                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                File Name: 13a0342a.06

                UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                              _________________


 ARCHIE DIXON ,                                   X
                         Petitioner-Appellant,     -
                                                   -
                                                   -     No. 08-4019
           v.                                      -
                                                    >
                                                   ,
 MARC C. HOUK, Warden,                             -
                     Respondent-Appellee.          -
                                                   -
                                                  N
                    Appeal from the United States District Court
                    for the Northern District of Ohio at Toledo.
                   No. 05-01290—James S. Gwin, District Judge.

                             Argued: January 17, 2013

                      Decided and Filed: December 12, 2013

                Before: MERRITT, SILER, and COLE, Circuit Judges.

                                _________________

                                    COUNSEL
ARGUED: Michael J. Benza, LAW OFFICE OF MICHAEL J. BENZA, Chagrin Falls,
Ohio, for Appellant. Thomas E. Madden, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Michael J. Benza, LAW
OFFICE OF MICHAEL J. BENZA, Chagrin Falls, Ohio, Lawrence J. Whitney,
BURDON & MERLITTI, Akron, Ohio, for Appellant. Thomas E. Madden, David M.
Lieberman, Alexandra T. Schimmer, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee.
     SILER, J., delivered the opinion of the court, in which COLE, J., joined.
MERRITT, J. (pp. 14–19), delivered a separate dissenting opinion.




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


                               ______________________

                                AMENDED OPINION
                               ______________________

          SILER, Circuit Judge. Twenty years ago, Archie Dixon and his accomplice
brutally attacked Christopher Hammer and buried him alive. Dixon was convicted of
aggravated murder, robbery, kidnaping, and forgery, and the state trial court sentenced
him to death. He sought to vacate his conviction and sentence, asserting that his
confession was obtained in violation of his Miranda rights and alleging numerous errors
in his trial. We ruled that his confession was coerced, deeming his remaining claims
regarding effectiveness of trial counsel, the instructions to the jury, and the exclusion of
certain mitigating evidence pretermitted. On review, the Supreme Court reversed our
ruling, see Bobby v. Dixon, 132 S. Ct. 26 (2011), and we must now review his remaining
claims for ineffective assistance of counsel, improper jury instruction, and the exclusion
of certain mitigating evidence at his penalty hearing. For the following reasons, we
AFFIRM the district court’s ruling and DENY Dixon’s petition for a writ of habeas
corpus.

                                             I.

          Dixon and his accomplice, Timothy Hoffner, were friends with Hammer. In
1993, Dixon and Hoffner beat Hammer, tied him to a bed, stole the contents of his wallet
and his automobile, and then drove him into a remote area and buried him alive. One
month into the ensuing investigation, Hoffner led police to Hammer’s body and Dixon
provided a tape-recorded account of the kidnaping, robbery, and murder.

          Dixon was indicted for aggravated murder, kidnaping, and aggravated robbery.
At trial, the defense presented no evidence and cross-examined only three of the
prosecution’s 15 witnesses. The jury convicted Dixon on all charges and recommended
the death penalty, which the court imposed. Dixon appealed his conviction to the Ohio
Court of Appeals and, while that appeal was pending, he filed a post-conviction petition
with the trial court, arguing ineffective assistance of counsel. The latter was denied, and
No. 08-4019            Dixon v. Houk                                                              Page 3


Dixon appealed that decision to the Ohio Court of Appeals. The Ohio Court of Appeals
consolidated Dixon’s direct appeal and post-conviction appeal and affirmed his
conviction. He then appealed to the Ohio Supreme Court, which also affirmed, State v.
Dixon, 805 N.E.2d 1042, 1063 (Ohio 2004).

         Dixon proceeded to file a federal habeas petition alleging ineffective assistance
of counsel, improper jury instructions, improper exclusion of mitigating evidence at
sentencing, and a violation of his Miranda rights.1 The district court denied the petition,
and Dixon appeals.

                                                   II.

         Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), a habeas corpus application which includes a claim
that was previously adjudicated on the merits in state court proceedings will be “denied
unless the state court decision was contrary to, or involved an unreasonable application
of, clearly established federal law as determined by the Supreme Court, or based on an
unreasonable determination of the facts in light of the evidence presented to the state
courts.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). This standard is “difficult
to meet,” “highly deferential,” and “demands that state-court decisions be given the
benefit of the doubt.” Id. (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per
curiam)). Dixon carries the burden of meeting this high bar.

