                                                                          RECOMMENDED FOR FULL-TEXT PUBLICATION
52   Scott v. Mitchell                     Nos. 98-4272/4321                   Pursuant to Sixth Circuit Rule 206
                                                                       ELECTRONIC CITATION: 2000 FED App. 0138P (6th Cir.)
                                                                                   File Name: 00a0138p.06
                      III. CONCLUSION
  Because we conclude that there was no manifest
miscarriage of justice in Scott’s trial or sentencing that would   UNITED STATES COURT OF APPEALS
authorize us to issue a federal writ of habeas corpus
countermanding the judgment of the Ohio courts, we                               FOR THE SIXTH CIRCUIT
REVERSE the order of the district court granting Scott’s                           _________________
petition for a writ of habeas corpus; we AFFIRM the

                                                                                                      ;
judgment of the district court in all other respects.

                                                                              Petitioner-Appellee/ 
                                                                    JAY D. SCOTT,

                                                                                  Cross-Appellant, 
                                                                                                       
                                                                                                       
                                                                                                          Nos. 98-4272/4321

                                                                                                       
                                                                               v.                       >
                                                                                                       
                                                                                                       
                                                                           Respondent-Appellant/ 
                                                                    BETTY MITCHELL, Warden,

                                                                                   Cross-Appellee. 
                                                                                                       
                                                                                                      1
                                                                          Appeal from the United States District Court
                                                                         for the Northern District of Ohio at Cleveland.
                                                                     No. 95-02037—Kathleen McDonald O’Malley, District
                                                                                             Judge.
                                                                                  Argued: January 24, 2000
                                                                              Decided and Filed: April 19, 2000
                                                                     Before: BOGGS, SILER, and BATCHELDER, Circuit
                                                                                        Judges.
                                                                                     _________________
                                                                                          COUNSEL
                                                                   ARGUED: Stuart A. Cole, OFFICE OF THE ATTORNEY
                                                                   GENERAL OF OHIO, CAPITAL CRIMES SECTION,
                                                                   Columbus, Ohio, for Appellant. Timothy F. Sweeney, LAW

                                                                                               1
2     Scott v. Mitchell                     Nos. 98-4272/4321        Nos. 98-4272/4321                      Scott v. Mitchell   51

OFFICE OF TIMOTHY FARRELL SWEENEY, Cleveland,                        prosecution, any rational trier of fact could have found the
Ohio, for Appellee. ON BRIEF: Stuart A. Cole, Jonathan R.            essential elements of the crime beyond a reasonable doubt.
Fulkerson, OFFICE OF THE ATTORNEY GENERAL OF                         This familiar standard [views evidence] in the light most
OHIO, CAPITAL CRIMES SECTION, Columbus, Ohio, for                    favorable to the prosecution[, and] thus impinges upon jury
Appellant. Timothy F. Sweeney, LAW OFFICE OF                         discretion only to the extent necessary to guarantee the
TIMOTHY FARRELL SWEENEY, Cleveland, Ohio, John S.                    fundamental protection of due process of law.” Jackson v.
Pyle, GOLD, SCHWARTZ & CO., Cleveland, Ohio, for                     Virginia, 443 U.S. 307, 319 (1979) (internal quotations,
Appellee.                                                            citations and footnotes omitted). This claim is not
                                                                     procedurally defaulted.
                     _________________
                                                                        Scott argues that the evidence adduced at trial was
                         OPINION                                     insufficient to prove that he committed or attempted to
                     _________________                               commit aggravated robbery. If true, this would invalidate his
                                                                     death sentence, as the only specification that made him death-
   ALICE M. BATCHELDER, Circuit Judge. Respondent                    eligible was “caus[ing] the death of another . . . while
Betty Mitchell (“the Warden”) appeals the district court’s           committing or attempting to commit, or while fleeing
grant of a writ of habeas corpus under 28 U.S.C. § 2254 to           immediately after committing or attempting to commit
Ohio death row inmate Jay D. Scott. The district court               Aggravated Robbery.” To support his argument, Scott notes
granted the writ on the basis of only one of the grounds raised      that nothing was taken from the V&E Delicatessen, that he
in his petition, finding all of the other grounds either defaulted   entered the store with money, and that O’Neal testified that
or meritless. Scott cross-appeals the court’s rejection of his       there had been no discussion of robbery before arriving at the
remaining arguments. After having the benefit of lengthy oral        store.
argument, and having given the careful consideration to the
record and the parties’ arguments that the gravity of the               We agree with the district court and Ohio Supreme Court
question before us demands, we are convinced that the district       that ample evidence was presented to allow a rational jury to
court erred in holding that the ground on which it granted the       find Scott guilty of the specification:
writ was not procedurally barred. Because we conclude that
the district court correctly held that the other grounds raised        [U]nder R.C. § 2911.01, [...] an attempt to commit armed
by Scott’s petition were either defaulted or without merit, we         theft constitutes aggravated robbery. [...] This felonious
will reverse the issuance of the writ.                                 objective is evidenced by the secretive manner in which
                                                                       Jones parked his car around the corner after dropping off
      I. FACTUAL AND PROCEDURAL BACKGROUND                             [Scott] and O’Neal. Of further relevance is the fact that
                                                                       [Scott] was aware of a pending robbery charge against
                     A. Factual History                                him upon his apprehension.
  The facts of the underlying crime are not in significant           State v. Scott, 497 N.E.2d at 64. There is no ground here for
dispute, except to the extent that Scott challenges the              habeas relief.
sufficiency of the evidence presented at trial to prove these
facts. The following summary is largely taken from the
district court’s Order, which in turn quoted it from the
opinion of the Ohio Supreme Court.
50     Scott v. Mitchell                          Nos. 98-4272/4321           Nos. 98-4272/4321                       Scott v. Mitchell     3

constitutionally required narrowing process, and so the fact                    On May 6, 1983, Vinnie Prince, owner and operator of the
that the aggravating circumstance duplicated one of the                       V&E Delicatessen at East 86th Street and Quincy Avenue in
elements of the crime does not make this sentence                             Cleveland, was shot and killed during an attempted robbery
constitutionally infirm.” Id. at 246. Similarly, the Ohio                     of her shop. An autopsy revealed that Prince died from a
Legislature “narrow[ed] the class of felony murders subject to                gunshot wound to the chest.
the death penalty by excluding those who commit [murder in
the course of an] arson, robbery, burglary or escape, unless                    Octavia Hickman, who lived near the delicatessen, testified
they are charged with a different aggravating circumstance.”                  that on the day of the shooting, while walking back to her
State v. Buell, 489 N.E.2d 795, 807 (Ohio 1986); see also                     home after shopping at the nearby Sav-More Market, she
Ohio Rev. Code § 2929.04(A) (1996) (“Imposition of the                        noticed a greenish-blue Cadillac without a rear license plate
death penalty for aggravated murder is precluded, unless one                  pull up across from her house. She observed two black males
or more of the following is specified in the indictment . . . and             inside the car, one behind the wheel and the other in the back
proved beyond a reasonable doubt:”). Scott fell within the                    seat. She later observed another black male come over a
narrowed category of death-eligible felony murderers because                  nearby fence and dive through the open window of the
he committed or attempted to commit aggravated robbery.                       Cadillac. The car then drove away.
See Ohio Rev. Code § 2929.04(A)(7) (1996).
                                                                                 Another witness near the deli when the incident occurred
   Moreover, even if an overlap were problematic, there is                    was Clifford Roberson. Roberson was heading toward the
none here. Pursuant to Ohio Rev. Code § 2929.04(A)(7),                        store with a female companion when they heard a shot fired
Scott’s indictment for aggravated murder added that “either                   inside the store. He immediately grabbed his friend and
[he] was the principal offender in the commission of the                      pushed her up against the wall of the building, in an effort to
Aggravated Murder or, if not the principal offender,                          protect her. When he heard a screen door slam, he turned
committed the Aggravated Murder with prior calculation or                     around and saw two black males running from the store.
design.” The Ohio Supreme Court has held that this language                   Roberson testified that the taller man was about 5’11” tall,
is distinct from the definition of felony murder, because in                  wearing “some type of rag around his head,” and holding a
addition to causing a death during a felony, the defendant                    long-barreled pistol. Upon opening the store’s door,
must also  be proved to have caused the death personally and                  Roberson observed Prince lying “almost to the door as if she
directly10 or in a premeditated manner. See State v. Jenkins,                 was trying to chase them or something.” Roberson flagged
473 N.E.2d 264, 280 n.17 (Ohio 1984); State v. Barnes, 495                    down a nearby police car and informed the officers of the
N.E.2d 922, 925 (Ohio 1986) (per curiam).                                     situation.
  F. Sufficiency of the Evidence Used to Convict Scott                          Solomon Smith, another witness to this incident, testified
                                                                              that he saw “two men run across the street, and run down to
  An habeas court reviews claims that the evidence at trial                   the corner of Mr. Cooper’s house, and turn through the alley,
was insufficient for a conviction by asking “whether, after                   and jump the fence.” He described the assailants as two black
viewing the evidence in the light most favorable to the                       males, one 5’10 ½” tall, the other “a little shorter.” Smith did
                                                                              not observe anything in the fleeing men’s hands.
     10
       In Ohio, the “principal offender” is the one who actually caused the
                                                                                Sometime after this incident, Detective Robert Moore
death. See Byrd, No. 96-3209, slip op. at 5 n.2 (citing State v. Penix, 513   received a telephone call from Ricky Tramble, and arranged
N.E.2d 744, 746 (Ohio 1987)).                                                 to meet with him. Tramble testified that, at this meeting, he
4    Scott v. Mitchell                     Nos. 98-4272/4321       Nos. 98-4272/4321                      Scott v. Mitchell    49

informed Officer Moore that on the day Prince was killed,          definition to not violate due process. We recently did the
Tramble was with Edward O’Neal, Michael Streeter, Danny            same in Byrd, No. 96-3209, slip op. at 65-66. Scott provides
Jones, and Scott; they were all at O’Neal’s girlfriend’s house     no reason to ignore this precedent.
“to get high.” Tramble said he overheard Scott say, “Well I
did what I had to do. She shouldn’t have made me move like         E. Alleged Unconstitutionality of Ohio’s Death-Penalty
that. F__k it. It’s over with.” Tramble testified that, later                 Scheme Facially and As Applied
that day, Scott told Tramble, “[t]hese niggers don’t know
what they’re doing. [T]hey get to crying about this and crying        Scott raised before the district court a number of reasons
about that. This is what I do.” Scott professed to Tramble         why the death penalty in general and in Ohio is
that he was “a stick-up man.” Tramble related further that the     unconstitutional. He focuses his argument on appeal only on
next day O’Neal informed him that Scott and O’Neal were            two: that the fact that felony murder is used both as an
involved in the V&E Deli incident, including the shooting of       element of the offense and a ground for capital sentencing
Prince.                                                            fails to narrow the class of persons eligible for the death
                                                                   penalty, and that electrocution is cruel and unusual
   On the basis of this information, the police apprehended        punishment. The rest are incorporated by reference in a
and arrested Danny Jones and confiscated Jones’s automobile,       footnote. The great majority of these incorporated issues, and
an older model, blue, turquoise-bottom Cadillac with a white       the electrocution issue, were mentioned and rejected
top, bearing a thirty-day tag but no license plate. Jones signed   summarily in Byrd. See No. 96-3209, slip op. at 66-67. We
a typewritten statement stating that he and O’Neal, Streeter,      will do the same, for substantially the same reasons expressed
and Scott had been driving around looking for a place to rob.      in the district court’s Order. Although Byrd also rejected the
After selecting the V&E Deli as a target, Scott requested          claim that Ohio fails to narrow the class of death-eligible
“front money” in order to fabricate a purchase, and asked for      convicts, it did not explicitly address Scott’s ground for this
someone to go into the store with him. O’Neal finally agreed       argument. Hence, it merits brief discussion here.
to accompany Scott into the store. At this time, Jones
observed that Scott was armed with a .38-caliber pistol that          The Warden has not argued that Scott’s argument on the
looked like a police revolver, and O’Neal was carrying a .25-      overlap of felony murder between the underlying crime and
caliber automatic handgun. Jones pulled his car around the         aggravating circumstance is procedurally defaulted, and the
corner from the V&E Deli, and O’Neal and Scott got out of          district court dismissed it on the merits. Even if Scott were
the car while Jones and Streeter waited for them. Shortly          right that the same act was the basis of his conviction and
thereafter, Scott and O’Neal came running through a yard and       aggravating circumstance, this alone would not justify habeas
climbed over a fence. O’Neal ran to the car and got in and         relief. See Lowenfield v. Phelps, 484 U.S. 231, 244-46
Scott dived into the car through a window. Jones was told to       (1988). There, the Supreme Court instructed that aggravating
“pull off.” Later, Jones asked O’Neal what happened and            circumstances are not ends unto themselves, but simply one
O’Neal replied “that J.D. [Scott] shot her [...] cause she went    means by which a state may perform the narrowing function.
for her [gun].” When Jones asked Scott if he had killed her,       See id. at 244. Lowenfield upheld the Texas death-penalty
Scott replied, “naw she was still standing up when we ran out      scheme, in which the narrowing function was performed by
the door.” At trial, Jones repudiated the part of his              the legislature when it circumscribed the range of offenses
typewritten statement in which he acknowledged their intent        eligible for the death penalty. See id. at 245-46. “The fact
to rob the V&E Deli, contending instead that Scott and             that the sentencing jury is also required to find the existence
O’Neal had gone into the store to get cold beer.                   of an aggravating circumstance in addition is no part of the
48   Scott v. Mitchell                    Nos. 98-4272/4321       Nos. 98-4272/4321                      Scott v. Mitchell     5

