                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0084n.06

                                         Case No. 16-4022

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                      FILED
                                                                                Feb 20, 2018
JAMES A. RUSSELL,                                     )
                                                                            DEBORAH S. HUNT, Clerk
                                                      )
       Petitioner-Appellant,                          )
                                                      )       ON APPEAL FROM THE UNITED
v.                                                    )       STATES DISTRICT COURT FOR
                                                      )       THE SOUTHERN DISTRICT OF
JASON BUNTING, Warden,                                )       OHIO
                                                      )
       Respondent-Appellee.                           )


       BEFORE: GUY, GIBBONS, and COOK, Circuit Judges.

       COOK, Circuit Judge. Philip Troutwine and Candace Hargrove arranged to have sex at

her apartment in September 2004.         But Hargrove changed her mind; instead, she and her

boyfriend James Russell decided they would rob Troutwine. After Troutwine arrived, Russell

demanded money from him at gunpoint. From another room, Hargrove heard a struggle and a

single gunshot—Russell had shot and killed Troutwine.             Russell and Hargrove rolled up

Troutwine’s body in a tent, carried it downstairs, and stashed it in the trunk of Troutwine’s car.

The two lived on the lam until they were finally arrested in California. Russell was indicted on

six counts, including aggravated robbery and felony murder.

       It took two trials, a pair of Batson hearings, and multiple appeals in the Ohio courts for

Russell’s convictions on all six counts to be made final. He then filed a federal habeas petition

that the district court dismissed in full. The district court granted a certificate of appealability to
Case No. 16-4022, Russell v. Bunting


consider one question, however, and this court expanded it to include a second: (1) whether the

state courts reasonably rejected Russell’s Batson claim, and (2) whether appellate counsel

provided ineffective assistance by failing to reassert Russell’s argument that his aggravated

robbery and felony murder convictions should be merged for sentencing purposes. For the

following reasons, we AFFIRM the district court’s rejection of the Batson claim and REVERSE

its decision that Russell procedurally defaulted his ineffective-assistance claim, which we

REMAND to the district court for initial consideration of the merits.

                                       I. BACKGROUND

A.     First Trial and First Appeal

       An Ohio jury found Russell guilty of felony murder, aggravated robbery, tampering with

evidence, grand theft, and gross abuse of a corpse; a common pleas court judge convicted him of

having weapons while under a disability. The court sentenced him to a prison term of 40 ½ years

to life—of which 10 years were for aggravated robbery and 15 years to life were for felony

murder, to be served consecutively. The Ohio Court of Appeals affirmed, State v. Russell, No.

21458, 2007 WL 93202, at *11 (Ohio Ct. App. Jan. 12, 2007), and the Ohio Supreme Court

denied leave to appeal, State v. Russell, 867 N.E.2d 845 (Ohio 2007) (table).

       For reasons not relevant here, the Ohio Court of Appeals later reopened Russell’s appeal,

reversed his convictions on the five counts tried to the jury, and remanded the case for a new

trial. State v. Russell, No. 21458, 2008 WL 501594, at *13 (Ohio Ct. App. Feb. 22, 2008). The

Ohio Supreme Court denied the State leave to appeal. State v. Russell, 891 N.E.2d 769 (Ohio

2008) (table).




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B.     Retrial and the Voir Dire Relevant to Russell’s Batson Challenge

       The retrial jury pool included three African-Americans. One was seated, another was

stricken for cause, and the third—Tawana Pasqual—was peremptorily challenged by the State.

See State v. Russell (Russell II), No. 24443, 2012 WL 368135, at *1 (Ohio Ct. App. Feb. 3,

2012). During voir dire, the prosecutor asked Pasqual about her employment:

       [PROSECUTOR]: And what type of courses did you take in college?
       [PASQUAL]: Managing and NC courses and (indiscernible) courses.
       [PROSECUTOR]: And do you have a particular occupation, ma’am?
       [PASQUAL]: I’m a licensing (indiscernible).
       [PROSECUTOR]: All right. And how long have you been doing that now?
       [PASQUAL]: I just got licensed last year, so I haven’t really been doing it quite
       yet. But I got licensed last year.

