                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 05a0109p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                     X
                              Petitioner-Appellee/ -
 WILLIAM H. SMITH,

                                 Cross-Appellant, -
                                                      -
                                                      -
                                                          Nos. 05-3241/3243

                                                      ,
           v.                                          >
                                                      -
                                                      -
                            Respondent-Appellant/ -
 CARL S. ANDERSON, Warden,

                                  Cross-Appellee. -
                                                      -
                                                     N
                      Appeal from the United States District Court
                     for the Southern District of Ohio at Cincinnati.
                    No. 95-00320—S. Arthur Spiegel, District Judge.
                                Decided and Filed: March 6, 2005
            Before: SUHRHEINRICH, BATCHELDER, and COLE, Circuit Judges.
        SUHRHEINRICH, J., delivered the opinion of the court, in which BATCHELDER, J.,
joined. COLE, J. (pp. 10-11), delivered a separate opinion concurring in part and dissenting in part.
                                        _________________
                                            OPINION
                                        _________________
        SUHRHEINRICH, Circuit Judge. Petitioner William H. Smith, an Ohio death row inmate,
is scheduled to be executed on March 8, 2005. On February 28, 2005, the district court issued an
order staying the execution to permit Smith to pursue an action under Fed. R. Civ. P. 60(b)(6)
regarding his claim of ineffective assistance of trial counsel in failing to present evidence of organic
brain damage, and denied Smith’s claim of racial discrimination in the selection of the grand jury
foreperson.
        The Warden asks this Court to lift the stay of execution, on the grounds that the district court
exceeded its authority in granting the stay of execution. Smith cross-appeals the district court’s
ruling denying his grand jury foreperson discrimination claim. The district court has granted a
certificate of appealability as to the latter claim.
                                                   I.
        On September 27, 1987, Marvin Rhodes discovered the bloody body of his girlfriend, Mary
Virginia Bradford, lying stabbed to death on her bed, nude from the waist down. She had been
raped, stabbed, and raped again. One color television, one black and white television, and a stack
stereo with two speakers were missing from Bradford’s otherwise spotless apartment. The coroner’s
report revealed that Mary had died as a result of ten stab wounds to her upper body and consequent

                                                   1
Nos. 05-3241/3243 Smith v. Anderson                                                             Page 2


loss of blood. She was five feet, three inches tall, one hundred sixteen pounds, and a portion of her
lungs was missing. Forensic examination revealed sperm in her vagina and on her abdomen.
        On September 28, 1987, Smith confessed to the murder. He told police that he met Mary
at the Race Inn, a neighborhood bar in Cincinnati, Ohio, where he was a regular patron. He stated
that he drove her home and had sex with her, allegedly as compensation for $2,500 Mary owed him
for a packet of cocaine. Smith stated that, because the sex “wasn’t good enough,” he asked her for
“money and stuff.” Mary apparently told him that she did not have any and they began to fight.
Smith claimed that she grabbed a small blade, and that Mary was stabbed in the stomach in the
struggle. He claimed that he removed the knife from her stomach and that she dragged herself to
the bedroom. Smith confessed that when she was lying on the bed, he took off her clothes and had
sex with her again. He then told police that, after the second session of sex, he gathered his things
and also took Mary’s TVs and stereo. He stated that he made four trips carrying her things. Smith
also admitted that he decided to have sex with Mary a second time because “she was still breathing
then.” See State v. Smith, 574 N.E.2d 510, 512-14 (Ohio 1991).
        Smith went to trial for Mary’s murder in 1988. A unanimous three-judge panel convicted
Smith of two counts of aggravated murder under Ohio Rev. Code § 2903.01(B) and two death
specifications for each count under Ohio Rev. Code § 2929.04(A)(7). They also convicted him of
one count of rape under Ohio Rev. Code § 2907.02, and one count of aggravated robbery under Ohio
Rev. Code § 2911.01. In sentencing Smith, the trial court weighed the aggravating factors against
the mitigating factors, pursuant to Ohio Rev. Code § 2929.03(D)(3), The trial court noted that by
its verdict, the three-judge panel unanimously found Smith guilty of specifications I and II as to
Count One and specifications I and II as to Count Two. The court then assessed the mitigating
factors. Regarding the nature and circumstances of the offense, the court found that “[t]here is
absolutely no question that the defendant purposely, coldly and brutally killed Mary Bradford while
committing the offenses of rape and aggravated robbery. He stabbed the victim ten times and then
raped her as the life drained from her body. This is not a mitigating factor and certainly does not
militate for mercy.” As to the character and background of the offender, the trial court
acknowledged that Smith “had a difficult childhood,” and that “[a]s a result, he developed
personality disorders which adversely affected his ability to relate to others.” The sentencing panel
stated that it recognized Smith’s personality disorder and difficult childhood as mitigating factors.
Finally, in weighing the mitigating factors against the aggravating factors, the sentencing panel
concluded as follows:
               A careful and meticulous review of the mitigating factors discloses that the
       defendant had a difficult childhood. . . . It is the opinion of this three-judge panel
       that the mitigating factors present pale before the fact that the defendant’s actions
       were plotted, vicious, persistent and utterly callous. Mary Bradford was not stabbed
       once but ten times. She then had to suffer the final indignities of being raped by
       Smith while she lay dying and then having her property stolen. It is clear that the
       defendant went to her apartment to obtain “restitution.” He obtained it in a violent
       and ruthless manner, with absolutely no regard for the life of Mary Bradford. We
       find no conduct or provocation on the part of Mary Bradford which would warrant
       the defendant’s lethal response.
Smith v. Mitchell, 348 F.3d 177, 195 (6th Cir. 2003). The panel unanimously concluded that the
aggravating circumstances outweighed all the mitigating factors Smith advanced, and imposed the
death penalty on each murder count.
        After exhausting his state court remedies, Smith filed a federal habeas petition. He
petitioned for relief on two grounds. First, he alleged that he received ineffective assistance of
counsel at sentencing because his trial counsel failed to discover and present evidence of organic
Nos. 05-3241/3243 Smith v. Anderson                                                                           Page 3


