                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 17a0048n.06

                                            No. 13-4253                                   FILED
                                                                                    Jan 20, 2017
                           UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT

ROBERT WILLIAMS, JR.,                                      )
                                                           )
       Petitioner-Appellant,                               )
                                                           )      ON APPEAL FROM THE
v.                                                         )      UNITED STATES DISTRICT
                                                           )      COURT FOR THE NORTHERN
MARC C. HOUK, Warden,                                      )      DISTRICT OF OHIO
                                                           )
       Respondent-Appellee.                                )
                                                           )

BEFORE: COLE, Chief Judge; WHITE, and DONALD, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Petitioner Robert Williams, Jr. was convicted by

an Ohio jury of the aggravated murder, aggravated robbery, and rape of 88-year-old Velma

McDowell, as well as the aggravated burglary of McDowell’s apartment.                 Williams was

sentenced to death for McDowell’s murder and to three consecutive 10-year terms of

imprisonment for the rape, robbery, and burglary.              The Ohio courts upheld Williams’s

convictions and death sentence on direct appeal and in state postconviction proceedings.

Williams then petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting 19

grounds for relief. The district court denied the petition, but granted a certificate of appealability

as to six claims and parts of a seventh. On appeal, however, Williams makes only two claims:

(1) the videotape of his custodial interrogation was admitted at trial in violation of Miranda v.

Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451 U.S. 477 (1981); and (2) he

received ineffective assistance of counsel during the mitigation phase of his trial in violation of
No. 13-4253, Robert Williams, Jr. v. Marc Houk


Strickland v. Washington, 466 U.S. 668 (1984). Because the Ohio courts did not unreasonably

apply clearly established federal law, we AFFIRM.

                                        I. Background

       The facts of this case, as described by the Ohio Supreme Court, are as follows:

       On the evening of February 17, 1999, Troy Presnell and Williams were visiting at
       the home of Presnell’s mother, who lived in Apartment 3 at Glendale Terrace.
       Williams and Presnell left in order to panhandle, and then they drank and shot
       pool at a local bar. Presnell paid for the drinks because he thought Williams had
       no money.

               Around 12:00 a.m., February 18, Williams and Presnell returned to
       Apartment 3 at Glendale Terrace. Shortly thereafter Williams left again. Wanda
       Richards, who also lived at Glendale Terrace, saw Williams leave Apartment 3
       around 12:00 a.m. When Williams came out, he looked at Richards, who was in a
       wheelchair, and asked her if she was watching him walk up and down the hall.
       After Richards replied that she was on her way home, Williams offered to “push
       [her] home.” Richards declined, stating that she had to go home quickly and call
       a friend or someone would come looking for her.

              Around 12:20 a.m., Williams came back to Apartment 3 and showed
       Presnell between $400 and $500, which he shared with Presnell. When he did so,
       Williams remarked, “This is how you panhandle.” The next day, Williams told
       Presnell that he had bought a car.

               That morning, around 9:00, February 18, Shirley Green, Velma’s[1]
       younger sister, discovered Velma’s body in Velma’s apartment. She was lying on
       the bed sideways. Her body was naked, and her legs were spread. Green, the
       police, and emergency medical personnel initially believed that Velma had died of
       natural causes. Green noticed that the door to Velma’s apartment was locked,
       which was unusual because Velma normally kept that door unlocked. Velma’s
       purse was in the apartment and had $1,100 in it.

              Later that same morning, Dr. Diane Scala-Barnett, deputy coroner,
       examined Velma’s body, concluded that she was a homicide victim, and notified
       police. Dr. Scala-Barnett observed bruises on Velma’s eye, ear, left cheek,
       mouth, jaw, wrist, left breast, and foot. Dr. Scala-Barnett found bruises on
       Velma’s vagina, which was filled with blood.

       1
        The Ohio Supreme Court consistently referred to McDowell by her first name, and we
preserve that practice when quoting the court’s opinion. We intend no disrespect to the
deceased.


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No. 13-4253, Robert Williams, Jr. v. Marc Houk



               Dr. Scala-Barnett also found that a cloth had been stuffed into Velma’s
       mouth. Dr. Scala-Barnett noted that one would not voluntarily stuff a rag into
       one’s own mouth. Dr. Scala-Barnett found a human hair on the rag that was later
       determined to be a “Negroid pubic hair.” Velma was a Caucasian. Dr. Scala-
       Barnett concluded that the rag did not cause Velma to suffocate; instead, she
       “died of asphyxia due to ligature strangulation.” The strangulation marks were
       consistent with having been caused by a bloodied pair of women’s hose found
       inside the entrance to Velma’s apartment.

               When police officers examined Velma’s apartment that afternoon, they
       found no signs of forced entry; however, detectives discovered a latent palm print
       and a fingerprint identified as Williams’s in the hallway and on the molding of the
       entry door leading into Velma’s apartment.

                In Velma’s bedroom, forensic technicians found Velma’s blood on the
       carpet beside her bed and on a bed pillow. Technicians found other stains on
       Velma’s bed, on the rug beside the bed, and on a tissue found in the bathroom.
       These stains fluoresced under alternate lighting, indicating the presence of a
       bodily fluid, i.e., semen. On the basis of an initial DNA test, an expert concluded
       that the DNA type found in the semen stains matched Williams’s DNA and
       occurs in one of 90,100 Caucasians, one of 5,680 African-Americans, and 1 of
       22,200 Hispanics. Another DNA expert, who conducted more sophisticated DNA
       tests, testified that the DNA in the semen from Velma’s apartment, identical to
       Williams’s DNA, was found in only one of 5.4 quadrillion Caucasians and one of
       156 quadrillion African-Americans.

              On the morning of February 22, police went to the home of Williams’s ex-
       wife to question him about Velma’s death. When the police car drove up,
       Williams ran away. Police Sergeant Steve Forrester chased him on foot for 30
       minutes. At one point, Forrester drew his weapon and cornered Williams, who
       responded, “Fuck it, just shoot me.” Williams then evaded Forrester, but two
       uniformed police officers later apprehended him.

State v. Williams, 793 N.E.2d 446, 454–55 (Ohio 2003) (alteration removed) (hereinafter

“Williams II”).

       In addition to the 30-minute foot chase, Williams’s arrest was unusual for another reason:

       At the scene of the arrest, Alan Penamon, an attorney, approached Sgt. Forrester
       and told him that he was an attorney. Penamon also told Forrester, “I don’t want
       you to take a statement from [Williams] until I talk with him.” Forrester replied
       that it was up to Williams to invoke his Miranda rights, but police did not
       question Williams at the scene.



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Id. at 456 (alteration in original) (footnote omitted).2 Further, Penamon was informed that “if he

needed to talk to Williams, they were going to take [Williams] to the station.” Id. at 457.

Meanwhile, Williams “was screaming, cursing, and struggling to get free.” Id. at 456. Among

other things, Williams yelled, “Allen” and “that’s my attorney Allen.” Id.

       Despite   this,   detectives   eventually   interrogated   Williams   without   Penamon’s

involvement. As the Ohio Supreme Court explained:

               After police had taken Williams to the police station, Penamon went to the
       visitors’ area at the police station and asked to talk with Williams. Neither Lt.
       Hunt nor Sgt. Forrester, the responsible officers at the station, immediately
       responded. Lt. Hunt stated that approximately 10 to 15 minutes after he knew that
       Penamon was there, he went to see what Penamon wanted. But Penamon had
       already left. Also, when Forrester went to see Penamon at the visitors’ area,
       Penamon had already left. The evidence does not indicate that police told
       Williams that Penamon had come to the station and had asked to talk with him.

               At the station, Detectives Bart Beavers and Mauro advised Williams of his
       Miranda rights. Williams orally waived his rights and signed a waiver of those
       rights at 8:50 a.m. Williams did not ask to see Penamon or any other lawyer,
       decline to answer questions, or invoke his right to remain silent. At the beginning
       of the interview, Williams asked why the police had chased away his lawyer when
       he was arrested on the street. Detective Mauro responded that they would not
       discuss the case on the street and that Penamon was informed that if he needed to
       talk to Williams, they were going to take him to the station. . . .

Id. at 457. Further, in the course of this conversation, Williams confirmed his understanding of

his Miranda rights by stating “[a]t any time I can stop,” and his willingness to continue by

stating “I’m gonna talk to you.” (Video, State’s Trial Ex. 92 at 8:48-8:50 a.m.)