accomplice instruction that required the jury to look for            The police also apprehended O’Neal, who also gave them
additional corroboration, just not in the language he proposed.   a typewritten statement. O’Neal stated that he, Jones, Streeter
There is no error here, much less one justifying a writ.          and Scott were driving around in Jones’s Cadillac. They
                                                                  stopped in front of the V&E Deli because Scott told them he
            2. Definition of Reasonable Doubt                     wanted to get some bologna and crackers. O’Neal followed
                                                                  Scott into the store. Scott asked for bologna and crackers and,
  The trial judge read Ohio’s statutory definition of             when the old woman minding the store turned to obtain them,
reasonable doubt to the jury, which included the phrase           Scott pulled out a pistol. Scott told the woman to “freeze”
“firmly convinced,” and added some concluding remarks that        and when the woman began to “holler” and “yell,” Scott fired
essentially repeated the same language:                           a single shot at the woman, striking her. O’Neal related that
                                                                  he was momentarily stunned by this occurrence and it was not
    Now, the Legislature of Ohio has specifically                 until Scott grabbed him and pulled him out of the store that he
  established the legal meaning of the term “reasonable           began to run. They jumped the fence and ran to the car.
  doubt,” and I will read that definition to you:                 O’Neal stated that he did not see the old woman in the store
  “Reasonable doubt is present when, the jurors, after they       reach for a weapon.
  have carefully considered and compared all evidence,
  cannot say they are firmly convinced of the truth of the          At trial, O’Neal’s testimony differed somewhat from this
  charge. It is a doubt based upon reason and common              written statement in that he testified it was he—rather than
  sense. Reasonable doubt is not mere possible doubt,             Scott—who ordered the bologna and crackers in the store.
  because everything relating to human affairs or                 O’Neal further testified that he was unarmed throughout this
  dependent upon moral evidence is open to some possible          ordeal and that it was Michael Streeter who had the .25-
  or imaginary doubt.                                             caliber weapon in his possession while waiting in the car.
    “Proof beyond a reasonable doubt is proof of such             O’Neal confirmed that he had talked with Tramble about what
  character that an ordinary person would be willing to rely      happened at the V&E Deli.
  and act upon it in the most important of his affairs.”
    All of the evidence should be examined carefully and            Barbara Campbell, a trace-evidence analyst with the
  conscientiously by you, and, if after a full and impartial      Cuyahoga County Coroner’s Office, testified that the results
  consideration of all the evidence, you are firmly               of a “Walker Nitrate Test” revealed that the muzzle of the gun
  convinced beyond a reasonable doubt of the truth of the         which killed Prince was approximately 12 inches from her
  charge or charges, then the State has proved its case and       body when it was fired. Campbell further testified that a trace
  you must find the defendant guilty.                             metal test conducted on the victim’s hands indicated that
    If you are not firmly convinced of the truth of the           Prince did not handle or fire a weapon prior to her death.
  charge, then the State has not proved its case and you          Detective David Hicks, however, testified that Prince had a
  must find the defendant not guilty.                             fully loaded .38-caliber revolver on her person when she was
                                                                  found.
Scott claims that this definition unconstitutionally conflates
the reasonable doubt standard with the less demanding “clear        On May 17, 1983, the grand jury returned its indictments.
and convincing” standard.                                         Scott was apprehended six months later in Philadelphia by
                                                                  Detective James Svekric of the Cleveland Police Department.
  The district court correctly relied on Thomas v. Arn, 704       During the trip back to Cleveland, Scott inquired who was
F.2d 865, 867-69 (6th Cir. 1983), which held this precise
6        Scott v. Mitchell                         Nos. 98-4272/4321         Nos. 98-4272/4321                        Scott v. Mitchell    47

using his name in connection with a homicide and robbery.                    defense significant enough to be cognizable on post-
Up to that point, the arresting officers had informed Scott                  conviction review.
only that he was wanted in connection with a homicide; they
had made no mention that Scott was also charged with                           Nor did the court err in refusing Scott’s accomplice
aggravated robbery. Scott maintained that he had been in                     instruction. In United States v. Carr, 5 F.3d 986 (6th Cir.
Reading, Pennsylvania, when the incident occurred.                           1993), an appellant challenged the trial court’s refusal to give
                                                                             anything more than a general instruction on judging witness
                        B. Procedural History                                credibility. In dismissing the argument, we said
  Scott and his three accomplices1 were indicted by the                        The court's instruction adequately informed the jury
Cuyahoga County Grand Jury on two counts: (1) aggravated                       regarding the credibility of witness testimony, and so we
robbery in violation of Ohio Rev. Code § 2911.01, and (2)                      are not troubled simply because the court chose not to
aggravated murder in violation of Ohio Rev. Code § 2903.01.                    explicitly highlight the credibility problems inhering in
The grand jury added two specifications to the murder count:                   accomplice testimony. The instructions alerted the jury
(1) a death-penalty specification for violation of Ohio Rev.                   to the various considerations that it should take into
Code § 2929.04(A)(7),2 and (2) a firearm specification for                     account in weighing testimony, and it had an ample basis
violating Ohio Rev. Code § 2941.141.                                           for rejecting the testimony of the accomplice witnesses if
                                                                               it had chosen to do so. In short, because the instructions
  Scott pled not guilty, proceeded to trial, and was convicted.                given by the court substantially covered the same
The trial court then held a sentencing hearing as prescribed by                material as the instruction requested by the defendant,
Ohio Rev. Code §§ 2929.022(A) and 2929.03, and the jury                        there was no reversible error.
recommended the death penalty. The trial judge adopted the
recommendation and sentenced Scott to death for his murder                   Id. at 992. We have since followed Carr in not requiring
conviction. Scott was also sentenced to 7-25 years of                        accomplice instructions as a general matter, a rule that is
imprisonment for his aggravated robbery conviction and 3                     significantly less favorable to defendants than the approaches
years of imprisonment for the firearm specification.                         of some of our sister circuits. See, e.g., United States v. Hill,
                                                                             627 F.2d 1052 (10th Cir.1980) (finding reversible plain error
                                                                             when no accomplice instruction was given and no other
    1                                                                        evidence corroborated the accomplice testimony); United
      O’Neal, Jones, and Streeter each pled guilty to robbery offenses and   States v. Davis, 439 F.2d 1105 (9th Cir.1971) (same); Tillery
received shock probation and/or suspended sentences.                         v. United States, 411 F.2d 644 (5th Cir.1969) (same); United
    2                                                                        States v. McCabe, 720 F.2d 951, 956 (7th Cir. 1983) (holding
        This section provides a death-penalty-qualifying specification if    lack of accomplice instruction to be error when corroborating
    The offense was committed while the offender was committing,             evidence was insufficient “to overcome the inherent
    attempting to commit, or fleeing immediately after committing            unreliability of accomplice testimony”); United States v. Lee,
    or attempting to commit kidnapping, rape, aggravated arson,              506 F.2d 111, 120 (D.C. Cir.1974) (holding failure to give
    aggravated robbery, or aggravated burglary, and either the               instruction harmless because accomplice's testimony was
    offender was the principal offender in the commission of the             "materially corroborated"); United States v. Williams, 463
    aggravated murder or, if not the principal offender, committed
    the aggravated murder with prior calculation and design.                 F.2d 393, 396 (10th Cir.1972) ("considerable evidence"
                                                                             corroborated the accomplice's testimony). Scott received an
Ohio Rev. Code § 2929.04(A)(7) (1996).
46    Scott v. Mitchell                     Nos. 98-4272/4321        Nos. 98-4272/4321                      Scott v. Mitchell     7

an abnormal fear of imprisonment since he was already                  Scott timely appealed his convictions and death sentence.
incarcerated at the time. The Ohio Supreme Court also relied         Both were affirmed by the Ohio Court of Appeals and the
on Howard in rejecting Scott’s appeal. See State v. Scott, 497       Ohio Supreme Court. The United States Supreme Court
N.E.2d 55, 63 (Ohio 1986). We have never directly followed           denied Scott a writ of certiorari, though Justices Marshall and
or contradicted Howard, although we have acted consistently          Brennan filed a dissenting opinion. See Scott v. Ohio, 480
with it by dismissing a claim of error for failure to produce        U.S. 923, 923 (1987).
any evidence that the witnesses were addicted at trial. See
United States v. Freeman, Nos. 91-1011, 91-1012, 1991 WL                Scott then secured a stay of execution and petitioned the
203088, at **3 (6th Cir. Oct. 4, 1991) (unpublished). Instead,       Cuyahoga County Common Pleas Court for post-conviction
in an unpublished opinion, when an appellant challenged the          relief pursuant to Ohio Rev. Code § 2953.21. The Warden
refusal to give a similar instruction for a witness who was an       successfully moved to dismiss, but the Ohio Court of Appeals
addict-informer but not addicted at trial, we relied on our          reversed the dismissal in part and remanded for a hearing on
authority governing addict-informer instructions. See United         the issue of whether Scott was denied effective assistance of
States v. Anderson, Nos. 97-5352, 97-5382, 1998 WL                   counsel at the mitigation phase of the sentencing hearing.
833701, at **4 (6th Cir. Nov. 20, 1998). "This court has long        Both parties unsuccessfully appealed this ruling to the Ohio
recognized the importance of an addict-informant instruction         Supreme Court, and the case was returned to the common
in appropriate cases." United States v. Brown, 946 F.2d 1191,        pleas court for the hearing. At the conclusion of the hearing,
1195 (6th Cir.1991). However, there is no per se rule                at which Scott’s family members and trial counsel testified,
requiring such instructions to be given in all cases involving       the trial court issued findings of fact and conclusions of law
addict testimony; instead, "the need for such an instruction         to the effect that Scott had not been denied effective
depends on the circumstances of each case." Id. (internal            assistance in the mitigation phase of his sentencing.
quotation omitted). The district court errs by failing to give       Specifically, the court found that trial counsel’s testimony
a requested instruction only when the requested instruction is       was more credible than that of Scott’s family members, that
correct, not substantially covered by the actual jury charge,        Scott and his family were primarily to blame for their failure
and when not giving the instruction would substantially              to provide mitigating evidence, and that the “residual doubt”
impair defendant's defense. See United States v. Sassak, 881         strategy pursued in the mitigation hearing was in Scott’s best
F.2d 276, 279 (6th Cir.1989).                                        interest. Scott unsuccessfully appealed, and was denied a writ
                                                                     of certiorari on the ineffective assistance of counsel issue by
  We agree with the district court, and adopt the reasoning of       the United States Supreme Court.
Howard. It is certainly consistent with our handful of
unpublished decisions on the issue, none of which has been             In addition to these post-conviction proceedings, Scott also
receptive to requiring the addict instruction, and it is sensible;   pursued post-conviction relief pursuant to State v. Murnahan,
there is no reason to believe that Tramble’s former drug use         584 N.E.2d 1204, 1209 (Ohio 1992), which allows appellants
impaired his testimony at trial. But Scott’s argument is             claiming denial of effective assistance of appellate counsel to
lacking even under our prior case law. The requested                 seek relief by applying for delayed reconsideration in the
instruction is correct, as it is remarkably similar to the Sixth     Court of Appeals, or by filing a delayed appeal directly with
Circuit pattern instruction for addict-informers. But the trial      the Ohio Supreme Court. Scott first filed a motion to reopen
court’s instruction to consider the witnesses’ motives should        his appeal in the Ohio Court of Appeals, which was denied.
have been sufficient, and there was no impairment to Scott’s         The Ohio Supreme Court affirmed, denied rehearing, and the
                                                                     United States Supreme Court denied certiorari. Scott also
8       Scott v. Mitchell                      Nos. 98-4272/4321         Nos. 98-4272/4321                             Scott v. Mitchell       45

