                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit Rule 206
                                 File Name: 09a0093p.06

              UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                              X
                                               -
 SIDNEY CORNWELL,
                                               -
                          Petitioner-Appellant,
                                               -
                                               -
                                                    No. 06-4322
         v.
                                               ,
                                                >
                                               -
                     Respondent-Appellee. -
 MARGARET BRADSHAW, Warden,
                                               -
                                              N
                Appeal from the United States District Court
              for the Northern District of Ohio at Youngstown.
             No. 03-00870—Solomon Oliver, Jr., District Judge.
                                 Argued: June 3, 2008
                         Decided and Filed: March 11, 2009
             Before: MOORE, GIBBONS, and ROGERS, Circuit Judges.

                                 _________________

                                      COUNSEL
ARGUED: Linda Eleanor Prucha, OHIO PUBLIC DEFENDER’S OFFICE, Columbus,
Ohio, for Appellant. Sarah A. Hadacek, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee. ON BRIEF: Linda Eleanor Prucha, Robert K. Lowe, OHIO
PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellant. Sarah A. Hadacek,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
    GIBBONS, J., delivered the opinion of the court, in which ROGERS, J., joined.
MOORE, J. (pp. 25-30), delivered a separate dissenting opinion.
                                 _________________

                                      OPINION
                                 _________________

       JULIA SMITH GIBBONS, Circuit Judge. Petitioner-appellant Sidney Cornwell was
convicted by an Ohio jury of (1) aggravated murder committed by prior calculation and
design; (2) three counts of attempted aggravated murder, with a firearm specification
attached to each count and; (3) attached to the aggravated murder count, a death penalty


                                           1
No. 06-4322               Cornwell v. Bradshaw                                         Page 2


specification that the murder was committed as part of a course of conduct involving the
purposeful killing of or attempt to kill two or more people. On direct appeal, the Ohio
Supreme Court upheld Cornwell’s conviction and sentence, and the United States Supreme
Court denied his petition for a writ of certiorari. After unsuccessfully pursuing post-
conviction relief in Ohio state court, Cornwell sought a writ of habeas corpus in federal
district court. The district court denied Cornwell’s petition but issued a certificate of
appealability on three claims. We granted a certificate of appealability on a fourth claim.
For the following reasons, we affirm the judgment of the district court denying Cornwell’s
habeas petition.

                                              I.

        The facts, as recounted by the Supreme Court of Ohio, are as follows. Sidney
Cornwell shot three-year-old Jessica Ballew in her chest and face at about 2:00 a.m. on June
11, 1996. The shooting was part of a war between the “Crips” and the “Bloods.”

        The Crips and the Bloods were rival gangs in Youngstown, Ohio. On the afternoon
of June 10, 1996, members of the two gangs had been involved in a shootout on Elm Street
in Youngstown. During the exchange of fire, Crips member Edward McGaha saw fellow
Crips member Sidney Cornwell using a black gun. Also during this exchange, a bullet
grazed McGaha’s head. Later that afternoon, McGaha was released from the hospital and
went to his mother’s residence on Elm Street. McGaha, Cornwell, and several other people
were standing outside the residence when a carload of Bloods exited a vehicle and opened
fire. McGaha saw Cornwell return fire with the same black semiautomatic weapon he had
used earlier in the day. Shortly thereafter, McGaha, Cornwell, and other persons gathered
at a residence on New York Avenue and began discussing retaliation for the shooting of
McGaha. They decided to kill Richard “Boom” Miles, a Blood who had been present at the
first shooting.

        That night, the Crips set out in three cars, two of which were stolen, to find and kill
Boom. McGaha and Edward Bunkley were in a stolen Buick. Antwan Jones and Gary
Drayton were in a Chevrolet Chevette. The third vehicle was a stolen light blue Pontiac
Bonneville, which carried four Crips. In the driver’s seat of the Bonneville was Denicholas
Stoutmire. Beside him in the front passenger seat was Damian Williams. Behind Williams,
No. 06-4322                  Cornwell v. Bradshaw                                     Page 3


in the right rear passenger seat, was Leslie Johnson. And in the remaining rear passenger
seat, behind Stoutmire and to Johnson’s left, sat nineteen-year-old Sidney Cornwell who was
carrying a semiautomatic 9 mm black gun.

       The three cars drove around Youngstown for about an hour looking for Boom and
then went to an apartment building on Oak Park Lane, where Stoutmire thought he might be.
Susan Hamlett was outside on the porch of her apartment talking to her friend Donald
Meadows. At about 2:00 a.m., Hamlett’s three-year-old niece, Jessica Ballew, came to the
doorway of the porch to ask for a drink of water. Two of the cars drove past her apartment,
but the third, the light blue Bonneville, stopped. Cornwell’s voice called out from the
                                  1
Bonneville, asking for Boom. Hamlett and Meadows both said that he was not there.
Cornwell asked where Boom was. Hamlett said that he did not live there. Cornwell
said, “Well, tell Boom this,” and fired six to nine shots. Meadows and two people in the
apartment – Marilyn Conrad, another resident of the apartment, and a friend of hers
visiting the apartment, Samuel Lagese – were wounded. Jessica Ballew was killed. She
was hit in both the chest and face, but it was the shot to the face that was fatal.

       After receiving a call about the matter, a Youngstown police officer pursued the
three vehicles, two of which fit a description he received. He saw that the Bonneville
was parked in the driveway of a vacant house. He turned off his headlights, pulled up
behind the Bonneville, then turned his lights back on. The occupants of the Bonneville
jumped out and ran. The officer ran after the occupant whom the officer believed had
jumped out of the driver’s door and, after a brief chase, caught him. The individual
caught by the officer was Cornwell.

       At trial, Meadows and Williams identified Cornwell as the gunman. Evidence
was introduced that several 9 mm Luger shell casings were found at the scenes of the
first Elm Street shooting and the Oak Park Lane shooting. Evidence was also introduced
that two 9 mm shell casings were found in the Bonneville. A forensic scientist testified
that all the 9 mm Luger shell casings recovered from the Oak Park Lane shooting and



       1
           Boom had been at the apartment earlier in the evening.
No. 06-4322                 Cornwell v. Bradshaw                                             Page 4


the first Elm Street shooting came from the same handgun. The murder weapon was
never recovered.

          A jury found Cornwell guilty of aggravated murder committed by prior
calculation and design. It also found him guilty of three counts of attempted aggravated
murder, with a firearm specification attached to each count and, attached to the
aggravated murder count, a death penalty specification that the murder was committed
as part of a course of conduct involving the purposeful killing of or attempt to kill two
or more people. Cornwell was sentenced to death on the conviction for aggravated
murder and to prison for the other convictions. The Ohio Supreme Court affirmed. State
v. Cornwell, 715 N.E.2d 1144, 1149, 1157 (Ohio 1999), cert. denied, 528 U.S. 1172
(2000).

          Cornwell unsuccessfully sought relief via a Murnahan2 motion, see State v.
Cornwell, 723 N.E.2d 119 (Ohio 2000), and state post-conviction proceedings, see State
v. Cornwell, No. 96 CR 525 (Mahoning C.P. Oct. 6, 2000) (unpublished) (granting the
State summary judgment), aff’d, No. 00-CA-217, 2002 WL 31160861 (Ohio Ct. App.
Sept. 24, 2002) (unpublished), juris. denied, 781 N.E.2d 1020 (Ohio 2003).