         The parties initially dispute whether Dixon’s claims were adjudicated on the
merits and, accordingly, whether AEDPA’s standard of review applies and whether our
review is limited to the record before the state court. “By its terms § 2254(d) bars
relitigation of any claim ‘adjudicated on the merits’ in state court, subject only to the
exception in §§ 2254(d)(1) and (d)(2). Although the Supreme Court has not defined
“adjudication on the merits,” we are guided by its observation that “no text in the statute
requir[es] a statement of reasons.” Harrington v. Richter, 131 S. Ct. 770, 784 (2011).


         1
          The Miranda issue has been adjudicated, leaving only the first three claims to be addressed. See
Dixon v. Houk, 627 F.3d 553 (6th Cir. 2010), rev’d, 132 S. Ct. 26 (2011).
No. 08-4019         Dixon v. Houk                                                    Page 4


Rather, the “statute refers only to a ‘decision,’ which resulted from an ‘adjudication.’”
Id. Thus, “[w]hen a federal claim has been presented to a state court and the state court
has denied relief, it may be presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law procedural principles to the contrary.”
Id. at 784-85.

        Each of Dixon’s claims on appeal was adjudicated on the merits in state court.
First, he argued that defense counsel was ineffective by cross-examining only three of
the state’s 15 witnesses at trial. The Supreme Court of Ohio found that “[c]ounsel’s
tactical decisions reflected reasonable representation.” Dixon, 805 N.E.2d at 1054.
Second, Dixon argued he was denied the effective assistance of counsel during his
mitigation hearing because counsel failed to present available mitigating evidence. The
Supreme Court of Ohio found that, based upon the evidence before the trial court, it was
impossible to determine that sufficient mitigating evidence existed to “call[] for a
sentence less than death.” Id. at 1056. Third, Dixon argued that the trial court erred in
excluding certain evidence at mitigation. Specifically, Dixon had previously been
wrongfully incarcerated on a rape charge that was subsequently dismissed. The Supreme
Court of Ohio found that although the trial court should have permitted the evidence,
excluding it was harmless error. Id. Fourth, Dixon argued that the trial court erred in its
penalty-phase instructions regarding aggravating circumstances in Dixon’s actions. The
Supreme Court of Ohio adjudicated this argument in detail and found the instructional
error did not constitute grounds for reversal. Id. at 1059. Finally, Dixon argued that the
trial court erroneously instructed the jury to assume his guilt. Here, as well, the Supreme
Court of Ohio found no plain error, concluding that “the jury was properly charged on
the presumption of innocence, reasonable doubt, and the burden of proof.” Id. at 1053.
Because all of Dixon’s arguments on appeal were adjudicated on their merits by the
Supreme Court of Ohio, our highly-deferential review under AEDPA is limited to the
record before that court.
No. 08-4019        Dixon v. Houk                                                   Page 5


                                           A.

       In order to prevail on a claim of ineffective assistance of counsel, Dixon “must
show both that his counsel’s performance was deficient and that the deficient
performance prejudiced the defense.” Hodges v. Colson, 711 F.3d 589, 613 (6th Cir.
2013) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). To show
deficiency, Dixon must establish that “counsel made errors so serious that [he] was not
functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” Strickland, 466
U.S. at 687. To show prejudice, Dixon must establish that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. We need not address both components if we find
that Dixon has failed to meet one of them. Id. at 697.

       Dixon first argues that his due process right to a fair trial was prejudiced by
defense counsel’s failure to cross-examine several of the prosecution’s witnesses.
Moreover, Dixon argues that the cross-examination which was conducted was
insufficient and ineffective. Defense counsel cross-examined three witnesses at trial:
Jennifer Wodarsky, Hammer’s former girlfriend; Barbara Hammer, Hammer’s mother;
and Detective Phil Kulakoski, who questioned Dixon at the Toledo Police Department
two weeks after the murder. Counsel challenged the state’s portrayal of Hammer as an
innocent young man by asking Wodarksi and Barbara Hammer about Hammer’s
involvement with drugs and misuse of a credit card, and questioned Kulakoski about the
discovery of Hammer’s body near the Michigan state border, a state without the death
penalty, in an attempt to suggest the arbitrariness of Ohio’s death penalty. The Supreme
Court of Ohio found that “[c]ounsel’s tactical decisions reflected reasonable
representation,” and noted that courts “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Dixon,
805 N.E.2d at 1054 (quoting Strickland, 466 U.S. at 689). Furthermore, the court found
that counsel’s decision not to cross-examine other witnesses resulted from his realization
“that any attempt to cross-examine [them] would have merely reemphasized their
damaging testimony.” Id. at 1055.
No. 08-4019         Dixon v. Houk                                                     Page 6


