                             RECOMMENDED FOR FULL-TEXT PUBLICATION
                                  Pursuant to Sixth Circuit Rule 206
                                         File Name: 06a0237p.06

                      UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT
                                       _________________


                                                     X
                             Petitioner-Appellant, -
 KEVIN KEITH,
                                                      -
                                                      -
                                                      -
                                                          No. 01-4266
          v.
                                                      ,
                                                       >
 BETTY MITCHELL, Warden,                              -
                             Respondent-Appellee. -
                                                     N
                      Appeal from the United States District Court
                     for the Northern District of Ohio at Cleveland.
                  No. 99-00657—Peter C. Economus, District Judge.
                                        Argued: July 20, 2005
                                  Decided and Filed: July 10, 2006
            Before: BOGGS, Chief Judge; and CLAY and GIBBONS, Circuit Judges.
                                         _________________
                                              COUNSEL
ARGUED: Harry R. Reinhart, REINHART LAW OFFICE, Columbus, Ohio, for Appellant. Daniel
R. Ranke, OFFICE OF THE ATTORNEY GENERAL, Cleveland, Ohio, for Appellee. ON BRIEF:
Harry R. Reinhart, REINHART LAW OFFICE, Columbus, Ohio, Carol Wright, Columbus, Ohio,
for Appellant. Daniel R. Ranke, OFFICE OF THE ATTORNEY GENERAL, Cleveland, Ohio, for
Appellee.
         BOGGS, C. J., delivered the opinion of the court, in which GIBBONS, J., joined. CLAY,
J. (pp. 14-23), delivered a separate opinion concurring in part and dissenting in part.
                                         _________________
                                             OPINION
                                         _________________
        BOGGS, Chief Judge. Kevin Keith appeals the district court’s order denying his petition for
a writ of habeas corpus filed under 28 U.S.C. § 2254. Six claims were certified for appeal. Three
claims concern ineffective assistance of trial counsel: (1) failure to properly investigate and present
mitigation evidence; (2) failure to object to the court’s removal of “scrupled jurors” during voir dire;
and (3) failure to conduct meaningful voir dire. Two claims concern the trial court’s actions:
(4) removing scrupled jurors without attempting to rehabilitate them; and (5) failure to inquire into
Keith’s reasons for filing an affidavit of indigency. The final claim (6) is that the cumulative effects
of the above errors deprived Keith of his rights to effective assistance of counsel, a fair trial, and fair
sentencing. Finding no prejudicial error in the proceedings below, we affirm the denial of Keith’s
petition for habeas corpus.

