                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                          File Name: 04a0380p.06

                        UNITED STATES COURT OF APPEALS
                                      FOR THE SIXTH CIRCUIT
                                        _________________


                                                         X
                                 Petitioner-Appellee/ -
 DAVID A. MAPES,

                                     Cross-Appellant, -
                                                          -
                                                          -
                                                              Nos. 01-3828/3891

                                                          ,
         v.                                                >
                                                          -
                                                          -
                               Respondent-Appellant/ -
 ARTHUR TATE, Warden,

                                      Cross-Appellee. -
                                                          -
                                                        N
                         Appeal from the United States District Court
                        for the Northern District of Ohio at Cleveland.
                      No. 91-00056—Solomon Oliver, Jr., District Judge.
                                         Argued: June 15, 2004
                                Decided and Filed: November 3, 2004
                     Before: RYAN, SILER, and DAUGHTREY, Circuit Judges.
                                          _________________
                                              COUNSEL
ARGUED: Stephen E. Maher, ATTORNEY GENERAL’S OFFICE OF OHIO, CAPITAL CRIMES
SECTION, Columbus, Ohio, for Appellant. Harry R. Reinhart, Columbus, Ohio, for Appellee.
ON BRIEF: Stephen E. Maher, ATTORNEY GENERAL’S OFFICE OF OHIO, CAPITAL CRIMES
SECTION, Columbus, Ohio, for Appellant. Harry R. Reinhart, Columbus, Ohio, Carol Wright, Columbus,
Ohio, for Appellee.
                                          _________________
                                              OPINION
                                          _________________
        RYAN, Circuit Judge. The state of Ohio, through Warden Arthur Tate, appeals from the district
court’s order granting David A. Mapes a conditional writ of habeas corpus unless the Ohio courts review
his sentence within 90 days. For the following reasons, we AFFIRM.
                                                    I.
        The facts of this case are fully reported in our previous decision in Mapes v. Coyle, 171 F.3d 408
(6th Cir. 1999) (Mapes I), and are only briefly recounted here. Mapes was convicted of aggravated murder
in the shooting death of John Allen during a robbery at Allen’s bar in Cleveland, Ohio. Because Mapes had
previously been convicted of a murder in New Jersey, the Ohio murder conviction made him eligible for