          In 2003, Cornwell filed a petition for a writ of habeas corpus in federal court.
As amended in 2005, it raised sixteen claims. The district court denied Cornwell’s
requests for experts and an evidentiary hearing and also denied the federal habeas
petition. The district court granted a certificate of appealability (“COA”) on Cornwell’s
claims that racial bias tainted his prosecution, that the trial court erred in admitting the
testimony of eyewitness Donald Meadows, and that appellate counsel was ineffective
in failing to challenge the admission of Meadows’s testimony.

          This court expanded the COA to include a claim of ineffective assistance in the
penalty phase to the extent it raises the following issue: whether there is a reasonable
probability the result of the penalty phase would have been different had trial counsel


          2
          State v. Murnahan, 584 N.E.2d 1204, 1209 (Ohio 1992) (Ohio’s vehicle for bringing appellate
counsel ineffectiveness claims).
No. 06-4322              Cornwell v. Bradshaw                                      Page 5


discovered and corrected the misunderstanding of Dr. James Eisenberg regarding
Cornwell’s childhood mastectomy in time for him to determine whether this information
affected his evaluation of Cornwell. This court also certified the issue of whether the
district court erred in denying Cornwell’s request for an expert on genetic disorders and
the evidentiary hearing issue to the extent relevant to the certified portion of the claim
of ineffective assistance of counsel in the penalty phase.

                                           II.

                                           A.

       Cornwell filed his federal habeas petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”); its standards
therefore govern. Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). This court may not
grant habeas relief on any claim adjudicated on the merits in state court unless the
adjudication

       1) resulted in a decision that was contrary to, or involved an
       unreasonable application of, clearly established Federal law, as
       determined by the Supreme Court of the United States; or
       2) resulted in a decision that was based on an unreasonable determination
       of the facts in light of the evidence presented in the State court
       proceeding.

28 U.S.C. § 2254(d). In analyzing whether a state court decision is contrary to or an
unreasonable application of clearly established Supreme Court precedent, a federal court
may look only to the holdings of the Supreme Court’s decisions, not their dicta.
Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court decision on the merits is
contrary to clearly established Supreme Court precedent only if the reasoning or the
result of the decision contradicts that precedent. Early v. Packer, 537 U.S. 3, 8 (2002).
A federal court may grant habeas relief under the unreasonable application clause if the
state court decision (a) identifies the correct governing legal principle from the Supreme
Court’s decisions but unreasonably applies it to the facts, or (b) either unreasonably
extends or unreasonably refuses to extend a legal principle from Supreme Court
precedent to a new context. Williams, 529 U.S. at 407-08. To violate the unreasonable
No. 06-4322                   Cornwell v. Bradshaw                                                 Page 6


application clause, the state court application of Supreme Court precedent must have
been “objectively unreasonable,” not simply erroneous or incorrect. Id. at 409-11. State
court factual findings are presumed correct unless rebutted by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).

         When a habeas claim is not adjudicated by a state court, we review de novo
questions of law and mixed questions of law and fact. Maples v. Stegall, 340 F.3d 433,
436 (6th Cir. 2003). We, however, review the district court’s factual findings for clear
error. Wilson v. Parker, 515 F.3d 682, 691 (6th Cir. 2008).

                                                    B.

                                                    1.

         Cornwell argues that his counsel rendered ineffective assistance in the penalty
phase by failing to discover and correct the misunderstanding of Dr. James Eisenberg
regarding Cornwell’s childhood mastectomy in time for him to determine whether this
information would affect his evaluation of Cornwell.3 In post-conviction proceedings,
the state court of appeals denied this claim on the merits. The district court agreed that
the claim was meritless. The Warden concedes that this claim has been preserved for
habeas review but contends it is meritless. Cornwell concedes that AEDPA deference
applies.

         To establish ineffective assistance of trial counsel, Cornwell must show that
(1) his counsel’s performance was deficient, that is, objectively unreasonable under
prevailing professional norms, and (2) it prejudiced his defense.                          Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). The test for prejudice is whether there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceedings would have been different. Id. at 694.




         3
            As the Warden contends, Cornwell’s brief at points encompasses generalized claims of failure
to investigate that fall outside the scope of the certification. We confine our opinion to resolution of the
certified issue.
No. 06-4322               Cornwell v. Bradshaw                                      Page 7


         Cornwell disagrees that he must show a reasonable probability that the outcome
of the trial would have been different. He asserted in his Reply brief that Strickland’s
prejudice prong “is not outcome determinative.” He is incorrect. True, “[a] reasonable
probability is a probability sufficient to undermine confidence in the outcome,”
Strickland, 466 U.S. at 694, and this is less than a preponderance of the evidence. Id.
at 693-94; Kyles v. Whitley, 514 U.S. 419, 434 (1995). But that measuring stick is still
applied to whether the result of the proceedings would have been different but for
counsel’s unprofessional errors. See Strickland, 466 U.S. at 694.

         Turning to the merits of this claim, Eisenberg was an expert witness who testified
for Cornwell in the mitigation phase of proceedings. Cornwell argues that had Eisenberg
seen his medical records from a childhood surgery, Eisenberg might have suggested the
possibility that Cornwell had Klinefelter’s Syndrome. Instead of the usual male XY sex
chromosome, men with Klinefelter’s Syndrome have an extra sex chromosome, XXY.
Symptoms include “enlarged breasts, sparse facial and body hair, small testes, and an
inability to produce sperm.” Furthermore, men with the syndrome tend to be overweight
and to have “some degree of language impairment.” Despite these abnormalities, “[n]ot
all males with the condition have the same symptoms or to the same degree.” Indeed,
many adults with the condition “live [social] lives similar to men without the condition.”
Klinefelter’s Syndrome “is one of the most common chromosome abnormalities in
humans.” One in every five hundred men has an extra X chromosome. National
Institute of Child Health and Human Development, Klinefelter Syndrome,
http://www.nichd.nih.gov/health/topics/klinefelter_syndrome.cfm (last visited Nov. 14,
2008).

         The relevant medical records reveal that Cornwell was thirteen years old at the
time of his admission for “bilateral double mastectomies” with nipple transplants and
that before surgery he had size DD breasts. The records further reveal that Cornwell had
a hormonal imbalance and that he had underdeveloped genitalia. The discharge
summary attached to the records gave Cornwell a final diagnosis of “testosterone
deficiency syndrome with manifestations of macromastia.” Macromastia is “abnormal
No. 06-4322                    Cornwell v. Bradshaw                                                  Page 8


largeness of the breasts.” See www.Dictionary.com. The American Heritage Stedman’s
Medical Dictionary.

         While he did not have the medical records from the mastectomy, Eisenberg
reviewed some of Cornwell’s medical records prior to his testimony at the mitigation
phase, including records involving occasions when Cornwell was shot, when he was in
a car accident, and when a dog bit him. Thus, had Eisenberg been given the medical
records from Cornwell’s hospitalization, presumably he would have reviewed them and
utilized the information in them.