                                                    1
No. 01-4266           Keith v. Mitchell, et al.                                                Page 2


                                                  I
        Keith filed his habeas corpus petition in September 1999, well after the 1996 effective date
of the Antiterrorism and Effective Death Penalty Act (“AEDPA”); therefore, the provisions of that
Act apply to this case. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Frazier v. Huffman, 343
F.3d 780, 787 (6th Cir. 2003), opinion altered on denial of reh’g, 348 F.3d 174 (2003), cert. denied,
541 U.S. 1095 (2004). The Ohio Supreme Court determined the facts that are quoted below, on
direct appeal. Under AEDPA, “[i]n a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual
issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). Also, Keith
does not contest any of these factual findings.
               Appellant, Kevin Keith, appeals from his convictions and sentence to death
       for the aggravated murders of Marichell Chatman, Linda Chatman, and Marchae
       Chatman and his convictions for the attempted aggravated murders of Quanita
       Reeves, Quinton Reeves, and Richard Warren.
               On the evening of February 13, 1994, Marichell Chatman, her seven-year-old
       daughter, Marchae, and Richard Warren, who had been living with Marichell and
       Marchae for several weeks, were at Marichell’s apartment in the Bucyrus Estates.
       At the time, Marichell was babysitting her young cousins, Quanita and Quinton
       Reeves. At approximately 8:45 p.m., Marichell’s aunt, Linda Chatman, arrived at
       the apartment to pick up Quanita and Quinton, Linda’s niece and nephew.
               A few minutes after Linda arrived, Warren, momentarily diverted from a
       basketball game he was watching on television, noticed a man standing outside the
       apartment door. Although the man began to walk away without knocking, Warren
       opened the door. The man turned and asked for Linda.
               While Linda went outside and spoke with the man, Marichell told Warren the
       man’s full name. Although Warren could recall only the first name, Kevin, he later
       identified appellant as the man at the door. Marichell also mentioned that Kevin had
       been involved in a big drug bust.
               After a short time, Linda and appellant returned to the apartment, where
       appellant and Warren had a brief conversation. According to Warren, appellant
       appeared to have his turtleneck shirt pulled up over the bottom part of his face and
       even drank a glass of water through it.
               After drinking the glass of water, appellant pulled a nine-millimeter handgun
       from a plastic bag he carried and ordered everyone to lie on the floor. Appellant
       repeatedly scolded Marichell for using his first name when she asked what he was
       doing and why. Despite Marichell’s pleas with appellant on behalf of the children,
       appellant placed the gun to her head. After ordering Marichell to be quiet, appellant
       said, “Well, you should have thought about this before your brother started ratting
       on people.” Marichell responded, “Well, my brother didn’t rat on anybody and even
       if he did, we didn’t have anything to do with it.” Testimony at trial confirmed that
       Marichell’s brother, Rudel Chatman, was a police informant in a drug investigation
       involving appellant. According to the presentence report, the month prior to the
       murders, appellant was charged with several counts of aggravated trafficking.
               Next, Warren heard a gunshot but was forced to turn away when a bullet
       struck him in the jaw. Warren heard ten to twelve additional shots, two more striking
       him in the back. After he heard the apartment door close, Warren ran out of the
       apartment, across a snow-covered field to Ike’s Restaurant, yelling for help. Four
       or five more shots were fired, one striking him in the buttocks and knocking him
       down. Warren was able to get up and obtain help from the restaurant.
               Another Bucyrus Estates resident, Nancy Smathers, heard several popping
       noises at approximately 9:00 p.m. As she looked out her front door, Smathers saw
No. 01-4266         Keith v. Mitchell, et al.                                                  Page 3


      a large, stocky black man run to the parking lot and get into a light-colored,
      medium-sized car. As the car sped away, it slid on the icy driveway and into a
      snowbank. When the driver got out of the car, Smathers noticed that the car’s dome
      light and the light around the license plate did not work. The driver rocked the car
      back and forth for nearly five minutes before he was able to free the car from the
      snowbank. Several weeks later, Smathers informed Bucyrus Police Captain Michael
      Corwin that, after seeing appellant on television, she was ninety percent sure
      appellant was the man she had seen that night.
              When medical personnel arrived at the Bucyrus Estates apartment, Linda and
      Marichell Chatman were dead, having suffered multiple gunshot wounds, including
      fatal wounds to the neck or head. All three children initially survived the attack.
      However, Marchae’s two gunshot wounds to her back proved fatal. The Reeves
      children each sustained two bullet wounds and serious injuries.
              Approximately eight hours after the shootings, Warren was recovering from
      surgery at a Columbus hospital. During a postoperative interview with a nurse,
      Warren wrote “Kevin” on a piece of paper as the name of his assailant. Later that
      day, Bucyrus Police Captain John Stanley had two telephone conversations with
      Warren. During the second conversation, Stanley mentioned three or four possible
      last names for Kevin. At trial, Stanley could only recall that he mentioned the names
      Kevin Thomas and Kevin Keith. Warren stated that he was seventy-five percent sure
      the name he heard from Marichell was Kevin Keith. When shown a photo array of
      six suspects, Warren chose appellant’s picture and told police he was ninety-five
      percent sure that appellant was the murderer.
              Investigators recovered a total of twenty-four cartridge casings from the
      crime scene area, which had all been fired from the same gun. In addition to those,
      investigators recovered a casing found on the sidewalk across from the entrance to
      a General Electric plant. On the night of the murders, appellant picked up his
      girlfriend, Melanie Davison, from work at the entrance to the General Electric plant
      where the casing was found.
              At the snowbank where Smathers witnessed the getaway car slide,
      investigators made a cast of the tire tread and of the indentation in the snowbank
      made by the car’s front license plate number—“043.” The indentation from the
      license plate matched the last three numbers of a 1982 Oldsmobile Omega seized
      from Melanie Davison shortly after she visited appellant in jail, under the pseudonym
      of Sherry Brown, a few weeks after the murders.
              The Oldsmobile was registered to Alton Davison, Melanie’s grandfather, and
      was also regularly used by Melanie. Davison had put four new tires on the Omega
      six months prior to the murders. Davison estimated that by February 1994, the new
      tires had been driven less than 3,000 miles without any problems or need for
      replacement. Although the cast taken of the tire tread at the crime scene did not
      match tires found on the Oldsmobile Omega one month later, the cast did match the
      tread of the tires purchased by Alton Davison as shown on the tire’s sales brochures.
      Additionally, the tires found on the Oldsmobile Omega had been manufactured in
      January 1994 and showed a minimal amount of wear.
              The grand jury indicted appellant on three counts of aggravated murder, each
      carrying a specification that the murder was committed as part of a course of conduct
      involving the killing of two or more persons. R.C. 2929.04(A)(5). Appellant was
      also indicted on three counts of attempted aggravated murder. R.C. 2923.02.
              After a two-week trial, a jury found appellant guilty of all counts. Following
      the verdict, defense counsel requested a presentence investigation and a
      postconviction sanity hearing. During the penalty phase of the trial, defense counsel
      waived both opening and closing statements. The court submitted, without
      objection, the presentence investigation report and the results of the psychological
No. 01-4266           Keith v. Mitchell, et al.                                                Page 4