                                                    1
Nos. 01-3828/3891       Mapes v. Tate                                                                    Page 2


the death penalty. At the sentencing phase of Mapes’s trial, the jury heard evidence regarding seven
statutory aggravating and mitigating factors. The only mitigating evidence Mapes submitted was an
unsworn statement that he was only 18 years old at the time of the New Jersey murder, that the conviction
was really for manslaughter in light of the sentence he received, and that he was not responsible for the
actual shooting.
        To prepare the jury for its sentencing deliberations, the trial court gave several instructions, only two
of which are in issue. First, the court instructed the jurors that they could not consider giving Mapes a life
sentence unless they first unanimously rejected the death penalty. Id. at 416. Second, the jurors were told
that they were not permitted to consider mitigating evidence related to Mapes’s prior murder conviction.
Id. at 417. Mapes’s counsel objected to both of these instructions.
         The jury recommended that Mapes be sentenced to death. After the jury announced its verdict, the
trial judge polled each of the jurors, asking them, “[I]s this your verdict[?]” Id. at 423. Juror June Chatman
responded by saying, “It’s to me, it’s the State’s verdict.” Id. Inquiring further, the trial judge asked
whether Chatman had signed the verdict form. She answered, “Yes, I did.” Id. The trial court stated that
Chatman’s answer was sufficient. Mapes’s counsel objected to this holding and requested that the jury be
allowed to continue its deliberations. The trial judge refused this request.
        Mapes filed a direct appeal in the Ohio Court of Appeals. His counsel brought 12 assignments of
error, 11 of which pertained to the guilt phase of the trial. Id. at 412. In his only sentencing argument,
Mapes alleged that, by commenting on the fact that his mitigation statement was unsworn, the prosecutor
had infringed on Mapes’s Fifth Amendment right to remain silent. Appellate counsel did not raise, in the
state appellate court, any of the three sentencing issues that are currently the subject of Mapes’s habeas
corpus petition. Mapes’s conviction and death sentence were affirmed on direct appeal, State v. Mapes, 484
N.E.2d 140 (Ohio 1985), and his petition for state post-conviction relief was denied, State v. Mapes, 558
N.E.2d 57 (Ohio 1990).
        Mapes filed a habeas corpus petition in federal district court alleging 15 assignments of
constitutional error. The only claim credited by the district court was that Mapes had received ineffective
assistance of appellate counsel by virtue of counsel’s failure to argue on direct appeal that the trial court had
impermissibly precluded the jury from considering mitigating factors related to Mapes’s New Jersey murder
conviction. The district court agreed and granted Mapes's petition, vacating his death sentence unless Ohio
courts provided another review within 90 days. Ohio timely appealed the district court’s order.
         A divided panel of this court reversed in part and remanded to the district court for an evidentiary
hearing to determine whether Mapes’s appellate counsel was ineffective for failing to raise the following
four issues: (1) that the jury was not allowed to consider mitigating evidence relating to Mapes’s prior
murder conviction, hereinafter referred to as the Eddings claim; (2) that the jury was erroneously required
to unanimously reject the death penalty before considering a life sentence, hereinafter referred to as the
acquittal-first claim; (3) that juror Chatman gave an equivocal response during polling, hereinafter referred
to as the unanimity claim; and (4) that trial counsel had been constitutionally ineffective. Mapes I, 171 F.3d
at 427, 429.
        On remand, the case was referred to a magistrate judge who conducted an evidentiary hearing and
concluded that Mapes’s appellate counsel was ineffective for failing to raise (1) the Eddings claim, (2) the
acquittal-first claim, and (3) the unanimity claim. By agreement of the parties, the magistrate judge reserved
judgment on the fourth issue, the claim of ineffective assistance of trial counsel. The district court adopted
the magistrate judge’s recommendation and granted Mapes’s petition for a writ of habeas corpus, vacating
his sentence of death unless the Ohio courts granted another review of Mapes’s sentence within 90 days.
Ohio appeals the district court’s order and Mapes cross-appeals, claiming that, rather than a new appeal, the
proper remedy is to vacate his death sentence.
Nos. 01-3828/3891       Mapes v. Tate                                                                    Page 3


                                                     II.
        Because a claim of ineffective assistance of counsel raises mixed questions of law and fact, we
review the district court’s ruling on such a claim de novo. United States v. Jackson, 181 F.3d 740, 744 (6th
Cir. 1999). “Any findings of fact pertinent to the ineffective assistance of counsel inquiry are subject to a
‘clearly erroneous’ standard of review.” Id.
                                                     III.
        Mapes argues that he did not receive the effective assistance of appellate counsel because his
appellate counsel failed to raise the following three issues on appeal: (1) the Eddings claim; (2) the
acquittal-first claim; and (3) the unanimity claim. A fourth issue—ineffective assistance of trial
counsel—was reserved by agreement of the parties. Mapes maintains that the district court correctly found
(1) that these issues were significant and obvious and (2) that appellate counsel did not have a strategy in
omitting these issues from his direct appeal.
        Ohio claims that the issues omitted by Mapes’s appellate counsel were not significant and obvious
because jurists, attorneys, and even Mapes’s own expert disagreed about whether the claims were viable.
Ohio also points out that Mapes bears the burden of establishing ineffective assistance of counsel and that
the district court impermissibly shifted this burden to the state by holding that appellate counsel’s failure
to recall an appellate strategy was evidence of deficient performance. Ohio argues that the failure to recall
an appellate strategy does not overcome the presumption that appellate counsel performed satisfactorily.
        A defendant is entitled to the effective assistance of counsel in his first appeal of right. Joshua v.
DeWitt, 341 F.3d 430, 441 (6th Cir. 2003). Appellate counsel’s performance is judged under the same
standard for evaluating trial counsel’s performance found in Strickland v. Washington, 466 U.S. 668 (1984).
Smith v. Jago, 888 F.2d 399, 405 n.1 (6th Cir. 1989); see also Bowen v. Foltz, 763 F.2d 191, 194 n.3 (6th
Cir. 1985). To establish ineffective assistance of counsel, it must be shown that counsel’s performance was
deficient and that the deficient performance prejudiced the defense so as to render the trial unfair and the
result unreliable. Strickland, 466 U.S. at 687. The scrutiny of counsel’s performance is highly deferential
and “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.” Id. at 690. Nevertheless, a reviewing court must
ensure that counsel acted reasonably under all the circumstances. Id. at 688.
       We consider the following factors in determining whether an attorney on direct appeal performed
reasonably competently:
       (1)     Were the omitted issues “significant and obvious”?
       (2)     Was there arguably contrary authority on the omitted issues?
       (3)     Were the omitted issues clearly stronger than those presented?
       (4)     Were the omitted issues objected to at trial?
       (5)     Were the trial court’s rulings subject to deference on appeal?
       (6)     Did appellate counsel testify in a collateral proceeding as to his appeal strategy and,
               if so, were the justifications reasonable?
       (7)     What was appellate counsel’s level of experience and expertise?
       (8)     Did the petitioner and appellate counsel meet and go over possible issues?
       (9)     Is there evidence that counsel reviewed all the facts?
       (10)    Were the omitted issues dealt with in other assignments of error?
       (11)    Was the decision to omit an issue an unreasonable one which only an incompetent
               attorney would adopt?
Mapes I, 171 F.3d at 427-28 (citing cases). The foregoing list is not exhaustive and is not intended to
“produce a correct ‘score.’” Id. at 428.
Nos. 01-3828/3891       Mapes v. Tate                                                                  Page 4


