                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 07a0043p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                     X
                             Petitioner-Appellant, -
 VON CLARK DAVIS,
                                                      -
                                                      -
                                                      -
                                                          No. 02-3227
          v.
                                                      ,
                                                       >
 RALPH COYLE, Warden,                                 -
                             Respondent-Appellee. -
                                                     N
                      Appeal from the United States District Court
                     for the Southern District of Ohio at Columbus.
                   No. 97-00402—James L. Graham, District Judge.
                                    Argued: December 8, 2005
                              Decided and Filed: January 29, 2007
                 Before: DAUGHTREY, COLE, and GIBBONS, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Alan M. Freedman, MIDWEST CENTER FOR JUSTICE, LTD., Evanston, Illinois,
for Appellant. Michael L. Collyer, OFFICE OF THE ATTORNEY GENERAL, Cleveland, Ohio,
for Appellee. ON BRIEF: Alan M. Freedman, MIDWEST CENTER FOR JUSTICE, LTD.,
Evanston, Illinois, Laurence E. Komp, ATTORNEY AT LAW, Manchester, Missouri, for Appellant.
Michael L. Collyer, OFFICE OF THE ATTORNEY GENERAL, Cleveland, Ohio, for Appellee.
     DAUGHTREY, J., delivered the opinion of the court, in which COLE, J., joined.
GIBBONS, J. (pp. 18-19), delivered a separate opinion concurring in the judgment.
                                       _________________
                                           OPINION
                                       _________________
        MARTHA CRAIG DAUGHTREY, Circuit Judge. The petitioner, Von Clark Davis, was
convicted of aggravated murder and sentenced to death by a three-judge panel in Ohio state court.
The Ohio Court of Appeals affirmed his conviction and sentence, but the state supreme court
vacated the sentence and remanded the case to the trial court for resentencing. After refusing to
permit Davis to introduce new evidence at the rehearing, the same three-judge panel again imposed
the death penalty, finding that because of his criminal history and “explosive personality disorder,”
Davis would not be deterred from future criminal conduct by a life sentence. Following his
unsuccessful appeal of the second sentencing order, Davis filed a petition for a writ of habeas corpus
in federal court, contending, among other things, that his rights under the Eighth and Fourteenth
Amendments to the United States Constitution had been violated when he was denied the

                                                  1
No. 02-3227           Davis v. Coyle                                                             Page 2


opportunity to present evidence of his good behavior in prison during the five years he had spent on
death row between the first and second sentencing hearings. Because the decisions in the Ohio
courts rejecting this contention and upholding the sentencing order were both contrary to and
unreasonable applications of the rule announced by the United States Supreme Court in Skipper v.
South Carolina, 476 U.S. 1 (1986), we reverse the district court’s denial of relief and grant the
petitioner a conditional writ of habeas corpus.
                     I. FACTUAL AND PROCEDURAL BACKGROUND
       In 1984, a three-judge panel convicted Davis of capital murder in the death of Suzette Butler,
and the Ohio Court of Appeals affirmed the conviction on direct appeal. See State v. Davis, No.
CA84-06-071, 1986 WL 5989 (Ohio Ct. App. May 27, 1986) (Davis I). As part of its review, the
Ohio Supreme Court provided the following statement of facts with regard to Davis’s conviction:
               At approximately 7:40 p.m. on December 12, 1983, officers of the Hamilton
       Police Department arrived at the scene of a shooting at American Legion Post 520
       (hereinafter “the Legion”) . . . . Lying on the pavement approximately six feet
       outside the front door of the Legion was the deceased victim, Suzette Butler. An
       autopsy performed the following day by the county coroner revealed that Butler had
       died as a result of multiple gunshot wounds to the left side of her head. One of the
       entrance wounds suggested that the muzzle of the murder weapon was within four
       to twenty inches of the victim’s head at the time the weapon was fired.
               On the day of the shooting, Butler met her friend, Mona Aldridge, at the
       Legion sometime between 5:00 p.m. and 6:30 p.m. Appellant, Von Clark “Red”
       Davis, arrived shortly thereafter, and eventually sat at a table with Butler and
       Aldridge. Apparently, [Davis] and Butler had cohabited for several months, but had
       recently separated. After a brief period of time, [Davis] and Butler arose from the
       table and walked out the front door. Prior to leaving, Butler told Aldridge that she
       would be “right back” and asked Aldridge to watch her jacket, cigarettes and drink.
       Several minutes later, a concerned Aldridge went to the front door of the Legion to
       look for Butler. Aldridge opened the door slightly and discovered [Davis] pointing
       a gun at Butler’s head. Aldridge panicked and went back inside the bar.
       Momentarily, others followed her into the bar saying that someone had been shot.
                The shooting was witnessed by Reginald Denmark and Cozette Massey. The
       couple had been on a walk observing Christmas lights. As they were walking, they
       saw a man and a woman talking in front of the Legion. The man and woman did not
       appear to be arguing. Two shots rang out. As the woman (later identified as Butler)
       fell, another shot was fired. Finally, “. . . after she was down, he bent down and shot
       her in the head.” Both Massey and Denmark ultimately identified [Davis] as the
       person who shot Butler.
               It was later established that on the day of Butler’s murder, [Davis] had sought
       out Mark “Poppa” Lovette to “do him a favor” in exchange for sixty dollars. Along
       with a third party, Wade Coleman, a.k.a. Hank Stokes, [Davis] drove Lovette to a
       pawn shop and gave him money to purchase a handgun. Lovette purchased a Raven
       P .25 semi-automatic handgun and gave it to [Davis]. [Davis] again gave money to
       Lovette and had him purchase shells for the gun at a K Mart store. Lovette was then
       dropped off. [Davis] subsequently discovered that the K Mart shells did not fit the
       weapon. Lovette was picked up again, the shells were returned to K Mart, and
       [Davis] drove Lovette to a local gun shop. Lovette purchased a box of PMC .25
       automatic shells and gave them to [Davis]. [Davis] then loaded the gun in the
No. 02-3227            Davis v. Coyle                                                             Page 3


        presence of Lovette and Coleman and placed the gun under the driver’s seat of his
        car. Late that afternoon, Lovette and Coleman were dropped off separately.
State v. Davis, 528 N.E.2d 925, 926-27 (Ohio 1988) (Davis II).
       At trial, Davis did not present either a heat of passion or a provocation defense. Instead, his
counsel attempted to point out inconsistencies in the accounts of the shooting offered by state
witnesses, and Davis also testified on his own behalf, maintaining that he had purchased the murder
weapon as part of an exchange with “Silky Carr,” a Kentuckian whom Davis asserted had been
Butler’s drug dealer. He also claimed that Butler owed “Silky Carr” money and “that he left ‘Carr’
and Butler talking in front of the Legion on the night of the murder.” Id. at 927 n.5.
        The Ohio Supreme Court affirmed Davis’s convictions but vacated his sentence because the
three-judge panel had improperly considered non-statutory aggravating circumstances during the
penalty phase of the proceedings. See id. at 931-36. The court also considered for the first time
whether to apply its holding in State v. Penix, 513 N.E.2d 744 (Ohio 1987), that a capital defendant
whose death sentence is vacated on appeal following a jury verdict is ineligible to be resentenced
to death, to defendants tried before a three-judge panel. The court declined to extend the holding in
Penix and thus concluded that Davis was eligible to be resentenced to death. See Davis II, 528
N.E.2d at 936.
        On remand, the same three-judge panel that originally convicted and sentenced Davis again
imposed the death sentence upon the petitioner. Relying solely upon the record from the first
sentencing hearing, the panel found that the only remaining, applicable aggravating factor – that
Davis had been previously convicted of second-degree murder – outweighed the mitigating factors
present beyond a reasonable doubt. The Ohio Court of Appeals affirmed this sentence as well, see
State v. Davis, No. CA89-09-123, 1990 WL 165137 (Ohio Ct. App. Oct. 29, 1990) (Davis III), as
did the Ohio Supreme Court. See State v. Davis, 584 N.E.2d 1192 (Ohio 1992) (Davis IV).
       In 1993, Davis filed a petition for post-conviction relief in the state trial court and was
granted an evidentiary hearing on a single issue – an alleged judicial conflict of interest. Relief was
ultimately denied, however, by the Butler County Court of Common Pleas, the Ohio Court of
Appeals affirmed the decision, see State v. Davis, No. CA95-07-124, 1996 WL 551432 (Ohio Ct.
App. Sept. 30, 1996), and the Ohio Supreme Court denied further review. See State v. Davis, 674
N.E.2d 372 (Ohio 1997). Similarly, Davis’s attempts to obtain relief pursuant to an application to
reopen his direct appeal in the Ohio Court of Appeals, under Ohio Appellate Rule 26(B), were
unsuccessful.
        Meanwhile, in April 1997, Davis filed this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, alleging 28 grounds for relief. In December 1997, the district court concluded
that ten of Davis’s claims had been procedurally defaulted. The district court subsequently granted
Davis’s motion to amend his petition by adding 14 issues but later concluded that the additional
issues were also procedurally barred. Ultimately, the district court also held that the remaining 18
issues were either defaulted or without merit, denied habeas relief, and dismissed Davis’s § 2254
petition. The court did grant a certificate of appealability on 18 issues, and, at the petitioner’s
request, we certified one additional question.
        On appeal, Davis has now abandoned several of those certified questions. Most of the
remaining issues present challenges to the process of the petitioner’s resentencing, including his
contentions that he should have been allowed to withdraw his jury waiver prior to resentencing
because it had been involuntarily entered at the time of his original trial, that it was error to deny his
requests both for the appointment of additional experts and to introduce new mitigation evidence,
that the three-judge panel should not have separated during deliberations, and that the Ohio Court
No. 02-3227           Davis v. Coyle                                                             Page 4