The prosecutor did not ask Pasqual additional questions about her work history, but queried

regarding her familial relationship with a law enforcement officer (Pasqual’s “ex uncle was an

officer”) and a prior physical attack on her brother.1

       Russell’s counsel also asked several questions of Pasqual:

       [DEFENSE COUNSEL]: I am maybe making an assumption here. I think you
       might be one of the younger jurors. And even if you aren’t, if everybody else
       feels one way but you feel strongly the other way, do you think you’d just give in
       to go with the other folks? Or do you think you’d stand up for your belief and
       explain why you felt a certain way?
       [PASQUAL]: Probably stand up for myself and explain why I feel that way.
       [DEFENSE COUNSEL]: All right.
       [PASQUAL]: I’m not really easily persuaded.
       [DEFENSE COUNSEL]: At the same time, you -- you’d be -- would you remain
       open to understanding their point of view?
       [PASQUAL]: Yeah. I’d remain open --
       [DEFENSE COUNSEL]: Okay.
       [PASQUAL]: -- to listening.


       1
           Later proceedings clarify that Pasqual was licensed as a massage therapist.


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Case No. 16-4022, Russell v. Bunting


       [DEFENSE COUNSEL]: And if they persuaded you, you’d be willing to change
       your mind?
       [PASQUAL]: Yes, if it’s credible.
       [DEFENSE COUNSEL]: Okay. Okay. You’d have to hear them out and
       consider it?
       [PASQUAL]: Yes.
       [DEFENSE COUNSEL]: You’d be willing to consider it? All right. Even if it’s
       5:30 and you want to get home, willing to consider it?
       [PASQUAL]: Yes.

The State eventually exercised a peremptory strike against Pasqual. Immediately thereafter, and

without any prompting, the judge expressed doubt that there could be a Batson challenge because

he discerned no “pattern” of excusing African-Americans given that Pasqual was the first one

excused by the State for reasons other than cause.

       After the new jury convicted Russell on all counts, the trial court imposed the same

prison sentence.

C.     Second Appeal

       Russell appealed once again, advancing several assignments of error. See State v. Russell

(Russell I), No. 23454, 2010 WL 3835645, at *1 (Ohio Ct. App. Oct. 1, 2010). He claimed that

the trial court improperly allowed the State to exercise a peremptory challenge to remove

Pasqual from the jury and incorrectly failed to merge the aggravated robbery and felony murder

convictions for sentencing purposes. See id. at *2, *7.

       The Ohio Court of Appeals held “that the trial court erred in its treatment of the Batson

issue” by failing to “determine whether Russell had established a prima facie violation.” Id. at

*3–4. Explaining that the prosecutor “gave no reasons below for striking Pasqual because the

trial court preempted the entire Batson issue,” the court sustained Russell’s assignment of error,

reversed his convictions, and remanded the matter for a Batson hearing. Id. at *4.



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       But the appellate court overruled Russell’s merger argument.            See id. at *7–12.

Considering the elements of felony murder and aggravated robbery in the abstract as required by

State v. Rance, 710 N.E.2d 699 (Ohio 1999), the court refused to merge the sentences because it

determined that the two crimes were not allied offenses of similar import, as one did not require

the commission of the other, Russell I, 2010 WL 3835645, at *9–10. The Ohio Supreme Court

denied Russell leave to appeal. State v. Russell, 939 N.E.2d 1265 (Ohio 2011) (table).

D.     First Batson Hearing

       At the Batson hearing, Russell’s counsel claimed that the peremptory challenge of

Pasqual raised “a prima facie case [of discrimination] that the prosecutor now has to address.”

Counsel noted that one of the African-American venire members was excused for cause, leaving

only two African-Americans—therefore, challenging Pasqual “effectively removed fifty percent

of the . . . available African-Americans on the panel.” The prosecutor did not dispute the

numbers, instead arguing that striking an African-American juror is not enough, standing alone,

to establish a prima facie case of racial discrimination.

       The trial court agreed with the prosecutor and found that Russell had not demonstrated a

prima facie indication of discrimination. Recognizing that appeals would likely follow, the court

offered the prosecutor an opportunity to present a race-neutral explanation for excusing Pasqual

but advised that it would not appraise the adequacy of the explanation. The prosecutor accepted

the court’s offer and expounded:

       In these types of cases, I prefer a juror who is older, more mature, seasoned, and
       has a stable work history, like employed or retired or maybe working and had
       been laid off. This particular juror had the appearance of being very young and
       did not have any work history. When asked, had got a job as a massage therapist
       the year before -- a massage license the year before. The trial was in April and
       May of the following year and had not worked.
       So, she was kind of on my radar screen as not fitting the type of juror I wanted.

