           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                            2    Lordi v. Ishee, et al.                      No. 02-4273
        ELECTRONIC CITATION: 2004 FED App. 0310P (6th Cir.)
                    File Name: 04a0310p.06                                    THE ATTORNEY GENERAL, CORRECTIONS
                                                                              LITIGATION SECTION, Columbus, Ohio, for Appellee.
                                                                              ON BRIEF: Kort W. Gatterdam, Max Kravitz, KRAVITZ
UNITED STATES COURT OF APPEALS                                                & KRAVITZ, Columbus, Ohio, for Appellant. Stuart A.
                                                                              Cole, OFFICE OF THE ATTORNEY GENERAL,
                   FOR THE SIXTH CIRCUIT                                      CORRECTIONS LITIGATION SECTION, Columbus, Ohio,
                     _________________                                        for Appellee.

 FRANK LORDI,                     X                                             SILER, J., delivered the opinion of the court, in which
         Petitioner-Appellant, -                                              BALDOCK, J., joined. MOORE, J. (pp. 11-17), delivered a
                                   -                                          separate opinion dissenting in part.
                                   -  No. 02-4273
           v.                      -                                                              _________________
                                    >
                                   ,                                                                  OPINION
 TODD ISHEE, Warden,               -
         Respondent-Appellee. -                                                                   _________________
                                  N                                             SILER, Circuit Judge. Frank Lordi appeals the district
      Appeal from the United States District Court                            court’s denial of his petition for a writ of habeas corpus from
     for the Northern District of Ohio at Cleveland.                          his convictions in state court under 28 U.S.C. § 2254. In the
    No. 01-01725—Donald C. Nugent, District Judge.                            district court, Lordi claimed various constitutional
                                                                              deficiencies in his convictions. However, this court granted
                      Argued: June 10, 2004                                   Lordi a certificate of appealability solely on the issues of
                                                                              whether his trial counsel was constitutionally ineffective due
            Decided and Filed: September 10, 2004                             to a conflict of interest, and whether Lordi was
                                                                              constitutionally deprived of an impartial jury due to the trial
     Before: SILER, MOORE, and BALDOCK, Circuit                               court’s decision not to investigate an allegation of a juror’s
                      Judges.*                                                bias. For the reasons stated hereafter, the district court is
                                                                              AFFIRMED.
                        _________________
                                                                                                   BACKGROUND
                             COUNSEL
                                                                                 In April 1998, Lordi was indicted on eighteen criminal
ARGUED: Kort W. Gatterdam, KRAVITZ & KRAVITZ,                                 counts, variously stemming from his position as a county
Columbus, Ohio, for Appellant. Stuart A. Cole, OFFICE OF                      commissioner in Mahoning County, Ohio. Lordi hired
                                                                              attorney Lou D’Apolito (D’Apolito) to defend against the
                                                                              charges. D’Apolito’s law partner, David D’Apolito, had
                                                                              previously represented one of the government’s material
    *
     The Ho norable B obb y R. B aldock, Circuit Judge of the United States   witnesses against Lordi, Joseph Veneroso.            This
Court of Appeals for the Tenth Circuit, sitting by designation.

                                    1
No. 02-4273                        Lordi v. Ishee, et al.    3    4     Lordi v. Ishee, et al.                        No. 02-4273

representation had been in a previous unrelated criminal case     counts on which Lordi was convicted either did not rely on
involving a felony charge of bribery. Veneroso had worked         Veneroso’s testimony, or had other witnesses who
in the county’s building inspection office and had offered to     corroborated Veneroso’s testimony.
pay his supervisor $6,000 for the answers to a required
certification test. In 1996, in exchange for Veneroso’s guilty       Additionally, after jury selection but before trial, D’Apolito
plea, the charge was reduced to a misdemeanor of                  received an anonymous telephone call from a female who
falsification. At Lordi’s trial, the government intended to       claimed to have been a member of the venire. The caller
have Veneroso testify in regard to how Lordi would direct         alleged that she overheard an impaneled juror make the
Veneroso to engage in personal (e.g., maintenance on Lordi’s      statement “that guy is guilty” while looking over at Lordi.
rental houses) and political (e.g., gathering petitions) chores   The caller refused to identify herself, but claimed that another
while he was being paid by the county.                            member of the venire, whom she named, had also overheard
                                                                  the comment as they had discussed it between themselves.