of Appeals did not review adequately on direct appeal either his original sentence or the reimposed
sentence. Davis also challenges the district court’s determination that several of the issues in his
habeas petition were procedurally defaulted either because they were not raised on direct appeal in
the state courts or because they were raised in an untimely motion to reopen his appeal in state court.
                                            II. ANALYSIS
A. Standard of Review
        We review the legal basis for a district court’s dismissal of a § 2254 petition de novo and the
court’s factual findings underlying its analysis for clear error. See Hill v. Hofbauer, 337 F.3d 706,
710 (6th Cir. 2003). Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, 110 Stat. 1214 (1996) (AEDPA), the district court may not grant a habeas petition with
respect to any claim that was adjudicated on the merits in the state courts unless that adjudication
resulted in a decision that (1) was contrary to, or involved an unreasonable application of, clearly
established federal law; or (2) was based on an unreasonable determination of the facts in light of
the evidence presented to the state courts. See 28 U.S.C. § 2254(d). Under the “contrary to” clause,
a federal court may grant the writ if the state court arrives at a conclusion opposite that reached by
the Supreme Court on a question of law or if the state court decides a case differently from the
Supreme Court on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362,
413 (2000); Hill, 337 F.3d at 711. Under the “unreasonable application” clause, a federal court may
grant the writ if the state court identifies the correct governing legal principle from the Supreme
Court’s decisions but unreasonably applies that principle to the facts of the petitioner’s case. See
Williams, 529 U.S. at 413; Hill, 337 F.3d at 711. An unreasonable application of federal law differs
from an incorrect application of federal law, and on federal habeas review the district court may not
issue the writ simply because the court concludes that the state court applied clearly established
federal law erroneously or incorrectly. See Williams, 529 U.S. at 410-12.
        Because the petitioner filed his habeas petition in April 1997, one year after the effective date
of AEDPA, most of the matters raised on appeal are subject to review under the standard set out
above. When that is not the case, we will note the appropriate standard in our discussion of the
issues.
B. The Sentencing Process
        The petitioner first raises a number of issues challenging the process by which the trial court
sentenced Davis to death. In order to place these issues in proper context, we recount, this time in
detail, many of the facts pertinent to the sentencing proceedings.
        The presentence report prepared by probation officer John Bohlen prior to Davis’s initial
sentencing in 1984 indicated that Davis had been released on parole from incarceration in an
unrelated case in 1980, after serving a ten-year sentence for the 1970 stabbing death of his wife,
Ernestine. The report further noted that Davis had entered prison with an eighth-grade education
but, while incarcerated, had earned not only the equivalent of a high school diploma through the
General Educational Development Testing Service (GED), but also had fulfilled the requirements
for an associate’s degree in business administration, received certificates in auto body repair and in
masonry, and completed job training as a dental technician. Furthermore, following his parole,
Davis completed an additional three years of course work toward a bachelor’s degree at Urbana
College.
       At the first sentencing hearing, Davis presented testimony from two family members – his
mother, Alister Tipton, and his step-father, Charles Tipton. The parents had married when Davis
was a young teenager. According to Alister Tipton, Davis was the second oldest of her nine children
and was a “good boy” and a “normal child.” She further testified that during Davis’s ten years in
No. 02-3227           Davis v. Coyle                                                           Page 5


prison following his earlier conviction, the family visited him regularly – at least once a month – and
that Davis “was always in good spirits and . . . always talked about his work, how he was achieving
in his work and in his school.”
        Dr. Roger H. Fisher, a clinical psychologist who had interviewed Davis in May 1984,
detailed Davis’s “successful vocational history,” noting that Davis was “quite a hard working man,
who is very dedicated to doing a good job for people who employ him and allow him to work for
them.” Fisher reasserted his findings, based on an earlier interview with Davis at the London
Correctional Institution, that Davis was an “active-detached individual with schizoid trends” and
could be classified as having a compulsive personality disorder. On cross-examination, however,
Fisher stated that, based on his interview and examination of Davis, it was his opinion that Davis
was “free of any mental disease or defect which would have impaired his capacity to appreciate the
criminality of any conduct in which he engaged or to have conformed his conduct to the requirement
of the law” at the time he was accused of murdering the victim in this case, Suzette Butler. Fisher
further testified that Davis maintained his innocence at all times during their interview and relayed
his theory that a drug dealer named Silky Carr was responsible for the death of Butler. Noting that
Davis had been charged with two assaults on his wife, the latter one resulting in her death, as well
as the death of Suzette Butler in this case, Fisher “assume[d] that the man [Davis] has difficulty
relating to women in solving problems he has with them in a nonviolent way . . . and that’s a
psychological problem.” He concluded that Davis could be suffering from an “explosive psychiatric
disorder,” which is “characteristic of persons who solve problems by becoming very overwrought
and violent with little or no provocation and then settle back down and who are able to cope with
things in a nonviolent way, but who seem to go over the deep end very quickly and very violently.”
        The state introduced evidence concerning Davis’s involvement in the 1969 shooting and
1970 stabbing of Ernestine Davis, which provided the factual basis for the aggravating factor
specified in Davis’s capital indictment under Ohio Rev. Code § 2929.04(A)(5). Following the
presentation of this evidence and arguments by counsel, the three-judge panel, constituted pursuant
to the provisions of Ohio Rev. Code § 2929.022(A), sentenced Davis to death by electrocution,
having unanimously found that any mitigating factors were outweighed, beyond a reasonable doubt,
by the aggravating circumstances of the crime. As required by § 2929.03(F) of the Ohio Revised
Code, the panel listed the specific mitigating factors it found to be present in this matter:
       (1) The Defendant adjusted well to prison routine and during his stay in prison,
       obtained a high school GED and an associate degree in Business Administration, and
       studied for and worked as a dental technician.
       (2) There has always been a good family relationship between the Defendant and all
       members of his family, including his step father.
       (3) Since his release on parole, he has maintained at least partial employment.
       (4) As testified by the psychologist, Defendant has a compulsory personality
       disorder or explosive disorder which may have contributed to the violence in this
       case.
The court further noted that the following aggravated circumstances had been proved beyond a
reasonable doubt:
       (1) The manner by which the Defendant purchased the gun, used to kill the victim
       in this case.
       (2) The manner by which the Defendant purchased the ammunition for the gun.
No. 02-3227               Davis v. Coyle                                                                        Page 6


