                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                       File Name: 08a0369p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                     X
             Petitioner-Appellee/Cross-Appellant, -
 RAYSHAWN JOHNSON,
                                                      -
                                                      -
                                                      -
                                                          Nos. 06-3846/3847
         v.
                                                      ,
                                                       >
 MARGARET BAGLEY, Warden,                             -
            Respondent-Appellant/Cross-Appellee. -
                                                     N
                      Appeal from the United States District Court
                     for the Southern District of Ohio at Cincinnati.
                    No. 02-00220—James L. Graham, District Judge.
                                      Argued: June 3, 2008
                              Decided and Filed: October 10, 2008
                     Before: SILER, CLAY, and SUTTON, Circuit Judges.
                                       _________________
                                           COUNSEL
ARGUED: Adam Michael Van Ho, OFFICE OF THE OHIO ATTORNEY GENERAL, Cleveland,
Ohio, for Appellant. Ruth L. Tkacz, OHIO PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for
Appellee. ON BRIEF: Michael S. Warbel, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellant. Ruth L. Tkacz, OHIO PUBLIC DEFENDER’S OFFICE,
Columbus, Ohio, W. Joseph Edwards, LAW OFFICE OF W. JOSEPH EDWARDS, Columbus,
Ohio, for Appellee.
       SUTTON, J., delivered the opinion of the court, in which CLAY, J., joined. SILER, J. (pp.
13-15), delivered a separate opinion concurring in part and dissenting in part.
                                       _________________
                                           OPINION
                                       _________________
       SUTTON, Circuit Judge. A jury convicted Rayshawn Johnson of the murder of Shanon
Marks and sentenced him to death. The Ohio courts upheld his conviction and sentence on direct
review. In reviewing Johnson’s habeas petition, the district court rejected all of Johnson’s claims
but one: It granted the writ on the ground that he received ineffective assistance of counsel at the
penalty phase of his trial. We agree and affirm.




                                                 1
Nos. 06-3846/3847                   Johnson v. Bagley                                         Page 2


                                                  I.
        On Wednesday, November 12, 1997, Norman Marks prepared for work, roused his wife
Shanon from bed at 6:50 a.m. and left their Cincinnati home without locking the back door. While
Shanon was still in her bathrobe, Rayshawn Johnson, wearing gloves and carrying a baseball bat,
jumped the fence that separated the Marks’ residence from his grandmother’s home (where he
lived), entered the back door of the Marks’ house, climbed the stairs to the second floor bathroom
and murdered Shanon by repeatedly striking her with the bat. When Norman returned home at
approximately 8:00 p.m. that evening, he found Shanon lying face down on the bathroom floor with
the contents of her purse strewn across the bed.
        It did not take long to link Johnson to the crime. After Johnson appeared on a number of
local news broadcasts expressing his dismay at the crime, officers interviewed him and, during the
interview, noticed that the soles of his Nike Air Jordans resembled a shoe print lifted from the crime
scene. After the broadcasts aired, another woman, Nicole Sroufe, called the police and told the
officers that Johnson had robbed her two months earlier. The investigation closed when the officers
called Johnson to the police station, where he waived his Miranda rights and confessed to the
murder.
       An Ohio grand jury indicted Johnson on several counts, including aggravated murder with
two capital specifications—that the murder occurred during the commission of an aggravated
robbery and an aggravated burglary. In May 1998, a jury convicted Johnson on all counts and
recommended the death penalty. The trial judge accepted the recommendation and sentenced
Johnson to death.
        Johnson appealed his conviction to the Ohio Supreme Court, arguing (among other things)
that misconduct by the judge and the prosecutor denied him a fair trial and that his counsel
conducted a constitutionally ineffective penalty-phase investigation. See State v. Johnson, 723
N.E.2d 1054, 1072–73, 1076 (Ohio 2000), cert. denied, 531 U.S. 889 (2000). The court rejected
each claim and independently determined that Johnson’s death penalty was appropriate. Id. at
1077–78. In state post-conviction proceedings, Johnson raised a claim of judicial bias and renewed
his ineffective-assistance claim, submitting additional evidence and affidavits. State v. Johnson, No.
C-000090, 2000 WL 1760225, at *3–9, *11 (Ohio Ct. App. Dec. 1, 2000). The Ohio Court of
Appeals denied each claim, id., and the Ohio Supreme Court denied review, 744 N.E.2d 1194 (Ohio
2001).
        Johnson petitioned for a writ of habeas corpus. The district court granted relief on Johnson’s
ineffective-assistance claim but denied his other claims. When the warden appealed the district
court’s grant of the writ, Johnson (after receiving a certificate of appealability) cross-appealed the
denial of his judicial-misconduct, judicial-bias and prosecutorial-misconduct claims as well as the
denial of his motion to amend the petition.
                                                 II.
        Because Johnson filed his habeas petition after the effective date of the Antiterrorism and
Effective Death Penalty Act (AEDPA), we may grant the writ with respect to claims “adjudicated
on the merits in State court proceedings” only if the state-court 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.” 28 U.S.C. § 2254(d). We start by addressing the claims denied by the district
court because they affect Johnson’s conviction and sentence.
Nos. 06-3846/3847                    Johnson v. Bagley                                           Page 3