brain damage. Second, he argued that racial and gender discrimination in the selection of grand jury
forepersons impeded his ability to receive a fair trial. The district court denied Smith’s first
argument on the merits, finding that Smith had not demonstrated prejudice under Strickland v.
Washington, 466 U.S. 668 (1984). The district court denied Smith’s second argument on the basis
of procedural default. See Smith v. Anderson, 104 F. Supp.2d 773 (S.D. Ohio 2000).
        Smith appealed to this Court. We affirmed the district court’s denial of Smith’s petition.
This Court unanimously concluded that Smith had failed to meet either prong of Strickland.1 See
Smith v. Mitchell, 348 F.3d 177 (6th Cir. 2003). We stated that “virtually all of the mitigating
elements that Smith complains of were presented via Dr. Schmidtgoessling’s testimony and her
mitigation report.” Id. at 200. We further concluded that trial counsel were not deficient for
choosing to rely on Dr. Schmidtgoessling because of her expertise and because they knew what her
testimony would be from a prior NGRI report. Id. at 203. We concluded that the only mitigation
evidence that had not been presented during Smith’s trial was Smith’s claim of organic brain
damage, and that the only relevant trait that Smith’s experts identified from this alleged organic
brain damage was “poor impulse control.” Id. at 202. We stated:
                 From what we can tell, the only allegedly new mitigating evidence that Smith
         presents is that he suffers from organic brain damage. That evidence is not
         compelling, however, because it is not conclusive. Dr. Smith never states that Smith
         suffers from organic brain damage. The closest thing to organic brain damage in Dr.
         Smith’s statement is that Smith was dependent on alcohol, marijuana, and cocaine,
         and that each of these chemicals affects the central nervous system. But Dr.
         Schmidtgoessling herself also documented Smith’s substance abuse. And Dr. Smith
         merely opined that it was “plausible” that Smith had abused substances on the night
         of the offense, and that if he did, it was “likely” that Smith’s judgment was impaired.
                 Dr. Dobbins likewise did not diagnose Smith with organic brain damage,
         concluding only that there is a “likelihood of neurological impairment.” Nor did Dr.
         Dobbins ever explain whether this likelihood of neurological impairment would have
         impacted Smith’s criminal act. Dr. Burch diagnosed Smith with “mild diffuse
         cerebral dysfunction.” She further stated that Smith’s performance was no more than
         mildly impaired on any of the measures[.]” More telling, Dr. Burch identified only
         one deficit that was relevant to Smith’s actions on the night of the murder–poor
         impulse control. Dr. Burch did not opine that Smith’s impairment constituted either
         diminished capacity or insanity under Ohio law.
                Although he faults trial counsel for failing to obtain a neuropsychological
         examination that would reveal evidence of organic brain damage, post-conviction
         counsel’s efforts on that score were equally unavailing. . . .
                 Other than the slim evidence of a “mild diffuse cerebral dysfunction,” which
         manifested primarily as poor impulse control, Smith has failed to point to any
         mitigating evidence that was not actually presented. Absent the existence of some
         actual medical proof of an organic brain disorder, there can be no cause in the failure
         to find and present it, and obviously no prejudice either. . . . In short, trial counsel’s
         performance was not unreasonable.
Id. at 202. The United States Supreme Court denied certiorari. See Smith v. Mitchell, 125 S. Ct. 278
(2004).