   D’Apolito initially questioned his ability to defend Lordi     D’Apolito brought this to the immediate attention of the trial
due to his partner’s prior representation of Veneroso, and        court and requested that the court inquire into the truth or
informed Lordi that he had a potential conflict of interest.      falsity of the allegation. The state opposed this inquiry on the
However, after conducting some research into the conflict         basis that there was no indicia of reliability as to the
issue, D’Apolito concluded that he would be able to defend        accusation and it had the potential of tilting the accused juror
Lordi. D’Apolito shared this research and his conclusion with     into a pro-defense mode to compensate against the accusation
both the original prosecutor and the replacement prosecutor,      that he was biased against Lordi. The trial court refused to
who initially warned D’Apolito that he thought it was             conduct additional inquiry, citing the fact that the call was
necessary to seek his removal from the case due to the            anonymous and that the court had no reason to suspect that
potential conflict until D’Apolito shared his research with       anyone sitting in the venire would have heard it.
him. Off the record before trial, D’Apolito and the               Additionally, the court speculated that the comment could
prosecutor, without Lordi present, brought the prior              have been made in jest, and agreed with the prosecution that
representation of Veneroso to the attention of the trial court,   an inquiry would potentially tilt the juror into a pro-defense
which was dismissive of the entire issue. The parties and         mode.
court intended to put the issue on the record when a court
reporter was available, but never did.                              On May 26, 1999, Lordi filed a motion for a new trial on
                                                                  the basis of newly discovered evidence, citing his “discovery”
  During cross-examination of Veneroso at trial, D’Apolito        of a conflict of interest in his trial counsel. After an
brought out Veneroso’s conviction for falsification, but          evidentiary hearing, the motion was denied. The appeal of
otherwise did not go into any details of the offense. The         the motion’s denial and Lordi’s direct appeal were
cross-examination was relatively friendly with D’Apolito          consolidated by the Ohio Court of Appeals, which affirmed
accepting several re-characterizations of his questions by        the denial and Lordi’s conviction in 2000. The Ohio
Veneroso. Ultimately, on February 24, 1999, Lordi was             appellate court ruled as to the conflict issue that “[t]here [was]
convicted on four counts, including theft in office (O.R.C.       nothing in the record to demonstrate that [Lordi’s] counsel
§ 2921.42(A)(2)), unlawful interest in a public contract          had an actual conflict of interest which prevented him from
(O.R.C. § 2921.42(A)(1)), and two misdemeanor counts of           effectively representing” Lordi. Ohio v. Lordi, 748 N.E.2d
having a conflict of interest (O.R.C. § 102.03(E)). All the       566, 573 (Ohio Ct. App. 2000). On May 23, 2001, the Ohio
No. 02-4273                        Lordi v. Ishee, et al.    5    6    Lordi v. Ishee, et al.                      No. 02-4273

Supreme Court denied Lordi leave to appeal. A subsequent                                  ANALYSIS
motion for reconsideration was denied. While pursuing the
appeal to the Ohio Supreme Court, Lordi filed other               Standard of Review.
applications for relief in the Ohio courts, which were
variously denied and for which he was ultimately denied             A district court’s denial of a habeas corpus writ is reviewed
leave to appeal by the Ohio Supreme Court on May 23, 2001.        de novo. Gonzales v. Elo, 233 F.3d 348, 352 (6th Cir. 2000).
                                                                  Because Lordi’s convictions occurred in 1999, the
  On January 4, 2001, Lordi filed a motion to reopen his          Antiterrorism and Effective Death Penalty Act of 1996
appeal with the Court of Appeals, alleging various claims that    (AEDPA) applies. Lindh v. Murphy, 521 U.S. 320, 336
his appellate counsel was ineffective, including the failure of   (1997). Under AEDPA, factual findings made by a state
his appellant counsel to raise the issue of the trial court’s     court are presumed correct unless the petitioner rebuts the
failure to inquire into the juror bias issue. In February 2001,   presumption with clear and convincing evidence. 28 U.S.C.