       This interview eventually provided substantial evidence of Williams’s guilt:

       For 30 to 40 minutes, Williams described his activities on February 17 and 18 and
       denied that he was involved in Velma’s death.




       2
         Penamon’s first name is properly spelled “Alan,” but it also appears in the record as
“Allan” and “Allen.” Williams II, 793 N.E.2d at 456 n.1.


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No. 13-4253, Robert Williams, Jr. v. Marc Houk


                The police paused the interview and took photographs of a cut on
        Williams’s hand, possibly caused by stuffing the rag down Velma’s throat. After
        these photographs were taken, Police Lieutenant Charles Hunt, who had not
        previously interviewed Williams, questioned Williams. Lt. Hunt told Williams
        that the police knew that he was guilty, that he was going to be charged with
        murder, that police had found his fingerprints and semen in Velma’s apartment,
        and that witnesses had seen Williams flashing money that he did not have before.
        When confronted with these facts, Williams responded, “I told her not to put that
        rag in her mouth.”

                Williams asserted to police that he and Velma voluntarily had sex three or
        four times over the previous two weeks. Williams claimed that on the night that
        she died, he stopped by her apartment, and she invited him in and asked him if he
        wanted to have sex with her. According to Williams, Velma placed the cloth rag
        over her mouth while they were having sex to muffle her sounds of pleasure and
        screaming. When Williams noticed that she was gagging, he panicked and left
        the apartment.

                Then, Lt. Hunt confronted Williams with the fact that Velma had not
        choked to death but was strangled. In response, Williams stated that he had
        returned to the apartment and strangled Velma with a pair of pantyhose to make it
        appear as if a stranger had killed her. Williams continued to deny that he had
        stuffed the cloth in her mouth. He admitted, however, that he had ejaculated on
        the floor near her bed and that he had taken $300 from her purse.

Williams II, 793 N.E.2d at 455.

        Further, Williams later made additional inculpatory statements:

                That afternoon, Williams was booked into the Lucas County Jail, where a
        nurse obtained a blood and a DNA sample from him. While the nurse took the
        blood sample, Williams “made a couple of statements to himself.” Williams
        stated, “My dick got me in trouble” and “I ought to cut it off.” Shortly thereafter,
        Williams said, “I guess I won’t be screwing any more old ladies.” At the time, no
        police officers were questioning Williams. He blurted out these statements on his
        own volition and to no one in particular.

Id. at 456.
                                     II. Procedural History

                                     A. Pre-trial Proceedings

        Following Williams’s arrest, he was indicted for aggravated felony-murder, rape, and

aggravated burglary. Williams II, 793 N.E.2d at 456. The murder charge included three death



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No. 13-4253, Robert Williams, Jr. v. Marc Houk


penalty specifications: murder during rape, murder during aggravated robbery, and murder

during a burglary. Id. Two issues that arose before trial are relevant to this appeal.

       First, Williams moved to suppress the statements he made to police during his videotaped

interview on the grounds that the police had violated his right to have the assistance of counsel

during custodial interrogation. The state trial court held a suppression hearing. Penamon was

present at the hearing. But defense counsel decided not to call Penamon as a witness after the

court stated its view that doing so would waive the attorney-client privilege. Based on the

evidence that was presented—testimony from the officers involved in Williams’s arrest and

interrogation, the Miranda waiver form, and excerpts of the videotape of the interrogation—the

state trial court denied Williams’s motion to suppress, finding that Williams had not invoked his

Miranda right to counsel, and, further, that Williams’s waiver of his Miranda rights was valid.

       Second, in the month prior to Williams’s August 9, 1999, trial date, the state trial court

held a series of pretrial hearings to address the possibility of a continuance. The issue arose

primarily because the prosecution had recently received, and then disclosed to defense counsel,

extensive documentation related to Williams’s prior adult and juvenile offenses, his family

background, and his mental health history.

       On July 16, 1999, defense counsel told the court they had advised Williams that they

were “of the professional opinion that some more time [wa]s needed to delve into” that evidence,

but that Williams “d[id] not agree,” and “wishe[d] to proceed on [August] 9th.” (Pretrial Hr’g

Tr., R. 18, Vol. 1, Jul. 16, 1999 at 3.) For its part, the prosecution informed the court that it did

not object to a reasonable continuance, but that if Williams insisted on going to trial on August 9,

that decision should operate as a waiver of the opportunity to further investigate issues raised by

the newly-disclosed evidence. In response to a question from the court, defense counsel then



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No. 13-4253, Robert Williams, Jr. v. Marc Houk


clarified that Williams “want[ed] to go the 9th even over our strong recommendation against”

doing so. (Id. at 10.) And the prosecution further clarified its position that “what we are most

concerned about” was “mak[ing] sure this man has a fair trial” and “that he gets all the

mitigation preparation time he needs.” (Id. at 11.)

       The court then inquired of Williams, and learned that Williams was deeply dissatisfied

with the course of the proceedings. Williams acknowledged his attorneys’ advice that the trial

should be delayed.     But he also repeatedly found fault with his attorneys’ performance,

challenged the court’s prior ruling not to suppress his videotaped interview, implied that his

attorneys and the court were collaborating with the prosecution, and asserted that, as a black

man, he would not receive a fair trial. In particular, Williams stated that he did not “want to have

these lawyers,” and requested the court assign him new counsel. (Id. at 16–17.)

       The court, after discussing these complaints with Williams, the prosecutor, and defense

counsel, informed Williams that it would grant his request for new defense counsel, “with the

understanding that that is going to result in the continuance of the trial” and “that will constitute

a waiver of your speedy trial rights.” (Id. at 36–37.) Williams, however, refused to agree and

continued to oppose the idea of delaying his trial for any reason. The court then asked Williams

directly whether he wanted to keep his current counsel. Williams responded: “Yeah, I’m going

to die anyway might as well keep them.” (Id. at 39.)

       After an off-the-record conference with counsel, the court recessed to allow defense

counsel to confer with Williams. When the hearing resumed, defense counsel informed the court

that “Mr. Williams ha[d] vacillated between” wanting to keep his present counsel and wanting

new counsel. (Id. at 40.) Defense counsel therefore requested a continuance of a few days to

consult with an ethics official from the local bar association regarding whether they could



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No. 13-4253, Robert Williams, Jr. v. Marc Houk


continue to represent Williams under the circumstances, particularly given the accusations of

inadequate performance. The court granted that request.

         The pretrial hearing resumed on July 19. Defense counsel told the court that they had

been advised that the applicable ethics rules did not prohibit them from continuing to represent

Williams. However, defense counsel asked the court to inquire of Williams to confirm that

Williams was satisfied with them. The court then asked Williams whether he wanted to keep his

present counsel, and Williams answered: “Yes.” (Pretrial Hr’g Tr., R. 18, Vol. 1, Jul. 19, 1999

at 4.) In response to further questions, Williams also clarified he was sufficiently satisfied with

his attorneys’ performance to have them continue to represent him, and that he was withdrawing

his request for new counsel. Williams was not willing, however, to decide whether to waive his

speedy trial rights and continue the trial date, or to proceed on August 9. Defense counsel

therefore requested, and the trial court granted, another continuance of the pretrial hearing.

         The parties were back in court on July 23. Defense counsel opened by informing the

court that they had advised Williams “to continue the case so we can constitutionally give him

[an] effective defense,” but that Williams “wish[ed] to go on August 9th.” (Pretrial Hr’g Tr., R.

18, Vol. 1, Jul. 23, 1999 at 3.) The court then asked defense counsel directly: “[I]f this matter

proceeded to trial August 9th, would you . . . be prepared and able to provide effective assistance

of counsel to Mr. Williams?” (Id. at 4.) Counsel responded:

         [C]an we be prepared? Yes. Do we want more time? Yes. We could do a better
         job, we believe, but we believe we would be within the bounds of giving effective
         counsel. It’s just that our legal decision would be to get further time to just to be
         able to prepare more.

(Id. at 4.) Prompted by the prosecution, the court then asked: “You are looking for more time

for developing additional mitigation efforts?” (Id. at 5.) Defense counsel answered: “Yes.” (Id.

at 5.)

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No. 13-4253, Robert Williams, Jr. v. Marc Houk


       The following dialogue then took place:

       THE COURT:           And Mr. Williams . . . have you discussed with your
                            attorneys . . . their request and suggestions that the case be
                            continued so that they can have further time available for
                            preparation?

       THE DEFENDANT: Yes.

       THE COURT:           And have they explained to you their reasons for seeking a
                            continuance[?]

       THE DEFENDANT: Yes.