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Case No. 16-4022, Russell v. Bunting


       However, it actual[ly] was the questioning of defense counsel, Ms. Haire, that led
       me actually to -- adding that to my prior thoughts which led me to the decision to
       ask for the preempt.
       First of all, Ms. Haire in her first question, confirmed also her view that this juror
       was very young.
       . . . . What concerned me was the colloquy between defense counsel and the juror
       that basically heightened the fact she was different from the other jurors as being
       younger. And then went into the questions of, what would happen if everyone
       else felt one way but you felt strong the other way, would you give in or stand up?
       And the juror answered, I would stand up and explain my feelings.
       What I term this type of questioning and always have, is it’s like grooming a hold-
       out. What you do is find a difference between a juror and everyone else, highlight
       it, and then say, would you stand firm? So, in my mind it’s like grooming a hold-
       out.
       But what even disturbed me more was following that, without any question
       whatsoever, the juror, as if to -- to make even stronger her comment about, “I’d
       probably stand up for myself,” was her comment, “I’m not really easily
       persuaded.”
       When that juror made that statement, “I am not easily persuaded,” filed with no
       question asked and on the heels of, “I would stand up if it became me versus the
       other members of the jurors (sic),” that concerned me.
       And those combination of reasons that we -- that I had mentioned, all together led
       me to my decision of wanting this juror removed.

Russell’s counsel responded:

       It’s interesting that Mr. Daidone should first note that he had concerns about this
       juror’s work history and the fact that she hadn’t worked because Mr. Daidone
       asked other white jurors who either weren’t working or had been working,
       additional questions about their work history. He asked this juror none.
       And I should note that even though this juror looked young, according to her
       questionnaire, I believe -- and I was struggling here to -- to locate it, but it’ll be in
       the record. She was 31 years old.
       ....
       Also, as to the grooming comment, I find it curious that the prosecutor’s looking
       for mature individuals and yet doesn’t want somebody who is mature enough to --
       because if you read all of her questions and answers regarding her willingness to

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Case No. 16-4022, Russell v. Bunting


       stand up, she basically shows maturity of a 31-year-old or older in that she says,
       “I will listen; I will form an opinion. But I will listen to the others.”
       If you read it, the entire colloquy, it is clear that this juror was evincing a maturity
       to not fold, not cave, but simply require the State to put on -- or to meet their
       burden of proof. I’d also note that, again, prosecutors never followed up with any
       additional questions of her on this matter.

The prosecutor then reiterated that Pasqual’s colloquy concerned him, particularly because the

State had the burden of proof at trial.

       In conclusion, the trial court repeated that it wouldn’t decide whether the State articulated

a race-neutral explanation for the strike because Russell had not made out a prima facie case of

racial discrimination. It accordingly reentered Russell’s convictions and sentence.

E.     Third Appeal

       Russell appealed—this time, through counsel—raising only a Batson issue. The Ohio

Court of Appeals concluded that the trial court erred in finding that Russell had failed to

establish a prima facie case of racial discrimination. Russell II, 2012 WL 368135, at *1, *6–9.

The court additionally found “the reasons the prosecutor proffered to be race-neutral.” Id. at *9.

Because the trial court did not evaluate whether the prosecutor’s race-neutral explanations were

credible—the third and final step of the Batson analysis—the appellate court remanded for

another hearing. Id. The Ohio Supreme Court denied the State leave to appeal. State v. Russell,

968 N.E.2d 492 (Ohio 2012) (table).

F.     Russell’s Motion to Reopen Third Appeal

       Arguing ineffective assistance of appellate counsel, Russell sought to reopen his appeal

in light of State v. Johnson, 942 N.E.2d 1061 (Ohio 2010), which changed the legal landscape in

Ohio regarding merger of convictions for sentencing purposes. Overruling Rance, Johnson

required consideration of whether “the same conduct constituted the commission of two offenses


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Case No. 16-4022, Russell v. Bunting


of similar import under the facts” of the case instead of in the abstract. Id. at 1063–64. Johnson

was decided in late December 2010, well before Russell’s counsel filed the third appeal in

August 2011. Thus, Russell claimed that his counsel provided ineffective assistance by failing to

reassert the merger argument with respect to the felony murder and aggravated robbery

convictions in light of the intervening change in law.