        On appeal, Dixon argues that his counsel’s brief and his decision to otherwise not
cross-examine or call additional witnesses amounted to “defense counsel put[ting] their
hands up and surrender[ing].” And, although Dixon admits that cross-examination
techniques, like other matters of trial strategy, are entrusted to the professional discretion
of counsel, he questions how any strategy can be “based upon asking absolutely no
questions.” He specifically argues that counsel should have cross-examined Kirsten
Wilkerson, Dixon’s girlfriend, who offered a first-hand account of the murder, since she
was present during Hammer’s beating.            Dixon argues that Wilkerson provided
inconsistent accounts of the incident during multiple statements to police, which counsel
should have investigated. Furthermore, he argues that counsel should have performed
a more thorough cross-examination of Kulakoski about the conditions under which
Dixon’s confession was obtained.

        Despite any shortcomings in counsel’s performance or the quality of his strategy,
Dixon must show that the performance was unreasonable and that it prejudiced the case
in order to succeed on his claim. That he cannot do. Beyond questioning Wodarski and
Barbara Hammer about the victim’s drug use and financial indiscretions, any further
badgering by defense counsel could have easily offended a rational juror and backfired
on the defense.     Moreover, prodding Wilkerson on cross-examination about the
inconsistencies in her testimony would bring to light Dixon’s taped confession to the
murder and, quite possibly, the history of domestic violence in Dixon and Wilkerson’s
relationship, which might explain her fear in testifying against Dixon truthfully. As the
Ohio Court of Appeals recognized in Dixon’s first appeal, “the overwhelmingly
incriminating nature of the evidence against appellant as well as the certainty with which
each witness offered his or her testimony” made cross-examination imprudent as it
would have only further emphasized the credible, incriminating evidence against him.
State v. Dixon, no. L-96-004, 2000 WL 1713794, at *5 (Ohio. App. 6 Dist. Nov. 17,
2000). The Supreme Court of Ohio agreed with this reasoning, finding that even if
counsel’s performance was unreasonable, Dixon could not show that it prejudiced his
case.
No. 08-4019         Dixon v. Houk                                                    Page 7


        We agree that Dixon cannot show prejudice in light of the amount and quality of
incriminating evidence presented against him at trial. Dixon must demonstrate that
“counsel’s errors were so serious as to deprive [him] of a fair trial, a trial whose result
is reliable.” Strickland, 466 U.S. at 688. He “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. The overwhelming evidence presented against
Dixon revealed that Dixon brutally attacked Hammer, buried him alive, and then
attempted to steal Hammer’s identification (by making a false identification card
containing his photo and Hammer’s personal information), obtained new title to
Hammer’s car, and sold the vehicle for $2,800. Cross-examining Wilkerson and
Kulakoski in more detail, or questioning other witnesses for that matter, would have had
virtually no effect on Dixon’s convictions in light of the evidence that was presented.
The state courts’ denial of Dixon’s ineffective-assistance-of-counsel claim neither
contradicted nor unreasonably applied Supreme Court precedent as required by 28 U.S.C.
§ 2254(d).

                                            B.

        Dixon argues that the district court erroneously instructed the jury on the proper
burden of proof required to sustain his conviction. The jury was charged:

        Thus, assuming a finding of the defendant is guilty beyond a reasonable
        doubt of the aggravated murder with prior calculation and design of
        Christopher Hammer as charged in Count 1 of the indictment, and further
        assuming a finding as to Specification 1 that the aggravated murder of
        Christopher Hammer was committed during the course of a kidnapping,
        and further finding beyond a reasonable doubt that the defendant, Archie
        J. Dixon, was either a principal offender in that murder or that the
        aggravated murder was committed with prior calculation and design, will
        mandate a finding of guilty as to Specification 1.

Dixon argues that the “assumption of guilt” deprived him of his due process right to a
fair trial because it required the jury to infer a certain fact if the state proved specific
predicate facts, relieving the state from proving every element of the offense.
No. 08-4019          Dixon v. Houk                                                  Page 8


       Dixon’s argument fails for two reasons. First, Dixon disingenuously isolates one
portion of the jury instructions and asks us to interpret them without reference to
additional instructions provided to the jury. Prior to reading the instructions above, the
trial court first described each step of the deliberation process, carefully explaining the
requirement that jurors be convinced beyond a reasonable doubt in order to return a
guilty verdict. The instructions cited by Dixon came after the court discussed the first
aggravated murder count and the first capital specification. Only then did the court
instruct jurors that if they found Dixon guilty of (1) aggravated murder with prior
calculation and design; (2) which was committed during the course of a kidnaping; and
(3) in which he was a principal offender, then they should return a guilty verdict as to
Specification 1. Thus, at no time did the district court erroneously mandate that the jury
assume Dixon’s guilt.

