                             RECOMMENDED FOR FULL-TEXT PUBLICATION
                                  Pursuant to Sixth Circuit Rule 206
                                         File Name: 07a0319p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                     X
                             Petitioner-Appellant, -
 DANIEL WILSON,
                                                      -
                                                      -
                                                      -
                                                          No. 03-3362
          v.
                                                      ,
                                                       >
 BETTY MITCHELL, Warden,                              -
                             Respondent-Appellee. -
                                                      -
                                                      -
                                                      -
                                                     N
                      Appeal from the United States District Court
                     for the Northern District of Ohio at Cleveland.
                  No. 99-00007—David D. Dowd, Jr., District Judge.
                                       Argued: June 18, 2007
                               Decided and Filed: August 15, 2007
                      Before: COLE, CLAY, and ROGERS, Circuit Judges.
                                         _________________
                                              COUNSEL
ARGUED: Alan C. Rossman, Cleveland, Ohio, for Appellant. Carol Ann Ellensohn, ATTORNEY
GENERAL’S OFFICE OF OHIO, Columbus, Ohio, for Appellee. ON BRIEF: Alan C. Rossman,
David L. Doughten, Cleveland, Ohio, for Appellant. Carol Ann Ellensohn, Charles L. Wille,
ATTORNEY GENERAL’S OFFICE OF OHIO, Columbus, Ohio, for Appellee.
        COLE, J., delivered the opinion of the court in which, CLAY, J., joined. ROGERS, J.
(p. 21), delivered a separate opinion concurring in the result.
                                         _________________
                                             OPINION
                                         _________________
        R. GUY COLE, JR., Circuit Judge. Petitioner-Appellant Daniel Wilson seeks habeas relief
from his conviction and death sentence for the murder of Carol Lutz. After a night of drinking,
Wilson put Lutz into the trunk of her car and eventually set the car on fire, killing her. The jury
convicted Wilson and found three capital specifications making him eligible for the death penalty:
(1) murder committed to escape detection for kidnapping; (2) murder during kidnapping; and
(3) murder during aggravated arson. The prosecution proceeded to the penalty phase relying on only
the first (evading-kidnapping) specification as an aggravator, and the jury sentenced Wilson to
death. Wilson now raises five claims for habeas relief; the strongest is his claim that the trial court’s

                                                   1
No. 03-3362              Wilson v. Mitchell                                                                Page 2


instruction regarding his intoxication defense improperly shifted to Wilson the burden to disprove
the knowledge element of the evading-kidnapping aggravator. We conclude, for reasons other than
those relied on by the district court, that any error in this regard was harmless. We further conclude
that Wilson’s remaining claims are without merit. Accordingly, we AFFIRM the district court’s
denial of habeas relief.
                                             I. BACKGROUND
A.      Facts
       In Elyria, Ohio, on Saturday, May 4, 1991, around 1:30 p.m., Wilson killed Carol Lutz by
locking her in the trunk of her car, puncturing the gas tank, and setting the car on fire.1 Wilson then
walked away, allowing Lutz to burn to death.
        On the previous afternoon, Wilson was drinking at the Empire Tavern, a bar he frequented.
Between 5:00 and 6:00 p.m., he went to the home of Angie Shelton, a girl he dated, and an argument
ensued. As they argued, Wilson got angry, slammed her against the wall, threw her on the bed, and
went to hit her. Shelton told him that if he hit her, she “would be the last person that he hit.” Wilson
then left, and later returned to the Empire Tavern.
         That evening, Carol Lutz drove her 1986 Oldsmobile Cutlass to the Empire Tavern to meet
Douglas Pritt, an old boyfriend, and Wilson, apparently a new friend. Pritt, Lutz, and Wilson played
pool and drank together. Pritt left the bar sometime between 12:30 a.m. and 1:00 a.m. Lutz and
Wilson left close to 2:30 a.m. According to Wilson’s confession, Lutz offered him a ride home. She
drove with him to the trailer where he lived. Once there, she came in with him and they drank a
couple of beers. Wilson vaguely recalled driving to Lorain, Ohio, to search for a party and stopping
at his father’s house.
        Darlene DeBolt, a service-station cashier in Stow, Ohio, stated that Wilson stopped at the
station around 5:55 a.m. on May 4. He was driving a black Oldsmobile Cutlass and appeared to be
alone. DeBolt did not hear any suspicious noise coming from the Oldsmobile. Wilson told DeBolt,
an old friend, that the car was his, that he had just driven from Canada, and that he “stopped a few
states back for a few beers.” DeBolt smelled alcohol on him. Wilson tried to get DeBolt to go out
with him and was “persistent and pushy.” DeBolt refused to leave work and, after sixty or ninety
minutes, Wilson left.
         When Wilson woke up later that morning, around 7:30 or 8:00 a.m., he was in a parking lot,
sitting in the driver’s seat of Lutz’s Oldsmobile. Lutz, who was locked in the trunk, asked him to
let her out, but he refused. Wilson could not recall how she got there. He drove to various places,
including a park where he took a walk. Wilson stated that he remembered thinking, “How am I
going to get out of this?” Throughout this time, Lutz remained locked in the trunk.
       Still later that morning, Wilson drove to a school and parked the Oldsmobile. After a while
he took off the gas cap, stuffed a rag in the open neck of the gas tank, and lit the rag, but the fire
burned out. Lutz told him “she really had to go to the bathroom.” He “took the rag back out” of the
gas tank and “let her [out to] go to the bathroom.”
       When he “told her to get back” in the trunk, “she stood there—she begged and pleaded with
[Wilson]. She begged—she’d turn around for 30 seconds and let [Wilson] run like hell.” Lutz told
Wilson, “she’d go home and forget about it.” Wilson did not believe her and thought to himself,

        1
          Unless otherwise noted, these facts are from the Ohio Supreme Court’s decision on direct appeal, State v.
Wilson, 659 N.E.2d 292 (Ohio 1996).
No. 03-3362               Wilson v. Mitchell                                                                    Page 3


“How can you forget about being locked in a trunk?” Wilson stated that he did not leave her in the
trunk because he “figured somebody would find her . . . . She’d get out and tell who I was.”
         When Wilson told her to get back in the trunk a second time, she complied. She sat in the
trunk for fifteen to twenty minutes with the lid up. They talked, and Wilson said “she asked me why
don’t I just let her go?” He “even gave her a cigarette.” Then he closed the trunk lid, “poked a hole
in the gas tank,” stuffed a towel or blanket into the gas tank, “let it soak with gas . . . and . . . lit it.”
Then he “walked away from the car” and went to a nearby park.
        While out driving that day, Janette Patton and her mother noticed smoke and saw Lutz’s
Oldsmobile enveloped in fire. After fire personnel extinguished the fire, they forced open the
Oldsmobile’s trunk, revealing Lutz’s body. She died from third-degree burns and carbon monoxide
poisoning. An arson investigator estimated that the flames could have heated the trunk to over 550
degrees, which could cause combustibles there to ignite and catch fire. There were no holes in the
trunk, but there was a puncture in the gas tank. Investigators found a gas cap under the driver’s seat
and a tire iron and cross bar in the back seat. Several samples of materials taken from inside the car
tested positive for kerosene.
        Police detective Ray Riley traced the car to Carol Lutz and learned that she had last been
seen with Wilson at the Empire Tavern. On May 9, police took Wilson into custody. Riley
interviewed Wilson after advising him of his Miranda rights. Wilson waived his rights and agreed
to talk with the police. Riley tape recorded the interview. Wilson confessed to locking Lutz in the
Oldsmobile’s trunk intermittently from 7:30 a.m. on May 4 until the time of her death. And he
admitted that at approximately 1:30 p.m., he killed her by setting the Oldsmobile ablaze.
        The grand jury indicted Wilson on three aggravated-murder counts. Count I charged
aggravated murder by prior calculation and design; Count II charged felony murder, predicated on
kidnapping; and Count III, as amended, charged felony murder, predicated on aggravated arson.
Each murder count had three death   specifications, which if found by the jury would make Wilson
eligible for the death penalty.2 Specification one charged murder to escape “detection,
apprehension, trial, or punishment” for kidnapping; specification two charged murder during
kidnapping; and specification three charged murder during an aggravated arson. Wilson was also
indicted for kidnapping (Count IV) and aggravated arson (Count V).
       Wilson defended himself at trial by claiming intoxication and lack of prior calculation and
design. The jury found Wilson guilty on all counts.
        At the penalty phase, the prosecutor elected to proceed to sentencing on only Count I
(aggravated murder by prior calculation and design) and specification one (evading detection or
punishment for another offense (kidnapping) in violation of Ohio Revised Code (O.R.C.)
§ 2929.04(A)(3)). Accordingly, neither the court nor jury considered the other two murder counts
or the felony-murder death-penalty specifications in assessing the penalty.
        At the outset of the defense’s penalty-phase case, a forensic toxicologist explained the effect
that alcoholism has on a person’s body, mind, and behavior. Wilson’s mother, younger brother,
grandfather, and aunt testified as to Wilson’s childhood.