         1
          The dissenting opinion was limited to the issue of whether a neutral expert would satisfy the requirements of
Ake v. Oklahoma, 470 U.S. 68 (1985). See Smith v. Mitchell, 348 F.3d 177, 215 (6th Cir. 2003) (Cole, J., dissenting).
Nos. 05-3241/3243 Smith v. Anderson                                                                           Page 4


        On December 29, 2004, the Ohio Supreme Court scheduled Smith’s execution for March 8,
2005. See State v. Smith, 104 Ohio St.3d 1437 (2004). That same day, Smith fainted and was
rushed to the local emergency room, where he had a CAT scan. On February 16, 2005, doctors in
the Department of Rehabilitation and Corrections concluded that a follow-up MRI examination
would be appropriate and made arrangements for Smith to be taken to Ohio State University. The
MRI was originally set for April 1, 2005. The Warden recommended that the DRC move up the date
for the MRI. Smith’s MRI was conducted on February 25, 2005.
       On February 17, 2005, Smith filed an action in the district court entitled “Motion for
Equitable Relief and For Relief from Judgment.” Smith asserted that relief under Article III and
Rule 60(b)(6) was warranted for the following reasons.
         1.       In denying relief as to Smith’s grand jury foreperson discrimination
                  claim, the Court found the claim to be procedurally defaulted without
                  conducting the required cause and prejudice analysis. Smith has now
                  obtained affidavits from trial counsel which demonstrate cause for the
                  default; and
         2.       In denying relief as to Smith’s ineffective assistance of counsel in
                  mitigation claim, both this Court and the Sixth Circuit held that Smith
                  could not establish prejudice. Numerous courts, including the Sixth
                  Circuit, have issued intervening decisions demonstrating that Smith
                  was prejudiced by his counsel’s failure to uncover and present
                  evidence of his organic brain impairment. In addition, Smith now has
                  medical support for his claim that he suffers from brain damage.
Simultaneously, Smith filed a motion for stay of execution.
         On February 22, 2005, the district court held oral argument. On February 28, 2005, the
district court issued an order granting Smith relief under Rule 60(b), as well as its equitable powers
under Article III, as to the organicity issue.2 The court denied relief as to Smith’s grand jury
discrimination claim. The district court also granted a stay of execution, “until further Order of the
Court.”
         The Warden now moves this Court to lift the stay of execution, on the grounds that the
district court was without jurisdiction to vacate its previous judgment and stay Smith’s execution,
because Smith’s Rule 60(b) motion is in essence a second or successive petition under AEDPA.
Smith cross-appeals the district court’s denial of equitable relief and relief from judgment as to his
grand jury foreperson claim.
                                                         II.
        Our initial inquiry is “whether the entry of a stay was jurisdictionally proper.” Alley v. Bell,
392 F.3d 822, 827-28 (6th Cir. 2004), petition for certiorari filed, (Dec. 16, 2004) (No. 04-7718).
 Alley controls our analysis in this regard. As we noted in Alley, absent extraordinary circumstances,
we cannot consider the propriety of Smith’s Rule 60(b) motion, or the merits of the underlying
claims, unless it is clear that the district court had jurisdiction. Id. at 828 (citing Steel Co. v. Citizens
for a Better Environment, 523 U.S. 83, 110-11 (1998)). Thus, the true question before us is whether