       THE COURT:           Okay. And from what they’ve explained to me[,] and
                            we’ve discussed this a little bit last week as well, do you
                            feel that you do not wish to continue this case and proceed
                            on August 9th?

       THE DEFENDANT: Yes.

       THE COURT:           Okay. Do you understand your attorneys’ concerns about
                            having more time for preparation and I guess it’s
                            specifically for any mitigation phase of the trial, if that’s
                            necessary?

       THE DEFENDANT: Yes.

       THE COURT:           And understanding that and discussing it with your
                            attorneys it’s your desire not to follow their advice and to
                            not consent to a continuance of the trial, is that right?

       THE DEFENDANT: Say that again, please?

       THE COURT:           Okay, let me say it again. You understand their reasons for
                            requesting a continuance of the trial, is that right?

       THE DEFENDANT: Yes.

       THE COURT:           Okay. And understanding why they want to proceed with a
                            continuance, it’s your desire and your decision not to
                            continue the case?

       THE DEFENDANT: Yes.




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No. 13-4253, Robert Williams, Jr. v. Marc Houk


        THE COURT:           And you want your attorneys to try the case on August 9th,
                             and not have the matter continued to a later date, is that
                             right?

        THE DEFENDANT: Yes.

        ...

        THE COURT:           I want to make sure it’s clear on the record that you do not
                             want more time and you want this trial to proceed on
                             August 9th, that’s what you want, right?

        THE DEFENDANT: Yes.

        THE COURT:           Then, I will indicate for the record, that I’ve discussed this
                             with Mr. Williams, and at his decision and despite the
                             advice of his attorneys, this matter will proceed to trial on
                             August 9th, and I expect both the State of Ohio and the
                             defense to be ready on that day.

(Id. at 9–10.)

                                            B. Trial

        As he requested, Williams’s trial began on August 9, 1999. The prosecution presented

witness testimony regarding Williams’s activities before and after McDowell’s death; the

forensic evidence recovered from McDowell’s apartment; photographs of the scene, including of

McDowell’s body; the videotape of Williams’s interview by detectives; and testimony regarding

Williams’s impromptu statements during booking that “[m]y dick got me in trouble,” and “I

guess I won’t be screwing any more old ladies.” See Williams II, 793 N.E.2d at 454–56. The

only evidence offered by the defense was testimony confirming that police did not secure the

crime scene for several hours because they originally thought McDowell had died of natural

causes. Id. at 456. The jury found Williams guilty on all counts, and also found all three

death-penalty specifications applicable. See id.




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No. 13-4253, Robert Williams, Jr. v. Marc Houk


       The penalty-phase hearing was relatively brief. With the jury having already found

that Williams had murdered McDowell while committing rape, aggravated robbery, and

aggravated burglary, the prosecution simply reintroduced its trial exhibits, and presented no

additional evidence.

       Williams began by presenting testimony from his two sisters, each of whom testified as

to Williams’s extremely troubled childhood and the beatings and other physical abuse he

suffered, particularly at his mother’s hands. He also presented testimony from his mother, who

emphasized that Williams’s father had been a negative influence when present at all, and that

Williams had grown up without a positive male role model. She also acknowledged that she

sometimes beat Williams when he was a child.

       Williams then called his retained expert, clinical psychologist Christopher Layne, Ph.D.

Dr. Layne had met with Williams twice, administered various tests, reviewed certain of

Williams’s medical and mental health records, and interviewed one of Williams’s sisters. “Dr.

Layne described Williams’s dysfunctional family, his irresponsible parents, the abuse heaped

upon him as a child, his chaotic upbringing, and his mental and emotional problems, such as

paranoia and ‘psychotic like’ symptoms.” Williams II, 793 N.E.2d at 468. Dr. Layne also

“testified that if Williams had received proper discipline, counseling, and psychiatric treatment

as he was growing up, ‘the probability would be low that we would be sitting here.’” Id.

(alteration removed).

       Dr. Layne’s testimony, however, may have done more harm to Williams than good.

Dr. Layne testified that, despite multiple head injuries, Williams had not suffered brain damage.

And his description of Williams was stark. Dr. Layne testified that, by age 16, Williams was “a

guy that could [not] care less who[m] he hurt or what he d[id],” and who had “calcif[ied] into



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No. 13-4253, Robert Williams, Jr. v. Marc Houk


basically a bad person.” (Mitigation Hr’g Tr., R. 18, Vol. 10, at 83–84, 99.) Defense counsel

asked: “what is Robert today?” Dr. Layne answered: “Well, I think that today he is a hardened

gutless criminal.” (Id. at 100.) Further,

       [d]uring cross-examination, Dr. Layne disclosed that Williams had committed
       various sex offenses when he was 12 to 16 years old. He assaulted boys and girls
       in his neighborhood as well as one of his sisters. He had spent more than a
       decade in institutions for criminals, and does not take responsibility for anything
       he does.

Williams II, 793 N.E.2d at 472. When asked what could be done to treat Williams, Dr. Layne

told the jury: “I don’t think there is anything we can do,” and that “treatment, counseling is

probably a waste of time now,” but that Williams would become less dangerous with age.

(Mitigation Hr’g Tr., R. 18, Vol. 10 at 101–02, 111–12.)

       Finally, Williams made an unsworn statement to the jury, saying that he did not really

remember the night of McDowell’s death, but that he was sorry about what had happened.

Williams II, 793 N.E.2d at 472.

       The jury recommended the death penalty. The trial court sentenced Williams to death

on the aggravated felony-murder count and to consecutive prison terms of ten years each on

the remaining counts. Id. at 454–56.

                                  C. Subsequent State Proceedings

       Williams’s direct appeal and state postconviction proceedings took place concurrently.

In postconviction proceedings, Williams petitioned for relief on 14 separate grounds, including

both the Miranda/Edwards and Strickland issues presented in this appeal. The state trial court

denied relief and, as relevant here, that decision was affirmed by the Ohio Court of Appeals




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in 2002. State v. Williams, 777 N.E.2d 892 (Ohio App. 2002) (hereinafter “Williams I”).3

The Supreme Court of Ohio denied review, State v. Williams, 839 N.E.2d 403 (Ohio 2003)

(mem.), and the United States Supreme Court denied certiorari, Williams v. Ohio, 541 U.S.

963 (2004) (mem.). Meanwhile, on direct appeal, Williams raised 20 different issues directly

with the Ohio Supreme Court. See Ohio Rev. Code § 2929.05(A). In 2003, the court denied

relief on all of those claims, and also independently found the death sentence appropriate.

Williams II, 793 N.E.2d at 456–73. Certiorari was not sought.

                              1. The Miranda and Edwards Claims

       Williams raised his Miranda and Edwards claims—that he was improperly denied

access to counsel during his custodial interrogation—both on direct appeal and in state

postconviction proceedings. The state postconviction trial court reached the issue first, and held

that Williams’s Miranda and Edwards claims were barred by Ohio’s doctrine of res

judicata. The state postconviction court of appeals agreed. Williams I, 777 N.E.2d at 897–

98 (citing State v. Perry, 226 N.E.2d 104 (Ohio 1967)). The appellate court also found

Williams’s attempt to support his claims with a postconviction affidavit from Penamon

unavailing. Id. at 898. The court explained that the information in Penamon’s affidavit had

been available to defense counsel at the time of the suppression hearing, that “trial counsel

decided not to call attorney Penamon for tactical reasons,” and, therefore, “the issue of

       3
          The state appellate court did remand for further fact-finding on Williams’s claim that
his rights were violated because court personnel were inappropriately involved in a group prayer
with the jurors. Id. at 899–901. The state trial court subsequently heard evidence on that claim
and denied relief, the Court of Appeals of Ohio affirmed, and the Supreme Court of Ohio denied
review. State v. Williams, 839 N.E.2d 403 (Ohio 2005) (table); State v. Williams, 832 N.E.2d 783
(Ohio App. 2005). Williams repeated this claim in his federal habeas petition, but the district
court denied relief and declined to grant a certificate of appealability on that claim. Williams did
not seek to expand the certificate of appealability, so the jury-prayer issue is not before this
court.


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which appellant complains was or could have been raised at trial or on direct appeal and is,

therefore, properly the subject of the application of the doctrine of res judicata.” Id. Thus,

the state postconviction courts did not reach the merits of the Miranda/Edwards claims.