         2
            The Ohio Supreme Court refers to the death “specifications” when discussing both (1) eligibility factors (the
factors a jury must find to make the defendant eligible for the death sentence); and (2) aggravating factors (the factors
the jury must weigh during the penalty phase to determine whether the defendant should actually receive the death
sentence).
No. 03-3362           Wilson v. Mitchell                                                      Page 4


        The witnesses explained that Wilson’s alcoholic father brutalized his wife and three sons
throughout Wilson’s childhood. Wilson’s father would lock his sons in their bedroom at night and
refuse to let them out, even to go to the bathroom. The father teased and belittled his sons. In
drunken rages, Wilson’s father would call his sons, “liars, cheats, and thieves,” accuse them of
stealing things he could not find, and hit them on their bare backsides with a leather belt. Wilson’s
mother, Linda Wilson, testified that her husband frequently slapped and terrorized her. When
Wilson was twelve, he was arrested for vandalizing a friend’s house. A year or so later, his mother
moved out of the family home. She took Wilson’s younger brother Donald with her, and left Wilson
and his other brother David with their father.
       Wilson’s father did not properly care for his sons, even failing to buy food. Wilson and
David were forced to steal to survive. They regularly broke into neighbors’ homes to steal food or
money. When he was fourteen years old, Wilson broke into an elderly neighbor’s home. When the
neighbor surprised him, Wilson struck the elderly man, causing him to fall and break his hip.
Wilson then ripped the phone cord out of the wall and left. The neighbor was not found for two days
and died as a result of his injuries and the lack of medical attention.
         A juvenile court adjudged Wilson delinquent by reason of involuntary manslaughter and
remanded him to the custody of the Ohio Department of Youth Services. Wilson spent one year in
a state facility for serious offenders, and then was sent to a halfway house. He fared well at both
facilities. Although Wilson was initially reluctant to accept responsibility for his neighbor’s death,
he eventually did.
        Days before turning seventeen years old, Wilson went to live with Shirley Spinney, a foster
parent. Wilson adjusted well to living with Spinney. He graduated from high school, with a B
average, and worked part-time while in school. After high school, Wilson continued to live with
Spinney even after his release from the custody of Youth Services. Wilson attended college for two
semesters while continuing to work. Spinney described Wilson as incredibly compassionate,
sensitive, and considerate. Ultimately, Spinney discovered that Wilson had a serious drinking
problem. At times, he went out and got very drunk, would telephone her, and she would pick him
up and take him home.
       In 1988, Spinney’s other foster child, Mark, was killed in an accident. Wilson was
devastated by Mark’s death and he began to drink more heavily. Wilson’s girlfriend noted that
Mark’s death had a strong impact on Wilson and that he seemed like a different person when he was
drinking. The next year, Wilson left Spinney’s home to live with friends. He next moved in with
his mother and grandfather, sleeping in a camper behind their house. While there, he attempted to
expunge his juvenile record and made plans to join the Navy.
        In an unsworn statement presented at trial, Wilson asserted that his father “could do no
wrong” in Wilson’s eyes. In spite of all the terrible things his father had done, he liked his father
and spent a lot of time with him. Wilson described his juvenile arrest and his incarceration. He also
described Spinney’s positive influence and the progress he made while living with her. Wilson
stated that after Mark died, Wilson gave up on life. He denied that he “intended to hurt” Lutz, and
said, “I still do not know why I reacted the way I did.” He “would like to say to her family [he is]
sorry.” Wilson said he did not want to die, and asked for another chance at life.
        Wilson’s expert witness, psychologist James Eisenberg, examined Wilson and concluded that
Wilson is above average in intelligence and has difficulty becoming emotionally involved with
others. Further, Wilson’s lifestyle was marked by “strong dependency needs, maladjustment, and
chaos.” He suffered from alcohol dependence and a “mixed personality disorder with borderline and
antisocial features.” According to Eisenberg, Wilson was the product of a “classic dysfunctional
family marked by physical, emotional and psychological abuse,” but he still identified with his
No. 03-3362           Wilson v. Mitchell                                                        Page 5


father, not his battered mother. Wilson knew right from wrong, his ability to conform to the law was
not impaired, and he could adjust and function in an institutional setting.
       In rebuttal, Martha Lutz, Carol’s mother, testified about the devastating impact of Carol’s
death on the family. They had been very close and had done many things together, including
shopping together frequently. Martha stated that she has a “broken heart that’s never going to heal”
and misses Carol a lot, since “she was [her] only daughter.”
        The jury recommended the death penalty. The trial court agreed and sentenced Wilson to
death for aggravated murder (based on the evading-kidnapping aggravator) and to imprisonment for
the kidnapping and aggravated arson.
B.      Procedural History
        On October 12, 1994, the state court of appeals on direct appeal affirmed Wilson’s
convictions and death sentence. Wilson v. Mitchell, No. 1:99-cv-0007, slip. op. at 5 (N.D. Ohio
Jan. 14, 2003) (discussing state appeals). On January 24, 1996, the Ohio Supreme Court affirmed.
Id. at 13.
       On January 3, 1997, the trial court rejected Wilson’s petition for postconviction relief. Id.
at 18. On June 24, 1998, the court of appeals affirmed. Id. at 20. On November 4, 1998, the Ohio
Supreme Court dismissed the appeal as not involving any substantial constitutional question. Id. at
22.
       After filing his petition for postconviction relief on September 20, 1996, Wilson filed a
motion to reopen his appeal (Murnahan application) on December 12, 1996. Id. at 22. The court
of appeals denied this application as untimely on January 19, 1997. On October 22, 1997, the Ohio
Supreme Court affirmed.
         On July 2, 1999, Wilson filed a petition for habeas corpus relief in the district court. Id. at
27. On January 14, 2003, the district court denied relief. Id. at 121. The district court also granted
a certificate of appealability as to one of Wilson’s claims (Claim 10: improper burden shifting on
voluntary-intoxication defense). Id. On February 12, 2003, the district court partially granted
Wilson’s motion to alter or amend judgment and issued a certificate of appealability as to four
additional claims. On April 4, 2005, we partially granted Wilson’s motion for a certificate of
appealability, granting the certificate as to a portion of one additional claim. Thus, Wilson was
granted a certificate of appealability as to six issues, and he now raises five of them.
                                         II. DISCUSSION
A.     Standard of Review
         We review de novo a district court’s decision to grant or deny a petition for a writ of habeas
corpus. Joseph v. Coyle, 469 F.3d 441, 449 (6th Cir. 2007) (citing Burton v. Renico, 391 F.3d 764,
770 (6th Cir. 2004)). Because Wilson filed his habeas petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), its provisions apply to his case.
Id. (citing Woodford v. Garceau, 538 U.S. 202, 210 (2003), and Lindh v. Murphy, 521 U.S. 320, 336
(1997)).
       Under AEDPA, a federal court may grant a writ of habeas corpus with respect to a “claim
that was adjudicated on the merits in State court proceedings” if the state court’s decision “was
contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). A habeas petition
may also be granted if the state court’s decision “was based on an unreasonable determination of the
No. 03-3362            Wilson v. Mitchell                                                          Page 6


facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). A
state-court decision is contrary to clearly established federal law “if the state court applies a rule that
contradicts the governing law set forth in [the Supreme Court’s] cases” or “if the state court
confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court
and nevertheless arrives at a result different from [that] precedent.” Williams v. Taylor, 529 U.S.
362, 405, 406 (2000). A state-court decision is an unreasonable application of clearly established
federal law if it “correctly identifies the governing legal rule but applies it unreasonably to the facts
of a particular prisoner’s case,” id. at 407–08, or if it “either unreasonably extends or unreasonably
refuses to extend a legal principle from Supreme Court precedent to a new context,” Seymour v.
Walker, 224 F.3d 542, 549 (6th Cir. 2000).
B.      Procedural Considerations
        A petitioner seeking a writ of habeas corpus must meet certain procedural requirements to
permit federal review of his habeas claims. Smith v. Ohio Dep’t of Rehab. & Corr., 463 F.3d 426,
431 (6th Cir. 2006). The petitioner must first exhaust the remedies available in state court by fairly
presenting his federal claims to the state courts; unexhausted claims will not be reviewed by a
federal court. Id. (citing Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004), and Lott v. Coyle, 261
F.3d 594, 601 (6th Cir. 2001)). The exhaustion “requirement is satisfied when the highest court in
the state in which the petitioner was convicted has been given a full and fair opportunity to rule on
the petitioner’s claims.” Lott, 261 F.3d at 608 (internal quotation marks and citation omitted). A
federal court will not review claims that were not entertained by the state court due to the
petitioner’s failure to (1) raise those claims in the state courts while state remedies were available,
or (2) comply with a state procedural rule that prevented the state courts from reaching the merits
of the claims. Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir. 2006).
        For noncompliance with a state procedure to serve as a bar to habeas review, the state
procedure must satisfy the standards set forth in Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986).
Smith v. Ohio Dep’t, 463 F.3d at 431. First, there must be a state procedure in place that the
petitioner failed to follow. Maupin, 785 F.3d at 138. Second, the state court must have actually
denied consideration of the petitioner’s claim on the ground of the state procedural default. Id.
Third, the state procedural rule must be an “adequate and independent state ground” to preclude
habeas review. Id. This inquiry “generally will involve an examination of the legitimate state
interests behind the procedural rule in light of the federal interest in considering federal claims.”
Id. A state procedural rule must be “‘firmly established and regularly followed’” to constitute an
adequate basis for foreclosing habeas review. Deitz, 391 F.3d at 808 (quoting Ford v. Georgia, 498
U.S. 411, 423–24 (1991)). A state procedural rule is an independent ground when it does not rely
on federal law. Coleman v. Thompson, 501 U.S. 722, 732 (1991). If these three factors are satisfied,
the petitioner can overcome the procedural default by either “demonstrat[ing] cause for the default
and actual prejudice as a result of the alleged violation of federal law, or demonstrat[ing] that failure
to consider the claims will result in a fundamental miscarriage of justice.” Id. at 750.
C.      Wilson’s Claims
       Wilson raises five claims: (1) the erroneous instruction regarding voluntary intoxication was
not harmless error; (2) the prosecution violated Brady v. Maryland by failing to disclose a Youth
Services report to Wilson’s expert, Dr. Eisenberg, until Dr. Eisenberg was on the stand; (3) a juror
was improperly excluded; (4) the trial court improperly instructed the jury regarding Wilson’s
unsworn statement; and (5) Wilson’s appellate counsel was ineffective for failing to raise the Brady
claim on direct appeal. We discuss each of these claims in turn.
No. 03-3362           Wilson v. Mitchell                                                       Page 7


       1.      Impermissible Burden Shifting on Voluntary-Intoxication Defense
        The capital specification used against Wilson in the penalty phase of his trial alleged that he
killed to avoid apprehension or detection and future trial for the offense of kidnapping. The Ohio
Supreme Court concluded that the trial court—in the guilt phase—improperly shifted the burden to
Wilson to prove that he lacked the specific intent, due to intoxication, to commit kidnapping. The
Ohio Supreme Court held, however, that this error was harmless. The Ohio Supreme Court
conducted harmless-error analysis with respect to the kidnapping charge only; it did not conduct any
harmless-error review of the evading-kidnapping death specification, which incorporated the
identical burden-shifting instruction of the kidnapping charge from the guilt phase. The district
court also concluded, for different reasons, that the error was harmless. Wilson challenges these
rulings, and the State admits that Wilson properly preserved this claim for habeas review.
        As mentioned, at the penalty phase of the trial, the State elected to proceed only on Count
I (murder by prior calculation and design) and specification one (evading detection or punishment
for kidnapping). The trial court instructed the jury to refer to the definition of kidnapping in the
instructions regarding the kidnapping count when determining whether this capital specification
existed. (Joint Appendix (“JA”) 1268 (explaining that, as to specification one to count one, “[t]he
offense of kidnapping is defined for you in Count Four [kidnapping] of this charge”).) Those
instructions, in turn, included instructions regarding the voluntary-intoxication defense:
                       For purposes of Count Four [kidnapping], and any count or
               specification where Kidnapping is an element, and only for Count
               Four, or any count or specification where Kidnapping is an element,
               you may consider the defense of voluntary intoxication. Intoxication
               exists when a person consumes a quantity of intoxicating beverage
               containing alcohol sufficient to advers[e]ly affect his mental
               processes and to deprive him of that clearness of intellect that he
               would otherwise have possessed.
                      Intoxication is not an excuse for an offense. However, such
               evidence is admissible for the purpose of showing that the Defendant
               was so intoxicated that he was incapable of having the knowledge to
               commit the offense of Kidnapping. Knowledge is the element of this
               offense; and intoxication, even severe intoxication[,] can co-exist
               with knowledge.
                        On this issue, the burden of proof is upon the Defendant to
               establish by a preponderance or greater weight of the evidence that
               at the time in question he was so influenced by alcohol that he was
               incapable of having the knowledge to commit the offense.
                       If you find by a preponderance or greater weight of the
               evidence that the Defendant was incapable of having the knowledge
               to commit the offense, then you must find that the Defendant was not
               guilty of the offense of Kidnapping because knowledge is an essential
               element of the offense as I have previously instructed you.
(JA 1269–72 (emphasis added).)
       Wilson contends that this instruction was erroneous and that the error was not harmless.
No. 03-3362           Wilson v. Mitchell                                                         Page 8


                a.      Whether the Instruction Was Erroneous
        “[T]he Due Process Clause protects the accused against conviction except upon proof beyond
a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re
Winship, 397 U.S. 358, 364 (1970). Additionally, due process prohibits requiring an accused to
disprove an element of the crime charged. See Mullaney v. Wilbur, 421 U.S. 684, 704 (1975). The
Ohio Supreme Court concluded that the instruction here violated this prohibition by requiring
Wilson to disprove knowledge, an element of the kidnapping offense. State v. Wilson, 659 N.E.2d
at 306 (“This instruction is unconstitutional under Winship because it required Wilson to disprove
‘knowledge,’ which is an element of the offense of kidnapping.”). The Ohio Supreme Court also
explained, however, that Wilson made no claim that any error in this regard affected the death
sentence in his case. Id. Yet the district court concluded that Wilson did claim that this same error
affected the death sentence because it was incorporated in the evading-kidnapping specification.
The district court further held that, though one could argue that the confusing instruction was not
technically improper because the burden shifting occurred in the context of an affirmative defense,
the Ohio Supreme Court properly determined that the instruction was unconstitutional (as to the
kidnapping charge). Wilson, slip op. at 95 n.69. The district court accordingly concluded that the
instruction was unconstitutional as to the evading-kidnapping specification.
        We are not certain that an error regarding the knowledge element of a kidnapping offense
necessarily translates into an error regarding the knowledge element of an evading-kidnapping
specification. In other words, one might say it is conceivable that a person could lack the requisite
knowledge to commit kidnapping, yet have the requisite knowledge to commit murder to evade
detection for kidnapping—for example, where the person believes he has committed kidnapping (but
actually has not, perhaps because of earlier intoxication), and then commits murder to evade
detection for the kidnapping he (erroneously) believes took place. But we do not decide this
question. Instead, we assume that the instruction was erroneous with regard to the evading-
kidnapping specification and address whether it was harmless.
                b.      The Error Was Harmless
       In assessing whether this error was harmless, we first provide a brief overview of the Ohio
Supreme Court’s and district court’s different analyses, then provide a discussion of the applicable
law regarding harmless-error review in this context, and, finally, apply that law to Wilson’s case.
                        i.      Ohio Supreme Court’s and District Court’s
                                Harmless-Error Rulings
        The Ohio Supreme Court concluded that the burden-shifting error was harmless in the
context of the kidnapping charge: “[W]e find the error to be harmless under the facts of this case
since the kidnapping of Lutz continued into the late morning and early afternoon. At that point, he
clearly knew what he was doing and intoxication would not reasonably be available as a defense to
negate ‘knowledge.’” State v. Wilson, 659 N.E.2d at 306. As mentioned, the Ohio Supreme Court
did not undertake harmless-error analysis with regard to the evading-kidnapping death specification;
the court concluded that Wilson made no argument to that specific point.
         The district court disagreed with the Ohio Supreme Court’s reasoning. The district court
concluded that Wilson met the standard under Brecht v. Abrahamson, 507 U.S. 619 (1993), to show
that this error affected the outcome of the trial: “Clearly, this trial error[,] which permitted the jury
to find Wilson guilty of kidnapping and the single aggravating circumstance to Count One even if
the State had not sustained its burden with respect to the knowledge element, had ‘a substantial and
injurious effect or influence in determining the jury’s verdict.’” Id. (quoting Brecht, 507 U.S. 637).
The district court explained further: “Had the jury been more clearly instructed as regards the
burden of proof, it is possible that it might have concluded, in the face of all of the testimony and
No. 03-3362           Wilson v. Mitchell                                                         Page 9