         2
           The Warden asserts that he obtained updated medical records from the correctional institution on Monday,
February 28, 2005, at 10:30 a.m. The Warden notified the district court that the MRI had taken place on February 25,
2005, and indicated that the results would be available within the next 36 hours. The district court nonetheless issued
its order granting relief at approximately 3:00 p.m. on February 28th.
Nos. 05-3241/3243 Smith v. Anderson                                                              Page 5


Smith’s motion for relief pursuant to Rule 60(b) was the equivalent of a second or successive habeas
petition under AEDPA, since under AEDPA, a petitioner must obtain authorization from the court
of appeals before a second or successive habeas application can be filed in the district court. 28
U.S.C. § 2244(b)(3)(A). If the latter, then the district court lacked jurisdiction to issue relief
because § 2244(b)(3) allocates subject matter jurisdiction to the court of appeals, rather than the
district court, in the first instance, over a second or successive habeas petition. Id.
        In Abdur’Rahman v. Bell, 392 F.3d 174 (6th Cir. 2004) (en banc), this Court set forth the law
of this Circuit regarding the circumstances in which a post-judgment motion should be treated as
a second or successive petition. The court held that “[w]hen the motion’s factual predicate deals
primarily with the constitutionality of the underlying state . . . conviction or sentence,” the motion
should be treated as a second or successive petition. Id. at 181 (quoting Rodwell v. Pepe, 324 F.3d
66, 70 (1st Cir. 2003)). If, however, “the motion’s factual predicate deals primarily with some
irregularity or procedural defect in the procurement of the judgment denying habeas relief,” then it
should be treated within the usual standards governing Rule 60(b) relief. Id. See also Alley, 392
F.3d at 828 (discussing Abdur’Rahman).
       The district court found that Smith’s motion for equitable relief from judgment was
appropriately brought as a Rule 60(b)(6) motion.
                Although Smith does present newly discovered evidence, he does so to
       challenge the structural and procedural integrity of the Court’s earlier ruling denying
       relief–he does not attack the conviction and sentence itself. Smith is challenging the
       nature of the judgment by which it was reached. Ohio, lastly, suggests that Smith’s
       Motion should be characterized as a motion made pursuant to Rule 60(b)(1) or (2),
       which must be brought within one year of the court’s final decision . . . . However,
       the Court finds the circumstances revolving around this newly discovered
       evidence–namely, its discovery through no action of Smith, but rather, through the
       actions of Ohio by having Smith tested at the Mansfield General Hospital–presents
       the Court with the need to review this evidence. Rule 60(b)(6) which allows a
       district court to hear the motion for “any other reason justifying relief from the
       operation of the judgment” is the appropriate route for the Court to consider this
       important development.
        We hold that the district court erred in treating Smith’s motion as a Rule 60(b)(6) motion.
There is no question that, by its own terms, Smith’s claim for relief is based on a “factual predicate
[that] deals primarily with the constitutionality of” the underlying federal conviction. See
Abdur’Rahman, 392 F.3d at 181. Smith asked the district court to vacate its previous judgment
based solely on “new” evidence of his alleged brain damage, and the district court held that “[t]here
is now new evidence of a brain abnormality. If that abnormality were present at the time of Smith’s
crime and it would have served to mitigate its sentence, then Smith might not now be facing death.”
In essence, the district court has reversed its previous decision–and judgment of this Court–based
on a new assessment of the possible merit of Smith’s claim of ineffective assistance of counsel.
        Such a ruling says nothing about the procedural correctness or regularity of the previous
habeas adjudication. By contrast, in Abdur’Rahman, the en banc court found that the petitioner’s
Rule 60(b) motion was not equivalent to a second or successive habeas petition where it sought
reconsideration on the ground that an intervening Tennessee Supreme Court rule had clarified that
the petitioner did not need to seek discretionary review from the state supreme court in order to
properly preserve his claims of prosecutorial misconduct in the state court. This Court reasoned that
the motion simply related to the integrity of the federal habeas judgment, specifically the basis for
the district court’s procedural default holding. Thus, the practical result, if granted, would be simply
Nos. 05-3241/3243 Smith v. Anderson                                                              Page 6


