       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2      Williams v. Bagley                         No. 02-3461
    ELECTRONIC CITATION: 2004 FED App. 0268P (6th Cir.)
                File Name: 04a0268p.06                    GENERAL’S OFFICE OF OHIO, Columbus, Ohio, Michael
                                                          L. Collyer, ATTORNEY GENERAL’S OFFICE OF OHIO,
                                                          Cleveland, Ohio, for Appellee.
UNITED STATES COURT OF APPEALS
                                                            ROGERS, J., delivered the opinion of the court, in which
              FOR THE SIXTH CIRCUIT                       SUTTON, J., joined. MERRITT, J. (pp. 79-88), delivered a
                _________________                         separate dissenting opinion.

 WILLIE WILLIAMS, JR.,            X                                            _________________
         Petitioner-Appellant, -                                                   OPINION
                                   -
                                   -  No. 02-3461                              _________________
           v.                      -
                                    >                        ROGERS, Circuit Judge. An Ohio jury convicted the
                                   ,                      petitioner, William J. Williams, Jr., of four counts of
 MARGARET BAGLEY, Warden, -
                                                          aggravated murder, and, on the jury’s recommendation, the
        Respondent-Appellee. -                            trial court sentenced Williams to death. After unsuccessfully
                                 N                        challenging his convictions and sentence on direct appeal and
      Appeal from the United States District Court        in state post-conviction proceedings, Williams filed a petition
       for the Northern District of Ohio at Akron.        for a writ of habeas corpus, which set forth twenty-four
      No. 00-02103—James Gwin, District Judge.            claims for relief, in the United States District Court for the
                                                          Northern District of Ohio. The district court denied
               Argued: January 29, 2004                   Williams’s petition, finding that Williams had procedurally
                                                          defaulted the majority of his claims and rejecting the balance
          Decided and Filed: August 13, 2004              of his claims on the merits. However, it issued Williams a
                                                          certificate of appealability for all claims, and Williams’s
  Before: MERRITT, ROGERS, and SUTTON, Circuit            appeal is now before the court. For the following reasons, we
                    Judges.                               affirm the judgment of the district court.

                  _________________                                              BACKGROUND

                       COUNSEL                            I. THE MURDERS.

ARGUED: John B. Gibbons, Cleveland, Ohio, for                The Ohio Supreme Court made the following factual
Appellant. Carol Ann Ellensohn, ATTORNEY GENERAL’S        findings on direct review:
OFFICE OF OHIO, Columbus, Ohio, for Appellee.
ON BRIEF: John B. Gibbons, Cleveland, Ohio, John F.           Williams controlled the drug trafficking at the
McCaffrey, McLAUGHLIN & McCAFFREY, Cleveland,                 Kimmelbrooks housing project in east Youngstown,
Ohio, for Appellant. Carol Ann Ellensohn, ATTORNEY            Ohio. After an extended absence from the area, Williams
                                                              returned to find that Alfonda R. Madison, Sr., William L.

                            1
No. 02-3461                        Williams v. Bagley        3   4      Williams v. Bagley                          No. 02-3461

 Dent, Eric Howard, and others had taken over the drug               looking for Madison and Howard, who were roommates.
 trade at the Kimmelbrooks project. Williams wanted to               Jessica answered the door and told Wynn that Madison
 regain control of the drug business, so he decided to rob           was not home and Howard was asleep. As Wynn walked
 and kill Madison and others.                                        back towards his car, Williams told Jessica to call Wynn
                                                                     back into the house because Wynn could identify them.
 Williams had three juvenile accomplices: his sixteen-               Inside the house, Williams held Wynn at gunpoint and
 year-old girlfriend Jessica M. Cherry; her sixteen- or              handcuffed him.
 seventeen-year-old brother, Dominic M. Cherry; and
 Dominic Cherry’s seventeen-year-old “cousin” (i.e., best            Upon William’s orders, Jessica walked to a pay phone
 friend), Broderick Boone. On August 27, 1991,                       and called and asked for Dent for the purpose of luring
 Williams bought walkie-talkies at a Radio Shack store.              him to the house. When Dent arrived with Howard,
 The devices had a combined microphone-earphone                      Williams and his accomplices ambushed them and forced
 earpiece that left the user’s hands free. Williams also             them to lie down in the bathroom. Williams strangled
 bought batteries and duct tape. Williams, Dominic, and              Madison and Wynn, and then instructed Jessica to turn
 Broderick later tested the walkie-talkies.                          up the stereo. Going from room to room, Williams shot
                                                                     each of the four victims in the head with Madison’s gun.
 Before the murders, Williams outlined his plan to his
 three accomplices. During this meeting, Williams drew               The group left Madison’s house, but Williams, according
 interior and exterior diagrams of Madison’s house.                  to Jessica, went back in “to make sure they were all
 Williams later ordered Dominic to burn these, but                   dead.” Later, back at Williams’s apartment, he embraced
 Dominic burned only one diagram. In addition, Williams              his juvenile accomplices and rewarded them with drugs.
 supplied each accomplice with a gun. Williams                       Williams warned them not to tell anyone what they had
 purchased Jessica’s gun from a neighbor.                            done or he would kill them.
 On September 1, 1991, Jessica met with Madison and                  The next day, September 2, 1991, Williams and Jessica
 discussed a drug deal. Later that night, Williams and his           were driving to pick up Williams’s son in Youngstown
 three accomplices arrived at Madison’s home by car.                 when another car rammed theirs and the people in the
 Williams armed the three juvenile accomplices with guns             other car shot at them. Jessica and Williams fled the
 and a walkie-talkie and sent them inside, while he waited           scene. When Jessica and Williams returned to the
 outside with a walkie-talkie. Once inside, the three                vicinity of the accident, officers transported them to the
 accomplices drew their guns on Madison. Then, after                 Youngstown Police Department and later released them
 receiving word via walkie-talkie that the situation was             after questioning them about the traffic accident. Later
 secure, Williams, armed with a semiautomatic, entered               that night, Williams, Jessica, Dominic, and Broderick
 the house carrying a duffel bag containing handcuffs,               fled to Pennsylvania. Williams and the three juveniles
 duct tape, and gloves. Inside, Williams handcuffed and              returned to the Youngstown area and parted company.
 bound Madison and put tape over his mouth.
                                                                     On September 24, 1991, Dominic turned himself in, and
 Thirty to forty-five minutes later, Theodore Wynn, Jr., a           gave a statement about the murders. Later, officers
 recently discharged Air Force sergeant, came to the door,           arrested Jessica and Broderick, and the latter also gave
No. 02-3461                                  Williams v. Bagley          5    6       Williams v. Bagley                                  No. 02-3461

  statements. Following their arrests, Jessica, Dominic,                      II. PROCEDUR AL HISTORY .
  and Broderick were held at the Mahoning County
  Juvenile Justice Center (“JJC”).                                               While Williams was a fugitive, a Mahoning County Grand
                                                                              Jury returned a nine count indictment against Williams. After
  Williams was arrested in connection with the murders.                       his capture, a Mahoning County Grand Jury returned a
  Shortly after being arrested, he escaped from jail on                       superseding indictment charging Williams with twelve counts
  October 15, 1991. While Williams remained a fugitive                        of aggravated murder, four counts of kidnapping, and one
  from justice, a Mahoning County Grand Jury indicted                         count of aggravated burglary. Each of the aggravated murder
  him on four counts of aggravated murder, four counts of                     counts included a pair of felony-murder specifications and a
  kidnapping, and one count of aggravated burglary.                           multiple-murder specification, which rendered Williams
                                                                              eligible for the death penalty. See Ohio Rev. Code Ann.
  On January 12, 1992, the armed Williams and two other                       § 2929.04(A) (Anderson 2003).
  accomplices, Paul R. Keiper, Jr., and a juvenile named
  Eric Fields, appeared at the JJC. The three deceived a                         Williams entered a plea of not guilty to all charges and
  receptionist and were permitted to enter. Once inside,                      specifications. On Williams’s motion, the trial court
  Williams held the receptionist and a deputy sheriff                         transferred venue from Mahoning County to Summit County.
  hostage, demanding to see Jessica, Dominic, and                             At the guilt phase of his trial, the jury found Williams guilty
  Broderick.     After lengthy negotiations, Williams                         of all charges and specifications. On Williams’s motion, the
  surrendered to authorities. At trial, Keiper testified that                 trial court merged the twelve aggravated murder counts into
  Williams planned to kill the three juveniles because he                     four counts and the three specifications per count into a single
  knew they had made statements to the police regarding                       multiple-murder specification per count. At the penalty phase
  the murders.                                                                of his trial, the jury recommended a sentence of death for each
                                                                              count of aggravated murder, and the trial court adopted this
  ***                                                                         recommendation.2 Additionally, the trial court sentenced
                                                                              Williams for the kidnapping and aggravated burglary
  Jessica, Dominic, and Broderick all entered into plea                       convictions.
  agreements with the Mahoning County Prosecutor’s
  Office. All three pled guilty to delinquency by reason of
  complicity to aggravated murder, complicity to
  aggravated burglary, and complicity to kidnapping. All
  three testified against Williams.
State v. Williams, 679 N.E.2d 646, 650-51 (Ohio 1997).1                           2
                                                                                    Under Ohio’s capital punishment scheme, a jury must recommend
                                                                              a sentence of death if it finds, by proof beyond a reasonable doubt, that
                                                                              the aggravating circumstances the offender was found guilty of
                                                                              committing outweigh the mitigating factors. Ohio Rev. Code A nn.
                                                                              § 2929.03(D)(2) (Anderson 2003). If the jury recommends a sentence of
                                                                              death, the trial court must independently review the eviden ce. If it finds,
                                                                              beyo nd a reasonable doubt, that the aggravating circumstances outweigh
   1
                                                                              any mitigating factors, the trial court must impo se a sentence of death. Id.
       “Williams” has been substituted for “the appellant” in this excerpt.   § 2929.03(D)(3)
No. 02-3461                                  Williams v. Bagley            7    8    Williams v. Bagley                           No. 02-3461

  Williams appealed, raising nine assignments of error.3 On                     Ohio’s capital punishment scheme, in the Ohio Court of
November 1, 1995, the Ohio Court of Appeals affirmed the                        Common Pleas. The matter sat dormant until October 20,
judgment and sentence of the trial court. In addition to                        1998, when the state filed a motion for leave to respond to
overruling Williams’s assignments of error, the court                           Williams’s petition. The court granted the motion, finding
concluded that the aggravating circumstances outweighed the                     that the state had not received proper notice of the petition.
mitigating factors and that Williams’s sentence was not                         On October 29, 1998, the state moved for summary judgment,
disproportionate to the death sentences imposed in similar                      arguing that Williams’s sole claim was barred by the doctrine
cases.4 On June 11, 1997, the Ohio Supreme Court affirmed                       of res judicata. In his response, which was filed on November
the judgment of the Ohio Court of Appeals. In addition to                       19, 1998, Williams ignored the constitutional issue raised in
rejecting Williams’s propositions of law, the court concluded                   his petition and instead requested leave to amend his petition.
that the aggravating circumstances outweighed the mitigating                    He claimed that he was attempting to interview his
factors and that Williams’s sentence was neither excessive                      accomplices, who had testified against him at trial, and that he
nor disproportionate when compared to the sentences imposed                     expected Jessica Cherry to recant her original testimony.
in similar cases. On January 12, 1998, the United States
Supreme Court denied Williams’s petition for writ of                              On December 15, 1998, the court denied Williams’s
certiorari.                                                                     petition. It held that the doctrine of res judicata barred
                                                                                Williams’s constitutional challenge to Ohio’s capital
  Williams fared no better in state post-conviction                             punishment scheme. Further, it denied Williams a hearing on
proceedings. On September 20, 1996, Williams filed his                          his actual innocence claim on the ground that he had not
Petition to Vacate or Set Aside Sentence, which set forth a                     presented any affidavits or other evidence supporting his
single cause of action challenging the constitutionality of                     contention that his accomplices intended to recant their
                                                                                testimony.

    3
                                                                                  On December 24, 1998, Williams filed a motion requesting
      Spe cifically, he raised the following issues: (1) juro r misco nduc t;   permission to interview Broderick Boone, one of his
(2) denial of challenges for cause to “automa tic death penalty” jurors;        accomplices, who was then incarcerated. On the same day,
(3) sufficiency of the evidence; (4) admission of “other acts” evidence;
(5) prosecutorial misconduct; (6) denial of motion to suppress the results
                                                                                Williams filed a motion requesting that the court reconsider
of an “atomic ab sorption” test; (7) limitatio ns on cross-examination of       and vacate its order denying his petition, arguing that he
Do minic Cherry; (8) constitutionality of Ohio’s capital punishment             needed time to interview his accomplices. On January 5,
scheme; and (9) denial of motion to qua sh the ind ictment due to               1999, the court denied both motions.
irregularities in the selection of the gra nd jury.

    4
                                                                                  Williams appealed to the Ohio Court of Appeals,
      Under Ohio’s capital punishment scheme, the Ohio Court of                 contending that the Court of Common Pleas had abused its
Appeals and the Ohio Supreme C ourt each must ind ependently review the         discretion by denying his request for a court order permitting
record and “determine whether the aggravating circumstances the
offender was found guilty of committing outweigh the mitigating factors
                                                                                an interview of Broderick Boone and by refusing to permit
in the case, and whether the sentence of death is appropriate.” Ohio Rev.       him to amend his petition. On November 17, 1999, the court
Code Ann. § 2929.05(A) (Anderson 2003 ). In determining whether a               affirmed the judgment of the Court of Common Pleas. On
sentence of death is appropriate, the courts must consider “whether the         February 16, 2000, the Ohio Supreme Court declined
sentence is excessive or disp roportionate to the penalty imposed in similar    jurisdiction over Williams’s appeal, finding that it did not
cases.” Id.
No. 02-3461                                  Williams v. Bagley           9    10       Williams v. Bagley                                No. 02-3461

involve any substantial constitutional questions. On                           However, on April 15, 2002, the district court amended its
October 2, 2000, the United States Supreme Court denied                        April 12 order and issued Williams a certificate of
Williams’s petition for writ of certiorari.                                    appealability. Williams filed a timely notice of appeal.
   On August 18, 2000, Williams filed a Notice of Intent to                                                  ANALYSIS
File Habeas Corpus Petition in the United States District
Court for the Northern District of Ohio. Counsel was                           I. STANDARDS OF REVIEW
appointed, and, on January 31, 2001, Williams filed his
Petition for a Writ of Habeas Corpus, which raised 24 claims                     A. Standard of Review and AEDPA
for relief.5 On February 20, 2001, Williams filed a motion to
conduct discovery pursuant to Rule 6 of the Rules Governing                       In a habeas proceeding, this court reviews a district court’s
Section 2254 Cases. On June 22, 2001, the district court                       legal conclusions de novo and its factual findings for clear
denied Williams’s motion, holding that Williams had not                        error. Wickline v. Mitchell, 319 F.3d 813, 817 (6th Cir.
demonstrated “good cause” entitling him to discovery. On                       2003). However, when a district court bases its decision on
April 12, 2002, the district court denied Williams’s petition.                 a transcript from the petitioner’s state trial, and thus makes no
It held that Williams had procedurally defaulted the majority                  credibility determinations or other apparent findings of fact,
of his claims and that the balance of his claims lacked merit.                 the district court’s factual findings are reviewed de novo.
The district court also denied Williams’s request for an                       Miller v. Francis, 269 F.3d 609, 613 (6th Cir. 2001).
evidentiary hearing, finding that no material factual dispute
made such a hearing necessary. On the same day, the district                      The standards set forth in the Antiterrorism and Effective
court denied Williams a certificate of appealability.                          Death Penalty Assistance Act (“AEDPA”) govern our review
                                                                               of the state court decisions because Williams filed his petition
                                                                               on January 31, 2001, well after AEDPA’s effective date of
    5                                                                          April 24, 1996.6 See Woodford v. Garceau, 538 U.S. 202,
      W illiams raised the following issues in his petition: (1) juror bias;   210 (2003); Macias v. Makowski, 291 F.3d 447, 450 (6th Cir.
(2) retention of “automatic death penalty” jurors; (3) improper dismissal
of jurors; (4) Batson claim; (5) ineffective assistance of counsel at the
                                                                               2002). Pursuant to AEDPA, a writ of habeas corpus will not
guilt phase of trial; (6) prosecutorial misconduct; (7) Brady violations;      issue unless the state court’s adjudication of the claim
(8) denial of right to expe rts; (9) various errors b y trial court;
(10) admission of crime-scene photographs; (1 1) lack of a comp lete             (1) resulted in a decision that was contrary to, or
transcript of pro ceed ings; (12 ) cumulative error; (13) ineffective            involved an unreasonable application of, clearly
assistance at the penalty phase of trial; (14) ineffective assistance of         established Federal law, as determined by the Supreme
app ellate counsel; (15) improper aggravating circumstances; (16)
omission of mitigation evidence at the penalty phase of trial; (17)              Court of the United States; or
improper jury instruction on sympathy at the p enalty phase; (18) lack of
meaningful proportionality review; (19) improper standards of review
employed by the O hio appellate courts; (20) lack of adeq uate state post-
conviction      procedures; (21) constitutionality of Ohio’s capital
punishment scheme; (22) aggravating factors did not outweigh mitigating
factors; (23 ) allocation to the defendant of the burden of production for          6
mitigating evidence during the penalty phase; and (2 4) failure of Ohio’s            W illiams’s argument that AE DP A wo uld have an im perm issible
capital punishment scheme to narrow the class of persons eligible for the      retroactive effect if applied to his petition is discussed infra in Section
death penalty.                                                                 I(B).
No. 02-3461                          Williams v. Bagley      11    12    Williams v. Bagley                            No. 02-3461

  (2) resulted in a decision that was based on an                    In all cases in which a state prisoner has defaulted his
  unreasonable determination of the facts in light of the            federal claims in state court pursuant to an independent
  evidence presented in the State court proceeding.                  and adequate state procedural rule, federal habeas review
                                                                     of the claims is barred unless the prisoner can
28 U.S.C. § 2254(d) (2001). Under the “contrary to” clause,          demonstrate cause for the default and actual prejudice as
a court may grant a writ of habeas corpus “if the state court        a result of the alleged violation of federal law, or
arrives at a conclusion opposite to that reached by [the             demonstrate that failure to consider the claims will result
Supreme Court] on a question of law or if the state court            in a fundamental miscarriage of justice.
decides a case differently than [the Supreme Court] has on a
set of materially indistinguishable facts.” Williams v. Taylor,    Coleman v. Thompson, 501 U.S. 722, 750 (1991).
529 U.S. 362, 412-13 (2000). Under the “unreasonable
application” clause, a court may grant a writ of habeas corpus       B. Applicability of AEDPA Where Conviction
“if the state court identifies the correct governing legal              Predated AEDPA
principle from [the Supreme Court’s] decisions but
unreasonably applies that principle to the facts of the               In this case, Williams’s petition was filed after the effective
prisoner’s case.” Id. at 413.                                      date of AEDPA, but he was convicted before that date.
                                                                   Williams contends that the application of AEDPA is therefore
  “[C]learly established Federal law, as determined by the         “impermissibly retroactive” pursuant to Landgraf v. USI Film
Supreme Court of the United States,” refers to “the holdings,      Products, 511 U.S. 244 (1994). Without elaboration, he
as opposed to the dicta, of [the Supreme] Court’s decisions as     recites that the application of AEDPA to his petition “attaches
of the time of the relevant state-court decision.” Id. at 412.     new legal consequences to pre-enactment conduct” by
The state court decision need not cite Supreme Court cases,        “affecting [his] substantive rights,” by “changing the legal
or even evince an awareness of Supreme Court cases, “so            consequences of pre-enactment conduct,” by “giving a quality
long as neither the reasoning nor the result of the state-court    or effect to acts which they lacked or failed to contemplate
decision contradicts them.” Early v. Packer, 537 U.S. 3, 8         prior [to] their performance,” and by “changing the relief that
(2002) (per curiam).                                               is available by restricting [his] right to such relief.” This
                                                                   argument is unavailing.
   Moreover, the findings of fact made by a state court are
presumed correct, and the petitioner has the burden of                Landgraf establishes a two-part inquiry to assess whether
rebutting the presumption of correctness by clear and              to apply “a federal statute enacted after the events in suit.” Id.
convincing evidence. 28 U.S.C. § 2254(e)(1). The                   at 280; see also Singleton v. Smith, 241 F.3d 534, 541 (6th
presumption of correctness also applies to factual findings        Cir. 2001). First, the court must “determine whether
made by a state appellate court based on the state trial record.   Congress has expressly prescribed the statute’s proper reach.
Brumley v. Wingard, 269 F.3d 629, 637 (6th Cir. 2001)              If Congress has done so, there is no need to resort to judicial
(citing Sumner v. Mata, 449 U.S. 539, 546-47 (1981)).              default rules.” Landgraf, 511 U.S. at 280. Second, if “the
                                                                   statute contains no such express command, the court must
  Finally, under long-standing law, claims which have been         determine whether the new statute would have retroactive
procedurally defaulted generally are not subject to review. In     effect, i.e., whether it would impair rights a party possessed
particular,                                                        when he acted, increase a party’s liability for past conduct, or
No. 02-3461                          Williams v. Bagley     13    14   Williams v. Bagley                           No. 02-3461

impose new duties with respect to transactions already            effect because the petitioner “might well have waited to file
completed,” in which case the traditional presumption against     that initial motion” had he foreseen AEDPA’s revision of
retroactive legislation applies. Id. In determining whether a     § 2255).
statute would have a retroactive effect, “familiar
considerations of fair notice, reasonable reliance, and settled   II. THE TRIAL COURT’S REFUSAL               TO   INVESTIGATE
expectations offer sound guidance.” Id. at 270. “A statute            ALLEGED JUROR BIAS
does not operate ‘retrospectively’ merely because it is applied
in a case arising from conduct antedating the statute’s             Each of Williams’s challenges to the trial court’s conduct
enactment.” Id. at 269.                                           of voir dire is, in the end, without merit.