                                                   A.
                                                   1.
         Johnson premises his judicial-misconduct claim on the ground that the state-court trial judge
gave a ride to a juror who had missed her bus. After the first day of trial, Johnson returned to his
cell and watched (from his window) as Judge Ruehlman stopped at the bus stop and picked up a
female juror who had been waiting there. The next morning, Johnson told his attorneys about the
encounter, after which they raised the issue with the judge. The judge explained that the juror had
missed her bus, that she was alone in the downtown area and that he offered her a ride because it was
about to start raining. After the judge stopped his car, he explained, the juror confirmed with
another bus driver that she had missed the last bus heading in her direction, and the judge said, “Get
in, and we won’t talk about the case.” JA 2688. At defense counsel’s request, the judge brought
the juror into his chambers and asked her if they had “talk[ed] about the case.” JA 2696. “No, not
at all,” the juror insisted. Id. After giving the defense attorneys a chance to question the juror, the
judge denied their request to excuse the juror, agreeing with the prosecution that the gesture was “a
common act of courtesy” and caused no harm because they “didn’t talk about the case.” JA 2696,
2698.
         While we think it odd, unwise, maybe even improper, for the trial judge to have given the
juror a ride, the Ohio Supreme Court did not unreasonably apply federal law in holding that Johnson
still received a fair trial. Not every “ex parte conversation between a trial judge and a juror” violates
the Constitution, United States v. Gagnon, 470 U.S. 522, 526 (1985), and communications with a
juror are presumptively prejudicial only when they concern “a matter pending before the jury,”
Remmer v. United States, 347 U.S. 227, 229 (1954). The trial judge gave Johnson a hearing on the
impact of the ex parte contact, cf. Remmer, 347 U.S. at 229, and during that hearing both the judge
and the juror stated several times that they did not talk about the case, see, e.g., JA 2689 (Judge
Ruehlman stating “[w]e didn’t talk about the case at all”); JA 2694 (Judge Ruehlman saying “we
didn’t talk about anything”); JA 2696 (“I’m saying as an officer of the Court I didn’t talk about the
case.”); JA 2696–97 (Juror Miller answering “No” repeatedly when asked whether she and the judge
discussed the case). On top of all this, the judge explained that he merely wanted to help a juror in
need.
        In certain circumstances, we recognize, ex parte communications with jurors have special
risks, such as when the jury is deliberating. See, e.g., United States v. U.S. Gypsum Co., 438 U.S.
422, 460 (1978) (“Any ex parte meeting or communication between the judge and the foreman of
a deliberating jury is pregnant with possibilities for error.”). But no one suggests that this contact
occurred at such a sensitive stage of the case.
        The trial judge did not help matters, as Johnson points out, when he failed to report the
contact first and when he failed to assign another judge to investigate the propriety of, and prejudice
resulting from, the juror contact. But the uncontradicted fact remains that the judge and juror did
not talk about the case, and these after-the-fact actions of the judge remain consistent with his
underlying belief, naive though it might have been, that this kind of helping-hand juror contact need
not be disclosed or investigated seriously. And while the assignment of another judge to preside
over the Remmer hearing undoubtedly would have helped clear the air of even a hint of impropriety,
the reality is that Johnson made no such request and, at any rate, the Ohio Supreme Court reviewed
the trial judge’s actions. As to both claims, moreover, Johnson remains in the rut of failing to
identify a Supreme Court precedent that requires reversal or that the state courts unreasonably
applied. We affirm the district court’s rejection of this claim.
Nos. 06-3846/3847                   Johnson v. Bagley                                          Page 4


                                                  2.
        Johnson next claims that the trial judge held a bias against him and prejudged his guilt. In
support, he relies on an affidavit in which a juror says that at times he “felt that the defense’s
argument wasn’t going anywhere” and the judge’s “facial expressions” sometimes “seemed to
confirm” that belief, JA 3786, as well as on the following statements by the judge: (1) a statement
by the judge that it was “amazing” that Johnson continued to watch females from his cell window
in a manner that resembled his observation of Shanon Marks and Nicole Sroufe before he committed
the crimes, JA 2693; (2) the judge’s comment that Johnson’s alleged assault of Sroufe was
“chillingly similar” to the Marks murder, JA 1561; (3) a statement by the judge that Johnson’s story
about a potential co-murderer named Dante “doesn’t have much credibility,” JA 3044; (4) the
judge’s use of the term “we” to describe what Johnson claims were the prosecutor’s positions, JA
2898, 3228; (5) an observation that Johnson “was clearly enjoying himself” during taped statements,
JA 1562; (6) the fact that in ruling on Johnson’s Batson challenge the judge came up with his own
reasons to justify the strike never offered by the prosecution; (7) the judge’s complaints about the
federal courts’ tendency to overturn or delay capital sentences; and (8) the judge’s statement that
certain objections would “go up to the Supreme Court on appeal,” JA 2520.
        The state court of appeals did not unreasonably apply federal law when it held that the juror’s
affidavit was improper evidence of a juror’s mental processes under Ohio Rule of Evidence 606(B).
See Johnson, 2000 WL 1760225, at *11; cf. Tanner v. United States, 483 U.S. 107, 121–26 (1987)
(describing and applying a functionally similar federal rule). As for the judge’s statements, none
of them establishes that the judge held an actual bias against Johnson or evinces a predisposition “so
extreme as to display clear inability to render fair judgment.” Liteky v. United States, 510 U.S. 540,
551 (1994); see also Getsy v. Mitchell, 495 F.3d 295, 311 (6th Cir. 2007) (en banc). Most of the
comments were innocuous and made in the course of ruling on contested issues. All of the
statements occurred outside the presence of the jury. And some were not even directed at Johnson’s
case. See, e.g., JA 3413 (complaining about federal courts’ death-penalty habeas practices).
        One of the judge’s comments may well have been inappropriate because it denigrated the
fact that Johnson reported an incident in which the judge was involved. See JA 2693 (comparing
Johnson’s observation of the female juror getting into the judge’s car to his actions leading up to the
crimes of which he was accused). But, by itself, the statement does not display the type of bias that
prevents a fair adjudication.
                                                  3.
         Johnson next maintains that several alleged instances of prosecutorial misconduct require
a new trial on due-process grounds. “Even if the prosecution’s conduct was improper or even
universally condemned, this court can only reverse if the statements were so flagrant as to render
the entire trial fundamentally unfair.” Gillard v. Mitchell, 445 F.3d 883, 897 (6th Cir. 2006). Some
of the targeted statements are quite wide of this mark, as they amount to legitimate arguments
premised on properly admitted evidence. The prosecutor’s statement during voir dire, for example,
that the jury should recommend a life sentence in the event “that the mitigation [evidence] outweighs
the aggravation” evidence, JA 2122, did not misstate the law. The statement simply conveyed to
the jurors what their duty would be if the balancing played out that way, and it did not tell them one
way or another what to do if the factors remained in equipoise. The same is true of other statements
made by the prosecution during closing arguments, as they too were premised on fair inferences
from the evidence. See, e.g., JA 3335 (saying that nothing “in any way mitigates or explains or
justifies what the defendant did”); JA 3355 (calling Johnson a “cold-blooded, vicious, unremorseful
killer”).
Nos. 06-3846/3847                   Johnson v. Bagley                                          Page 5