to reopen the federal habeas proceeding and not to vacate the state criminal judgment.
Abdur’Rahman, 392 F.3d at 182.
        In this case, though, Smith seeks, with his new evidence, to vacate the state criminal
judgment. In other words, Smith’s claim is “a classic example of a second or successive habeas
petition.” Alley, 392 F.3d at 831. Alley is analogous. There, the petitioner brought a Rule 60(b)(6)
motion raising three claims: (1) that the intervening decision of Cone v. Bell, 359 F.3d 785 (6th Cir.
2004)3, which upheld an Eighth Amendment vagueness challenge to the Tennessee “heinous and
cruel” instruction in a capital sentencing proceeding, demonstrated the district court’s error in
rejecting his constitutional vagueness challenge the instruction; (2) that he was denied fair
consideration of his Brady claims due to the withholding of exculpatory evidence in both his state
court and federal habeas proceeding; and (3) that the intervening state supreme court decision of
State v. Carter, 114 S.W.3d 895 (Tenn. 2003), which held that it was error to exclude a defendant’s
personal correspondence proffered as mitigating evidence, showed that the state trial court
unconstitutionally excluded videotaped evidence of Alley’s behavior under hypnosis. Alley, 392
F.3d at 826-27.
         The Alley court rejected all three grounds as a basis for relief under Rule 60(b). As to the
first basis, the court held that the “factual predicate” of the claim was simply Cone itself, and that
“the sole relevance of the Cone decision to the prior habeas proceeding is that it dealt with the same
issues as the parallel constitutional vagueness challenge that Alley brought against the HAC
instruction in his own trial.” Id. at 829. This Court concluded that the petitioner’s second argument
was “essentially indistinguishable from a standard Brady constitutional claim that is being asserted
for the first time after the completion of a first federal habeas proceeding., and as such was “a classic
example of a second or successive habeas petition.” Id. at 831. Regarding the third claim, the Alley
court remarked that it had “considerable doubt as to whether Alley . . . [had] articulated any sort of
claim for relief, let alone a proper claim for relief from judgment, independent of a constitutional
claim, that would escape the strictures of AEDPA.” Id. at 832. The court further noted that it had
no authority to revisit the state supreme court’s application of Tennessee evidentiary law to the facts
of the case sub judice. Id. Finally the court stated that if Alley’s Carter claim had any substance,
it must be construed as a claim that dealt primarily with the constitutionality of the underlying
sentence. Id.
         Like the claims in Alley, Smith’s present ineffective assistance of counsel claim based on
“new” evidence “parallels” Smith’s ineffective assistance of trial counsel claim based counsels’
failure to present mitigating evidence of organic brain damage previously addressed by this Court
and therefore is clearly a direct challenge to underlying conviction. “AEDPA therefore forecloses
the district court from considering or acting on it, unless and until [the petitioner] satisfies the
gatekeeping criteria of 28 U.S.C. § 2244(b).” Id.
        The district court also relied on intervening decisions, namely Hamblin v. Mitchell, 354 F.3d
482 (6th Cir. 2004), Stankewitz v. Woodford, 365 F.3d 706 (9th Cir. 2004), and Smith v. Mullin, 379
F.3d 919 (10th Cir. 2004). These cases can hardly be considered “intervening legal developments”
since they do not change the standards found in Strickland, standards which have been applied in
numerous death penalty cases in this Circuit. And, as stated, any argument premised on them is
“obviously ‘presents a direct challenge to the constitutionality of the underlying conviction.’” Alley,
392 F.3d at 829 (quoting Abdur’Rahman, 392 F.3d at 181).
        In sum, applying Abdur’Rahman and Alley, we hold that Smith’s motion must be classified
as a second or successive habeas petition as to his claim of ineffective assistance of trial counsel for