       Even if the court’s instruction could be understood as an assumption of guilt, we
review jury instructions “as a whole, in order to determine whether they adequately
informed the jury of the relevant considerations and provided a basis in law for aiding
the jury in reaching its decision.” United States v. Frederick, 406 F.3d 754, 761 (6th Cir.
2005). Here, the trial court meticulously and repeatedly instructed the jury as to the
proper burden of proof. (“The defendant is presumed innocent until his guilt is
established beyond a reasonable doubt. The defendant must be acquitted unless the State
produced evidence which convinces you beyond a reasonable doubt of every essential
element of the offense charged in the indictment.”). We grant habeas relief where an
“ailing instruction by itself so infected the entire trial that the resulting conviction
violates due process,” Cupp v. Naughten, 414 U.S. 141, 147 (1973), and such is clearly
not the case here.

                                           C.

       Dixon argues that the trial court wrongfully excluded mitigating evidence at his
penalty hearing. Prior to the hearing, his counsel informed the court that he intended to
introduce evidence of the following: (1) two unrelated capital murder cases in Lucas
County where the state had not sought the death penalty in exchange for defendants’
No. 08-4019         Dixon v. Houk                                                    Page 9


guilty pleas to aggravated murder charges; (2) Dixon’s acceptance of responsibility for
his crimes as evidenced by his offering to plead guilty to the charges in exchange for
dismissal of the death penalty specifications; and (3) Dixon’s prior, unrelated
incarceration on a rape charge, which was based on false allegations and was
subsequently dismissed. The trial court excluded each of these, and Dixon now argues
that their exclusion violates his due process rights.

        In Lockett v. Ohio, 438 U.S. 586, 604 (1978), Supreme Court held:

        the Eighth and Fourteenth Amendments require that [a] 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.

Despite the inclusive language of this rule, the Supreme Court consistently illustrates that
mitigating evidence offered by a defendant must still fall within the spectrum of
relevance in order to be admissible. Eddings v. Oklahoma, 455 U.S. 104, 115 (1982)
(the sentencer may not “refuse to consider . . . any relevant mitigating evidence.”). In
fact, the Supreme Court in Lockett expressly reserved this limitation, noting that “nothing
in [its] opinion limits the traditional authority of a court to exclude, as irrelevant,
evidence not bearing on the defendant’s character, prior record, or the circumstances of
his offense.” Lockett, 438 U.S. at 605 n.12. Thus, we must ask whether the evidence
presented by Dixon was relevant, and therefore automatically admissible, as he insists.

        The Ohio Supreme Court determined that the trial court’s decision to exclude the
information was erroneous because “it fits within the ‘history, character, and background
of the offender.’” Dixon, 805 N.E.2d at 1057 (citing State v. Stumpf, 512 N.E.2d 598,
605 (Ohio 1987)). Nevertheless, it considered the error to be harmless as “our
independent reassessment of the sentence will minimize any prejudicial impact.” Id.
(citations omitted). In its independent sentence evaluation, it went on to “conclude that
this factor has little, if any relevance to whether Dixon should be sentenced to death.”
Id. at 1062. Because the Ohio Supreme Court reviewed this claim as a matter of state
No. 08-4019        Dixon v. Houk                                                  Page 10


law only, rather than as an Eighth Amendment claim, the district court conducted de
novo review. It agreed that the trial court’s decision constituted harmless error,
explaining that “given the overwhelming aggravating evidence, and the lack of
mitigating evidence, the exclusion of the false imprisonment does not undermine the
Court’s confidence in the outcome of the sentencing phase of trial.”

       Dixon asserts that this alleged error is not subject to harmless error review,
because it is a structural error. However, the error here was not structural as the issue
involves the trial court’s decision to exclude certain mitigating evidence and is therefore
subject to harmless error review. See Hitchcock v. Dugger, 481 U.S. 393, 399 (1987)
(exclusion of mitigating evidence renders death sentence invalid in the absence of a
showing of harmless error).      Given the specific facts of Dixon’s crime and the
compelling aggravating evidence in this case, evidence of Dixon’s prior wrongful
incarceration due to unrelated rape allegations would, at best, have been negligibly
mitigating. We do not believe that its exclusion had any substantial effect on Dixon’s
sentencing. See Brecht v. Abrahamson, 507 U.S. 619, 639 (1993). The Ohio Supreme
Court’s conclusion that the exclusion of Dixon’s wrongful incarceration was harmless
is therefore not contrary to clearly established federal law.