   This court, in line with other circuits, has held that the       A. Background
application of AEDPA to an application filed after AEDPA’s
effective date, but which involves a crime and a conviction          Williams argues that the trial court committed
predating AEDPA, does not have a “retroactive effect.” Lott       constitutional error by refusing to reexamine a venireman
v. Coyle, 261 F.3d 594, 604 n.3 (6th Cir. 2001) (deeming          (Juror Eddleman) after the testimony of another venireman
petitioner’s argument that the application of AEDPA to a          indicated that Eddleman may have concealed prior knowledge
petition challenging a pre-AEDPA conviction “would be             of the case on voir dire, by failing to dismiss Eddleman for
unconstitutionally retroactive under Landgraf . . . wholly        cause because of alleged bias, and by failing to dismiss for
without merit”); Caldwell v. Bell, Nos. 99-6219 & 99-6307,        cause another venireman (Juror Rohwedder) who testified to
2001 WL 549419, at **2 (6th Cir. May 17, 2001) (“Other            overhearing conversations about “fear” of Williams. We note
than making the general assertion that his ‘legal expectations    at the outset that Williams has not cited—either in his brief or
and entitlements were abruptly altered on April 24, 1996’         at oral argument—any Supreme Court precedent in support of
when the AEDPA was enacted, Appellant advances no reason          his claims. We therefore have been left to find for ourselves
why this case constitutes an exception to the general rule        the clearly established Federal law, as determined by the
which requires the amendments to apply to petitions filed         Supreme Court, underlying his argument.
after April 24, 1996.”); Coe v. Bell, 209 F.3d 815, 823 (6th
Cir. 2000); Trice v. Ward, 196 F.3d 1151, 1158-59 (10th Cir.        The Sixth Amendment, made applicable to the States
1999); Mueller v. Angelone, 181 F.3d 557, 571 (4th Cir.           through the Fourteenth Amendment, guarantees a criminal
1999). Williams has not demonstrated that his case merits a       defendant a trial by an impartial jury. Morgan v. Illinois, 504
different result, given his failure to identify “any new legal    U.S. 719, 726-27 (1992). “In essence, the right to jury trial
consequences that, had he known of them in advance, might         guarantees to the criminally accused a fair trial by a panel of
have in any way affected his conduct before filing his habeas     impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717,
petition,” Mueller, 181 F.3d at 572, and his failure to show      722 (1961). The presence of even a single biased juror
that he had acquired any vested rights in pre-AEDPA               deprives a defendant of his right to an impartial jury. See
standards of review. Compare In re Hanserd, 123 F.3d 922,         Morgan, 504 U.S. at 729. “Qualified jurors need not,
931 (6th Cir. 1997) (holding that the application of revised §    however, be totally ignorant of the facts and issues involved.”
2255, which would have barred the petitioner, who had filed       Murphy v. Florida, 421 U.S. 794, 799-800 (1975).
his first § 2255 motion prior to AEDPA’s enactment, from
filing a second § 2255 motion, would have had retroactive
No. 02-3461                          Williams v. Bagley     15    16    Williams v. Bagley                           No. 02-3461

  To hold that the mere existence of any preconceived             [renders] the defendant’s trial fundamentally unfair.” Id. at
  notion as to the guilt or innocence of the accused,             425-26.
  without more, is sufficient to rebut the presumption of a
  prospective juror’s impartiality would be to establish an         Because the “[p]reservation of the opportunity to prove
  impossible standard. It is sufficient if the juror can lay      actual bias is a guarantee of a defendant’s right to an impartial
  aside his impression or opinion and render a verdict            jury.” Dennis v. United States, 339 U.S. 162, 171-72 (1950),
  based on the evidence presented in court.                       questions directed at potential bias may be constitutionally
                                                                  compelled. For example, when faced with the prospect of
Irvin, 366 U.S. at 723. When faced with an allegation of bias,    racial bias, a federal habeas court must inquire whether
then, the question becomes “did a juror swear that he could       “under all of the circumstances presented there was a
set aside any opinion he might hold and decide the case on the    constitutionally significant likelihood that, absent questioning
evidence, and should the juror’s protestation of impartiality     about racial prejudice, the jurors would not be as ‘indifferent
have been believed.” Patton v. Yount, 467 U.S. 1025, 1036         as (they stand) unsworne.’” Ristaino v. Ross, 424 U.S. 589,
(1984). A trial court’s finding of impartiality is a factual      596 (1976) (quoting Coke on Littleton 155b (19th ed. 1832));
determination entitled to 28 U.S.C. § 2254(e)’s presumption       see also Turner v. Murray, 476 U.S. 28, 36-37 (1986)
of correctness, Dennis v. Mitchell, 354 F.3d 511, 520 (6th Cir.   (holding that a capital defendant accused of an interracial
2003), and may “be overturned only for ‘manifest error.’”         crime is entitled to have prospective jurors informed of the
Hill v. Brigano, 199 F.3d 833, 843 (6th Cir. 1999) (quoting       race of the victim and questioned on the issue of racial bias).
Patton, 467 U.S. at 1031).                                        However, the Supreme Court has “stressed the wide
                                                                  discretion granted to the trial court in conducting voir dire in
  “[P]art of the guarantee of a defendant’s right to an           the area of pretrial publicity and in other areas of inquiry that
impartial jury is an adequate voir dire to identify unqualified   might tend to show juror bias.” Mu’Min, 500 U.S. at 427.
jurors.” Morgan, 504 U.S. at 729. “Without an adequate voir
dire the trial judge’s responsibility to remove prospective         Clearly established Supreme Court precedent dictates that
jurors who will not be able impartially to follow the court’s     “[w]hen a trial court is presented with evidence that an
instructions and evaluate the evidence cannot be fulfilled.”      extrinsic influence has reached the jury which has a
Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981).         reasonable potential for tainting that jury, due process
However, “[t]he adequacy of voir dire is not easily the subject   requires that the trial court take steps to determine what the
of appellate review,” Morgan, 504 U.S. at 730, and “the trial     effect of such extraneous information actually was on that
court retains great latitude in deciding what questions should    jury.” Nevers v. Killinger, 169 F.3d 352, 373 (6th Cir. 1999),
be asked on voir dire.” Mu’min v. Virginia, 500 U.S. 415,         overruled on other grounds by Harris v. Stovall, 212 F.3d 940
424 (1991). Of course, when reviewing a state court’s             (6th Cir. 2000); cf. United States v. Rigsby, 45 F.3d 120, 124-
conduct of voir dire, a federal habeas court’s “authority is      25 (6th Cir. 1995) (“When there is a credible allegation of
limited to enforcing the commands of the United States            extraneous influences, the court must investigate sufficiently
Constitution.” Id. at 422. A state court’s refusal to pose        to assure itself that constitutional rights of the criminal
“constitutionally compelled” questions merits habeas relief.      defendant have not been violated.”); United States v.
Id. at 424-26. Questions are “constitutionally compelled”         Shackelford, 777 F.2d 1141, 1145 (6th Cir. 1985) (“A trial
only if “the trial court’s failure to ask these questions         court’s refusal to permit an evidentiary hearing may constitute
                                                                  abuse of discretion when the alleged jury misconduct involves
No. 02-3461                                 Williams v. Bagley         17     18    Williams v. Bagley                           No. 02-3461

extrinsic influences.”). Extrinsic influences include, for                       Finally, in McDonough Power Equipment, Inc. v.
example, an attempt to bribe a juror, a juror’s application for               Greenwood, 464 U.S. 548 (1984), the Supreme Court devised
a job in the district attorney’s office, and newspaper articles               a test for determining whether a juror’s non-disclosure during
and media attention.7 United States v. Herndon, 156 F.3d                      voir dire necessitates a new trial. To obtain a new trial, a
629, 635 (6th Cir. 1998).                                                     party “must first demonstrate that a juror failed to answer
                                                                              honestly a material question on voir dire, and then further
   As indicated above, “[t]here is no per se rule that mere                   show that a correct response would have provided a valid
exposure to media reports about a case merits exclusion of a                  basis for a challenge for cause.” Id. at 556. “The motives for
juror.” McQueen v. Scroggy, 99 F.3d 1302, 1319 (6th Cir.                      concealing information,” the court explained, “may vary, but
1996); see also DeLisle v. Rivers, 161 F.3d 370, 382 (6th Cir.                only those reasons that affect a juror’s impartiality can truly
1998) (en banc) (“[M]ere prior knowledge of the existence of                  be said to affect the fairness of a trial.” Id. Thus,
the case, or familiarity with the issues involved, or even some               McDonough teaches that the deliberate concealment of
preexisting opinion as to the merits, does not in and of itself               information on voir dire does not automatically give rise to a
raise a presumption of jury taint.”). “To the contrary, in order              presumption of bias. Zerka v. Green, 49 F.3d 1181, 1186 (6th
to merit disqualification of a juror, the media reports must                  Cir. 1995). “If a juror is found to have deliberately concealed
engender a predisposition or bias that cannot be put aside,                   material information, bias may be inferred. If, however,
requiring the jury to decide a case one way or the other.”                    information is not concealed deliberately, the movant must
McQueen, 99 F.3d at 1319. Generally, a defendant’s right to                   show actual bias.” Id. (internal quotation marks omitted)
an impartial jury is secured if a juror attests that he can set               (emphasis in original).
aside any information he has obtained and render a verdict
based on the evidence presented in court. Irvin, 366 U.S. at                    B. Trial Court’s Refusal to Reexamine Juror
722-23; DeLisle, 161 F.3d at 382.                However, in                       Eddleman
“extraordinary” cases, DeLisle, 161 F.3d at 382, where the
trial atmosphere has been “utterly corrupted by press                           Williams argues that the trial court imperiled his right to an
coverage,” Murphy, 421 U.S. at 798, a court must presume                      impartial jury by failing to dismiss Juror Eddleman for bias
that pre-trial publicity has engendered prejudice in the                      after evidence arose which arguably indicated that she
members of the venire. See, e.g., Sheppard v. Maxwell, 384                    concealed prior knowledge of the case during voir dire and by
U.S. 333, 358, 363 (1966) (finding that “inherently prejudicial               refusing to reexamine Eddleman in light of that evidence. We
publicity [] saturated the community” and that a “carnival                    conclude that the Ohio Supreme Court did not unreasonably
atmosphere” reigned at trial); Irvin, 366 U.S. at 726                         determine that Eddleman was not biased and did not
(“[C]ontinued adverse publicity caused a sustained                            unreasonably apply clearly established federal law in holding
excitement and fostered a strong prejudice” among the people                  that the trial court had not abused its discretion by refusing to
of the county.).                                                              reexamine Eddleman.


    7
       Examples of “internal” influences, in contrast, include the behavior
of jurors during deliberations, the jurors’ ability to hear and comp rehend
trial testimony, and the physical and mental incompetence of a juror.
United States v. Herndon, 156 F.3d 629 , 634 -35 (6 th Cir. 1998 ).
No. 02-3461                                      Williams v. Bagley   19   20    Williams v. Bagley                           No. 02-3461

   During voir dire, Eddleman denied having any prior                        this person or whatever. But the gist of what I got was
knowledge of the case.8 Later in voir dire, another                          just what I told the Judge, that someone had told her, and
venireman, Juror Parsons, claimed that Eddleman had told her                 I don’t know if it was her husband talked to someone or
that Eddleman “heard [the case] was from Youngstown and                      whatever, just that there was a case in Youngstown and
it had something to do with drugs,” but that Eddleman “didn’t                it involved drugs.
know if that was true.” J.A. at 2765. Under further
questioning, Parsons elucidated,                                             Oh, there was something else. I said, “This case is two
                                                                             years old, who can remember what you read two years
   To tell you the truth, I was only half listening because I                ago?” And she said—I said, “Why would it take two
   don’t know if she had her information correct. She said                   years for the case to come to court?” And she said they
   that she had spoken to someone who lived in                               were unable to find the gentleman. I forgot about that.
   Youngstown and was familiar with the case and that it                     And that was all that was said.
   involved drugs and that’s all she knew and that’s all she
   told me, who read it in the newspaper, I believe. And                   J.A. at 2784-85.
   that’s basically all she knew. I don’t even know, like I
   said, if that’s correct. She didn’t know if that’s correct.               Later, defense counsel requested that the court reexamine
                                                                           Eddleman in light of Parsons’s testimony. J.A. at 3026-27.
J.A. at 2782. She further explained,                                       The court tentatively denied the request, but agreed to give
                                                                           the matter further consideration. J.A. at 3032-33. However,
   I don’t know whether she herself had the conversation.                  at this time, the court did give a general instruction to the
   She said—like I said, I was only half listening because I               venire admonishing the members not to discuss the case
   didn’t know if it was true or not and really didn’t care.               among themselves or with others and to avoid media reports
   I don’t know whether it was someone in her family had                   about the case. J.A. at 3033-35. Additionally, in its
   spoken to someone in Youngstown or she had spoken to                    preliminary instruction to the jury, the court ordered the jurors
                                                                           to disregard any information about the case from an outside
                                                                           source and not to repeat any such information to other jurors.
     8
         Spe cifically, the following colloquy tran spired :               J.A. at 3617. The court never called Eddleman back for
                                                                           further questioning.
     THE COURT: . . . Do you know any of the perso ns in this
     room , any parties?
                                                                             At the start of trial, Williams moved for a mistrial, arguing,
     JURO R EDD LEMAN : No, I don’t.                                       inter alia, that the court had jeopardized Williams’s right to
                                                                           a fair trial by refusing to reexamine Eddleman, who was
     THE COURT : Do you know anything about this case?                     seated on the jury, in order to determine whether Eddleman
                                                                           had deliberately concealed prior knowledge of the case and
     JUROR ED DLEM AN: No.                                                 whether any prior knowledge of the case had prejudiced
     THE CO URT: Except what I said?                                       Eddleman. J.A. at 617-18. The court denied Williams’s
                                                                           motion, reasoning that “[a]ll of the jurors selected testified
     JURO R EDD LEMAN : Just what I’ve heard thro ugh you.                 that they would be fair, impartial and base their verdict solely
                                                                           upon the evidence presented at trial.” J.A. at 892.
J.A. at 2 715 .
No. 02-3461                           Williams v. Bagley      21    22       Williams v. Bagley                                No. 02-3461

  Both the Ohio Court of Appeals and the Ohio Supreme               the defendant or the case.” J.A. at 31. The district court
Court held that the trial court had not abused its discretion by    rejected Williams’s argument, concluding that the state
refusing to examine Eddleman further. The Ohio Court of             courts’ findings that Eddleman was not biased and had not
Appeals found that Eddleman had not deliberately concealed          deliberately concealed material information were not
her knowledge of the case, as Eddleman’s responses to the           unreasonable. J.A. at 143. It stated, “accepting the testimony
court’s questions “were not necessarily inconsistent” with the      that Eddleman was not aware of the accuracy of her
remarks later attributed to her by Parson because “at best,         statements, the court’s determination that Eddleman’s
[Eddleman] seemed to have heard some gossip, the truth of           responses on voir dire were truthful is not unreasonable in
which was uncertain.” State v. Williams, No. 16418, 1995            light of the facts presented.” J.A. at 144.
WL 641137, at *7 (Ohio. Ct. App. 1995). The court further
determined that, even if Eddleman had deliberately concealed           On appeal, Williams contends that Eddleman was biased
information, “this fact would not inescapably lead to a             against him and that the trial court “abused its discretion”
presumption of bias” because “[t]he information that                when it refused to recall Eddleman for further questioning.
Eddleman purportedly knew and concealed—that the case               Though Williams’s argument is somewhat muddy, there are
was from Youngstown, it involved drugs, and that the state          three distinct circumstances possibly underpinning his claim
was unable to locate Williams for a period of time—consisted        of bias. First, Eddleman may have lied about her prior
of elemental facts concerning the case.” Id.                        knowledge of the case on voir dire.9 Second, Eddleman knew
                                                                    that Williams’s case “involved drugs,” that the case originated
   Because Williams had not challenged Eddleman for cause           in Youngstown, and that Williams had eluded the authorities.
on the ground of deliberate concealment, the Ohio Supreme           Third, Eddleman learned of this information through a
Court reviewed his claim under Ohio’s plain error rule. State       conversation with a third party, most likely an acquaintance
v. Williams, 679 N.E.2d 646, 652 (Ohio 1997). The court             in Youngstown or a member of her family (who in turn had
found that Eddleman had not “deliberately concealed the             learned of the information from someone in Youngstown).
conversation because she did not know whether those rumors
were true. Thus, her voir dire response was truthful—she did          In light of the record as it exists, the Ohio courts did not
not know anything about the case.” Id. The court also held          unreasonably determine that Eddleman was not biased.
that the trial court sufficiently inquired into the alleged         Williams insists that bias should be attributed to Eddleman
misconduct. Id. at 652-53. The chief justice, joined by             because she lied about her prior knowledge of the case on voir
another justice, dissented, stating that the majority’s “strained   dire.10 However, the record does not establish that Eddleman
and unlikely interpretation of Eddleman’s response” neither         deliberately concealed information on voir dire because there
eliminated “legitimate concerns of concealment” nor absolved
the trial court of “the obligation to investigate further in
defense of Williams’s constitutional rights.” Id. at 665                 9
                                                                          In evaluating Williams’s claim, we assume that Pa rsons accurately
(Moyer, C.J., dissenting).                                          identified Eddleman as the woman she spoke with.