         The prosecutor, we acknowledge, would have done well to refrain from making certain other
statements. See JA 3070 (calling Johnson’s story passing blame to a co-conspirator named Dante
“bull crap”); JA 3083 (noting that Johnson, who did not testify, “never once showed any remorse”
during the trial and “didn’t even flinch” when pictures of Shanon Marks were shown); JA 3331
(“doubt[ing that] anyone will ever hear a case where you have a more evil defendant than Rayshawn
Johnson or more innocent victim than Shanon Marks”); JA 3355 (describing a human tendency to
assume that individuals who commit outrageous crimes “ha[ve] to be crazy”); JA 3353
(downplaying the mitigation testimony of Johnson’s foster mother by saying that “people that knew
Adol[f] Hitler when he was three years old [probably] . . . would say nice things” about him). The
potential problem with several of these statements is not that the topic falls outside the range of
argument; it is the manner in which the prosecutor made his points. Still, the comments were not
egregious and were isolated, and any risk flowing from them was accounted for by instructions from
the trial judge. See, e.g., JA 3047 (instructing the jury that they could not hold Johnson’s decision
not to testify against him); JA 3364 (instructing the jury that the “arguments of counsel are not
evidence”). These statements thus did not so “infect[] the trial with unfairness as to make the
resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).
In the end, in holding that “[t]he instances of alleged misconduct, taken singly or together, did not
substantially prejudice appellant or deny him a fair trial,” Johnson, 723 N.E.2d at 1073, the Ohio
Supreme Court did not unreasonably apply federal law.
                                                  4.
        Johnson next argues that the district court abused its discretion, see Coe v. Bell, 161 F.3d
320, 342 (6th Cir. 1998), in denying his motion to amend his petition to add a claim that he was
denied an impartial jury. The premise of the new claim was Janet Miller’s deposition testimony to
the effect that she became nervous when Johnson watched her from his jail window. Yet Johnson
waited nearly four years from the filing of his petition to file his motion to amend, even though all
of the evidence on this point had been available for years. Granting the motion also would have
prejudiced the State by prolonging the case and mandating new rounds of briefing, all when Johnson
acknowledges he did not have a “compelling reason” for the delay. Br. at 135. No abuse of
discretion occurred.
                                                  B.
         That brings us to Johnson’s sentencing claim: that his attorneys failed adequately to
investigate his childhood, violating his right to effective assistance of counsel at the penalty phase.
To prevail, Johnson must show that his representation was constitutionally deficient and that he was
prejudiced by the poor representation. Strickland v. Washington, 466 U.S. 668, 687 (1984). The
district court held that he satisfied both prongs, and so do we.
                                                  1.
        Under the deficient-performance prong, we “indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Id. at 689. Strong
though that presumption is, “strategic choices made after less than complete investigation are
reasonable” only “to the extent that reasonable professional judgments support the limitations on
investigation.” Id. at 690–91. We review the decision of the last state court to reach this point, the
state court of appeals, for compliance with AEDPA. See Garcia v. Andrews, 488 F.3d 370, 374 (6th
Cir. 2007). And in judging the reasonableness of the adjudication, we look to Wiggins v. Smith, 539
U.S. 510 (2003), and Rompilla v. Beard, 545 U.S. 374 (2005)—even though the state court’s
decision predated both opinions—because they did not rest on “new law” but instead “applied the
same ‘clearly established’ precedent of Strickland.” Wiggins, 539 U.S. at 522; see also Rompilla,
545 U.S. at 380–81; cf. Jells v. Mitchell, 538 F.3d 478, 491 n.2 (6th Cir. 2008).
Nos. 06-3846/3847                   Johnson v. Bagley                                            Page 6


        In our view, the state court of appeals unreasonably applied these precedents in rejecting this
claim. But before explaining why Johnson’s lawyers committed legal malpractice—or, what is
worse, legal representation that amounts to constitutionally ineffective assistance—it is well to put
in context the options they faced after the jury came back with a guilty verdict against their client
on the underlying murder charges and capital specifications. According to the ABA Guidelines on
death-penalty representation, upon which the Supreme Court has relied before, see Rompilla, 545
U.S. at 387 & n.7, counsel should consider the following in deciding what witnesses and evidence
to introduce at the penalty phase of a capital case:
       1. Witnesses familiar with and evidence relating to the client’s life and development,
       from conception to the time of sentencing, that would be explanatory of the
       offense(s) for which the client is being sentenced, would rebut or explain evidence
       presented by the prosecutor, would present positive aspects of the client’s life, or
       would otherwise support a sentence less than death;
       2. Expert and lay witnesses along with supporting documentation (e.g., school
       records, military records) to provide medical, psychological, sociological, cultural
       or other insights into the client’s mental and/or emotional state and life history that
       may explain or lessen the client’s culpability for the underlying offense(s); to give
       a favorable opinion as to the client’s capacity for rehabilitation, or adaptation to
       prison; to explain possible treatment programs; or otherwise support a sentence less
       than death; and/or to rebut or explain evidence presented by the prosecutor;
       3. Witnesses who can testify about the applicable alternative to a death sentence
       and/or the conditions under which the alternative sentence would be served;
       4. Witnesses who can testify about the adverse impact of the client’s execution on
       the client’s family and loved ones;
       5. Demonstrative evidence, such as photos, videos, and physical objects (e.g.,
       trophies, artwork, military medals), and documents that humanize the client or
       portray him positively, such as certificates of earned awards, favorable press
       accounts, and letters of praise or reference.
ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases
10.11(F) (rev. ed. 2003).
       At a surface level, it appears that Johnson’s counsel considered all of these options,
performed some investigation with respect to each option and deployed some of these strategies.
A central theme of their ultimate penalty-phase strategy was to feature Marian Faulkner, Johnson’s
grandmother, as a pivotal figure in his life, one who “did everything that one could reasonably
expect to do to try [to] help” Johnson. JA 3287. The apparent goal was not only to humanize
Johnson with Faulkner’s testimony, see ABA Guideline 10.11(F)(1), but also to present a
compelling witness who would suffer from a jury decision to impose a death sentence, see
Guideline 10.11(F)(4). In the abstract, this might well have been a legitimate strategic decision,
one about which the Constitution would have nothing to say. But in Johnson’s case, his counsel
pursued this strategy after what can only be described as an anemic and leaderless investigation that
suffered from at least three conspicuous flaws.
       First, Johnson’s counsel never interviewed Johnson’s mother, Demeatra, who not only
could have explained the precise role that Faulkner played in Johnson’s (and her) life but also could
have provided other information about Johnson’s childhood. Even though the defense team knew
Demeatra’s “whereabouts,” Pete Pandilidis, the lead defense attorney, testified that the defense
team chose not to interview her because she “had a very bad background . . . being a prostitute and
Nos. 06-3846/3847                   Johnson v. Bagley                                           Page 7