         (3) The shooting of the victim, the firing at close range and finally placing the gun
         almost against her skull and discharging the weapon.
         (4) The prior purposeful killing of his wife in 1970 by multiple stab wounds.
         (5) Committing the present offense while on parole for the murder of his wife.
         In summary, the trial court observed:
         The killing of the victim in this case was planned, calculated and designed by the
         Defendant and carried out in an execution fashion. Further, he had previously been
         convicted of second degree Murder for the purposeful killing of his wife. These
         make it impossible for this panel to arrive at any other conclusion than that the
         aggravated circumstances, proven beyond a reasonable doubt, outweigh the
         mitigating factors.
        Davis argued on direct appeal that the trial court had improperly considered non-statutory
aggravating factors in making its sentencing determination. Given that only the fourth of the five
factors listed by the trial court corresponded to an aggravating factor enumerated in § 2929.04 of
the Ohio Revised Code, it is not surprising that the Ohio Court of Appeals agreed that the
consideration of non-statutory aggravating factors was improper. See Davis I, 1986 WL 5989, at
**11. Nevertheless, the appeals court held that reversal of Davis’s death sentence was not
necessary. The court reasoned that by finding Davis guilty of a statutory aggravating circumstance,
the trial court had rendered him eligible for the death penalty and that consideration of the non-
statutory aggravating factors did not entail the introduction of otherwise inadmissible evidence. See
id. at **12.1
        The Ohio Supreme Court reversed. The court concluded that although Ohio Rev. Code
§ 2929.04(B) requires the trial court to consider the nature and circumstances of the offense, such
a directive cannot substitute for a statutory mandate that the sentencer2 weigh only enumerated,
proven, aggravating circumstances against particular mitigating factors. See Davis II, 528 N.E.2d
at 934-35. Furthermore, the court found that it “c[ould not] accept independent review [by the court
of appeals] as a cure in this particular action because [it] cannot know if the result of the weighing
process by the three-judge panel would have been different had the impermissible aggravating
circumstances not been present.” Id. at 936. Therefore, the court remanded the case to the trial
court “for a new sentencing trial at which the [improper factors] shall not be considered as
aggravating circumstances in the weighing process.” Id. (emphasis added).
        Despite what appeared to be a clear mandate from the state supreme court, the reconstituted
three-judge panel declined to interpret the ruling to require a full sentencing trial, or even an
evidentiary hearing. Instead, the trial court found it sufficient merely to reconsider the record from


         1
           The statutory provision that mandates appellate review of every death sentence also empowers the Court of
Appeals independently to weigh the evidence in support of the sentence. Ohio Rev. Code § 2929.05(A). Pursuant to
this authority, the court concluded that the presence of the statutory aggravating circumstance in the case outweighed
the mitigating factors, beyond a reasonable doubt, thus justifying Davis’s death sentence. See Davis I, 1986 WL 5989,
at **12.
         2
           At the time the Ohio Supreme Court vacated the original sentencing order, decisional law was not settled as
to whether a reviewing court must remand a case for resentencing upon its determination that the trial court considered
an improper aggravating factor. The Ohio Supreme Court nevertheless specifically held that the independent review
conducted by the intermediate appellate court was not sufficient to bring the sentence within the Ohio General
Assembly’s directive that a sentencing court examine specific factors that argue in favor of or against the imposition of
the death penalty. See Davis II, 528 N.E.2d at 936 (citing Proffitt v. Florida, 428 U.S. 242, 258 (1976)).
No. 02-3227            Davis v. Coyle                                                               Page 7


the earlier proceeding, supplemented by argument from both Davis and the state. Indeed, at a non-
evidentiary hearing held prior to Davis’s resentencing, one of the trial judges on the panel justified
the denial of Davis’s motions to withdraw his jury waiver and to introduce new evidence by
observing that the panel “got the impression from the Supreme Court of Ohio that they were simply
telling us to again reflect upon the trial as it took place and the evidence as we received it to
determine whether those aggravating circumstances proved beyond a reasonable doubt outweighed
anything in mitigation thereof as it existed then.” (Emphasis added.)
       Nevertheless, in response to Davis’s motion to present additional evidence concerning his
post-sentence prison behavior and psychological profile, the trial court gave the petitioner the
opportunity to enter on the record summaries of the testimony that would have been offered by four
witnesses Davis would have called at the resentencing hearing, had he been permitted to introduce
new evidence. According to this proffer, Sergeant Gordy Pullman, Captain Oscar McGraw, and
social worker Herb Wendler would have testified concerning Davis’s adaptation to and good
behavior on death row. Davis would also have called Dr. Fisher, who testified at the first sentencing
hearing, to provide a “psychological update.”
         Taking into account only the record of the trial and first sentencing proceeding, the judges,
not surprisingly, again imposed a death sentence upon Davis. The sentencing order issued by the
court pursuant to Ohio Rev. Code § 2929.03(F) reiterated the four mitigating factors set out in the
first sentencing opinion. The court then concluded, “As we are required by Section 2929.04(B),
Ohio Revised Code, to consider the nature and circumstances of the offense, the history, character
and background of the offender, and all of the factors in mitigation of the sentence of death
presented herein, we find the aggravating circumstance, the Defendant’s previous conviction of the
prior purposeful killing of his wife in 1970, outweighs the mitigating circumstances beyond a
reasonable doubt.”
         On appeal from the new sentencing order, the Ohio Court of Appeals ratified the action of
the trial court, observing that “[i]t is basic law that a reversal and remand to the trial court for further
proceedings has the effect of reinstating the cause in the trial court in status quo ante.” Davis III,
1990 WL 165137, at **2. Because the error in Davis’s original sentence “occurred at the
deliberative state of the proceedings, after the evidence had been submitted to the court,” the
appellate court held that, upon remand, “it was not necessary for the panel to consider additional
evidence.” Id.
         Although it, too, affirmed Davis’s death sentence, the Ohio Supreme Court avoided explicit
endorsement of this interpretation of its prior remand order, ruling instead that cases such as Skipper
v. South Carolina, 476 U.S. 1 (1986), were factually distinguishable and, therefore, did not require
that the petitioner be given the opportunity to present new evidence at the resentencing hearing. See
Davis IV, 584 N.E.2d at 1194-95. Thus, the court held, because Davis had not been denied the
opportunity to present all relevant mitigating evidence at his first sentencing trial, and because the
trial court on remand again considered all the same evidence, “[Davis] was not denied the type of
individualized consideration of relevant mitigating factors required in capital cases.” Id. at 1195
(distinguishing Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, 455 U.S. 104 (1982);
and Hitchcock v. Dugger, 481 U.S. 393 (1987)). One justice dissented, concluding that in
remanding the case for “a new sentencing trial,” the Ohio Supreme Court had “intended the trial
court to sentence the appellant after a full hearing, including the reintroduction of mitigating
evidence from the first sentencing as well as any post-trial mitigating evidence.” Id. at 1198-99
(Wright, J., dissenting).
No. 02-3227           Davis v. Coyle                                                           Page 8