                                                                         10
   In his federal habeas petition, Williams asserted that the               The Ohio Supreme Court found that because Williams did not
trial court “abused its discretion” by failing to reexamine         challenge Eddleman on this ground, Williams waived this claim.
Eddleman to determine whether she “had improperly                   Williams, 679 N.E.2d at 652. Ho wever, because the State has not relied
                                                                    on W illiams’s procedural default in this regard, we p roceed to the merits
answered or evaded inquiries concerning [her] knowledge of          of W illiams’s claim . See Trest v. C ain, 522 U.S. 87, 89 (1 997).
No. 02-3461                                  Williams v. Bagley         23     24    Williams v. Bagley                           No. 02-3461

are eminently reasonable explanations for her negative answer                  of the trial. Finally, there is no indication that the source of
to the trial court’s question, “Do you know anything about                     Eddleman’s information attempted to influence Eddleman in
this case?” See Jones v. Cooper, 311 F.3d 306, 311-12 (4th                     any manner.
Cir. 2002) (“Given these eminently reasonable explanations
for the supposed discrepancies between the juror’s voir dire                      The rub, then, is whether the Ohio Supreme Court
answers and the statements to the investigator, there is simply                unreasonably applied Ristaino, Mu-Min, or other Supreme
no basis upon which to conclude that the juror lied . . . .”).                 Court precedent on jury bias and the conduct of voir dire
Eddleman may have misunderstood the court’s question or                        when it denied Williams’s request to reexamine Eddleman.
her “knowledge” of the case may have temporarily slipped                       Ideally, of course, the trial court would have called Eddleman
her mind. Or, as the Ohio Court of Appeals and the Ohio                        back for further questioning in order to determine whether in
Supreme Court recognized, Eddleman may have responded                          fact Eddleman had prior knowledge of the case, whether any
truthfully as her “knowledge” consisted of “gossip” of                         prior knowledge left her with any impressions or opinions
questionable veracity. 11 Moreover, as discussed infra, even                   concerning the case, whether she could set aside any such
if Eddleman deliberately concealed information, that fact                      impressions or opinions, and whether she deliberately
alone does not give rise to a presumption of bias. Thus,                       concealed any prior knowledge. Upon final analysis, though,
Williams cannot use Eddleman’s alleged lie to show that the                    we cannot say that the trial court’s failure to recall Eddleman
Ohio Supreme Court unreasonably determined that Eddleman                       rendered Williams’s trial fundamentally unfair. Mu’Min, 500
was not biased.                                                                U.S. at 425-26. The Sixth Amendment does not obligate state
                                                                               trial courts to investigate every allegation of bias or juror
  Nor do the substance or the source of Eddleman’s prior                       misconduct. See id. at 427 (noting the “wide discretion
knowledge of the case demonstrate that the Ohio courts                         granted to the trial court in conducting voir dire in the area of
unreasonably determined that Eddleman was not biased. “[I]n                    pretrial publicity and in other areas of inquiry that might tend
order to merit disqualification of a juror, the media reports                  to show juror bias”); Szuchon v. Lehman, 273 F.3d 299, 313
must engender a predisposition or bias that cannot be put                      (3d Cir. 2001); cf. United States v. Rigsby, 45 F.3d 120, 125
aside,” McQueen, 99 F.3d at 1319, and, as the Ohio Court of                    (6th Cir. 1995). Rather, a constitutional duty of inquiry arises
Appeals observed, the information that Eddleman purportedly                    only when “under the circumstances presented there was a
concealed consisted of “elemental facts,” Williams, 1995 WL                    constitutionally significant likelihood that, absent questioning
641137, at *7, which Eddleman learned anyway in the course                     about [the potential bias], the jurors would not be as
                                                                               indifferent as (they stand) unsworne,” Ristaino, 424 U.S. at
                                                                               596 (internal quotation marks omitted), or when “a trial court
    11
                                                                               is presented with evidence that an extrinsic influence has
       Bo th the Ohio Court of Appeals and the Ohio Suprem e Court             reached the jury which has a reasonable potential for tainting
found that Eddleman responded truthfully to the trial court’s question         that jury.” Nevers, 169 F.3d at 373. Here, Williams has not
because she did not know whether the “gossip” she heard was accurate.
Given the state of the record, this is a reasonable factual determination.     shown that the Ohio appellate courts unreasonably concluded
Nonetheless, however probab le the O hio ap pellate court’s explanation for    that there was no constitutionally significant likelihood that,
Eddleman’s answer, it is possib le that Eddleman lied to the trial court.      absent questioning of Eddleman about her prior knowledge of
Thus, the Ohio Supreme Court’s finding that Eddleman’s response was            the case, a biased juror (Eddleman) would sit on Williams’s
truthful does not by itself entirely dispose of Williams’s argument that the   jury.
trial court should have reexamined Eddleman in light of Parsons’s
testimony.
No. 02-3461                                   Williams v. Bagley          25     26    Williams v. Bagley                           No. 02-3461

  Williams’s primary argument, as far as we can tell, is that                    United States v. Langford, 990 F.2d 65, 69 (2d Cir. 1993)
further inquiry would have disclosed that Eddleman lied in                       (refusing to recognize “a per se rule based simply on whether
response to the trial court’s question about her “knowledge”                     a prospective juror had lied, without respect to whether the
of the case and that this act of dishonesty would have enabled                   dishonesty had a bearing on her impartiality”); cf. United
Williams to challenge Eddleman for cause on the ground of                        States v. Boney, 977 F.2d 624, 634 (D.C. Cir. 1992) (refusing
bias. The Ohio Supreme Court’s finding on a limited record                       to hold that “any false statement or deliberate concealment by
that Eddleman responded truthfully to the court’s question                       a juror necessitates an evidentiary hearing”). As the Supreme
does not logically foreclose Williams’s argument that further                    Court has held, “[t]he motives for concealing information
questioning should have been allowed so that Williams could                      may vary, but only those reasons that affect a juror’s
demonstrate the contrary, but the Ohio Supreme Court’s                           impartiality can truly be said to affect the fairness of a trial.”
opinion can fairly be read as an explanation for why further                     McDonough, 464 U.S. at 556. Thus, courts have presumed
inquiry was not constitutionally required. Overall, it was                       bias in cases where a juror has engaged in a pattern of deceit
unlikely, at best, that Eddleman deliberately concealed her                      or has concealed information that bears on his impartiality.
“knowledge” of the case. Williams offers no rationale for                        For instance, Williams v. Taylor, 529 U.S. 420, 441-42
Eddleman’s alleged prevarication,12 and it appears most                          (2000), held that an evidentiary hearing was merited where a
probable that Eddleman either deemed the “gossip”                                juror had concealed that she had been represented by the
unresponsive to the court’s question, as the Ohio appellate                      prosecutor in her divorce and that she had been married to a
courts supposed, or misapprehended the question. The Ohio                        state witness, a deputy sheriff. And in Fields v. Woodford,
Supreme Court’s opinion thus reasonably supports the trial                       309 F.3d 1095, 1105-06 (9th Cir. 2002), the court held that an
court’s determination not to have Eddleman questioned                            evidentiary hearing was necessary because a juror in a rape
further.                                                                         case concealed the fact that his wife had been raped. See also
                                                                                 Green v. White, 232 F.3d 671, 677-78 (9th Cir. 2000) (a juror
   Moreover, even if Eddleman had deliberately concealed                         repeatedly concealed his prior conviction in order to get on
prior knowledge of the case, this conduct would not have                         the jury and stated during jury deliberations that he knew the
given rise to a presumption of bias on her part. As discussed                    defendant was guilty the minute he saw him and he wished he
earlier, a court may, but need not, presume bias if a juror                      could get a gun and shoot the defendant himself); Dyer v.
deliberately conceals material information on voir dire.                         Calderon, 151 F.3d 970, 982-83 (9th Cir. 1998) (en banc) (a
Zerka, 49 F.3d at 1186; see also Fuller v. Bowersox, 202 F.3d                    juror in a murder trial lied repeatedly about her brother’s
1053, 1056 (8th Cir. 2000) (holding that “a juror’s apparent                     murder and refused to admit that certain of her relatives had
dishonesty is not a sufficient predicate to obtaining a new                      been accused of crimes and that she herself had been a crime
trial” (internal quotation marks and punctuation omitted));                      victim). Conversely, courts have refused to presume bias
                                                                                 where the juror’s dishonesty does not suggest partiality. The
                                                                                 court in Solis v. Cockrell, 342 F.3d 392, 393, 399 (5th Cir.
    12                                                                           2003), refused to presume bias where a juror failed to reveal
         In fact, the transcript of Ed dlem an’s voir dire belies any argument
that Eddleman intentionally lied abou t her “knowledge” of the c ase in          the fact that he lived near the defendant and had “known of”
order to stay on the jury. H ad E ddleman been intent upon sitting on the        the defendant for more than 20 years. The court in Jones held
jury, she presumably wo uld have stated forthrightly that she co uld set         that a juror’s failure to disclose that she had relatives who had
aside any partiality for the d eath penalty and follow the court’s sentencing
instructions, instead of vacillating in her answers as she did. See Section
                                                                                 been arrested or subject to trials did not create an implication
III(B ), infra.                                                                  of bias. 311 F.3d at 311, 313. And in Langford, the court
No. 02-3461                                  Williams v. Bagley          27     28    Williams v. Bagley                            No. 02-3461

found no bias because the juror gave false answers to avoid                     Rohwedder reported that she overheard “chatting” and
embarrassment. 990 F.2d at 69-70. In the case at bar,                           “gossip” among other members of the venire about the case.
Williams offers no explanation as to how a finding that                         J.A. at 3080. When asked whether she heard anyone say
Eddleman deliberately concealed her “knowledge” of the case                     “anything about being afraid of Mr. Williams or his family,”
might lead to a finding that Eddleman was biased, and we                        she responded, “Maybe in a general sense, that because of the
have identified none.                                                           nature of the case there’s fear.” J.A. at 3080-81. She
                                                                                elaborated,
   Further, as the Ohio Court of Appeals concluded, the
substance of the purportedly concealed information would not                      I think there’s a very high emotional level right now and
have enabled Williams to challenge Eddleman for cause.                            with all, like you said, the waiting, the speculation, the
Neither knowledge of “elemental facts,” which were disclosed                      not knowing, the anxiety part of it, and it’s very
at trial, nor a conversation with a family member or a friend                     unnecessary. I feel that a lot of it has just mushroomed
about the case, prior to impanelment, would disable                               and it’s too bad because you don’t have to be talking 24
Eddleman from serving as an impartial juror.13 As we said in                      hours a day, you don’t have to be worrying about things
Scott v. Mitchell, 209 F.3d 854, 879 (6th Cir. 2000),                             that you shouldn’t have to worry about. I find fault with
“[a]llegations of jury bias must be viewed with skepticism                        that part of the process.
when the challenged influence occurred before the jurors took
their oath to be impartial.” In summary, Williams has not                       J.A. at 3081. However, she volunteered, “I don’t think
explained how further questioning of Eddleman might have                        anything that has been said in my presence has affected my
yielded a finding that Eddleman was biased. Therefore, we                       opinion of anything. I’m just here to do what you ask me to
cannot conclude that the Ohio courts unreasonably applied                       do.” J.A. at 3081-82.
clearly established federal law in refusing to reexamine
Eddleman.                                                                         Also during voir dire, Rohwedder opined that “[i]t’s not
                                                                                just an ordinary day at the courthouse” because people
  C. Juror Rohwedder’s “Fear”                                                   entering the courthouse were required to pass through
                                                                                security, and she admitted “[i]t’s a little unnerving.” J.A. at
  Williams’s contention that Juror Rohwedder was biased                         3082. However, the judge clarified that the security system
because she overheard conversations among other veniremen                       had not been put in place for Williams’s trial but instead had
about “fear” of Williams is without merit. During voir dire,                    been implemented earlier in the year. J.A. at 3083-84.
                                                                                Specifically, he advised that “since this case started I think all
                                                                                the employees go through it, or basically. I think that’s the
    13
       The cases cited by Williams provide an instructive comparison. In        only change. We’ve had the security for months. And it had
United States v. Herndon, 156 F.3d 629, 636-37 (6th Cir. 1998), a hearing       nothing to do with this case at all. It had to do with the
was required b ecause the juro r may have ha d unsucce ssful business           judges wanting more security in the building.” J.A. at 3084.
dealings with defendant. In United States v. Walker, 1 F.3d 423 , 429 (6th
Cir. 1993), a hearing was required b ecause jurors were given transcripts
                                                                                When asked whether “there is an impression in your mind
containing highlighted material which had been redacted from copies of          then that Mr. Williams probably did this and that’s why there
video tapes shown to the jury at trial. Finally, in United States v. Herring,   has to be extra security,” Rohwedder replied, “Not
568 F.2d 1099, 11 03-04 (5th Cir. 1978), a hearing was required b ecause        necessarily. I think everybody has to be guarded. There’s a
jurors were potentially exposed during a trial to a newspap er article          problem. You know, here we are.” J.A. at 3085.
reporting death threats against a prosecution witness.
No. 02-3461                            Williams v. Bagley      29    30   Williams v. Bagley                           No. 02-3461

   Williams did not challenge Rohwedder for cause and                that she did not think that “anything that has been said in my
mentioned Rohwedder only in passing in his motion for a              presence has affected my opinion of anything.” J.A. at 3080-
mistrial. Nevertheless, neither of the Ohio appellate courts         81. Similarly, after the court clarified that security at the
invoked the plain error rule in reviewing Williams’s claim.          courthouse had not been heightened due to Williams’s trial
The Ohio Court of Appeals held that the trial court had not          but rather had been improved months earlier, Rohwedder
abused its discretion by failing to conduct further inquiry as       indicated that this would not affect her impartiality. J.A. at
to Rohwedder, noting that “Rohwedder stated that the venire          3083-85.      In light of Rohwedder’s declarations of
members talked about the trial, but that no specifics were           impartiality, the Ohio courts’ finding of impartiality was a
discussed.” Williams, 1995 WL 641137, at *7. The Ohio                reasonable determination of the facts in light of the evidence
Supreme Court held that the trial court had not abused its           presented, and Williams has not succeeded in rebutting the
discretion by permitting Rohwedder to sit on the jury,               presumption of correctness afforded this finding. Simply put,
explaining that, although Williams claimed that Rohwedder            Williams has not identified any constitutional error possibly
“was biased because she allegedly overheard discussion about         meriting habeas relief in the trial court’s treatment of
security and possible retaliation . . . Rohwedder indicated that     Rohwedder.
she had heard no such discussion.” Williams, 679 N.E.2d at
652.                                                                   D. Trial Court’s Failure to Conduct Additional Voir
                                                                          Dire
  In his federal habeas petition, Williams referred to
Rohwedder’s testimony regarding “juror discussion about fear            In the course of challenging the seating of Eddleman and
of the defendant” and her “observation of heightened                 Rohwedder on the jury, Williams asserts that the trial judge
security,” in the course of arguing that the trial court failed to   failed “to properly discharge his duty to guarantee, to a
examine potential jurors “to assure [Williams] that an               reasonable degree of certainty, that Petitioner received a fair
impartial jury was impaneled.” J.A. at 30, 32. Interpreting          trial from twelve jurors. In the face of actual juror
the mention of Rohwedder as a challenge to Rohwedder’s               misconduct and bias, the trial judge limited the voir dire
impartiality, the district court held that “the state court was      examination of suspect jurors and abdicated his
reasonable in determining that Rohwedder was not biased.”            responsibilities altogether to make further inquiry.” To the
J.A. at 144. On appeal, Williams adopts the district court’s         extent that this statement represents a challenge to the trial
construction of his claim, arguing that Rohwedder “was               court’s failure to conduct additional voir dire of jurors other
clearly biased as she testified to juror discussion about fear of    than Eddleman and Rohwedder, Williams’s claim falls short.
[Williams] and that the observation of heightened security           Williams has not shown that pre-trial publicity rose to a level
increased the emotional level of jurors.”                            which infringed his right to a fair trial. See Hill, 199 F.3d at
                                                                     844. Nor has he identified any particular juror who sat on his
  Whatever the particulars of his claim, Williams has not            case, other than Eddleman and Rohwedder, who he believes
shown that the trial court acted unreasonably with regard to         was prejudiced against him. The Ohio Supreme Court held
Rohwedder. Williams has not explained what further                   that the trial judge had not acted “unreasonably or arbitrarily
questioning of Rohwedder was, in his estimation,                     restricted examination or investigation into the
constitutionally required. Likewise, the charge of bias is           preconceptions of prospective jurors.” Williams, 679 N.E.2d
without merit. Rohwedder testified that she had heard                at 653. As Williams offers only the above-quoted passage in
“[n]othing specific” concerning juror fear of Williams, and
No. 02-3461                                  Williams v. Bagley         31     32     Williams v. Bagley                                  No. 02-3461

support of any claim, we cannot say that the Ohio Supreme                        A trial court’s finding as to a juror’s impartiality is a factual
Court unreasonably applied clearly established federal law.                    determination entitled to a presumption of correctness under
                                                                               28 U.S.C. § 2254(e)(1). See Bowling v. Parker, 344 F.3d
III. CHALLENGES FOR CAUSE                 TO   “AUTOMATIC DEATH                487, 519 (6th Cir. 2003); Miniel v. Cockrell, 339 F.3d 331,
     PENALTY ” JURORS                                                          338-39 (5th Cir. 2003). “[O]ur review is deferential,
                                                                               respecting the trial judge’s proximity to the venire and the
   The Ohio courts did not unreasonably apply the Supreme                      determinations of credibility and demeanor that voir dire
Court’s decision in Morgan v. Illinois, 504 U.S. 719 (1992),                   involves.” Wolfe v. Brigano, 232 F.3d 499, 502 (6th Cir.
in denying Williams’s challenges for cause to a pair of                        2000). “The question is not whether the trial judge was
alleged “automatic death penalty” jurors.                                      wrong or right in his determination of impartiality, but merely
                                                                               whether his decision was ‘fairly supported by the record.’”
  A. Legal Standard                                                            Bowling, 344 F.3d at 519 (quoting Witt, 469 U.S. at 433).
  A capital defendant may challenge for cause any                                B. Challenge for Cause to Juror Eddleman
“automatic death penalty” juror—i.e., any juror who would
“vote to impose death automatically if the jury found the                         The state courts did not make an unreasonable
defendant guilty.” Morgan, 504 U.S. at 728. As a general                       determination of fact in denying Williams’s challenge for
rule, a defendant may excuse a juror for cause if “the juror’s                 cause to Juror Eddleman. Initially, when questioned by the
views would prevent or substantially impair the performance                    court, Eddleman expressed her reluctance to impose the death
of his duties as a juror in accordance with his instructions and               penalty. Later, when pressed by defense counsel, Eddleman
his oath.” Id. (quoting Wainwright v. Witt, 469 U.S. 412, 424                  did testify that she would “probably” sentence a capital
(1985)). Applying this rule in the capital context, “[a] juror                 defendant to death, given that any life sentence would carry
who will automatically vote for the death penalty in every                     with it parole eligibility.15 However, she professed a
case will fail in good faith to consider the evidence of                       “dislike” of all the sentencing options, and described a vote
aggravating and mitigating circumstances as the instructions                   for a sentence of death as a “difficult decision.” More
require him to do.” Id. at 729. “Therefore, based on the                       importantly, later, in response to specific questioning by the
requirement of impartiality embodied in the Due Process                        trial court and defense counsel, she stated that she could
Clause of the Fourteenth Amendment, a juror may challenge                      follow the court’s instructions and recommend a sentence of
for cause any prospective juror who maintains such views.”                     life imprisonment with parole eligibility if the aggravating
Id.14                                                                          circumstances did not outweigh the mitigating factors. Thus,
                                                                               the trial court’s conclusion that Eddleman could serve
                                                                               impartially is fairly supported by the record.
    14
       In his brief, W illiams comm ents that he “was forced to use                 15
numerous peremptory challenges to remove [auto matic d eath penalty]                   At the time o f Williams’s trial, the possible penalties for an
jurors for the court’s failure to excuse them for cause.” However, if a        offender found guilty of an aggravated murd er charge and a death-penalty
defendant remo ves a challenged juror by using a p erem ptory challenge,       specification were death, life imprisonment with parole eligibility after
he forgoes a later challenge to the trial court’s decision not to excuse the   serving twenty full years of imprisonment, or life imprisonm ent with
juror for cause. Bowling v. Parker, 344 F.3d 48 7, 521 (6th Cir. 2003);        paro le eligibility after serving thirty full years of imp risonm ent. Ohio
Wolfe v. Brigano, 232 F.3d 49 9, 502 (6th Cir. 2000).                          Rev. Cod e Ann. § 2929 .03(C)(2 ) (And erson 199 3).
No. 02-3461                          Williams v. Bagley     33   34   Williams v. Bagley                          No. 02-3461