the motion was denied with the appellate court ruling in          § 2254(e)(1). For Lordi to receive relief, this court must find
regard to the juror misconduct issue that “[t]he only evidence    that the Ohio court decision “was contrary to, or involved an
of such misconduct before the court was an anonymous call.        unreasonable application of, clearly established Federal law,
As the record does not support a claim of juror misconduct        as determined by the Supreme Court,” or was based on “an
other than this anonymous phone call, appellant has not           unreasonable determination of the facts in light of the
demonstrated a reasonable likelihood that had appellate           evidence presented in the State court proceeding.” 28 U.S.C.
counsel raised this assignment of error, it would have been       § 2254(d)(1) & (2). Lordi has not raised issues in regard to
sustained.” Lordi appealed this decision to the Ohio Supreme      the factual determinations of the Ohio courts, but focuses his
Court, which also denied this claim in its consolidated denial    arguments upon whether the Ohio courts made a
of Lordi’s petition on May 23, 2001.                              determination that was contrary to federal law, or was an
                                                                  unreasonable application of that law.
  On July 17, 2001, Lordi filed for a writ of habeas corpus
under 28 U.S.C. § 2254 in federal district court. The district    A. Conflict of Interest. Lordi’s conflict of interest claim
court dismissed the petition and denied a certificate of          relates to a successive (previous unrelated representation of a
appealability (COA). This court later granted a certificate of    co-defendant and/or trial witness) rather than a joint
appealability on two issues: first, whether Lordi received        (simultaneous trial of co-defendants) or a multiple (co-
constitutionally ineffective assistance of counsel due to a       defendants at severed trials) representation. The presumed
conflict of interest by his trial counsel; and second, whether    prejudice standard for ineffectiveness claims based on a
he was denied his Sixth Amendment right to an impartial           conflict of interest detailed in Cuyler v. Sullivan, 446 U.S.
jury.                                                             335 (1980), is inapplicable to cases of successive
                                                                  representations. See McFarland v. Yukins, 356 F.3d 688,
                                                                  701(6th Cir. 2004); Moss v. Kohn, 323 F.3d 445, 460-61 (6th
                                                                  Cir. 2003). Therefore, Lordi’s argument that the Ohio courts
                                                                  acted contrary to federal law by dismissing the ineffectiveness
                                                                  claim due to his failure to demonstrate any prejudice is not
                                                                  correct. Strickland v. Washington, 466 U.S. 668, 692 (1984),
                                                                  is the controlling authority for an ineffectiveness claim based
No. 02-4273                          Lordi v. Ishee, et al.    7    8     Lordi v. Ishee, et al.                       No. 02-4273

on a conflict of interest for a successive representation, which    appropriate matter to be addressed under a COA. See Slack
was the legal standard the Ohio courts identified.                  v. McDaniel, 529 U.S. 473, 484 (2000).
   Not only did the Ohio courts identify the appropriate               For procedural default to occur, the state must show that
standard, but they did not make an unreasonable application         1) Lordi failed to comply with a state procedural rule; 2) the
of the ineffectiveness rule from Strickland. After holding an       state courts actually enforced the state procedural rule; 3) the
evidentiary hearing, the Ohio courts found that “[t]here was        state procedural bar must be an adequate and independent
nothing in the record to suggest that David D’Apolito’s prior       state ground to foreclose federal review; and 4) Lordi must
representation of Veneroso required Lou D’Apolito to                not have cause and actual prejudice to excuse his default.
disregard his duties to [Lordi].” More specifically, this record    Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). Lordi’s
does not show that either Lou or David D’Apolito was in             own habeas petition concedes that his appellate counsel did
possession of any confidential information that may have            not properly raise the juror bias issue on direct appeal. He is
implicated a conflict. Lordi’s case before this court is based      therefore barred from raising it in the Ohio courts because he
upon pure speculation that D’Apolito may have known                 had the previous opportunity to present it during his direct
something by implication from his law partner which may             appeal, and failed to do so, thus waiving the issue under state
have influenced his decision-making at trial, although he can       procedural law, Rust v. Zent, 17 F.3d 155, 160 (6th Cir.
point to no evidence that a conflict existed or that any            1994), which is an adequate and independent state ground.
decision was influenced. The only pertinent facts that Lordi        Id. at 161. Furthermore, since Lordi is required to present this
has presented to the courts are that D’Apolito’s law firm           claim to the Ohio courts first to satisfy the exhaustion
represented a government witness in a prior unrelated matter        requirement, but is now effectively barred from doing so due
and then cross-examined that witness at trial. Without more,        to Ohio’s procedural rule, the second requirement that the
this presents a case of a potential conflict of interest due to a   state courts actually enforced the procedural rule is fulfilled.