       The Ohio Court of Appeals denied the motion. The merger argument was “barred by the

law of this case,” according to the court, because it had already been rejected in Russell’s prior

appeal. The court also reasoned that a renewal of the sentencing argument would have been

outside the scope of the third appeal because the second appeal resulted in a remand only on the

Batson issue. Russell did not seek leave to appeal in the Ohio Supreme Court.

G.     Second Batson Hearing

       At the second Batson hearing, the prosecutor requested that the court consider the retrial

voir dire and initial Batson hearing records, and then reiterated his explanations for the

peremptory challenge. He said that Pasqual

       had the appearance of being very, very young. . . . [Pasqual] had gotten a license
       to be a massage therapist a year before. This particular trial was in April or May
       of the following year and she had still not worked. So she kind of was on [his]
       radar screen because of her youthful appearance and again [he] wanted somebody
       usually more mature or seasoned.

He continued, noting that “it actually was the questioning of the Defense counsel . . . that led to

[him] actually making a decision that [he] would use a peremptory challenge on this particular

juror.” Discussing his “grooming a holdout” explanation, the prosecutor stated that “the linchpin

to [his] decision was [Pasqual] saying I’m not easily persuaded.” In addition, he pressed the

court to credit that (1) he “went in great detail about how prejudice plays no role in a criminal

case” during voir dire, (2) several of the State’s key witnesses were African-Americans, so “[i]t


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Case No. 16-4022, Russell v. Bunting


would be simply ludicrous to remove African-Americans from the jury,” and (3) one African-

American was empaneled.

       In response, Russell’s counsel remarked that Pasqual was 31 years old, which “is not

young,” and that the prosecutor did not ask Pasqual about her work history. Counsel also

emphasized that Pasqual, after stating that she was not easily persuaded, said that she would

listen and remain open to changing her mind if she found the testimony credible.

       The court “considered the entire record of the voir dire and impaneling transcript . . . .

[i]ncluding the video recording,” and listened to recordings of the prosecutor’s explanations

given at the initial Batson hearing. Based on the record and that morning’s argument, the court

found plausible and credible—and not pretextual—the State’s explanation for striking Pasqual.

The court then reentered Russell’s convictions and sentence.

H.     Fourth Appeal

       The Ohio Court of Appeals affirmed. State v. Russell (Russell III), No. 25467, 2013 WL

6174807, at *1 (Ohio Ct. App. Nov. 22, 2013). It did not find clearly erroneous “the trial court’s

conclusions that the prosecutor’s statements were credible and not a pretext for discrimination.”

Id. at *6. With respect to questions about work history, the appellate court did “not find material

differences in the prosecutor’s questioning of [Pasqual].” Id. at *7. It also noted approvingly

that the jury included an African-American member and that the prosecutor admonished

prospective jurors not to consider race while hearing the case. Id. The Ohio Supreme Court

denied Russell leave to appeal. State v. Russell, 6 N.E.3d 1204 (Ohio 2014) (table).

I.     Federal Habeas Petition

       With his convictions final in state court, Russell filed his federal habeas petition.

Relevant to this appeal, Russell disputed the rejection of his Batson claim and alleged that he


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received ineffective assistance of appellate counsel in connection with his third appeal.

A magistrate judge recommended denying Russell’s habeas petition. Russell v. Bunting (Russell

IV), No. 3:15-cv-331, 2016 WL 1170883, at *13 (S.D. Ohio Mar. 25, 2016). He deemed the

ineffective-assistance claim “too vague to adjudicate,” id. at *12, and discerned no pretext in the

prosecutor’s race-neutral explanations for peremptorily striking Pasqual, id. at *7.

       Russell objected to the report and recommendation, prompting the district court to return

the petition to the magistrate for further analysis. Once again, the magistrate recommended

denying the petition. Russell v. Bunting (Russell V), No. 3:15-cv-331, 2016 WL 3194708, at *10

(S.D. Ohio June 9, 2016).        He reviewed more thoroughly the prosecutor’s race-neutral

explanations for peremptorily challenging Pasqual, but again held that the Ohio Court of

Appeals’s conclusion was not an unreasonable determination of the facts. Id. at *1–3. The

magistrate also grappled with Russell’s claim of ineffective assistance of appellate counsel for

failing to renew the merger-of-convictions sentencing argument in light of Johnson. Id. at *7.