                                                     A.
         At his trial, Mapes was charged with a death-penalty “specification” alleging that he had previously
been convicted of an offense, an essential element of which was the purposeful killing of another. The trial
judge found Mapes guilty of the specification based on a New Jersey murder conviction from 1972. When
Mapes attempted to introduce mitigating evidence that he was not the triggerman in the New Jersey murder,
the trial judge instructed the jury that it was not allowed to consider any mitigating evidence related to the
prior murder conviction. This instruction was contrary to the Supreme Court’s ruling in Eddings v.
Oklahoma, 455 U.S. 104 (1982):
       “[T]he Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded
       from considering, as a mitigating factor, any aspect of a defendant’s character or record and
       any of the circumstances of the offense that the defendant proffers as a basis for a sentence
       less than death.”
Id. at 110 (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)). We must decide whether the failure to raise
this claim in Mapes’s appeal constituted ineffective assistance of counsel.
        Ohio argues that the Eddings claim was not significant and obvious. We disagree. First, the claim
was significant because the trial court’s erroneous instruction prevented the jury from considering mitigating
evidence and was, therefore, reversible error. Moreover, because Eddings, which announced a new
constitutional law principle that affected state court sentencing in capital cases, was decided a year before
Mapes’s trial, the issue should have been obvious to Mapes’s appellate counsel.
        Ohio’s only other argument regarding the ineffective assistance of appellate counsel claim is that
the district court impermissibly shifted the burden of proof to the state. Ohio correctly maintains that a
petitioner who alleges the ineffective assistance of counsel “must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689
(internal quotation marks and citation omitted). Given that Mapes’s appellate attorneys could not recall why
they failed to raise the Eddings claim, Ohio argues that Mapes has failed to overcome this presumption.
         There are other factors, however, that indicate that appellate counsel were deficient. First, as we
have stated, the Eddings claim was significant and obvious. Second, the omitted issue was clearly stronger
than those presented. All but one of the 12 assignments of error brought by appellate counsel pertained to
the guilt phase despite the overwhelming evidence of Mapes’s guilt. Moreover, three of these errors were
asserted in the face of established law to the contrary. See State v. Mapes, No. 47191, 1984 WL 5285, at
*10-11, 15, 16-17 (Ohio Ct. App. Oct. 25, 1984). Clearly, this was not a case in which appellate counsel
omitted a questionable claim on appeal in order to concentrate on more meritorious claims; in fact, the
opposite appears to be true. Third, trial counsel did object to the erroneous instruction at trial, thereby
putting appellate counsel on notice of a possible error and preserving the error for appellate review. Fourth,
the trial court’s instruction was an error of law subject to de novo review, thus precluding any question that
the issue might have been omitted from the appeal due to concern about a deferential standard of review on
appeal. Fifth, neither of Mapes’s appellate attorneys had any experience with death penalty appeals,
although they did confer with a death penalty expert from the University of Akron School of Law. Sixth,
the omitted issue was not dealt with in any other assignment of error on direct appeal. Finally, the failure
to raise the Eddings claim, which even now is unexplained, was not reasonable. The trial judge’s instruction
precluding the consideration of mitigating evidence concerning the New Jersey murder was directly contrary
to a recent Supreme Court decision. Mapes’s appellate attorneys gained no advantage from not raising the
issue on direct appeal and are unable, even now, to explain why they did not raise it. No competent
attorney, in the circumstances of this case, would have failed to raise this issue.
       Thus, even if the district court erroneously concluded that appellate counsel’s lapse of memory at
the evidentiary hearing was evidence of a lack of strategy, the balance of the evidence supports the
Nos. 01-3828/3891        Mapes v. Tate                                                                     Page 5