successive representation that never ripened into an actual         Coleman v. Thompson, 501 U.S. 722, 735 (1991).
conflict. As such, the Ohio courts were not in error when
they ruled on this constitutional issue.                               Lordi attempts to avoid procedural default by characterizing
                                                                    the Ohio appellate court’s disposition of his post-conviction
B. Juror Bias. Lordi claims that he was deprived of an              ineffectiveness claim on the prejudice prong as being a ruling
impartial jury in violation of the Sixth Amendment due to the       on the merits of the juror bias issue, which would permit this
trial court’s refusal to inquire into a statement by a juror        court to review it. This is not correct. By addressing the
which potentially demonstrated a pre-conceived notion of            prejudice of an ineffectiveness claim a court does not bind
Lordi’s guilt. The district court found this claim to have been     itself into ruling on the claim’s underlying merits. See Lott v.
procedurally defaulted. The COA that was issued is                  Coyle, 261 F.3d 594, 612 (6th Cir. 2001). Therefore, to reach
addressed to the merits of the juror bias claim rather than the     the underlying issue of juror bias, Lordi must first establish an
procedural default issue, which Lordi also raised in the            equivalent constitutional deprivation that excuses his default
district court in the guise of an ineffectiveness of appellate      by the ineffective assistance of his appellate defense counsel.
counsel claim. Although it is a statutory requirement that a        See Edwards v. Carpenter, 529 U.S. 446, 450-51 (2000).
COA reference the specific issue to be addressed on its face,       However, this issue cannot be addressed in a vacuum since
28 U.S.C. § 2253(c)(3), a procedural issue that possibly bars       Ohio’s courts have already rendered a ruling on the merits of
addressing an underlying constitutional claim is an
No. 02-4273                        Lordi v. Ishee, et al.    9    10   Lordi v. Ishee, et al.                     No. 02-4273

the ineffective assistance of counsel claim upon which Lordi      court’s determination of this ineffectiveness of counsel claim
is relying to excuse his procedural default.                      was unreasonable. “Without more” than the possibility of a
                                                                  preconceived notion of guilt, our confidence in the outcome
   Therefore, based on the standard of review from the            has not been undermined.
AEDPA, this claim is procedurally defaulted. The Ohio
appellate court that addressed the issue concluded that since       AFFIRMED.
the only evidence presented to the trial judge was an
anonymous phone allegation, Lordi could not demonstrate a
“reasonable likelihood” that he would have received relief had
his appellate counsel raised the issue. Furthermore, the
allegation related to a statement by a juror that, standing
alone, only indicated the possibility of a pre-conceived notion
of guilt. The Supreme Court has stated that the idea “that the
mere existence of [a] preconceived notion as to the guilt or
innocence of an accused, without more, is sufficient to rebut
the presumption of a prospective juror’s impartiality would be
to establish an impossible standard.” Irvin v. Dowd, 366 U.S.
717, 723 (1961) (internal citations omitted).
   Since the federal constitutional standard for the prejudice
necessary to demonstrate the ineffectiveness of counsel, and
thus to excuse a procedural default, is “that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different,” where “[a] reasonable probability is a probability
sufficient to undermine confidence in the outcome,”
Strickland, 466 U.S. at 694, the Ohio appellate court
identified the correct legal standard. As for the Ohio court’s
decision being an unreasonable application of this legal
standard, the Supreme Court has found it necessary within the
past year to reiterate that when a state court’s application of
governing federal law is challenged in a habeas petition, the
decision must not only be shown to be erroneous, but
objectively unreasonable. See Middleton v. McNeil, 124 S.