  The court asked Eddleman several questions at the outset         THE COURT: And if you unanimously find the
concerning her willingness to recommend a death sentence to        aggravating circumstances outweigh the mitigating
the court.                                                         factors, then you would be required to make a
                                                                   recommendation of death sentence.
  COURT: . . . If you find yourself in that situation, could
  you make such a recommendation to the Court, that is,              The converse is true if you don’t find that. That is, if
  the defendant receive the death sentence?                        the State fails to prove the aggravating circumstances
                                                                   outweigh the mitigating factors, then you have to
  JUROR EDDLEMAN: I believe in the death sentence                  recommend a life sentence and then decide which life
  but I think I would have a hard time deciding that’s             sentence: 20 to life or 30 to life.
  what—
                                                                   JUROR EDDLEMAN: I understand. Okay.
  THE COURT: It is a difficult decision to make.
                                                                   THE COURT: Now, I know it’s not easy. Could you
  JUROR EDDLEMAN: It is.                                           follow the instructions of the Court?
  THE COURT: There is no question about it.                        JUROR EDDLEMAN: Yes, I could.
  JUROR EDDLEMAN: The way I look at it is if you                 J.A. at 2718-19.
  were going to say the death sentence, that you should be
  willing to be one of the ones that would be there and            Later during voir dire, defense counsel questioned
  push the button or pull the lever, whatever they do. And       Eddleman at length about her ability to impose a life sentence
  I just don’t think I could do that.                            with parole eligibility.
  THE COURT: Nor would you ever be asked to.                       [DEFENSE COUNSEL]: The flip side of the sentencing
                                                                   issue, which I’m interested in, is whether or not you
  JUROR EDDLEMAN: I know that.                                     would fairly consider the two life imprisonment
                                                                   sentencing alternatives if you were ever called upon to
  THE COURT: However, the Court will give you                      determine the sentence. Do you know what those two
  instructions of law, both at the end of the first phase and      alternative are? The judge discussed them with you.
  also at the end of the second phase.
                                                                   JUROR EDDLEMAN: Life.
  JUROR EDDLEMAN: Uh-huh.
                                                                   [DEFENSE COUNSEL]: With parole eligibility after
  THE COURT: And you and the balance of the jury                   serving 20 full years is one alternative. The other is life
  would weigh in the second phase the aggravating                  with parole eligibility after serving 30 full years.
  circumstances against the mitigation—mitigating factors.
                                                                   JUROR EDDLEMAN: No, I wouldn’t.
  JUROR EDDLEMAN: Right.
                                                                   [DEFENSE COUNSEL]: I’m sorry, you wouldn’t?
No. 02-3461                        Williams v. Bagley    35   36   Williams v. Bagley                         No. 02-3461

 JUROR EDDLEMAN: If he was convicted of the                    [DEFENSE COUNSEL]: I understand that’s what you
 murders I would say no, I would not consider that with        are saying. Are you telling me that if the defendant were
 parole.                                                       convicted, that because there’s a possibility of parole
                                                               after 20 years or after 30 years that you would
 [DEFENSE COUNSEL]: Okay. Do you want to tell me               automatically vote for the death penalty?
 why not?
                                                               JUROR EDDLEMAN: Oh—
 JUROR EDDLEMAN: Because if the murders were
 committed I don’t—I don’t believe that they should ever       [DEFENSE COUNSEL]: Would you?
 be released.
                                                               JUROR EDDLEMAN: No. I couldn’t say that. I guess
 ***                                                           I don’t like any three of the choices, is what I’m saying.
 [DEFENSE COUNSEL]: I will candidly tell you that I
 am now a little concerned that you cannot fairly consider     ***
 the two life sentencing options. My concern is based
 upon what you just told me about being unable to              [DEFENSE COUNSEL]: So that may make the rest of
 consider them if the defendant was eligible for parole at     this easy since you don’t like either of the three. Do you
 some point in time.                                           dislike them equally or do you dislike one more than the
                                                               others?
 JUROR EDDLEMAN: I wouldn’t—I do not believe that
 there should even be parole considered if somebody            JUROR EDDLEMAN: Let’s see. I would say I dislike
 would have committed the murder. That’s what I mean.          all of them.

 [DEFENSE COUNSEL]: I understand. I understand                 [DEFENSE COUNSEL]: Okay.
 that that’s how you feel and there are whole segments of
 society that feel the same way you do. I may feel the         JUROR EDDLEMAN: I mean, you know.
 same way you do. But how I feel doesn’t account for
 anything in this case. And how you feel about eligibility     [DEFENSE COUNSEL]: What are we going to do about
 for parole only bears upon this case if you cannot set        that? You dislike all that.
 your feelings aside and follow the instructions of the
 Court. Am I making sense so far?                              JUROR EDDLEMAN: Change the rules.

 JUROR EDDLEMAN:               Just a minute.       So I       [DEFENSE COUNSEL]: Call our legislators, see if we
 would—well, what I’m saying, I would not believe in the       can get a quick—
 parole so therefore I would not be able to, if it was not     JUROR EDDLEMAN: Yes.
 the death sentence, I would not feel comfortable with the
 20 year and the parole or the 30 year and the parole.         [DEFENSE COUNSEL]: You understand that you only
                                                               have those three options if you get to the point—
No. 02-3461                         Williams v. Bagley     37   38   Williams v. Bagley                         No. 02-3461

 JUROR EDDLEMAN: Those three options, if it came                  [DEFENSE COUNSEL]: Is your bottom line, if I have
 right down to it, it would probably be the death penalty         to determine the sentence I’ll vote death because there’s
 then. If there was any remote chance of them being               eligibility for parole?
 paroled, I would probably go with the death penalty.
                                                                  JUROR EDDLEMAN: Yes.
 [DEFENSE COUNSEL]: Automatically, just because of
 the possibility of parole?                                     J.A. at 2728-35.

 JUROR EDDLEMAN: Yes.                                              Following this exchange, the trial judge questioned
                                                                Eddleman about her ability to follow the court’s instructions
 [DEFENSE COUNSEL]: And you are saying that even                at sentencing.
 though you know that these three alternatives should start
 out even in your mind? You are being honest with me.             THE COURT: If you find that the State did not do its
                                                                  job and you find the State did not prove that the
 JUROR EDDLEMAN: Yes.                                             aggravating circumstances outweighed the mitigating
                                                                  factors, then you must recommend a life sentence. There
 [DEFENSE COUNSEL]: And because of what you are                   are two options.
 saying about the death penalty being automatic, because
 of the eligibility of parole, you would be unable to fairly      JUROR EDDLEMAN: Two options.
 consider life imprisonment, am I right?
                                                                  THE COURT: You the jury would then decide, if that
 JUROR EDDLEMAN: If it was without ever a chance                  were the case, whether it would be 20 years to life or 30
 of parole, yes.                                                  years to life. As pointed out by counsel there’s no
                                                                  eligibility for parole until that minimum time is served,
 [DEFENSE COUNSEL]: That’s not the way it is.                     be it 20 or 30. And not you or me determine after that if
                                                                  he has been rehabilitated, if he should be let out in
 JUROR EDDLEMAN: Since we don’t have a choice I                   society, the parole authority does that.
 would say the death penalty.
                                                                    But knowing that’s your choice, first finding whether
 [DEFENSE COUNSEL]: And you say that knowing that                 the State proved aggravating circumstances outweighed
 there are these life sentencing options that you should          the mitigating factors then you must give the death
 consider?                                                        penalty, or if you find they didn’t prove [this] then you
                                                                  must vote for a life sentence. Can you follow the
 JUROR EDDLEMAN: Because whenever I think about                   instructions of law?
 it I would think well, maybe 30 years down the line
 somebody may be getting out of prison and might meet             JUROR EDDLEMAN: Yes.
 up with one of my children or something. That’s what
 I’m thinking of whenever I think of it.                          THE COURT: You see your choice basically is in the
                                                                  finding of aggravating circumstances, whether they
 ***                                                              outweigh the mitigating factors. If you find the State
No. 02-3461                           Williams v. Bagley     39   40    Williams v. Bagley                           No. 02-3461

  didn’t do their job and didn’t prove it then you must             JUROR EDDLEMAN: Let me explain this. Depending
  recommend life.                                                   on the evidence, I don’t know how to explain it.
  JUROR EDDLEMAN: Life.                                             [DEFENSE COUNSEL]: Take a deep breath and just
                                                                    tell us how you feel.
  THE COURT: If you find the State did it then you—that
  is beyond a reasonable doubt—then you must find for the           JUROR EDDLEMAN: Depending on the evidence, I
  death penalty. Do you understand that?                            don’t know. I don’t know.
  JUROR EDDLEMAN: Yes.                                              [DEFENSE COUNSEL]: Let me ask you one final
                                                                    question.
J.A. at 2736-37.
                                                                    JUROR EDDLEMAN: Rephrase it, please.
  Finally, defense counsel again questioned Eddleman about
her ability to follow the court’s instructions given her            [DEFENSE COUNSEL]: If you had to go into a second
opposition to parole.                                               phase here would these three possible penalties start out
                                                                    equally in your mind?
  [DEFENSE COUNSEL]: Right now you have taken an
  oath to tell us the truth and obviously that’s what you are       JUROR EDDLEMAN: Yes, equally.
  telling us. Your feelings regarding parole eligibility, will
  that affect the balancing that the Judge described for          J.A. at 2737-39.
  you?
                                                                     The trial court denied Williams’s challenge for cause to
  JUROR EDDLEMAN: No, I don’t believe so.                         Eddleman without comment (J.A. at 2740), and the Ohio
                                                                  appellate courts affirmed this ruling. The Ohio Court of
  [DEFENSE COUNSEL]: Do you think you could set                   Appeals held that the trial court did not abuse its discretion by
  these feelings aside or do you think you cannot set these       denying Williams’s challenge for cause. It noted that, after
  feelings aside?                                                 Eddleman gave “conflicting statements” concerning her
                                                                  ability to consider a life sentence given the parole eligibility,
  JUROR EDDLEMAN: Well, depending upon the                        “the trial court voir dired her and determined that she would
  evidence and everything I probably could.                       follow the instructions on the law.” State v. Williams, No.
                                                                  16418, 1995 WL 641137, at *9 (Ohio Ct. App. Nov. 1, 1995).
  [DEFENSE COUNSEL]: Okay. I’m a little confused.                 It concluded that “Eddleman’s answers, on the whole, did not
  You understand why I’m confused or not?                         indicate that her views would impair her performance as a
                                                                  juror.” Id.
  JUROR EDDLEMAN: Okay.
                                                                     The Ohio Supreme Court also held that the trial court did
  [DEFENSE COUNSEL]: Okay.                                        not abuse its discretion in denying Williams’s challenge for
                                                                  cause. It conceded that Eddleman “vacillated in her responses
                                                                  to questions concerning the death penalty.” State v. Williams,
No. 02-3461                          Williams v. Bagley      41    42     Williams v. Bagley                                        No. 02-3461

679 N.E.2d 646, 654 (Ohio 1997). However, it noted that, in        presented, and Williams has failed to rebut the presumption
response to the trial court’s questioning, Eddleman “indicated     of correctness properly afforded such a finding.
that she understood the balancing process for aggravating
circumstances and mitigating factors and agreed that she              Eddleman did not stake a firm “pro-death-penalty” stance,
could participate in that process, weigh the evidence fairly,      but rather expressed ambivalence about the death penalty. In
and make the appropriate recommendation.” Id. “Finding no          response to initial questioning by the court, she admitted that
abuse of discretion,” the court concluded, “we therefore defer     a death sentence would be “a difficult decision.” J.A. at 2718.
to the trial judge’s discretion to determine whether Eddleman      She explained, “The way that I look at it is if you were going
could indeed follow the law and be fair and impartial.” Id. at     to say the death sentence, that you should be willing to be one
654-55. The chief justice, joined by another justice,              of the ones that would be there and push the button or pull the
dissented. He concluded, “Where statements suggesting bias         lever, whatever they do. And I just don’t think I could do
predominate in quantity, specificity, and certainty, countered     that.” Id. She responded to the prosecutor that she “probably
by a relatively few general statements that the juror believes     could” sign the verdict form for a death sentence. J.A. at
he or she can follow the law and be fair, deference to the trial   2725. Similarly, in response to defense counsel’s initial
court defies the constitutional requirements.” Id. at 669          questioning, she revealed that, though she would not “feel
(Moyer, C.J., dissenting).                                         comfortable” giving a life sentence with parole eligibility, she
                                                                   did not like any of the sentencing options. J.A. at 2731-32;
  The district court held that the state courts’ determination     see also J.A. at 2733 (“Juror Eddleman: Change the rules.”).
that Juror Eddleman could be fair and impartial “was not in        Only when pressed by defense counsel did she state that,
any way unreasonable.” J.A. at 149. It noted that the trial        given the three options, she “would probably go with the
court “explained the applicable law to Eddleman, noting that       death penalty” and that her “bottom line” was that she would
in some circumstances the jury would be required to                “vote for the death penalty because there’s eligibility for
recommend a life sentence even though they found the               parole.” J.A. at 2732-33.
defendant guilty of murder,” and then “asked Eddleman
whether she could follow the instructions of law regarding the       In the end, however, in response to further questioning by
proper imposition of the death penalty.” J.A. at 148. This         the court and defense counsel, Eddleman indicated that she
interrogation, the court determined, was more than “general        could set aside her personal beliefs concerning parole and
questions regarding Eddleman’s impartiality and fairness.”         follow the court’s instructions. The court explained the
Id.                                                                sentencing process in detail, and, in response to specific
                                                                   questions,16 Eddleman affirmed that she could follow the
  As the district court concluded, Williams has not shown
that the state courts acted unreasonably in denying Williams’s
challenge for cause. Williams does not argue that the state             16
                                                                           In Morgan, the Court held that “general questions of fairness and
courts incorrectly interpreted Morgan, but instead challenges      impartiality” are not sufficient to estab lish a juro r’s impa rtiality, as a juror
the state courts’ findings that Eddleman could set aside her       “could in all truth and candor respond affirmatively, personally confident
aversion to a life sentence with parole eligibility and follow     that such dogmatic views are fair and impartial, while leaving the sp ecific
the trial court’s sentencing instructions. This finding is a       concern unpro bed .” 504 U.S. 719 , 735 (1992). However, in the case at
reasonable determination of the facts in light of the evidence     bar, the trial court inquired specifically about Eddleman’s ability to follow
                                                                   the court’s sentenc ing instructions. Com pare id. at 723 (jurors had been
                                                                   asked “whether each could be fair and impartial” and whether they could
No. 02-3461                            Williams v. Bagley       43    44   Williams v. Bagley                           No. 02-3461

court’s instructions. J.A. at 2736-37. Then, in response to           options, and attested to her ability to follow the court’s
further inquiries by defense counsel, Eddleman testified that         instructions despite her aversion to parole. In sum, the trial
she did not “believe” that her feelings regarding parole              court’s finding of impartiality was “fairly supported by the
eligibility would affect the balancing process just described         record.” Bowling, 344 F.3d at 519.
by the court, that she “probably could” set aside these
feelings, and that the three sentencing options would “start            C. Challenge for Cause to Juror Camp
out equally” in her mind. J.A. at 2738-39.
                                                                        The state courts did not make an unreasonable
  The Supreme Court has observed that “it is not unusual on           determination of the facts in denying Williams’s challenge for
voir dire examination” for prospective jurors to give                 cause to Juror Camp. Although, when first questioned by
“ambiguous and at times contradictory” testimony, Patton v.           defense counsel, Camp expressed “concern” about sentencing
Yount, 467 U.S. 1025, 1039 (1984), as has happened here.              a capital defendant to a term of life with parole eligibility,
Prospective jurors vary widely in education and experience,           Camp later stated forthrightly that she would not
and have had no briefing by lawyers prior to taking the stand.        automatically vote for the death penalty and that she could
They                                                                  abide by Ohio’s sentencing procedures. Thus, the state
                                                                      courts’ finding of impartiality is fairly supported by the
  thus cannot be expected invariably to express themselves            record.
  carefully or even consistently. Every trial judge
  understands this, and under our system it is that judge               Like Eddleman, Camp was questioned at length about her
  who is best situated to determine competency to serve               ability to impose a life sentence with parole eligibility during
  impartially. The trial judge properly may choose to                 voir dire.
  believe those statements that were the most fully
  articulated or that appeared to have been least influenced            [DEFENSE COUNSEL]: Would you ever hesitate when
  by leading.                                                           you are considering these three options, would you ever
                                                                        hesitate to vote for one of the life sentences out of a
Id. As the Court has instructed, “[i]t is here that the federal         concern that the defendant might be placed back out on
court’s deference must operate, for while the cold record               the street through the parole process?
[may] arouse[] some concern, only the trial judge [can] tell
which of [the] answers was said with the greatest                       JUROR CAMP: That’s something to think about.
comprehension and certainty.” Id. at 1040.
                                                                        [DEFENSE COUNSEL]: Okay. Would that concern
  These principles inform our conclusion that the trial court,          cause you to simply reject out of hand those life
and the Ohio appellate courts, reasonably determined that               sentences?
Eddleman could serve impartially. Eddleman evinced a lack
of bloodthirst, professed a dislike for all the sentencing              JUROR CAMP: It would be a concern.
                                                                        [DEFENSE COUNSEL]: Would it be—again I have to
                                                                        ask you to look inside yourself. Would it be a concern to
follow the court’s “instructions on the law even though you may not     such an extent that even though Judge would say to you,
agree”).                                                                Mrs. Camp, you and the other jurors are to look at these
No. 02-3461                         Williams v. Bagley      45   46   Williams v. Bagley                        No. 02-3461

 three options equally, do you think it would be such a           first phase should automatically get the death penalty at
 concern that even though you would want to follow                the second phase?
 Judge Winter’s instruction you would say I just don’t
 know if I can because I’m concerned about this parole            JUROR CAMP: No.
 thing?
                                                                  ***
 JUROR CAMP: It would be one thing to be concerned
 about, along with everything else we would have to               JUROR CAMP: Your question back to me was if
 consider.                                                        [everybody found guilty] beyond a reasonable doubt
                                                                  should be killed, I said no.
 [DEFENSE COUNSEL]: Okay. Do you think that your
 concern about that would substantially impair or alter           ***
 your ability to do that weighing process that we talked
 about a minute ago?                                              [DEFENSE COUNSEL]: That’s what I want to know.
                                                                  If we get to that second phase, you heard the Judge say
 JUROR CAMP: No. It would have to be weighed                      the prosecutor has to prove to you beyond a reasonable
 together.                                                        doubt that the aggravating circumstances outweigh the
                                                                  mitigating factors in order for you to vote for the death
 ***                                                              penalty, do you recall that?