Wilson’s assertion of intoxication, that the State could not prove beyond a reasonable doubt that
Wilson had the requisite knowledge for either the kidnapping charge of the indictment or the
kidnapping specification to the aggravated murder charge.” Id. at 96–97. Therefore, had “the
kidnapping specification been the only specification for which Wilson had been found guilty,” the
district court stated that it “would probably be inclined to grant the writ on this claim because,
finding a constitutional error, [the district court] would be left with the ‘grave doubt’” described in
O’Neal v. McAninch, 513 U.S. 432, 435 (1995), about whether that error is harmless. Id. at 98.
       The district court ultimately denied relief, however, because it concluded that there was an
independent reason to deem the error harmless. The court explained that Wilson was found guilty
of two capital specifications (which, as mentioned, establish eligibility for the death penalty) in
addition to the evading-kidnapping specification: (1) committing the offense during kidnapping, and
(2) committing the offense during an aggravated arson.
         The district court further noted that, during the penalty phase of a trial, “where two or more
aggravating circumstances arise from the same act or indivisible course of conduct and are thus
duplicative, the duplicative aggravating circumstances will be merged for purposes of sentencing.”
Id. at 99 (quoting State v. Jenkins, 15 Ohio St. 3d 164 (1984) (¶ 5 of syllabus)). The state trial court
noted that, based on this law, the State viewed these two additional specifications as merging with
the first specification (murder to evade kidnapping), and the State therefore chose to proceed on only
the first specification. Id. at 99–100. The district court concluded that “[h]ad the State proceeded
instead on the third specification relating to aggravated arson, for which there is no challenge as to
the jury instructions and no challenge as to the sufficiency of evidence, undoubtedly the jury would
have recommended the death penalty.” Id. at 100. “Therefore,” the district court continued, “the
result would have been no different, that is, there is no ‘actual prejudice.’” Id. Concluding that the
error regarding the burden-shifting with respect to the first specification was harmless in this way,
the district court denied habeas relief on this claim. Id.
                        ii.     Applicable Law Regarding Harmless-Error
                                Review of Capital-Sentencing Error
        To assess properly the Ohio Supreme Court and district court’s analyses here, we must
consider the proper standard for applying harmless-error review, the doctrine’s emphasis on the
error’s actual (not hypothetical) impact, and the doctrine’s application where the error occurs in the
unique context of capital sentencing. This subsection addresses those points.
                                (a)     Overview of Harmless-Error
                                        Standard
        Before the enactment of AEDPA, the Supreme Court articulated two harmless-error
standards. Eddleman v. McKee, 471 F.3d 576, 582 (6th Cir. 2006). On direct review, “before a
federal constitutional error can be held harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24 (1967). On
collateral review, however, the State’s burden is lessened: In those proceedings, courts should deem
an error harmless unless the error “had substantial and injurious effect or influence in determining
the jury’s verdict.” Brecht, 507 U.S. at 637.
         “When Congress enacted AEDPA, it complicated this dichotomy” because AEDPA provides
that habeas relief shall not be granted unless the state-court decision was either (1) “contrary to,”
or involved an “unreasonable application of,” clearly established federal law as determined by the
Supreme Court; or (2) based on an “unreasonable determination of the facts.” Eddleman, 471 F.3d
at 582 (citing 28 U.S.C. § 2254(d)). We nonetheless continued to apply only the Brecht
“substantial-and-injurious-effect” standard after AEDPA’s enactment because we concluded that
if a petitioner meets that standard, “he will surely have demonstrated that the state court’s finding
No. 03-3362           Wilson v. Mitchell                                                    Page 10


that the error was harmless beyond a reasonable doubt—the Chapman standard—resulted from . . .
an unreasonable application of Chapman.” Id. (quoting Nevers v. Killinger, 169 F.3d 352, 335 (6th
Cir. 2001)). In light of the Supreme Court’s decision in Mitchell v. Esparza, 540 U.S. 12 (2003),
however, we reconsidered this position in Eddleman and held that “AEDPA replaced the Brecht
standard with the standard of Chapman plus AEDPA deference when, as here, a state court made
a harmless-error determination.” Eddleman, 471 F.3d at 583. In other words, when assessing a state
court’s harmless-error review, we asked whether that review was “contrary to,” or an “unreasonable
application of,” Chapman. See id. at 585 (“We now must determine whether the [state-court]
decision that admitting Eddleman’s confession was harmless error was contrary to, or an
unreasonable application of, Chapman.”).
         While Wilson’s appeal was pending, the United States Supreme Court rejected this approach.
In Fry v. Pliler, No. 06-5247, __ U.S. __, 127 S. Ct. 2321 (2007), the Court unanimously concluded
that regardless whether a state court applied Chapman’s harmless-error standard on direct review
(i.e., that the state must prove that the error was harmless beyond a reasonable doubt), a federal
habeas court applies the stricter (more state-deferential) Brecht standard (i.e., harmless unless the
error had substantial and injurious effect on the outcome). In so holding, the Court explained that
AEDPA did not replace the Brecht standard. Id. at 2326–27. The petitioner in Fry argued (just as
the Eddleman court concluded) that, because of AEDPA, a federal habeas court conducting
harmless-error review had to ask whether the state court “unreasonably applied” Chapman to
determine whether habeas relief was warranted. Id. The Supreme Court explained, however, that
“it is implausible that, without saying so, AEDPA replaced the Brecht standard of ‘actual prejudice,’
with the more liberal AEDPA/Chapman standard which requires only that the state court’s harmless-
beyond-a-reasonable-doubt determination be unreasonable.” Id. at 2327 (citations and internal
quotation marks omitted). “That said,” the Court continued, “it certainly makes no sense to require
formal application of both tests (AEDPA/Chapman and Brecht) when the latter obviously subsumes
the former.” Id. In other words, a federal habeas court technically applies Brecht in light of
AEDPA, but because the Brecht test is stricter (i.e., tougher on the petitioner) than
AEDPA/Chapman, any petitioner that meets the Brecht standard will necessarily meet the
AEDPA/Chapman standard. Thus, when conducting harmless-error review, we simply apply the
Brecht standard and ask whether Wilson has shown that the error had substantial and injurious effect
in determining the jury’s verdict.
                               (b)    Harmless-Error Review Looks
                                      to Actual, Not Hypothetical,
                                      Impact
       Characterizing an error as harmless might have either of two meanings. On the one hand,
an error might be deemed harmless if it played such an inconsequential role in the actual trial in
which it occurred that it assuredly had no impact on the trial’s verdict. 2 R. Hertz & J. Liebman,
Federal Habeas Corpus Practice & Procedure § 31.4d (5th ed. 2005). On the other hand, an error
might be deemed harmless—even if it played an important role in the actual trial—if a hypothetical
new trial absent the error would likely produce the same outcome as did the actual trial. Id.
      The Supreme Court has indicated that of these two meanings the proper one is the first (i.e.,
whether the error had an actual impact on the outcome), and not the second (i.e., whether a
hypothetical new trial would likely produce the same result):
                       Consistent with the jury-trial guarantee, the question . . . the
               reviewing court [is] to consider is not what effect the constitutional
               error might generally be expected to have upon a reasonable jury, but
               rather what effect it had upon the guilty verdict in the case at hand.
               Harmless-error review looks, we have said, to the basis on which “the
No. 03-3362           Wilson v. Mitchell                                                        Page 11