                                            D.

       Dixon next claims that his counsel was ineffective for failing to present
mitigating evidence at the penalty phase of trial. He focuses almost entirely on two
investigations prepared for the mitigation phase of trial. Following Dixon’s conviction,
defense counsel hired Dr. Christopher Layne, a board-certified clinical psychologist, to
examine Dixon for neurological impairments and review his medical records. In his oral
report supplied to defense counsel, Layne found no evidence of brain damage and
diagnosed Dixon with “antisocial personality disorder” and a criminal personality.
Counsel also hired Gary Ericson, a defense mitigation specialist, to research Dixon’s
social history. After interviewing Dixon’s mother, brother, foster parents, family pastor,
and parole officer, Ericson submitted a written report to counsel showing that Dixon’s
family history included domestic violence, sexual abuse, physical aggression, possible
No. 08-4019             Dixon v. Houk                                                               Page 11


incest, and alcoholism. Although both of these investigations were available to counsel
before sentencing, they were not used as evidence in mitigation.

          The state courts adjudicated Dixon’s ineffective-assistance-of-counsel claim on
the merits and considered Ericson’s report but considered no evidence of the oral report
from Layne. In the federal district court below, an evidentiary hearing was held, which
revealed Layne’s opinion, but our review is limited by AEDPA to the record before the
state courts.2 Pinholster, 131 S. Ct. at 1398. “In assessing whether a defendant’s
counsel was ineffective at the mitigation hearing for failing to introduce certain evidence,
the focus must be on whether the investigation supporting counsel’s decision . . . was
itself reasonable.” Clark v. Mitchell, 425 F.3d 270, 284 (6th Cir. 2005). This rule takes
root in the longstanding and sound principle that matters of trial strategy are left to
counsel’s discretion. Thus, where a defendant focuses on counsel’s “strategic choices
made after thorough investigation of law and facts,” the Supreme Court guides us that
such choices “are virtually unchallengeable.” Strickland, 466 U.S. at 690 (emphasis
added).

          In the state trial court, Dixon challenged his counsel’s performance at the
mitigation stage, but offered minimal support for his claim. He presented no evidence
of what his mitigation witnesses might have testified to and offered minimally helpful
affidavits in support thereof. He submitted an affidavit from his mother which vaguely
referenced problems he had with his father and another sparse affidavit from his brother
that described their family environment as disruptive and dysfunctional. Neither affiant
detailed violence, abuse, emotional hardships, or substance abuse from Dixon’s
childhood. Dixon’s counsel nevertheless did attempt to offer mitigating evidence, as we
discussed above, which the trial court excluded. For this reason, counsel’s performance
at the mitigating hearing cannot be considered unreasonable.


          2
           Dixon attempts to circumvent the proper standard of review in this case by relying on Martinez
v. Ryan, 132 S. Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013). These cases stand for the
proposition that the failure of counsel to properly litigate post-conviction ineffective-assistance-of-counsel
claims in state court may excuse a defendant’s procedural default and allow him to file a petition for a writ
of habeas corpus in federal court. These cases do not assist Dixon since he alleges no procedural error and
in fact presented his ineffective-assistance-of-counsel claim below.
No. 08-4019         Dixon v. Houk                                               Page 12


                                          E.

       Dixon finally argues that the district court erred in its instructions to the jury
regarding aggravating circumstances. In its penalty-phase instructions, the trial court
identified three aggravating circumstances for the jury’s consideration: “(1) That the
defendant . . . caused the death of Christopher Hammer with prior calculation and design
and was the principal offender in the aggravated murder; (2) That the defendant . . .
caused the death of Christopher A. Hammer while the defendant was committing
kidnapping and that the defendant was the principal offender; and (3) That the defendant
. . . caused the death of Christopher A. Hammer while the defendant was committing
aggravated robbery, and the defendant was the principal offender.” Under Ohio Revised
Code § 2929.04(A), “prior calculation and design” is a relevant factor “only if the
defendant is not a principal offender.” Thus, the instruction erroneously presented the
first factor in conjunction with the second and third factors. The Supreme Court of Ohio
recognized this fault and proceeded to “cure” the error by performing an independent
reassessment of the sentencing.