 [DEFENSE COUNSEL]: [D]o you have an opinion or                   JUROR CAMP: We as a jury would have to feel that
 can you tell me how you feel about those life sentences          there was beyond a reasonable doubt.
 as alternatives to the death penalty.
                                                                  [DEFENSE COUNSEL]: That’s right.
 JUROR CAMP: I think if someone’s sentenced to life
 then it should be life.                                          JUROR CAMP: Right.

 [DEFENSE COUNSEL]: Is your feeling about that so                 [DEFENSE COUNSEL]: That’s right. And if you have
 strong that it would cause you, if you are in the jury room      a reasonable doubt as to whether those aggravating
 in a second phase, to say well, there’s a chance this guy        circumstances outweigh the mitigating factors, then you
 might get out, I just can’t vote for life, I don’t care what     as a juror have to pick one of those life sentences.
 the Judge said about weighing them, my feelings are so
 strong that I’m worried about this guy getting out?              JUROR CAMP: Right.

 JUROR CAMP: It could be.                                         [DEFENSE COUNSEL]: Do you think you could do
                                                                  that? It’s a difficult decision, I know. Do you think you
 ***                                                              could do it?

 [DEFENSE COUNSEL]: Are you saying that everybody                 JUROR CAMP: It would have to be proved to me that
 who is found guilty beyond a reasonable doubt at that            it was—that actually the person is guilty.
No. 02-3461                          Williams v. Bagley      47    48   Williams v. Bagley                          No. 02-3461

  [DEFENSE COUNSEL]: Okay. And then at the second                  J.A. at 149. It concluded that, “When the death penalty
  phase—that would be the first phase, where they have to          process and the applicable laws were explained to her during
  prove it.                                                        voir dire, Camp indicated that she could follow the law and
                                                                   the court’s instructions to return an appropriate verdict.” Id.
  JUROR CAMP: If I had doubts then I wouldn’t vote for
  the death penalty.                                                  The state courts reasonably determined that Camp could set
                                                                   aside any disinclination to vote for a life sentence and follow
  [DEFENSE COUNSEL]: Okay when you say doubts—                     the trial court’s instructions. At worst, when initially
                                                                   questioned by defense counsel, Camp stated that parole was
  JUROR CAMP: If I had doubts.                                     a “concern” and that her feelings about parole “could” cause
                                                                   her to disregard the judge’s instructions. J.A. at 2493
  [DEFENSE COUNSEL]: You are talking about the                     (“[Parole] would be a concern.”); J.A. at 2496-97 (stating that
  weighing process that I described to you?                        her feeling that “if someone’s sentenced to life then it should
                                                                   be life” “could be” strong enough to prevent her from voting
  JUROR CAMP: Yes.                                                 for a life sentence). However, in response to further
J.A. at 2493-2500.                                                 questioning by defense counsel, Camp indicated that she
                                                                   would not automatically vote for the death penalty and that
  The trial court denied Williams’s challenge for cause to         she could apply the weighing process prescribed by Ohio law.
Camp. It concluded that “the testimony would indicate that         She responded “no” to defense counsel’s question, “Are you
[Camp] could perform her duties as a juror in accordance with      saying everybody who is found guilty beyond a reasonable
the Court’s instruction and the evidence.” J.A. at 2502.           doubt at [the] first phase should automatically get the death
                                                                   penalty at the second phase?” J.A. at 2498. She stated,
   The Ohio appellate courts affirmed the trial court’s ruling.    “Your question back to me was if they are finding everybody
The Ohio Court of Appeals held that the trial court had not        beyond a reasonable doubt should be killed, I said no.” J.A.
abused its discretion in denying Williams’s challenge for          at 2499. She agreed that “if you have a reasonable doubt as
cause. It acknowledged that Camp stated that the possibility       to whether those aggravating circumstances outweigh the
of parole “would be a concern,” but it noted that Camp “also       mitigating factors, then you as a juror have to pick one of
indicated that she would not automatically vote for the death      those life sentences.” J.A. at 2499-2500. She stated that, “If
penalty and that she would be able to consider equally all         I had doubts then I wouldn’t vote for the death penalty.” J.A.
three of the sentencing alternatives.” Williams, 1995 WL           at 2500. Additionally, prior to defense counsel’s questioning,
641137, at *9. The Ohio Supreme Court also held that the           Camp told the prosecutor, “I wouldn’t say kill everybody”
trial court had not abused its discretion in denying Williams’s    (J.A. at 2475-76), and that none of the sentencing alternatives
challenge for cause, noting that Camp “did not automatically       “would have a leg up.” J.A. at 2490. Simply put, Williams
favor the death penalty” and “stated that she could consider       has not adduced sufficient evidence to overcome the state
all of the possible penalties and return the appropriate           courts’ finding that Camp could set aside any bias toward the
verdict.” Williams, 679 N.E.2d at 654.                             death penalty and follow the trial judge’s instructions.

  The district court held that the trial court’s conclusion that
Camp could be fair and impartial “was not unreasonable.”
No. 02-3461                         Williams v. Bagley    49    50    Williams v. Bagley                                No. 02-3461

IV. CONSTITUTIONAL CHALLENGES          TO   OHIO ’S CAPITAL       Under Ohio’s capital punishment scheme, the appellate
    PUNISHMENT SCHEME                                           courts17 are obligated to determine, among other things,
                                                                “whether the sentence of death is appropriate.” Ohio Rev.
  Williams has preserved a number of constitutional             Code Ann. § 2929.05(A) (Anderson 2003). “In determining
challenges to Ohio’s capital punishment scheme. However,        whether the sentence of death is appropriate, the court of
this court has recently rejected each of these challenges and   appeals . . . and the supreme court shall consider whether the
has upheld the constitutionality of Ohio’s capital punishment   sentence is excessive or disproportionate to the penalty
scheme as a general matter. Smith v. Mitchell, 348 F.3d 177,    imposed in similar cases.” Id. The appellate court “shall
214 (6th Cir. 2003). Williams has not directed the court to     affirm a sentence of death only if the particular court is
any authority—in particular, any Supreme Court                  persuaded from the record . . . that the sentence of death is the
decision—compelling reconsideration of these decisions.         appropriate sentence in the case.” Id.
Thus, we conclude that the Ohio courts did not act contrary
to, or unreasonably apply, clearly established federal law in      The Ohio Supreme Court has held that the proportionality
rejecting Williams’s constitutional challenges to Ohio’s        review mandated by § 2929.05(A) “is satisfied by a review of
capital punishment scheme.                                      those cases already decided by the reviewing court in which
                                                                the death penalty has been imposed.” Steffen, 509 N.E.2d at
  A. Ohio’s System of Proportionality Review                    395. The appellate court “need only compare the case before
                                                                it with other cases actually passed on by that court to
  Williams challenges Ohio’s system of proportionality          determine whether the death sentence is excessive or
review, whereby the Ohio Court of Appeals and the Ohio          disproportionate”; it need not “consider any case where the
Supreme Court “determine whether the penalty of death is        death penalty was sought but not obtained or where the death
unacceptable in the case under review because it is             sentence could have been sought but was not.” Id.
disproportionate to the punishment imposed on others
convicted of the same crime.” State v. Steffen, 509 N.E.2d        Williams argues that, by interpreting § 2929.05(A) in this
383, 394 (Ohio 1987). He contends that, in establishing         fashion, Ohio has reduced its system of proportionality
proportionality review, Ohio has created a constitutionally     review “to a meaningless, capricious procedure in violation of
protected liberty interest, and that Ohio has “reduced”         the Due Process Clause.” He concedes that in Pulley v.
proportionality review to “a meaningless, capricious            Harris, 465 U.S. 37 (1984), the Supreme Court held that
procedure in violation of the Due Process Clause.” Fatal to     proportionality review is not constitutionally mandated, but
Williams’s argument, this court has repeatedly rejected due     maintains that the Ohio legislature created a constitutionally
process challenges to Ohio’s system of proportionality          protected liberty interest when it established a system of
review.                                                         proportionality review. Thus, he insists that the Ohio
                                                                Supreme Court’s decision as to what cases are “similar” for


                                                                     17
                                                                       Subsequent to Williams’s conviction, Ohio’s capital punishment
                                                                scheme was amended to provide for direct appeal from the trial co urt to
                                                                the Ohio Suprem e Co urt. See Ohio Rev. Co de Ann. § 292 9.05(A)
                                                                (And erson 200 3).
No. 02-3461                           Williams v. Bagley      51    52   Williams v. Bagley                           No. 02-3461

purposes of § 2929.05(A) “must be made in an environs of            consistently that, in “limiting proportionality review to other
some ‘reasonable and non-capricious’ guiding principles, lest       cases already decided by the reviewing court in which the
those decisions be completely arbitrary” in violation of the        death penalty has been imposed, Ohio has properly acted
Due Process Clause. (emphasis in original) And he concludes         within the wide latitude it is allowed.” Id.; see also Wickline,
that, given Ohio Revised Code § 2929.021(A)’s requirement           319 F.3d at 824-25; Coleman, 268 F.3d at 453. Williams has
that all capital indictments be reported to the Ohio Supreme        not mustered any authority compelling this court to revisit
Court, and given Ohio Revised Code § 2929.03(F)’s                   these decisions, and we must conclude that the state courts
requirement that the trial court file an opinion with the           did not unreasonably apply clearly established federal law in
appellate courts explaining its sentencing decision in any          rejecting Williams’s claim.
capital case, the only reasonable interpretation of “similar
cases” for purposes of § 2929.05(A) is all capitally indicted         B. Prosecutorial Discretion
cases, regardless of whether a sentence of death was imposed.
                                                                      Williams argues that Ohio’s capital punishment scheme
  Williams pressed this argument without success in his             violates the Eighth and Fourteenth Amendments in that “[t]he
direct appeal and before the district court. The Ohio Court of      virtually uncontrolled discretion of prosecutors in indictment
Appeals noted that the Ohio Supreme Court had rejected              decisions allows for arbitrary and discriminatory imposition
Williams’s very argument in Steffen, State v. Williams, No.         of the death penalty.” However, as this court recognized in
16418, 1995 WL 641137, at *19 (Ohio Ct. App. Nov. 1,                Wickline, such a challenge to Ohio’s capital punishment
1995), and the Ohio Supreme Court dismissed the entirety of         scheme is foreclosed by Gregg v. Georgia, 428 U.S. 153
Williams’s constitutional challenge to Ohio’s capital               (1976). 319 F.3d at 824. In Gregg, the defendant argued that
punishment scheme in a single sentence. State v. Williams,          Georgia imposed its death penalty in “an arbitrary and
679 N.E.2d 646, 660 (Ohio 1997). The district court held            capricious manner” in that “the state prosecutor has unfettered
that, since the Constitution does not require proportionality       authority to select those persons whom he wishes to prosecute
review, “any inadequacy in a state-provided proportionality         for a capital offense and to plea bargain with them.” Id. at
review, even if proven, does not entitle a petitioner to federal    199. In two opinions, six justices squarely rejected the
habeas relief.” J.A. at 151.                                        argument. Id. at 199 (opinion of Justices Stewart, Powell, and
                                                                    Stevens), 255 (White, J., concurring). Plainly, the Ohio
   This court has held repeatedly that Ohio’s system of             courts did not act contrary to clearly established law in
proportionality review complies with the dictates of the Due        dismissing Williams’s claim.
Process Clause. See Smith v. Mitchell, 348 F.3d 177, 214 (6th
Cir. 2003); Wickline v. Mitchell, 319 F.3d 813, 824 (6th Cir.         C. Mandatory Submission to the Jury of Pre-Sentence
2003); Cooey v. Coyle, 289 F.3d 882, 928 (6th Cir. 2002);                Investigation and Mental Examination Reports
Buell v. Mitchell, 274 F.3d 337, 368-69 (6th Cir. 2001);                 Requested by the Defendant
Coleman v. Mitchell, 268 F.3d 417, 453 (6th Cir. 2001);
Greer v. Mitchell, 264 F.3d 663, 691 (6th Cir. 2001); Byrd v.          Williams challenges a provision in Ohio’s death penalty
Collins, 209 F.3d 486, 539 (6th Cir. 2000). “Since                  statutes stating that, if a defendant requests a pre-sentence
proportionality review is not required by the Constitution,         investigation or a mental evaluation, the resulting report must
states have great latitude in defining the pool of cases used for   be submitted to the jury. This provision, he argues, impairs
comparison.” Buell, 274 F.3d at 369. And this court has held        a defendant’s right to effective assistance of counsel and right
No. 02-3461                          Williams v. Bagley     53    54     Williams v. Bagley                                  No. 02-3461

to control the presentation of evidence in violation of the       Fourteenth Amendments, in support of his argument, we
Sixth and Fourteenth Amendments. Again, this court has            cannot conclude that the Ohio courts acted contrary to clearly
previously rejected Williams’s argument.                          established federal law in rejecting Williams’s claim.
  Under Ohio law, a capital defendant is entitled to a pre-         D. The “Mandatory” Nature of Ohio’s Death Penalty
sentence investigation and a mental examination. Ohio Rev.
Code Ann. § 2929.03(D)(1) (Anderson 2003). However, a               Williams argues that Ohio’s capital punishment scheme
pre-sentence investigation and a mental examination are not       creates a “mandatory death penalty” by requiring a sentence
permitted unless requested by the defendant. Id. If a             of death when the aggravating circumstances outweigh the
defendant requests an investigation or an examination, the        mitigating factors.18 This absence of discretion, he contends,
resulting reports must be provided to the court, the jury, and    denies a defendant an individualized determination of the
the prosecutor. Id. Additionally, the jury and the court must     appropriateness of the punishment in violation of the Eighth
“consider” the report when sentencing the defendant. Id.          and Fourteenth Amendments.

   This court has rejected constitutional challenges to this        Yet again, this court has squarely rejected Williams’s
provision. Cooley, 289 F.3d at 925-26 (unpublished                argument. In Buell, the court concluded
appendix) (dismissing petitioner’s argument that the
submission requirement “prevents defense counsel from               Buell’s arguments are unavailing. In Proffitt v. Florida,
giving effective assistance and prevents the defendant from         428 U.S. 242, 258, 96 S.Ct. 2960, 49 L.Ed.2d 913
effectively presenting his case”); Byrd, 209 F.3d at 539            (1976), the Supreme Court upheld a statutory scheme for
(rejecting the argument that Ohio’s capital punishment              weighing aggravating circumstances and mitigating
scheme “violates defendants’ rights to due process and              factors that is similar to Ohio’s, which lays out specific
effective assistance of counsel by allowing presentence             aggravating circumstances and mitigating factors that are
investigation reports or mental examinations requested by           to be considered at sentencing. Ohio Rev. Code
defendants to be provided to the jury”); see also Dennis v.         § 2929.04. The Court also has approved of a statute that
Mitchell, 68 F. Supp. 2d 863, 904 (N.D. Ohio 1999) (same).          did not enunciate specific factors to consider or a specific
Moreover, it is difficult to see how the submission                 method of balancing the competing considerations. See
requirement impaired Williams’s right to effective assistance       Franklin v. Lynaugh, 487 U.S. 164, 172-73, 108 S.Ct.
of counsel and right to control the presentation of evidence.       2320, 101 L.Ed.2d 155 (1988); Zant v. Stephens, 462
Williams was not required to, and did not, request the reports.
Moreover, under Ohio Revised Code § 2929.024, indigent                 18
capital defendants may obtain, at the state’s expense, an                Under Ohio’s capital punishment scheme, “[i]f the trial jury
expert (and other services) reasonably necessary for              unanimously finds, by proof beyond a reasonable do ubt, that the
                                                                  aggravating circum stances the offender was found guilty of committing
presenting a defense at the guilt phase or the penalty phase.     outweigh the mitigating factors, the trial jury shall recommend to the
See Glenn v. Tate, 71 F.3d 1204, 1209 n.2 (6th Cir. 1995)         court that the sentence of death be imposed on the offender.” Ohio Rev.
(“When an expert is retained under § 2929.024, the defendant      Code. Ann. § 292 9.03 (D)(2) (A nderson 2 003 ). If, after rece ipt of a
can decide for himself whether he wants to put the expert’s       recommendation of death, and after an indep endent review of the
findings before the jury.”). Finally, because Williams has not    evidence, the trial court finds, by proof beyond a reasonable doubt, that
                                                                  the aggravating circumstances outwe igh the m itigating facto rs, “it shall
cited any relevant authority, other than the Sixth and            impose sentence of death on the offender.” Id. § 29 29.0 3(D )(3).
No. 02-3461                          Williams v. Bagley     55    56   Williams v. Bagley                           No. 02-3461

  U.S. 862, 875, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).            Id. at 460. This court, applying Supreme Court precedent,
  The Court has held that “it is constitutionally required        has determined that Ohio’s scheme ensures such an
  that the sentencing authority have information sufficient       individualized determination of the appropriateness of the
  to enable it to consider the character and individual           penalty. Justice Stevens’ dissent from the Court’s denial of
  circumstances of a defendant prior to imposition of a           a petition for writ of certiorari in Smith v. North Carolina,
  death sentence.” Sumner v. Shuman, 483 U.S. 66, 72,             459 U.S. 1056 (1982) (Stevens, J., dissenting denial cert.),
  107 S.Ct. 2716, 97 L.Ed.2d 56 (1987) (quoting                   noted that a potential ambiguity in a North Carolina jury
  Gregg,428 U.S. at 189-90 n.38, 96 S.Ct. 2909). The              instruction might prevent a jury from determining “that death
  sentence imposed on Buell complies with Sumner as well          is the appropriate punishment in a specific case.” Id. at 1057
  as the Supreme Court’s holding in Blystone, 494 U.S. at         (internal quotation marks omitted). It does not follow that a
  305, 110 S.Ct. 1078, that a death penalty is constitutional     statute requiring a sentence of death when the aggravating
  if it “is imposed only after a determination that the           circumstances outweigh the mitigating factors is
  aggravating circumstances outweigh the mitigating               unconstitutional, and in any event the opinion of a single
  circumstances present in the particular crime committed         justice is not “clearly established Federal law” for purposes of
  by the particular defendant, or that there are no such          federal habeas review. See Williams v. Taylor, 529 U.S. 362,
  mitigating circumstances.” In Buell’s case, both the jury       412 (2000) (“That statutory phrase refers to the holdings . . .
  at the penalty phase of trial and the reviewing courts          of this Court’s decisions as of the time of the relevant state-
  specifically considered the aggravating circumstances           court decision.”). The Ohio courts did not act contrary to, or
  and mitigating factors presented and determined that            unreasonably apply, clearly established federal law in
  capital punishment was appropriate. By weighing these           rejecting Williams’s “mandatory death penalty” argument.
  specific considerations, it cannot be said that a
  mandatory death penalty was imposed on Buell.                     E. Electrocution as a Method of Execution