       One year later, however, the Supreme Court of Ohio addressed the merits of the

Miranda and Edwards claims on direct appeal. See Williams II, 793 N.E.2d at 456–60. The

court denied those claims, holding that Williams had not unambiguously invoked his right to

counsel, that he had validly waived that right, and that the admission of the videotaped interview

was, in any case, harmless, because other “compelling evidence established Williams’s guilt.”

Id.

                                     2. The Strickland Claims

       Williams asserted violations of his Sixth Amendment right to the effective assistance of

counsel during the mitigation phase of his trial both on direct appeal and in the postconviction

proceedings, but the bases for his claims were slightly different.

       On direct appeal, being limited to the trial record, Williams argued that the decision to

call Dr. Layne “provided no useful defense evidence and affirmatively damaged the case for a

life sentence.” Williams II, 793 N.E.2d at 467. The Ohio Supreme Court denied that claim on

the merits, reasoning that “[t]he decision to call Dr. Layne represented a reasonable professional

judgment based on the theory that if jurors knew Williams’s background and history, and how

and why he developed into the person that he was, they would be less likely to recommend

death.” Id. at 468. The court also held that “Williams has not established prejudice,” because

omitting Dr. Layne’s testimony would not have created “a reasonable probability . . . that the

result of the trial would have been different.” Id. (citation omitted).




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       In postconviction proceedings, Williams expanded his Strickland claim. Williams argued

that his attorneys were ineffective during the mitigation phase because: (1) they failed to

adequately investigate, prepare, and present available mitigating evidence related to the sexual

abuse Williams suffered as a child; (2) they failed to present an expert who was qualified and

able to address issues specific to sex offenders; (3) they presented an incompetent expert—Dr.

Layne; and (4) they failed to secure and review Williams’s prior prison records, which Williams

claimed showed he had previously adjusted well to prison life.          Williams submitted new

evidence in support of those claims.

       Williams offered an affidavit from Dorian L. Hall, the supervisor of the mitigation

section of the Office of the Ohio Public Defender. Hall averred that Williams’s trial counsel

contacted him in “early July 1999” for assistance preparing the mitigation portion of Williams’s

defense. (Hall Aff., R. 16, Vol. 8 at 178.) Hall then attended the July 16, 1999, pretrial

conference. Hall advised defense counsel that his office could not provide mitigation services

unless the trial was continued. As discussed above, the trial remained set for August 9 solely on

Williams’s insistence. See discussion supra Section II.A. Despite that, Hall and his staff

researched potential mitigation strategies and mailed “the collected research material, comments

from staff, suggestions for witnesses and contacts for additional information” to defense counsel

on July 27. (Hall Aff., R. 16, Vol. 8 at 180.) Among other ideas, Hall “suggested that given the

facts of the crime and Mr. Williams’s juvenile history, the psychological expert needed to

address Mr. Williams’ history of sexual offenses and the sexual nature of the current offense . . .

as well as explain Mr. Williams’ behavior in light of his history.” (Id.) Hall’s staff also

reviewed the available records regarding Williams’s mental health history, “detail[ed] the

contacts with professionals” so that defense counsel could follow up with the clinicians who had



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No. 13-4253, Robert Williams, Jr. v. Marc Houk


examined or treated Williams, and suggested additional records to acquire and review. (Id. at

179.) This information was faxed to counsel on August 2.

       Williams submitted a lengthy new expert report from psychologist Allen J. Brown, Ph.D.

Williams I, 777 N.E.2d at 896. Dr. Brown concluded that Dr. Layne had made numerous errors

in his evaluation of Williams and his testimony at trial. According to Dr. Brown, Dr. Layne had

misinterpreted many of Williams’s prior test results, based his conclusions on outdated ideas

about criminal behavior, and offered opinions based not on psychological knowledge but on

personal beliefs and prejudices. Most importantly, Dr. Brown concluded that Williams does

suffer from neurological impairment.

       Williams also submitted records from his prior terms of imprisonment. However, he

did not submit affidavits from either of the attorneys who had represented him at trial.

       After considering Williams’s evidence and arguments, the postconviction trial court

denied the ineffective assistance claims, finding that Williams had shown neither deficient

performance nor prejudice.      The state appellate court affirmed.      Considering all the

mitigation-phase ineffective assistance claims together, the court concluded that Williams

sought to

       use Dr. Brown’s report to build an alternative theory of mitigation that
       explain[ed] [Williams]’s deviant sexual behavior. [Williams] then s[ought] to
       fault trial counsel for failure to embrace this theory and insist[ed] that trial
       counsel’s performance was deficient for failing to present evidence in support
       of this theory and in not choosing an expert versed in sexual deviance.

Williams I, 777 N.E.2d at 897. But, the court found, “[a] dispute between experts alone

does not show ineffective assistance of trial counsel for failing to present an alternative

view.” Id. at 896. Further, given the deference owed to counsel’s strategic choices, the

court “c[ould not] say that the mitigation theory that trial counsel used, ‘that appellant fell



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No. 13-4253, Robert Williams, Jr. v. Marc Houk


between the cracks,’ was not sound strategy.” Id. at 896–97 (citations omitted). The court

therefore concluded that Williams had failed to show that his counsel’s performance was

deficient. Id. at 897. The court did not reach the prejudice prong of the Strickland inquiry.

See id. at 896–97.

                                  D. Federal Habeas Proceedings

       Williams filed his federal habeas corpus petition in 2006, raising 19 claims. The petition

was fully briefed by May 2007. Williams sought discovery to support his claims that same

month, and Respondent opposed that request. Williams’s discovery request remained pending

until April 2011, when Respondent advised the district court of the Supreme Court’s

intervening decision in Cullen v. Pinholster, 563 U.S. 170 (2011).4 The district court directed

the parties to brief the impact of Pinholster. They did so, and in December 2012 the district

court denied Williams’s request for discovery without prejudice, deciding that, in light of

Pinholster, it would reconsider the request if it later found that Williams had met his burden

under 28 U.S.C. § 2254(d).         A year later, in September 2013, the district court denied

Williams’s habeas petition and dismissed the action, but certified for appeal Claims 1, 2, 7,

12, 13, 14, and some of Claim 11’s subclaims. Williams timely appealed. Williams did not

seek to expand the certificate of appealability.

                                       III. Claims on Appeal

       On appeal, Williams argues that his federal rights were violated when the videotape of

his uncounseled custodial interrogation was played for the jury (Claims 1 and 2) and because he




       4
           The record contains no explanation as to why the case sat dormant for nearly four years.


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No. 13-4253, Robert Williams, Jr. v. Marc Houk


did not receive effective assistance of counsel during the penalty phase of this trial (Claims 12,

13, and 14).5

                                     A. Standard of Review

       In the habeas context, we review de novo the district court’s legal conclusions and its

answers to mixed questions of fact and law. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.

1999) (citing Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998)). The district court’s

independent findings of fact are reviewed for clear error, id., but findings based only on the

district court’s reading of the state court record are reviewed de novo, Slagle v. Bagley, 457 F.3d

501, 513 (6th Cir. 2006).

       Williams filed his federal petition after the effective date of the Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA), so

AEDPA standards govern our review. See Lindh v. Murphy, 521 U.S. 320, 326–27 (1997).

Under AEDPA,

       a federal court may not grant a writ of habeas corpus with respect to any claim
       adjudicated on the merits in state court unless the state adjudication: (1) resulted
       in a decision that was contrary to, or involved an unreasonable application of,
       clearly established federal law, as determined by the Supreme Court of the United
       States; or (2) resulted in a decision that was based on an unreasonable
       determination of the facts in light of the evidence presented in the state court
       proceeding.




       5
          Williams did not address Claim 7 (jury instructions and unanimity) or any of the
certified subclaims from Claim 11 (guilt-phase ineffective assistance of counsel) in his briefs.
He has therefore abandoned those claims. See Robinson v. Jones, 142 F.3d 905, 906 (6th Cir.
1998). Meanwhile, in contrast to the proceedings below, on appeal Respondent does not assert
that the alleged Miranda/Edwards violations were harmless. Respondent has therefore
abandoned that argument. See id. at 906.


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No. 13-4253, Robert Williams, Jr. v. Marc Houk


Cauthern v. Colson, 736 F.3d 465, 473 (6th Cir. 2013) (quoting 28 U.S.C. § 2254(d)). The

petitioner carries the burden of proving that this standard has been met. Pinholster, 563 U.S. at

181.

        It is well-established that:

        [i]n analyzing whether a state court decision is contrary to or an unreasonable
        application of clearly established Supreme Court precedent, a federal court may
        look only to the holdings of the Supreme Court’s decisions, not the dicta. A state
        court decision on the merits is contrary to clearly established Supreme Court
        precedent only if the reasoning or the result of the decision contradicts that
        precedent.