1. Introduction of Additional Evidence
        Davis now submits that the decision of the three-judge panel to exclude testimony
concerning his exemplary behavior on death row in the time between the two sentencing hearings
violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments, and that the state
courts’ decisions affirming the panel’s ruling were contrary to the those of the Supreme Court of the
United States in Lockett, Eddings, and Skipper. Based upon a careful examination of these opinions,
we agree.
        In Lockett, the Supreme Court considered the constitutionality of a former provision in the
Ohio death penalty statute that did not permit a sentencing judge to consider, as mitigating evidence,
factors such as the defendant’s character, prior record, and age. See 438 U.S. at 597. The Court
ruled in Lockett that “the Eighth and Fourteenth Amendments require that the sentencer, in all but
the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect
of a defendant’s character or record and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death.” Id. at 604.
         The Court extended this decision in Eddings, in which it held unconstitutional a capital
sentence imposed after the trial judge excluded evidence of the defendant’s family history. “By
holding that the sentencer in capital cases must be permitted to consider any relevant mitigating
factor, the rule in Lockett recognizes that a consistency produced by ignoring individual differences
is a false consistency.” Eddings, 455 U.S. at 112. Thus, “[j]ust as the State may not by statute
preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to
consider, as a matter of law, any relevant mitigating evidence.” Id. at 113-14 (emphasis in original).
        Of course, the Court recognized that its opinions should not be taken as “limit[ing] the
traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant’s
character, prior record, or circumstances of his offense.” Lockett, 438 U.S. at 604 n.12. But the
Court has also made clear that evidence of the defendant’s conduct while incarcerated may indeed
be relevant to the question of his sentence. In Skipper, for example, the trial court had excluded as
irrelevant evidence of the defendant’s good behavior during the period of his incarceration between
arrest and trial. The Supreme Court reversed Skipper’s death sentence, holding that such evidence
was relevant to refute the state’s allegations of future dangerousness, and noting that “any
sentencing authority must predict a convicted person’s probable future conduct when it engages in
the process of determining what punishment to impose.” Skipper, 476 U.S. at 5 (quoting Jurek v.
Texas, 428 U.S. 262, 275 (1976)). Because, in the capital context, a sentencing authority may
consider a defendant’s past conduct as indicative of his probable future behavior, “evidence that the
defendant would not pose a danger if spared (but incarcerated) must be considered potentially
mitigating” and, under Eddings, may not be excluded from the sentencer’s consideration. Id.
        Hence, the core of the analysis in Skipper reflects the Court’s understanding that the right
of a defendant to present evidence of good behavior in prison is particularly relevant when a
prediction of future dangerousness figures centrally in a prosecutor’s plea for imposition of the death
penalty. In Skipper, the right to produce such evidence was triggered specifically “by the
prosecutor’s closing argument, which urged the jury to return a sentence of death in part because
petitioner could not be trusted to behave if he were simply returned to prison.” Id. at 5 n.1. Thus,
“it is not only the rule of Lockett and Eddings that requires that the defendant be afforded an
opportunity to introduce evidence [of good behavior in prison]; it is also the elemental due process
requirement that a defendant not be sentenced to death ‘on the basis of information which he had
no opportunity to deny or explain.’” Id. (quoting Gardner v. Florida, 430 U.S. 349, 362 (1977)).
       Despite these holdings of the Supreme Court, the trial court in this case refused to allow
Davis to present witnesses who would have testified as to his adaptation to death row, even over the
No. 02-3227                Davis v. Coyle                                                                           Page 9


state prosecutor’s suggestion that such evidence should be considered admissible.3 The state
intermediate appellate court concluded, however, that the trial court “committed no Lockett error,”
because “the appellant was permitted to introduce ample evidence in mitigation at the original
sentencing hearing, including evidence of his good behavior in prison.” Davis III, 1990 WL 165137,
at **2 (emphasis added). The Ohio Supreme Court affirmed, interpreting Skipper to forbid the
exclusion only of a defendant’s good prison record between his arrest and trial, and holding that
Skipper has no applicability to post-trial prison behavior. See Davis IV, 584 N.E.2d at 1195. The
court observed:
         In the case at bar, no relevant mitigating evidence was excluded from consideration
         by the panel during the mitigation phase of appellant’s 1984 trial. All mitigating
         evidence which was available at that time was duly received and considered by the
         panel including evidence concerning appellant’s ability to adjust to prison life. That
         same relevant evidence was again received and considered by the panel in 1989 for
         purposes of resentencing appellant. The evidence excluded from consideration by
         the panel at appellant’s resentencing hearing concerned certain post-trial matters.
         Under these circumstances, we do not believe that Skipper or, for that matter,
         Lockett, Eddings, or Hitchcock requires that appellant’s death sentence be vacated.
Id. (internal citations omitted). In dissent, one justice argued, however, that the directives of Lockett
and its progeny should be considered “just as important in resentencing as they are in the original
sentencing,” and noted that they “are consistent with the directive in R.C. 2929.04(c) that a
defendant ‘be given great latitude’ in presenting evidence of mitigating factors.” Id. at 1199
(Wright, J., dissenting).
        We conclude that the decision of the state courts to disallow the proffered evidence was
“contrary to” United States Supreme Court decisions on this issue and, therefore, that it runs afoul
of Williams. See 529 U.S. at 413. Although neither side was permitted to introduce additional
evidence at Davis’s resentencing, the state used this opportunity to argue that Davis’s status as a
repeat offender rendered him too dangerous for anything other than a death sentence:
         To outweigh means to be more important than. And when you come right down to
         it, the issue in this case is the answer to this question. Is anything you heard in this
         case . . . in the defendant’s mitigation evidence, is there anything more important in
         this case than the fact that Von Clark Davis is a repeat offender? I submit it’s the
         most important thing in this defendant’s history, character or background . . . that
         your Honors can consider . . . . The aggravating circumstances in this case, repeat
         killing, recognizes a special danger demonstrated by an individual who purposely
         and repeatedly kills another, purposely and repeatedly disregards the safety, personal
         integrity and human worth of others.
Then, addressing Davis’s exemplary prison record, the prosecution continued:
         How much weight can we assign that positive prison record? . . . Consider this, the
         same people who in 1981 looked at this evidence before this positive record, the
         parole board, made a prediction in 1981 that Von Clark Davis was, and I quote the
         record, “a minimal risk to persons and property.” How wrong they were in December


         3
           The prosecution did not object to the presentation of these witnesses. At the motions hearing held July 31,
1989, the prosecutor discussed the holding of Skipper and then stated, “Looking at these cases . . . it’s my considered
judgment . . . that perhaps the ruling of this court should be in partial agreement with the defense, that they should be
allowed to present evidence . . . limit[ed] to evidence that was not available at the time of the first hearing, that is, the
evidence such as good behavior.”
No. 02-3227           Davis v. Coyle                                                         Page 10


       of 1983 in the situation of Suzette Butler. And coupled with [the fact that] the
       defendant has an explosive personality disorder, it’s hard to say that this defendant
       is not too dangerous, that we can predict that he’s not too dangerous. (Emphasis
       added.)
        In rebuttal, Davis was then forced to rely solely upon the evidence presented at his first
sentencing hearing, consisting of testimony from Bohlen, the probation officer who had prepared
the presentence report based on records compiled during Davis’s previous stay at the London
Correctional Institution. Those records indicated that Davis’s functioning in the prison was “very
good” and that he had generally adapted well. Davis was prevented, however, from presenting the
testimony of three employees of the Department of Corrections who could have offered relevant
information about Davis’s more recent behavior and adjustment to prison life since his incarceration
after his trial in 1984.
        Such testimony would have established that Davis was classified as an “A” prisoner,
indicating that he had no discipline or conduct problems; that he was the clerk on death row for the
unit manager and helped conduct tours of death row; and that he had created no problems for other
inmates or for security personnel and had no conduct write-ups. Davis worked directly for Oscar
McGraw, the unit manager for death row, who complimented Davis’s positive attitude and pleasant
personality. Herb Wendler, Davis’s case manager, observed that Davis was cooperative and
courteous, that he had been given much more freedom than other inmates on death row, and that he
had been placed in various positions of trust within the unit.
        Although there could conceivably be some question about the relevance of such evidence
in the abstract, the record in this case establishes without doubt that it was highly relevant to the
single aggravating factor relied upon by the state – that future dangerousness should keep Davis on
death row. As the Supreme Court observed in Eddings, in such a situation “[t]he sentencer[s] . . .
may determine the weight to be given [the] relevant mitigating evidence,” but “may not give it no
weight by excluding such evidence from their consideration.” Eddings, 455 U.S. at 114-15. In light
of the clear constitutional mandate of the Supreme Court at the time of Davis’s resentencing, we
have no choice but to conclude that the Ohio Supreme Court’s decision to exclude the proffered
testimony, based on the court’s belief that the facts of Davis’s case could be distinguished from
Skipper’s solely on the basis of timing, was both an unreasonable application of the decision in
Skipper and contrary to the holding in that opinion and its antecedent cases.
        We are further persuaded of the correctness of our conclusion based on its ratification by the
United States Supreme Court’s recent opinion in Ayers v. Belmontes, 127 S.Ct. 469 (2006). In that
case, the Court unmistakably recognized yet again the importance of permitting capital defendants
to put forth evidence of the likelihood of future good conduct at sentencing. The Ayers majority
stated:
       [J]ust as precrime background and character and postcrime rehabilitation may
       “extenuat[e] the gravity of the crime,” so may some likelihood of future good
       conduct count as a circumstance tending to make a defendant less deserving of the
       death penalty. Cf. Skipper, 476 U.S., at 4-5 (explaining that while inferences
       regarding future conduct do not “relate specifically to [a defendant’s] culpability for
       the crime he committed,” those inferences are “‘mitigating’ in the sense that they
       might serve ‘as a basis for a sentence less than death.’”).
Id. at 475 (citations omitted).
       Moreover, we are not alone among our sister circuits in recognizing that the holding in
Skipper that a defendant be “permitted to present any and all relevant mitigating evidence that is
No. 02-3227             Davis v. Coyle                                                               Page 11