274 F.3d at 368; see also Coleman, 268 F.3d at 442 (“[T]he          Williams argues that Ohio’s “reliance on electrocution as
Ohio scheme does not mandate the death penalty for any            the statutorily-defined method of execution violates [the
particular crime, and under § 2929.03(D) the death penalty        Eighth Amendment’s] proscription against cruel and unusual
decision making process is not shielded from judicial             punishment.”       However, this court has upheld the
review.”); Byrd, 209 F.3d at 539 (dismissing petitioner’s         constitutionality of electrocution as a method of execution.
argument that Ohio’s capital punishment scheme                    Smith, 348 F.3d at 214; Buell, 274 F.3d at 370 (observing that
unconstitutionally “fails to provide the sentencing authority     “[e]lectrocution has yet to be found cruel and unusual
with the option to choose a life sentence even if the             punishment by any American court” and stating that “[w]e
aggravating circumstances outweigh the mitigating factors”).      decline to be the first”); Greer v. Mitchell, 264 F.3d 663, 691
                                                                  (6th Cir. 2001); Byrd, 209 F.3d at 539. Moreover, Ohio law
   Williams has not cited any authority that compels              now designates lethal injection as the sole means of
reconsideration of this conclusion. The Supreme Court in          execution, rendering his argument moot. Ohio Rev. Code
Spaziano v. Florida, 468 U.S. 447 (1984), merely stated that      Ann. § 2949.22 (Anderson 2003) (“[A] death sentence shall
a state “must administer [the death penalty] in a way that can    be executed by causing the application to the person, upon
rationally distinguish between those individuals for whom         whom the sentence was imposed, of a lethal injection of a
death is an appropriate sanction and those for whom it is not.”   drug or a combination of drugs of sufficient dosage to quickly
No. 02-3461                           Williams v. Bagley      57    58    Williams v. Bagley                           No. 02-3461

and painlessly cause death.”); State v. Mack, No. 62366, 2003       V. WILLIAMS’S PROCEDUR AL DEFAULTS
WL 21185786, at *11 (Ohio. Ct. App. May 19, 2003) (“[A]ll
arguments relating to electrocution are now moot because             The district court concluded that most of Williams’s claims
Ohio in November 2001, amended R.C. 2949.22 to eliminate            were procedurally defaulted. We agree.
electrocution as the means of execution.”). In short, Williams
is not entitled to relief on the basis of his Eighth Amendment        A. Legal Background
argument.
                                                                       When a petitioner defaults on a federal claim in state court
  F. Other Constitutional Claims                                    pursuant to an independent and adequate state procedural rule,
                                                                    federal habeas review of the claim is barred unless the
   Williams advances a number of additional constitutional          petitioner can demonstrate (1) cause for the default and actual
challenges to Ohio’s capital punishment scheme. Most                prejudice, or (2) that the failure to consider the claim will
notably, he argues that Ohio’s scheme (1) constitutes cruel         result in a fundamental miscarriage of justice. Coleman v.
and unusual punishment, (2) lacks a standard for determining        Thompson, 501 U.S. 722, 750 (1991). This court applies a
the existence of mitigating factors, (3) lacks a standard for       four-part test to determine if a claim is procedurally defaulted.
weighing aggravating factors against mitigating                     First, the court must determine whether there is a state
circumstances, (4) permits the trier of fact to consider            procedural rule applicable to the petitioner’s claim and
aggravating circumstances at the trial phase, (5) improperly        whether the petitioner failed to comply with the rule. Buell v.
encourages guilty pleas, (6) lacks a compelling state interest      Mitchell, 274 F.3d 337, 348 (6th Cir. 2001). Second, the
and fails to use the least restrictive means, and (7) permits the   court must determine whether the state court actually
death penalty to be imposed in an arbitrary, capricious, and        enforced the state procedural rule. Id. Third, the court must
discriminatory manner. Williams has not cited any Supreme           decide whether the state procedural rule is an adequate and
Court precedent supporting his claims, and this court has           independent state ground upon which the state can rely to
squarely rejected most of Williams’s arguments. Smith, 348          foreclose review of a federal constitutional claim. Id. Fourth,
F.3d at 213-14 (rejecting arguments (1)-(4)); Wickline, 319         if the preceding questions are answered in the affirmative, the
F.3d at 824 (rejecting argument (7)); Cooey, 289 F.3d at 923-       petitioner must demonstrate that there was cause for him to
26 (rejecting arguments (2)-(5) and (7)), Buell, 274 F.3d at        neglect the procedural rule and that he was actually
367 (rejecting argument (7)); Coleman, 268 F.3d at 443              prejudiced by the alleged constitutional error. Id.
(rejecting argument (4)); Greer, 264 F.3d at 690 (rejecting
arguments (1) and (6)); Byrd, 209 F.3d at 539 (rejecting              B. Ohio’s Doctrine of Res Judicata as an Adequate and
arguments (5) and (7)). In summary, in dismissing                        Independent State Ground
Williams’s constitutional challenges to Ohio’s capital
punishment scheme, the Ohio courts did not act contrary to,            Williams’s argument that Ohio’s doctrine of res judicata
or unreasonably apply, clearly established federal law as           does not constitute an adequate and independent state ground,
determined by Supreme Court.                                        and hence cannot bar review of a pair of Williams’s claims,
                                                                    is without merit. During voir dire, Williams objected to the
                                                                    prosecutor’s challenge for cause, based on Wainwright v.
                                                                    Witt, 469 U.S. 412 (1985), to a prospective juror allegedly
                                                                    holding anti-death-penalty views. Williams also objected,
No. 02-3461                          Williams v. Bagley      59    60     Williams v. Bagley                                   No. 02-3461

based on Batson v. Kentucky, 476 U.S. 79 (1986), to the            ground); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001)
prosecutor’s use of a peremptory challenge to remove the           (holding that “Ohio’s doctrine of res judicata as a procedural
only remaining African-American from the jury panel.               bar is regularly applied by the Ohio courts”); Mapes v. Coyle,
However, Williams did not raise either of these issues on          171 F.3d 408, 421 (6th Cir. 1999) (rejecting argument that
direct appeal or in his state post-conviction proceeding.          Ohio’s doctrine of res judicata was not firmly established and
                                                                   regularly followed). Second, Williams has not explained the
  As the district court properly concluded, Williams               relevance of his attack on the adequacy of Ohio’s system of
procedurally defaulted these claims. Williams did not              post-conviction review. In particular, he has not shown how
exhaust his claims because he did not raise the claims on          a lack of discovery, or any other alleged flaw in Ohio’s
direct appeal in state court. As the Supreme Court held in         system of post-conviction review, prevented him from raising
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999), “state           his Batson claim or his Wainwright claim on direct appeal.
prisoners must give the state courts one full opportunity to       See Smith v. Anderson, 104 F. Supp. 2d 773, 792-93 (S.D.
resolve any constitutional issues by invoking one complete         Ohio 2000) (“Any perceived deficiencies in Ohio’s post-
round of the State’s established appellate review process.”        conviction system did not relieve petitioner of the obligation
Because the claims would be procedurally barred under Ohio         to raise these waived claims on direct appeal.” (internal
law, they are procedurally defaulted for purposes of federal       quotation marks omitted)). Moreover, this court has
habeas review. Alley v. Bell, 307 F.3d 380, 385 (6th Cir.          dismissed the contention that “res judicata was an inadequate
2002). Specifically, as the district court found, the claims are   procedural bar . . . because he was denied a reasonable
barred under Ohio’s doctrine of res judicata, which provides       opportunity to present his claims in state court,” and held that
in relevant part that a final judgment of conviction bars a        res judicata is an adequate and independent state ground for
convicted defendant from raising in any proceeding, except an      barring habeas review of constitutional claims. Coleman v.
appeal from that judgment, any issue that was raised, or could     Mitchell, 268 F.3d 417, 427, 429 (6th Cir. 2001).19
have been raised, at trial or on appeal from that judgment.
State v. Perry, 226 N.E.2d 104, 105-06 (Ohio 1967).
  Williams, however, contends that Ohio’s doctrine of res
judicata does not constitute an adequate and independent state
ground. First, he argues that Ohio courts do not consistently
apply this procedural rule in capital cases. Second, he argues
that Ohio’s post-conviction system does not meet the                    19
                                                                          In suppo rt of his argument, W illiams cites three d ated cases in
requirements of due process in that it does not provide            which this court excused a petitioner from the exhaustion requirement
adequate discovery.                                                because state procedures were ineffective to protect the rights of the
                                                                   petitioners. See Keener v. Ridenour, 594 F.2d 581 (6th C ir. 197 9); Allen
  Williams’s arguments are without merit. First, “this court       v. Perini, 424 F.2d 134 (6th C ir. 197 0); Coley v. A lvis, 381 F.2d 870 (6th
                                                                   Cir. 1967). As this court has already observed, these cases concerned
has rejected claims that Ohio has failed to apply [the doctrine    forgiveness of the exhaustion requirement, not the adeq uacy o f res
of res judicata] consistently.” Greer v. Mitchell, 264 F.3d        judicata as a state ground justifying foreclosure of a federal constitutional
663, 673 (6th Cir. 2001); see also Monzo v. Edwards, 281           claim. Coleman v. Mitch ell, 268 F.3d 417 , 428 -29 (6 th Cir. 20 01). This
F.3d 568, 577 (6th Cir. 2002) (deeming Ohio’s doctrine of res      court has directly held in other cases that res judicata is an adequate and
judicata an adequate and independent state procedural              independent state ground, and those decisions are controlling on the issue.
                                                                   Id.
No. 02-3461                         Williams v. Bagley     61    62    Williams v. Bagley                           No. 02-3461

  C. Ohio’s Contemporaneous Objection Rule as an                   the Ohio appellate court; the Ohio court examined the
     Independent State Law Ground                                  record to determine if the allegedly improper remarks
                                                                   were “plain error.”
   One of Williams’s prosecutorial misconduct claims is
procedurally barred by Ohio’s contemporaneous objection            The basic inquiry in the plain error analysis is whether
rule, which, contrary to Williams’s argument, is independent       the defendant has been denied a “fair trial.” Whether a
of federal law. Williams charges that the prosecutor engaged       person is denied a fair trial is a question to be resolved by
in prosecutorial misconduct by impermissibly vouching for          applying the principles of federal constitutional law.
the credibility of Williams’s accomplices during their             Therefore, we conclude that the Ohio appellate court’s
testimony. However, Williams did not object to the                 decision was not independent of federal law.
prosecutor’s actions at trial, and the Ohio Court of Appeals
and the Ohio Supreme Court reviewed Williams’s claim             Id.
under Ohio’s plain error standard. See State v. Smith, 731
N.E.2d 645, 655 (2000) (explaining that, under Ohio’s              However, the Knuckles decision has been subject to
“contemporaneous objection” rule, an appellant who fails to      criticism, and this court has repeatedly held, in published
object waives later review of the issue unless he shows plain    decisions, that plain error review by an appellate court
error). The district court held that Williams had procedurally   constitutes enforcement of Ohio’s contemporaneous objection
defaulted the claim under Ohio’s contemporaneous objection       rule. See Gulertekin v. Tinnelman-Cooper, 340 F.3d 415,
rule. J.A. at 134-35.                                            423-24 (6th Cir. 2003) (noting criticism of Knuckles and
                                                                 observing that “[w]e have previously held Ohio’s
   Conceding that Ohio’s contemporaneous objection rule is       contemporaneous objection rule to constitute an adequate and
firmly established and that the state courts actually enforced   independent state ground”); Mason v. Mitchell, 320 F.3d 604,
the rule against him, Williams argues that the rule is not       636 (6th Cir. 2003) (“The Ohio Supreme Court reviewed for
independent of federal law. He cites a single unpublished        plain error . . . thus barring federal habeas review absent a
opinion which held that a decision by an Ohio appellate          showing of cause and prejudice.”); Hinkle v. Randle, 271 F.3d
court—holding that allegedly improper conduct by the             239, 244 (6th Cir. 2001) (“We have held that Ohio’s
prosecutor did not constitute plain error—did not rest on an     contemporaneous objection rule constitutes an adequate and
independent state law ground. Knuckles v. Rogers, No. 92-        independent state ground. . . . Moreover, we view a state
3208, 1993 WL 11874, at **2-3 (6th Cir. Jan. 21, 1993).          appellate court’s review for plain error as the enforcement of
Specifically, in Knuckles, the court reasoned,                   a procedural default.” (citations omitted)); Seymour v.
                                                                 Walker, 224 F.3d 542, 557 (6th Cir. 2000) (“Controlling
  In the case at bar, it is clear that Ohio has a                precedent in our circuit indicates that plain error review does
  contemporaneous objection rule, and that the Ohio courts       not constitute a waiver of state procedural default rules.”);
  treat the failure to object to a claimed error as a            Scott v. Mitchell, 209 F.3d 854, 866-68 (6th Cir. 2000)
  procedural default. . . . Since [the petitioner] failed to     (questioning Knuckles and holding that Ohio’s
  object contemporaneously to the allegedly improper             contemporaneous objection rule was an inadequate and
  remarks, he violated Ohio’s contemporaneous objection          independent ground). Our cases thus require the conclusion
  rule and committed a procedural default. However, the          that Williams has procedurally defaulted his improper
  procedural default did not foreclose all consideration by      vouching claim by failing to abide by Ohio’s
No. 02-3461                                 Williams v. Bagley         63     64     Williams v. Bagley                                  No. 02-3461

contemporaneous objection rule, an adequate and independent                   to press any particular allegations of misconduct in federal
state ground.                                                                 court.
  D. Failure to Raise Claim Under the Same Theory in                            As the district court observed, “[t]his Circuit has held that
     State Court                                                              the doctrine of exhaustion requires that a claim be presented
                                                                              to the state courts under the same theory in which it is later
   Williams has procedurally defaulted most of his theories of                presented in federal court.” Wong v. Money, 142 F.3d 313,
prosecutorial misconduct by failing to raise these specific                   322 (6th Cir. 1998). As Williams’s ten allegations represent
theories in state court. In federal court, Williams has alleged               theories which are “separate and distinct from the one
eleven incidents of prosecutorial misconduct.20 Williams did                  previously considered and rejected in state court,” id., he
present a prosecutorial misconduct claim to the Ohio Court of                 procedurally defaulted these claims.
Appeals and the Ohio Supreme Court; however, as discussed
supra in Section V(C), this claim was based solely on the                       E. Ineffective Assistance of Appellate Counsel as
allegation that the prosecutor improperly vouched for the                          Cause and Prejudice
credibility of witnesses. Hence, the district court concluded
Williams had procedurally defaulted the ten remaining                           Williams puts forward a pair of ineffective-assistance-of-
allegations as they did not “rest on the same theory asserted                 appellate-counsel claims (“IAAC claims”) as “cause” for his
in state court.” J.A. at 134.                                                 procedural defaults.21 The first IAAC claim that Williams
                                                                              asserts as “cause” for these defaults, which we term his
  On appeal, Williams simply asserts that he “raised                          “Direct Appeal” IAAC claim, alleges that Williams’s
prosecutorial misconduct (claim 6) on direct appeal in state                  appellate counsel was ineffective for failing to raise the
court.” Apparently, he argues that, by raising the flag of                    defaulted claims on direct appeal.22 However, Wilson
prosecutorial misconduct in state court, he preserved his right
                                                                                   21
                                                                                     In addition to the claims d iscussed in Sections V(B)-(D), Williams
                                                                              procedurally defaulted a host of claims by failing to raise the claims in
                                                                              state court at all. These specific claims are: ineffective assistance of
    20                                                                        counsel at the guilt phase; Brady violations; denial of right to expe rts;
       In addition to the charge that the prosecutor impermissibly vouched
for the credibility of W illiams’s accom plices, see Section V (C), supra,    various trial court errors; adm ission of crime sc ene p hotos; incom plete
W illiams alleges the following instances of prosecutorial misconduct:        transcript of proceedings; cumulative error; ineffective assistance of
(1) introducing improper victim impact testimony; (2) comparing               counsel at the mitiga tion ph ase; ineffective assistance of appellate
W illiams to a wild animal during the guilt phase and the sentencing phase;   counsel; improper aggravating circumstances; mitigation not provided;
(3) mischa racterizing evidenc e during closing argument; (4) commenting      improper jury instruction on sympathy; improper standards of review used
on W illiams’s credibility after he made an unsworn statement during the      by Ohio appellate courts; inadequacy of Ohio’s post-conviction relief
penalty phase; (5) re lying on evidence illegally obtained by the police;     procedures; and various constitutional challenges to Ohio’s capital
(6) ignoring sustained objections by Williams to a line of questioning        punishment schem e. W illiams concedes that he procedurally defaulted
concerning a test for gunshot residue on W illiams’s hands; (7) advancing     these claims, but attempts to revive them by means of the cause and
retribution as a mo tive for sentencing W illiams to d eath during closing    prejudice exception and the fundamental miscarriage o f justice gateway.
argument at the penalty phase; (8) violating Brady; (9) arguing improper           22
aggravating circumstance; and (10) referring to the victims as “four shiny            W illiams’s argument here is undeveloped. Apparently, he believes
silver dollars” and to Williams as “a few rusty pennies” at the pe nalty      that his Direct Appeal IAAC claim serves as “cause” for his procedural
phase.                                                                        default of his claim of ineffective assistance of trial counsel (his “Trial
No. 02-3461                                   Williams v. Bagley          65     66    Williams v. Bagley                            No. 02-3461

procedurally defaulted his Direct Appeal IAAC claim as well                        (1) The law of IAAC with respect to Ohio criminal
by failing to file a timely motion to reopen his direct appeal                         cases
pursuant to Rule 26(B) of the Ohio Rules of Appellate
Procedure. Therefore, he interposes his second IAAC claim                          We state here the accepted principles of law with regard to
(his “Rule 26(B)” IAAC claim), in which he argues that his                       IAAC in the context of an Ohio criminal case. Attorney error
appellate counsel’s failure to advise him of his right to file a                 does not amount to “cause” unless it rises to the level of a
Rule 26(B) motion and the state’s failure to appoint counsel                     constitutional violation of the right to counsel under
sua sponte to pursue a Rule 26(B) motion constituted IAAC,                       Strickland v. Washington, 466 U.S. 668 (1984). Monzo v.
as “cause” for his default of his Direct Appeal IAAC claim.                      Edwards, 281 F.3d 568, 577 (6th Cir. 2002). Strickland
However, assuming for argument’s sake that his Rule 26(B)                        mandates a two-part test to determine whether a defendant
IAAC claim excuses his procedural default of his Direct                          was denied effective assistance of counsel:
Appeal IAAC claim, his Direct Appeal IAAC claim fails on
its merits and, therefore, cannot serve as “cause” for the                         First, defendant must show that counsel’s performance
balance of his procedurally defaulted claims.                                      was deficient. This requires showing that counsel made
                                                                                   errors so serious that counsel was not functioning as the
                                                                                   “counsel” guaranteed the defendant by the Sixth
                                                                                   Amendment. Second, the defendant must show that the
                                                                                   deficient performance prejudiced the defense. This
Co unsel” claim) (as well as for his failure to raise his Wa inwright and
                                                                                   requires showing that counsel’s errors were so serious as
Batson claims on direct ap peal), which in turns acts as “cause” for his           to deprive the defendant of a fair trial, a trial whose result
procedural default of those claims not raised at trial. H owever, it is not        is reliable.
clear that Williams could have raised his Tria l Counsel claim on direct
app eal. One of W illiams’s two attorneys on direct appeal also represented      466 U.S. at 687.
him in the trial court (J.A. at 16), and the parties have not addressed
whether, under these circumstances, Ohio law would have permitted
W illiams to raise his Trial Counsel claim on direct appeal and, if so,
                                                                                     To satisfy the deficiency prong of Strickland, a defendant
whether his counsel co uld have been expected to raise the Trial Counsel         “must show that counsel’s representation fell below an
claim on direct ap peal. Cf. Sta te v. Le ntz, 639 N.E .2d 7 84, 7 85 (Ohio      objective standard of reasonableness.” Id. at 688. Because
1994) (holding that res jud icata does not bar a defendant from raising a        “[i]t is all too tempting for a defendant to second-guess
claim of ineffective assistance of trial counsel for the first time in a post-   counsel’s assistance after conviction or adverse sentence, and
collateral proceed ing if the de fendant was represented by the same
counsel at trial and on direct appeal or if “an actual conflict of interest
                                                                                 it is all too easy for a court, examining counsel’s defense after
enjoined appellate counsel from raising a claim of ineffective assistance        it has proved unsuccessful, to conclude that a particular act or
of trial counsel on direct appeal”); State v. Cole, 443 N.E .2d 1 69, 1 71 n.1   omission of counsel was unreasonable,” a court “must indulge
(Ohio 1982) (“[C]ounsel cannot realistically be expected to argue his own        a strong presumption that counsel’s conduct falls within the
incompetence”). Add itionally, if W illiams’s T rial Co unsel claim would        wide range of reasonable professional assistance.” Id. at 689.
have required resort to evidence outside the record, he could not have           In other words, “the defendant must overcome the
raised it on direct app eal. See State v. Booker, 579 N.E .2d 2 64, 2 68 (Ohio
App. 1989). And, if W illiams could not have raised his Trial Counsel            presumption that, under the circumstances, the challenged
claim on direct appeal, his counsel’s performance on direct appeal cannot        action might be considered sound trial strategy.” Id. (internal
serve as “cause” for his default of the Trial Counsel claim. However,            quotation marks omitted).
because W illiams’s Direct Appeal IAAC claim fails on its merits, we have
no reason to ascertain, and analyze, the specifics of W illiams’s argument.
No. 02-3461                          Williams v. Bagley     67    68   Williams v. Bagley                          No. 02-3461