a drug addict” and therefore would be a “bad mitigation witness.” JA 219. But Demeatra’s “bad
background” is precisely what should have prompted the defense team to interview her—both to
see what that background entailed and to learn more fully how her prostitution and drug addiction
affected Johnson’s childhood. That someone may make a bad witness is no explanation for not
interviewing her first. And that is particularly true with respect to this witness, who was Johnson’s
mother, not a distant aunt or neighbor. No “reasonable professional judgment,” Strickland, 466
U.S. at 690; cf. Wiggins, 539 U.S. at 536, could have supported a decision not to interview
Demeatra, and neither the State, see First Br. at 40, nor the state court of appeals, see Johnson, 2000
WL 1760225, at *9, even attempted to justify such a decision.
        Second, in attempting to investigate Johnson’s background, his counsel obtained a large
number of files from the Ohio Department of Human Services but apparently never read them.
Instead, they simply submitted them to the jury—unorganized and without knowing whether they
hurt Johnson’s strategy or helped it. Three days before the penalty phase began, Chuck Stidham,
the defense’s “mitigation specialist,” acquired the files from the agency. Yet he never looked at
the records but simply handed them over to defense counsel. Pandilidis testified that he and Dixon
“reviewed them,” but, because they were “about 12 inches thick,” they “didn’t read [them] word
for word.” JA 4534. That, it turns out, is an understatement. So far as the record shows, it is
doubtful whether they read the records sentence for sentence, even page for page, before placing
them before the jury. The records included many pages that were not even relevant to Johnson or
his family, something Pandilidis acknowledges he did not realize at the time. Had Johnson’s
attorneys read all of the records before placing them in front of the jury, surely something even
modestly competent counsel would do, they not only would have removed the records that had no
bearing on the proceeding but they also would have learned more about Faulkner. Social workers
at Human Services, the records show, were concerned about placing Johnson in Faulkner’s custody
because of her abusive history, information that would have prompted reasonable mitigation
counsel to investigate Faulkner’s past further. A review of the records, in short, not only would
have tipped them off to a different mitigation strategy but also would have avoided the pitfall of
submitting records to the jury that directly contradicted their theory that Faulkner was a positive
force for change in his life.
        Third, the record suggests that these investigative blunders occurred because no one who
participated in Johnson’s penalty-phase defense made any deliberate decisions about the scope of
the investigation, let alone the “reasonable” ones Strickland requires. Pandilidis provided the two
alleged mitigation specialists, Stidham and Steve Vonderhaar, with an initial set of names, but he
admitted that he provided no significant guidance, saying, “I don’t plan the investigation. We get
the mitigation experts out to do that.” JA 4524. Pandilidis’s representations to the trial court show
that he and the other lead attorney, Dixon, were not involved in the investigation. On May 4, one
week before the trial began, Pandilidis said that he did not know what witnesses they would call
for mitigation. On May 12, the day before the prosecution’s case in chief began, he said that he did
not know what investigation Vonderhaar had done, and told the State that they had “[a]bsolutely
nothing” in the way of mitigation documents, JA 2369. And on May 15, midway through the trial,
defense counsel still did not “even know what records [they were] going to have.” JA 2961.
Johnson’s attorneys admitted in their post-conviction testimony that they began thinking about a
mitigation strategy only when “the verdict was back and [the jury] found [Johnson] guilty.” JA
4525.
        Chuck Stidham, who ostensibly served as the lead mitigation specialist in this case, was no
better. He did not personally conduct any of the initial investigation; rather, he “obtain[ed]
whatever records were necessary,” JA 4619, and handled “most of the interaction [with] the
attorneys, [while Vonderhaar] would do [the] . . . background investigation stuff,” JA 4618.
Stidham “ha[d] discussions” with Vonderhaar regarding “whatever information [they] had,” JA
4618–19, but he never gave Vonderhaar any direction and never gave him potential mitigation
Nos. 06-3846/3847                   Johnson v. Bagley                                          Page 8