conclusion that counsel’s performance was deficient and that the deficient performance prejudiced the
defense so as to render the appeal unfair and the result unreliable. Strickland, 466 U.S. at 687. For this
reason, we affirm the district court’s finding that Mapes did not receive the effective assistance of appellate
counsel.
                                                        B.
        Although we suggested in Mapes I that there may have been other grounds to support the issuance
of the writ, our decision regarding the Eddings claim is sufficient to affirm the district court’s holding that
Mapes was denied the effective assistance of appellate counsel. Consequently, we express no opinion about
the acquittal-first claim, the unanimity claim, or the ineffective assistance of trial counsel. We caution that
our opinion in Mapes I addressed only whether Mapes was entitled to an evidentiary hearing, and it should
not be read as expressing an opinion as to the merits of Mapes’s claims.
                                                       IV.
        Having concluded that Mapes did not receive the effective assistance of appellate counsel, we turn
to the proper remedy. Mapes argues that the district court erred in conditioning the issuance of the writ
upon the provision of a new, direct appeal. He argues that the appropriate remedy was to vacate his
sentence of death and instruct the Ohio courts to resentence him.
         Mapes assumes that the grant of a writ of habeas corpus in this case, based on a Sixth Amendment
violation, also established that there was an Eighth Amendment violation at sentencing. It is well settled,
of course, that the Sixth and Eighth Amendments are applicable to the states through the Fourteenth
Amendment. Duncan v. Louisiana, 391 U.S. 145, 148 (1968) (collecting cases); Wilson v. Seiter, 501 U.S.
294, 296-97 (1991). For the sake of clarity, we refer to the Amendments directly, as opposed to their
indirect application by virtue of the Fourteenth Amendment. Mapes claims that the existence of this Eighth
Amendment violation at sentencing, the Eddings claim, is now the law of the case, and he argues that “[i]f
the state appellate court were to deny relief, Petitioner would nevertheless be entitled to federal habeas
relief.” He appears to base these assumptions on two factors: (1) as a prerequisite to habeas relief, Mapes
was “required [to] pro[ve] that the omitted issues would have prevailed had they been raised,” which, as we
explain below, is a misstatement of law, and (2) a federal Eighth Amendment claim (the Eddings claim),
defaulted by ineffective assistance of appellate counsel, was “clearly meritorious.” Mapes argues that as
it is clear there was a violation of his federal Eighth Amendment rights at trial, “it is inappropriate for a
federal court to delegate or defer its enforcement responsibility to a state appellate court.” Mapes suggests
that if his Sixth Amendment claim had been predicated on a matter of state law only, “a new direct appeal
in state court might be an appropriate remedy,” but since his Sixth Amendment claim was based on federal
rights, a new, direct appeal is inappropriate.
        Again, operating from the assumption that an Eighth Amendment violation at trial is the law of the
case, Mapes argues that a direct appeal in state court “would serve no useful purpose.” He points to the fact
that under Ohio law, once it has been established that there was a jury instruction error at the penalty phase
of a capital case, a court can only resentence a defendant to life imprisonment. Mapes concludes that “[i]f
the Writ is to be conditioned at all, it should rest upon the condition of a new sentencing hearing.”
        As an initial matter, it is important to have a clear understanding of the issue that is before this court,
as well as an understanding of the issues that are not before us. This case presents a very narrow question:
whether Mapes was deprived of effective assistance of appellate counsel in violation of the Sixth
Amendment. Contrary to Mapes’s contention, determination of this issue does not require us to decide the
underlying issue whether Mapes’s Eighth Amendment rights were violated at sentencing. As we stated
repeatedly in Mapes I, Mapes’s underlying claims were not raised on direct appeal and are thus barred by
procedural default, an adequate and independent ground for affirming his sentence. Mapes I, 171 F.3d at
419, 424, 427. We further pointed out in Mapes I that these underlying claims are “relevant only insofar
Nos. 01-3828/3891       Mapes v. Tate                                                                     Page 6