   To provide effective assistance, appellate counsel need not       Under Ohio law, claims of ineffective assistance of
“raise every nonfrivolous claim on direct appeal.” Monzo,         appellate counsel must be raised in a motion for reopening
281 F.3d at 579. In fact, the “process of winnowing out           before the court of appeals pursuant to Ohio Rule of
weaker arguments on appeal and focusing on those most             Appellate Procedure 26(B), rather than in a post-conviction
likely to prevail, far from being evidence of incompetence, is    proceeding pursuant to Ohio Revised Code § 2953.21. State
the hallmark of effective appellate advocacy.” Smith v.           v. Murnahan, 584 N.E.2d 1204, 1208 (Ohio 1992); see also
Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes,        Wickline v. Mitchell, 319 F.3d 813, 823 (6th Cir. 2003). Rule
463 U.S. 745, 751-52 (1983)). “Generally, only when               26(B) reads
ignored issues are clearly stronger than those presented, will
the presumption of effective assistance of counsel be               A defendant in a criminal case may apply for reopening
overcome.” Monzo, 281 F.3d at 579 (internal quotation               of the appeal from the judgment of conviction and
marks omitted)                                                      sentence, based on a claim of ineffective assistance of
                                                                    appellate counsel. An application for reopening shall be
  To satisfy the prejudice prong of Strickland, a defendant         filed in the court of appeals where the appeal was
“must show that there is a reasonable probability that, but for     decided within ninety days from journalization of the
counsel’s unprofessional errors, the result of the proceeding       appellate judgment unless the applicant shows good
would have been different. A reasonable probability is a            cause for filing at a later time.
probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. The prejudice prong        Ohio R. App. P. 26(B)(1). Williams did not file a Rule 26(B)
“is not satisfied if there is strong evidence of a petitioner’s   motion nor otherwise attempt to raise any ineffective-
guilt and a lack of evidence to support his claim.” Rust v.       assistance-of-appellate-counsel claim in state court.
Zent, 17 F.3d 155, 162 (6th Cir. 1994). The petitioner “must
show that absent his counsel’s error, the courts of appeal          (2) Application of IAAC law in this case
would have reasonable doubt with respect to his guilt.”
Moore v. Carlton, 74 F.3d 689, 693 (6th Cir. 1996).                 The district court held that Williams’s Direct Appeal IAAC
                                                                  claim could not serve as cause for his procedural defaults
  A claim of ineffective assistance of counsel must be            because he had procedurally defaulted the Direct Appeal
presented to the state courts as an independent claim before it   IAAC claim as well. J.A. at 125. The court further held that
may be used to establish cause for a procedural default.          Williams’s Rule 26(B) IAAC claim could not stand as
Edwards v. Carpenter, 529 U.S. 446, 452 (2000). And, as the       “cause” for his default of his Direct Appeal IAAC claim
Supreme Court has recently instructed, “an ineffective-           because Williams did not have a constitutional right to
assistance-of-counsel claim asserted as cause for the             counsel to pursue a Rule 26(B) motion. J.A. at 126. Finally,
procedural default of another claim can itself be procedurally    the court ruled that, even if Williams had preserved his Direct
defaulted.” Id. at 453. However, the procedural default of an     Appeal IAAC claim, this claim could not save the remaining
ineffective assistance claim may “itself be excused if the        claims from procedural default because Williams’s appellate
prisoner can satisfy the cause-and-prejudice standard with        counsel was not constitutionally ineffective. “Williams’s
respect to that claim.” Id. (emphasis in original).               counsel,” the district court concluded, “was not deficient for
                                                                  failing to raise on appeal nonfrivolous claims that counsel
No. 02-3461                          Williams v. Bagley     69    70   Williams v. Bagley                           No. 02-3461

decided as a matter of professional judgment not to press.”       cause for filing at a later time.” Ohio R. App. P. 26(B)
J.A. at 129.                                                      (emphasis added). Arguably, the “good cause” avenue is not
                                                                  open to Williams, as the Ohio appellate courts have proved
  We agree that Williams’s counsel on direct appeal was not       unsympathetic to the claim that a lack of effective assistance
ineffective for failing to raise the claims which are now         of counsel serves as “good cause” for purposes of Ohio Rule
procedurally defaulted. Before giving our reasons for this        of Procedure 26(B), even in the wake of White v. Schotten.
conclusion, though, we pause briefly to clarify a couple of       See Eads v. Morgan, 298 F. Supp. 2d 698, 705 (N.D. Ohio
matters.                                                          2003) (collecting cases). However, the Ohio Supreme Court
                                                                  recently has accepted the following certified question from
   First, we note that this court continues to wrestle with the   the United States District Court for the Northern District of
issue of whether the Rule 26(B) procedure implicates the          Ohio: “Is an application to reopen an appeal under Ohio Rule
Sixth Amendment’s right to counsel. In White v. Schotten,         of Appellate Procedure 26(B) part of the direct appeal from a
201 F.3d 743 (6th Cir. 2000), applying pre-AEDPA law, a           judgment of conviction?” Morgan v. Eads, 805 N.E.2d 542
panel of this court held that Ohio criminal defendants have a     (Ohio 2004). In any event, we need not resolve this issue
federal constitutional right to effective assistance of counsel   because we have the discretion to deny unexhausted claims on
in connection with a Rule 26(B) application and that the          their merits, which we exercise to the extent necessary.
failure of petitioner’s counsel to file a timely Rule 26(B)       28 U.S.C. § 2254(b)(2); see also Lott v. Coyle, 261 F.3d 594,
application constituted “cause” for his procedural defaults.      608 (6th Cir. 2001).
Id. at 754. Later, in Lopez v. Wilson, 355 F.3d 931 (6th Cir.
2004), applying AEDPA, another panel held that the Ohio              Assuming for argument’s sake that Williams’s Rule 26(B)
Court of Appeals had not acted contrary to clearly established    IAAC claim excuses his procedural default of his Direct
federal law as determined by the Supreme Court in denying         Appeal IAAC claim, his Direct Appeal IAAC claim fails on
the petitioner’s request for appointment of counsel to file a     its merits. Williams levels a broadside at his appellate
Rule 26(B) motion. Id. at 933. The Lopez court                    counsel, charging that his counsel was constitutionally
distinguished White on the ground that AEDPA requires             ineffective for failing to raise any claims which the court
greater deference to state court decisions. Id. at 938.           deems procedurally defaulted. However, Williams “does not
Subsequently, the court voted to vacate Lopez and hear the        have a constitutional right to have his counsel press
matter en banc. Lopez v. Wilson, No. 01-3875, 2004 WL             nonfrivolous points if counsel decides as a matter of
934989 (6th Cir. Apr. 20, 2004). Because we can resolve this      professional judgment not to press those points.” Coleman v.
matter without deciding whether Williams had a                    Mitchell, 244 F.3d 533, 541 (6th Cir. 2001). His appellate
constitutional right to Rule 26(B) counsel, and because, quite    counsel was not deficient for failing to raise the procedurally-
inexplicably, the parties have not addressed White, we set this   defaulted claims as these claims are not clearly stronger than
issue aside.                                                      the claims raised by his appellate counsel on direct appeal.
                                                                  Moreover, we have reviewed the substance of Williams’s
  Second, it is not entirely clear that Williams has exhausted    procedurally defaulted claims and have determined that each
his IAAC claims. Williams has not filed a Rule 26(B) claim        of them lacks merit. Thus, he suffered no prejudice from his
to date, and Rule 26(B)’s ninety day deadline has long            appellate counsel’s performance. See Buell, 274 F.3d at 352.
expired. However, Rule 26(B) recognizes an exception to the       And because Williams has not established a constitutional
ninety-day deadline in cases where “the applicant shows good      violation of his right to counsel, his counsel’s performance
No. 02-3461                          Williams v. Bagley      71    72    Williams v. Bagley                            No. 02-3461

cannot serve as “cause” for his procedural defaults. Monzo,        representation, is evidence which establishes Petitioner’s
281 F.3d at 577.                                                   ineligibility for the imposition of the death penalty.” Given
                                                                   the strong evidence of Williams’s guilt and Williams’s failure
  F. “Fundamental Miscarriage of Justice” Gateway                  to identify the new “evidence,” our review of the record in
                                                                   this case does not permit us to say that Williams has made a
   The district court properly concluded that Williams cannot      showing of “actual innocence” permitting him to pass through
escape his procedural defaults by means of the “fundamental        the “fundamental miscarriage of justice” gateway.
miscarriage of justice” gateway. A habeas petitioner can
overcome a procedural default by demonstrating that “failure       VI. WILLIAMS’S MOTION FOR DISCOVERY
to consider the claims will result in a fundamental miscarriage
of justice.” Coleman, 501 U.S. 722, 750 (1991). The                  The district court did not abuse its discretion in denying
“fundamental miscarriage of justice” gateway is open to a          Williams’s motion for discovery. See Stanford v. Parker, 266
petitioner who submits new evidence showing that “a                F.3d 442, 460 (6th Cir. 2001); Byrd v. Collins 209 F.3d 486,
constitutional violation has probably resulted in the              516 (6th Cir. 2000). “Habeas petitioners have no right to
conviction of one who is actually innocent.” Schlup v. Delo,       automatic discovery.” Stanford, 266 F.3d at 460. Rule 6 of
513 U.S. 298, 327 (1995) (quoting Murray v. Carrier, 477           the Rules Governing Section 2254 Cases in the United States
U.S. 478, 496 (1986)). “To establish the requisite probability,    District Courts permits a petitioner “to invoke the processes
the petitioner must show that it is more likely than not that no   of discovery available under the Federal Rules of Civil
reasonable juror would have convicted him in light of the new      Procedure if, and to the extent that, the judge in the exercise
evidence.” Id. The gateway is also available to a petitioner       of his discretion and for good cause shown grants leave to do
who demonstrates that he is “actually innocent” of the             so, but not otherwise.” R. 6 R. Gov. 2254 Cases. Rule 6
sentence of death that has been imposed on him. To establish       embodies the principle that a court must provide discovery in
his “innocence” of the death penalty, a petitioner must “show      a habeas proceeding only “where specific allegations before
by clear and convincing evidence that, but for a constitutional    the court show reason to believe that the petitioner may, if the
error, no reasonable juror would have found the petitioner         facts are fully developed, be able to demonstrate that he is . . .
eligible for the death penalty under the applicable state law.”    entitled to relief.” Bracy v. Gramley, 520 U.S. 899, 908-09
Sawyer v. Whitley, 505 U.S. 333, 336 (1992). Importantly, a        (1997) (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)).
claim of innocence in this context is “not itself a                “The burden of demonstrating the materiality of the
constitutional claim, but instead a gateway through which a        information requested is on the moving party.” Stanford, 266
habeas petitioner must pass to have his otherwise barred           F.3d at 460.
constitutional claim considered on the merits.” Schlup, 513
U.S. at 315 (quoting Herrera v. Collins, 506 U.S. 390, 404            Rule 6 does not “sanction fishing expeditions based on a
(1993)).                                                           petitioner’s conclusory allegations.” Rector v. Johnson, 120
                                                                   F.3d 551, 562 (5th Cir. 1997); see also Stanford, 266 F.3d at
  As the district court concluded, Williams has not                460. “Conclusory allegations are not enough to warrant
approached the “actual innocence” standard. In support of his      discovery under [Rule 6]; the petitioner must set forth specific
claim, Williams offers only the assertion that unidentified        allegations of fact.” Ward v. Whitley, 21 F.3d 1355, 1367
“evidence that should have been presented at trial and the         (5th Cir. 1994).
mitigating phase, but was not due to ineffective
No. 02-3461                                  Williams v. Bagley          73     74     Williams v. Bagley                                      No. 02-3461

    Williams requested leave to serve four requests for                         district court denied Williams’s request, concluding that
production. The first request centered on an atomic                             “[a]ny discovery related to the state’s ‘transfer theory’ is
absorption kit used to test Williams’s hands for gunshot                        unnecessary because the trial court excluded this theory from
residue.23 During the trial, Jeffrey Lynn, a forensic scientist                 the jury’s consideration.” J.A. at 2048.
at the Ohio Bureau of Criminal Identification and
Investigation, testified that swabs from Williams’s right and                      The district court properly denied Williams’s first request
l e f t p a l ms show ed levels of ba r ium a nd                                for production. As previously discussed, Williams has
a n t i m o n y — s u b s t a n c e s co mm on ly f o u n d i n                 procedurally defaulted his ineffective assistance of counsel
ammunition—consistent with gunshot residue. J.A. at 4587-                       claims. Moreover, the trial court—on the basis of trial
90. However, Williams’s accomplices had testified that                          counsel’s objections—instructed the jury to disregard Lynn’s
Williams wore gloves during the murder; so, in order to                         testimony concerning the transfer theory, so Williams was not
square this testimony with the results of the atomic absorption                 prejudiced by his trial counsel’s alleged failure to “deal with”
test, the prosecutor attempted to elicit testimony from Lynn                    this testimony. As the Supreme Court held in Strickland v.
that the barium and antimony found on Williams’s hands                          Washington, 466 U.S. 668 (1984), “any deficiencies in
could have been transferred from the gloves to his hands                        counsel’s performance must be prejudicial in order to
when Williams took the gloves off. J.A. at 4590-98. Lynn                        constitute ineffective assistance under the Constitution.” Id.
was unable to offer an opinion on the state’s “transfer” theory                 at 692. Williams has not shown that the requested discovery
to a reasonable degree of scientific certainty, and the trial                   could “resolve any factual disputes that could entitle him to
court instructed the jury to disregard Lynn’s answers. J.A. at                  relief.” Stanford, 266 F.3d at 460.
4592-98.
                                                                                  The second and third requests involved a diagram of Alfred
                                    24
   Before the district court, Williams indicated that he                        Madison’s house, the site of the murders.25 Two of
required this discovery to pursue his ineffective assistance of                 Williams’s accomplices, Broderick Boone and Dominic
counsel claim. J.A. at 171. Specifically, he claimed that his                   Cherry, testified that Williams drew two diagrams of the
trial counsel “was not effective on the matters dealing with                    residence during a meeting attended by Broderick, Dominic,
[Lynn’s testimony]” and that he “was not afforded an expert                     and Jessica Cherry, and that one of the diagrams was
necessary to challenge the transfer theory.” J.A. at 171. The                   destroyed at Williams’s request. J.A. at 4050-51, 4199-4201,

                                                                                     25
    23                                                                                  Request for Production No. 2: Produce State’s Exhibit 11 and 11A
       Req uest for Pro duc tion N o. 1: Produce the atomic abso rption kit     (original diagram of McGuffy Road residence and envelope), the major
and samples submitted for examination to the Ohio Bureau of Criminal            fingerprint cards for co-conspirators Bro derick Boon e and Jessica Cherry,
Identification & Investigation, all documents identifying the testing           and the identification of any finge rprint(s) in the indices of state or federal
procedures and processes conducted on the samples, and all rep orts             law enforcement authorities showing points of identification or
generated or produced in connection with the analysis and/or testing of         classifications similar to the latent unidentified fingerprints discovered on
the sam ples. J.A . at 170 .                                                    State’s Exhibit 11.
    24
                                                                                     Request for Produc tion N o. 3: Produce State’s Exhibit 11 and 11A
       Before this court, W illiams simp ly announces, “Good cause for          (original diagram of McG uffy Road residence and envelope), the
discovery clearly exists. Petitioner has asserted claim s in his petition for   handwriting exem plars taken from Petitioner W illiams, and all
a writ of habeas corpus which, when fully develop ed, will demo nstrate         handwritings or exemplars of co-conspirators Jessica Cherry, Dominic
that he is co nfined illegally and is entitled to relief.”                      Cherry and Broderick Boone. J.A. at 173.
No. 02-3461                          Williams v. Bagley      75    76     Williams v. Bagley                                   No. 02-3461