available,” Skipper, 476 U.S. at 8, requires that, at resentencing, a trial court must consider any new
evidence that the defendant has developed since the initial sentencing hearing. See, e.g., Robinson
v. Moore, 300 F.3d 1320, 1345-48 (11th Cir. 2002) (counsel is obliged to present newly available
evidence at resentencing, although failure to do so in that case was not prejudicial); Smith v. Stewart,
189 F.3d 1004, 1008-14 (9th Cir. 1999) (failure to investigate and present additional evidence at
resentencing constitutes ineffective assistance of counsel); Spaziano v. Singletary, 36 F.3d 1028,
1032-35 (11th Cir. 1994) (Lockett requires trial court to consider any new evidence that the parties
may present at a resentencing hearing); Alderman v. Zant, 22 F.3d 1541, 1556-57 (11th Cir. 1994)
(at resentencing hearing, trial court must consider reliable evidence of relevant developments
occurring after defendant’s initial death sentence). Most significantly, in a case with facts virtually
indistinguishable from those in Davis’s case, the Ninth Circuit held that Lockett, Eddings, and
Skipper dictate that evidence of a defendant’s good behavior and peaceful adjustment while in prison
following imposition of the death sentence is indeed mitigating evidence that should be considered
at a resentencing hearing. See Creech v. Arave, 947 F.2d 873, 881-82 (9th Cir. 1991).
        There remains for our resolution the question of a remedy for the rejection of the new
evidence that the petitioner sought to introduce before the three-judge panel. The respondent cites
precedent to support the proposition that if a sentencer considers improper aggravating
circumstances, the state appellate court may reweigh the remaining aggravating circumstances
against the mitigating circumstances or may determine that the error was harmless. See Parker v.
Dugger, 498 U.S. 308, 319 (1991); Clemons v. Mississippi, 494 U.S. 738, 745-50 (1990).
Presumably, the warden, by citing these cases, contends that any constitutional error committed in
this matter may be rectified simply by a state court reconsideration of Davis’s suitability for
execution or for lifetime incarceration. But, reweighing in this case is not possible because the
improperly-excluded evidence was never put into the record. Defense counsel’s proffer concerning
the proposed witnesses’ testimony merely summarized his interviews with these witnesses; the
actual substance of the witnesses’ testimony was not put before any court and, therefore, no factual
basis for reweighing exists. For this reason, the Supreme Court has decided that, when a trial court
improperly excludes mitigating evidence or limits the fact-finder’s consideration of such evidence,
the case must be remanded for a new sentencing hearing. See Skipper, 476 U.S. at 8.
        The Skipper error in this case is both indisputable and dispositive. Because we must remand
the case for yet another sentencing hearing, we need not address in detail each of the remaining
allegations of constitutional error raised before this court by Davis. We will, however, discuss those
issues insofar as they should also have affected the outcome in the state litigation or may arise again
on remand to the state court.
2. Validity of the Appellate Review
         The petitioner contends that in affirming both the three-judge panel’s imposition and its
reimposition of the death penalty, the Ohio appellate courts ran afoul of the United States Supreme
Court’s ruling in Hicks v. Oklahoma, 447 U.S. 343, 346 (1980), that a defendant’s right to due
process is violated when state courts “arbitrarily disregard” provisions of state criminal statutes.
Specifically, Davis argues that the then-applicable provisions of Ohio Rev. Code § 2929.06 forbade
a trial court from reimposing the death penalty upon resentencing after concluding4 that a non-
statutory aggravating circumstance has been improperly considered by the sentencer.


       4
           Pursuant to the version of Ohio Rev. Code § 2929.06 in effect at the time of Davis’s resentencing:
                 If the sentence of death that is imposed upon any offender is vacated upon appeal
                 because the court of appeals or the supreme court, in cases in which the supreme
                 court reviews the sentence upon appeal, could not affirm the sentence of death
                 under the standards imposed by section 2929.05 of the Revised Code, is vacated
No. 02-3227           Davis v. Coyle                                                                 Page 12


          We note that the petitioner’s Hicks claim was not raised in the district court, was not
included in the certificate of appealability and, therefore, is not properly before us. In anticipation
of a similar argument being raised on remand, however, we note that the state courts of Ohio have
construed the state statute at issue to apply only when a jury, not a three-judge panel, recommends
a sentence of death. See Davis II, 528 N.E.2d at 936. Such an interpretation does not “arbitrarily
disregard” state criminal statutes; indeed, that conclusion flows from the determination of the Ohio
Supreme Court in Penix that, pursuant to Ohio statutory mandates, “when an accused is tried by
jury, . . . a death sentence may be imposed by the trial judge only upon recommendation of the same
jury that tried the guilt phase of the proceedings. . . .” 513 N.E.2d at 748 (emphasis added).
Because Davis was tried initially by a three-judge panel, not by a jury, the restrictive resentencing
provisions of Ohio Rev. Code § 2929.06 are not applicable in this matter. It thus follows that the
sentencing process in this case did not violate due process under Hicks, that the sentencing court was
not precluded from re-imposing the death penalty, and that there is no constitutional impediment to
consideration of the death penalty upon remand for resentencing.
3. Withdrawal of the Jury Waiver
        Following remand from the Ohio Supreme Court for a new sentencing hearing, Davis filed
a motion to withdraw his waiver of the right to have his sentence determined by a jury, rather than
by the three-judge panel that originally heard his case and imposed the death sentence, arguing that
the original waiver had not been voluntarily, knowingly, and intelligently entered. The trial court
denied the motion and, as noted above, again sentenced Davis to be executed.
        Challenging the failure to permit withdrawal of his waiver of the right to be tried by a jury,
Davis first contends that the waiver was not voluntary because the trial court’s denial of his motion
to sever the charges in the indictment forced him to seek a non-jury trial. Of course, this argument
can succeed only to the extent that the court’s decision to deny severance was in error and also
constituted a violation of due process. Davis also contends that his jury trial waiver was not
“knowing and intelligent” because, at the time the waiver was executed, he did not know and could
not anticipate that the Ohio Supreme Court would subsequently hold that a capital defendant whose
sentence was set aside following a jury verdict was ineligible for reimposition of the death penalty
on remand for resentencing, see Penix, 513 N.E.2d at 745, but that Penix would not control
situations involving sentencing and resentencing by three-judge panels. See Davis II, 528 N.E.2d
at 936. The petitioner claims that this drastic difference in potential penalties upon resentencing
violated his constitutional right to equal protection of the law.
a. The Motion to Sever
        The indictment against Davis contained two counts: aggravated murder, in violation of Ohio
Rev. Code § 2903.01(A); and possession of a weapon while under a disability, in violation of Ohio
Rev. Code § 2923.13(A)(2). Davis’s prior conviction for the stabbing and second-degree murder
of his first wife was specified in Count 1 to support an aggravating circumstance defined in
§ 2929.04(A)(5), which was a necessary element to make the alleged murder of Suzette Butler a
capital offense. Another prior conviction, this one for shooting at his first wife with a firearm with