LaMar v. Houk, 798 F.3d 405, 415 (6th Cir. 2015) (citations omitted). And it is equally well-

understood that:

        [t]o violate the unreasonable-application clause, after identifying the correct
        governing legal principle from the Supreme Court’s decisions, the state court
        decision must (a) unreasonably apply it to the facts, or (b) either unreasonably
        extend or unreasonably refuse to extend a legal principle from Supreme Court
        precedent to a new context. The state-court application of Supreme Court
        precedent must have been “objectively unreasonable,” not simply erroneous or
        incorrect.

Id. (citations omitted).

        Finally, we review “the last reasoned state court decision,” Cauthern, 736 F.3d at 473

(citing Pinholster, 563 U.S. at 187–88), and “[s]tate-court factual findings are presumed correct

unless the applicant rebuts them by clear and convincing evidence,” LaMar, 798 F.3d. at 415

(citing 28 U.S.C. § 2254(e)(1)).

                                   B. Miranda and Edwards Claims

        Williams claims that the videotape of his interview by police was improperly

admitted into evidence, and that it was an unreasonable application of Supreme Court

precedent for the Ohio courts to decide otherwise. We disagree.




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No. 13-4253, Robert Williams, Jr. v. Marc Houk


                                      1. Applicable Law

       Before a defendant may be subjected to custodial interrogation:

       He must be warned . . . that he has the right to remain silent, that anything
       he says can be used against him in a court of law, that he has the right to
       the presence of an attorney, and that if he cannot afford an attorney one
       will be appointed for him . . . . Opportunity to exercise these rights must
       be afforded to him throughout the interrogation. After such warnings have
       been given, and such opportunity afforded him, the individual may
       knowingly and intelligently waive these rights and agree to answer
       questions or make a statement. But unless and until such warnings and
       waiver are demonstrated by the prosecution at trial, no evidence obtained
       as a result of interrogation can be used against him.

Miranda, 384 U.S. at 479. And the Supreme Court has held that once a suspect invokes

his Miranda right to counsel, he may not be “subject to further interrogation” unless he

“initiates further communication . . . with the police.” Edwards, 451 U.S. at 484–85.

       To effectively invoke the right to counsel and trigger the Miranda/Edwards

protections, “the suspect must unambiguously request counsel.” Davis v. United States,

512 U.S. 452, 459 (1994). Whether a suspect has done so “is an objective inquiry.” Id.

at 458–59 (citing Connecticut v. Barrett, 479 U.S. 523, 529 (1987)). Thus, the suspect

must “articulate his desire to have counsel present sufficiently clearly that a reasonable police

officer in the circumstances would understand the statement to be a request for an attorney.” Id.

at 459. If a suspect’s statement “fails to meet the requisite level of clarity, Edwards does not

require that the officers stop questioning the suspect.” Id. (citing Moran v. Burbine, 475 U.S.

412, 433, n.4 (1986)). Moreover, not just any reference to an attorney suffices. Interrogation

must cease only

       when the suspect “has expressed” his wish for the particular sort of lawyerly
       assistance that is the subject of Miranda. It requires, at a minimum, some
       statement that can reasonably be construed to be an expression of a desire for the
       assistance of an attorney in dealing with custodial interrogation by the police.



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No. 13-4253, Robert Williams, Jr. v. Marc Houk


McNeil v. Wisconsin, 501 U.S. 171, 178 (1991) (quoting Edwards, 451 U.S. at 484)

(emphasis omitted); see also Barrett, 479 U.S. at 528–29 (holding that the defendant’s

statement that he was willing to speak with police about the incident in question but

would not make a written statement without the assistance of counsel did not preclude

the police from questioning the defendant).

          Further, a suspect may waive his Miranda rights, “provided the waiver is made

voluntarily, knowingly and intelligently.”          Miranda, 384 U.S. at 444.         A Miranda

waiver inquiry

          has two distinct dimensions. First, the relinquishment of the right must
          have been voluntary in the sense that it was the product of a free and
          deliberate choice rather than intimidation, coercion, or deception. Second,
          the waiver must have been made with a full awareness of both the nature
          of the right being abandoned and the consequences of the decision to
          abandon it. Only if the “totality of the circumstances surrounding the
          interrogation” reveal both an uncoerced choice and the requisite level of
          comprehension may a court properly conclude that the Miranda rights
          have been waived.

Moran, 475 U.S. at 421 (citations omitted). As we have said previously:

          [t]he relevant question is not whether the “criminal suspect knew and understood
          every possible consequence of a waiver of the Fifth Amendment privilege,” but
          rather whether the “suspect knew that he could choose not to talk to law
          enforcement officers, to talk only with counsel present, or to discontinue talking
          at any time.”

Garner v. Mitchell, 557 F.3d 257, 261 (6th Cir. 2009) (en banc) (quoting Colorado v. Spring,

479 U.S. 564, 574 (1987)). Whether a waiver was “knowing and intelligent” is determined

based on the “totality of the circumstances,” and the burden is on the defendant to establish that

his waiver was invalid. Id. at 260–61 (citing Clark v. Mitchell, 425 F.3d 270, 283 (6th Cir.

2005)).




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No. 13-4253, Robert Williams, Jr. v. Marc Houk


                       2. Williams’s Statements at the Time of His Arrest

       Williams asserts that he made an unambiguous request for counsel during his arrest. But

the testimony at the suppression hearing established only that Williams yelled attorney Alan

Penamon’s name and “that’s my attorney.” (Suppression Hr’g Tr., R. 18, Vol. 1 at 38.) Given

the record before it, the Ohio Supreme Court concluded that “Williams never specifically asked

to see Penamon, and we do not know why he shouted his name.” Williams II, 793 N.E.2d at 445.

That was not “an unreasonable determination of the facts in light of the evidence presented in the

state court proceeding,” 28 U.S.C. § 2254(d)(2), particularly since Williams might have called

out for any number of reasons, including for Penamon’s help with bail. And since Williams

“never specifically asked to see Penamon,” Williams II, 793 N.E.2d at 445, it follows that it was

not unreasonable for the Ohio Supreme Court to conclude that Williams did not “unambiguously

request” the assistance of counsel at the time of his arrest, Davis, 512 U.S. at 459; Williams II,

793 N.E.2d at 445.

       Our decision in Abela v. Martin, 380 F.3d 915 (6th Cir. 2004), cited by Williams, is

distinguishable. In Abela, the suspect was subjected to custodial interrogation in his hospital bed

when he said “maybe I should talk to an attorney by the name of William Evans,” then “showed

[the police officer] Evans’s business card.” Id. at 919. The officer “said he would call [the

suspect]’s attorney for him and left the room presumably to do so.” Id. at 926. But the officer

nevertheless returned and questioned the suspect without the suspect’s attorney present. Id. at

919. We concluded that: “[the officer]’s actions confirm that a reasonable officer would

understand [the suspect]’s statement to be a clear request for counsel” and granted habeas relief.

Id. at 926–27. By contrast, there is no evidence here that police actually understood Williams’s

shouted references to Penamon to be a request for the assistance of counsel, and thus nothing in



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No. 13-4253, Robert Williams, Jr. v. Marc Houk


Abela convinces us that the Ohio Supreme Court unreasonably applied the Supreme Court’s

precedent in this case.

        That alone is enough to resolve the Miranda/Edwards claims arising out of Williams’s

arrest. However, because this is a capital case, we think it appropriate to address additional

arguments raised by the parties.

        Williams argues that we should consider Penamon’s postconviction affidavit because it

was “part of the record in front of the Ohio Supreme Court.” (Reply Br. at 20.) That is true of

Williams’s postconviction appeal, but not of his direct appeal. And AEDPA’s plain language

limits our review to “the evidence presented in the State court proceeding.”           28 U.S.C.

§ 2254(d)(2) (emphasis added). Contrary to Williams’s assertion, nothing in Pinholster supports

the proposition that a federal court reviewing a state court’s decision in one case may consider

evidence that was before the state court in a second case, even if that second case involves the

same defendant. Rather, federal habeas review “is limited to the record that was before the state

court that adjudicated the claim on the merits.” Pinholster, 563 U.S. at 181 (emphasis added).

The Ohio Supreme Court’s decision on direct appeal is the proceeding in which Williams’s

Miranda claims were adjudicated on the merits, so our review is limited to the record in that

case.