       A state appellate court may uphold a death sentence that is based in part on
invalid instructions regarding aggravating circumstances by reweighing the aggravating
and mitigating factors. Clemons, 494 U.S. at 748. Dixon agrees that this is permissible,
but he challenges whether the Supreme Court of Ohio adequately reweighed the factors
on review. We conclude that it did. After identifying the instructional error, the
Supreme Court of Ohio reviewed relevant precedent and concluded that the error “did
not irrevocably taint the jury’s deliberative process.” Dixon, 805 N.E.2d at 1059. It
observed that there was a “dearth of mitigating evidence in this case . . . . During the
sentencing phase, the only evidence offered in mitigation was Dixon’s age at the time of
the offense and testimony computing the amount of jail time Dixon would serve if given
a life sentence.”     Id. (citations omitted).     “In contrast,” it noted that “the
evidence . . . overwhelmingly proved the aggravating circumstances,” and that the jury
convicted Dixon of aggravated murder. Id. It is evident that the Supreme Court of Ohio
No. 08-4019        Dixon v. Houk                                                Page 13


thoroughly and thoughtfully reviewed the instructional error, and it therefore comported
with Clemons and cured any error that may have occurred.

       The district court’s ruling is AFFIRMED and Dixon’s petition for a writ of
habeas corpus is DENIED.
No. 08-4019            Dixon v. Houk                                                              Page 14


                                        _________________

                                            DISSENT
                                        _________________

         MERRITT, Circuit Judge, dissenting. Dixon has a long-established, unalloyed
federal right under the Eighth Amendment to offer and have the jury receive and consider
all mitigating evidence. That did not happen in this case. Dixon was sentenced to death
after the trial judge excluded as irrelevant certain important mitigating evidence; and the
Ohio Supreme Court thereafter held that the trial court’s ruling was error under Ohio
statutory law, but harmless error. In my view, the error was clear and harmful.

         The Supreme Court has repeated in unqualified language for more than 30 years
the foundational rule that the Eighth Amendment requires in death penalty cases the
admission of any mitigating evidence “that might serve ‘as a basis for a sentence less
than death.’” Skipper v. South Carolina, 476 U.S. 1, 5 (1986) (quoting Lockett v. Ohio,
438 U.S. 586, 604 (1978)). Over that period, the Supreme Court has never invoked
harmless error or suggested that this relatively simple Eighth Amendment mitigation
rule, stated in many cases,1 should be subject to “harmless error” analysis. The reason
for this rule is that a mandatory death penalty that leaves out consideration of mitigation
is unconstitutional. Each juror at the mitigation phase of the proceeding must have the
discretion to spare the defendant’s life. Woodson v. North Carolina, 428 U.S. 280
(1976).2 The Lockett line of cases insists that the jurors should make that judgment
based on considering all mitigating factors weighed against the aggravating factors.

         1
          Abdul-Kabir v. Quarterman, 550 U.S. 233, 264-65 (2007); Smith v. Texas, 543 U.S. 37, 45-48
(2004); Tennard v. Dretke, 542 U.S. 274, 286-88 (2004); Penry v. Johnson, 532 U.S. 782, 804 (2001);
Penry v. Lynaugh, 492 U.S. 302, 317 (1989); Hitchcock v. Dugger, 481 U.S. 393, 398-99 (1987); Skipper
v. South Carolina, 476 U.S. 1, 4 (1986); Eddings v. Oklahoma, 455 U.S. 104, 110-12 (1982); Bell v. Ohio,
438 U.S. 637, 642 (1978).
         2
           The Court in Woodson explained the mitigation requirement as follows: “In Furman, members
of the Court acknowledge what cannot fairly be denied that death is a punishment different from all other
sanctions in kind rather than degree. A process that accords no significance to relevant facets of the
character and record of the individual offender or the circumstances of the particular offense excludes from
consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating
factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated
offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to
be subjected to the blind infliction of the penalty of death.” Woodson, 428 U.S. at 303-04 (internal
citations omitted).
No. 08-4019         Dixon v. Houk                                                 Page 15


Nevertheless, a recent case in this circuit has assumed without discussion that harmless
error analysis applies. Campbell v. Bradshaw, 674 F.3d 578, 596-97 (6th Cir. 2012) (no
discussion of whether harmless error analysis applies in cases of failure to allow
mitigating evidence in capital cases and no consideration of the “death is different”
principle that requires mitigating evidence, as explained in Woodson, supra). I will
therefore assume that the federal harmless error doctrine is applicable to the Lockett line
of cases even though the Supreme Court has never so ruled but rather has treated Lockett
as a reversible per se rule.