                jury actually rested its verdict.” The inquiry, in other words, is not
                whether, in a trial that occurred without the error, a guilty verdict
                would surely have been rendered, but whether the guilty verdict
                actually rendered in this trial was surely unattributable to the error.
                That must be so, because to hypothesize a guilty verdict that was
                never in fact rendered—no matter how inescapable the findings to
                support that verdict might be—would violate the jury-trial guarantee.
Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (citations omitted) (quoting Yates v. Evatt, 500 U.S.
391, 404 (1991)). Likewise, as the Brecht Court explained, “[t]he standard for determining whether
habeas relief must be granted is whether . . . the . . . error ‘had substantial and injurious effect or
influence in determining the jury’s verdict.’” Brecht, 507 U.S. at 623 (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946) (emphasis added)).
                                (c)     Harmless Error in Capital
                                        Sentencing
        Crucial to this appeal is how the harmless-error principles discussed above apply in the
capital-sentencing context when, as here, the jury considers an invalid aggravating factor when
imposing a death sentence. One question is whether federal habeas courts can even conduct
harmless-error review in that situation. The Supreme Court’s recent opinion in Brown v. Sanders,
546 U.S. 212 (2006), casts some doubt on our current view that federal courts can do so. To fully
assess these issues, one must first consider the development of the law in this area, including the
Supreme Court’s past reliance on the distinction between so-called “weighing States” and “non-
weighing States.”
         Since Furman v. Georgia, 408 U.S. 238 (1972) (per curiam), the Supreme Court has required
States to limit the class of murderers to which the death penalty may be applied. Sanders, 545 U.S.
at 216. This narrowing requirement is usually met when the trier of fact finds at least one statutorily
defined eligibility factor at either the guilt or penalty phase. Id. (citation omitted). Once the
narrowing requirement has been satisfied, the sentencer is called upon to determine whether a
defendant found eligible for the death penalty should receive it. Id. Most States channel this
function by specifying the aggravating factors (sometimes identical to the eligibility factors) that are
to be weighed against mitigating considerations. Id. The question facing courts in cases like the
present one is what happens when the sentencer imposes the death penalty after at least one valid
eligibility factor has been found, but under a scheme in which an eligibility factor or a specified
aggravating factor is later held to be invalid. Id.
        To answer that question, the Supreme Court has distinguished between so-called weighing
and non-weighing States. Id. This terminology is somewhat misleading because the Court has held
that in all capital cases the sentencer must be allowed to weigh the facts and circumstances that
arguably justify a death sentence against the defendant’s evidence. Id. at 217–18 (citing Eddings
v. Oklahoma, 455 U.S. 104, 110 (1982)).
        The Court identified as weighing States those in which the only aggravating factors permitted
to be considered by the sentencer were the specified eligibility factors. Id. (citations omitted). Ohio
is such a weighing state. See, e.g., Lundgren, 440 F.3d at 770. Because the eligibility factors by
definition identify distinct and particular aggravating features, if one of them is invalid then the jury
cannot consider the facts and circumstances relevant to that factor as aggravating in some other
capacity. Sanders, 546 U.S. at 218. In a weighing State, therefore, the sentencer’s consideration
of an invalid eligibility factor necessarily skews its balancing of aggravators with mitigators. Id.
(citation omitted).
No. 03-3362           Wilson v. Mitchell                                                        Page 12


         By contrast, a non-weighing State permits the sentencer to consider aggravating factors
different from, or in addition to, the eligibility factors. Id. (It would be clearer to call these States
“complete weighing States,” because the jury can weigh everything that is properly admissible. See
id. at 229–30 (Stevens, J., dissenting). Because the sentencer can consider aggravating factors that
are different from the eligibility factors, an invalid eligibility factor does not automatically skew the
sentence as it does in a weighing state. Id. at 217.
        The question here is a reviewing court’s role when an invalid eligibility factor (i.e., evading
kidnapping), in a weighing State like Ohio, skews the jury’s balance of mitigating circumstances
against that aggravating factor. Supreme Court decisions provide some reason to believe that a
federal habeas court is simply not permitted to conduct harmless-error review—only a state court
can do so.
        In Stringer v. Black, for example, the Supreme Court explained that an invalid aggravating
factor “in the weighing process invalidates the sentence and at the very least requires constitutional
harmless-error analysis or reweighing in the state judicial system.” 503 U.S. 222, 237 (1992)
(emphasis added). Additionally, in Richmond v. Lewis, the Court stated, “Where the death sentence
has been infected by a vague or otherwise constitutionally invalid aggravating factor, the state
appellate court or some other state sentencer must actually perform a new sentencing calculus.” 506
U.S. 40, 49 (1992) (emphasis added).
         We relied on these decisions when deciding cases involving invalid aggravating factors in
weighing States, requiring States to conduct the new sentencing calculus. For example, in Houston
v. Dutton, 50 F.3d 381 (6th Cir. 1995), a Tennessee (weighing State) jury sentenced the defendant
after finding that the State established the “heinous, atrocious, or cruel” aggravator. Id. at 387. The
State admitted on appeal that the aggravator was invalid because of an overly vague instruction. Id.
Relying on Richmond’s language quoted above, we explained that habeas relief was properly
granted because the Tennessee courts did not conclude that the instruction was erroneous and
therefore had not performed “a new sentencing calculus.” Id. (emphasis added); accord Cone v.
Bell, __ F.3d __, 2007 U.S. App. LEXIS 14362, at *14–15 (6th Cir. June 19, 2007) (“Cone is not
entitled to a new sentence unless the Tennessee Supreme Court did not (1) conduct a proper
harmless error analysis; or (2) reweigh the mitigating and aggravating factors in examining his
sentence.” (citing Stringer, 503 U.S. at 230)).
        In Coe v. Bell, 161 F.3d 320 (6th Cir. 1998), however, we held that, although we “may not
perform reweighing” when a jury considers an invalid aggravator in a weighing state, we may
“engage in harmless-error analysis.” Id. at 334. “In reweighing,” we explained, “a state court
effectively vacates the original sentence and resentences the defendant; this process is hardly
appropriate in the course of collateral review by a federal court.” Id. “In harmless-error analysis,
by contrast, a court determines that the original sentence is not constitutionally infirm in the first
place, a process that is quite appropriately performed on federal collateral review.” Id.
         The Coe decision explained that in Houston we did not address the harmless-error question;
rather, we held only that reweighing must be performed by a state court. Id. at 335. Further, the Coe
decision explained that conducting harmless-error analysis as a federal habeas court was consistent
with the Supreme Court’s statement in Richmond that state reweighing is required when “the death
sentence has been infected by a constitutionally . . . invalid aggravating factor” because, “by
definition, . . . an error that is harmless does not ‘infect’ the sentence and does not require
reweighing by the state.” Id. Finally, Coe reconciled Stringer’s language requiring “constitutional
harmless-error analysis or reweighing in the state judicial system” by concluding that “the phrase
‘state judicial system’ modifies ‘reweighing’ only, and not ‘harmless-error analysis.’” Id. (emphasis
added). Coe then concluded that the instructional error there—an overly vague instruction regarding
No. 03-3362           Wilson v. Mitchell                                                       Page 13


the “heinous, atrocious, or cruel” aggravator—was harmless (under the Brecht standard) because
the jury ignored the problematic aspect of the instruction. Id. at 336.
        Coe’s holding—that a federal habeas court can conduct harmless-error review where a jury
considers an invalid aggravator in a weighing State—continued as the law in this Circuit. See, e.g.,
Cone v. Bell, 359 F.3d 785, 798 (6th Cir. 2004) (conducting such a harmless-error analysis after
noting that Coe “drew a distinction between re-weighing and harmless error analysis and held that
a federal habeas court is permitted to undertake the latter”), rev’d on other grounds by Bell v. Cone,
543 U.S. 447, 459–60 (2005) (holding that we erred in concluding that state court failed to cure
faulty “heinous, atrocious, or cruel” aggravator instruction); see also Jennings v. McDonough, No.
05-16363, __ F.3d__, 2007 U.S. App. LEXIS 15828, at *63 (7th Cir. July 3, 2007) (noting that the
Seventh Circuit had “yet to endorse federal harmless error review of death sentences based on
invalid sentencing factors when the state appellate court has not performed its own harmless error
analysis” and joining the “five circuit courts of appeals [that] have authorized such an approach”)
(citing Coe, 161 F.3d 320).
         Our holding in Coe is more questionable in light of the Supreme Court’s 2006 decision in
Sanders. To be sure, the Sanders Court was faced with harmless-error in the context of a non-
weighing State. The Court explained that the “weighing/non-weighing scheme is accurate as far as
it goes, but it now seems . . . needlessly complex . . . .” Sanders, 546 U.S at 219. “We think it will
clarify the analysis,” the Court continued, “and simplify the sentence-invalidating factors we have
hitherto applied to non-weighing States, if we are henceforth guided by the following rule: An
invalidated sentencing factor (whether an eligibility factor or not) will render the sentence
unconstitutional by reason of its adding an improper element to the aggravation scale in the
weighing process unless one of the other sentencing factors enables the sentencer to give
aggravating weight to the same facts and circumstances.” Id. at 220 (citation and footnote omitted)
(first emphasis added). In other words, “[i]f all the evidence was properly admitted and if the jury
can use that evidence when it considers other aggravating factors, any error . . . must be harmless.”
Id. at 239 (Stevens, J., dissenting). This rule apparently modifies the analysis for non-weighing
States, but leaves intact the Court’s prior jurisprudence regarding weighing states. See Hertz &
Liebman, § 31.3 (6th ed. Supp. 2006) (noting that “the pre-Sanders jurisprudence for ‘weighing
states’ . . . apparently remains intact” but that Sanders “reshaped the analysis . . . [it had] hitherto
applied to non-weighing States”) (internal quotation marks and citations omitted); Adams v.
Bradshaw, No. 1:05 CV 1886, 2007 U.S. Dist. LEXIS 30091, at *89 n.6 (N.D. Ohio Apr. 24, 2007)
(noting that Sanders “does not apply” to invalid-aggravator claim under Ohio law because Sanders
“involves a non-weighing state”).
         When discussing weighing States, however, the Supreme Court in Sanders made a statement
that might be taken to undercut Coe’s holding that a federal, not state, court may conduct harmless-
error review where a jury considers an invalid aggravator. The Supreme Court first noted, as we did
in Coe, that “[i]n a weighing State . . . the sentencer’s consideration of an invalid eligibility factor
necessarily skewed its balancing of aggravators with mitigators.” Sanders, 546 U.S. at 217 (citing
Stringer, 503 U.S. at 232). The Supreme Court then stated that, under Stringer, this skewing
“required reversal of the sentence (unless a state appellate court determined the error was harmless
or reweighed the mitigating evidence against the valid aggravating factors).” Id. (citing Stringer,
503 U.S. at 232) (emphasis added). This reading of Stringer implicitly rejects the Coe Court’s
interpretation that Stringer’s language requiring “constitutional harmless-error analysis or
reweighing in the state judicial system” allows a federal habeas court to conduct harmless-error
review and merely limits reweighing to states. See Coe, 161 F.3d at 335 (noting that the phrase
“state judicial system” in Stringer “modifies ‘reweighing’ only, and not ‘harmless-error analysis’”);
cf. Adams, 2007 U.S. Dist. LEXIS at *91 (“Recently the Supreme Court [in Sanders] noted that in
a weighing state, the sentencer’s consideration of an invalid eligibility factor necessarily upsets its
balancing of the aggravating circumstances with the mitigating factors requiring reversal of the
No. 03-3362               Wilson v. Mitchell                                                                   Page 14