        3
            The Supreme Court reversed that judgment at 125 S. Ct. 847 (2005).
Nos. 05-3241/3243 Smith v. Anderson                                                                                 Page 7


failure to present evidence of organic brain damage. We therefore hold that the district court lacked
jurisdiction over Smith’s motion, because it is the equivalent of a second or successive habeas
petition under 28 U.S.C. § 2244(b). Because Smith’s claim is “substantially equivalent to [a]
successive request[] for a writ of habeas,” his “inherent authority” argument also fails. See Alley,
392 F.3d at 833. As there was no proper proceeding upon which      to premise the stay, we therefore
grant the Warden’s motion to vacate the stay of execution.4
                                                            III.
        In any event, Smith has not presented any evidence, let alone “new” evidence, that calls into
question this Court’s prior rejection of his claims, and would justify relief of any form. Admittedly,
the CAT scan, performed in December 2004, performed seventeen years after trial, revealed some
sort of abnormality on Smith’s seventh and eighth cranial nerves. In support of his motion, Smith
relied on the affidavit of a neuroradiologist, Dr. Pleatman, who reviewed Smith’s CAT scan and
concluded that some sort of abnormality was present on the seventh and eighth cranial nerves.
        In the first place, any lesion has no real implications in this case, because the seventh and
eighth cranial nerves are not part of the brain. The seventh cranial nerve primarily controls the
function of facial muscles and taste from the tongue. The eighth cranial nerve primarily relays
sound and balance information to the inner and middle ear to the brain. The seventh and eighth
cranial nerves transmit information from various organs and help control muscles. They do not
control decision-making. Affidavit of Dr. Howard Lederman. See also Merck Manual of Diagnosis
and Therapy 1382-83 (Robert Berkow, M.D, et al. eds., Merck Research Lab. 16th ed. 1992); Merck
Manual of Diagnosis and Therapy 1456-61 (Mark H. Beers, M.D., et al.,5eds., Merck Research Labs.
17th ed. 1999). Furthermore, the MRI is consistent with the CAT scan. It states in its findings that
“[t]here are low signal lesions present within the globus palantine bilaterally, which correlate with

         4
           Smith argues that the district court’s stay should remain in place pending the outcome of two similar cases in
the United States Supreme Court. See Gonzalez v. Crosby, 125 S. Ct. 961 (2005), and Thompson v. Bell, 125 S. Ct. 823
(2005). We reject this argument. The issue before the Supreme Court in Gonzalez is “[w]hether the court of appeals
erred in holding that every Rule 60(b) motion (other than for fraud under (b)(3)) constitutes a prohibited ‘second or
successive’ petition as a matter of law, in square conflict with the decisions of this Court and of other circuits.” Gonzalez
v. Secretary for Dep’t of Corrections, 2004 WL 310625 (July 22, 2004) (Petition for Writ of Certiorari). The ruling at
issue in Gonzalez conflicts with the law of this Circuit, as stated in Abdur-Rahman. A ruling either way on this question
would not affect the outcome reached here. The issue before the Supreme Court in Thompson is limited to whether “the
Sixth Circuit abused its discretion by withdrawing the opinion affirming the denial of habeas corpus relief six months
after Fed. R. App. 41(d)(2)(D) made issuance of the mandate mandatory, without notice to the parties or any finding that
the court’s action was necessary to prevent a miscarriage of justice.” Thompson v. Bell, 2004 WL 2337932 (2004)
(Petition for Writ of Certiorari). Again, we fail to see how the outcome of this case will affect the decision at hand.
         5
           The Warden also filed a “Notice of Filing” to include a one-page MRI summary and a motion to expand the
record to include an affidavit from a neuroradiologist who reviewed Smith’s February 25, 2005 MRI results. Smith filed
a motion to strike the MRI summary and opposes the Warden’s motion to expand the record. The Warden’s motion is
hereby GRANTED. The MRI summary, although filed after the district court granted the stay of execution, was properly
filed in the district court by the Warden, because the court continued to exercise jurisdiction. Furthermore, a panel of
this Court has held that we have inherent equitable power to supplement the record “where the interests of justice
require.” Thompson v. Bell, 673 F.3d 688, 690 (6th Cir. 2004), cert. granted, 125 S. Ct. 823 (2005).
          As to Dr. Tomsick’s affidavit, which admittedly was not before the district court, we find that “the interests of
justice require” its consideration. The Warden acted diligently in informing the district court of the MRI, and in
attempting to present the relevant materials to the district court. The MRI results are plainly relevant to this Court’s
determination of whether a stay of execution is warranted. Finally, it must be remembered that, at oral argument in the
district court, Smith requested an MRI at OSU. Smith should not be able to use the fact that he obtained the result he
wanted to delay these proceedings. Finally, even without Dr. Tomsick’s affidavit, our conclusion would be the same,
based on the CAT scan results, Dr. Pleatman’s conclusion that there was an abnormality on the seventh and eighth cranial
nerves, and Dr. Lederman’s affidavit that these nerves are not part of the brain and do not control-decision making.
Notably, Smith does not dispute these medical facts.
Nos. 05-3241/3243 Smith v. Anderson                                                             Page 8