filed a delayed direct appeal with the Ohio Supreme Court,               substantial and injurious effect or influence on the verdict,
which was refused.                                                       and are subject to harmless-error analysis.9 See Gilliam v.
                                                                         Mitchell, 179 F.3d 990, 994-95 (6th Cir. 1999) (citing Brecht
  The Ohio Supreme Court, on the Warden’s motion, set                    v. Abrahamson, 507 U.S. 619, 638 (1993)).
October 25, 1995, as the date for Scott’s execution. On
September 20, 1995, Scott filed a notice of intent to file a               Also as with the challenge to the unanimity instruction, the
habeas petition with the federal district court. The district            State claims that both of these claims are defaulted because
court granted an indefinite stay of execution while Scott                they were not objected to contemporaneously. Scott has made
pursued his federal habeas relief, and appointed Scott’s                 no response. The district court reached the merits of the first
current counsel.                                                         instruction challenged here, relating to witness credibility,
                                                                         without discussing its potential default. Regardless of
   Scott’s petition presented twenty-one grounds for relief,             whether this claim was defaulted, it is easily disposed of on
divided into three categories: (1) constitutional violations             the merits. The court also correctly held the second ground,
tainting the entire course of the state court proceedings                regarding the definition of reasonable doubt, not to be waived,
(Grounds 1-6); (2) constitutional violations prejudicing Scott           because the Ohio Supreme Court itself said so in a later
during specific stages of the proceedings (Grounds 7-19); and            opinion that discussed Scott’s case. See State v. Van Gundy,
(3) constitutional violations relating generally to the Ohio             594 N.E.2d 604, 607 (Ohio 1992).
death-penalty scheme (Grounds 20-21). Scott requested leave
to conduct discovery and an evidentiary hearing, but both                1. Instruction on Credibility of Addicts and Accomplices
were denied for failure to show good cause. The court also
made clear that because Scott filed his petition before the                Tramble admitted being an addict when he gave his
effective date of the Anti-Terrorism and Effective Death                 information to the police, and Jones and O’Neal also testified
Penalty Act of 1996 (AEDPA), it would not apply the                      against Scott as accomplices. Scott proposed specific
demanding standards of review mandated by that statute.                  instructions on the particular unreliability of accomplices, and
                                                                         that the testimony of drug addicts should be “considered with
  The court heard lengthy oral arguments from both parties               great care” because of their constant need of drug money and
and received post-hearing briefs on certain issues. On                   abnormal fear of imprisonment. Instead, the court gave
September 30, 1998, the court issued its opinion denying                 general instructions on the jury’s duty to determine witness
habeas relief on all grounds except one: Ground 18, which                motivation and credibility, and instructed that accomplice
challenged the trial court’s penalty-phase jury instruction3             testimony must be corroborated “by other credible, believable
regarding unanimity of the sentencing recommendation.                    evidence.”
Scott was granted a certificate of appealability to cross-appeal
the denial of the remaining grounds, and both sides filed                  The district court, relying on United States v. Howard, 590
timely notices of appeal.                                                F.2d 564, 570 (4th Cir. 1979), found no error in rejecting the
                                                                         addict instruction because there was no evidence that Tramble
                                                                         was still addicted at the time of trial, and could not have had

    3
     In its Order, the district court felt “compelled to mention” that       9
Cleveland attorneys Timothy F. Sweeney and John S. Pyle, serving              Scott cites an Eighth Circuit case for the proposition that Brecht’s
pursuant to the Criminal Justice Act, have done an exceptional job       harmless-error test does not apply if the state courts did not conduct a
defending Scott. They have also performed commendably on appeal.         Chapman harmless error test, but Gilliam squarely rejects this contention.
44    Scott v. Mitchell                     Nos. 98-4272/4321        Nos. 98-4272/4321                      Scott v. Mitchell     9

appropriate case could be . . . the result of a tactical, informed      Before this court, Scott defends the district court’s
decision by counsel, completely consonant with his duties to         reasoning that the unanimity instruction could have had the
represent the accused effectively”). Without effective               impermissible effect of causing one or more jurors to believe
research into the available mitigating testimony, of course, it      that unanimity was required not only as to the net weight of
would be impossible for the lawyers to have made an                  the mitigating factors versus the aggravating factors, but also
informed decision either way, even if residual doubt was a           as to the existence of each mitigating factor. The Warden, on
viable option in retrospect. If we were to hold Scott’s lawyers      the other hand, maintains that Scott’s challenge to this
to be ineffective, then, it would have to be on the grounds of       instruction is procedurally barred from habeas review for
their failure to research mitigating evidence, not their failure     failure to lodge a contemporaneous objection to the
to present it. Otherwise, there would be merit to the district       instruction in the trial court, and that, in any case, the
court’s concern in this case that to condone the lawyers’            instruction had no such effect on the finding of mitigating
performance would be to create a post-hoc exception for              factors. Scott’s cross-appeal further argues that (1) two other
faulty lawyering. Regardless, the Constitution guarantees            penalty-phase instructions, namely those telling the jury to
competent counsel and a fair trial, not perfection. In light of      ignore considerations of mercy in reaching its decision and
the finding of the state common pleas court’s evidentiary            advising that its recommendation of death would not be
hearing that the lawyers’ testimony is more credible than that       binding on the court, were unconstitutional; (2) Scott was
of Scott’s family, and that Scott’s criminal history would have      prejudiced by comments made by the trial judge to the jury
been known to the attorneys even without further research, we        venire regarding media coverage of Prince’s shooting and
believe that the decision of Scott’s attorneys to pursue a           Scott’s involvement in it; (3) Scott’s trial counsel were
residual-doubt strategy in this case was not objectively             ineffective in the penalty phase for failing to interview or
unreasonable, because it was adequately (if not ideally)             present witnesses in mitigation and instead pursuing a
informed and was quite arguably the best course of action            residual doubt strategy; (4) the cumulative effect of two
available.                                                           allegedly erroneous jury instructions violated Scott’s due
                                                                     process rights; and (5) Ohio’s death penalty is
 D. Cumulative Error From Two Allegedly Erroneous                    unconstitutional on its face and as applied to Scott for a
           Guilt-Phase Jury Instructions                             variety of reasons. We will address each of these issues in
                                                                     turn.
   As noted above, to warrant habeas relief, jury instructions
must not only have been erroneous, but also, taken as a whole,                               II. ANALYSIS
so infirm that they rendered the entire trial fundamentally
unfair. See Coe, 161 F.3d at 329. This burden is even greater           When reviewing a district court’s disposition of a petition
than that required to demonstrate plain error on direct appeal.      for a writ of habeas corpus filed before AEDPA’s effective
See Frady, 456 U.S. at 166; Henderson, 431 U.S. at 154               date, we presume primary, or historical, factual findings by
(“The question in such a collateral proceeding is whether the        the state courts to be correct, rebuttable only by clear and
ailing instruction by itself so infected the entire trial that the   convincing evidence under one of the eight conditions listed
resulting conviction violates due process, not merely whether        in the pre-AEDPA version of 28 U.S.C. § 2254(d)(1-8). See
the instruction by itself is undesirable, erroneous, or even         Byrd v. Collins, No. 96-3209, slip op. at 35 (6th Cir. Apr. 6,
universally condemned” (citations and internal quotations            2000) (citing McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th
omitted)). Allegations of “trial error” raised in challenges to      Cir. 1996)). We review de novo determinations involving
jury instructions are reviewed for whether they had a                matters of law or mixed questions of law and fact. See Mapes
10       Scott v. Mitchell                        Nos. 98-4272/4321          Nos. 98-4272/4321                       Scott v. Mitchell    43

v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999). We afford                       It was their responsibility to present Scott’s defense, not
“complete deference to evidence-supported state court                        Scott’s family’s or even Scott’s. In Glenn v. Tate, 71 F.3d
findings of fact. [...] But the more substantive standard by                 1204, 1207-08 (6th Cir. 1995), we held lawyers’ conduct to
which our de novo review is conducted is the determination                   be objectively unreasonable when they waited until after the
whether the trial errors asserted by the petitioner resulted in              verdict to prepare for the sentencing phase, failed to interview
a trial so devoid of fairness as to have amounted to a denial of             any family members or friends, and conducted no research at
the due process guaranteed by the fourteenth amendment.”                     all into mitigation except to prepare one inadmissible
Lundy v. Campbell, 888 F.2d 467, 469 (6th Cir. 1989) (citing                 videotape. We followed Glenn in Austin v. Bell, 126 F.3d
Sumner v. Mata, 455 U.S. 591 (1982) (per curiam)).                           843, 848-49 (6th Cir. 1997), to find a lawyer ineffective when
                                                                             he failed to investigate or present any mitigating evidence
 A. The Trial Court’s Penalty-Phase Jury Instructions                        despite the availability and willingness of several relatives
                                                                             and friends. We characterized counsel’s performance there as
   Because the state claimed that nearly half of Scott’s claims,             not a “strategic decision, but rather an abdication of
including his challenges to the penalty-phase jury instructions,             advocacy.” Id. at 849; see also Byrd, No. 96-3209, slip op. at
had been procedurally defaulted, the district court began its                63 (following Austin and Glenn)); O’Guinn v. Dutton, 88
legal analysis with a discussion of the law of procedural                    F.3d 1409, 1424 (en banc) (Merritt, C.J., concurring) (finding
default, including a discussion of Wainwright v. Sykes, 433                  attorneys’ near-complete failure to investigate or present
U.S. 72 (1977), Coleman v. Thompson, 501 U.S. 722 (1991),                    mitigating evidence, because each attorney thought the other
and Maupin v. Smith, 785 F.2d 135 (6th Cir.1986), this                       was preparing it, to go beyond ineffectiveness into total
circuit’s seminal case applying the law of procedural default                incompetence). In Mapes, we remanded for a hearing on the
in federal habeas cases in which the state argues that an                    effectiveness of appellate counsel, in part because he failed to
habeas claim is barred by the petitioner’s failure to observe a              raise the fact that the sentencing phase counsel conducted no
state procedural rule. Maupin laid out a 4-part test that, as the4           research into mitigating factors.
district court correctly noted, we have consistently applied
since its issuance:                                                            Scott’s penalty-phase attorneys would certainly have been
                                                                             well-advised to conduct more research into mitigating factors
  When a state argues that a habeas claim is precluded by                    than they did. Unlike in Austin and O’Guinn, however, these
  the petitioner’s failure to observe a state procedural rule,               lawyers had a credible reason for not presenting testimony:
                                                                             a desire to keep Scott’s extensive criminal history from the
                                                                             jury. See also Byrd, No. 96-3209, slip op. at 63-64 (same).
     4                                                                       The state trial and appeals courts found this strategy to be in
      The Maupin test is essentially a group of enumerated factors that is   Scott’s best interest, given his claim of actual innocence
identical to the approach subsequently endorsed by Coleman: that the
cause and prejudice/actual innocence test is to be applied in all federal    throughout trial and sentencing and the magnitude of his
habeas cases where the state court decision is based on an independent       criminal past. Moreover, both the Ohio and United States
and adequate state ground. See Coleman, 501 U.S. at 750. Although we         Supreme Courts have endorsed a residual doubt strategy when
have remained faithful to the analysis endorsed by Maupin, our more          warranted by the circumstances. See Lockhart v. McCree,
recent decisions have not always employed a “Maupin test” per se. See,       476 U.S. 162, 181 (1986) (recognizing the strategy as “an
e.g., Byrd, No. 96-3209, slip. op. at 53-54 (articulating the factors from
Maupin and related cases differently but analogously); Jones v. Toombs,      extremely effective argument for defendants in capital cases”
125 F.3d 945, 946 (6th Cir. 1997) (applying the Coleman formulation          (citation omitted)); State v. Johnson, 494 N.E.2d 1061, 1065
without mentioning Maupin, although reaching the same result). In this       (Ohio 1986) (“omission of [mitigating] evidence in an
case, however, we find it useful to follow Maupin’s enumerated factors.
42    Scott v. Mitchell                      Nos. 98-4272/4321        Nos. 98-4272/4321                        Scott v. Mitchell    11