sentence unless a state appellate court determined the error was harmless or reweighed the
mitigating evidence against the valid aggravating factors.”) (citation omitted) (emphasis added).
Leading commentators appear to share this view: “[I]n a weighing State, when an eligibility or
aggravating factor is found to have been invalid, the federal courts may not themselves engage in
either a reweighing or in harmless error analysis; the condemned individual has a constitutional
right to have either the state courts or the original sentencer reweigh the valid aggravating and
mitigating factors.” Hertz & Liebman § 31.3 (6th ed. Supp. 2006) (discussing Sanders and citing
cases such as Richmond).
        Although Sanders’s statements imply that only a state court may conduct harmless-error
review in this situation, those statements are dicta, see Jennings, 2007 U.S. App. LEXIS 15828, at
*65 (noting that none of the Supreme Court decisions regarding this issue “squarely addresses the
issue of federal district courts conducting harmless error review in place of state courts”), and do
not demand that we change our current state of the law. Indeed, the Seventh Circuit’s recent
endorsement of our view in Coe (that federal courts may conduct harmless-error review in this
context) considered Sanders. See id. In light of these considerations, we continue to hold that
federal courts may conduct harmless-error review of invalid aggravating factors even where the state
court has not done so. Though a contrary holding would be plausible in light of Sanders’s language,
cf. Eddleman, 471 F.3d at 583 (“Today, we reconsider our position in light of the Supreme Court’s
decision in Mitchell v. Esparza, which strongly implied that courts should apply only the Chapman
plus AEDPA deference standard of review.” (emphasis added)), we believe that should       arise only
from a clear statement from our en banc court or the United States Supreme Court.3
                           iii.      Application to Wilson’s Appeal
        Having concluded that the Ohio Supreme Court did not conduct a harmless-error review of
the (presumed) invalid evading-kidnapping aggravating factor, and having concluded that we may
nonetheless conduct harmless-error review, we determine that any improper-burden shifting in this
regard was harmless.
        The only element of the kidnapping charge and specification at issue is the knowledge
element. The trial court instructed the jury that “[a] person acts knowingly, regardless of his
purpose, when he is aware that his conduct will probably cause a certain result. A person has
knowledge of circumstances when he is aware that such circumstances probably exist.” (JA
1270–71.) The court continued, “Knowingly means that a person is aware of the existence of the
facts and that his acts will probably cause a certain result.” (JA 1271.)
        After these instructions, the trial court provided the voluntary-intoxication instructions
referred to above. To recap, those instructions provided that “[i]ntoxication exists when a person
consumes a quantity of intoxicating beverage containing alcohol sufficient to advers[e]ly affect his


         3
             Judge Rogers’s concurring opinion contends that resolution of this issue is unnecessary because Coe and
Sanders address harmless-error analysis in the context of remaining, valid aggravating factors—something not applicable
to this case, which involves the harmlessness of a single aggravating factor. We are still assessing, however, whether
the error embedded in that single aggravating factor was harmless in the context of a jury’s capital-sentencing decision,
which requires balancing that aggravating factor against mitigating circumstances—and this invalid aggravating factor
skews that balance. See Sanders, 456 U.S. at 217 (“In a weighing State . . . the sentencer’s consideration of an invalid
eligibility factor necessarily skewed its balancing of aggravators with mitigators.”) (emphasis added). We believe cases
such as Coe and Sanders inform whether that skewing is harmless, even where there are no other aggravating factors.
See, e.g., Coe, 161 F.3d at 336 (holding that instructional error regarding a single aggravating factor was harmless—not
because other aggravating factors remained (though they did)—but because the jury ignored the problematic aspect of
the instruction). Moreover, although we agree with the concurrence that the Ohio Supreme Court likely would apply
the same harmless-error analysis from the kidnapping-charge context to the evading-kidnapping aggravator, we are
reluctant to uphold a state court’s harmless-error review of capital sentencing factors that did not actually occur.
No. 03-3362           Wilson v. Mitchell                                                     Page 15


mental processes and to deprive him of that clearness of intellect that he would otherwise have
possessed.” (JA 1271.) The trial court further instructed that “[i]ntoxication is not an excuse for
an offense,” but that “such evidence is admissible for the purpose of showing that the Defendant was
so intoxicated that he was incapable of having the knowledge to commit the offense of Kidnapping.
Knowledge is the element of this offense; and intoxication, even severe intoxication[,] can co-exist
with knowledge.” (JA 1271.) At this point, the trial court provided the (presumed) improper
burden-shifting instruction (placing the burden on Wilson to establish that he was so intoxicated that
he was incapable of having the knowledge to commit the offense). (JA 1272.)
      The district court explained that the record reveals the following testimony with respect to
Wilson’s drinking:
               1.      Bonnie Menges, who managed and bartended at the Empire
                       Tavern, testified that on May 3, 1991, she worked from 3:00
                       p.m. to 7:00 p.m. When she arrived shortly before her shift,
                       Wilson was already there, and when she left he was still
                       there. He was drinking vodka and orange juice. Although
                       Menges did not believe Wilson was intoxicated, he “was
                       putting them down pretty good that day[,]” “faster than he
                       normally does.”
Wilson, slip. op. at 96 n.71.
               2.      Doug Pritt, Lutz’s good friend whose band played at the
                       Empire Tavern, testified that he arrived there around 9:30
                       p.m. on May 3, 1991. According to Pritt, Wilson did not
                       arrive until around 10:30 p.m. Pritt left the bar at 1:00 a.m.
                       on May 4, 1991; Lutz walked out with him to say goodbye
                       and then returned to the bar. Pritt testified that Lutz was
                       drinking beer and he saw her offer to buy Wilson a drink, but
                       he did not know what kind.
Id.
               3.      Gregory McKinney, who worked at the Empire Tavern and
                       had the 7:00 p.m. to 3:00 a.m. shift on May 3–4, 1991,
                       testified that he was not sure when Wilson came into the
                       Tavern, but estimated it was about 9:00 or 10:00 p.m. On
                       cross-examination, McKinney admitted that Wilson could
                       have been there when he arrived for his shift, but was not
                       sure. Wilson was drinking beer and vodka and orange juice
                       and shooting pool with Lutz and her friend, Doug Pritt. After
                       Pritt left at about 12:30 a.m., Lutz remained. Although Lutz
                       and Wilson were still drinking beer and, in addition, “had a
                       few shots of Jack Daniels,” McKinney did not believe they
                       were drunk.
Id.
               4.      Darlene DeBolt, Wilson’s good friend, testified that she saw
                       him a few minutes before 6:00 a.m. on May 4, 1991, as she
                       was opening the Gastown business where she worked. She
                       “asked him if he had been drinking all night because [she]
No. 03-3362            Wilson v. Mitchell                                                        Page 16