theories to pursue. Vonderhaar confirmed that “[t]here was no theory” of mitigation that Stidham
“directed [him] to investigate.” JA 4487.
        Stidham, moreover, was in the midst of a debilitating bout of depression—indeed at one
point his secretary found him under his desk “crying [his] eyes out.” JA 4637. His health
problems, as he has acknowledged, led him to “neglect . . . client matters,” JA 4633, “had an impact
on everything that [he] did,” JA 4634, and ultimately resulted in his suspension from the practice
of law, see Cincinnati Bar Ass’n v. Stidham, 721 N.E.2d 977, 983–84 (Ohio 2000). Stidham, it
seems clear, was almost certainly not making any significant decisions, reasonable or otherwise,
regarding the scope of Johnson’s investigation.
        At the end of this chain of delegation was Vonderhaar, a well-meaning graduate student
who had done some work on two other capital cases and who was working part time while taking
classes for his psychology degree. But Vonderhaar was apparently not making any independent
investigative decisions either: He interviewed only the witnesses on the initial list given to him,
and he spent only 41 hours on the entire investigation. While none of the people he interviewed
gave him names of other people to talk to, the record does not show that he bothered to ask.
Vonderhaar, moreover, had no contact with Dr. Hawkins, Johnson’s mitigation expert; he simply
dropped off his interview notes at Dr. Hawkins’s office. One could certainly question whether a
graduate student with little experience, little time and little guidance could make reasonable
judgments about the scope of a capital-sentencing investigation. Even Pandilidis recognized that
Vonderhaar needed “a little more experience, if he . . . really wanted to get into the [mitigation]
field.” JA 241.
        This lack of structure and supervision over the investigation led to significant and costly
delays, including missed appointments. See JA 1631 (Pandilidis telling the court on May 4 that
“[o]ur people were supposed to meet with [Johnson] over the weekend and they have not”).
Stidham also inexplicably waited until May 14 to issue subpoenas for the critical Human Services
records, leaving Johnson’s attorneys insufficient time to review them. These delays “suggest that
[the defense’s] incomplete investigation was the result of inattention, not reasoned strategic
judgment.” Wiggins, 539 U.S. at 534; cf. Powell v. Collins, 332 F.3d 376, 399 (6th Cir. 2003)
(holding in a pre-AEDPA case that a capital defense attorney has a duty to investigate “the
circumstances of [his client’s] case and to explore all avenues relevant to the merits of the case and
the penalty in the event of a conviction”) (quoting 1 ABA Standards for Criminal Justice, Standard
4-4.1 (1982 Supp.)).
        The state court of appeals unreasonably applied Strickland when it held otherwise. In
determining that Johnson’s counsel was constitutionally adequate, the court principally concluded
that counsel had discovered the relevant evidence, as shown by the fact that “[m]ost of the
additional evidence . . . could be found in some form either in the testimony or in the documents
admitted at the mitigation hearing.” Johnson, 2000 WL 1760225, at *9. But the testimony only
scratched the surface of Johnson’s horrific childhood. And even if it is true that some aspects of
Faulkner’s and Demeatra’s problematic roles in Johnson’s life could be gleaned from reviewing
the 12-inch stack of files that defense counsel obtained from Human Services and admitted into
evidence, that does not mean defense counsel performed a reasonable investigation or for that
matter reasonably used the evidence. As we have shown, defense counsel was not familiar with
the records; some of the records contradicted their mitigation strategy (e.g., those showing that
Faulkner had contributed to Johnson’s traumatic childhood rather than worked to improve it); and
it hardly constitutes a reasonable investigation and mitigation strategy simply to obtain Human
Services records from the State, then dump the whole file in front of the jury without organizing
the files, reading them, eliminating irrelevant files or explaining to the jury how or why they are
relevant.
Nos. 06-3846/3847                   Johnson v. Bagley                                         Page 9


        The court of appeals also unreasonably concluded that Johnson’s attorneys “presented a
meaningful concept of mitigation,” id., without looking to the reasonableness of the investigation’s
scope. Johnson’s defense team, to be sure, interviewed some witnesses and submitted some
testimony regarding Johnson’s troubled past: Vonderhaar interviewed five people, including
Johnson, Faulkner, Norma Berry (Johnson’s foster mother), Ronnie Johnson (Johnson’s brother)
and Abby (Johnson’s girlfriend). And Dr. Hawkins testified at the mitigation hearing that
Johnson’s family unit was “someplace between terrible and chaotic,” JA 3286, that his
neighborhood was “less than optimal,” JA 3287, and that Demeatra “was abusing drugs heavily at
the time of [Johnson’s] birth,” JA 3286. But an unreasonably truncated mitigation investigation
is not cured simply because some steps were taken prior to the penalty-phase hearing and because
some evidence was placed before the jury. See Rompilla, 545 U.S. at 382–83 (holding an
investigation objectively unreasonable where the lawyers spoke to the defendant, five family
members and three mental health witnesses).
        Buttressed by a reasonably adequate investigation, the defense team’s ultimate presentation
to the jury might have been justified as the product of strategic choice. But that is not what
happened. Johnson’s attorneys “were not in a position to make . . . reasonable strategic
choice[s] . . . because the investigation supporting their choice[s] was unreasonable.” Wiggins, 539
U.S. at 536; see also Strickland, 466 U.S. at 690–91.
        Instead of trying to defend Johnson’s attorneys’ decision not to interview Demeatra, the
State points to the federal-court testimony of Dixon, who said that the defense team did interview
Demeatra and that she “wasn’t any help.” JA 314. But Dixon’s testimony contradicts Demeatra’s
statement that she was not interviewed and Pandilidis’s testimony that they never interviewed her.
Dixon’s memory, moreover, was so flawed that it is difficult to understand how it could be worthy
of credence: He did not recognize the name of one of their two investigators, Vonderhaar, and he
did not remember whether the defense called Demeatra as a defense witness when they clearly did
not. Demeatra said that she would have testified at his trial if asked, and medical records show that
she was seeking professional treatment for her psychological problems at that time and therefore
quite probably could have testified. Even though the district court did not make a specific factual
finding regarding whether the defense interviewed Demeatra, it accepted the allegation that they
did not. See JA 453 (noting Demeatra’s testimony that she was not interviewed without discussing
Dixon’s testimony).
         The State argues that Johnson’s attorneys cannot be held responsible for the evidence not
presented to the jury because none of their interviewees “provide[d] them with” evidence of
Faulkner’s abusive history or the extent of Demeatra’s negative influence on Johnson. First Br. at
42. Uncooperative defendants and family members, however, do not shield a mitigation
investigation (even under AEDPA’s deferential standards) if the attorneys unreasonably failed to
utilize other available sources that would have undermined or contradicted information received.
See Rompilla, 545 U.S. at 381–87 (holding that the state court unreasonably applied Strickland
even where the defendant and other witnesses told his attorneys that his childhood was “normal”).
                                                 2.
        Turning to the prejudice prong of Strickland, we must determine whether Johnson has
shown “a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 466 U.S. at 694. Because the state court ended its
Strickland inquiry at the deficient-performance prong for all categories of evidence relevant to our
holding, see Johnson, 2000 WL 1760225, at *9 (determining only that the evidence that Johnson
“did well in structured environments . . . [did not] demonstrate[] that Johnson was prejudiced”), we
“examine this element of the Strickland claim de novo,” Rompilla, 545 U.S. at 390; see also K &
T Enters., Inc. v. Zurich Ins. Co., 97 F.3d 171, 175 (6th Cir. 1996).
Nos. 06-3846/3847                   Johnson v. Bagley                                        Page 10