Ct. 1830 (2004); Yarborough v. Gentry, 540 U.S. 1 (2003)
(per curiam opinions reversing appellate court panels which
granted habeas corpus writs due to findings that state courts
made unreasonable applications of federal ineffective
assistance of counsel law). We do not find that the Ohio
No. 02-4273                          Lordi v. Ishee, et al.   11    12       Lordi v. Ishee, et al.                             No. 02-4273

                _______________________                             of appellate counsel.1 Noting the scant evidence in the record
                                                                    of juror bias, the state appellate court denied the claim,
                 DISSENTING IN PART                                 holding that Lordi “has not demonstrated a reasonable
                _______________________                             likelihood that had appellate counsel raised this assignment of
                                                                    error [on direct appeal], it would have been sustained.” Ohio
  MOORE, Circuit Judge, dissenting in part. Because I               v. Lordi, Nos. 99CA62; 99CA247, slip op. at 1 (Ohio Ct.
believe that Lordi has demonstrated cause and prejudice to          App. Feb. 23, 2001), appeal dismissed, 747 N.E.2d 251 (Ohio
excuse the procedural default on his juror-bias claim, I            2001).
respectfully dissent from the corresponding portion of the
majority’s opinion.                                                                                     II.
                               I.                                      To excuse the procedural default, Lordi contends that his
                                                                    counsel on direct appeal was constitutionally ineffective for
  After jury selection, defense counsel Lou D’Apolito               failing to raise the juror-bias claim. See, e.g., Seymour v.
received a telephone call from an anonymous woman                   Walker, 224 F.3d 542, 550 (6th Cir. 2000) (“If [petitioner]
claiming to be on the jury venire. The woman said that she          could show that she received ineffective assistance of
and another female venire member, whom she identified,              appellate counsel that rose to the level of a violation of her
overheard a male colleague who was later seated on the jury         Sixth Amendment rights, it would excuse her procedural
(“Juror A”) comment before the trial began that Lordi “was          default.”). The applicable standard, enunciated in Strickland
guilty.” She also expressed concerns that Juror A had lied          v. Washington, 466 U.S. 668, 690, 694 (1984), requires a
during voir dire, and stated that she felt compelled to report      showing that (1) counsel’s performance was so deficient as to
the matter.                                                         be “outside the wide range of professionally competent
                                                                    assistance”; and (2) there is “a reasonable probability that, but
  D’Apolito requested that the trial court conduct an in-           for counsel’s unprofessional errors, the result of the
camera hearing to examine Juror A for bias. The prosecution         proceeding would have been different.” The failure of
opposed the request, arguing that the accusation was not            appellate counsel “to raise an issue on appeal could only be
credible and could potentially taint the jury pool. Denying         ineffective assistance if there is a reasonable probability that
the request without a hearing, the trial court (1) noted that the   inclusion of the issue would have changed the result of the
call was anonymous; (2) suggested that the anonymous venire         appeal.” McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir.
member would not have been within hearing range of Juror A          2004).
when the alleged comment was made; and (3) speculated that
Juror A’s comment may have been in jest. D’Apolito entered             Because of the procedural arguments in this case, we must
his objection to the denial.                                        first decide whether there was a reasonable probability that
                                                                    the claim of juror bias would have prevailed on its merits at
   Appellate counsel failed to raise a juror-bias claim on direct
appeal. Lordi first presented the claim in his delayed motion
for reconsideration before the Ohio Court of Appeals, seeking            1
                                                                          Ohio law requires defendants to raise a claim of ineffective
to excuse his procedural default due to ineffective assistance      assistance of appellate counsel on an application for reconsideration in the
                                                                    court of appeals or on direct appeal to the state suprem e cou rt. See State
                                                                    v. Murnahan, 584 N.E .2d 1 204 , 120 8 (O hio 1992); Ohio App. R. 26(B).
No. 02-4273                          Lordi v. Ishee, et al.   13    14    Lordi v. Ishee, et al.                       No. 02-4273

the time Lordi’s appellate counsel failed to raise it. Id. If so,   Oswald v. Bertrand, 374 F.3d 475 (7th Cir. 2004). Despite
“we can then consider whether the claim’s merit was so              considerable publicity of the murder in the small Wisconsin
compelling that appellate counsel’s failure to raise it             community, evidence that jurors were discussing the case
amounted to ineffective assistance of appellate counsel that        before trial, and suggestions that at least one juror was willing
would excuse [Lordi’s] procedural default.” Id. at 700.             to convict in order to expedite deliberations, the state trial
                                                                    court refused defendant’s request to investigate juror bias and
                               A.                                   simply readmonished the jury. Id. at 479-80. Granting
                                                                    habeas relief, the Seventh Circuit held that a state trial court’s
  “Under clearly established Supreme Court precedent, a             inquiry into juror-bias allegations must be “reasonably
defendant who alleges implied juror bias is entitled to a           calculated to resolve the doubts raised about the juror’s
hearing in which he has ‘the opportunity to prove actual            impartiality” (internal quotation omitted), and should be
bias.’” Mason v. Mitchell, 320 F.3d 604, 636 (6th Cir. 2003)        increasingly more searching as the probability of bias
(quoting Smith v. Phillips, 455 U.S. 209, 215 (1982)). “A           increases. Id. at 480-81. The pretrial atmosphere and
hearing permits counsel to probe the juror’s memory, his            reported jury conduct “created a sufficiently high probability
reasons for acting as he did, and his understanding of the          of jury bias to require on the part of the trial judge a diligent
consequences of his actions.” Phillips, 455 U.S. at 222             inquiry” to ensure the protection of the defendant’s Sixth
(O’Connor, J., concurring).                                         Amendment rights. Id. at 481.