                        smelled alcoholic beverages on him.” He said that he had a
                        few beers. He did not appear intoxicated to her.
Id. at 96–97 n.71.
                  5.    Rodney “Lee” Mele, Wilson’s cousin, testified that he first
                        saw Wilson around 9:30 or 10:00 p.m. on May 3, 1991
                        “sitting on his car out in the street.” Around 10:30 p.m., the
                        two of them walked to a local Convenient store where Wilson
                        bought a six-pack of beer.
Id. at 97 n.71.
                  6.    Additionally, there were apparently tapes played for the jury
                        of the interview conducted by Detective Riley in which
                        Wilson stated that he had spent approximately $25 to $30 on
                        alcohol on the afternoon of May 3, 1991, and the same
                        amount in the evening. He further stated that he and Lutz had
                        consumed more beer at his trailer after they left the bar when
                        it closed in the early morning hours of May 4, 1991.
Id.
       During the penalty phase, defense expert Dr. Robert Forney, a forensic toxicologist, testified
on cross-examination that, although an alcoholic drink that a person had at 2:30 a.m. (the
approximate time that Wilson left the bar with Lutz) would be completely gone from his or her
system by 1:30 p.m. (the time the fire department was called to the scene of the car fire), if that
person were an alcoholic, or a heavy chronic drinker, “there is residual damage to the brain and
nervous system which may remain even when the alcohol is gone.” Id. at 97 n.72. Therefore, it was
“not [his] opinion that judgment . . . would be unaffected or that the brain would be unaffected
during periods when alcohol was absent . . . .” Id. Evidence suggested that Wilson was an
alcoholic. Id. (noting, for example, testimony that Wilson “never went a single day without
drinking”).
        Countering this general evidence was specific, and strong, evidence that Wilson had the
requisite knowledge for the evading kidnapping-aggravator, that is, that he committed the murder
to evade detection for kidnapping Lutz. The Ohio Supreme Court referred to portions of Wilson’s
statement to the police in which he stated that he recalled thinking, when Lutz was locked in the
trunk, “How am I going to get out of this?” State v. Wilson, 659 N.E.2d at 292 (syllabus). In this
statement, Wilson also explained that after he let Lutz out to go to the bathroom, she said that “she’d
go home and forget about it,” but that Wilson “didn’t believe her and thought to himself, ‘How can
you forget about being locked in a trunk?’” Id. When asked why he did not simply leave her in the
trunk, Wilson replied that he “figured . . . eventually somebody would find her. She’d get out and
tell who [he] was.” Id. (emphasis added).
           The district court concluded that the error was not harmless. The district court explained that
the Ohio Supreme Court “made no factual findings” and “merely made the conclusory statement
that . . . the error was ‘harmless under the facts of this case [in the context of the kidnapping charge],
since the kidnapping of Lutz continued into the late morning and early afternoon [when Wilson] . . .
clearly knew what he was doing . . . .” Wilson, slip op. at 90 (quoting Wilson, 659 N.E. 2d at 306).
“Had the jury been more clearly instructed as regards the burden of proof,” the district court
explained, “it is possible that it might have concluded, in the face of all of the testimony and
Wilson’s assertion of intoxication, that the State could not prove beyond a reasonable doubt that
No. 03-3362           Wilson v. Mitchell                                                        Page 17


Wilson had the requisite knowledge for either the kidnapping charge of the indictment or the
kidnapping specification to the aggravated murder charge.” Id. at 97.
        Although “it is possible” that the jury might not have found the evading-kidnapping
specification beyond a reasonable doubt, we cannot say, as we must to grant relief under Brecht, that
the burden-shifting error had substantial and injurious effect on the verdict. Crucial to our
conclusion are Wilson’s own statements. Although the Ohio Supreme Court did not reference those
statements in the specific portion of its opinion addressing the burden-shifting error on the
kidnapping charge, the court nonetheless relied on them, explaining, for example, that Wilson did
not simply leave Lutz in the trunk of his car because “[s]he’d get out and tell who [he] was.” State
v. Wilson, 659 N.E.2d at 292 (syllabus); cf. Cone, 2007 U.S. App. LEXIS 14362, at *16 (assessing
harmless-error review and relying on Tennessee Supreme Court’s discussion of penalty-phase
evidence “in a section immediately preceding a discussion of the claims . . . raised on appeal”). We
cannot discern what Wilson’s statements such as this one could mean, if not that Wilson knew his
actions could lead to kidnapping charges and he therefore committed the crime to escape detection.
Moreover, after receiving this erroneous instruction, the jury was properly instructed that the State
must prove, beyond a reasonable doubt, “all of the essential elements of the offense of Kidnapping”
to reach a guilty verdict on that count. (JA 1273.) In sum, the error did not “ha[ve] substantial and
injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 623 (citation and
internal quotation marks omitted). Wilson is therefore not entitled to habeas relief on this claim.
        Before addressing Wilson’s remaining claims, we note briefly a concern with the district
court’s analysis. As mentioned, the district court concluded that, although the Ohio Supreme
Court’s harmless-error analysis regarding the burden shifting was incorrect, the error at issue was
harmless for an independent reason: Had the prosecution gone forward with the arson aggravator
at sentencing, the district court said, the jury surely would have relied on that aggravator to impose
death.
        This analysis appears to posit improperly a hypothetical scenario forbidden by Supreme
Court precedent when determining whether a state court properly deemed an error harmless. As
discussed above, Sullivan explains that “to hypothesize a guilty verdict that was never in fact
rendered—no matter how inescapable the findings to support that verdict might be—would violate
the jury-trial guarantee. Sullivan, 508 U.S. at 279. Similarly, for the district court to hypothesize
a sentencing outcome, based solely on the arson aggravator, that was never in fact rendered—no
matter how inescapable the findings to support that sentence might be—would seem to violate the
jury-trial guarantee. “The question is . . . not [whether the jurors] were . . . right in their judgment,
regardless of the error or its effect upon the verdict [or sentence].” Kotteakos, 328 U.S. at 764. “It
is rather what effect the error had or reasonably may be taken to have had upon the jury’s decision.”
Id. Simply put, “harmless-error review looks . . . to the basis on which ‘the jury actually rested its
verdict,’” Sullivan, 508 U.S. at 279 (citation omitted), and Wilson’s jury did not actually rest his
death sentence on the arson aggravator—they never even considered it.
        This is true even though the arson specification and the evading-kidnapping specification
involve substantially the same course of conduct and therefore merged at sentencing. The jury
indeed concluded—at the eligibility phase—that Wilson committed the killing during an aggravated
arson. But the prosecution chose to proceed at sentencing with the evading-kidnapping
specification, and that is the sole aggravator the jury placed on death’s side of the scale. The jury
never considered how the arson aggravator would tip that same balance. To hypothesize about
that—“no matter how inescapable the findings to support that [death sentence] might be”—appears
to improperly remove the question from the jury. See Sullivan, 508 U.S. at 279.
No. 03-3362           Wilson v. Mitchell                                                       Page 18


       2.      Failure to Disclose Youth Services Report Under Brady v. Maryland
        Wilson next contends that the State failed to disclose Wilson’s records from the Ohio
Department of Youth Services (“DYS”), in violation of Brady v. Maryland, 397 U.S. 742 (1970).
Wilson explains that he requested the DYS records before trial and that the prosecution denied ever
having them. During the mitigation phase of the trial, however, the prosecutor used the records—in
particular, a psychological report by DYS employee Hugh Turner—to impeach Dr. Eisenberg’s
testimony. Wilson argues that the records were material because they were critical for the
preparation of Wilson’s mitigation phase presentation. In particular, Wilson states that the records
were necessary for use by Dr. Eisenberg in his preparation of Wilson’s psychological evaluation and
mental-health assessment, and that, without the records, Dr. Eisenberg’s expert testimony was
unprepared and incompetent.
        This claim, although not raised on direct appeal, is nonetheless preserved because the
procedural rule upon which the state court relied was not firmly established and regularly followed.
Wilson correctly notes that the Ohio Supreme Court repeatedly ignored the ninety-day time limit
under Ohio Rule of Appellate Procedure 26(B) required for filing a Murnahan application, in which
he raised this claim. In Franklin v. Anderson, 434 F.3d 412 (6th Cir. 2006), we concluded that Rule
26(B) did not satisfy the Maupin test because (1) the rule was not “firmly established and regularly
followed” and therefore it was not an “adequate and independent state ground for foreclosing
review” (the third prong of the Maupin test), and (2) the rule was not consistently enforced by the
Ohio Supreme Court (the second prong of the Maupin test). Id. at 420 (internal quotation marks
omitted). Accordingly, Wilson’s claim is not procedurally defaulted.
        In Brady, the Supreme Court held that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at
87. The duty to disclose Brady evidence encompasses impeachment evidence as well as exculpatory
evidence. United States v. Bagley, 473 U.S. 667, 676 (1985); Norris v. Schotten, 146 F.3d 314, 334
(6th Cir. 1998). We explained in United States v. Bencs that “[m]ateriality pertains to the issue of
guilt or innocence, and not to the defendant’s ability to prepare for trial.” 28 F.3d at 560 (6th Cir.
1994) (citing United States v. Agurs, 427 U.S. 97, 112 n.20 (1976)). In particular, “[e]vidence is
material ‘only if there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.’” United States v. Phillip, 948 F.2d
241, 249 (6th Cir. 1991) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987)). Further, “Brady
generally does not apply to delayed disclosure of exculpatory information, but only to complete
failure to disclose.” Id. Lastly, “[d]elay . . . violates Brady [only] when the delay itself causes
prejudice.” United States v. Patrick, 965 F.2d 1390, 1400 (6th Cir. 1992).
         During cross-examination, Dr. Eisenberg testified first that he had an opportunity to review
the Turner report, and second that “the report is consistent with what [he] ha[d] been saying . . . .”
(JA 1347.) The report was only two pages long, and Dr. Eisenberg did not indicate that he needed
more time, apart from the time he was given by the court, to review it. Further, Dr. Eisenberg stated
that he generally agreed with the conclusions in the report. (JA 1347 (“I think the report is
consistent with what I have been saying.”); JA 1348 (stating that he agreed with the report’s
conclusion that Wilson had a “narcissistic frame of reference”); JA 1350–51 (agreeing with the
report’s observation about Wilson’s lack of trust and agreeing with the report’s conclusion that
Wilson’s interpersonal conflicts could lead to hostile, aggressive behavior).) Lastly, Dr. Eisenberg
testified, in an attempt to discredit the report, that Turner was not licensed as a psychologist at that
time.
        Given that Dr. Eisenberg’s testimony indicated that he agreed with much of the Turner
report, Wilson has not established how Dr. Eisenberg’s testimony would have been any different if
No. 03-3362           Wilson v. Mitchell                                                      Page 19