could not come close to rebutting with clear and convincing             the federal court must go through a complicated analysis.
evidence. Moreover, while acknowledging the questionable                First, the court must determine that there is a state
amount of research done by counsel, the court decided that              procedural rule that is applicable to the petitioner’s claim
the second Strickland prong could not be met because Scott              and that the petitioner failed to comply with the rule. [...]
could not show a “reasonable probability” that the sentence             Second, the court must decide whether the state courts
would have been different otherwise. Strickland, 466 U.S. at            actually enforced the state procedural sanction. [...]
694. The court ended its discussion, however, with a                    Third, the court must decide whether the state procedural
footnote, noting that this too was a close call since one juror         forfeiture is an “adequate and independent” state ground
might always have been persuaded, and that the question was             on which the state can rely to foreclose review of a
ultimately mooted by the court’s grant of the writ on another           federal constitutional claim. [...] This question generally
ground.                                                                 will involve an examination of the legitimate state
                                                                        interests behind the procedural rule in light of the federal
   The district court was correct to focus on the second                interest in considering federal claims. [Fourth], the
Strickland prong. It is clear that, in its words, the “mitigating       petitioner must demonstrate under Sykes that there was
circumstances Scott wishes his counsel had presented . . . are          “cause” for him to not follow the procedural rule and that
largely, even overwhelmingly, negated by evidence that his              he was actually prejudiced by the alleged constitutional
background includes commission of robbery, assault,                     error.
kidnaping, and other violent acts upon innocent citizens,” and
that prosecutors would have elicited such information from            Id. at 138 (citations omitted). For purposes of the procedural-
any family members who testified for Scott. The mitigating            default analysis, the district court grouped Scott’s eighteenth
evidence would have revealed Scott’s personal loyalty to his          ground for relief—the claim that the penalty-phase jury
siblings, girlfriend, and children, and an exceedingly violent        instruction on unanimity is unconstitutional—with his
environment throughout his upbringing. As the district court          challenges to two other penalty-phase jury instructions—that
said, it is impossible to say for certain that one juror would        the jury’s recommendation of death was not binding on the
not have been swayed by this evidence, but certainty is not           trial court (Ground 14) and that the jury was to disregard
required here; we must ask only whether Scott has met his             emotions of mercy or sympathy (Ground 16)—because no
burden of demonstrating a reasonable probability that this            contemporaneous objection to any of the three instructions
would happen. None of the proffered mitigating evidence               had been raised. The district court noted that Scott had raised
reduces Scott’s culpability for the Prince murder or the string       these three arguments for the first time on direct appeal. The
of violence that preceded it. Scott can only offer a                  Ohio Court of Appeals noted the default and plain error
hypothetical juror, not a reasonable probability, and hence           standard of review, but went on to address the merits of the
cannot show prejudice.                                                claims. See Scott, 1985 WL 9047 at *8. The Ohio Supreme
                                                                      Court more explicitly relied on the procedural default, but
   As to the first Strickland prong, were we to reach it, it is not   nonetheless allowed for the possibility that Scott could prove
clear that the lawyers’ performances fell below the objective         plain error. The Ohio Supreme Court conducted a lengthy
standard. The state court fact findings that we are bound by          review of the record for plain error as to Ground 14, and a
indicate that neither Scott nor any proposed witness made any         shorter review as to Ground 16. As to the unanimity
attempt to assist the attorneys in finding mitigating evidence,       instruction claim, however, the Ohio Supreme Court said only
and that this made the job more difficult. This difficulty, of        this:
course, does not excuse a lack of attempt on the lawyers’ part.
12   Scott v. Mitchell                     Nos. 98-4272/4321       Nos. 98-4272/4321                               Scott v. Mitchell       41

     Appellant next argues that the requirement of                    The district court found all but one of the several grounds
  unanimity in recommending a life sentence denies a               for ineffectiveness of his trial counsel that Scott raised before
  capital defendant his right to a fair trial and freedom from     it to be procedurally barred, and Scott does not pursue those
  cruel and unusual punishment.                                    defaulted allegations on appeal. The sole remaining argument
     Again, appellant neglected to object to the trial court’s     is that Scott’s sentencing-phase counsel were ineffective
  instruction in this regard and has accordingly waived any        because they failed to research possible mitigating factors,
  objections with regard to this alleged error. State v.           and also failed to interview Scott’s several family members
  Fanning, supra. More importantly, in State v. Jenkins,           who often attended the trial. Scott’s attorneys did not present
  [...], this court ruled that a jury’s recommendation of a        any mitigating evidence      other than Scott’s own unsworn
  life sentence under R.C. 2929.03(D)(2) must be                   statement to the jury.8 They pursued a “residual doubt”
  unanimous.                                                       strategy, in which the defendant appeals to the jury’s lingering
                                                                   doubt regarding the conviction in an attempt to dissuade them
State v. Scott, 497 N.E.2d 55, 69 (Ohio 1986).                     from imposing the death penalty. The state trial court held a
                                                                   post-conviction evidentiary hearing on this issue, and
  The district court concluded that none of these three claims     determined that: (1) trial counsel’s testimony was more
had been procedurally defaulted. The court first noted that in     reliable than that of the family members; (2) the intransigence
examining Scott’s fourteenth and sixteenth grounds and             of Scott and his family was responsible for his counsel’s
“arguably in examining Scott’s eighteenth ground, as well,”        failure to identify and obtain mitigating evidence from the
the Ohio Supreme Court had not simply relied on Ohio’s             family members; (3) the family members made no attempt to
contemporaneous-objection rule, but had conducted a plain-         offer assistance until after Scott’s conviction; and (4) had
error analysis; hence, the Ohio Supreme Court “did not             Scott chosen to have a pre-sentence investigation report
wholly overlook Scott’s procedural default.” Relying on an         prepared or had the family members testified, the jury would
unpublished decision of this circuit, Knuckles v. Rogers, No.      have learned of Scott’s extensive criminal history. The court
92-3208, 1993 WL 11874 (6th Cir. Jan 21, 1993) (per                also made two other mixed findings of law and fact, namely
curiam), the district court further concluded that in any event,   that the family’s testimony was unreliable and unhelpful and
Ohio’s contemporaneous-objection rule is not an adequate           that Scott’s lawyers acted in his best interest. The district
and independent state ground on which the state could rely to      court appropriately acknowledged its deference to the
foreclose review of these claims because that rule is not          hearing’s findings on the primary, historical facts, which Scott
independent of federal law.
 1. The Trial Court’s Penalty-Phase Instruction on Jury                8
                       Unanimity                                         Scott had the right under Ohio law to testify under oath or make an
                                                                   unsworn statement to the jury, and he chose the latter. Scott used this
                                                                   opportunity to continue to deny his guilt (“I feel insulted, and that’s what
   With regard to Scott’s challenge to the penalty-phase           I wanted to reflect to you. Insult when you charged me.”), and explicitly
unanimity instruction—the only ground on which the district        told the jury that he was not going to tell them any reasons that they
court granted the writ—we hold that the district court erred.      should show him mercy since he was not guilty and that was all they
It is undisputed here that the first Maupin prong has been         needed to know (“I don’t have to sit here and say ‘Give me mercy.’ What
established; Scott does not question the applicability of          I mean, I don’t want no mercy . . . I don’t care what they say out of they
Ohio’s contemporaneous-objection rule and he does not claim        [sic] mouths, and I’m telling you, it is me now talking for me . . . . I
                                                                   didn’t care that you found me guilty, but it was up to you. I felt you
to have made such an objection. Scott does not address in          couldn’t because the truth has got to rise, but . . . you did, and it don’t
this appeal the fourth Maupin prong, the cause and prejudice       scare me when they say you are going to give me the death penalty.”).
40   Scott v. Mitchell                     Nos. 98-4272/4321       Nos. 98-4272/4321                        Scott v. Mitchell    13

unless there is an “overwhelming probability” that they were       test, although the district court did address that issue. Rather,
ignored. Richardson v. Marsh, 481 U.S. 200, 208 (1987).            Scott focuses on the second and third Maupin prongs, arguing
                                                                   that the Ohio courts did not actually enforce the state
   Scott’s scenario of jury bias is not nearly tenable enough to   contemporaneous-objection rule and that the rule is neither an
overcome these presumptions. Scott and Justice Marshall            adequate nor an independent state ground.
cited Quercia v. United States, 289 U.S. 466 (1933), for the
proposition that the judge’s comments warped the jury’s            (a). The Second Maupin Prong – Application of the Rule
perception beyond all hope of repair. The extremity of that
case’s facts, however, provide a perfect foil to demonstrate          The determination of whether a state court decision was
the mildness of the instant case. In Quercia, the trial judge      based on a state procedural rule is a legal question that we
instructed the jury that he believed every word the defendant      review de novo. See Couch v. Jabe, 951 F.2d 94, 96 (6th Cir.
said to be a lie because the defendant had wiped his hands         1991) (per curiam). Scott argued to the district court that by
while on the stand. See id. at 468-69. Here, we have only          conducting a plain-error review, the Ohio Supreme Court had
Scott’s inference that the court’s facially innocuous statement    excused the procedural default and hence had not enforced the
may have been understood as a “frank, unguarded admission”         state procedural sanction. The district court did not entirely
of the judge’s opinion, which would then have a prejudicial        agree: “It is questionable whether the Ohio Supreme Court
effect on a juror’s verdict. All we know for certain is that the   truly overlooked Scott’s procedural defaults and examined the
court communicated the existence of pretrial publicity, which      merits of Scott’s three grounds regarding jury instructions.
Patton held not to be an indelible influence on a juror’s mind.    [...] A plain error analysis is not tantamount to a review on
See also United States v. Peters, 754 F.2d 753, 762-63 (7th        the merits, so the Ohio Supreme Court did not wholly
Cir. 1985) (recounting several studies demonstrating capital       overlook Scott’s procedural default.”
jurors’ ability to put media reports out of their minds and vote
exclusively on the evidence). This alone does not destroy             On appeal, Scott cites the Supreme Court’s holding in
fundamental fairness.                                              Harris v. Reed, 489 U.S. 255, 257 (1989), that federal habeas
                                                                   courts are to apply the “plain statement rule” of Michigan v.
 C. Ineffective Assistance of Trial Counsel During the             Long to determine whether a state court decision was based
                     Penalty Phase                                 on a state law ground, and that any ambiguity as to whether
                                                                   the holding was based on or intertwined with federal law
   We apply to this claim the same de novo standard listed         requires the application of the Long rule. Scott urges us to
above. For Scott’s counsel to have deprived him of his Sixth       find that the Ohio Supreme Court decided his challenge to the
Amendment right to effective assistance, the counsel’s             jury unanimity instruction on its merits, not on the basis of the
performance must have “so undermined the proper                    procedural bar, citing as evidence the fact that in its three-
functioning of the adversarial process that the trial cannot be    sentence disposition of this claim, the Ohio Supreme Court
relied on as having produced a just result.” Strickland v.         began the last sentence with the words “More importantly.”
Washington, 466 U.S. 668, 686 (1984). It is Scott’s burden
to show his attorneys’ performance fell below an objective            Scott’s argument is meritless. The issued addressed in
standard of reasonableness and that Scott was thereby              Harris, as we explain below in relation to the third Maupin
prejudiced. See id. at 687-88. Counsel’s performance is            factor, is whether the state court decision actually relies on a
strongly presumed to be effective. See id. at 690; Kimmelman       state procedural ground that is both adequate and independent
v. Morrison, 477 U.S. 365, 381 (1986).                             from federal law; Harris does not preclude a finding that the
                                                                   state procedural rule was actually enforced where the state
14   Scott v. Mitchell                      Nos. 98-4272/4321      Nos. 98-4272/4321                        Scott v. Mitchell     39