        The mitigating evidence here was the fact that Dixon at age 19 spent 234 nights
in jail for crimes he never committed. Dixon faced perhaps the rest of his life in prison
after he was charged with rape and aggravated burglary in the fall of 1992. However, it
wasn’t until nearly 8 months later, when DNA and fingerprint evidence conclusively
proved his innocence, that he walked out of jail. Before this incident, Dixon did not have
an adult record and had never spent time in an adult facility. Just three months into this
wrongful imprisonment term, a psychological evaluation revealed that he suffered from
“anxiety and depression,” was experiencing “personal family problems,”and had “doubts
about his emotional stability.” (Pet. for Postconviction Relief, Ex. D, Ericson Report,
Oct. 21, 1996). He told the psychologist that “he had anger which built up.” Id.

        Just four months later, without having undergone any treatment or rehabilitation
for this wrongful incarceration, Dixon committed the brutal murder for which Ohio has
now condemned him to die. The jury never heard evidence of the psychological trauma
of his time in jail. The jury had no context for his statements to detectives when he told
them that he had “no faith in the system anymore.” Dixon Apx. Vol. 2. Pg. 1237. The
judge simply determined that this evidence was irrelevant, despite his counsel’s argument
that this information might give the jury some understanding of his mental state “because
No. 08-4019             Dixon v. Houk                                                         Page 16


he had suffered a pretty outrageous injustice himself, and he was an angry young man.”
Jt. Apx. Pg. 291.3

        The Ohio Supreme Court found that the exclusion of this mitigating evidence was
error under state law for the same reasons that the Woodson case found that its admission
was necessary to avoid an unconstitutional, mandatory death penalty law. But the Ohio
Supreme Court, without any further explanation, concluded that the error was harmless
under state law:

        Finally, the trial court’s exclusion of proposed evidence regarding
        Dixon’s prior incarceration on rape charges was harmless. Defense
        counsel had intended to introduce evidence that, prior to the murder,
        Dixon was exonerated after spending several months in jail on rape
        charges. The trial court should have permitted this evidence to be
        submitted for the jury’s consideration as a mitigating factor pursuant to
        R.C. 2929.04(B) because it fits within the “history, character, and
        background of the offender.” See State v. Stumpf (1987), 32 Ohio St.3d
        95, 100-101, 512 N.E.2d 598. See, also, State v. White (1999), 85 Ohio
        St.3d 433, 448, 709 N.E.2d 140. Nevertheless, our independent
        reassessment of the sentence will minimize any prejudicial impact. State
        v. Lundgren (1995), 73 Ohio St.3d 474, 486, 653 N.E.2d 304, citing State
        v. Landrum (1990), 53 Ohio St.3d 107, 115, 559 N.E.2d 710.

State v. Dixon, 805 N.E.2d 1042, 1057 (2004). The Ohio Supreme Court did not offer
any explanation for its harmless error ruling, but there is a body of psychological and
psychiatric literature that makes clear that such exoneration evidence is mitigating and
neither “irrelevant” nor weak and insignificant.




        3
            At the trial Dixon’s lawyer argued to the trial judge:

        MR. GEUDTNER: We believe it’s a (B)(7) [statutory] factor, and, quite frankly, we’re
        going to argue that the jury can infer from that experience the defendant in the months
        following his release was a rather embittered and enraged young man.

        THE COURT: Based upon the arguments of counsel and the review of Section
        2929.04(B) of the Ohio Revised Code, the Court finds that the proposed evidence
        suggested by the defense is not relevant to any of the mitigating factors and will not
        permit you to put that in.

(Tr. 932-33)
No. 08-4019         Dixon v. Houk                                                   Page 17


        A few excerpts from the literature will demonstrate that excluding the evidence
from the jury should not be labeled “harmless error.” We cannot know now how much
jurors would have been influenced by the exoneration evidence and how the discussion
of the death penalty in the jury room would have changed. But certainly no one can
confidently predict that it would not have been discussed as a serious basis for sparing
Dixon’s life. It should not have been swept under the rug at the trial or on appeal, nor
should this violation of the Lockett line of cases be swept under the rug in order to avoid
a retrial of the mitigation phase of the case. It is our duty to see that individuals are not
executed in the face of uncontested constitutional violations.