       examination to the jury. The jury recommended and the trial court imposed a death
       sentence for each of the aggravated murder counts. The court of appeals affirmed
       the convictions and the sentence.
State v. Keith, 684 N.E.2d 47, 52-54 (Ohio 1997).
        The Ohio Third District Court of Appeals affirmed the conviction and sentence in an
unpublished opinion. State v. Keith, No. 3-94-14, 1996 WL 156710 and 156716 (Ohio Ct. App.
Apr. 5, 1996). The Ohio Supreme Court also affirmed, State v. Keith, 684 N.E.2d at 69, and the
United States Supreme Court denied Keith’s petition for a writ of certiorari. Keith next filed a
petition for post-conviction relief, which was dismissed by the trial court without a hearing. The
denial was affirmed by both the Third District Court of Appeals, State v. Keith, No. 3-98-05, 1998
WL 487044 (Ohio Ct. App. Aug. 19, 1998), and the Ohio Supreme Court. State v. Keith, 703
N.E.2d 326 (Ohio Dec. 23, 1998) (Table). The Ohio Supreme Court also denied Keith’s motion for
reconsideration. State v. Keith, 705 N.E.2d 368 (Ohio Feb. 3, 1999) (Table). Again, the United
States Supreme Court denied certiorari.
         Keith filed his petition for a writ of habeas corpus on September 3, 1999, presenting eight
grounds for relief. In an amendment to his petition, Keith withdrew part of his eighth ground for
relief, but added grounds nine and ten. After finding several of Keith’s issues or subissues either
procedurally defaulted or waived, the district court addressed the remainder on the merits but
determined that none warranted federal habeas corpus relief. Accordingly, the district court denied
the § 2254 petition in June 2001. Keith’s motion to alter or amend the judgment was denied on
October 17, 2001. After Keith filed a Notice of Appeal and Notice of Intent to Seek a Certificate
of Appealability, this panel remanded the case with instructions to the district court to consider the
issues raised in the Certificate of Appealability (“COA”). In March 2003, the district court granted
a COA on three issues (failure to inquire into affidavit of indigency, counsel’s decision to present
presentence report and psychological evaluation to jury, and counsel’s cumulative errors). The
panel then granted a COA on three additional claims (exclusion of scrupled jurors, counsel’s failure
to object to exclusion of scrupled jurors, and counsel’s failure to conduct meaningful voir dire).
                                                  II
         This court reviews the district court’s conclusions of law and mixed questions of law and fact
de novo, and reviews its findings of fact for clear error. Bugh v. Mitchell, 329 F.3d 496, 500 (6th
Cir.), cert. denied, 540 U.S. 930 (2003). The deferential AEDPA standards of review apply in this
case. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). Under AEDPA, a writ of habeas corpus
must be denied unless the state court decision (1) “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) “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceedings.” 28 U.S.C. § 2254(d)(1)-(2).
        Under the “contrary to” clause, a federal court may grant habeas relief if the state court
arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the
state court decides a case differently than the Supreme Court has decided on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); Bugh, 329 F.3d at 501.
“‘[C]learly established Federal law, as determined by the Supreme Court of the United States,’ refers
to ‘the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the
relevant state-court decision.’” Williams v. Bagley, 380 F.3d 932, 942 (6th Cir. 2004) (quoting
Williams, 529 U.S. at 412).
        Under the “unreasonable application” clause, a federal court may grant habeas relief if the
state court identifies the correct governing legal principle from the Supreme Court’s decisions but
No. 01-4266            Keith v. Mitchell, et al.                                                  Page 5