         There are inconsistencies between the medical records from the surgery and the
testimony of Eisenberg. While he was aware of the surgery, Eisenberg’s explanation of
the surgery began with an account that other people made fun of Cornwell for being
overweight. Cornwell “literally ask[ed] his mom to see if he [could] get a chest
reduction.” As a result, Eisenberg added,

         Not to be crude, but what he told me is that he didn’t want to have these
         titties and this – that kids were making fun of him at school. And he
         does. He does, in fact, at 13-year old, has a reduction. I asked him,
         “Some kind of liposuction?”4 Which is a pretty profound statement. It
         says something about his identity, self-image, self-worth, the way people
         are making fun of him. And he goes ahead and has this reduction.
Eisenberg’s references to a reduction arguably made the procedure seem cosmetic.
Believing that Cornwell had an elective cosmetic procedure, jurors arguably may have
viewed him less favorably than if they had known that a medical condition caused the
enlarged breasts that were removed by double mastectomy when Cornwell was a
teenager.

         The Supreme Court has stated that capital defense counsel has an obligation to
do a thorough and complete investigation and that the American Bar Association
standards are to be used as guides to the reasonableness of counsel’s conduct. Rompilla



         4
           At various points Cornwell suggests that Eisenberg referred to the surgical procedure as a
“liposuction” at trial. In fact, Eisenberg calls it a “chest reduction.” Eisenberg uses the word “liposuction”
only in recounting his question to Cornwell.
No. 06-4322              Cornwell v. Bradshaw                                      Page 9


v. Beard, 545 U.S. 374, 387 (2005); see also Dickerson v. Bagley, 453 F.3d 690, 693
(6th Cir. 2006). Under the 2003 ABA Guidelines for the Appointment and Performance
of Defense Counsel in Death Penalty Cases, defense counsel must explore a defendant’s
medical history when there has been a hospitalization. Dickerson, 453 F.3d at 693. This
court has made clear that “counsel for defendants in capital cases must fully comport
with these professional norms.” Id.

       While these standards should not be read to require trial counsel to locate every
tiny piece of information about a capital defendant, they do seem to require that an
attorney locate medical records for a known, unusual, and likely traumatic procedure
performed on that defendant as a child. Given the nature of a “chest reduction”
performed on a thirteen year old boy, a reasonable attorney would have assumed that:
(1) emotional distress would have resulted from the event, and (2) perhaps an underlying
medical problem caused the rare condition. Both of these possibilities would have been
useful mitigation evidence. Moreover, this was not a situation where it would have been
sufficient to rely on the statements of Cornwell and his family. It is obvious from their
testimony that Cornwell’s family did not understand the nature of the procedure.
Beverly Terry, Cornwell’s mother, termed it a “cosmetic surgery” for breasts that were
size 38, 39, or 40. LaShonda Cornwell, his sister, called him “lazy” and said that he had
the surgery because he was fat and that it “got rid of his chest.” And Cornwell himself
could not be expected to provide a full account of his medical history. He was thirteen
years old at the time, has no medical training, and might well be embarrassed to give full
details of the mastectomy. In addition to the fact that the medical records might contain
a significant amount of mitigating evidence, defense counsel was aware of the surgery
and thus knew that medical records concerning it existed. Thus, this is not a case where
an attorney was looking for the “proverbial needle in a haystack and had good reason to
doubt its existence.” Eady v. Morgan, 515 F.3d 587, 597 (6th Cir. 2008).

       It should be noted, however, that trial counsel otherwise did a fairly thorough
investigation. For example, defense counsel interviewed several family members,
No. 06-4322               Cornwell v. Bradshaw                                        Page 10


friends, and a pastor, obtained school records, obtained other medical records5, and had
a forensic psychologist meet with Cornwell and his family members. Moreover, defense
counsel pulled together all of the known mitigating factors, such as Cornwell’s very
unstable family environment, weight problems, and academic difficulties, to create a
reasonably strong defense.

        In most cases where the Supreme Court has found capital defense counsel to be
insufficient, defense counsel almost entirely failed to investigate the defendant’s
background or defense counsel stopped investigating even though it had no legitimate
defense upon which to rely. For example, in Wiggins v. Smith, 539 U.S. 510 (2003),
defense counsel presented no evidence of the defendant’s severely dysfunctional
childhood, which involved physical and sexual abuse and foster care. Id. at 516.
Instead, counsel relied only on a pre-sentence report and city social services records. Id.
at 523-24. The Court found the lack of further investigation particularly unreasonable
given that counsel had not discussed any other mitigating evidence to at least create
some kind of defense. Id. at 524-27. Similarly, in Rompilla v. Beard, 545 U.S. 374
(2005), the only mitigation offered by defense counsel were the pleas of the defendant’s
family for mercy. Id. at 393. In failing to do an investigation into the defendant’s
background, defense counsel ignored “obvious” signs of a troubled childhood,
alcoholism, and mental issues. Id. at 379. Defense counsel was not, the Supreme Court
held, permitted to simply rely on defendant’s claim that he had an unexceptional
childhood given the absence of any other mitigating evidence. Id. at 377. The court
seemed particularly troubled in this case by defense counsel’s failure because a
significant amount of mitigating evidence was located in defendant’s prior police record
located in the same courthouse where defendant was then being tried. Id. at 389-90.
Defense counsel failed to examine that record even though the prosecution had made it
known it planned to use that record. Id.




        5
           For example, Eisenberg was given medical records about Cornwell’s gunshot wound, car
accident, and dog bite.
No. 06-4322               Cornwell v. Bradshaw                                      Page 11


        It could be argued that the level of investigation here greatly exceeded that done
in Wiggins and Rompilla so that a finding that counsel was not deficient would not be
an unreasonable application of clearly established law. For purposes of this opinion,
however, we assume, without deciding, that counsel’s performance was deficient.

        We thus turn to whether this deficient performance prejudiced Cornwell’s
defense. Cornwell’s post-conviction mental health expert, Dr. Kristen E. Haskins,
indicates that “It would be important to know . . . if [Cornwell] could possibly have a
genetic disorder known as Klinefelter’s Syndrome, a primary symptom of which is
enlarged breasts.” Dr. Haskins offers her opinion that “Cornwell’s endocrine, and
perhaps genetic, problem was confounded with his weight problems,” a result that could
have been avoided by careful review of the medical records. She adds, “[f]urther
information needs to be obtained to rule out . . . a possible genetic disorder (Klinefelter’s
Syndrome).” Cornwell also submitted a report about Klinefelter’s Syndrome, which
described the condition and its symptoms. It noted that boys with the condition lack
strength and agility and are not good at sports. They may be teased by their peers and
may have lower self esteem than others during adolescence.

        In evaluating whether it was unreasonable to conclude that Cornwell was
prejudiced by the failure to provide medical records of the surgery to Eisenberg for
review, we first note the impossibility of knowing whether Eisenberg would have
suspected Klinefelter’s Syndrome had he seen the records. Nonetheless, we assume that
he might have done so for purposes of this analysis. Whatever the status of Eisenberg’s
suspicions about Klinefelter’s Syndrome, Eisenberg would have had information not
otherwise available to him. He would have known that Cornwell had underdeveloped
genitalia and a testosterone deficiency, and he would have known the amount of breast
tissue removed. He could have relayed this information to the jury.

        Despite the new information that the medical records would have revealed, much
of the evidence which might be presented if Cornwell were determined to have
Klinefelter’s Syndrome is quite similar to mitigation evidence actually admitted at the
penalty phase. The jury heard testimony about Cornwell’s weight problems, his large
No. 06-4322              Cornwell v. Bradshaw                                     Page 12


breasts, his learning difficulties, the teasing by other children, his poor performance at
sports, and his low self esteem. They learned about the part all of these factors played
in driving him to gang activity.