court decision also relies on an alternative ground. Scott’s       in response to evidence presented at trial. In this context, we
only arguable basis for asserting that the Ohio Supreme Court      have said
did not enforce the contemporaneous-objection rule is its
“More importantly” sentence. The district court viewed this          It is the duty of the trial judge to conduct an orderly trial
sentence as only “arguably”amounting to a plain error review,        with the goal of eliciting the truth and attaining justice
and did not accept Scott’s argument that this was the primary        between the parties. In charging the jury, the trial judge
holding. We conclude that the Ohio Supreme Court’s                   is not limited to instructions of an abstract sort. It is
adversion to Ohio’s substantive law regarding jury unanimity         within his province, whenever he thinks it necessary, to
with regard to the recommendation of a life sentence was not         assist the jury in arriving at a just conclusion by
even arguably a plain error review, but was simply a                 explaining and commenting upon the evidence, by
supplement to its holding that Scott had waived any objection        drawing their attention to the parts of it which he thinks
to the jury instruction by failing to object at the time the         important; and he may express his opinion upon the
instruction was given.                                               facts, provided he makes it clear to the jury that all
                                                                     matters of fact are submitted to their determination. The
      (b). The Third Maupin Prong – Adequate and                     district judge may not assume the role of a witness. He
                Independent State Ground                             or she may, however, analyze and dissect the evidence,
                                                                     as long as the district judge does not distort or add to it.
  Scott claims not only that the Ohio Supreme Court did not          When commenting on the evidence, the trial judge must
enforce the contemporaneous-objection rule and hold his              take great care to avoid undue prejudice of the jury.
challenge to the unanimity instruction barred; he claims that
because the contemporaneous-objection rule does not                United States v. Blakeney, 942 F.2d 1001, 1013 (6th Cir.
preclude the state appellate courts from performing a plain-       1991) (citations, quotations and alterations omitted). Hence,
error review, the rule itself is dependent on federal law and is   the judge did not exceed his authority merely by pointing out
therefore not an “independent and adequate state ground”           the existence of the article and discussing its contents as a
under Maupin. Here the district court agreed. For support, it      basis to judge juror impartiality.
turned to our unpublished decision in Knuckles v. Rogers, No.
92-3208, 1993 WL 11874, at **2-3 (6th Cir. Jan. 21, 1993)             Allegations of jury bias must be viewed with skepticism
(per curiam):                                                      when the challenged influence occurred before the jurors took
                                                                   their oath to be impartial. Holding that pretrial publicity did
     [I]t is clear that Ohio has a contemporaneous objection       not bias a juror in Patton v. Yount, 467 U.S. 1025, 1036
  rule, and that the Ohio courts treat the failure to object to    (1984), the Court said that the partiality of a juror “is plainly
  a claimed error as a procedural default. Ohio R. Crim. P.        a question of historical fact: did a juror swear that he could set
  52; State v. Williams, 304 N.E.2d 1364 (Ohio 1977).              aside any opinion he might hold and decide the case on the
  Since Knuckles failed to object contemporaneously to the         evidence, and should the juror's protestation of impartiality
  allegedly improper remarks, he violated Ohio's                   have been believed.” Accordingly, the Court held that such
  contemporaneous objection rule and committed a                   a determination by a state court was entitled to a presumption
  procedural default. However, the procedural default did          of correctness on habeas review under 28 U.S.C. § 2254(d).
  not foreclose all consideration by the Ohio appellate            This is especially so in light of the two curative instructions
  court; the Ohio court examined the record to determine           the court gave, which we must presume to have been effective
  if the allegedly improper remarks were "plain error."
38     Scott v. Mitchell                    Nos. 98-4272/4321       Nos. 98-4272/4321                         Scott v. Mitchell     15

     B. The Trial Judge’s Comments to the Jury Venire                   The basic inquiry in the plain error analysis in Ohio is
                                                                      whether the defendant has been denied a "fair trial."
  We examine this claim de novo, with deference to facts              Whether a person is denied a fair trial is a question to be
found in state court, for denial of fundamental fairness. It is       resolved by applying principles of federal constitutional
not procedurally barred.                                              law. Therefore, we conclude that the Ohio appellate
                                                                      court's decision was not independent of federal law.
  Scott challenges a remark made by the trial judge which he
claims communicated to the jury the court’s belief that Scott       (footnote omitted). The district court concluded that “[g]iven
participated in the crime. During voir dire, the judge              the reasoning in Knuckles, this court must conclude that
explained to the jury that the court knew there was notoriety       Ohio’s application of its contemporaneous objection rule in
surrounding the case because he had seen a newspaper article        this case was not independent of federal law.” For the reasons
on it. The judge mentioned some details of the crime, then          that follow, we hold that the district court erred in holding
continued, “Not only was Mr. Scott – at least from the              that the Ohio Supreme Court’s dismissal of this claim does
newspaper reports that I think I had read – was involved in         not rest on an adequate and independent state ground.
this, there were three other--. . . .” At that point, the defense
objected, and received a sidebar. The Court gave a curative            In the recent published opinion in Coe v. Bell, 161 F.3d 320
instruction explaining the court’s lack of knowledge on the         (6th Cir. 1998), this circuit addressed the issue of whether a
case beyond the article. Scott moved for a mistrial, which the      federal habeas court is required to disregard a state court’s
prosecution reluctantly joined. Denying the motion, the Court       finding of procedural bar because the state court also issued
gave another instruction reiterating its neutrality and the         an alternative holding. We explained in Coe that, in contrast
jury’s duty to decide based solely on the evidence.                 to the state court’s statements in Harris that the state had a
                                                                    “well-settled” principle of law that issues which could have
   Dissenting from Scott’s denial of certiorari, Justices           been raised on direct appeal but were not are considered
Marshall and Brennan lambasted the Ohio courts for                  waived, and that petitioner’s claim “could have been raised in
upholding such an “extraordinary error” that “overwhelmed           [his] direct appeal,” id. at 330 (quoting Harris, 489 U.S. at
the presumption of innocence.” Scott v. Ohio, 480 U.S. at           258 (alteration in original)), the state court in Coe “took
925. They also pointed out that empaneling another jury             things one step further, . . . and explicitly and clearly said that
would have been easy at the voir dire stage. For this reason        Coe had no cognizable claim. There was, therefore, a
and because the prosecutor joined the mistrial motion, the          sufficiently clear and express statement here.” Id. at 330-31.
district court found this issue a “close call.” Nonetheless, the    It is Coe that governs our analysis here.
court found no fundamental unfairness. It viewed the
comments as reporting to the jury the media’s conclusion, and         Knuckles, on the other hand, is an unpublished opinion, and
the fact that even the judge had seen the coverage, in an           therefore is not binding upon subsequent panels of the court.
attempt to determine the jury’s ability to be impartial. It         See 6 Cir. R. 206 (1998). And, in any event, in Knuckles we
concluded by noting that the verdict would likely have been         did not hold that Ohio’s contemporaneous-objection rule or
upheld under Supreme Court precedent even if the jury               the Ohio court’s application of that rule was not independent
themselves had read the article.                                    of federal law; rather, we held that in that case the Ohio
                                                                    court’s decision that there was no plain error was not
  We find no error in the district court’s conclusion. The          independent of federal law.
threat of prejudicial comments from the court usually arises
16       Scott v. Mitchell                      Nos. 98-4272/4321         Nos. 98-4272/4321                       Scott v. Mitchell   37

  Here, the district court itself acknowledged that its                     duty, your efforts must be to arrive at a just verdict.
“adequate and independent state ground” analysis was “more                  Consider all the evidence and make your finding with
tenuous” with regard to the unanimity instruction than the                  intelligence and impartiality, without bias, sympathy or
other two claims, because “the Ohio Supreme Court did not                   prejudice, so that the State of Ohio and the defendant will
clearly apply   a plain error analysis to Scott’s eighteenth                feel that their case was fairly and impartially tried.
ground . . .”5 As we have indicated, however, the concluding
sentence in the relevant Ohio Supreme Court passage simply                We rejected a challenge to the substance of this instruction in
did not amount to any type of review, much less one                       Mapes as well:
dependent on or intertwined with federal law.
                                                                            Third, an instruction to a death-sentence jury that it may
  More importantly—and we use that term advisedly—Harris                    disregard the statutory criteria for imposing a death
specifically instructed state courts that they                              sentence may be constitutionally impermissible in light
                                                                            of the probability that such an instruction would result in
  need not fear reaching the merits of a federal claim in an                arbitrary and unpredictable results. See California v.
  alternative holding. By its very definition, the adequate                 Brown, 479 U.S. 538, 541, 107 S.Ct. 837, 93 L.Ed.2d
  and independent state ground doctrine requires the                        934 (1987). According to the Court, "sentencers may not
  federal court to honor a state holding that is a sufficient               be given unbridled discretion in determining the fates of
  basis for the state court's judgment, even when the state                 those charged with capital offenses." Id. Thus, an
  court also relies on federal law. Thus, by applying this                  instruction that the jury should not be swayed by "mere
  doctrine to habeas cases, Sykes curtails reconsideration of               sentiment, conjecture, sympathy, passion, prejudice,
  the federal issue on federal habeas as long as the state                  public opinion or public feeling" was not only
  court explicitly invokes a state procedural bar rule as a                 unobjectionable in Brown, it "serve[d] the useful purpose
  separate basis for decision. In this way, a state court may               of confining the jury's imposition of the death sentence
  reach a federal question without sacrificing its interests                by cautioning it against reliance on [irrelevant,]
  in finality, federalism, and comity.                                      extraneous emotional factors." Id. at 542, 543, 107 S.Ct.
                                                                            837. Thus, there is no merit whatsoever to Mapes's
Harris, 489 U.S. at 264 n. 10 (citations omitted). Further, the             claimed entitlement to a "merciful discretion" instruction,
Supreme Court instructed in Coleman that “[a] predicate to                  in light of the likely tendency of such an instruction to
the application of the Harris presumption is that the decision              lead to arbitrary differences in whom is selected to be
of the last state court to which the petitioner presented his               sentenced to death.
federal claims must fairly appear to rest primarily on federal
law or to be interwoven with federal law.” Coleman, 501                   171 F.3d at 415-16 (emphasis omitted, alterations in original).
U.S. at 735. As Coleman makes very clear, to apply Harris                 The district court also correctly relied on Brown, reasoning
any more broadly would eviscerate the very foundations of                 that the instruction followed that decision by warning against
the adequate and independent state ground doctrine, which are             all emotional responses, both in favor of and against Scott.
                                                                          There was no error as to this instruction either.