the report had been disclosed earlier, or how earlier disclosure of the report would have altered the
outcome of the penalty phase. Thus, although Wilson may be able to establish that the records were
suppressed by the State despite Wilson’s repeated requests to obtain the records, Wilson has not
demonstrated that even if the State had timely disclosed the records that there is a reasonable
probability that the outcome of the proceeding would have been different. Accordingly, we
conclude that Wilson’s Brady claim lacks merit and therefore does not warrant habeas relief.
       3.      Improper Juror Dismissal
       Wilson next argues that the trial judge improperly dismissed a potential juror for cause
because her statements regarding her inability to impose a death sentence were equivocal. The State
concedes that Wilson has preserved this argument. He contends that O.R.C. § 2945.25(C)
incorporates the standard set forth in Witherspoon v. Illinois, 391 U.S. 510 (1968), for the dismissal
of a juror unable to impose a death sentence. Wilson claims that by applying the standard
announced in Wainwright v. Witt, 469 U.S. 412 (1985), the Ohio Supreme Court erred in two ways:
(1) applying the more lenient Witt standard violated Wilson’s liberty interest in the stricter
Witherspoon standard, and (2) by applying the Witt standard the Ohio Supreme Court violated the
Separation of Powers doctrine by overruling the Ohio legislature.
        In Witt, the Supreme Court explained that a prospective juror may be excluded for cause
because of his or her views on capital punishment when “the juror’s views would prevent or
substantially impair the performance of his duties as a juror in accordance with his instructions and
his oath.” 469 U.S. at 424 (internal quotation marks omitted). The Court elaborated that “this
standard . . . does not require that a juror’s bias be proved with unmistakable clarity.” Id. (internal
quotation marks omitted). Further, the Court noted that “deference must be paid to the trial judge
who sees and hears the juror.” Id. at 426. The Court in Witt made clear, however, that it was merely
clarifying its previous Witherspoon decision. Id. at 424. (“We therefore take this opportunity to
clarify our decision in Witherspoon . . . .”).
       Moreover, we have explained that a petitioner must show that the selected jury was biased
to succeed on this claim:
                       When reviewing a trial court’s dismissal of potential jurors
               for cause, this court must determine whether the trial court’s decision
               prevented the empaneling of an impartial jury. It is not enough for
               the defendant to show that the decision to exclude the two jurors was
               improper. He also must show that the jury selected was biased.
Hill v. Brigano, 199 F.3d 833, 844 (6th Cir. 1999).
        Wilson has made no claim that the jury empaneled was biased. Without a showing that his
jury was biased, merely arguing that the trial court erred in dismissing a prospective juror for cause
is insufficient to warrant habeas relief. Hill, 199 F.3d at 844–45. This claim is without merit.
       4.      Erroneous Instruction Regarding Wilson’s Unsworn Statement
        Wilson next contends that the trial court improperly instructed the jury during the penalty
phase that his unsworn statement was not evidence, and that this limited the jury’s consideration of
relevant mitigating evidence. Wilson’s unsworn statement included evidence of his youth, his
alcoholism, and his remorse for the offense. The trial court instructed the jury as follows regarding
the statement:
                        In this phase, the Defendant made a statement, but he did not
               testify under oath and was not subject to cross-examination. It is his
No. 03-3362            Wilson v. Mitchell                                                          Page 20


                 right under Ohio law to make such a statement and this statement of
                 the Defendant, although not considered evidence, may be considered
                 by you for whatever purpose you would assign.
(JA 1412–13 (emphasis added).)
        Assuming that this argument is properly preserved, it is without merit. “Under the Eighth
Amendment, the jury in a capital case may ‘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.’” Mason v. Mitchell, 320 F.3d
604, 618 (6th Cir. 2003) (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)). “[A] jury instruction
violates Lockett when there is a reasonable likelihood that the jury has applied the challenged
instruction in a way that prevents the consideration of constitutionally relevant evidence.” Gall v.
Parker, 231 F.3d 265, 324 (6th Cir. 2000) (citing Boyde v. California, 494 U.S. 370, 380 (1990)).
Wilson is entitled to habeas relief on this claim if the instruction “by itself so infected the entire trial
that the resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 72 (1991)
(citation omitted).
        Although the trial court instructed that Wilson’s statement was not evidence, the court also
instructed that the jury may consider it for whatever purpose it would assign. In short, there is no
reasonable likelihood that the instructions prevented the jury’s consideration of the statement.
Additionally, even assuming that the instructions were problematic, the jury considered similar
mitigating evidence from other witnesses at sentencing, so the instructions regarding his statement
could not have so infected the entire trial as to violate due process. This claim is therefore without
merit.
          5.     Ineffective Assistance of Appellate Counsel for Failure to Raise Brady Claim
        Wilson contends that appellate counsel were ineffective on direct appeal for failure to raise
the Brady claim discussed above. Because the Brady claim is without merit, Wilson cannot
demonstrate that appellate counsel’s failure to raise this non-meritorious claim constituted
ineffective assistance under Strickland v. Washington, 466 U.S. 668, 687–88 (1984)).
                                         III. CONCLUSION
          For the foregoing reasons, we AFFIRM the denial of Wilson’s petition for a writ of habeas
corpus.
No. 03-3362           Wilson v. Mitchell                                                     Page 21


                                       _________________
                                        CONCURRENCE
                                       _________________
        ROGERS, Circuit Judge, concurring. I concur in the result and in all of the majority opinion
except Part II.C.1.b.ii.(c). In my view there are two reasons why it is not necessary to resolve the
issue of whether the holding of Coe v. Bell, 161 F.3d 320 (6th Cir. 1998), is still good law in light
of Brown v. Sanders, 546 U.S. 212 (2006).
        First, the issue in Coe and the Sanders dictum appears to involve what to do when an
aggravating factor is found to be invalid. See Coe, 161 F.3d at 334 (determining whether “if
multiple aggravators are found but an appellate court strikes one of them down, the death sentence
can still stand”), Sanders, 546 U.S. at 220 (determining whether an invalid sentencing factor will
render a death sentence unconstitutional when other sentencing factors exist). In this case, in
contrast, the question is whether the sole aggravating factor is invalid in the first place. Our case
simply does not involve reweighing of remaining aggravators (or harmless error based on remaining
aggravators). Instead, our determination is that instructional error did not preclude consideration of
the one aggravating factor. In other words, we are determining that the one aggravating factor was
valid, once instructional error is deemed harmless.
        Second, even assuming that this case requires us to resolve whether Coe survives Sanders,
the state court did decide the harmless-error issue to the extent that it was relevant. Since we
properly make the (questionable) assumption that the kidnapping instruction affected the capital
specification (Part I.A. of the majority opinion), then whatever harmless-error analysis the state
court applied to the kidnapping instruction would apply to the capital specification as well. That is,
the issue of Wilson’s capacity to intend to kidnap is the same in both the kidnapping context (which
the Ohio Supreme Court decided) and the evading-kidnapping context (which is before us only by
virtue of the assumption that the evading-kidnapping aggravator requires a finding of kidnapping
). The faulty jury instruction affected either both or neither, and the Ohio Supreme Court already
determined that the faulty jury instruction was harmless in the kidnapping context. Thus, this is not
really a case in which the federal court is independently doing the harmless error analysis.
        In short, this is neither a case where the federal court is evaluating the harmlessness of a
factor previously determined to be invalid, nor is it a case in which the state court did not make the
relevant harmlessness determination. Accordingly, I concur in all but Part II.C.1.b.ii.(c) of the
majority opinion.