       Ultimately, the difference between the proof the jury heard and the proof they
would likely have heard had Eisenberg seen the medical records amounts to the
additional information in the records. Potentially, they might also have heard that
Cornwell had Klinefelter’s Syndrome. The end effect would have been that the jury
would have understood that the surgery was related to a medical condition. To the
extent that jurors thought that Cornwell had undergone a purely cosmetic procedure, this
view would have been countered. And if Cornwell indeed had Klinefelter’s Syndrome,
they would have learned that being overweight often accompanies the condition, thus
countering any belief that Cornwell was overweight because he was lazy.

       In evaluating prejudice, it is important to note that much mitigation proof not
involving the surgery was presented to the jury. Moreover, proof of the aggravating
factor – that the murder was committed as part of a course of conduct involving the
purposeful killing or attempt to kill two or more people – was strong.

       We are unable to conclude that it was objectively unreasonable for the state court
to conclude that Cornwell was not prejudiced by any deficiency in counsel’s
performance in failing to provide the medical records of the surgery to Eisenberg. The
state courts could reasonably reject an assumption that jurors blame teenagers for their
own weight problems and somehow consider those who are overweight or lazy or have
cosmetic surgery more deserving of the death penalty than those who are thin or
energetic or have surgery related to medical conditions. And the state courts could
reasonably find that jurors would not focus on such factors in this case, given the other
evidence of both mitigation and an aggravating factor. Our system of justice finds its
foundation in the belief that average citizens can and will weigh all the evidence
presented to them, follow the law, and reach a well-reasoned verdict. To conclude that
jurors would consider Cornwell more culpable because he was overweight or lazy
appears to reflect a distrust of the soundness of jury decisions–a view at odds with the
No. 06-4322              Cornwell v. Bradshaw                                    Page 13


guarantees of the Sixth Amendment and the underlying principles of our judicial system.
The state court could reasonably have concluded that there was not a reasonable
probability that the outcome of the trial would have been different if the medical records
had been available to Eisenberg. Therefore, we affirm the district court’s denial of
habeas relief as to this assignment of error.

                                            2.

       Cornwell argues that the district court erred in denying his motions for a genetic
disorders expert and an evidentiary hearing. The district court denied an evidentiary
hearing because, whether or not Cornwell had diligently sought to develop the factual
bases of his claim in state court, he had not shown that an evidentiary hearing was
necessary to develop the facts further. The district court denied the motion for a genetic
disorders expert for the same reason. The Warden argues that both denials were proper.
She does not address Cornwell’s diligence and, thus, neither contends nor implies that
Cornwell failed to develop the factual bases of his claim in state court.

       We review the district court’s denial of discovery in a habeas proceeding for an
abuse of discretion. Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004). Because a
request for experts is a request for discovery, the discovery standard applies. For good
cause shown, the district court has the discretion to permit discovery in a habeas
proceeding, see Rule 6(a) of Rules Governing Section 2254 Proceedings for the United
States District Courts, “provided that the habeas petitioner presents specific allegations
showing reason to believe that the facts, if fully developed, may lead the district court
to believe that federal habeas relief is appropriate.” Lott v. Coyle, 261 F.3d 594, 602
(6th Cir. 2001). “Conclusory allegations are not enough to warrant discovery under Rule
6; the petitioner must set forth specific allegations of fact.” Williams, 380 F.3d at 974
(brackets and internal quotation marks omitted); see also id. (“Rule 6 does not sanction
fishing expeditions based on a petitioner’s conclusory allegations”) (internal quotation
marks and citation omitted)).

       “This court reviews a district court’s decision whether to hold an evidentiary
hearing for an abuse of discretion.” Vroman v. Brigano, 346 F.3d 598, 606 (6th Cir.
No. 06-4322              Cornwell v. Bradshaw                                     Page 14


2003). “If the petitioner has not failed to develop the factual basis of a claim in state
court, the federal court may hold a hearing [when] the petitioner’s factual allegations,
if proved, would entitle him to relief.” Id. However, “prisoners who are at fault for the
deficiency in the state-court record must satisfy a heightened standard to obtain an
evidentiary hearing.” Williams v. Taylor, 529 U.S. 420, 433 (2000). Because the
Warden does not contend that Cornwell was at fault or lacked diligence in developing
the factual basis of the claim, we turn to consideration of whether the district court
abused its discretion.

       The district court did not abuse its discretion in denying the motion for a genetic
disorders expert because the facts, if fully developed, would not have led the district
court to believe that federal habeas relief was appropriate. This is true because, “in
order to establish prejudice, the new evidence that a habeas petitioner presents must
differ in a substantial way — in strength and subject matter — from the evidence
actually presented at sentencing.” Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir. 2005).

       In determining that Cornwell did not establish the prejudice prong of his
ineffective assistance claim under Strickland, we took into account the possibility that
Cornwell might have been determined to have Klinefelter’s Syndrome even though such
a determination was speculation in the absence of further investigation by a genetics
expert. We concluded, however, that a diagnosis of Klinefelter’s Syndrome would not
have affected the outcome of the penalty phase or at least would not have rendered the
state court finding of no prejudice objectively unreasonable. Given this conclusion, it
can hardly have been an abuse of discretion for the district court to have denied
discovery that would not have affected the outcome of the penalty phase.

                                            C.

                                            1.

       Cornwell argues that racial bias tainted his prosecution. He asserts that the
“state’s witness Edward Bunkley balked at putting Cornwell’s life at risk by making his
testimony fit with the State’s theory of the case.” Cornwell also asserts that, in response
No. 06-4322                 Cornwell v. Bradshaw                                            Page 15


to Bunkley’s reluctance, a Mahoning County prosecutor asked Bunkley: “Do you give
a f*** if we fry your n***** or not?” Cornwell contends that this question “evinces
obvious racial animus that tainted all of the proceedings against Cornwell” in violation
of his rights to equal protection and due process.6

        In post-conviction proceedings, the state court of appeals held that the trial court
had not erred in denying this claim because, among other reasons, Cornwell had failed
to demonstrate or produce any evidence that similarly situated individuals of a different
race were not prosecuted. The district court held that the state court rejection of this
claim was not contrary to, or an unreasonable application of, clearly established Supreme
Court precedent.

        “It is appropriate to judge selective prosecution claims according to ordinary
equal protection standards.” Wayte v. United States, 470 U.S. 598, 608 (1985). Thus,
Cornwell must show that the prosecutorial policy had a discriminatory effect and was
motivated by a discriminatory purpose. Id. “To establish a discriminatory effect in a
race case, the claimant must show that similarly situated individuals of a different race
were not prosecuted.” United States v. Armstrong, 517 U.S. 456, 465 (1996).

        Assuming the prosecutor made the alleged statement with racial animus would
at most show discriminatory purpose. As the state court of appeals correctly noted,
Cornwell has completely failed to show discriminatory effect—that he was prosecuted
while similarly situated individuals of a different race were not.