        However, even if we were to consider Penamon’s postconviction affidavit, it would not

change our conclusion that the Ohio Supreme Court did not unreasonably apply federal law.

Penamon’s affidavit asserts that “[Williams] was yelling to me and identifying me as his

attorney. [Williams] explicitly indicated that he wanted to talk to me.” (Penamon Aff., R. 16,

Vol. 8 at 189.) Assuming Williams did ask to speak to Penamon at the time of his arrest, it is not




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No. 13-4253, Robert Williams, Jr. v. Marc Houk


clear that this would suffice to validly invoke his Miranda right to counsel.6 A suspect’s

Miranda rights only attach when he is both “in custody” and “subject[] to interrogation.”

Miranda, 384 U.S. at 467. Williams was certainly in custody when he called out to Penamon.

Berkemer v. McCarty, 468 U.S. 420, 434 (1984) (“There can be no question that respondent was

‘in custody’ at least as of the moment he was formally placed under arrest and instructed to get

into the police car.”). It is equally certain, however, that Williams was not being interrogated at

that point, because he was not “subjected to either express questioning or its functional

equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300–01 (1980). And Respondent correctly

points out that the Supreme Court has “never held that a person can invoke his Miranda rights

anticipatorily, in a context other than custodial interrogation.” McNeil, 501 U.S. at 182 n.3

(citations omitted).

       Williams addresses this problem by arguing that “[p]ost-McNeil, federal circuit courts

have held that the right to counsel attaches once interrogation is imminent.” (Appellant’s Br. at

30.) But what matters is whether the state court unreasonably applied clearly established Federal

law “as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1).

       Section 2254(d)(1) provides a remedy for instances in which a state court
       unreasonably applies this Court’s precedent; it does not require state courts to
       extend that precedent or license federal courts to treat the failure to do so as error.
       Thus, “if a habeas court must extend a rationale before it can apply to the facts at
       hand,” then by definition the rationale was not “clearly established at the time of
       the state-court decision.”




       6
          The Ohio Supreme Court did not address this issue, but “[i]n assessing the
reasonableness of the state court’s application of federal law,” we “review the result that the state
court reached, not whether its decision was well reasoned.” Holland v. Rivard, 800 F.3d 224,
235–36 (6th Cir. 2015) (quoting Robinson v. Polk, 438 F.3d 350, 358 (4th Cir. 2006)) (emphasis
in Robinson) (brackets omitted).


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No. 13-4253, Robert Williams, Jr. v. Marc Houk


White v. Woodall, 134 S. Ct. 1697, 1706 (2014) (emphasis in original) (quoting Yarborough v.

Alvarado, 541 U.S. 652, 666 (2004)) (other citation omitted).

       Several days before his arrest, a detective spoke to Williams by phone and asked him to

come to the station to answer questions about McDowell’s murder. Thus, Williams’s assertion

that his interrogation was imminent as soon as he was arrested is not unreasonable. However,

Williams’s interrogation did not begin immediately upon his arrest on a Toledo street; it began

approximately one hour later at the police station.        The Supreme Court has not provided

guidance on the circumstances in which a suspect may invoke his Miranda right to counsel prior

to authorities’ first question, or how far in advance such rights may be effectively invoked. We

cannot say, therefore, that “it is so obvious that a clearly established rule applies” to the present

set of facts that “there c[an] be no ‘fairminded disagreement’ on the question” whether

Williams’s Miranda right to counsel had attached at the time of his arrest. White, 134 S. Ct. at

1706–07 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). For these reasons, Williams

would not be entitled to habeas relief even if we agreed with his contention that the Ohio

Supreme Court erred in interpreting the statements he made during his arrest.

   3. The Miranda Waiver and Williams’s Question About Penamon at the Beginning of His
                                     Interrogation

       Williams also argues that he asserted his Miranda right to counsel at the beginning of his

interrogation, and that his Miranda waiver is invalid because his interrogators misled him into

signing it. Both issues arise out of Williams’s interactions with Detectives Beavers and Mauro

during the first few minutes of his interrogation, so we address them together.

                                              a. Facts

       Before asking Williams any questions about McDowell’s murder, Detective Beavers

presented Williams with a Miranda waiver form and confirmed that Williams could read and

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No. 13-4253, Robert Williams, Jr. v. Marc Houk


write and was not under the influence of alcohol. Detective Beavers then read the form to

Williams and asked Williams if he understood each provision, and Williams said he did. During

the review of the waiver form, Detective Beavers emphasized that Williams’s rights “stay[ed]

with [him] and [could] be claimed . . . at any time during the questioning.” (Video, State’s Trial

Ex. 92 at 8:48 a.m.) When Detective Beavers started to explain what that meant, Williams cut

him off and stated: “At any time I can stop.” (Id.) Detective Beavers agreed, and further

explained: “at any time you can request an attorney.” (Id.) Detective Beavers then told

Williams: “If at any time you say, ‘hey, I’m done talking,’ you can stop it at any time.” (Id.)

Then, as the review of the waiver form continued, Williams told the detectives: “I’m gonna talk

to you.” (Id. at 8:49 a.m.) Detective Beavers then asked Williams again whether he understood

his rights, and that he could claim them at any time. Williams said that he did.

       Detective Beavers next asked Williams to confirm he had not been pressured to make a

statement. Williams responded: “I was coming on my own, though . . . I was coming. He was

gonna bring me down here at ten o’clock, we had already discussed it. And that’s what I kept

telling them . . . .” (Id. at 8:50 a.m.) Williams recounted some of the circumstances of his flight

from police and his subsequent arrest, and said that he had been “going to get [his] lawyer.” (Id.

at 8:51 a.m.) Williams went on to say “I don’t want this”—without specifying what he did not

want. (Id.) The detective then stated again that Williams could invoke his rights at any time,

and asked Williams: “You want to sign here and make a statement?” (Id.) Without further

prompting, Williams reached for a pen and signed. Below a standard recitation of the Miranda

rights, the waiver form states:

               I have read the statement of my rights shown above. I understand what
       my rights are. I am willing to answer questions and make a statement. I do not
       want a lawyer at this time. I understand and know what I am doing. No promises



                                               -26-
No. 13-4253, Robert Williams, Jr. v. Marc Houk


       or threats have been made to me and no pressure of any kind has been used
       against me.

(Waiver of Rights Form, R. 16, Vol. 21 at 14.)

       Williams then asked: “Why did they run my lawyer away?” (Video, State’s Trial Ex. 92

at 8:52 a.m.) Detective Mauro responded: “Run him away? We told him that if he needed to

talk to you or whatever we’re gonna bring you here.” (Id.) Detective Mauro also told Williams

that the man whose house Williams had been trying to enter had not been happy, and Williams

answered that he had had the wrong house. Detective Beavers told Williams that was not the

issue they wanted to talk about, and then asked Williams to “start at the beginning.” (Id.)

Williams responded: “I’m fitting to tell you,” and started to describe his activities on the day of

McDowell’s death without further prompting. (Id.)

                                          b. Discussion

       Reviewing this evidence, the Ohio Supreme Court concluded that

       Williams did not ask to consult either Penamon or any other attorney before or
       after he voluntarily signed the waiver of his rights. Moreover, Williams never
       asked to see Penamon even though Williams knew that Penamon had observed
       the police arrest him . . . Williams’s brief complaint about the police chasing
       away Penamon when Williams was arrested did not constitute a request to consult
       with Penamon.

Williams II, 793 N.E.2d at 458. The court therefore found that Williams did not invoke his right

to counsel and that his waiver was valid. Id.

       Williams disagrees, and argues that he “unambiguously demonstrated his desire to have

his counsel present” because his statement “I don’t want this” must be understood as “referring

to any interrogation without the presence of counsel.” (Reply Br. at 15, 17.) The question, then,

is whether “a reasonable police officer” would understand Williams’s statement (“I don’t want

this”) “to be a request for an attorney,” Davis, 512 U.S. at 459, given the “totality of the



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No. 13-4253, Robert Williams, Jr. v. Marc Houk


circumstances surrounding the interrogation,” Moran, 475 U.S. at 421 (citation omitted). As

Detective Beavers read the waiver form aloud, Williams agreed that he understood each of his

rights, including that: “you have the right to the presence of a lawyer during the questioning,”

and “unless you are willing to give up the above rights, no statement of yours can be accepted

and no questions will be asked of you.” (Video, State’s Trial Ex. 92 at 8:47 a.m.; Waiver of

Rights Form, R. 16, Vol. 21 at 14.) And in the course of discussing his rights, Williams himself

said: “At any time I can stop,” and “I’m gonna talk to you.” (Video, State’s Trial Ex. 92 at

8:48-8:49 a.m.) Further, when Williams mentioned that he had been trying to reach his attorney

before he was arrested and said “I don’t want this,” Detective Beavers reminded Williams he

could invoke his rights at any time, and asked Williams if he wanted to sign the waiver form and

make a statement. (Id. at 8:51 a.m.) Williams did not respond by asking for Penamon or another

attorney; rather, he signed the waiver form without comment or hesitation.