unreasonably applies that principle to the facts. Williams, 529 U.S. at 407-08; Bugh, 329 F.3d at
501. Relief is also available under this clause if the state court decision either unreasonably extends
or unreasonably refuses to extend a legal principle from the Supreme Court precedent to a new
context. Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir.), cert. denied, 540 U.S. 1004 (2003). The
proper inquiry for the “unreasonable application” analysis is whether the state court decision was
objectively unreasonable and not simply erroneous or incorrect. Williams, 529 U.S. at 409-11;
Mitchell v. Mason, 325 F.3d 732, 738 (6th Cir. 2003), cert. denied, 543 U.S. 1080 (2005).
        Keith raises six claims: (1) ineffective assistance of counsel at the sentencing phase; (2) the
trial court erred by removing scrupled jurors during voir dire; (3) ineffective assistance of counsel
during voir dire; (4) ineffective assistance of counsel for failing to object to the trial court’s removal
of scrupled jurors during voir dire; (5) failure to inquire into Keith’s reasons for filing an affidavit
of indigency; and (6) the cumulative effects of the above errors and omissions deprived Keith of his
rights to effective assistance of counsel, a fair trial, and fair sentencing.
              A. Ineffective Assistance of Counsel During the Sentencing Phase
        Keith first argues that trial counsel rendered constitutionally ineffective assistance at the
sentencing phase by (1) failing to conduct any mitigation investigation or defense; (2) requesting
and permitting to be submitted to the jury a post-conviction psychological evaluation and a
presentence report (“PSR”), both of which contained potentially damaging information; (3) failing
to secure the services of a mitigation expert; and (4) failing to discuss mitigation with Keith before
waiving the presentation of mitigation evidence.
        Constitutionally ineffective assistance of counsel exists when “counsel’s conduct so
undermine[s] the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). Claims of
ineffective assistance of counsel at sentencing are analyzed under the Strickland standard. See
Darden v. Wainwright, 477 U.S. 168, 184 (1986). In order to demonstrate ineffective assistance,
the petitioner must show that: (1) counsel’s performance was deficient, and (2) the deficient
performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland, 466
U.S. at 687. Petitioner must prevail on both requirements, and the court may analyze the
requirements separately and in any order. Id. at 697. Because this case is governed by AEDPA’s
standard of review, only Supreme Court cases already issued at the time of the relevant state court
decision can offer guidance regarding whether counsel’s performance was ineffective. See Lockyer
v. Andrade, 538 U.S. 63, 71-72 (2003); Williams v. Coyle, 260 F.3d 684, 699 (6th Cir. 2001).
1. Failure to conduct mitigation investigation or present mitigating evidence.
        Keith claims that his attorney, Banks, failed to conduct any mitigation investigation. He
presented affidavits from his family that Banks would not speak to them unless they paid him for
his time, and there is no evidence on the record that, other than requesting the psychological report
or PSR, Banks did conduct any investigation. In post-conviction proceedings, Keith presented
affidavits attesting that he had a distant relationship with his attorney and lacked knowledge about
the mitigation phase, that counsel did not interview Keith’s family members, that friends and family
praised his abilities in high school football and his relationship with his daughter and nieces, and that
a forensic and neuropsychological consultant opined that Keith might suffer from a mild brain
impairment. Keith also presented evidence that his mother was a drug addict, that he was mostly
raised by his grandparents, that his grandmother was a convicted murderer, and that his father was
“known to gamble and run the streets.”
      Even assuming that Keith’s counsel was deficient, Keith’s claim fails because he cannot
show prejudice under Strickland. The case against Keith was strong. He committed multiple
No. 01-4266           Keith v. Mitchell, et al.                                                Page 6