        Denying that he must show a discriminatory effect, Cornwell argues that, under
McCleskey v. Kemp, 481 U.S. 279 (1987), he need only show that the decision makers
in his case acted with discriminatory purpose. Reply at 17 (citing McCleskey, 481 U.S.
at 292). McCleskey, however, says that “a criminal defendant must prove that the
purposeful discrimination had a discriminatory effect on him.” 481 U.S. at 292 (internal



        6
           Cornwell asserts that his rights under the Fifth Amendment were violated. We construe his
claim as one brought under the Fourteenth Amendment, not the Fifth Amendment, because Cornwell was
prosecuted by the state and the Fourteenth Amendment applies to state action. See San Francisco Arts &
Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 543 n.21 (1987).
No. 06-4322              Cornwell v. Bradshaw                                     Page 16


quotation marks omitted). Armstrong, issued nine years later, clarified how that effect
must be proven. 517 U.S. at 465.

       Consequently, we believe that the state court did not unreasonably apply clearly
established Supreme Court precedent, nor did it make an unreasonable determination of
the facts in light of the evidence presented.

                                            2.

       Cornwell argues that the state court and the district court improperly denied him
an evidentiary hearing on his claim that racial bias tainted his prosecution. The state
court argument is not cognizable in habeas corpus proceedings, which cannot be used
to challenge errors or deficiencies in state court post-conviction proceedings. See Kirby
v. Dutton, 794 F.2d 245, 247 (6th Cir. 1986).

       The Warden asserts that the certificate of appealability did not include this issue.
It is closely related to the certified claim, however, so that it would not be unreasonable
to read the COA as including both the former and the latter, if Cornwell had asked the
district court for such a hearing. It appears, however, that Cornwell did not request an
evidentiary hearing on this issue.

       Assuming, however, that he had made such a request, or that the district court
believed that he had done so, and assuming the issue is included within the COA, a
hearing is not required. We review the district court’s denial of an evidentiary hearing
for an abuse of discretion. Abdus-Samad v. Bell, 420 F.3d 614, 626 (6th Cir. 2005). “In
deciding whether to grant an evidentiary hearing, a federal court must consider whether
such a hearing could enable an applicant to prove the petition’s factual allegations,
which, if true, would entitle the applicant to federal habeas relief.”         Schriro v.
Landrigan, 127 S. Ct. 1933, 1940 (2007). Cornwell wants to present evidence that the
prosecutor made the offending statement. This evidence, however, at most demonstrates
discriminatory purpose and does not establish discriminatory effect.           Therefore,
Cornwell cannot show that his factual allegations, if proven, would entitle him to relief.
In order to fill this gap, Cornwell offers to present evidence showing that similarly
No. 06-4322              Cornwell v. Bradshaw                                    Page 17


situated individuals of a different race were not prosecuted. Cornwell presented no such
evidence in state court and advances no argument now that he diligently tried to present
this evidence in state court. Hence, the evidence in question, to gain admittance, must
“establish by clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the underlying offense.”
28 U.S.C.A. § 2254(e)(2)(B). The evidence fails to meet this threshold. Evidence that
other persons were not prosecuted is not evidence that Cornwell is not guilty. If the
district court did deny a hearing on this claim, such a denial was not an abuse of
discretion.

                                           D.

       Cornwell had the right to the effective assistance of appellate counsel on his
direct appeal to the Ohio Supreme Court because it was his first appeal of right. See
Ohio Rev. Code Ann. § 2953.02; Evitts v. Lucey, 469 U.S. 387, 394 (1985). In order to
show ineffective assistance of counsel, Cornwell must show both deficient performance
and prejudice. Strickland, 466 U.S. at 687.

       Cornwell argues that appellate counsel were ineffective on direct appeal to the
Ohio Supreme Court in failing to raise his claim that the trial court erred in denying
Cornwell’s motion to suppress the eyewitness testimony of Donald Meadows. This
subclaim was originally raised in Cornwell’s Murnahan motion, which the state supreme
court denied in a standard order. The district court held that the claim lacked merit.

       Because the Ohio Supreme Court’s order was unexplained, Cornwell argues that
AEDPA deference does not apply. He is correct. Instead, modified AEDPA deference
applies. Where the state court disposes of a constitutional claim but fails to articulate
its analysis, this court conducts “an independent review of the record and applicable law
to determine whether, under the AEDPA standard, the state court decision is contrary
to federal law, unreasonably applies clearly established law, or is based on an
unreasonable determination of the facts in light of the evidence presented.” Howard v.
Bouchard, 405 F.3d 459, 467 (6th Cir. 2005). Such a review is not de novo but is
No. 06-4322              Cornwell v. Bradshaw                                     Page 18


deferential because we “cannot grant relief unless the state court’s result contradicts the
strictures of AEDPA.” Id. at 467-68.

       “[C]onvictions based on eyewitness identification at trial following a pretrial
identification by photograph will be set aside on that ground only if the photographic
identification procedure was so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.” Simmons v. United States, 390
U.S. 377, 384 (1968). “[E]ach case must be considered on its own facts . . . .” Id. In
determining whether an identification is admissible, this court follows a two part
analysis. The court first considers whether the procedure was unduly suggestive.
Wilson v. Mitchell, 250 F.3d 388, 397 (6th Cir. 2001); Ledbetter v. Edwards, 35 F.3d
1062, 1070-71 (6th Cir. 1994). The court must decide if the procedure itself steered the
witness to one suspect or another, independent of the witness’s honest recollection.
Wilson, 250 F.3d at 397. “The defendant bears the burden of proving this element.”
Ledbetter, 35 F.3d at 1071 (citation omitted). If the procedure was suggestive, the court
then determines whether, under the totality of the circumstances, the identification was
nonetheless reliable and therefore admissible. Wilson, 250 F.3d at 397 (citation
omitted); Ledbetter, 35 F.3d at 1071.

       Ohio law forbids the introduction of evidence that was not part of the trial court’s
record on appeal. See State v. Ishmail, 377 N.E.2d 500, 502 (Ohio 1978). Appellate
counsel were not ineffective for failing to introduce additional evidence, as state law
prohibited them from doing so. This subclaim, therefore, focuses on the evidence
presented at the time of trial. In other words, Cornwell’s argument is that appellate
counsel were ineffective in not contending that the trial court, based purely on the
evidence presented at the time of trial, erred in denying his motion to suppress.

       Prior to the suppression hearing, Meadows identified Cornwell four times:

       1) On June 12, 1996 (the day after the shooting), while in the hospital
       and heavily medicated with morphine, Meadows picked Cornwell’s
       photo out of a six-person photo array. “At that time[,] he was in obvious
       pain and apparently under the influence of the medication.” State v.
       Cornwell, No. 96-CR-525 at 1 (C.P. Mahoning County) (order denying
No. 06-4322             Cornwell v. Bradshaw                                      Page 19


       motion to suppress). At first, Meadows had not made an identification,
       either because he did not want to get involved (according to police
       testimony summarizing Meadows’s answers) or because he did not
       recognize anyone (according to Meadows’s testimony), but the officer
       handed Meadows the array again and told him to take his time and make
       sure whether anyone was recognizable. It was then that Meadows
       identified Cornwell as possibly the driver of the car in question. Id. at 2.
       2) The next day, on June 13, 1996, the police again visited Meadows.
       According to their testimony, he did not seem to be “in the same type of
       pain or discomfort” and did not seem under the influence of the
       medication. Id. He again picked Cornwell out of the same photo array.
       3) Four days later (June 17, 1996), Meadows was videotaped picking
       Cornwell’s photo from the same array. Id.
       4) At the preliminary hearing (July 1, 1996, two weeks and six days after
       the shooting), Meadows picked Cornwell out of the group of
       codefendants in the case, who were also present in the courtroom. It was
       then that Meadows, for the first time, identified Cornwell as the shooter.
       Id.