  The Supreme Court has not dictated the type or breadth of            While it is unnecessary for us to define the precise nature
opportunity that state trial courts must provide under Phillips     of the hearing required to be afforded to defendants raising
to defendants raising allegations of juror bias. However, we        juror-bias claims, the anonymous venire member’s allegations
have granted habeas relief where a state trial court                were clearly sufficient to warrant some “diligent inquiry” by
categorically refused a defendant’s request for any post-           the trial court. Oswald, 374 F.3d at 481. First, the
conviction hearing on the claim. See, e.g., Nevers v.               anonymous venire member levied a troubling allegation that
Killinger, 169 F.3d 352, 373-74 (6th Cir.), cert. denied, 527       Juror A lied during voir dire and that Juror A expressed his
U.S. 1004 (1999). In Nevers, the defendant appended several         belief in Lordi’s guilt. Second, she provided the name of a
jurors’ affidavits to his motion for a new trial, stating that      second woman on the venire who could substantiate her
jurors were exposed to extraneous and potentially prejudicial       allegations, triggering a concern among reasonable jurists that
information. We concluded that the trial court’s denial of the      Juror A’s comments may have influenced other members of
defendant’s request for a hearing and factual determination on      the jury pool. Third, the indictment and trial of a Mahoning
the claim “prevented [him] from demonstrating with                  County commissioner would naturally generate local
specificity that the extraneous information the jury possessed      publicity, placing the trial judge on notice about the
did in fact impair the ability of the jury to decide the case       potentiality for such prejudice.
solely on the evidence properly presented to them”—a
violation of the defendant’s right to an impartial jury under          The state trial court’s response was constitutionally
the Sixth and Fourteenth Amendments. Id. at 374.                    inadequate to protect Lordi’s Sixth Amendment rights. No
                                                                    factual support is cited for its conclusions that (1) the
 The Seventh Circuit recently reached a similar conclusion          allegation was not credible due to the source’s anonymity;
when juror bias allegations first arose at the start of trial in    (2) the anonymous venire member could not have overheard
No. 02-4273                                  Lordi v. Ishee, et al.       15   16    Lordi v. Ishee, et al.                        No. 02-4273

Juror A’s comments; and (3) Juror A probably offered his                       constitutional duty to permit further inquiry or a hearing to
comments in jest. These are just speculations of the state trial               develop the evidence. Hence, by omitting any mention of the
court. The state trial court further failed to recognize that the              trial court’s inexplicable failure to conduct a hearing, the state
credibility of the allegation could be quickly ascertained by                  appellate court did not consider the reasonable probability of
questioning the second venire member identified by the caller,                 reversal on direct appeal due to procedural error, and thus
and without necessarily interrogating—and potentially                          conducted an incomplete and unreasonable application of
tainting—Juror A.                                                              Strickland’s prejudice prong. See Smith v. Robbins, 528 U.S.
                                                                               259, 285 (2000); see also McFarland, 356 F.3d at 699;
   In light of the unambiguous command of the Supreme                          Lattimore v. Dubois, 311 F.3d 46, 56 (1st Cir. 2002), cert.