Without considering the merits, he recommended denying the ineffective-assistance claim as

procedurally “barred by the law of the case.” Id. In conclusion, the magistrate recommended

that the district court dismiss the habeas petition in full but grant Russell a certificate of

appealability on the Batson issue. Id. at *10. The district court adopted the supplemental report

and recommendation, dismissing the petition and granting a certificate of appealability as to

Russell’s Batson claim. Russell v. Marion Corr. Inst., No. 3:15-cv-331, 2016 WL 4440323, at

*1 (S.D. Ohio Aug. 23, 2016).

       This court eventually granted Russell’s application for an expanded certificate of

appealability to include Russell’s claim that his appellate counsel provided ineffective assistance




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Case No. 16-4022, Russell v. Bunting


by failing to reassert the merger-of-convictions-at-sentencing argument in the third appeal.

Russell v. Bunting, No. 16-4022 (6th Cir. May 30, 2017) (order).

                                        II. DISCUSSION

A.     Batson Claim

       “The Equal Protection Clause precludes a party from using a peremptory challenge to

exclude members of the jury venire on account of their race.” Braxton v. Gansheimer, 561 F.3d

453, 458 (6th Cir. 2009). Arguing that the state courts erroneously rejected his Batson claim that

the peremptory strike of an African-American prospective juror evidenced discrimination,

Russell seeks another retrial. A Batson challenge to a peremptory strike necessitates a three-step,

burden-shifting inquiry:

       First, the trial court must determine whether the defendant has made a prima facie
       showing that the prosecutor exercised a peremptory challenge on the basis of race.
       Second, if the showing is made, the burden shifts to the prosecutor to present a
       race-neutral explanation for striking the juror in question. Although the
       prosecutor must present a comprehensible reason, the second step of this process
       does not demand an explanation that is persuasive, or even plausible; so long as
       the reason is not inherently discriminatory, it suffices. Third, the court must then
       determine whether the defendant has carried his burden of proving purposeful
       discrimination. This final step involves evaluating the persuasiveness of the
       justification proffered by the prosecutor, but the ultimate burden of persuasion
       regarding racial motivation rests with, and never shifts from, the opponent of the
       strike.

Rice v. Collins, 546 U.S. 333, 338 (2006) (internal quotation marks and citations omitted). The

parties do not dispute that the first two steps have been satisfied. To step three we go.

       “[T]he critical question in determining whether a prisoner has proved purposeful

discrimination at step three is the persuasiveness of the prosecutor’s justification for his

peremptory strike.” Miller-El v. Cockrell, 537 U.S. 322, 338–39 (2003). We “can only grant

[Russell’s] petition if it was unreasonable to credit the prosecutor’s race-neutral explanations for

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Case No. 16-4022, Russell v. Bunting


the Batson challenge.” Rice, 546 U.S. at 338. As the challenging party, Russell “bears the

ultimate burden of persuasion” and “must show that the explanation is merely a pretext for a

racial motivation.” Braxton, 561 F.3d at 459.

       1.      Standard of Review

       The parties agree—and so do we—that the Ohio Court of Appeals decided Russell’s

Batson claim on the merits. See generally Russell III, 2013 WL 6174807, at *1–8. That means

we may grant Russell’s petition only if the state court’s rejection of this claim “was contrary to,

or involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” or “was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

       Russell concedes that the court’s decision did not contravene or unreasonably apply

clearly established federal law. 28 U.S.C. § 2254(d)(1). Instead, he alleges that the decision was

based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2). “With respect to

§ 2254(d)(2), ‘[f]actual determinations by state courts are presumed correct absent clear and

convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a

state court and based on a factual determination will not be overturned on factual grounds unless

objectively unreasonable in light of the evidence presented in the state-court proceeding.’”

Braxton, 561 F.3d at 458 (quoting Cockrell, 537 U.S. at 340).

       2.      Race-Neutral Explanations

       The prosecutor offered three race-neutral explanations for peremptorily striking Pasqual,

and we conclude that it was reasonable to credit all three.

       Youthful Appearance. One explanation the prosecutor gave for challenging Pasqual was

that she “had the appearance of being very young.” According to Russell, it is inconceivable that


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“a prosecutor would regard a venire person’s youthful appearance—as opposed to her actual

age—as relevant to her desirability for jury service.”

         Although the prosecutor’s “youthful appearance” explanation may be inartful, it is not

incredible. For one, Russell offers no evidence that white jurors who appeared “very young”

were nonetheless seated. Plus, as the State points out, Russell’s counsel noted during voir dire

Pasqual’s youth relative to the other jurors, averring, “I think you might be one of the younger

jurors. And even if you aren’t, if everybody else feels one way but you feel strongly the other

way, do you think you’d just give in to go with the other folks?” Just as Russell’s counsel could

be concerned that the older jurors would push Pasqual around in deliberations because she

looked younger (or actually was younger) than them, so could the prosecutor. Russell has not

demonstrated that this race-neutral explanation was pretextual.