When denying the suppression motion, the trial court found that there was no evidence
the police had used suggestive identification procedures:

       The victim testified that the police in no way suggested any of the
       particular persons in the photographic array prior to any of the
       identifications, nor did they indicate approval of or encouragement upon
       the identifications being made. The photographs were not numbered
       until the video tape identification procedure[;] however, in each of the
       previous identifications made by the victim, the Defendant was the
       person picked out. The entire exact same photographic array was shown
       to the victim on each of the occasions he was asked to look at the array.
       There is further testimony that[,] at the preliminary hearing in the
       Youngstown Municipal Court, Defendant was in the Courtroom with
       others charged in the crime. The victim was able to identify the
       Defendant as the perpetrator of this offense when he observed the
       Defendant and the others together in the Courtroom. There was no
       testimony of any prompting or improper conduct of the police at the
       preliminary hearing.
       In support of his argument that Meadows’s testimony should have been
suppressed, Cornwell cites many of the facts mentioned above. He includes: the initial
failure of Meadows to identify anyone, his having been in pain and under the influence
of morphine when he made the first identification, and his failure to identify Cornwell
as the shooter until the preliminary hearing. He also notes that as time passed, Meadows
No. 06-4322              Cornwell v. Bradshaw                                    Page 20


became more certain in his identification but changed his mind about where Cornwell
was sitting (first in the driver’s seat, then Meadows was not sure, then Cornwell sat
behind the driver). Cornwell also emphasizes the difficulty of seeing the shooter.
Cornwell also argues there is a possibility that Meadows made an unconscious
transference based upon Meadow’s admission that he possibly saw Cornwell sometime
before the shooting.

       All of these arguments, however, go to the reliability of the identification, the
second step of the analysis. None of the arguments relate to the suggestiveness of that
procedure. Even Meadows’s having been in pain and under the influence of morphine
when he first identified Cornwell shows, at most, that he was susceptible to suggestion,
not that it occurred.    Hence, Cornwell needs to point to something else in the
identification procedure in order to supply the missing ingredient; nonetheless, he fails
to do so.

       To the contrary, Cornwell argues that, in the time between the initial
identification when Meadows tentatively called him the driver and the preliminary
hearing when Cornwell was identified as the shooter, Meadows saw television reports
identifying Cornwell as a suspect. This argument fails for two reasons. First, it again
goes to reliability of identification, not suggestiveness of procedure. Second, the
evidence cited by Cornwell does not support his allegation. In the cited evidence,
Meadows, when asked whether he had seen Cornwell’s picture on television news
reports, replied, “I seen [sic] mainly when the ambulance came and was taking me away.
That’s all I remember seeing . . .”

       Cornwell also fails to cite any evidence that the police themselves supplied
suggestiveness. In his brief, Cornwell conceded that at the suppression hearing,
“Meadows testified that the police officers were not doing anything to encourage him
to pick out a photograph. He said that the police told him that someone had been
arrested[,] but they did not give him the name of the person who had been arrested.”

       Cornwell never suggests that the relevant state court decisions, the trial court
denial of the suppression motion, and the Supreme Court rejection of the Murnahan
No. 06-4322                    Cornwell v. Bradshaw                                                 Page 21


motion were based on unreasonable determinations of the facts in light of the evidence
presented. He does not show that the relevant state court factual findings were clearly
erroneous. As the trial court found when denying the suppression motion, the police did
nothing to suggest to Meadows that Cornwell was the person he should identify.

         Cornwell fails to establish undue suggestion in the identification procedure itself,
which he has the burden to prove. See Ledbetter, 35 F.3d at 1071. He, therefore, fails
to show prejudice, an issue on which he has the burden of proof. See Strickland, 466
U.S. at 687. This subclaim would fail even if it were reviewed de novo, and thus, it fails
under modified AEDPA deference. Rejection of this subclaim by the Ohio Supreme
Court was neither contrary to, nor an unreasonable application of, clearly established
Supreme Court precedent and was not based on an unreasonable determination of the
facts in light of the evidence presented. We affirm the district court’s denial of this
subclaim.

                                                     E.

                                                     1.

         Cornwell argues that the trial court erred by denying his motion to suppress
Meadows’s testimony. In state post-conviction proceedings, the court of appeals held
this claim meritless because “[t]he evidence relied upon fails the threshold of cogency
and lacks credibility.” The district court held that the state court rejection of this claim
was neither contrary to, nor an unreasonable application of, clearly established Supreme
Court precedent.7

         7
           The opening paragraph of this claim, as stated in the federal habeas petition, states: “The trial
court erred in failing to suppress the tainted, unreliable eyewitness testimony of Donald Meadows. The
photo line up [sic] was so suggestive as to be unreliable.” Interpreting these two sentences as separate
subclaims, the district court held that the first had been raised during state post-conviction proceedings (as
summarized above), but the second had only been raised in the Murnahan motion, and then as part of an
ineffective assistance of appellate counsel claim. Despite this, the district court held that both subclaims
had been preserved for habeas review.
          It may be questioned whether the second quoted sentence represents a separate subclaim, as
opposed to a development of the argument begun in the first sentence: the trial court should have
suppressed Meadows’s unreliable testimony because it was the product of an unduly suggestive
identification process. If this reading is accurate, the so called second subclaim is really just part of the
post-conviction argument that the trial court erred in denying the motion to suppress the testimony of
Donald Meadows.
          If, on the other hand, Cornwell is advancing a second subclaim, there is still no need to consider
No. 06-4322                   Cornwell v. Bradshaw                                                 Page 22


         As Cornwell impliedly concedes AEDPA deference applies. Specifically, the
“contrary to” clause applies because the state court of appeals, while explaining that the
claim failed for lack of cogency and credibility and mentioning the federal rights of due
process and confrontation, applied no Supreme Court precedent. See Packer, 537 U.S.
at 8.

         Cornwell claims that the trial court erred in denying the suppression motion. He
states in the heading in his federal habeas petition:

         A TRIAL COURT ERRS WHEN IT DENIES A DEFENSE MOTION
         TO SUPPRESS THE TESTIMONY OF AN EYEWITNESS WHEN
         THAT WITNESS’S TESTIMONY IS UNRELIABLE AND THE
         RESULT OF A SUGGESTIVE PHOTOGRAPHIC LINE UP, IN
         VIOLATION OF U.S. CONST. AMEND. XIV
The body of the claim makes the same argument. Cornwell did ask this court to certify
for appeal subclaims that trial counsel were ineffective in regard to the suppression
hearing. As he did not set out the law, state or federal, governing such hearings, this
panel did not certify them, and it is now too late for Cornwell to seek rehearing. See
Slagle, 457 F.3d at 528-29.