               upon appeal for the sole reason that the statutory procedure for imposing the
               sentence of death that is set forth in sections 2929.03 and 2929.04 of the Revised
               Code is unconstitutional, or is vacated pursuant to division (C) of section 2929.05
               of the Revised Code, the trial court that sentenced the offender shall conduct a
               hearing to resentence the offender. At the resentencing hearing, the court shall
               sentence the offender to life imprisonment with parole eligibility after serving
               twenty full years of imprisonment or to life imprisonment with parole eligibility
               after serving thirty full years of imprisonment.
No. 02-3227               Davis v. Coyle                                                                     Page 13


the intent to murder her, was likewise specified in the indictment, but only in support of the weapons
charge in Count 2.
         Prior to trial, Davis filed a motion to sever these two counts, alleging that he would be
prejudiced by joinder of the offenses. Specifically, Davis argued that if the two counts were tried
together, the jury would hear evidence concerning his prior homicide conviction, which would be
admissible solely to prove under Count 2 that he could not legally possess a firearm, thereby creating
a risk that the jury would improperly   consider that prior act in deciding his guilt on the aggravated
murder charge in Count 1.5 Davis also argued that the provisions of Ohio Rev. Code § 2929.022(A)
supported his position that the Ohio legislature intended to provide special protection for capital
defendants against the improper consideration of prior bad acts.
        When the trial court denied his motion for severance, Davis waived his right to a jury trial
and elected to proceed instead before a three-judge panel. On appeal, the Ohio Court of Appeals
found that the two counts had been properly joined in the indictment pursuant to Ohio Rule of
Criminal Procedure (8)(A), and that petitioner had not met his burden of affirmatively demonstrating
prejudice by the joinder. See Davis I, 1986 WL 5989, at **7-8. The appeals court also rejected the
petitioner’s argument that § 2929.022(A) permitted the defendant to bar all evidence concerning a
prior purposeful killing that would be admissible at trial for reasons other than to prove the
aggravating circumstance. See id. at *8. The Ohio Supreme Court affirmed, agreeing that the
offenses had been properly joined under Rule 8(A), which permits joinder of separate offenses only
where the offenses charged “are of the same or similar character, or are based on the same act or
transaction, or are based on two or more acts or transactions connected together or constituting parts
of a common scheme or plan, or are part of a course of criminal conduct.” The court found that
“[c]learly . . . the crimes charged in the indictment arose from the same act or transaction.” Davis
II, 528 N.E.2d at 928. The court also ruled that § 2929.022(A) did not trump Rule (8)(A) to mandate
severance. “[I]t is not the purpose of R.C. 2929.022(A) to provide a defendant with a blanket
statutory right to preclude, at the guilt phase, the introduction of all evidence pertaining to prior
purposeful killings which is otherwise admissible, i.e., the evidence necessary to prove the offense
of having a weapon while under a disability.” Id. at 929.
        In denying Davis’s motion for severance, the Ohio courts applied state law and, as a result,
we must accept as binding the state supreme court’s interpretation of the interaction between the
capital specification-election provision, Ohio Rev. Code § 2929.022(A), and the rules for joinder
and severance of criminal charges. In considering whether the denial of severance amounted to an
error warranting relief in a habeas proceeding, the issue before us is not whether the failure to sever
counts for separate trials was a violation of a state rule of procedure, but whether the failure to sever
denied the petitioner due process of law under the Fourteenth Amendment. See Corbett v.
Bordenkircher, 615 F.2d 722, 724 (6th Cir. 1980). In other words, in order to obtain federal habeas
relief on this claim involving state law, Davis must show that misjoinder of the counts “result[ed]
in prejudice so great as to deny a defendant his . . . right to a fair trial.” United States v. Lane, 474
U.S. 438, 446 n.8 (1986).
        Without question, a risk of undue prejudice exists whenever joinder of counts permits
introduction of evidence of other crimes that would otherwise be inadmissible. See, e.g., Bean v.
Calderon, 163 F.3d 1073, 1084 (9th Cir. 1998). By allowing joinder of offenses, the possibility
exists that a jury may use the evidence of one of the charged crimes to infer a general criminal
disposition by the defendant; the jury also may confuse or cumulate the evidence of the various

         5
            Because Ohio Rev. Code § 2929.022(A) permits a capital defendant charged with a prior conviction
specification under § 2929.04(A)(5) to have the trial judge determine the existence of the aggravating circumstance at
the sentencing hearing, rather than submit that issue to the jury, severance of the two counts would have allowed Davis
to keep evidence of the second-degree murder conviction from the jurors until the sentencing phase of the proceedings.
No. 02-3227               Davis v. Coyle                                                                       Page 14


crimes charges. See Lucero v. Kerby, 133 F.3d 1299, 1314 (10th Cir. 1998). The prejudice that
Davis must demonstrate, however, in order to justify a grant of a writ of habeas corpus is actual
prejudice, not merely the potential for prejudice. See Herring v. Meachum, 11 F.3d 374, 377-78 (2d
Cir. 1993).
        After examining settled case law, we conclude in this case that the fact that a jury had
learned of Davis’s prior felony conviction did not result in an unfair trial as a matter of law. For
example, in Spencer v. Texas, 385 U.S. 554 (1967) (reaffirmed by Marshall v. Lonberger, 459 U.S.
422 (1983)), the Supreme Court considered the constitutionality of a Texas recidivist statute under
which the jury trying the pending criminal charge was informed of a defendant’s prior convictions
during the guilt phase. The trial court instructed the jury that these prior convictions were to be
considered for sentencing purposes only, and could not be taken into account in determining guilt
on the pending charge. The Court recognized that evidence of a prior conviction might be admitted,
among other reasons, to prove an element of the indicted offense. See id. at 560. Nevertheless, in
such a situation, “the jury learns of prior crimes committed by the defendant, but the conceded
possibility of prejudice is believed to be outweighed by the validity of the State’s purpose in
permitting introduction of the evidence.” Id. at 561. The Court concluded that the prejudice suffered
by a defendant in such a case does not rise to the level of a violation of due process:
         To say the United States Constitution is infringed simply because this type of
         evidence may be prejudicial and limiting instructions inadequate to vitiate prejudicial
         effects, would make inroads into this entire complex code of state criminal
         evidentiary law, and would threaten other large areas of trial jurisprudence. . . . This
         type of prejudicial effect is acknowledged to inhere in criminal practice, but it is
         justified on the grounds that (1) the jury is expected to follow instructions in limiting
         this evidence to its proper function, and (2) the convenience of trying different
         crimes against the same person . . . in the same trial is a valid governmental interest.
Id. at 562. The Court noted that the defendant’s interests are also protected by the discretion of the
trial court to limit or forbid the admission of particularly prejudicial evidence. See id. Furthermore,
courts have observed that where documentary evidence is used, as it is in Ohio,6 to prove the prior
crime, such evidence is seldom, if ever, so inflammatory that the jury will be unable to follow
instructions to disregard any inclination to convict a defendant based upon conduct committed in
a past criminal episode. See Bruton v. United States, 391 U.S. 123, 135 (1968).
         Left to our own devices, we might well remain skeptical, despite the wealth of settled law,
about the degree to which Ohio’s joinder provisions undercut the protection afforded a capital
defendant by Ohio Revised Code § 2929.022(A), especially given the heightened concerns regarding
undue prejudice in a capital case. Nevertheless, a habeas corpus proceeding is not an appropriate
vehicle for this court to substitute its own judgment for that of the State of Ohio. “[A] state rule of
law does not run afoul of the Fourteenth Amendment because another method may seem to our
thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at bar.”
Spencer, 385 U.S. at 564 (internal quotation marks and citation omitted). Because the denial of
Davis’s motion for severance did not constitute a denial of the petitioner’s due process right to a fair
trial, that ruling cannot be said to have rendered his waiver of a jury trial involuntary.