     5
      The court alleviated this concern by finding that the Warden also
failed the fourth Maupin prong, the cause and prejudice test. That
conclusion was also erroneous, as we will address below.
36    Scott v. Mitchell                       Nos. 98-4272/4321      Nos. 98-4272/4321                         Scott v. Mitchell     17

1982), any error was waived. As was the case in Coe, the             federalism, finality and comity. See id. at 730-32, 738-39,
state court’s statement could have been clearer and more             749.
express, but the test is not whether the state court could have
said it better. It is enough that the court specifically held that      The state court decision in the case before us here relied
the claims were waived; the court’s alternative holding that         more obviously on adequate and independent state procedural
there was no plain error “does not require us to disregard the       grounds than did the state court decision in Coleman itself.
state court’s finding of procedural bar.” Coe, 161 F.3d at 330.      There, the Virginia Supreme Court granted the state’s motion
                                                                     that requested summary dismissal purely on state procedural
  We further conclude, however, that the district court              grounds, although the court’s use of the phrase “[u]pon
correctly determined that neither of these claims had merit.         consideration whereof [referring to the parties’ briefs]”
The trial judge instructed the jury that its recommendation of       suggested that the court may have considered the merits of the
death would be “just that – a recommendation,” while a               filings as well. Coleman, 501 U.S. at 728. The Supreme
recommendation of life imprisonment “is binding upon the             Court refused to read this ambiguity as “overriding the court’s
Court, and I, the Judge, must impose the specific life sentence      explicit grant of a dismissal motion based solely on
which you recommend.” Scott claims that this violates the            procedural grounds. Those grounds are independent of
principle established in Caldwell v. Mississippi, 472 U.S. 320       federal law.” Id. at 744.
(1985), that courts must not mislead the jury into believing it
has less responsibility than it actually does for choosing the          Nothing in the Ohio Supreme Court’s analysis with regard
death sentence.                                                      to the unanimity instruction suggests that the court relied on
                                                                     federal law. That court explicitly said that Scott had waived
   We recently rejected this precise claim in Mapes v. Coyle,        the error by failing to object at trial, and that it had previously
171 F.3d 408, 414-15 (6th Cir. 1999). Moreover, as the               interpreted a state statute to require unanimity anyway. There
district court correctly held, Caldwell is limited to situations     is no mention of a plain-error analysis, and not even a hint
in which the jury is misled as to its role “in a way that allows     that federal law played a role in dismissing this claim. And
[it] to feel less responsible than it should for the sentencing      the Ohio Supreme Court’s concluding sentence in ruling on
decision. Thus, to establish a Caldwell violation, a defendant       the unanimity instruction, even if it could be viewed as related
necessarily must show that the remarks to the jury improperly        to federal law, was in addition to and separate from its
described the role assigned to the jury by local law.” Romano        explicit holding on state procedural grounds.
v. Oklahoma, 512 U.S. 1, 9 (1994) (citations and alterations
omitted); see also Dugger, 489 U.S. at 407; Kordenbrock,               Finally, in Engle v. Isaac, 456 U.S. 107, 124-29 (1982), the
919 F.2d at 1101. As Mapes points out, this instruction              Supreme Court specifically found that default imposed for
accurately describes Ohio law. There is no error with regard         failure to object contemporaneously as required by Ohio’s
to this instruction.                                                 Rule 30 is an adequate and independent state ground to bar
                                                                     federal habeas review absent a showing of cause and
  The trial court also instructed the jury:                          prejudice. In so holding, the Court specifically rejected
                                                                     Scott’s argument:
    You must not be influenced by any consideration of
  sympathy or prejudice. It is your duty to carefully weigh            Relying upon State v. Long, [...] respondents argue that
  the evidence to decide all disputed questions of fact, to            the Ohio Supreme Court has recognized its power, under
  apply the instructions of the Court to your findings, and            Ohio's plain-error rule, to excuse Rule 30 defaults. Long,
  to render your verdict accordingly. In fulfilling your               however, does not persuade us that the Ohio courts
18   Scott v. Mitchell                     Nos. 98-4272/4321       Nos. 98-4272/4321                         Scott v. Mitchell     35

  would have excused respondents' defaults. First, the             on that jury, id. at 1040, its requirement of an explicit
  Long court stressed that the plain-error rule applies only       instruction that “a solitary juror may prevent a death penalty
  in "exceptional circumstances," such as where, "but for          recommendation” was prospective only; Brooks did not hold
  the error, the outcome of the trial clearly would have           that all instructions requiring unanimous recommendations of
  been otherwise." [...] Second, the Long decision itself          life or death in previously decided Ohio death-penalty cases
  refused to invoke the plain-error rule for a defendant who       were unconstitutional. See id. at 1042. There is nothing in
  presented a constitutional claim identical to the one            the Brooks opinion to cast doubt on the Ohio Supreme
  pressed by respondents.                                          Court’s previous approval of Scott’s sentence (or, for that
                                                                   matter, Mapes’s). As we have explained, our Coe decision,
See id. at 125 n. 27. In Coleman, the Court also very strongly     which well preceded Mapes, explicitly held that unanimity
implied its continued disapproval of the rule the district court   instructions like those in this case do not violate Mills. The
here ascribes to Knuckles. As a preamble to its discussion of      Mapes dicta cannot preclude us from following Coe in this
independent state grounds, the Court acknowledged that it had      case.
previously held that Oklahoma’s review for “fundamental
trial error” before applying state procedural defaults “was not       We further note that the district court was clearly incorrect
independent of federal law so as to bar direct review because      in finding error in the trial court’s failure to advise the jury in
the State had made application of the procedural bar depend        its unanimity instruction as to the consequences of deadlock.
on an antecedent ruling on federal law.” Coleman, 501 U.S.         The Supreme Court has chastised such instructions as
at 741 (citing Ake v. Oklahoma, 470 U.S. 68 (1985))                encouraging deadlock and undermining the strong
(quotations and alterations omitted). The Coleman Court then       governmental interest in unanimous verdicts. See Jones v.
distinguished that holding by observing simply that “Ake was       United States, 119 S.Ct. 2090, 2099-2100 (1999). We did the
a direct review case. We have never applied its rule regarding     same in Coe, 161 F.3d at 339-40.
independent state grounds in federal habeas. But even if Ake
applies here, it does Coleman no good because the Virginia              2. The Trial Court’s Penalty-Phase Instructions
Supreme Court relied on an independent state procedural                 Regarding Considerations of Mercy and Effect of
rule.” Id. The Supreme Court, then, does not find the mere                        Recommendation of Death
reservation of discretion to review for plain error in
exceptional circumstances sufficient to constitute an                As with the challenge to the unanimity instruction, the State
application of federal law. Neither Scott nor Knuckles points      claims that Scott’s challenges to these two jury instructions
to any change in Ohio law that could distinguish Engle or          are defaulted because Scott made no contemporaneous
Coleman from the present case, and as in Ohio’s Long case          objection. The district court held that these claims had not
that Engle cites, the Ohio Court here did not invoke its plain-    been procedurally defaulted because the Ohio Supreme Court
error review for this claim.                                       had performed a plain-error review of each of them. The
                                                                   district court determined, however, that the claims were
   We issued a similar ruling in Paprocki v. Foltz, 869 F.2d       without merit.
281, 284-85 (6th Cir. 1989). There we enforced a default for
failure to object contemporaneously in a Michigan court,             We think that the district court erred in holding that these
although the state courts reserved the right to excuse the         claims were not procedurally defaulted. As to each of them,
default for “manifest injustice.” We noted that                    the Ohio Supreme Court explicitly stated that Scott had failed
                                                                   to raise any contemporaneous objection, and under its
                                                                   precedent of State v. Fanning, 437 N.E.2d 583, 585 (Ohio
34   Scott v. Mitchell                    Nos. 98-4272/4321       Nos. 98-4272/4321                       Scott v. Mitchell    19

mitigating factors.” This instruction pertains only to the          [w]e would be loath to adopt an exception to the "cause
weighing process, and not to the existence of individual            and prejudice" rule that would discourage state appellate
mitigating or aggravating factors. Indeed, the instruction          courts from undertaking the sort of inquiry conducted by
references these factors in the past tense, which suggests that     the Michigan court, and we do not believe that the state
the jurors were to have formed their opinions on the factors’       court's explanation of why the jury instructions resulted
existence before attempting to reach unanimity on their net         in no manifest injustice can fairly be said to have
weight. As in Coe, “[n]othing in this language could                constituted a waiver of the procedural default.
reasonably be taken to require unanimity as to the presence of
a mitigating factor.” 161 F.3d at 338. Whether or not the         Id. at 285. Although this statement appears addressed more
district court was correct that the instruction violated Ohio     towards the determination of whether the state courts actually
law by not conforming with the Ohio Supreme Court’s               enforced the bar (Maupin’s second prong) instead of its
subsequent decision in Brooks (which we find doubtful, given      independence from federal law, the reasoning is equally
that court’s approval of Scott’s sentence), it does not violate   applicable to this discussion.
Scott’s federal constitutional rights under Mills and therefore
cannot justify habeas relief.                                       All in all, we think it is clear that Knuckles, an unpublished
                                                                  decision of this court, cannot provide persuasive authority to
   Our conclusion is not altered by the portion of the opinion    support a finding that the Ohio Supreme Court did not rely on
in Mapes v. Coyle, 171 F.3d 408 (6th Cir. 1999), which            an independent state procedural ground in disposing of
suggests that such unanimity instructions are erroneous. In       Scott’s challenge to the trial court’s penalty-phase instruction
that Ohio capital case, we reviewed a similar challenge to a      on jury unanimity.
virtually identical unanimity instruction. See Mapes, 171
F.3d at 416 (“[Y]ou must unanimously find that the State has         In addition to his claim that Ohio’s contemporaneous-
failed to prove beyond a reasonable doubt that the aggravating    objection rule is not independent of federal law, Scott also
circumstances of which the defendant was found guilty of          argues that it is not “adequate” because it is not consistently
committing outweigh the mitigating factors.”). We stated in       enforced. The Supreme Court has held that an independent
dicta that this instruction was erroneous because Brooks had      state rule must be firmly established and regularly followed in
found such instructions to violate the Eighth and Fourteenth      order to be adequate. See Ford v. Georgia, 498 U.S. 411,
Amendments, but we declined to issue a writ on this ground        423-24 (1991); Byrd v. Collins, No. 96-3209, slip op. at 53
because the petitioner had procedurally defaulted that claim.     (6th Cir. Apr. 6, 2000) (following Ford). Scott claims that
See id. at 416-17, 419. The only reliance on federal              the Ohio Supreme Court has retained “unfettered discretion”
constitutional law in Brooks, however, is its citation to Mills   to waive the rule and has been “remarkably inconsistent” in
in explaining why it would thenceforth require that Ohio          applying it. He points to cases where the court ignored
jurors be explicitly instructed that “a solitary juror may        potential defaults and dismissed on the merits. In State v.
prevent a death penalty recommendation by finding that the        Zuern, 512 N.E.2d 585, 592 (Ohio 1987), the capital
aggravating circumstances in the case do not outweigh the         defendant raised his nine constitutional challenges to the
mitigating factors.” Brooks, 661 N.E.2d at 1042. Although         state’s death penalty statute by a general oral objection rather
the Brooks case was remanded for resentencing because the         than by a specific motion. The Ohio Supreme Court held that
Ohio Supreme Court could not be sure of the effect that the       although this technically constituted waiver under Ohio law,
instruction to “determine unanimously that the death penalty      “because of the nature of the case and the exacting review
is inappropriate before you can consider a life sentence” had     necessary where the death penalty is involved, [it] reserve[d]
20    Scott v. Mitchell                     Nos. 98-4272/4321       Nos. 98-4272/4321                         Scott v. Mitchell     33

the right to consider the constitutional challenges in particular        or more mitigating circumstances, the sentence shall
cases.” Id. This somewhat relaxed approach to reviewing a                be life imprisonment.
claim that was raised, but in an incorrect manner, is a separate
matter entirely from Scott’s complete failure to object               For both the death verdict and the life imprisonment
contemporaneously. In State v. Hamblin, 524 N.E.2d 476,               verdict, the jury was told that its verdict must be
479 (Ohio 1988), the capital defendant raised in the appellate        unanimous.
court two grounds for ineffective assistance of counsel, and
added three new grounds in the Supreme Court. Although the          Id. at 337 (alterations in original). As in this case, the district
new grounds were technically waived, the court said that            court in Coe found this instruction to be unacceptable under,
“[b]ecause this is a capital case, we will review all five          inter alia, Mills, “because there was a reasonable probability
arguments relating to the claim of ineffective assistance of        that the jurors believed that they could consider only those
counsel.” Id. As was the case in Zuern, Hamblin did not             mitigating circumstances that they unanimously agreed were
involve a completely forfeited issue. In State v. Williams, 528     present.” Id. Coe upheld the instruction because requiring
N.E.2d 910, 914 (Ohio 1988), the Court observed that                unanimity only as to the results of the weighing process “is a
“[b]ecause of the gravity of the sentence that has been             far different matter than requiring unanimity as to the
imposed on appellant, we have reviewed the record with care         presence of a mitigating factor . . . . The instructions say
for any errors that may not have been brought to our attention.     clearly and correctly that in order to obtain a unanimous
In addition, we have considered any pertinent legal arguments       verdict, each juror must conclude that the mitigators do not
which were not briefed or argued by the parties.” Despite this      outweigh the aggravators.” Id. at 338 (emphasis in original).
observation, the court affirmed the sentence and did not            In this regard, Coe specifically distinguished that instruction
discuss any specific error that the parties had not raised.         from those at issue in Mills, 486 U.S. at 387 (reviewing a
None of these cases involved the contemporaneous-objection          verdict form that read “Based upon the evidence we
rule. Finally, in State v. Coleman, 544 N.E.2d 622, 627 (Ohio       unanimously find that each of the following mitigating
1989), the court did apparently waive the default resulting         circumstances which is marked 'yes' has been proven to exist
from the defendant’s failure to object contemporaneously to         by a preponderance of the evidence and each mitigating
a jury instruction: “However, since this is a capital case we       circumstance marked 'no' has not been proven by a
have reviewed the jury instructions and find not only that          preponderance of the evidence” (emphasis omitted)), and
there was a correct statement of the law but also that the trial    Kubat, 867 F.2d at 369 (“If . . . you unanimously conclude
court additionally instructed the jury it could not convict the     that there is a sufficiently mitigating factor or factors to
defendant of aggravated murder unless it found [specific            preclude imposition of the death sentence, you should sign the
intent to kill].”                                                   verdict form which so indicates.”), which much more clearly
                                                                    required unanimity in the finding of mitigating factors.
  These cases do indicate that the Ohio Supreme Court
employs an abundance of caution in capital cases, and, on              Similarly, Scott’s jury was instructed to recommend death
occasion, has relaxed its enforcement of default. They do not,      if it unanimously found “that the aggravating circumstances
however, indicate that Ohio reserves so much leeway in              which Jay Scott was found guilty of committing outweigh the
capital cases that we are justified here in ignoring its            mitigating factors,” and to choose an appropriate life sentence
sovereign decision founded upon its own procedural rule. In         if it was unanimous in finding “that the State of Ohio failed
cases where state procedural grounds have not been enforced         to prove that the aggravating circumstances which the
by federal courts because they were not firmly established and      defendant . . . was found guilty of committing, outweigh the
32    Scott v. Mitchell                   Nos. 98-4272/4321       Nos. 98-4272/4321                        Scott v. Mitchell    21