         Work History.         Russell suggests that a comparative juror analysis undermines the

credibility of the prosecutor’s work-history explanation for the peremptory strike.2 First, he

claims the prosecutor allowed white jurors with similarly limited work histories to remain on the

jury. He identifies Jurors Kitchen and Eller, neither of whom was employed when the retrial

began, and Juror Tucker, who had worked in her position for only two months. He likewise

contends that none of those three white jurors had a background of sustained employment.

Second, Russell decries the prosecutor’s asking several unemployed (or employed for only a

short time) white jurors—but not Pasqual—about their prior work history. Juror Hobolt, for


         2
            The State indicates that it is improper to conduct a comparative juror analysis. The district court granted a
certificate of appealability on the Batson issue in light of Foster v. Chatman, in which the Supreme Court found a
Batson violation upon thoroughly reviewing the state-court record for differences in treatment of jurors. 136 S. Ct.
1737, 1752, 1754, 1755 (2016). The State contends that Foster is inapplicable here given that it was decided several
years after the last Ohio court adjudicated Russell’s Batson claim. Yet, as Russell aptly observes, the Court
conducted comparative juror analyses well before Foster. See, e.g., Snyder v. Louisiana, 552 U.S. 472, 483–84
(2008).


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Case No. 16-4022, Russell v. Bunting


example, was hired at a new restaurant only a week before trial, but additional questioning by the

prosecutor revealed Hobolt’s prior employment in construction.

       Russell’s arguments carry some water, as failing to ask follow-up questions can undercut

the persuasiveness of the averred concern. Miller-El v. Dretke, 545 U.S. 231, 250 n.8 (2005);

see also United States v. Odeneal, 517 F.3d 406, 421 (6th Cir. 2008) (“The failure of the

prosecution to inquire regarding a reason purported to be a basis for a juror’s dismissal serves as

evidence of discrimination.”). Yet, the context for the prosecutor’s work-history explanation is

important. “In these types of cases,” he clarified, “I prefer a juror who is older, more mature,

seasoned, and has a stable work history, like employed or retired or maybe working and had been

laid off. [Pasqual] had the appearance of being very young and did not have any work history.”

Kitchen, Eller, and Tucker fit the prosecutor’s stated preferences. Although Kitchen was not

employed at the time of trial, voir dire identified that she was retired. In addition, Kitchen

mentioned that she has grandchildren, which clearly implies that she was on the older side of the

jury pool. Eller was a former teacher who retired to take care of her children; she described

herself as “a full-time mom.” Tucker, seated only as an alternate, explained that she did not have

any spare time because she was a full-time mother.

       Whereas Pasqual said she earned her license “last year” but still hadn’t started working as

of late April when the trial began, Hobolt stated that he had been hired at a new restaurant just

the previous week. It thus seems only natural for the prosecutor to have asked Hobolt what he

did prior to his week-old employment. Further undermining Russell’s argument is the fact that

the prosecutor not only left an African-American (Juror Harris) on the jury, but that he asked

Harris about his work history. Therefore, it was not unreasonable for the state court to credit this

race-neutral explanation.


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Case No. 16-4022, Russell v. Bunting


       “Grooming a Holdout.” Russell offers multiple reasons why the prosecutor’s “grooming

a holdout” explanation is not credible, none of which moves us. First, Russell contends that the

prosecutor could not have actually been concerned about Pasqual’s declaration that she is “not

really easily persuaded.” He claims the prosecutor ignored Pasqual’s affirmative responses to

subsequent questions about “remain[ing] open to understanding” the other jurors’ “point of

view” and “be[ing] willing to change [her] mind.” Yet Russell overlooks the prosecutor’s good

point that Pasqual said “I’m not really easily persuaded” without a question pending to her,

thereby advertising her steadfastness without any prompting by counsel.            True, Pasqual’s

colloquy with defense counsel continued beyond that statement. Even considering the colloquy

in its entirety, however, it is not unbelievable that the prosecutor—representing the party with the

burden of proof—still had concerns about Pasqual’s ability to be persuaded. Cf. Cockrell, 537

U.S. at 339 (“Credibility can be measured by, among other factors, . . . whether the proffered

rationale has some basis in accepted trial strategy.”).