       Even coming just after Williams’s statement that he had been trying to get to his attorney

when he was arrested, the most that can be said about Williams’s statement “I don’t want this” is

that it was “an ambiguous or equivocal statement” that might have been intended to mean “I

don’t want this questioning to continue without my attorney being present.” Faced with an

ambiguous statement, officers are not required to ask clarifying questions. Davis, 512 U.S. at

461. In this case, though, Detective Beavers followed up by asking: “You want to sign here and

make a statement?” (Video, State’s Trial Ex. 92 at 8:51 a.m.) Williams’s response was to sign

the waiver form without further question or complaint. Given this sequence of events, we cannot

say it was an unreasonable application of Supreme Court precedent to decide that Williams did

not unambiguously invoke his right to counsel.




                                              -28-
No. 13-4253, Robert Williams, Jr. v. Marc Houk


        Williams further argues that his Miranda waiver is invalid because the detectives

deceived him about Penamon’s availability. This argument is all but foreclosed by Moran. In

that case, a detainee’s sister arranged to have a lawyer represent him. Moran, 475 U.S. at 415–

17. The lawyer contacted police, and a detective arguably misled the lawyer about whether and

when the detainee would be questioned. Id. at 417–18. Police also declined to tell the detainee

that his sister had arranged a lawyer for him, and that the lawyer was seeking to assist him. Id.

The detainee never asked for an attorney and signed several Miranda waivers. Id. He then made

incriminating statements, and was eventually convicted of murder. Id. at 418. The Supreme

Court found no Miranda violation, explaining that “[e]vents occurring outside of the presence of

the suspect and entirely unknown to him surely can have no bearing on the capacity to

comprehend and knowingly relinquish a constitutional right.” Id. at 422. The Court also

explained that police are not required to “supply a suspect with a flow of information to help him

calibrate his self-interest in deciding whether to speak or stand by his rights.” Id.

        Williams’s counsel tried admirably to distinguish this case from Moran at oral argument,

but the facts are simply too close. True, unlike the detainee in Moran, Williams was expecting

an attorney. But, as in Moran, whatever police did or did not tell Penamon when he arrived at

the station, those interactions happened “outside of the presence of” Williams and were “entirely

unknown to him,” and so “can have no bearing” on the validity of his Miranda waiver. Id. at

422.7 The detectives made only one reference to Penamon in Williams’s presence during the

relevant time period. Williams asked: “Why did they run my lawyer away?”, and Detective

       7
         Thus, even if we could consider Penamon’s postconviction affidavit, with its insinuation
that police officers gave Penamon inaccurate or misleading information about Williams’s
location, it would not matter. Moran, 475 U.S. at 422–23 (“Although highly inappropriate, even
deliberate deception of an attorney could not possibly affect a suspect’s decision to waive his
Miranda rights unless he were at least aware of the incident.”).


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No. 13-4253, Robert Williams, Jr. v. Marc Houk


Mauro responded: “We told him that if he needed to talk to you or whatever we’re gonna bring

you here.” (Video, State’s Trial Ex. 92 at 8:52 a.m.) We find nothing in the record to suggest

that statement or anything else Detectives Beavers and Mauro said to Williams was untrue or

misleading. And while police did not tell Williams that Penamon had arrived at the station,

“Williams never asked to see Penamon even though Williams knew that Penamon had observed

the police arrest him.” Williams II, 793 N.E.2d at 445. Nor did Williams “ask to consult . . . any

other attorney”—despite being told that one could be appointed for him—“before or after he

voluntarily signed the waiver of his rights.” Id. Given the “totality of the circumstances,”

Garner, 557 F.3d at 260–61, reasonable jurists could conclude that Williams’s Miranda waiver

was valid. Thus, there was no unreasonable application of federal law.

                                      C. Strickland Claims

        Lastly, Williams claims that his attorneys were constitutionally ineffective during

the mitigation phase of his trial because they failed to secure a sex-offender expert, failed to

present evidence of the repeated sexual abuse Williams suffered as a child, failed to review

Williams’s prison records, and employed Dr. Layne, whose testimony allegedly damaged

Williams’s case. The Ohio courts found no merit to those claims, and we conclude that habeas

relief is not justified.

                                          1. Applicable Law

        To establish ineffectiveness, Williams must show that 1) counsel’s performance was

deficient—objectively      unreasonable    under prevailing   professional norms—and 2) it

prejudiced the defense. Strickland, 466 U.S. at 687–88. As to counsel’s performance, we must

be “highly deferential” and refrain from second-guessing. Id. at 689. Further, because § 2254(d)

applies, we do not ask “whether counsel’s actions were reasonable.” Richter, 562 U.S. at 105.



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Instead, out of deference to the state courts, we ask only if “there is any reasonable argument that

counsel satisfied Strickland’s deferential standard.” Id.

         Prejudice is established by showing there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceedings would have been different.

Strickland, 466 U.S. at 694. Although the reasonable-probability standard is lower than the

more-probable-than-not standard, Kyles v. Whitley, 514 U.S. 419, 434 (1995); Strickland,

466 U.S. at 693–94, the difference between the two “is slight and matters ‘only in the rarest

case.’    The likelihood of a different result must be substantial, not just conceivable.”

Richter, 562 U.S. at 112 (quoting Strickland, 466 U.S. at 697).

         On habeas review, we look to “the last reasoned state court decision.”          Cauthern,

736 F.3d at 473 (citing Pinholster, 563 U.S. at 187–88). “The last reasoned state court decision

may be different with respect to certain claims” when some are presented “during [a] collateral

challenge” and others “were only raised during [the petitioner]’s direct appeals.” Id. at 474 n.7.

As to defense counsel’s use of Dr. Layne as an expert, the last reasoned state court decision is the

Ohio Supreme Court’s 2003 ruling on direct appeal. See Williams II, 793 N.E.2d at 467–68. As

to Williams’s other ineffective assistance of counsel claims, the last reasoned state court decision

is the Court of Appeals of Ohio’s 2002 decision during postconviction proceedings.              See

Williams I, 777 N.E.2d at 896–97.

                           2. Direct Appeal Claim – Use of Dr. Layne

         Williams argues that his attorneys were ineffective in presenting psychologist Dr.

Christopher Layne as an expert witness because Dr. Layne was unqualified and Dr. Layne’s

testimony was actually damaging to Williams’s case.




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No. 13-4253, Robert Williams, Jr. v. Marc Houk


       First, Dr. Layne was licensed, board certified in psychology and forensic

neuropsychology, had multiple degrees, had taught and practiced extensively, and had published

over 50 articles and two books. Despite this, Williams argues that Dr. Layne was unqualified

because of one exchange with the prosecutor during cross-examination:

       Q:      Is there a drug that you can give [Williams] that is going to make him
               normal?

       A:      There is no drug that I know of. It’s a little more beyond my expertise, but
               I know of no drug for criminals. Some sex offenders have gotten Dep[o]
               Provera to neutralize their urges. But again, it’s beyond my expertise.

(Mitigation Hr’g Tr., R. 18, Vol. 10 at 111–12.) Williams reads this testimony as an admission

by Dr. Layne that he was not qualified to opine regarding the psychology of sex offenders. We

think the better reading of this testimony is that Dr. Layne was acknowledging he was not an

expert in the pharmacological aspects of treating sex offenders—an unremarkable admission,

since psychologists are not medical doctors. There is no dispute that Dr. Layne was qualified to

offer the opinions defense counsel asked him to offer.