condemned by Mills v. Maryland, 486 U.S. 367 (1988). The          regularly applied, the facts have been much more extreme
district court saw the fact that a minority of this Court had     than these isolated examples of discretion. See, e.g, Ford,
followed Kubat, and the majority had merely distinguished it      498 U.S. at 423-24 (finding state rule governing timing of
factually, in Kordenbrock v. Scroggy, 919 F.2d 1091 (6th Cir.     Batson challenges to racial makeup of jury not even remotely
1990) (en banc), as evidence that we would follow Kubat           close to being “firmly established and regularly followed”
here. Therefore, the court found a substantial possibility that   because it was a novel rule applied retroactively); Barr v. City
the “faulty jury instruction which created this mis-impression    of Columbia, 378 U.S. 146, 149 (1964) (rejecting state court’s
violated Scott's Fourteenth Amendment right to be free from       explanation that petition was worded too generally to have
deprivation of life without due process of law.”                  raised an issue because that court had recently accepted an
                                                                  identically worded appeal); Warner v. United States, 975 F.2d
  We think that the court’s likening of the instruction given     1207, 1213-14 (6th Cir. 1992) (rejecting Ohio Supreme
here to those at issue in Mills and Kubat was incorrect. Those    Court’s reliance on failure to raise ineffective assistance on
instructions required the jury to be unanimous in its finding     direct appeal as reason for default because there was no such
of each mitigating factor, whereas this instruction plainly       requirement at the time). Rather, this case is more like those
applies only to the overall weighing of mitigating and            in which some minor inconsistency in applying the rule has
aggravating factors. In this regard, Scott’s argument is          been noted but held not to be severe enough to override the
indistinguishable from the one we recently rejected in Coe v.     federalism, finality and comity interests served by enforcing
Bell, 161 F.3d 320, 336-39 (6th Cir. 1998). In that case,         the bar. See, e.g., Coleman, 501 U.S. at 758 (White, J.,
                                                                  concurring) (“Petitioner argues that the Virginia court does in
  The jury was then given the form its verdict should take:       fact waive the rule on occasion, but I am not now convinced
                                                                  that there is a practice of waiving the rule when constitutional
   (1) We, the Jury, unanimously find the following listed        issues are at stake, even fundamental ones. The evidence is
  statutory aggravating circumstance or circumstances;            too scanty to permit a conclusion that the rule is no longer an
  . . . . .                                                       adequate and independent state ground”); Dugger v. Adams,
    (2) We, the Jury, unanimously find that there are no          489 U.S. 401, 410 n. 6 (1989) (“respondent asserts . . . that
  mitigating circumstances sufficiently substantial to            the Florida Supreme Court has failed to apply its procedural
  outweigh the [aggravating circumstances] so listed              rule consistently and regularly because it has addressed the
  above.                                                          merits in several cases raising Caldwell claims on
    (3) Therefore, we, the Jury, unanimously find that the        postconviction review. In the vast majority of cases,
  punishment shall be death.                                      however, the [court] has faithfully applied its rule that claims
                                                                  not raised on direct appeal cannot be raised on postconviction
  The alternate result was then provided for and explained:       review”); Byrd, No. 96-3209, slip op. at 53-54 (following
     If you unanimously determine that no statutory               Dugger in holding that four examples of waiver of default by
     aggravating circumstance has been proved by the              Ohio courts are not enough to overcome the vast majority of
     State beyond a reasonable doubt; or if the Jury              cases enforcing the default); Coe, 161 F.3d at 331 (“The few
     unanimously determine that [aggravating                      [cases that are not adverse or too old to be relevant] are
     circumstances] have been proved by the State                 isolated and unpublished, and so are . . . insufficient to defeat
     beyond a reasonable doubt; but that said                     an otherwise ‘strict and regular’ practice”); Shepard v. Foltz,
     [aggravating circumstances] are outweighed by one            771 F.2d 962, 966 (6th Cir. 1985) (“we [recently] questioned
                                                                  our prior determination whether Michigan enforces a
22   Scott v. Mitchell                     Nos. 98-4272/4321       Nos. 98-4272/4321                               Scott v. Mitchell       31

contemporaneous objection rule with respect to Sandstrom           State v. Springer, 586 N.E.2d 96, 97 (Ohio 1992) (syllabus),
violations, and, in any event, we held that a federal habeas       the court held that when the jury became hopelessly
petitioner must meet the Sykes test if the Michigan courts in      deadlocked as to sentence, the court is required to impose a
fact applied such a rule”).                                        life sentence. In State v. Brooks, 661 N.E.2d 1030 (Ohio
                                                                   1996), the court reviewed a sentencing instruction that the
  Application of the adequate and independent state ground         jury must unanimously agree that the death penalty is
doctrine in this case also requires an assessment of the           inappropriate before recommending a life sentence. The court
specific state interest served by enforcing the                    found this contrary to § 2929.03(D)(2). See id. at 1040-41.
contemporaneous-objection rule. See Wesselman v. Seabold,          Brooks purported to “harmonize” the Jenkins and Springer
834 F.2d 99, 101 (6th Cir. 1987) (noting that resolution of this   holdings by requiring an instruction to be given thenceforth
prong “turns on the substantiality of the state interest           that a solitary juror could prevent the imposition of the death
involved”); Maupin, 785 F.2d at 138 (same). This                   penalty. See id. at 1041-42. The district court found it
consideration reinforces the need to enforce the procedural        “notable” that Springer and Brooks were decided after Scott’s
default here, because the contemporaneous-objection rule has       sentence was imposed, but decided that Brooks had simply
been lauded as few other procedural requirements have been.        clarified, not altered, Ohio law on the subject. It thus found
Not only did the Court expressly endorse Ohio’s Rule 30 in         the trial court’s instruction requiring unanimity on life to be
Engle, but the sweeping language of cases such as United           inconsistent with Ohio law.
States v. Frady, 456 U.S. 152 (1982) (raising the issue under
the Federal Rules), suggests that the Court places high              Since “the fact that the instruction was allegedly incorrect
importance on the contemporaneous-objection rule regardless        under state law is not a basis for habeas relief,” see Estelle v.
of jurisdiction:                                                   McGuire, 502 U.S. 62, 71-72 (1991), the district court went
                                                                   on to observe that the “instructions left no room for the jury
  Orderly procedure requires that the respective                   to believe the court could accept anything other than a
  adversaries’ views as to how the jury should be                  unanimous recommendation, and gave no direction to the jury
  instructed be presented to the trial judge in time to enable     as to the effect a jury split would have on the jury’s prior
  him to deliver an accurate charge and to minimize the            determination of guilt, or on the sentence the trial court could
  risk of committing reversible error. It is the rare case in      or would then impose on Scott.” The court then followed
  which an improper instruction will justify reversal of a         Kubat v. Thieret, 867 F.2d 351 (7th Cir. 1989), which found
  criminal conviction when no objection has been made in           a similar instruction to create the impermissible possibility
  the trial court.                                                 that individual jurors would believe that unanimity was
                                                                   required as to the existence of mitigating factors, the result
Id. at 165-66 (quoting Henderson v. Kibbe, 431 U.S. 145, 154
(1977)). Perhaps nowhere, however, has this conviction been
stated more strongly than in Sykes:
                                                                   open court.” Id. This rule was available to Scott’s trial court. Even
    The contemporaneous-objection rule itself is by no             without this rule, moreover, the Jenkins court found that any potential
  means peculiar to Florida, and deserves greater respect          ambiguity in the unanimity instruction was resolved by the
  than Fay gives it, both for the fact that it is employed by      “well-recognized [rule] that when statutes allow a jury in a criminal
  a coordinate jurisdiction within the federal system and          proceeding to influence punishment, such as the recommendation of life
                                                                   imprisonment in place of death, and the statute fails to expressly authorize
  for the many interests which it serves in its own right. A       a nonunanimous vote, the jury cannot secure the lesser punishment absent
  contemporaneous objection enables the record to be               unanimity.” Id.
30       Scott v. Mitchell                        Nos. 98-4272/4321           Nos. 98-4272/4321                      Scott v. Mitchell    23

    After you have retired, first, select a foreman or                         made with respect to the constitutional claim when the
  forelady and when all 12 of you – I repeat – all 12 of you                   recollections of witnesses are freshest, not years later in
  agree upon a verdict, you will sign the verdict in ink, and                  a federal habeas proceeding. It enables the judge who
  advise the Court of this fact. You will remain in the jury                   observed the demeanor of those witnesses to make the
  room until summoned back into the courtroom. When                            factual determinations necessary for properly deciding
  you return to the courtroom, your verdict will be returned                   the federal constitutional question. While the 1966
  to me, as you did before, and I will read it for you.                        amendment to § 2254 requires deference to be given to
                                                                               such determinations made by state courts, the
(emphasis added by district court). This was based on the                      determinations themselves are less apt to be made in the
following provision of Ohio law:                                               first instance if there is no contemporaneous objection to
                                                                               the admission of the evidence on federal constitutional
  If the trial jury unanimously finds, by proof beyond a                       grounds.
  reasonable doubt, that the aggravating circumstances the                        A contemporaneous-objection rule may lead to the
  offender was found guilty of committing outweigh the                         exclusion of the evidence objected to, thereby making a
  mitigating factors, the trial jury shall recommend to the                    major contribution to finality in criminal litigation.
  court that the sentence of death be imposed on the                           Without the evidence claimed to be vulnerable on federal
  offender. Absent such a finding, the jury shall                              constitutional grounds, the jury may acquit the defendant,
  recommend that the offender be sentenced to [one of the                      and that will be the end of the case; or it may nonetheless
  following life imprisonment terms].                                          convict the defendant, and he will have one less federal
                                                                               constitutional claim to assert in his federal habeas
Ohio Rev. Code § 2929.03(D)(2) (emphasis added by district                     petition. If the state trial judge admits the evidence in
court). It was clear to the district court that the statute did not            question after a full hearing, the federal habeas court
require unanimity in recommending a life sentence, but rather                  pursuant to the 1966 amendment to § 2254 will gain
mandated life imprisonment if the jury reached anything but                    significant guidance from the state ruling in this regard.
unanimity on death. The court also reviewed three decisions                    Subtler considerations as well militate in favor of
of the Ohio Supreme Court interpreting § 2929.03(D)(2). The                    honoring a state contemporaneous-objection rule. An
first, State v. Jenkins, 473 N.E.2d 264, 270 (Ohio 1984)                       objection on the spot may force the prosecution to take a
(syllabus ¶ 10), held that a jury’s recommendation of7 life                    hard look at its hole card, and even if the prosecutor
imprisonment under that section must be unanimous. In                          thinks that the state trial judge will admit the evidence he
                                                                               must contemplate the possibility of reversal by the state
                                                                               appellate courts or the ultimate issuance of a federal writ
     7                                                                         of habeas corpus based on the impropriety of the state
      The district court suggested in its Order that the Jenkins decision
was available to the trial court when it sentenced Scott, but we think this    court's rejection of the federal constitutional claim.
is clearly wrong. Scott’s sentencing-phase jury recommended the death             We think that the rule of Fay v. Noia, broadly stated,
penalty on March 28, 1984, and the court adopted the recommendation on         may encourage "sandbagging" on the part of defense
April 4, 1984, but Jenkins was not released until December 17, 1984.           lawyers, who may take their chances on a verdict of not
Nevertheless, the Ohio Supreme Court approved of the unanimity
instruction in Jenkins with such sweeping language as to suggest that the      guilty in a state trial court with the intent to raise their
question was well-settled under Ohio law. See Jenkins, 473 N.E.2d at           constitutional claims in a federal habeas court if their
307. The Court relied almost exclusively on Ohio Crim. R. 31(A), which         initial gamble does not pay off. The refusal of federal
provided: “The verdict shall be unanimous. It shall be in writing, signed      habeas courts to honor contemporaneous-objection rules
by all jurors concurring therein, and returned by the jury to the judge in
24   Scott v. Mitchell                    Nos. 98-4272/4321     Nos. 98-4272/4321                      Scott v. Mitchell    29