as [they] bear[] on the question whether appellate counsel was unconstitutionally ineffective in failing to
raise [them].” Id. at 427.
        In order to establish a Sixth Amendment violation, it must be shown both that counsel’s
representation fell below an objective standard of reasonableness, and that his deficiencies prejudiced the
defendant. See Strickland, 466 U.S. at 687-88. With respect to prejudice in the context of ineffective
assistance of appellate counsel, a defendant must show a reasonable probability that, but for his counsel’s
defective performance, he would have prevailed on appeal. Smith v. Robbins, 528 U.S. 259, 285 (2000).
Although this analysis necessarily involves an evaluation of the underlying claims, it does not require a
decision on or a determination of these issues. All that is required is a determination that, based on the
nature of the underlying claims, there is “a reasonable probability that, but for his counsel’s [failings] . . . ,
[the defendant] would have prevailed on his appeal.” Id.; see also McFarland v. Yukins, 356 F.3d 688, 699
(6th Cir. 2004).
         With this firmly in mind, it is clear that Mapes is mistaken when he argues that the existence of an
Eighth Amendment violation is the law of the case, binding the Ohio courts and forcing this court to shape
its remedy accordingly. The only holding of the district court is that “Mapes did not receive the effective
assistance of appellate counsel.” This is a simple Sixth Amendment violation, and the law is clear that
“Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury
suffered from the constitutional violation and should not unnecessarily infringe on competing interests.”
United States v. Morrison, 449 U.S. 361, 364 (1981). Thus, as the only constitutional violation properly
before us is the ineffective assistance of appellate counsel, the appropriate remedy is the one granted by the
district court, that is, a writ conditioned upon Ohio courts granting a new, direct appeal. This remedy avoids
unnecessarily interfering with Ohio’s interest in correcting its own errors. Although the death penalty
understandably evokes strong passions and emotions, the prevailing interests of federalism and comity
demand that federal courts exercise restraint when issuing a writ of habeas corpus.
        The remedy Mapes requests goes far beyond “neutraliz[ing]” the constitutional deprivation suffered
by the defendant and would, therefore, contravene the rule announced in Magana v. Hofbauer, 263 F.3d
542, 553 (6th Cir. 2001). Although Mapes may have suffered violations of other federal rights at
sentencing, those issues are not properly before us. Accordingly, the appropriate remedy is the granting of
the writ conditioned upon Ohio courts granting Mapes an opportunity to pursue his direct appeal with
effective assistance of counsel. Such a narrow remedy “neutralize[s]” the constitutional violation and is
supported by our case law. See Freels v. Hills, 843 F.2d 958, 964 (6th Cir. 1988); see also Moore v. Rose,
No. 93-5508, 1994 WL 102958, at *5 (6th Cir. Mar. 25, 1994) (unpublished disposition).
         Although there may be some appeal to Mapes’s argument that this court should avoid unnecessary
proceedings by deciding the merits of his underlying claims, he has offered no authority suggesting the
propriety of our engaging in such an innovation. Mapes argues that “[i]f the state appellate court were to
deny relief, Petitioner would nevertheless be entitled to federal habeas relief.” While Mapes may be correct
that he would be entitled to federal habeas relief if Ohio denies relief, that issue is not properly before this
court. Until Mapes presents his underlying claims in a direct appeal before Ohio courts, these claims are
procedurally barred. Furthermore, we express no opinion about whether Ohio law permits courts to impose
only a life sentence upon a finding of error at sentencing in a capital case, as the issue is not presently before
us.
                                                       V.
        For the foregoing reasons, the judgment of the district court is AFFIRMED.