       Second, Williams is correct that some of Dr. Layne’s testimony may have been harmful,

such as when Dr. Layne referred to Williams as “a hardened gutless criminal” and “basically a

bad person.” (Mitigation Hr’g Tr., R. 18, Vol. 10, at 84, 100.) But Dr. Layne also provided

potentially helpful testimony about “Williams’s dysfunctional family, his irresponsible parents,

the abuse heaped upon him as a child, his chaotic upbringing, and his mental and emotional

problems.” Williams II, 793 N.E.2d at 468. In particular, Dr. Layne’s testimony and his

accompanying report (also introduced into evidence) made clear Williams had been in and out of

the juvenile justice and social services systems from an early age, but never received the

intensive and ongoing treatment recommended by mental health professionals. For example,

when Williams was 13, a psychiatrist concluded that Williams needed to be placed in a “highly

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structured setting” with “long term intensive care,” but noted that “no places are available at

present.” (Layne Report, R. 45-1, PID 645.) And Dr. Layne found no evidence Williams was

placed in an appropriate facility at that time. Then, when Williams was 17, a psychologist

concluded Williams was subject to “neurotic breakdown[s]” and his score on one test was

“similar to hospitalized psychiatric patients.” (Id. at 635.) The psychologist further concluded

Williams had not “developed socially acceptable ways of resolving his anger,” “tend[ed] to hold

it in until it bursts out in violence,” and that Williams needed “long-term psychotherapy.” (Id.)

But budget issues delayed Williams’s placement in a treatment facility, and there was no

evidence Williams ever received the recommended therapy. Summing up the consequences of

the many failures by Williams’s parents and the social services system, Dr. Layne testified that

“if Williams had received proper discipline, counseling, and psychiatric treatment as he was

growing up,” the probability he would have committed the crimes at issue would have been low.

Williams II, 793 N.E.2d at 468. Finally, Dr. Layne “described Williams’s problems with alcohol

and chronic depression, and noted that Williams would be less dangerous as he grew older in

prison.” Id.

       The Ohio Supreme Court concluded that:          “In its entirety, Dr. Layne’s testimony

represented potentially credible mitigation evidence that counsel could reasonably present to the

jury. Dr. Layne’s testimony explained, in depth, Williams’s history and background, and helped

place Dr. Layne’s negative comments about Williams’s character into a broader context.” Id.

Williams’s attacks on this conclusion all rely on evidence submitted in his postconviction

proceedings, which we may not consider when evaluating the Ohio Supreme Court’s decision on

direct appeal. Pinholster, 563 U.S. at 180–81. The record that was in front of the Ohio Supreme

Court reflects that Williams’s attorneys chose a plausible mitigation strategy based on the



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analysis of a qualified expert. Strickland, 466 U.S. at 689 (“There are countless ways to provide

effective assistance in any given case. Even the best criminal defense attorneys would not

defend a particular client in the same way.”); Lewis v. Alexander, 11 F.3d 1349, 1353 (6th Cir.

1993) (“An attorney is entitled to rely on a professional of established skill and reputation in

formulating judgments necessary to trial preparation.”).

       Third, the upshot of Williams’s arguments is that Dr. Layne should not have been called

at all. But we see no “reasonable probability” that, but for counsel’s alleged error in calling Dr.

Layne as a witness, “the result of the proceeding would have been different.” Strickland,

466 U.S. at 694. Williams might have gained from omitting Dr. Layne’s harsh description of

him. But Williams would have lost the benefit of having a disinterested expert—as opposed to

only his own relatives—talk about the effects of his terrible upbringing. Williams also would

have lost the benefit of Dr. Layne’s expert opinion that, had Williams received the care and

treatment he needed as an adolescent, he probably would not have raped and murdered Velma

McDowell.

       For those reasons, it was not unreasonable for the Ohio Supreme Court to conclude that

Williams had failed to demonstrate either deficient performance or prejudice.

                      3. Lack of a Sex-Offender Expert and Prison Records

       In postconviction proceedings, Williams submitted the affidavits of psychologist Dr.

Allen J. Brown and mitigation specialist Dorian L. Hall. See discussion supra Section II.C.2.

Williams also submitted additional prison records, which, according to Dr. Brown, show that

Williams would have adjusted well to prison life and would not have been a danger to others.

Williams relies on these documents to argue that his attorneys’ performance was deficient

because they failed to employ a sex-offender expert—like Dr. Brown. He also argues that



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No. 13-4253, Robert Williams, Jr. v. Marc Houk


defense counsel should have presented evidence of the sexual abuse he suffered as a child, not

just the beatings and other physical abuse.

        The Ohio Court of Appeals denied relief on the grounds that Williams had not established

deficient performance, without reaching the question of prejudice. Williams I, 777 N.E.2d at

896–97. In the state court’s view, Williams sought to present “an alternative theory of mitigation

that explains appellant’s deviant sexual behavior.” Id. at 897. The court reasoned that Strickland

deference prevented such second-guessing. Id.; see Strickland, 466 U.S. at 689. For the most

part, we agree. It was not unreasonable to conclude that defense counsel’s mitigation strategy

fell “within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689;

see discussion supra Section III.C.2. However, a trial strategy chosen “after less than complete

investigation [is] reasonable precisely to the extent that reasonable professional judgments

support the limitations on investigation.” Strickland, 466 U.S. at 690–91. And the additional

evidence offered in postconviction proceedings raises the question whether counsel’s

investigation was adequate. Thus, we consider whether counsel was ineffective for failing to

investigate further.

        Williams’s arguments on this point have some appeal. Given the nature of the case and

the advice defense counsel received from Hall, the mitigation expert, we might expect counsel to

have secured all the defendant’s prison records and employed a psychologist with a specific

expertise in sex offenders. The problem with this argument is that it ignores Williams’s own role

in impeding his attorneys’ efforts to develop his mitigation case. See discussion supra Section

II.A.

        “In any ineffectiveness case, a particular decision not to investigate must be directly

assessed for reasonableness in all the circumstances, applying a heavy measure of deference to



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No. 13-4253, Robert Williams, Jr. v. Marc Houk


counsel’s judgments.” Strickland, 466 U.S. at 690. In Schriro v. Landrigan, the Supreme Court

noted that it had never addressed a situation where a defendant “interferes with counsel’s efforts

to present mitigating evidence.”     550 U.S. 465, 478 (2007).       In Landrigan, the defendant

“interrupted repeatedly when counsel tried to proffer anything that could have been considered

mitigating.” Id. at 476. Applying AEDPA deference, the Court concluded that “it was not

objectively unreasonable” for the state court “to conclude that a defendant who refused to allow

the presentation of any mitigating evidence could not establish Strickland prejudice based on his

counsel’s failure to investigate further possible mitigating evidence.” Id. at 478.

       This case, though not identical, is conceptually similar. Here, prosecutors disclosed

records that revealed Williams’s complicated history of mental health problems and juvenile sex

offenses.   Shortly thereafter, Williams’s attorneys contacted the Office of the Ohio Public

Defender for mitigation help. Indeed, Williams’s attorneys were trying to identify a sex-offender

expert—in his postconviction affidavit, Dr. Layne stated that defense counsel asked for his help

in identifying a sex-offender expert, but he was unable to suggest one. Meanwhile, Williams’s

attorneys repeatedly told him throughout July 1999 that they needed more time to fully develop

his mitigation case. But Williams rejected that advice and insisted on going to trial on August

9.8 Williams did not “refuse[] to allow the presentation of any mitigating evidence,” but his

insistence on going to trial on August 9 did “interfere[] with counsel’s efforts” to develop and

“present mitigating evidence.” Landrigan, 550 U.S. at 478 (emphasis added).




       8
         Williams argued to the district court that counsel should nevertheless have insisted on a
continuance, or that the state trial court should have delayed the trial despite Williams’s express
wishes. But Williams has abandoned those arguments on appeal, so we are not called upon to
give our view on what counsel or the state trial court should have done.


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No. 13-4253, Robert Williams, Jr. v. Marc Houk


         Williams’s choice left his attorneys with less than three weeks to finish preparing for

trial.   It was Williams’s burden to present evidence that his attorneys’ performance was

unreasonable. Richter, 562 U.S. at 104. But Williams did not present any evidence to the state

court that sheds light on why counsel did not pursue these leads sooner. Nor did he present any

evidence as to how counsel used the very limited time available to them once the trial date was

fixed. Under the circumstances, counsel might well have made a reasonable decision to focus on

other areas of trial preparation. Or counsel may have been working diligently to identify all of

the evidence later found in Dr. Brown’s report and Williams’s prison records. In the absence of

any evidence on that point, we can only speculate. And speculation alone is insufficient for

Williams to meet his burden and clear the doubly high hurdle set by Strickland and § 2254(d)(1).

         For those reasons, we cannot say that the state court unreasonably determined that

Williams had not demonstrated that his counsel’s performance was deficient.9

                                               IV.

         For these reasons, we AFFIRM.




         9
         Thus, we need not address Respondent’s argument that Williams cannot demonstrate
Strickland prejudice.


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