        The errors of Johnson’s attorneys, particularly their lack of investigation, had a serious
impact on the mitigation theory presented to the jury. Competent counsel could have put on
evidence that “differ[ed] in a substantial way—in strength and subject matter—from the evidence
actually presented at sentencing.” Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir. 2005). As the
district court found, “not one witness testified about the abuse that [Johnson] and his brother
suffered as a way of life,” and the jury “was misled into believing that [Faulkner] had raised
[Johnson] properly and provided for his needs.” JA 468.
        First, had Johnson’s attorneys interviewed Demeatra or investigated Faulkner’s history,
they would have unearthed a goldmine of mitigating evidence showing that Faulkner was anything
but a saint when it came to raising Johnson. Hospital records show that doctors diagnosed Faulkner
with schizoid personality disorder, which prevented her from forming intimate relationships, and
Dr. Smith, Johnson’s post-conviction expert, testified that Faulkner “had no maternal instincts,”
JA 4411. After trying to abort Demeatra, Faulkner “neglected her [and] rejected her.” JA 4412.
Demeatra testified at an evidentiary hearing that Faulkner beat her regularly with her fists,
extension cords and broom handles and that Faulkner once shot at her with a gun. Faulkner
regularly held uninhibited parties at her house when Demeatra was growing up, and one night,
while Faulkner was passed out naked on the bed, one of Faulkner’s friends forced his way into
Demeatra’s bedroom and raped her.
        As Demeatra’s son, Johnson was an indirect victim of Faulkner’s neglect and abuse, but he
was a direct victim as well. Dr. Smith testified that Faulkner addressed Johnson “with the same
schizoid personality traits . . . that she demonstrated with Demeatra,” that she went through periods
of rejecting Johnson and that her heavy substance abuse and mental illness made her even more
unavailable in his life. JA 4405. Faulkner herself acknowledged at the district court’s evidentiary
hearing that, in accordance with her husband’s wishes, she never showed Johnson any affection
“because [otherwise he would] grow up to be a sissy.” JA 4561. Faulkner went through stages of
rejecting Johnson outright—from threatening to kick Johnson and his brother out of her house when
they cried too much to telling the police that he could not stay with her. She also engaged in
“physically abusive” forms of discipline (by hitting Johnson with belts and switches). JA 4405.
But because Johnson’s counsel did not present this evidence to the jury, as the district court found,
“[t]he jury never learned of Mrs. Faulkner’s blemishes, and was misled into believing that Mrs.
Faulkner was a stable influence in petitioner’s life who did everything she could to help him” and
who “raised him properly and provided for his needs.” JA 467–68.
        Second, had the defense team interviewed Demeatra, they could have presented a detailed
and horrific picture of Demeatra’s role in Johnson’s life. At the mitigation hearing, Johnson’s
attorneys portrayed Demeatra as a mostly absent mother, when the truth is that her early abuse and
on-again-off-again presence in his life had an irreparable and devastating impact on Johnson. A
reasonably competent mitigation counsel could have shown that: (1) Demeatra was a prostitute
who sold herself to buy drugs; (2) she often fed Johnson only sugar water in a bottle; (3) when
Johnson cried, she would put him in a closet (sometimes leaving him there all day) and give him
beer or Percocet (a Schedule II pain killer) to make him stop crying; (4) she hit Johnson regularly
and at times threatened to kill him; (5) she once put a cigarette out on his eye; (6) she once hit
Johnson’s brother with a glass bottle and told the hospital that Johnson had done it; (7) she was
involved in many abusive relationships; (8) Johnson watched his father beat Demeatra; (9)
Demeatra tried to set fire to Johnson’s father; (10) when Johnson was an adolescent, Demeatra
taught Johnson how to cut cocaine, cook it into crack and sell it; and (11) she killed one of her
abusive boyfriends and bragged to Johnson about doing so.
        Yet, due to counsel’s bungling or sheer laziness, the jury heard none of this. “I and the
public know [w]hat all schoolchildren learn,” it has been said, “[t]hose to whom evil is done [d]o
evil in return.” W.H. Auden, “September 1, 1939.” While these words may not capture a
Nos. 06-3846/3847                   Johnson v. Bagley                                          Page 11


satisfactory theory of morality, they assuredly suggest a plausible theory for sparing a life at a
mitigation hearing, see ABA Guideline 10.11(F)(1)–(2), one that on this remarkable record could
well have affected a juror’s vote in the case.
         Third, the deficiencies in the attorneys’ investigation prevented them from using their
mitigation expert, Dr. Hawkins, properly and ultimately led to damaging testimony from him. At
the mitigation hearing, Dr. Hawkins testified that Johnson’s statements had a “poor degree of
reliability,” JA 3286, that Johnson “thought pretty highly of himself,” that Johnson “thought that
he could probably do and get out of most everything” and that Johnson’s “self-image is based on
how well he cons the world,” JA 3294. Hawkins diagnosed Johnson as having an antisocial
personality disorder, which can lead to and reflect a “history of lying . . . and a lack of remorse for
anything you’ve done.” JA 3302–03. Hawkins testified that Johnson was not remorseful “about
the murder,” only “about being incarcerated,” and that Johnson “more than likely” would consider
himself the “victim in this offense.” JA 3315.
         This unhelpful testimony could have been prevented if the attorneys had conducted a
competent investigation and given Hawkins a more complete picture of Johnson’s
background—namely, the remarkably traumatic childhood Johnson suffered at the hands of his
mother and grandmother. Hawkins then might have been able to say, as Dr. Smith did in post-
conviction proceedings, that Johnson’s “chaotic, abusive, neglectful” family “play[ed] a significant
role in the development of Rayshawn’s personality and his addiction to alcohol and drugs and later
mental illness.” JA 4405–06. He could have described the cycles of generational “abusive and
neglectful” parenting that “repeat[] the same behaviors” and lead to “the same outcomes.” JA
4408. He could have described the fact that Johnson’s psychological profile is “almost identical”
to that of his mother; they both had “strong fantasy li[ves]” which is “very common in children who
have suffered from abuse and whose reality is not acceptable to them.” JA 4411. He might have
said, as Smith did, that “having a history of neglect, abandonment [and] abuse . . . set[] [Johnson]
up to be frightened [and] vulnerable,” JA 4410, and had a “pervasive impact” on him, giving him
“little understanding of what is good or right and how to form attachments to others,” JA 4417.
With a more detailed picture of Johnson’s history, Dr. Hawkins might have realized that Johnson
was capable of “relatively respectful and caring relationships” in the right circumstances, JA 4434,
that with the proper attention “Rayshawn did fairly well,” JA 4409, and that if Johnson had not
been abused he could have learned “to act in ways that are more appropriate,” JA 4410.
         Defense attorneys, we recognize, are not obligated to shop for “the ‘best’ experts” who will
testify in the most advantageous way possible. Reynolds v. Bagley, 498 F.3d 549, 557 (6th Cir.
2007). But it is unreasonable, after an incomplete investigation, to put an expert on the stand who
will “directly contradict[] the sole defense theory” and “render worthless” other helpful testimony.
Combs v. Coyle, 205 F.3d 269, 288 (6th Cir. 2000). Even the prosecution called Hawkins’s
testimony “inflammatory,” JA 3356, and said to the jury, “I can’t believe it, but [Hawkins] testified
for the defendant allegedly,” JA 3354–55. Indeed.
        In all three respects, this post-conviction evidence differs from that heard by the jury not
only in degree but also in kind, see Hill, 400 F.3d at 319, and forms a mitigation story that “bears
no relation” to the story the jury heard, Rompilla, 545 U.S. at 393. Strickland is based in part on
the need to preserve “a reliable adversarial testing process,” 466 U.S. at 688, but here the defense
team’s incompetent performance served only to help the prosecutor’s case. Under these
circumstances, there is “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
       Nor can the State sidestep this conclusion on the ground that some of this
information—particularly Faulkner’s deficiencies—could have been gleaned from the documents
submitted to the jury. Even though we generally assume that the jury will consider the evidence
Nos. 06-3846/3847                   Johnson v. Bagley                                         Page 12