 may also make state courts themselves less stringent in            On the other hand, if after considering all of the
 their enforcement. Under the rule of Fay v. Noia, state         relevant evidence raised at trial, the testimony, other
 appellate courts know that a federal constitutional issue       evidence, the statement of Jay Scott, and the arguments
 raised for the first time in the proceeding before them         of counsel, you find that the State of Ohio failed to prove
 may well be decided in any event by a federal habeas            that the aggravating circumstances which the defendant,
 tribunal. Thus, their choice is between addressing the          Jay Scott, was found guilty of committing, outweigh the
 issue notwithstanding the petitioner's failure to timely        mitigating factors, then you will return your verdict
 object, or else face the prospect that the federal habeas       reflecting your decision.
 court will decide the question without the benefit of their        In this event, you will then proceed to determine which
 views.                                                          of two possible life imprisonment sentences to
    The failure of the federal habeas courts generally to        recommend to the Court. [...]
 require compliance with a contemporaneous-objection                Now, ladies and gentlemen, let me, first of all, before
 rule tends to detract from the perception of the trial of a     we continue, before I read to you what your verdict is,
 criminal case in state court as a decisive and portentous       you see it is almost identical, and when I say “It is almost
 event. A defendant has been accused of a serious crime,         identical,” to the forms that you have received before. It
 and this is the time and place set for him to be tried by a     says, and I just picked them up the way they were,
 jury of his peers and found either guilty or not guilty by      “Sentencing Proceeding” on the top, and it identifies the
 that jury. To the greatest extent possible all issues which     case, the case number, and then it says, “Verdict: We, the
 bear on this charge should be determined in this                jury in this case being duly empaneled and sworn, do find
 proceeding: the accused is in the court-room, the jury is       beyond a reasonable doubt that the aggravating
 in the box, the judge is on the bench, and the witnesses,       circumstances which the defendant, Jay Scott, was found
 having been subpoenaed and duly sworn, await their turn         guilty of committing, are sufficient to outweigh the
 to testify. Society's resources have been concentrated at       mitigating factors presented in this case.
 that time and place in order to decide, within the limits of       “We, the jury, recommend that the sentence of death
 human fallibility, the question of guilt or innocence of        be imposed upon the defendant, Jay Scott,” and, again,
 one of its citizens. Any procedural rule which                  signed by the foreman or forelady and all 12 of you must
 encourages the result that those proceedings be as free         sign.
 of error as possible is thoroughly desirable, and the              The second form is: “We, the jury in this case being
 contemporaneous-objection rule surely falls within this         duly empaneled and sworn, do find that the aggravating
 classification.                                                 circumstances which the defendant, Jay Scott, was found
    We believe the adoption of the Francis rule in this          guilty of committing, are not sufficient to outweigh the
 situation will have the salutary effect of making the state     mitigating factors present in this case.
 trial on the merits the "main event," so to speak, rather          “We, the jury, recommend that the defendant, Jay
 than a "tryout on the road" for what will later be the          Scott, be sentenced to life imprisonment with parole
 determinative federal habeas hearing. There is nothing          eligibility after sentencing,” and then there’s a blank with
 in the Constitution or in the language of § 2254 which          an asterisk which refers down and says, “insert years of
 requires that the state trial on the issue of guilt or          imprisonment,” and again, the signatures, and the first
 innocence be devoted largely to the testimony of fact           line is reserved for the foreman or forelady, and the
 witnesses directed to the elements of the state crime,          remainder of the eleven of you must sign that verdict
 while only later will there occur in a federal habeas           form. It must be unanimous. [...]
28   Scott v. Mitchell                     Nos. 98-4272/4321       Nos. 98-4272/4321                       Scott v. Mitchell    25

sentencing phase of a capital trial. See id. The Court               hearing a full airing of the federal constitutional claims
observed that although it would not attempt to define “what          which were not raised in the state proceedings. If a
it means to be ‘actually innocent’ of a death sentence,” id., it     criminal defendant thinks that an action of the state trial
could not find such extraordinary injustice under the facts of       court is about to deprive him of a federal constitutional
that case, where the mitigating and aggravating factors had          right there is every reason for his following state
been found to be equal. See id. Scott has made no attempt to         procedure in making known his objection.
demonstrate this kind of fundamental miscarriage of justice,
and we are confident that he cannot do so.                         Sykes, 433 U.S. at 88-90 (footnote omitted, emphasis added).
                                                                   Certainly, Ohio’s rule passes the third Maupin prong in this
  Accordingly, we hold that the district court erred in            case.
concluding that Scott’s claim of constitutional error with
regard to the penalty-phase unanimity instruction was not              (c). The Fourth Maupin Prong – The Cause and
procedurally defaulted, and in further concluding that even if                         Prejudice Test
the claim were defaulted, Scott demonstrated cause and
prejudice to excuse the procedural default. We further hold           The district court’s primary rationale for excusing
that the Ohio Supreme Court relied on Ohio’s                       procedural default as to the unanimity instruction claim was
contemporaneous-objection rule—an adequate and                     that Scott had shown cause and prejudice to excuse his failure
independent state ground—in holding that this claim had been       to object. The court’s only explanation of cause is that “Scott
defaulted; that Scott failed to demonstrate cause and prejudice    reasonably believed a contemporaneous objection would be
to excuse the default, and that the district court erred in        futile” because, as demonstrated in the Ohio Supreme Court’s
reaching the merits of this claim. We therefore REVERSE            three-sentence disposition of this claim, that court’s precedent
the district court’s issuance of a writ of habeas corpus.          at the time required jury verdicts as to both guilt and life
                                                                   sentences to be unanimous. The United States Supreme
  (d). The Merits of Scott’s Challenge to the Unanimity            Court, however, has explicitly rejected this idea:
                       Instruction
                                                                     the futility of presenting an objection to the state courts
   Nevertheless, out of an abundance of caution and in order         cannot alone constitute cause for a failure to object at
to clarify our precedents governing sentencing-phase                 trial. If a defendant perceives a constitutional claim and
instructions on jury unanimity, we will consider in the              believes it may find favor in the federal courts, he may
alternative the merits of Scott’s challenge. The unanimity           not bypass the state courts simply because he thinks they
instruction given to Scott’s jury read:                              will be unsympathetic to the claim. Even a state court
                                                                     that has previously rejected a constitutional argument
    If all 12 members of the jury find, by proof beyond a            may decide, upon reflection, that the contention is valid.
  reasonable doubt, that the aggravating circumstances               Allowing criminal defendants to deprive the state courts
  which Jay Scott was found guilty of committing                     of this opportunity would contradict the principles
  outweigh the mitigating factors, then you must return              supporting Sykes.
  such a finding to the Court. I instruct you as a matter of
  law that if you make such a finding, then you have no
  choice and must recommend to the Court that the
  sentence of death be imposed upon the defendant, Jay
  Scott. [...]
26       Scott v. Mitchell                         Nos. 98-4272/4321           Nos. 98-4272/4321                       Scott v. Mitchell    27

Engle, 456 U.S. at 130 (footnotes omitted).      Scott does not                  resulting from instruction error be evaluated in the total
address cause and prejudice on appeal,6 and even if he did he                    context of the events at trial. As we have often
would be hard-pressed to distinguish this holding; it was                        emphasized[,] a single instruction to a jury may not be
made in the context of Ohio’s contemporaneous-objection                          judged in artificial isolation, but must be viewed in the
rule, and the Court has said “that the standard for cause                        context of the overall charge. Moreover, a judgment of
should not vary depending on the timing of a procedural                          conviction is commonly the culmination of a trial which
default or on the strength of an uncertain and difficult                         includes testimony of witnesses, argument of counsel,
assessment of the relative magnitude of the benefits                             receipt of exhibits in evidence, and instruction of the jury
attributable to the state procedural rules [involved].” Murray                   by the judge. Thus not only is the challenged instruction
v. Carrier, 477 U.S. 478, 491 (1986).                                            but one of many such instructions, but the process of
                                                                                 instruction itself is but one of several components of the
  The district court’s finding of prejudice was based on the                     trial which may result in the judgment of conviction.
merits of Scott’s claim, and on its conclusion that the
sentencing proceedings might reasonably have come to a                         Id. at 169 (internal quotations, citations, and alterations
different result absent the instruction of which Scott                         omitted). Presumably, this same approach applies to jury
complains. Of course, evaluating the merits to determine the                   instructions in the sentencing phase as well. Our review of
applicability of procedural default is circular and undermines                 the briefs and record leaves us convinced that there is no such
the federalism concerns behind the doctrine. Moreover, while                   prejudice here. Scott offers no help in making that
Sykes left open the definition of “prejudice,” Frady                           assessment, however, and, in any event, we find that Scott
“eliminate[d] any doubt about its meaning for a defendant                      cannot show cause for his default.
who has failed to object to jury instructions at trial,” Frady,
456 U.S. at 168:                                                                  Although neither the district court nor Scott mentions it, it
                                                                               is worth noting that an exception to the requirement that a
  [Henderson] summarized the degree of prejudice we                            federal habeas petitioner demonstrate cause and prejudice in
  have required a prisoner to show before obtaining                            order to obtain review of his defaulted claims may be made
  collateral relief for errors in the jury charge as "whether                  when the petitioner is able to demonstrate that failure to
  the ailing instruction by itself so infected the entire trial                consider those claims will result in a “fundamental
  that the resulting conviction violates due process, not                      miscarriage of justice.” Coleman, 501 U.S. at 750; Engle,
  merely whether the instruction is undesirable, erroneous,                    456 U.S. at 135. The Court has explained that although,
  or even universally condemned." We reaffirm this                             ordinarily, petitioners who can show a fundamental
  formulation, which requires that the degree of prejudice                     miscarriage of justice will also be able to meet the cause and
                                                                               prejudice requirement, in extraordinary cases, “where a
                                                                               constitutional violation has probably resulted in the
                                                                               conviction of one who is actually innocent, a federal habeas
     6
      Instead, Scott argues that even if we find procedural default, we        court may grant the writ even in the absence of a showing of
should at least review his claim for plain error. The Supreme Court            cause for the procedural default.” Carrier, 477 U.S. at 496;
rejected precisely this contention in Frady, 456 U.S. at 164-65, noting that   Dugger, 489 U.S. at 410 n. 6. In Dugger, the Court noted that
to apply the same “plain-error” review to a habeas petition that would
apply on direct appeal destroys any respect for the finality of the state      this exception will apply to death sentences only in
court judgment and allows the petition to function as a second appeal.         extraordinary cases, given the difficulty of translating the
The Court was very clear that the cause and prejudice test must be used        concept of actual innocence from the guilt phase to the
instead.
