulsion.” Id. at 314.
Obviously, the first statement of November 9 was not coercive. One might feel that the
No. 08-4019         Dixon v. Houk                                                  Page 26


deliberate act by the officers in failing to advise Dixon of his Miranda rights on the first
interview was an improper tactic. However, Justice O’Connor, the author of Elstad, later
declared in her dissent in Seibert that the state of mind of the police is irrelevant to the
voluntariness of the suspect to abandon his rights. Seibert, 542 U.S. at 625 (O’Connor,
dissenting) (citing Moran v. Burbine, 475 U.S. 412, 423 (1986)).

        It is my belief that these facts, including (1) the passage of time between the two
interviews on November 9; (2) Dixon told the officers he had talked to his attorney and
wanted to make a statement; and (3) circumstances had changed between the two
interviews, that is, that the officers had found the body and the likely charge would be
homicide not forgery, are sufficient to dissipate the taint of the initial interview of
November 9. The Ohio Supreme Court followed Elstad in making this determination,
and I would not find that it unreasonably applied Miranda or Elstad.

        Although the majority also discusses the alleged erroneous burden of proof on
Dixon to show that his confession was coerced, that issue was not certified to this court
and has not been raised by Dixon.

        Moreover, even if there was a Miranda violation, the admission of the
“confession at trial is subject to harmless error analysis.” Arizona v. Fulminante,
499 U.S. 279, 303 (1991). Under Brecht v. Abrahamson, 507 U.S. 619 (1993), an error
is harmless unless it “had [a] substantial and injurious effect or influence in determining
the jury’s verdict.” Id. at 637. Here, several witnesses established that Dixon stole
Hammer’s car about the time of his disappearance. Even more damaging, however, was
the testimony of Kirsten Wilkerson, Dixon’s girlfriend, who described in great detail the
efforts of both Dixon and Hoffner, as well as her own participation, to kill Hammer and
transport him to the burial site. Thus, the admission of Dixon’s statement to the police
did not have a substantial and injurious effect upon the jury’s verdict.

        I also respectfully disagree with the concurring opinion by my distinguished
colleague in which he indicates that he not only concurs with the majority opinion on the
Miranda issue, but that he would also grant the writ on the basis that Dixon received
ineffective assistance of counsel during the mitigation phase of the trial.
No. 08-4019        Dixon v. Houk                                                  Page 27


       Although the parties and the district court all agreed that AEDPA sets up the
standard of review on this issue, and although no error was claimed either in the district
court or in this court for failure to consider this under a de novo standard, the
concurrence may be correct that AEDPA does not apply because the district court held
an evidentiary hearing involving the testimony of several witnesses. Without deciding
which standard applies, however, I would affirm the district court under either the
AEDPA standard or a de novo review for the reasons set out herein. Also, like the
district court, I would find that under Strickland v. Washington, 466 U.S. 668, 687
(1984), Dixon has failed to show prejudice by the alleged deficient performance on the
part of his counsel during the penalty phase of the trial. In determining prejudice, “a
petitioner ‘need not show that counsel’s deficient conduct more likely than not altered
the outcome of the case,’ but only ‘that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.’”
Williams v. Anderson, 460 F.3d 789, 801-02 (6th Cir. 2006) (quoting Strickland, 466
U.S. at 687-88). Moreover, “the prejudice question is ‘whether there is a reasonable
probability that, absent the errors, the sentencer–including an appellate court, to the
extent it independently reweighs the evidence–would have concluded that the balance
of aggravating and mitigating circumstances did not warrant death.’” Smith v. Mitchell,
348 F.3d 177, 199 (6th Cir. 2003) (quoting Strickland, 466 U.S. at 695). During the
mitigation phase, trial counsel only presented the testimony of Sally Ann Walters
concerning the significance of a sentence of life without parole for 20 years or life
without parole for 30 years and a certified copy of Dixon’s birth certificate to show his
age. Nevertheless, counsel conducted a significant investigation through Gary Ericson,
a licensed private investigator and mitigation specialist, and a psychologist, Dr.
Christopher Layne.

       Ericson prepared a 51-page mitigation report. He reviewed records detailing
Dixon’s birth, juvenile, educational, employment and psychological histories. He
offered information about Dixon’s family environment, including physical violence and
emotional abuse from his father. He also investigated possible sexual abuse, which
actually was inflicted by Dixon against a four-year-old child. Ericson found that Dixon
No. 08-4019        Dixon v. Houk                                                 Page 28


had been committed to a juvenile facility and earned a GED there. He also had a
positive adjustment in his placement with a foster family. Ericson also found that Dixon
had raped his younger sister and started taking drugs at the age of thirteen. Ericson
presented his report to trial counsel, who found that Dixon did not want it to be
presented to the jury. Counsel said Dixon was upset about it and would go “ballistic in
the courtroom if all this information was presented at a sentencing hearing.” The
psychologist, Dr. Layne, had concluded before the trial that Dixon’s intelligence was
low-normal. He also found that Dixon had a criminal personality, called an antisocial
personality disorder. He told defense counsel that he would not be helpful if called as
a witness, in view of his findings. He knew that Dixon’s medical records had indicated
possible Reyes Syndrome as a child, but he did not find any symptoms of Reyes
Syndrome. He also reasoned that Dixon did not exhibit any of the primary symptoms
of brain damage. In view of this information, Dixon’s counsel strategically decided not
to introduce the testimony of either Ericson or Layne.

       Trial counsel have an obligation to conduct a full investigation of their client’s
background in death penalty cases. Williams v. Taylor, 529 U.S. 362, 396 (2000). The
district court found that the failure to use Dr. Layne as a witness was not a deficient
performance, because his testimony would not have helped Dixon. On the failure to call
Ericson as a witness, the court found that there was no prejudice, because evidence of
a poor childhood likely would not have been sufficient to change a juror’s mind. The
district court found that, had the defense tried to show that Dixon was a “good guy,” his
previous conduct including the conviction for gross sexual imposition on a four-year-old
child, “would surely have been introduced into evidence.”

       Although the concurrence criticizes the fact that counsel did not speak with any
of the witnesses who could have testified for Dixon, the mitigation report from Ericson
was a very thorough product. The law does not require that each counsel discuss with
all potential witnesses what his or her testimony is supposed to be, so long as someone
explores it and counsel concludes that for strategic reasons the evidence should not be
introduced. Even the concurring opinion agrees that Ericson’s mitigation report was a
No. 08-4019         Dixon v. Houk                                                  Page 29


comprehensive review of Dixon’s background. The aggravating facts of the homicide
and the burial of the victim while he was still alive was such a heinous crime that it
would have been difficult to find anything to mitigate the crime unless the offender was
insane or mentally retarded, which was not the case here.

        This case is a companion to Hoffner v. Bradshaw, 622 F.3d 487 (6th Cir. 2010),
which recites additional facts from the trial. Because the majority and concurrence do
not discuss the other issues under the certificate of appealability, I also do not. However,
I find no merit in any of the other issues raised and would affirm the denial of the writ
of habeas corpus by the district court.