murders, his victims included children, there was significant evidence of premeditation, and the
murders were for revenge or to silence witnesses. The additional mitigating evidence, even taken
all together and presuming the prosecution would not have been able to rebut or reinterpret any of
it, does not demonstrate that Keith’s life had been so terrible that he was materially less culpable.
In addition, as the state courts noted, much of the so-called additional information was already given
to the jury in the PSR, including descriptions of Keith’s family history and childhood circumstances.
The added suggestion that Keith might have a minor brain dysfunction and additional information
about his disadvantaged childhood would have been insufficient to sway the jury. Therefore, the
Ohio Supreme Court’s conclusion that Keith was not prejudiced by any alleged deficiencies of his
counsel at sentencing is not contrary to or an unreasonable application of federal constitutional law.
        Keith also relies on the recent Supreme Court decision in Rompilla v. Beard, 545 U.S. 374,
125 S. Ct. 2546 (2005). In that case, the Court found ineffective assistance at sentencing because
Rompilla’s attorneys failed to look at a prior conviction file they knew existed, and which they knew
the prosecution was going to use to show aggravating circumstances. The Court did not hold, as
Keith claims in his supplemental memorandum, that “counsel must independently investigate
mitigating evidence in a capital defendant’s background,” but rather that counsel must investigate
evidence it knows the state will use against defendant. 125 S. Ct. at 2468. Here, the State produced
no aggravating evidence beyond that which was brought out in the guilt phase. The entire
sentencing phase consisted of the judge asking both parties if they had any evidence and both
attorneys waiving presentation of evidence. Rompilla does not compel reversal in this case.
2. The psychological report and the PSR.
        Next, Keith asserts that counsel rendered ineffective assistance by permitting the jury to see
the PSR and a psychological evaluation report that contained negative information that was both
new to the jury and otherwise inadmissible. On the one hand, the PSR contained some information
detrimental to Keith, such as victim impact information, information about prior incidents between
Rudel Chatman (the brother of the victim Marichell Chatman) and Keith, and information about
Keith’s non-violent criminal record. On the other hand, the PSR demonstrates that Keith did not
have a history of violence, had maintained employment, and had been progressing well on parole.
Defense counsel could have reasonably concluded that this favorable information made it
worthwhile to admit these reports.
         Keith’s reliance on State v. Huertas, 553 N.E.2d 1058, 1062-63 (Ohio 1990), is misplaced.
In that case, the court reiterated the conclusion of the Supreme Court in South Carolina v. Gathers,
490 U.S. 805, 810 (1989), that the submission of victim impact statements to juries in capital trials
was unconstitutional. That holding has since been explicitly overruled in Payne v. Tennessee, 501
U.S. 808, 827 (1991), which held that the Eighth Amendment is not a per se bar to the submission
of victim impact statements. There is thus no constitutional basis for concluding that the admission
of the victim impact information was per se error.
        As for the psychological report, Keith complains that it was based entirely on the indictment
and a one-hour post-conviction interview during which no psychological tests were conducted. The
report contained details about Keith’s criminal record, his recreational use of marijuana, and his lack
of a personal or family history involving mental illness or alcoholism. But the report also notes that
Keith was pleasant and cooperative, that he did not have trouble with controlling his temper, that
he was able to hold a job, that prior to his arrest he had plans for opening a store, and that he
considered himself likeable and gentle. Again, defense counsel could reasonably have concluded
that this positive information could benefit Keith.
No. 01-4266               Keith v. Mitchell, et al.                                                         Page 7