         6
           Ohio Rev. Code § 2945.75(B) provides that, whenever the prosecution must prove the existence of a prior
conviction, it is sufficient to provide a certified copy of the entry of judgment for the prior conviction, accompanied by
evidence to identify the named defendant as the offender in the present case. See State v. Blonski, 707 N.E.2d 1168,
1172 (Ohio Ct. App. 1997); State v. Day, 651 N.E.2d 52, 54 (Ohio Ct. App. 1994). Although the state must introduce
evidence that the individual named in the proffered judgment entry is in fact the defendant then on trial, it must do so
in a manner that does not allow the jury to hear details of the prior conviction. See Blonski, 707 N.E.2d at 1172.
No. 02-3227                Davis v. Coyle                                                                         Page 15


b. The Penix–Davis Dichotomy
          On remand from the Ohio Supreme Court for resentencing, the petitioner also moved to
withdraw his jury waiver on the ground that it was not knowing and intelligent because he did not
anticipate the Ohio Supreme Court’s decision in Penix, which was decided while Davis’s case was
still on direct appeal. The court held in Penix that a capital defendant who is sentenced by a jury
in the first instance 7becomes ineligible for the death penalty following reversal of that sentence. See
513 N.E.2d at 748. Davis now argues in effect that he should have been allowed to withdraw his
jury waiver prior to resentencing because reimposition of the death sentence by the three-judge panel
was a violation of his right to equal protection of the laws, given that a defendant originally
sentenced to death by a jury would not have been eligible for imposition of the same sentence on
remand.
         In Davis IV, 584 N.E.2d at 1196, the Ohio Supreme Court addressed this claim as follows:
         In his fifth proposition of law, appellant challenges the constitutionality of our
         holding in Davis [II], supra, which permitted the three-judge panel to consider
         reimposing the death penalty on remand. Appellant argues that our holding in Davis
         [II] is unconstitutional since a defendant whose death sentence is vacated following
         a jury trial would not similarly be subject to the death penalty upon sentencing
         remand. See State v. Penix, . . . 513 N.E.2d 744 [(1987)]. In effect, appellant
         requests that we reconsider our holding in Davis [II] in which we distinguished
         Penix. However, we decline appellant’s invitation, at this time, to revisit our basic
         holding in Davis [II].
As an initial matter, we note that this ruling is not a decision on the merits and, therefore, that the
AEDPA standard of review set out in § 2254 does not apply to this claim. See Newton v. Million,
349 F.3d 873, 878 (6th Cir. 2003). When the state courts do not assess the merits of a petitioner’s
claims, the federal habeas court need not extend the deference otherwise due under AEDPA. See
id. Instead, the habeas court reviews de novo questions of law and mixed questions of law and fact.
See id.
       When a law seeks to regulate an individual’s fundamental rights or distinguishes between
individuals on the basis of certain suspect characteristics, the statute is subject to strict scrutiny
under the Equal Protection Clause. See Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 312
(1976). Davis clearly does not belong to a “suspect class” for equal protection purposes, however.
Federal courts have consistently held that prisoners do not constitute such a class, see Hadix v.
Johnson, 230 F.3d 840, 843 (6th Cir. 2000), nor do capital defendants. See Tigner v. Cockrell, 264
F.3d 521, 526 (5th Cir. 2001); Pitsonbarger v. Bramley, 141 F.3d. 728, 739 (7th Cir. 1998).
        Nor has Davis’s fundamental right to have his punishment determined by a jury yet been
implicated in this matter. In the United States Supreme Court’s opinion in Ring v. Arizona, 536 U.S.
584, 602 (2002), the Court did recognize that Sixth Amendment jurisprudence now requires that a
jury find, beyond   a reasonable doubt, any fact necessary to increase a defendant’s authorized
punishment.8 Ring, however, post-dates not only the petitioner’s sentencing and resentencing, but


         7
          The Ohio legislature subsequently amended Ohio Rev. Code § 2929.06 to provide for reimposition of the
death penalty in cases tried to a jury after the effective date of the amendment. See Ohio Rev. Code § 2929.06(B).
         8
           Obviously, Ring’s mandates would apply only in situations in which the criminal defendant did not exercise
the prerogative to waive the constitutional right to a jury trial. See, e.g., United States v. Ashe, 47 F.3d 770, 775-76 (6th
Cir. 1995) (“Any right, even a constitutional right, may be surrendered . . . if that waiver was made knowingly and
voluntarily.”).
No. 02-3227            Davis v. Coyle                                                               Page 16


also the denial of habeas relief by the district court. Consequently, the state courts cannot be faulted
for failing to analyze Davis’s motion to withdraw his jury waiver under a fundamental-rights-
analysis when the right in question had yet to be recognized by the Supreme Court in the context
raised by the petitioner.
        Furthermore, the decisions of the Ohio state courts in refusing to grant the petitioner’s
withdrawal motion cannot be successfully attacked as violating the rational basis prong of an equal
protection analysis. In order to succeed in such a challenge, Davis must demonstrate that there is
no conceivable basis sufficient to sustain the statute, “even if there is no indication that the
suggested rationale actually motivated the legislature in enacting it.” Innes v. Howell Corp., 76 F.3d
702, 708 (6th Cir. 1996). In denying Davis the habeas corpus relief he sought, the district judge
noted that a sound, rational basis did indeed exist in this case for the different treatment of
defendants resentenced after jury trials and those resentenced after trials before three-judge panels.
According to the district court, “[t]here are obvious difficulties presented in trying to reassemble the
original trial jury to participate in a resentencing hearing.” By contrast, “the three judges who
comprised the original panel in the petitioner’s case were still available to resentence the petitioner.”
Because such a distinction is arguably rational, we must conclude that Davis’s equal protection
challenge to the original denial of his motion to withdraw his jury waiver is without merit.
C. Procedure on Remand to State Court
         Nevertheless, we anticipate that Davis’s counsel will renew his motion to withdraw the jury
waiver upon remand to the state trial court for the new sentencing hearing necessitated by our
finding of Skipper error. We note that under Ohio Revised Code § 2945.05, a waiver of jury trial
“may be withdrawn by the defendant at any time before the commencement of trial.” Granted, the
resentencing hearing that we order today will not constitute a “trial” in the sense that the petitioner’s
guilt or innocence is again at issue. However, in this case, the proceeding can indeed be considered
the functional equivalent of “trial” because, unlike sentencing in a non-capital case, it will take the
form of an evidentiary proceeding on the question of whether Davis should receive the death penalty
or some form of a life sentence.
          Moreover, we think there is a legitimate question as to whether a criminal defendant should
be held to a jury waiver entered almost 25 years before his newly-mandated sentencing hearing.
In the Sixth Circuit, at least, we have recognized that a defendant’s jury waiver entered prior to the
first trial of his case does not bar his right to a jury trial on the same case after remand from a
reviewing court. See, e.g., United States v. Groth, 682 F.2d 578, 580 (6th Cir. 1982) (“waiver of a
jury trial does not bar a demand for a jury on retrial of the same case unless the original waiver
explicitly covers this contingency”); United States v. Lee, 539 F.2d 606, 608 (6th Cir. 1976) (“when
a reviewing court finds error in the conduct of a trial and reverses with directions for a new trial
. . . the general rule is that a litigant is not bound by his prior waiver of a jury trial . . . [u]nless the
language of a waiver unambiguously states that it will apply in all retrials should they be ordered”).
Accord Sinistaj v. Burt, 66 F.3d 804, 808 (6th Cir. 1995) (rule in Groth inapplicable when no event
such as reversal and remand for a new trial intervenes between the waiver and the attempted
withdrawal). Likewise, the Ohio courts have held, in reversing a conviction “on the basis that [the
defendant] was neither charged nor found guilty of an essential element of the offense,” that the
defendant’s “previous waiver of a jury trial is also inherently revoked by the reversal of the
conviction and the [amended] indictment.” State v. McGee, 715 N.E.2d 1175, 1178 (Ohio Ct. App.
1998). That conclusion was based on the fact that on remand, additional evidence would be
introduced from both the prosecution and the defense, as is likely to occur on remand of this case.
While not directly on point, because Davis is not facing a new indictment, the reasoning of the Ohio
court in McGee should certainly inform the sentencing court’s determination of the viability of
Davis’s jury waiver on remand.
No. 02-3227           Davis v. Coyle                                                          Page 17