the CT report, most likely due to calcium,” and that “[t]here are a couple of subcortical white matter
lesions present.” Dr. Christoforidis, the physician who conducted the MRI at OSU Hospital, opined
that the lesions were not anything unusual for a patient of Smith’s age. Dr. Thomas Tomsick, a
neuroradiologist who teaches radiology at the University of Cincinnati School of Medicine,
reviewed the MRI at the Warden’s behest. He concurred in Dr. Christoforidis’s assessment.
Specifically, he stated that “[t]here were minor lesions on various portions of Smith’s brain,” but
that “[t]hese are quite common and are most often found in people with high blood pressure or some
sort of vascular disease.” Dr. Tomsick stated that “[i]t is more likely than not that these lesions were
not present in 1987, because they usually develop over time, most commonly as a result of high
blood pressure or vascular disease.” In Dr. Tomsick’s opinion, there were no brain abnormalities
that would impact Smith’s ability to understand right from wrong. Nor did he “find any
abnormalities that would impact Smith’s ability to conform his conduct to the requirements of the
law.” Finally, Dr. Tomsick stated that the MRI, which produces far better images than a CAT scan
and therefore supersedes it, did not support Dr. Pleatman’s tentative diagnosis because “[t]here was
no indication in the MRI taken on February 25, 2005 that there are any abnormal masses on any
cranial nerves, or in any other area inside of Smith’s skull.”
         Nor is there any evidence linking Smith’s alleged “brain damage” and the crime. Dr.
Pleatman made no such suggestion in his affidavit, and Dr. Lederman flatly rejected any nexus: “It
is my opinion that any such an abnormality–no matter how severe–would not affect an individual’s
ability to tell right from wrong. Nor would such an abnormality affect an individual’s ability to
conform his conduct to the requirements of the law.”
        Thus, the CAT scan and the MRI simply do not constitute evidence that Smith suffered from
brain damage at the time of the crimes. Nor are they evidence of a serious mental disease or defect
that should have been presented as mitigating evidence. The CAT scan and MRI show nothing more
than an anatomical process that is “quite common” simply as a result of aging. Morever, it was
remote in time–seventeen years– from the rape and murder of Mary Bradford, and regardless of its
severity, had no impact on Smith’s ability to determine right from wrong. Finally, the MRI and
CAT scan are not evidence of ineffective assistance of trial counsel for failing to discover and
present proof of an organic brain disorder, for even assuming that the February 2005 MRI findings
would have been present seventeen years ago, lesions on the seventh and eighth cranial nerves
would not constitute “organic brain damage” that would affect Smith’s cognitive formation. As we
stated previously, “Smith has failed to point to any mitigating evidence that was not actually
presented.” Smith v. Mitchell, 348 F.3d at 202.
                                                  IV.
        Lastly, we note that the district court granted entered an order that purports to issue a
certificate of appealability as to Smith’s grand jury foreperson discrimination claim. The district
court denied Smith’s Rule 60(b) motion to reopen proceedings as to that claim. Therefore, it is not
clear to us how the district court would have the authority to grant a COA as to that claim. In any
event, this claim would have to be presented initially to this Court. See 28 U.S.C. § 2244(b)(3).
                                                  V.
       For the foregoing reasons, we VACATE the stay of execution.
Nos. 05-3241/3243 Smith v. Anderson                                                             Page 9