        Keith then argues that he was prejudiced by errors in the reports. The Ohio Supreme Court
found that counsel’s decision to permit these reports to be submitted to the jury did not meet the
Strickland standard for ineffectiveness or prejudice, stating:
       Although the psychological report and the presentence      investigation report did
       contain some errors, these errors were not prejudicial.1 The trial court corrected the
       minor errors in the presentence investigation report. . . . Additionally the
       psychological report contained some evidence of mitigation, including references to
       appellant’s family background, work history, and personal interests that the jury
       would not have otherwise had available to it.
Keith, 684 N.E.2d at 67 (footnote added). Because these errors were corrected by further
instructions from the trial judge, we cannot say that this conclusion by the Ohio Supreme Court was
unreasonable.
        Given that the reports did contain some mitigating information and given the strength of the
case against him, Keith cannot show that the alleged errors by counsel prejudiced the jury. Thus,
the state court’s rejection of this issue was neither contrary to nor an unreasonable application of
federal constitutional law, nor was it an unreasonable determination of the facts in light of the
evidence presented.
3. Failure to request a mitigation expert.
        Keith also complains that counsel was ineffective by failing to request the assistance of a
mitigation expert. However, he offers no suggestion as to how the services of an expert would have
altered the outcome of the sentencing proceedings. Instead, Keith merely cites the fact that counsel
failed to seek a ruling from the court that he was indigent. The court is not obligated to speculate
about how a mitigation expert might have swayed the jury, especially because the mitigating
evidence Keith now presents is not substantial.
4. Waiver of mitigation.
        Keith claims in an affidavit that he did not know what mitigation was until he arrived in
prison, that his attorney, Banks, never consulted with him, and that, if he had, Keith would have
wanted to present mitigating evidence. This claim fails for lack of prejudice, and because an
otherwise constitutionally ineffective strategy is not a grounds for habeas relief if the client
knowingly directed the strategy. See Coleman v. Mitchell, 268 F.3d 417, 448 (6th Cir. 2001). The
Ohio Supreme Court found that Keith had expressly waived the presentation of mitigating evidence,
Keith, 684 N.E.2d at 67 (“counsel’s failure to present mitigating evidence was not a demonstrably
deficient trial strategy in light of appellant’s decision to waive such a presentation.”), and we have
already determined that trial counsel’s strategy on mitigation does not support habeas relief under
the Strickland standard regardless of Keith’s consent or lack thereof. See supra p. 6.
                                      B. Exclusion of Scrupled Jurors
       Keith’s second claim is that the state trial court erred by excluding all the jurors who
expressed reservations about recommending a sentence of death (“scrupled jurors”) from the venire
without sufficiently inquiring into whether their views would prevent or substantially impair their
proper performance as impartial finders of fact, thus violating his rights under the Sixth and
Fourteenth Amendments. Specifically, Keith objects to the exclusion of three prospective jurors,


       1
           Most of the errors were mistakes on dates, which the judge corrected during jury deliberation.
No. 01-4266               Keith v. Mitchell, et al.                                                           Page 8