admitted, this jury was given no basis for construing and digesting this information: (1) the Human
Services records alone were “about 12 inches thick,” JA 4533, (2) Johnson’s own attorneys failed
to read the records before admitting them into evidence, (3) no mitigation witness ever referred to
the records, (4) Johnson’s attorneys simply told the jury to look at them if they “want[ed] to leaf
through” them, JA 3341, and (5) “leaf[ing]” through the records likely would have discouraged the
jury from reading more closely because the references to Faulkner’s deficiencies were few and
significant portions of the records were not even relevant.
         While our dissenting colleague agrees that de novo review applies to our application of the
prejudice prong to Johnson’s case, see Rompilla, 545 U.S. at 390, he ultimately concludes that
Johnson has not satisfied this requirement. Judge Siler’s thoughtful disagreement with us proves
that the case is a close one, but in our respectful view it does not prove that we should reverse. By
failing to interview Johnson’s mother, Demeatra, Johnson’s attorneys failed to uncover two critical
categories of information that establish “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694. While Johnson’s attorney featured Faulkner as a force for good in his life, later-discovered
evidence showed just the opposite: A jury that imposed death under the Faulkner-as-saint approach
to this case might well have reached a different conclusion had it learned that in truth she
represented one more bad card that Johnson had been dealt. And by interviewing Demeatra,
Johnson’s attorneys also could have discovered not just that his mother was a neglectful drug addict
but also that she committed atrocities on him that the evidence introduced at trial does not begin
to convey: When Johnson cried, she put him in a closet (sometimes for the whole day) and gave
him beer and Percocet to stop the crying; she put a cigarette out in his eye; when he was still an
adolescent, she taught him how to prepare crack cocaine and sell it; and when she hit Johnson’s
brother with a glass bottle, she told the police that Johnson had done it. In our view, the failure to
uncover these pieces of evidence, and others already mentioned, establish prejudice. Cf. Jells, 538
F.3d at 498–501.
                                                 III.
       For these reasons, we affirm.
Nos. 06-3846/3847                   Johnson v. Bagley                                         Page 13


                   _______________________________________________
                    CONCURRING IN PART, DISSENTING IN PART
                   _______________________________________________
        SILER, Circuit Judge, concurring in part and dissenting in part. I have all due respect for
my colleagues in this case. As a consequence, I concur with much of the majority opinion, but I
dissent on part II.B., where the majority concludes that Johnson did not have effective assistance
of counsel at the penalty phase of the trial under Strickland v. Washington, 466 U.S. 668 (1984).
        As the majority states, in order to prevail, Johnson must show both that his representation
was constitutionally deficient and that he was prejudiced as a consequence. Id. at 687. The
majority agrees with the district court that he satisfied both prongs. In the post-conviction
proceedings, the Ohio Court of Appeals found that Johnson’s representation was not
constitutionally deficient. It did not discuss the prejudice prong in full, but found that Johnson was
not prejudiced by the failure of counsel to demonstrate that Johnson “did well in structured
environments.” State v. Johnson, No. C-000090, 2000 WL 1760225, at *9 (Ohio Ct. App. Dec. 1,
2000). As this prejudice prong is much easier to resolve, my dissent primarily discusses that aspect
of the case.
        The majority says that the standard of review is de novo, because the Ohio Court of Appeals
did not rule fully on the prejudice prong. My dissent follows that standard, even though the briefs
for both parties and the oral argument indicated that the standard was the unreasonable application
of federal law by the Ohio Court of Appeals. Nevertheless, Rompilla v. Beard, 545 U.S. 374, 390
(2005), followed this procedure by reviewing the prejudice prong de novo when the state court did
not reach that issue. The majority correctly states that under the prejudice prong of Strickland, we
must determine whether Johnson has shown “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694. We must also remember that the burden of demonstrating prejudice is upon Johnson. Id.
at 693. The district court concluded that Johnson had shown prejudice in counsel’s performance
in one sentence when it said: “There is a reasonable probability that, but for counsel’s errors, the
jury would have concluded that the balance of aggravating and mitigating circumstances did not
warrant death.”
         In order to determine prejudice, we should compare the mitigation evidence offered at trial
and the mitigation evidence that Johnson alleges should have been introduced. Johnson claims that
counsel erred by not presenting the following information: (1) Demeatra Johnson’s dysfunctional
background, drug and alcohol abuse, physical abuse, criminal record, and the effect it had on her
ability to raise Rayshawn; (2) Mirian Faulkner’s dysfunctional background, drug and alcohol abuse
and physical abuse, and the effect it had on her ability to raise Demeatra and Rayshawn; and
(3) Rayshawn Johnson’s dysfunctional background, drug and alcohol abuse, and physical abuse.
         The Ohio Court of Appeals found that most of this additional evidence that Johnson desired
“was cumulative and could be found in some form either in the testimony or in the documents
admitted at the mitigation hearing.” Johnson, 2000 WL 1760225, at *9. It did admit, however, that
the fact that Faulkner allegedly physically abused Johnson was not placed into evidence. Johnson’s
counsel was trying to show that Rayshawn came from a good background furnished by a loving
grandmother, and evidence of abuse by Faulkner would contradict that. Moreover, there was much
evidence that Faulkner did not abuse Rayshawn. Mattie Bobbs, Faulkner’s niece, said that she
never saw Faulkner hit Rayshawn but, instead, treated him like he was her favorite. Wayne Nickels
also said that Faulkner did not abuse Rayshawn, but disciplined him for not cleaning up the kitchen
or his bedroom or for not doing his homework. Moreover, Rayshawn never told his attorneys that
Nos. 06-3846/3847                   Johnson v. Bagley                                          Page 14