        Adrian T. Grounds, a British forensic psychiatrist who is senior lecturer at the
University of Cambridge, reported his findings in “Understanding the Effect of Wrongful
Imprisonment,” 32 Crime & Justice 1, 2, 41-43 (2005). Based on a number of studies,
he reports:

        The clinical findings from the psychiatric assessments indicated prevalent
        and often severe mental health and adjustment problems. After release,
        most men were described by their families and others as changed in
        personality and features of post-traumatic stress disorder and additional
        depressive disorders were common. The men reported persisting
        difficulties of psychological and social adjustment, particularly in close
        relationships. They described estrangement, difficulty in restoring
        intimate and family relationships, and complex experiences of loss . . .
        ....
        It is now recognized that widely differing kinds of trauma can produce a
        similar set of clinical symptoms. Saporta and van der Kolk (1992)
        suggest that traumatic events have four common features. First, they
        seem incomprehensible: they threaten the individual’s basic assumptions
        about himself and his world. Second, they rupture attachments to others,
        and subsequent long-term difficulties in forming relationships are
        common.       Third, the traumatic situation is inescapable and
        overwhelming. Fourth, traumatic events cause extreme physiological
        arousal leading to a persistent hypervigilance and sense of threat. These
        features also characterized the experiences described by the wrongly
        convicted men. The war veteran literature may be particularly
        illuminating because the forms of stress experienced by combat veterans
No. 08-4019        Dixon v. Houk                                                 Page 18


       are also likely to be chronic and may be associated with long periods of
       separation from families.
       ....
       There did not appear to be an obvious relationship between duration of
       custody and severity of outcome. The most distressed and severely
       psychiatrically disabled men included some who had served the shortest
       periods and some who had served very long periods. Likewise, previous
       experience of imprisonment did not obviously appear to protect against
       adverse outcomes.

Id. Other studies also prove the importance of allowing jurors an opportunity to consider
the post-traumatic-type effects of wrongful imprisonment.         Delaney, Findley and
Sullivan, Exonorees’ Hardships After Freedom, Wisconsin Lawyer, Feb. 2010, at 18:

       Imprisonment has powerful effects. Prison rules tend to create a
       dependence on institutional structures. To survive in prison, some
       inmates embrace aggression to avoid victimization. Others become
       isolated and withdrawn, exhibiting behavior resembling clinical
       depression. Some researchers think incarceration causes a form of post-
       traumatic stress disorder.
       Wrongful incarceration compounds these typical effects of
       imprisonment in ways that are only beginning to be understood.
       Anecdotal evidence suggests that wrongfully incarcerated individuals
       experience rage and institutional mistrust while imprisoned.

       Another example in the literature is Scott, Leslie, “It Never, Ever Ends”: The
Psychological Impact of Wrongful Conviction, American University Criminal Law
Briefs, no. 2, at 10 (2010).

       Although exonorees suffer different types of mental illness, and to
       varying degrees, after spending time in prison for crimes they did not
       commit, one thing is certain — they all suffer. According to a Michigan
       study, many exonerated individuals grapple with emotional problems
       after they have been released, many are angry, and some resort to crime.

Therefore, because the exclusion of the exoneration evidence is clear constitutional error
under the Lockett line of cases and because it seems likely that at least one juror may
have found the evidence troubling enough to spare Dixon’s life, I believe the writ should
No. 08-4019        Dixon v. Houk                                                  Page 19


issue and the penalty phase of the case retried. Death is different, and we have a clear
duty to see that executions do not go forward in the face of an unexplained, unanalyzed
“harmless error” label used as a cover to disregard a longstanding constitutional rule.

       Neither this court nor the Supreme Court should permit the taking of life by state
execution when there is a blatant violation of the Lockett rule. Both the Ohio courts and
this court have turned the rule into a matter of judicial discretion so that there is no
longer any pretense that there is any uniformity from state to state in the administration
of the death penalty.

       On the issue raised by petitioner concerning rehearing by the panel, I adhere to
my dissenting opinion arguing that the state court’s exclusion of mitigating evidence
regarding petitioner’s wrongful incarceration was unconstitutional. That evidence shows
that petitioner was wrongly incarcerated for almost a year for a crime he did not commit.
When that mitigating evidence is added to the mitigating evidence that petitioner’s
counsel erroneously failed to offer, as carefully described in Judge Cole’s first opinion
in this case, Dixon v. Houk, 627 F.3d 553, 559-568 (6th Cir. 2010) (Cole, J., concurring),
rev’d sub nom. Bobby v. Dixon, 132 S. Ct. 26 (2011), it is clear that his trial jury had no
idea about petitioner’s unusually cruel and brutal treatment as a child or his long
wrongful incarceration at the hands of the state. Had these mitigating factors come
before the jury, one or more jurors might well have spared his life.