4267, 4274-75. The other diagram was recovered by the              fingerprint would not have impugned Broderick’s or
police and analyzed by Sheryl Lynn Harris, a fingerprint           Dominic’s credibility. Regarding the handwriting samples,
examiner at the Ohio Bureau of Criminal Identification and         Williams makes no effort to explain how evidence that one of
Investigation. During the trial, Harris testified that she found   his accomplices—rather than Williams himself—drew the
three fingerprints on the diagram and that she tested these        diagram would enable him to show prejudice sufficient to
fingerprints against samples from Williams and Dominic.            sustain an ineffective assistance of counsel claim. As the
J.A. at 4575-76. She further testified that two of the             Supreme Court said in Strickland, the defendant “must show
fingerprints belonged to Dominic and that the third fingerprint    that there is a reasonable probability that, but for counsel’s
did not belong to Williams or Dominic. J.A. at 4576. On            unprofessional errors, the result of the proceeding would have
cross-examination, she conceded that the third fingerprint was     been different.” 466 U.S. at 694.
not tested against samples from Broderick or Jessica. J.A. at
4581-82.                                                             The fourth request sought materials relating to any
                                                                   inducements offered to Jerome Gibson to testify against
   Before the district court, Williams stated that he required     Williams.26 Gibson was incarcerated with Williams after
this discovery to pursue his ineffective assistance of counsel     Williams’s capture during the break-in at the JJC. J.A. at
claim. J.A. at 173. Specifically, he contended that trial          4828. He testified that Williams confessed that he had
counsel’s failure to ascertain whether the unidentified            arranged the murder of four men in connection with a dispute
fingerprint belonged to Broderick or Jessica, and to               over “drugs” and “territory,” though Williams would not say
commission a handwriting analysis to determine whether             whether he actually shot the men himself. J.A. at 4829-32.
Williams or one of his accomplices drew the diagram,               He further testified that Williams confessed that he had
constituted ineffective assistance. J.A. at 173-74. Williams       broken into the JJC in order to “get the guys that turned
maintained that Broderick’s and Dominic’s credibility would        State’s evidence, made statements against him.” J.A. at 4832.
have been seriously undermined if trial counsel had presented
evidence that the fingerprint belonged to Broderick or Jessica        Before the district court, Williams asserted that he “was
or that Williams had not drawn the diagram. J.A. at 172-74.        prejudiced by the government’s failure to disclose the
The district court determined that the requested discovery         information requested as such information constitutes
would not aid Williams’s ineffective assistance claim, given       favorable impeachment evidence which Petitioner’s counsel
that Williams’s accomplices admitted viewing the diagrams.         would have used to impeach the testimony of Jerome
J.A. at 2048-49.                                                   Gibson.” J.A. at 175. Williams did not identify the specific
                                                                   claim(s) that he hoped to advance with the requested
   The district court did not abuse its discretion in denying      discovery, though it appears that the discovery was directed
Williams’s second and third requests for production. Again,        at his Brady and ineffective assistance of counsel claims.
Williams has procedurally defaulted his ineffective assistance
of counsel claim. Moreover, Williams has not shown that the
requested discovery could yield evidence enabling Williams
                                                                        26
to prevail on his ineffective assistance claim. Broderick’s and            Request for Produc tion N o. 4: Produce all information referring,
Dominic’s testimony was consistent with a finding that             relating or pertaining to any promise or inducement offered or conferred
Broderick and Jessica viewed and handled the diagram, so           upon Jerome Gibson: (a) at any time preceding Petitioner’s trial, and (b)
                                                                   in any way relating or resulting from his testimony at P etitioner W illiams’
evidence that the diagram bore Broderick’s or Jessica’s            trial. J.A. at 1 74.
No. 02-3461                           Williams v. Bagley      77    78   Williams v. Bagley                           No. 02-3461

   The district court did not abuse its discretion in denying       Petitioner with regard to AEDPA’s ‘presumption of
Williams’s fourth request for production. This request              correctness’” (id. at 69), and requests that “he be granted an
appears to be a classic “fishing expedition,” as Williams has       evidentiary hearing in regard to all claims which were
not identified the “inducements” he expects to uncover.             determined to be procedurally defaulted, or to which the
Moreover, regardless of the claim(s) underlying the request,        presumption of correctness applies” (id. at 70-71). “However,
Gibson’s prior convictions provided ample ammunition for            even in a death penalty case, bald assertions and conclusory
attacking Gibson’s credibility, and any evidence of                 allegations do not provide sufficient ground to warrant
inducements for his testimony would have been cumulative.           requiring the state to respond to discovery or to require an
See J.A. at 4938-39 (defense counsel’s closing argument). As        evidentiary hearing.” Bowling v. Parker, 344 F.3d 487, 512
the district court reasoned, “[b]ecause Gibson’s credibility        (6th Cir. 2003) (internal quotation marks omitted).
already had been seriously undercut by disclosing seven prior       Manifestly, the district court did not abuse its discretion in
felony convictions, any further impeachment of his testimony        denying Williams’s request, given his failure to specify which
would have been cumulative.” J.A. at 2049. As this court            of his claims warranted an evidentiary hearing and what could
stated in Byrd, “where undisclosed evidence merely furnishes        be discovered through an evidentiary hearing. Stanford v.
an additional basis on which to challenge a witness whose           Parker, 266 F.3d 442, 460 (6th Cir. 2001).
credibility has already been shown to be questionable or who
is subject to extensive attack by reason of other evidence, the                            CONCLUSION
undisclosed evidence may be cumulative, and hence not
material.” 209 F.3d at 518 (internal quotation marks                  Based on our review of the record, the briefs, and the earlier
omitted). Thus, Williams has not shown that the request for         opinions in this case, and our consideration of oral argument,
production might yield evidence enabling him to prevail on          we conclude that Williams has not established a claim for
any of his claims.                                                  habeas corpus relief. We further conclude that the district
                                                                    court did not abuse its discretion in denying Williams’s
VII. WILLIAMS’S REQUEST             FOR    AN    EVIDENTIARY        requests for discovery and an evidentiary hearing. We
     HEARING                                                        therefore AFFIRM the judgment of the district court.

  The district court did not abuse its discretion in denying
Williams’s request for an evidentiary hearing. See Alley v.
Bell, 307 F.3d 380, 389 (6th Cir. 2002) (“We review a district
court’s decision not to conduct an evidentiary hearing for an
abuse of discretion.”). The district court denied Williams’s
request on the ground that it found no material factual dispute
requiring such a hearing. J.A. at 142. On appeal, Williams
suggests that the district court abused its discretion in denying
his motion, but he fails to identify the subject of the proposed
hearing. At his most specific, he demands a hearing in order
to show that ineffective assistance of counsel serves as
“cause” for any procedural defaults (Williams’s Br. at 44),
claims that the lack of a hearing “has also prejudiced
No. 02-3461                          Williams v. Bagley      79    80       Williams v. Bagley                                 No. 02-3461

                       _____________                               Thus the conduct of the voir dire and the number of pro-
                                                                   death-penalty jurors versus the number of jurors who disfavor
                         DISSENT                                   the death penalty make a big difference in the outcome of the
                       _____________                               case. Execution may turn on the views of one juror.

  MERRITT, Circuit Judge, dissenting. I would issue the               The Sixth Amendment guarantees the right to an “impartial
writ of habeas corpus because the jury selection process           jury” in criminal prosecutions, not one biased in favor of
violated Williams’ right to an “impartial jury” under the Sixth    automatically imposing the death penalty. In the present case,
Amendment, as explained by Chief Justice Moyer in his              as Chief Justice Moyer suggests, we simply create a legal
dissenting opinion in the Ohio Supreme Court in this case.         fiction when we say that Williams had an “impartial” or
                                                                   neutral and unbiased jury insofar as the death penalty is
   Judge Rogers’ complex 77-page opinion for the Court             concerned. The trial court in this case administered a double
illustrates the highly complex, convoluted nature of our           dose of lethal rulings at the voir dire — those jurors who
federal death penalty jurisprudence which depends on               disfavor the death penalty were excused for cause, those who
multiple layers of intersecting state and federal doctrines and,   favor the automatic imposition of the death penalty for
through various door-closing devices like “procedural              murder were not excused for cause.
default,” prevents the Court from reaching many of Williams’
claims on the merits. (See, for example, footnote 21.) Such           The state prosecutor “death qualified” the jury and stacked
a system, as has been often noted by judges and scholars,          it in favor of proponents of the death penalty before the case
produces “randomized” executions with “no observable               was tried. At the voir dire, the prosecutor was successful in
differences between outcomes in the ‘standardless’ discretion      having the court excuse for cause those jurors predisposed to
disapproved of in Furman, and the ‘guided discretion’ upheld       disfavor the death penalty. Even though a quarter of the
in Gregg.” Zimring, The Contradictions of American Capital         States and all members of the European Union have abolished
Punishment 9 (2003). See Kozinski, Death: The Ultimate             the death penalty, jurors who would agree with the policy of
Run-On Sentence, 46 Case W. L. Rev. 1 (1995) (situation not        these States and nations are said to be biased and
different from the time the Supreme Court “wiped the slate         unrepresentative and were eliminated from service on this
clear of all death statutes” as our institutions “have gone        jury. As a practical matter, this left a jury made up of pro-
about recreating and expanding the death penalty”).                death-penalty jurors.1

  In such a randomized system, the capital case often is won
                                                                        1
or lost at voir dire. The voir dire and the method of jury               The practice of excusing jurors with scruples against the death
selection become more important than the trial itself.             penalty has a long history. Prior to 1968, state law controlled this pro cess
Executions depend on “the line between innocence and guilt         without federal court intervention. In Withersp oon v. Illinois, 391 U.S.
                                                                   510 (1968), the Sup reme Court limited strictly such ju ror exclusion to just
[which] is drawn with reference to reasonable doubt” by            those jurors “wh o ma de unmistaka bly clear (1) that they would
individual jurors, Schlup v. Delo, 513 U.S. 298, 329 (1995),       automatically vote against the imposition of capital punishment without
and on the fact that just 1 of the 12 jurors is empowered to       regard to any evidence . . . or (2 ) that their attitude to ward the death
prevent the imposition of the death penalty by finding at the      penalty would prevent them from making an impartial decision as to the
sentence stage that the mitigating factors outweigh the            defendant’s guilt.” 39 1 U .S. at 52 2, n. 21 . This rule was reve rsed in
                                                                   Wainwright v. Witt, 469 U.S. 412 (1985), eliminating “the requirement
aggravating factors. Mills v. Maryland, 486 U.S. 367 (1988).       that a juror may be excluded only if he would never vote for the d eath
No. 02-3461                                  Williams v. Bagley          81     82       Williams v. Bagley                                 No. 02-3461

  Chief Justice Moyer pointed out in his dissent for himself                      regarding a juror’s ability to be fair and impartial.” I
and Justice Pfeifer that the state trial court went much further                  disagree. I believe this case represents precisely the sort
than simply eliminating anti-death penalty jurors. It declined                    of rehabilitation the United States Supreme Court
to excuse for cause jurors who would automatically impose                         intended to prohibit in Morgan v. Illinois when it held
the death penalty for murder. His dissenting opinion explains                     that general questions to a prospective juror by the court
the situation clearly:                                                            relating to fairness or impartiality cannot negate a
                                                                                  statement by the prospective juror that he or she would
  I would also reverse this conviction on the ground that                         automatically vote for death. 504 U.S. at 735-736, 112
  Williams was not adequately protected from juror bias in                        S. Ct. at 2233, 119 L. Ed. 2d at 506-507.2
  favor of the death penalty. Of the nine prospective jurors
  for whom the trial court denied defense challenges for
  cause based on expression of death penalty bias, five                              2
                                                                                     The Chief Justice then describes the Eddleman voir dire in detail,
  were excused upon the exercise of peremptory challenges                       679 N.E.2d at 667-68:
  by defense counsel, another was excused for personal
  reasons, the number of one of the jurors was not reached,                            Eddleman unambiguously affirmed that her preference for the
  and two, Eddleman and Camp, were seated as jurors.                                 death penalty would be automatic. Though consistent with her
  Appellant argues that each of these prospective jurors                             previous responses, such statements must arouse profound doubt
                                                                                     as to whether impartiality would ever be possible for Eddleman.
  was biased in favor of the death penalty. With regard to                           The exchange was the following:
  Eddleman, Scanlon and Subecz, I agree.
                                                                                       “[Defense Counsel]. You understand that you only have those
  ....                                                                               three o ptions if you get to the po int”

  Juror Eddleman again presents the greatest difficulties.                             “Juror Eddleman. Those three options, if it came right down
  The majority admits that Eddleman contradicted herself                             to it, it would probably be the death penalty then. If there was
                                                                                     any remote chance of them being paroled, I would probably go
  on voir dire. Despite her repeated statements that she                             with the death penalty.”
  would prefer death and would not consider alternative
  life sentences, the majority concludes that the court’s                               “[Defense C ounsel]       Automatically, just because of the
  rehabilitation of Eddleman was successful because “the                             possibility of parole.”
  trial judge’s questions were more than general inquiries
                                                                                         “Juror Eddleman. Yes.”

                                                                                      “[Defense Counsel] And are you saying that even though you
penalty” and “the extremely high burden of proof” which Witherspoon                  know that these three alternatives should start out even in your
had impo sed upon the State. Id. at 421. In Witt a much more general                 mind? Y ou are being honest with me.”
standard was substituted (i.e., that the juror’s view “would substantially
impa ir the perfo rmance of his duties”), and the state trial judge was given            “Juror Eddleman. Yes.”
much bro ader discre tion in the process. Id. at 420. In the view of many
scholars and judges, the result that has emerged is a double standard                   “[Defense Counsel] And because of what you are saying
favor ing the pro secutio n in cap ital cases. See Ho ldridge, Selec ting            about the death penalty being automatic, because of the
Capital Jurors Uncommonly Willing to Condemn A Man to Die: Lower                     eligibility of paro le, you would be unable to fairly consider life
Court’s Contrad ictory R ead ings o f Wainwright v. Witt and Morgan v.               imprisonment, am I right?”
Illinois, 19 Miss. C .L. Rev. 283, 301 -03 (1999).
No. 02-3461                                Williams v. Bagley           83   84    Williams v. Bagley                         No. 02-3461

State v. Williams, 679 N.E.2d 646, 664 (Ohio 1997).                               “Juror Eddleman. Yes.”
After quoting the exchange between defense counsel and                           Then, after explaining the two phases of the trial and
Eddleman in which the juror seven times said that she would                    the sentencing options, the court asked, “Can you follow
always choose the death penalty over any other options such                    the instructions of law?” Eddleman answered, “Yes.”
as life imprisonment (see footnote 1 below), the Chief Justice
pointed out that the trial court’s attempt at rehabilitation was               Id. at 668.
ineffective:
                                                                               The trial judge also weighted the jury selection process in
      In contrast, Eddleman made very few responses                          favor of the death penalty with respect to juror Scanlon, as
  suggesting that she could set aside her bias. Following                    Chief Justice Moyer also pointed out in his dissenting
  the preceding exchange, the judge elicited a general                       opinion. Juror Scanlon gave the following set of answers to
  response.                                                                  defense counsel’s questions on the death penalty:

    “The Court: Mrs. Eddleman, do you agree that you can                         MR. INGRAM: And you have said that if you take
  listen to and follow the instructions of the Court?”                         someone else’s life and it’s a proven fact, that the death
                                                                               penalty should be imposed.
                                                                                  JUROR SCANLON: Yes.
     “Juror Eddleman. If it was without ever a chance of parole,
   yes.”
                                                                                 MR. INGRAM: Well, what I want to know is if you
                                                                               get to a second phase and there’s a murder which is a
     “[Defense C ounsel] T hat’s not the way it is.                            proven fact --
     “Juror Eddleman. Since we don’t have a choice[,] I would say                JUROR SCANLON:            I would vote for the death
   the death penalty.”                                                         penalty.
     “[Defense Counsel] And you say that knowing that there are
   these life sentencing options that you sho uld co nsider.”                     MR. INGRAM: Every time?

      “Juror Eddleman. Because whenever I think about it I would                  JUROR SCANLON: Yes.
   think well, maybe 30 years down the line somebody may be
   getting out of prison and might meet up with one of my children                MR. INGRAM: Automatically?
   or something. T hat’s what I’m thinking of whenever I thin of
   it.”                                                                           JUROR SCANLON: If it’s an option given, yes.
   ....
                                                                                 MR. INGRAM: As long as the death penalty is an
     “[Defense Counsel] Is yo ur bo ttom line, if I have to determine          option you would vote for it every time you have a
   the sentence I’ll vote death because there’s eligibility for                choice where there’s been a finding of guilty for
   parole?”                                                                    aggravated murder?
     “Juror Eddlem an. Yes.”
No. 02-3461                       Williams v. Bagley   85   86   Williams v. Bagley                          No. 02-3461

   JUDGE SCANLON: Yes.                                          MR. INGRAM: If you find someone guilty of willful
                                                              and intentional murder --
 ....
                                                                JUROR SCANLON: Then I believe they should be
   MR. INGRAM: Did you say if he willfully and                put to death.
 intentionally did it you would not even look at life
 imprisonment.                                                   MR. INGRAM: All the time?
   JUROR SCANLON: Right.                                         JUROR SCANLON: Yes, sir.
    MR. INGRAM: If he willfully and intentionally did it        MR. INGRAM: Regardless of what anybody says
 it should be death?                                          about anything?
   JUROR SCANLON: Right.                                         JUROR SCANLON: Yes, sir.
   MR. INGRAM: Automatically?                                   MR. INGRAM: And you feel so strongly about it it
                                                              may be very difficult for you to put your feelings out of
   JUROR SCANLON: Right.                                      your mind, correct?
   MR. INGRAM: Regardless of what could be said                  JUROR SCANLON: In that sense, yes.
 about the defendant?
                                                                MR. INGRAM: In light of everything that you just
   JUROR SCANLON: Right.                                      told me, your feelings about the death penalty, in cases of
                                                              willful and intentional murder, would prevent or
   MR. INGRAM: Because of the way you feel in a case          substantially impair you from fairly considering life
 where a defendant willfully and intentionally murdered       imprisonment as a sentencing option?
 someone you would want that defendant put to death?
                                                                 JUROR SCANLON: I guess so.
   JUROR SCANLON: Yes, sir.
                                                               Instead of following the requirements of Morgan v. Illinois,
   MR. INGRAM: You wouldn’t even consider life              504 U.S. 719, 729 (1992) (“based on the requirement of
 imprisonment as an option?                                 impartiality . . . a capital defendant may challenge for cause
                                                            any juror” who will “automatically vote for the death penalty”
   JUROR SCANLON: Not if he intentionally took              without really weighing the “aggravating and mitigating
 someone else’s life without any thought of what he did,    circumstances”), that such a juror be excused for cause, the
 no.                                                        trial court overruled the defense objection. Defense counsel
                                                            then had to exercise a peremptory challenge. Surely, if those
 ....                                                       who disfavor the death penalty may be excused for cause, the
                                                            Chief Justice is correct that the failure to excuse Juror
                                                            Scanlon for cause also violates the Sixth Amendment
No. 02-3461                             Williams v. Bagley   87   88   Williams v. Bagley                  No. 02-3461

requirement of an unbiased jury. Juror Scanlon said 16 times      Amendment ground explained by Chief Justice Moyer and
that she would automatically impose the death penalty for         Justice Pfeifer.
first degree murder. There is no question about her strong
predisposition to impose the death penalty in every murder
case.
   The Ohio death penalty system, as administered in this
case, not only picks its jurors from those who favor the death
penalty and eliminates those opposed. It picked jurors who
would automatically impose the death penalty for first degree
murder. That practice is inconsistent with the Sixth
Amendment requirement assuring an “impartial jury” in
criminal trials. The trial judge made fact findings and legal
conclusions about the selection of the jury that practically
assured the prosecution of a death verdict upon receiving a
verdict of guilty. These errors not only violate Morgan v.
Illinois, supra, but also the principle of Woodson v. North
Carolina, 428 U.S. 280 (1976), invalidating under the Eighth
Amendment the automatic or mandatory imposition of the
death penalty. When those who disfavor the death penalty are
excluded and strong death penalty proponents who would
automatically impose it are included, the death penalty
becomes the inevitable result. Mills v. Maryland, supra,
which allows jurors to weigh aggravators and mitigators in
favor of life also becomes a dead letter because the method of
jury selection prevents such jurors from sitting. In upholding
this system, the Court upholds the worst of double standards:
get rid of jurors with death penalty scruples, keep the jurors
who have no scruples about imposing it automatically. It is
hard to think of a more unfair system of jury selection.3
   I have serious doubts about the Court’s disposition of
several other questions — particularly those involving
questions of procedural default — but I would not reach those
issues because I would grant the writ on the Sixth



   3
       See Ho ldridge, supra, note 1.