Court in Phillips, I believe it reasonably probable that a                     denied, 538 U.S. 966 (2003).
reviewing court on direct appeal, after recognizing the trial
court’s categorical failure to permit Lordi an opportunity to                                                 B.
demonstrate the presence of actual juror bias, would have
reversed the case and ordered relief. The Ohio Court of                          Not only did the Ohio Court of Appeals unreasonably apply
Appeals’ contrary conclusion rested on an “unreasonable                        Strickland’s prejudice prong, but also that court failed to
application” of Strickland because it incorrectly limited its                  analyze Strickland’s deficient-performance prong.
prejudice inquiry to the merits of Lordi’s juror-bias                          Consequently, our analysis of whether appellate counsel’s
allegation. It found that even if a juror-bias claim had been                  omission of Lordi’s juror-bias claim on direct appeal rises to
offered on direct appeal, there was not “a reasonable                          the level of deficient performance under Strickland is
likelihood that . . . it would have been sustained” because the                conducted de novo. Wiggins v. Smith, 539 U.S. 510, 534
claim was unsupported by evidence in the record. Lordi, slip                   (2003); see also Maples v. Stegall, 340 F.3d 433, 437 (6th
op. at 1.2 Of course, the reason for this lack of support can be               Cir. 2003).
attributed to the state trial judge’s complete abrogation of his
                                                                                 Lordi’s juror-bias claim was so “significant and obvious”
                                                                               that appellate counsel’s failure to raise it constitutes a
                                                                               deficiency under Strickland. Mapes v. Coyle, 171 F.3d 408,
    2
        The full analysis of the Ohio Cou rt of Appe als is as follows:        427 (6th Cir.), cert. denied, 528 U.S. 946 (1999). As noted
                                                                               above, the Supreme Court, without qualification, “has long
         Appellant first alleges that counsel should have raised the           held that the remedy for allegations of juror partiality is a
    issue of the co urt’s failure to cond uct an inquiry into an
    allegation of juror misconduct. The only evidence of such                  hearing in which the defendant has the opportunity to prove
    misconduct before the court was an anonymous call. As the                  actual bias.” Phillips, 455 U.S. at 215. It naturally follows
    record does not support a claim of juror misconduct other than             that the juror-bias issue was clearly stronger than the issues
    this anonymous call, appellant has not demonstrated a                      presented on direct appeal, mainly the forty-four alleged
    reaso nable likelihood that had appellate co unsel raised this             instances of prosecutorial misconduct—many of which were
    assignment of error, it would have been sustained.
                                                                               utterly frivolous or unsupported by the record. Robbins, 528
Lordi, slip op. at 1. While the opinion failed to cite to Strickland or        U.S. at 288 (requiring a habeas petitioner claiming ineffective
conduct a meaningful constitutional analysis, our inquiry still proceeds       assistance of counsel to demonstrate that “a particular
under the deferential lens of 28 U .S.C. § 225 4(d) because the state          nonfrivolous issue was clearly stronger than issues that
app ellate court included some language that vaguely mirrors Strickland’s      counsel did present”). Moreover, D’Apolito’s prompt
prejudice prong.
No. 02-4273                           Lordi v. Ishee, et al.     17

objection to the trial court’s refusal to conduct any inquiry
into juror bias should have alerted appellate counsel of this
claim, the Supreme Court’s decisive language in Phillips
forecloses any discretion of trial courts on whether or not to
conduct an investigation into allegations of juror bias, and the
record is totally devoid of any explanation of why appellate
counsel would strategically fail to include the juror-bias
claim. Mapes, 171 F.3d at 427.
  Under these circumstances, the deficient-performance
prong of Strickland has been satisfied. Given the clear Sixth
Amendment violation, the decision of Lordi’s appellate
counsel to omit this issue on direct appeal was “an
unreasonable one which only an incompetent attorney would
adopt” and is appropriately cited as the cause for Lordi’s
failure to raise the issue on appeal. Id. at 428.
                               III.
  Because the Ohio Court of Appeals unreasonably applied
clearly established Supreme Court precedent when it held in
effect that Lordi could not satisfy the prejudice prong of
Strickland and because Lordi has shown deficient
performance of appellate counsel, Lordi has overcome the
procedural default. Because Phillips mandates that Lordi be
provided with some meaningful opportunity to demonstrate
actual juror bias after his allegations were presented to the
state trial court, I would further hold that the state trial judge’s
failure to conduct any inquiry clearly violated Lordi’s Sixth
Amendment rights. Therefore, I would reverse the district
court’s decision to deny habeas relief, and I would remand
with instructions to grant the writ unless the State of Ohio
opts to retry Lordi within a reasonable period of time. I
respectfully dissent.