       Second, Russell flags the prosecutor’s failure to ask follow-up questions of Pasqual about

her colloquy with defense counsel. But it’s not as if the prosecutor asked follow-up questions of

some jurors yet ignored Pasqual. Indeed, the prosecutor did not question any juror after defense

counsel concluded her voir dire. And when defense counsel finished, the court did not offer the

prosecutor an opportunity to ask additional questions before moving right into the defense’s

challenges for cause.

       Third, Russell argues that the prosecutor’s “grooming a holdout” justification ipso facto

lacked credibility based on the “clearly pretextual” youthful-appearance and work-history

explanations.    As explained previously, however, neither of those explanations is fairly




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Case No. 16-4022, Russell v. Bunting


characterized as “clearly pretextual.” Simply put, Russell’s arguments do not persuade us to

distrust the prosecutor’s “grooming a holdout” explanation.

       3.      Prosecutor’s Credibility, Generally

       Russell presents several other reasons for questioning the prosecutor’s credibility. He

declares that Pasqual’s relationship to a law enforcement officer and a brother who was a crime

victim made her a favorable prosecution juror; thus, he alleges the prosecutor’s explanation for

striking her was further undermined. Russell additionally argues that the prosecutor could not

bolster his credibility by cautioning the prospective jurors to ignore race.

       With only a cold record before us, we defer to the trial court’s evaluation of the

prosecutor’s credibility. See Davis v. Ayala, 135 S. Ct. 2187, 2201 (2015) (“A trial court is best

situated to evaluate both the words and the demeanor of jurors who are peremptorily challenged,

as well as the credibility of the prosecutor who exercised those strikes.”); Cockrell, 537 U.S. at

339 (“Deference is necessary because a reviewing court, which analyzes only the transcripts

from voir dire, is not as well positioned as the trial court is to make credibility determinations.”).

Before making its credibility determination, the trial court reviewed the video recording of the

voir dire, listened to the rationale given by the prosecutor at the first Batson hearing, and

entertained counsels’ arguments at the second Batson hearing. Not only did the trial court find

credible the prosecutor’s three race-neutral explanations for striking Pasqual, but it also deemed

credible the prosecutor’s argument that excusing an African-American juror based on her race

“would defy logic in this case” because three of the State’s key witnesses were African-

American. The trial court likewise found credible the prosecutor’s “comments to the general

voir dire that justice is blind, [and] that race plays no part.” Russell argues that this admonition




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Case No. 16-4022, Russell v. Bunting


by the prosecutor doesn’t bolster his credibility but actually implies that the prosecutor was

considering race when he struck Pasqual; this is no more than an ipse dixit.

         In sum, we do not find that the state court rejected Russell’s Batson claim based on an

unreasonable determination of the facts.3

B.       Ineffective-Assistance Claim

         Russell argues that his appellate counsel was ineffective for failing to re-argue in the third

appeal that his felony murder and aggravated robbery convictions should be merged for

sentencing purposes in light of State v. Johnson. Before considering the merits of this claim,

however, we must determine whether the district court properly determined that Russell

procedurally defaulted it.

         1.       Standard of Review

         “We review de novo whether a petitioner’s federal habeas claim is barred by procedural

default.” Middlebrooks v. Carpenter, 843 F.3d 1127, 1134 (6th Cir. 2016) (internal quotation

marks and citation omitted).

         2.       Analysis

         When it decided Russell I in October 2010, the Ohio Court of Appeals was bound by

State v. Rance. Rance held that allied offenses are of similar import—and, thus, subject to

merger for sentencing purposes—if the elements of the offenses are so similar in the abstract that

commission of one will result in the commission of the other. 710 N.E.2d at 703. In late

December 2010, the Ohio Supreme Court overruled Rance in Johnson, 942 N.E.2d at 1063, and


         3
           Alternatively, Russell asks us to vacate the dismissal of his Batson claim and remand to the district court
for consideration of the juror questionnaires that the magistrate declined to review while analyzing the habeas
petition. The magistrate explained that Russell did not identify anything in the questionnaires that wasn’t already
part of the record and would demonstrate the prosecutor’s racial animus. Russell IV, 2016 WL 1170883, at *8. We
agree with the magistrate.


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Case No. 16-4022, Russell v. Bunting


announced that courts must consider the accused’s actual conduct in “determining whether two

offenses are allied offenses of similar import subject to merger,” id. at 1069.