Faulkner was physically abusive to him. Instead, he said that his grandmother was “nice,” “always
got me out of trouble,” and was “always on me to do right.”
        A lot of the evidence which the majority suggests could have been uncovered by an
interview of Demeatra or by an investigation of Faulkner’s history shows mistreatment by Faulkner
to Demeatra, not to Rayshawn. The majority also asserts that the defense team did not interview
Demeatra, although that was contradicted by defense counsel Joe Dixon. The majority questions
the credibility of Dixon, but the district court did not make a credibility finding on Dixon, and it
is not for this court to make factual findings. Obviously, Dixon had a flawed memory on some
matters, such as the name of one of the investigators, but we should be ever mindful of the fact that
some period of time passed between the trial in 1998 and the habeas corpus proceeding some six
years later. If we were to find facts, I would credit the statement of Dixon that he had interviewed
Demeatra and she “wasn’t any help.”
        The majority also criticizes the use by defense counsel of Dr. Hawkins, a psychiatrist, their
mitigation expert. Admittedly, Hawkins’s testimony at times was damaging to Johnson, but if
counsel had declined to put Hawkins on the stand, this case might instead be about ineffective
assistance of counsel for failure to use him. The majority admits that defense counsel is not
obligated to shop for “the ‘best’ experts” who will testify in the most advantageous way possible.
See Reynolds v. Bagley, 498 F.3d 549, 557 (6th Cir. 2007). It criticizes the defense for putting
Hawkins on the stand to contradict the defense theory. However, many times counsel cannot coach
expert witnesses into testifying to what they desire. In this case, Hawkins was employed to
determine the presence of mental illness and for other mitigating factors for Johnson. He reviewed
many records, interviewed Johnson, and had an associate administer psychological tests. Defense
counsel cannot put words into a psychiatrist’s mouth, and it would be improper if they had done
so. The majority suggests Hawkins’s testimony “could have been prevented if the attorneys had
given Hawkins a more complete picture of Johnson’s background.” However, nothing in the
record shows that. It is only speculation.
        Moreover, Hawkins provided much of the evidence which was cumulative to that which
Johnson now desires to place into the record. For instance, he testified that Johnson’s family was
“some place between terrible and chaotic.” He testified that Johnson’s mother, Demeatra, was
heavily abusing drugs during her pregnancy and Johnson’s birth, that she had never functioned as
a mother, and that her presence in Johnson’s life, when it occurred, created problems. He also said
that Johnson’s father, a drug abuser, was a nonentity in Johnson’s life. Hawkins also testified that
Johnson began using many drugs and alcohol at age twelve or thirteen and was a chronic drug
abuser. He said that Johnson’s step-grandfather, Vernon Faulkner, may have had a drinking
problem, that right and wrong were not enforced very well in the home, that there was no male role
model to speak of, and that petitioner was surrounded by negative peer pressure.
        The majority also criticizes the fact that the defense put in many documents as evidence
during the mitigation phase of trial, without further summarizing them. That is true, but it still does
not show that the result of the proceeding would have been different had they summarized them.
The majority criticizes the fact that many irrelevant documents were presented to the jury, but no
prejudice occurred as a result of that procedure.
       This case differs from most other ineffective assistance of counsel cases because here six
persons, including trial counsel, conducted a mitigation investigation that took approximately two
months. The defense also presented the testimony of Johnson’s foster mother, Norma Berry,
Faulkner, and Hawkins, as well as Johnson’s own unsworn statement and various records which
were not well organized. This is in contrast to the evidence presented in Wiggins v. Smith, 539 U.S.
510, 515 (2003), where the only mitigating evidence was the age of the defendant and the fact that
he had no prior criminal record. Similarly, in Powell v. Collins, 332 F.3d 376, 398-99 (6th Cir.
Nos. 06-3846/3847                   Johnson v. Bagley                                        Page 15


2003), trial counsel spent about two days preparing for mitigation and did not interview any family
members or friends of the defendant. Instead, this case is closer to Smith v. Mitchell, 348 F.3d 177,
200 (6th Cir. 2003), where we found that virtually all of the mitigating evidence which was
allegedly omitted was presented during mitigation. As stated in Hill v. Mitchell, 400 F.3d 308, 319
(6th Cir. 2005), “in order to establish prejudice, the new evidence that a habeas petitioner presents
must differ in a substantial way--in strength and subject matter--from the evidence actually
presented at sentencing.” In that case, the description of the evidence that a prepared mitigation
specialist could have presented did not stand “out to the jury in such a way as to change the
calculation the jury previously made when weighing the aggravating and mitigating circumstances
of the murder.” Id.
        We must be highly deferential to the performance of counsel. “It is all too tempting . . . to
second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a
court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular
act or omission of counsel was unreasonable.” Strickland, 466 U.S. at 689. Moreover, we need
to make every effort “to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Id. We should not succumb “to the very temptation that Strickland
warned against.” Rompilla v. Beard, 545 U.S. 374, 408 (2005) (Kennedy, J., dissenting). I am not
convinced that Johnson has shown that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694. Therefore, I would reverse the decision of the district court in granting the writ.