         Cornwell argues that the trial court erred in denying the suppression motion
because evidence not presented or discovered until post-conviction proceedings shows
that, after Meadows had tentatively picked out one photo, a police officer allegedly
commented, “that’s the one guy we picked up[;] so far you doing good, Mr. Meadows.”
He argues that this comment improperly enhanced Meadows’s certainty that he had
identified the correct person. In further support of his argument, Cornwell cites evidence
that also was not presented until post-conviction proceedings and that attacks the
reliability of Meadows’s identification. He cites(1) the post-conviction admission by



whether he forfeited it in state proceedings, because he forfeited it here. Nowhere in his brief does he
attack the photo lineup itself (the position of the photos in the array, the similarity or dissimilarity of
Cornwell’s photo to the others, or the choice of which photo of Cornwell to use). Instead, he attacks, the
photo lineup procedure: the allegedly suggestive comment the police officer made while Meadows was
being shown that lineup. To the extent that Cornwell may be trying to advance some other photo lineup
argument, it is forfeited. See United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996) (“[I]t is a settled
appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived”) (internal quotation marks omitted).
No. 06-4322               Cornwell v. Bradshaw                                       Page 23


Meadows that, when the shootings occurred, he was under the influence of more
marijuana and alcohol than he admitted at trial; and (2) firearm tests casting doubt on
Meadows’s ability to see the shooter’s face by the light produced by the gunshots. None
of this evidence is relevant to a claim of trial court error. The court did not err by failing
to consider evidence it was unaware of at the time of trial.

        To the extent this post-conviction argument is viewed as one asserting trial court
error based on the evidence before it, the argument does not succeed. It fails for the
reasons explained above with respect to the subclaim for ineffective assistance of
appellate counsel. Essentially, the trial court did not err in denying the motion to
suppress because Cornwell’s arguments relate to the weight to be given to the
identification, not its admissibility.

        It is unnecessary to consider Cornwell’s contention that the state court of appeals
decision was based on an unreasonable determination of the facts in light of the evidence
presented. That court found only that the post-conviction evidence lacked credibility.
Even if it should have been found credible, it still was irrelevant. It was not contrary to
clearly established Supreme Court precedent for the state court of appeals to find that
irrelevant evidence was irrelevant or lacked “cogency.” We affirm the judgment of the
district court denying this claim.

                                             2.

        Cornwell argues that he should have been granted an evidentiary hearing on the
suppression both in state court and in federal court. The state court argument is not
cognizable here.

        The Warden responds that the federal court issue was not included within the
COA. Assuming the issue has not been forfeited and that it was included within the
COA because it was somewhat closely related to the certified claim, the argument fails.
Any post-conviction evidence is irrelevant to this claim. Therefore, Cornwell cannot
show that his factual allegations, if proven, would entitle him to relief. The district court
did not abuse its discretion in denying an evidentiary hearing.
No. 06-4322             Cornwell v. Bradshaw                                  Page 24


                                         III.

       For the foregoing reasons, we affirm the judgment of the district court denying
Cornwell’s petition for habeas relief.
No. 06-4322             Cornwell v. Bradshaw                                    Page 25


                                __________________

                                     DISSENT
                                __________________

       KAREN NELSON MOORE, Circuit Judge, dissenting. The majority has
determined that portraying a male teenager as fat, lazy, and choosing liposuction to
avoid working out has the same effect on a jury as portraying a male teenager as the
sufferer of a genetic disorder that causes underdeveloped testes, gender identity
disturbance, and size-DD breasts that required a double mastectomy at age thirteen.
Because I conclude that these two scenarios have the potential to yield very different
outcomes, I dissent.

       There are several points of disagreement between myself and the majority. First,
unlike the majority, I do not believe that we need only assume that counsel in this case
was deficient; applying Supreme Court and Sixth Circuit precedent, I believe that it is
clear that Cornwell’s attorney’s representation at the penalty phase was deficient. As
the Supreme Court has stated numerous times, if “counsel ha[ve] not ‘fulfill[ed] their
obligation to conduct a thorough investigation of the defendant’s background,’” then
counsel’s representation is deficient. See, e.g., Wiggins v. Smith, 539 U.S. 510, 522
(2003) (quoting Williams v. Taylor, 529 U.S. 362, 396 (2000)) (second alteration in
Wiggins); see also Dickerson v. Bagley, 453 F.3d 690, 693 (6th Cir. 2006) (“[T]he
Supreme Court . . . has made it clear and come down hard on the point that a thorough
and complete mitigation investigation is absolutely necessary in capital cases.”).
Moreover, as we have explained, “a partial, but ultimately incomplete, mitigation
investigation does not satisfy Strickland’s requirements” for effective counsel.
Dickerson, 453 F.3d at 695; see also Johnson v. Bagley, 544 F.3d 592, 602 (6th Cir.
2008) (“[A]n unreasonably truncated mitigation investigation is not cured simply
because . . . some evidence was placed before the jury.”). As the majority begrudgingly
admits, in a death penalty case, a thorough mitigation investigation requires counsel to
investigate, at the very least, the known medical history of the defendant, including
hospitalizations. Maj. Op. at 9; see also Dickerson, 453 F.3d at 693-94.
No. 06-4322              Cornwell v. Bradshaw                                     Page 26


       It is undisputed that counsel in this case was aware that Cornwell as a thirteen-
year-old teenager was hospitalized for a double mastectomy, but counsel never bothered
to locate those medical records and provide them to Dr. Eisenberg. Under Supreme
Court precedent, this is a blatant violation of counsel’s duty. Dickerson, 453 F.3d at
693-94. Given counsel’s failure to satisfy this straightforward requirement, I am unsure
why the majority believes “[i]t could be argued . . . that a finding that counsel was not
deficient would not be an unreasonable application of clearly established law.” Maj. Op.
at 11. The majority attempts to ameliorate trial counsel’s failure of the mandatory duty
to investigate medical records by asserting that, “trial counsel otherwise did a fairly
thorough investigation.” Maj. Op. at 10. However, as our case law makes clear, an
“otherwise thorough investigation,” id., is not the same thing as the thorough
investigation required by Strickland; counsel are not given a free pass to violate a
specific duty in one area of investigation if they diligently investigate other areas, see
Dickerson, 453 F.3d at 695 (“[A] partial, but ultimately incomplete, mitigation
investigation does not satisfy Strickland’s requirements.”); see also id. (noting that in
Harries v. Bell, 417 F.3d 631 (6th Cir. 2005), this court concluded that counsel’s
performance was deficient when they failed to investigate, among other things, mental
health history, “even though counsel had conducted various interviews of the petitioner’s
family and acquaintances and had sought other information, including two competency
evaluations”). Such a rule would be tantamount to giving a police officer a free pass for
violating his duty not to shoot an unarmed suspect, so long as he complied with all other
duties he owed to that suspect. Therefore, I conclude that Cornwell’s trial counsel was
deficient.

       Second, I cannot agree with the majority’s baseless assertion that Cornwell has
not shown prejudice resulting from trial counsel’s deficiency. To prove prejudice, a
defendant must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 694 (1984). I think that Cornwell has met his
burden on this issue.
No. 06-4322                   Cornwell v. Bradshaw                                                Page 27


         At the penalty phase, Cornwell was portrayed by his family as a fat, lazy person
who took the easy way out of situations, evidenced by his choice to undergo “cosmetic”
surgery instead of working out to lose weight. See, e.g., Joint Appendix (“J.A.”) at 2335,
2348, 2349 (Penalty Phase Tr. 5/21/97 at 73, 80, 87) (testimony of LaShonda Cornwell
that “[Cornwell] was lazy, you know,” that “[Cornwell] was still like lazy,” even after
his surgery, and that “it was like [Cornwell] took his lazy time to do stuff”); J.A. at 2412
(Penalty Phase Tr. 5/21/97 at 150) (testimony of Beverly Cornwell Terry repeatedly
referring to Cornwell’s surgery as “cosmetic”). No one utilized and emphasized this
image more than the prosecutor. At closing argument, the prosecutor stated: “Did
[Cornwell] work out with weights, run, watch what you eat, what all the rest of us have
to try and do? No, he went for liposuction. He had a fat reduction. For God’s sake,
[Cornwell]’s lazy.” J.A. at 2542 (Penalty Phase Tr. 5/21/97 at 274).