                   ________________________________________________
                     CONCURRING IN PART, DISSENTING IN PART
                   ________________________________________________
        R. GUY COLE, JR., Circuit Judge, concurring in part and dissenting in part. I agree with
the majority’s ultimate decision to vacate the stay of execution and to deny the certificate of
appealability. However, I write separately because I would not rely on the majority’s jurisdictional
basis to vacate the stay. I also disagree with the majority’s decision to expand the record on appeal
to include the affidavit of the Warden’s expert.
                                                   I.
          The state relies on Abdur’Rahman v. Bell, 392 F.3d 174 (6th Cir. 2004), to show that Smith’s
motion should be treated as a second or successive habeas petition, and not as a Rule 60(b) motion.
It is true that Smith’s claim does not present the same type of irregularity or procedural defect in the
federal habeas court as did Abdur’Rahman’s Rule 60(b) claim. Smith is complaining about his trial
counsel’s ineffectiveness in the state court; he does not challenge an event that occurred in the
federal habeas court. However, the legal landscape created by Abdur’Rahman is not yet solid
terrain. The Supreme Court recently granted certiorari in Gonzalez v. Crosby, 125 S. Ct. 961 (2005),
to address the issue directly presented in Abdur’Rahman. The Supreme Court could adopt the
reasoning of Abdur’Rahman, or it could set forth a more expansive rule. Such a ruling could greatly
impact whether this Court should treat Smith’s claim as a second habeas petition or as a Rule 60(b)
motion. Accordingly, I would not rely on this alterable case law as a basis for vacating a stay of
execution.
        Moreover, the majority’s reliance on Alley v. Bell, 392 F.3d 822, 829 (6th Cir. 2004), is
misplaced. The rule we set forth in Abdur’Rahman was clearly a functional one which requires
case-specific analysis. The grounds for Smith’s Rule 60(b) motion are not at all analogous to
Alley’s situation: Alley’s challenge relied on an intervening state court decision and on fraud on
the federal habeas court, whereas Smith relies on new evidence to show ineffective assistance of
counsel during the penalty phase of his state court proceeding. Therefore, I do not believe that Alley
can adequately inform us as to how to handle Smith’s motion.
        Nevertheless, I concur in the judgment of the Court regarding the stay of execution, because
Smith’s motion for equitable relief from the judgment cannot be regarded as a Rule 60(b)(6) motion.
Even if we were to look past the jurisdictional question presented by Abdur’Rahman and evaluate
Smith’s motion under Rule 60(b), his motion would fall under Rule 60(b)(2) and would fail under
the one-year time bar. Accordingly, I respectfully concur in the judgment of the Court vacating the
stay of execution.
                                                  II.
        I would deny the Warden’s motion to expand the record in this case. The Warden has
presented this Court with an affidavit from a neuroradiologist, Dr. Thomas Tomsick, taken on
March 3, 2005. The affidavit presents Dr. Tomsick’s expert opinion of Smith’s MRI scan, and
concludes that the scan reveals nothing out of the ordinary, and certainly nothing that would suggest
an “organic impairment” that would diminish Smith’s ability to distinguish right from wrong, or to
conform his conduct with the law. This evidence was not presented to the district court when it
issued its stay of execution. The Warden is now asking that we act as a trial court and evaluate this
medical evidence, without providing Smith, who is scheduled to be executed in a matter of days, an
opportunity to truly review and counter this evidence.
Nos. 05-3241/3243 Smith v. Anderson                                                          Page 10


       The Warden cites to Fed. R. App. P. 10(e)(2), to support his argument that this Court should
expand the record to include information that the district court did not consider. Our own precedent
prohibits us from doing so. As we held in Inland Bulk Transfer Co. v. Cummins Engine Co., 332
F.3d 1007 (6th Cir. 2003), “the purpose of [Fed. R. App. P. 10(e)(2)] is to allow the court to correct
omissions from or misstatements in the record for appeal, not to introduce new evidence in the court
of appeals.” Id. at 1012 (internal quotation marks and brackets omitted). Cf. Sovereign News Co.
v. United States, 690 F.2d 569, 571 (6th Cir. 1982) (“A party may not by-pass the fact-finding
process of the lower court and introduce new facts in its brief on appeal.”). It is therefore
inappropriate and inequitable for this Court to rely on the unchallenged opinion of an expert on
appeal to support a reversal of a stay of execution.
      I therefore respectfully dissent from the Court’s decision to grant the Warden’s motion to
expand the record on appeal.