          Russell identified Johnson in his application to reopen his third appeal, but the Ohio

Court of Appeals rejected the application without acknowledging the change in the law. Instead,

the court determined that the law-of-the-case doctrine procedurally barred the merger argument

because it had already been rejected in a prior appeal. The court also implied that it could not

revisit the issue because the case was before the trial court on a limited remand dealing only with

the Batson issue. The district court agreed. Russell V, 2016 WL 3194708, at *7. We, however,

do not.

          Because Russell did not violate a state procedural rule, we discern no procedural default

that would bar his claim. See Simpson v. Jones, 238 F.3d 399, 407 (6th Cir. 2000) (“For a

habeas claim to be procedurally defaulted on the basis of a state procedural rule, the petitioner

must have violated a procedural rule . . . .”). Ohio’s law-of-the-case doctrine is inapplicable

when “there has been an intervening change of law by a controlling authority,” State v.

Apanovitch, 64 N.E.3d 429, 438 (Ohio Ct. App. 2016) (citation omitted), as occurred when

Johnson overruled Rance. Plus, because “an intervening decision by the [Ohio] Supreme Court”

allows a lower court “to disregard the mandate of a superior court in a prior appeal in the same

case,” it did not matter that Russell’s case was before the trial court on a limited remand when

Johnson was decided. Hopkins v. Dyer, 820 N.E.2d 329, 331 (Ohio 2004) (quoting Nolan v.

Nolan, 462 N.E.2d 410, 411 (Ohio 1984)).

          The State’s argument that Russell “default[ed]” his ineffective-assistance claim by failing

to timely raise it in the fourth direct appeal is similarly unavailing. The key appeal here is the

third—not the fourth—appeal. Russell’s third appeal was his first post-Johnson; notwithstanding


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Case No. 16-4022, Russell v. Bunting


the change in law, however, Russell’s counsel failed to renew the sentencing argument at that

stage. Nor are we persuaded by the State’s assertion that Russell, proceeding pro se, failed to

sufficiently plead this ineffective-assistance claim in his habeas petition.

       We recognize that Russell did not appeal the denial of his motion to reopen the third

appeal to the Ohio Supreme Court. Fortunately for Russell, the State forfeited this argument by

failing to present it to the district court. See Armstrong v. City of Melvindale, 432 F.3d 695, 700

(6th Cir. 2006) (“[T]he failure to present an issue to the district court forfeits the right to have the

argument addressed on appeal.”); see also, e.g., Reeves v. Campbell, 708 F. App’x 230, 241 (6th

Cir. 2017). The State argued in its Return of Writ that Russell procedurally defaulted his

ineffective-assistance claim because it was “simply impossible to ascertain from Russell’s

petition which of his counsel(s) he claims was ineffective and during which appeal(s).” But the

State did not argue procedural default based on any failure by Russell to appeal to the Ohio

Supreme Court the denial of his motion to reopen his third appeal. Rather, the State’s Return of

Writ merely mentions this failure in one lone sentence within a 13-page procedural history

section. That isn’t enough to bring the argument properly before us.

       3.      Remedy

       For the reasons just explained, we hold that the district court erroneously dismissed

Russell’s ineffective-assistance claim as procedurally barred.         Russell would now have us

address the claim’s merits under Strickland v. Washington, 466 U.S. 668 (1984), and its progeny.

We decline to do so. Because “no federal court has yet issued a substantive ruling on this habeas

corpus claim,” the proper remedy is a remand to the district court for a review of the merits.

Henderson v. Palmer, 730 F.3d 554, 561 (6th Cir. 2013) (quoting Smith v. Morgan, 371 F. App’x

575, 582 (6th Cir. 2010)). Alas, the procedural history of this case will continue to swell. But


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the district court should decide in the first instance whether Russell received ineffective

assistance when his appellate counsel neglected to argue in the third appeal that the felony

murder and aggravated robbery convictions should be merged for sentencing purposes in light of

Johnson.

                                        III. CONCLUSION

        Accordingly, we AFFIRM the district court’s rejection of Russell’s Batson claim and

REVERSE its decision that Russell procedurally defaulted his claim that appellate counsel

provided ineffective assistance by failing to reassert that the aggravated robbery and felony

murder convictions should have been merged for sentencing purposes. We REMAND to the

district court for initial consideration of the merits of this ineffective-assistance claim.




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