         Had Cornwell’s medical records been given to Dr. Eisenberg, the expert hired
to aid Cornwell’s mitigation case, he likely would have realized that Cornwell may be
suffering from Klinefelter Syndrome, a genetic disorder that causes weight gain,
enlarged breasts, language issues, and underdeveloped genitals.1 The fact that the post-
conviction expert, Dr. Haskins, a forensic psychologist just like Dr. Eisenberg, realized
this possibility after reviewing the medical records indicates a strong likelihood that Dr.
Eisenberg would have reached this realization. With this knowledge, Dr. Eisenberg
could have corrected the image of Cornwell being portrayed by informing the jury that
Klinefelter Syndrome was the likely cause of Cornwell’s various problems, not laziness.
This information would have allowed the jury to view Cornwell in a much more


         1
            The National Institute of Child Health and Human Development (“Institute”), an organization
created by Congress in 1962 to investigate human development throughout the entire life process, states
that “Klinefelter syndrome, also known as the XXY condition, is a term used to describe males who have
an extra X chromosome in most of their cells. Instead of having the usual XY chromosome pattern that
most males have, these men have an XXY pattern.” National Institute of Child Health and Human
Development, Klinefelter Syndrome, http://www.nichd.nih.gov/health/topics/klinefelter_syndrome.cfm
(last visited March 6, 2009). The Institute also notes that, “[a]s XXY males enter puberty, they often don’t
make as much testosterone as other boys. This can lead to a taller, less muscular body, less facial and body
hair, and broader hips than other boys. As teens, XXY males may have larger breasts, weaker bones, and
a lower energy level than other boys.” Id. Such boys can also have “some kind of language problem, such
as learning to talk late, trouble using language to express thoughts and needs, problems reading, and
trouble processing what they hear.” Id. Although XXY boys tend to be “quieter, less self-confident, less
active, and more helpful and obedient than other boys,” during adolescence, “XXY males . . . may struggle
in school and sports, meaning they may have more trouble ‘fitting in’ with other kids.” Id.
No. 06-4322                   Cornwell v. Bradshaw                                                 Page 28


sympathetic light–not as a teenager who had been lazy and taken the easy road in his
life, but as a teenager who suffered the burdens of a genetic disease that he could not
control and for which he never received a diagnosis, let alone treatment. Furthermore,
evidence of Klinefelter Syndrome would reduce Cornwell’s blameworthiness in a way
that the weight-related evidence alone did not. Because this genetic-disorder image
creates “a mitigation case that bears no relation to” the case of laziness presented,
Rompilla v. Beard, 545 U.S. 374, 393 (2005), I believe that Cornwell has met his burden
of showing prejudice.

         The majority contends that “[t]he state courts could reasonably reject an
assumption that jurors blame teenagers for their own weight problems and somehow
consider those who are overweight or lazy or have cosmetic surgery more deserving of
the death penalty than those who are thin or energetic or have surgery related to medical
conditions.” Maj. Op. at 12. I find this reasoning odd, given the fact that the prosecutor
in this case—a person who likely has significant experience and expertise in regard to
what persuades juries—appeared to assume that the jury would be heavily swayed by
this fact. Why else would the prosecutor emphasize the issue so conspicuously in his
closing argument?2

         Because I believe that the jury, as the prosecution hoped, likely viewed Cornwell
less sympathetically and placed more culpability on Cornwell than it would have had he
not been portrayed as overweight and lazy, I cannot accept the majority’s rationale on
this issue. Looking at the case as a whole,


         2
            I agree with the majority that “[o]ur system of justice finds its foundation in the belief that
average citizens can and will weigh all the evidence presented to them, follow the law, and reach a well-
reasoned verdict.” Maj. Op. at 12. (emphasis added). However, this very idea presumes that a jury is
given all the evidence needed to reach a well-reasoned verdict; before one can even begin to talk about
whether a jury verdict is well-reasoned, one must first review the evidence presented to the jury. It is this
threshold inquiry that we are confronted with in this case: Whether the jury was given all the information
it needed to reach a well-reasoned verdict. The answer to this question, in my opinion, is no. Thus, I do
not find fault with the jury, but rather I find fault with the wholly inadequate mitigation case that was
presented to the jury. To suggest that such a conclusion is “at odds with the guarantees of the Sixth
Amendment and the underlying principles of our judicial system,” id. at 12-13, necessarily implies that
all jurists who order new trials based on a failure to present proper evidence to the jury are at odds with
the Sixth Amendment. If there is any distrust in this arena, it is a distrust of verdicts rendered by juries
who, through fault of counsel or judges, have not been given all the necessary and proper information to
weigh in order to reach a verdict. This is a distrust that does not offend the principles of our judicial
system, but rather protects those vital principles.
No. 06-4322              Cornwell v. Bradshaw                                     Page 29


       although [I] suppose it is possible that a jury could have heard [all the
       evidence] and still have decided on the death penalty, that is not the test.
       It goes without saying that the undiscovered mitigating evidence, taken
       as a whole, might well have influenced the jury’s appraisal of
       [Cornwell’s] culpability, and the likelihood of a different result if the
       evidence had gone in is sufficient to undermine confidence in the
       outcome actually reached at sentencing.
Rompilla, 545 U.S. at 393 (emphasis added) (internal quotation marks and citations
omitted). Therefore, I would hold that Cornwell has proven his claim of ineffective
assistance of counsel and that the state-court decision to the contrary was objectively
unreasonable. I would reverse the district court’s denial of habeas relief.

       Furthermore, I would hold that the district court abused its discretion by denying
Cornwell’s motion for a genetic expert. A request for an expert is a discovery request;
thus a district court’s denial of a motion for appointment of an expert is reviewed for
abuse of discretion. Lott v. Coyle, 261 F.3d 594, 602 (6th Cir. 2001). “A district court
may, in the context of a habeas proceeding, permit discovery, provided that the habeas
petitioner presents specific allegations showing reason to believe that the facts, if fully
developed, may lead the district court to believe that federal habeas relief is
appropriate.” Id.

       As explained above, I believe that a diagnosis of Klinefelter Syndrome would
have a reasonable probability of affecting the outcome of the penalty phase and
rendering the state-court finding of no prejudice objectively unreasonable because (1)
having a genetic disorder is itself a strong mitigator and was a subject not addressed at
the penalty phase, (2) a mitigation case centered on a genetic disorder, as opposed to an
overweight individual who is lazy by nature, would induce much more sympathy from
the jury, and (3) Klinefelter Syndrome could indeed reduce Cornwell’s blameworthiness,
something that the weight-based evidence did not accomplish. Thus, Cornwell has met
his burden of showing that “the facts, if fully developed, may lead the district court to
believe that federal habeas relief is appropriate.” Id. Therefore, I would hold, at the
very least, that Cornwell is entitled to a genetic expert to determine whether he has
No. 06-4322              Cornwell v. Bradshaw                                   Page 30


Klinefelter Syndrome and that the district court abused its discretion by holding to the
contrary. I respectfully dissent.