                                        III. CONCLUSION
         Several other issues raised on appeal have been procedurally defaulted or have been rendered
moot by the necessity of the Skipper remand. These include the claim that the trial court erred in
denying the motion for additional expert witnesses at resentencing, a motion that can, of course, be
renewed at the new sentencing hearing if determined necessary by counsel. The claim of bias raised
against two of the three judges on the trial court panel is without merit, as the district court
concluded, but also unlikely to arise on remand given the probability that the same three-judge panel
cannot be reconstituted after such a lengthy period of time. The claim of error concerning the
separation of those three judges during deliberations is now moot, but also a matter of state law that
is not reviewable under 28 U.S.C. § 2254. Finally, the constitutional challenge to Ohio Rev. Code
§ 2929.03(D)(1) appears to have been procedurally defaulted and cannot be excused on the basis of
ineffective assistance of counsel, because the petitioner has not established prejudice resulting from
the trial court’s ruling under that section of the state capital sentencing statute.
       Based on the prejudicial Skipper error in denying the petitioner the right to present additional
evidence at his resentencing hearing, we REVERSE the judgment of the district court denying
habeas relief and REMAND the case for the issuance of a conditional writ under 28 U.S.C. § 2254.
No. 02-3227           Davis v. Coyle                                                          Page 18


                                     _____________________
                                        CONCURRENCE
                                     _____________________
       JULIA SMITH GIBBONS, Circuit Judge, concurring. I agree with the majority’s conclusion
that we must remand this case for the issuance of a conditional writ under 28 U.S.C. § 2254 but
disagree with the opinion’s basis for this decision under Lockett, Eddings, and Skipper.
        Applying the standard of review required by AEDPA, I am unable to conclude that the
decision of the Ohio Supreme Court was either “contrary to, or involved an unreasonable application
of, clearly established federal law, as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1). Lockett and Eddings hold that a sentencer must consider all relevant
mitigating evidence. See Lockett, 438 U.S. at 604; Eddings, 455 U.S. at 113-14. Skipper holds that
post-sentence prison behavior is relevant mitigating evidence. See Skipper, 476 U.S. at 5.
Therefore, the majority concludes that the three-judge panel must consider Davis’s post-sentence
prison behavior at resentencing. (Op. 9.) I agree with the majority that Davis’s post-sentence prison
behavior and psychological profile are relevant mitigating evidence that must have been admitted
in the original sentencing hearing, had the evidence existed at the time. See Skipper, 476 U.S. at 7.
However, the issue in this case is whether the presentation of evidence of mitigating and aggravating
factors must be reopened when a death sentence is reversed for a reason unrelated to the presentation
of evidence. None of the Supreme Court cases cited by the majority supports this premise. See
Ayers, 127 S. Ct. at 474-75 (holding that jury instruction did not preclude jury from considering
mitigating evidence at trial); Skipper, 476 U.S. at 3-5 (holding that court erred by excluding relevant
mitigating evidence from trial); Eddings, 455 U.S. at 113-14 (holding that court erred by excluding
relevant mitigating evidence from trial); Lockett, 438 U.S. at 606 (holding that statute
unconstitutionally excluded relevant mitigating evidence from trial). In each of these cases, the error
allegedly committed was the exclusion of evidence, and the only appropriate remedy was the
admission of new evidence.
        Furthermore, all but one of the cases cited by the majority from other circuits are factually
distinguishable. See Robinson, 300 F.3d at 1345-48 (holding that defendant was not prejudiced by
his counsel’s failure to introduce mitigating evidence at resentencing); Smith, 189 F.3d 1008-14
(holding that defendant’s counsel was ineffective for failing to introduce mitigating evidence at
resentencing); Spaziano, 36 F.3d at 1032-35 (noting that trial court was required to consider any
mitigating evidence actually presented at resentencing); Alderman, 22 F.3d at 1556-57 (holding that,
despite Lockett, court could exclude evidence at resentencing that lacked assurances of
trustworthiness). It is clear from these cases that when presentation of evidence has been reopened
at a resentencing hearing, all relevant mitigating evidence must be considered. However, none of
these cases stand for the proposition advanced by the majority that a trial court must reopen the
presentation of evidence. (Op. 11.) Creech is the only case cited by the majority that actually is on
point. In Creech, after the defendant’s sentence was vacated by the Idaho Supreme Court on the
ground that the trial judge failed to pronounce the sentence in the presence of the defendant as
required by Idaho law, the trial judge simply read the sentence to the defendant on remand. Creech,
947 F.3d at 881. On appeal of the defendant’s habeas petition, the Ninth Circuit held that the
presentation of evidence must be reopened for presentation of any and all mitigating evidence that
exists at the time of the hearing. Id. at 881-82. Although I agree with the majority that the facts of
Creech are “virtually indistinguishable,” the standard of review is not. Creech was decided before
AEDPA came into effect, and the court applied de novo review. Id. at 876.
       This court may not grant the writ unless the decision of the Ohio Supreme Court was either
“contrary to, or involved an unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). As the Supreme
No. 02-3227           Davis v. Coyle                                                            Page 19


Court cases are not factually analogous and Creech is not a Supreme Court decision, I cannot
conclude that the decision of the Ohio Supreme Court was unreasonable.
        I concur with the majority’s judgment that Davis must be resentenced, however, because
he was denied due process when his “death sentence was imposed, at least in part, on the basis of
information which he had no opportunity to deny or explain.” Gardner, 430 U.S. at 362. Although
the majority implies that this right somehow “triggers” the requirement of Lockett and Eddings that
a sentencer consider all mitigating evidence, (Op. 8), this due process requirement actually provided
an alternative, unanimous basis for the Supreme Court’s judgment in Skipper, see Skipper, 476 U.S.
at 5 n.1 (“[I]t is not only the rule of Lockett and Eddings . . . ; it is also [an] elemental due process
requirement . . . .”); id. at 9 (Powell, J., concurring) (“[The] result is not required by our decisions
in Lockett and Eddings . . . but because petitioner was not allowed to rebut evidence and argument
used against him.” (citing Gardner, 430 U.S. at 349)) (internal citations omitted). As the majority
correctly notes, just as in Skipper, Davis was denied the opportunity to introduce evidence rebutting
the prosecutor’s argument that the he was too dangerous for a sentence of life in prison. (Op. 9-10.)
Although Davis’s mere resentencing does not justify the reopening of evidence, when the prosecutor
used the resentencing to argue that the judges should discount Davis’s previous exemplary prison
record, he triggered Davis’s due process rights under Gardner to present rebuttal evidence.
       After concluding that the case must be resentenced, I would refrain from expressing any
opinion as to the other, now-moot issues raised by Davis. In particular, I would avoid suggesting
to the Ohio courts an approach to the jury waiver issue, as the majority opinion does after
concluding that there is no basis for federal relief on that issue.
        For the foregoing reasons, I concur in the judgment.