Cotsamire, Oberlander, and Hoffman,2 who responded to the court’s question, “In a proper case if
the facts warrant it and the law permits it, could you join in signing a verdict form which might
recommend to the court the imposition of the death penalty?” by expressing some doubt about their
ability to do so.
        Keith contends that further inquiry might have rehabilitated those prospective jurors and that
their dismissal “stacked the deck” in favor of a death sentence. Because the state court’s procedure
was contrary to the Supreme Court’s holdings in Witherspoon v. Illinois, 391 U.S. 510 (1968)
(establishing standards for determining whether prospective jurors may be excluded for cause based
upon their views on capital punishment), and Wainwright v. Witt, 469 U.S. 412 (1985) (same), Keith
argues, the rule in Gray v. Mississippi, 481 U.S. 648, 668 (1987), makes harmless error review
inappropriate for this error. Keith notes that the facts in his case are “reminiscent” of Gray and that
the wrongful exclusion of even a single juror renders a death sentence violative of his constitutional
rights. However, our treatment of this claim is complicated both by the failure of Keith’s trial
counsel to object to the dismissals and the fact that Gray was before the Court on direct, and not
collateral, review. We take careful note that Gray has never been extended to the context of
procedural default of a claim in a petition for habeas corpus. Nor has failure of counsel to lodge a
Gray objection ever been held to constitute automatic ineffectiveness of counsel. Rather, in these
two contexts, other well-developed rules for analysis of prejudice already apply.
        In order for procedural default to apply, (1) there must be a firmly established state
procedural rule that is applicable to the petitioner’s claim and the petitioner must not have complied
with the rule; (2) the last state court to which the petitioner sought review must have invoked the
procedural rule as a basis for its decision to reject review of the federal claims; and (3) the
procedural default must be an “adequate and independent” state ground on which the state can rely
to foreclose review of a federal constitutional claim. Lancaster, 324 F.3d at 436-37; Maupin v.
Smith, 785 F.2d 135, 138-39 (6th Cir. 1986).
        Keith failed to adhere to the firmly-established Ohio contemporaneous objection rule, which
is an independent and adequate state ground that the Ohio Supreme Court invoked as the basis for
its decision to apply plain error review only. Keith, 684 N.E.2d at 55. See Scott v. Mitchell, 209
F.3d 854, 866 (6th Cir. 2000) (recognizing Ohio’s contemporaneous objection rule as an adequate
and independent state ground). Keith’s attorney failed to object to the dismissal of the scrupled
jurors without further inquiry. The Ohio Supreme Court, recognizing this, conducted plain error
review of the issue. The court found no error, and instead deferred to the trial judge’s assessment
of the prospective jurors. Furthermore, the court held that “[e]ven assuming there was error, given
the absence of an objection, the error is not a plain one; that is, the outcome of the trial would not
have clearly been different absent the error.” Keith, 684 N.E.2d at 56. Moreover, the Ohio Supreme
Court’s plain error review does not constitute a waiver of the state’s procedural default rules and
resurrect the issue for Keith. See Cooey v. Coyle, 289 F.3d 882, 897 (6th Cir. 2002); Seymour v.
Walker, 224 F.3d 542, 557 (6th Cir. 2000). Consequently, this issue has been procedurally
defaulted.
       Absent cause and prejudice, a federal court may not reach the merits of claim that has been
procedurally defaulted in state court. Reed v. Farley, 512 U.S. 339, 354-55 (1994). In the habeas
corpus context, absent a miscarriage of justice, the cause and prejudice test is applicable in all cases
where a state prisoner has failed to comply with an independent and adequate state procedural rule,

         2
           Keith also objects to the exclusion of Jaynes and Perkey. However, they were interviewed only as potential
alternate jurors, and no alternate jurors were needed. Keith could not be prejudiced by the erroneous exclusion of
alternate jurors when there is no possibility those jurors could have been called to serve on the jury. See Ross v.
Oklahoma, 487 U.S. 81, 87 (1988) (noting that Gray “is too sweeping to be applied literally” and that there is no error
where a prejudiced juror did not ultimately sit on the jury).
No. 01-4266           Keith v. Mitchell, et al.                                               Page 9


thus causing him to have previously defaulted his federal claims in state court. Coleman v.
Thompson, 501 U.S. 722, 750 (1991) (“In all cases in which a state prisoner has defaulted his federal
claims in state court pursuant to an independent and adequate state procedural rule, federal habeas
review of the claims is barred unless the prisoner can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider
the claims will result in a fundamental miscarriage of justice.”) (emphasis added). Although we find
that the question of cause, i.e., whether counsel’s failure to object was outside the wide range of
reasonableness of trial strategy, may be a close question, see Edwards v. Carpenter, 529 U.S. 446,
451-53 (2000) (ineffective assistance of counsel will suffice to constitute cause), Keith clearly
cannot demonstrate prejudice resulting from his default.
        In light of this difficulty, Keith argues that Gray must be extended to obviate any
requirement for him to demonstrate prejudice resulting from his procedural default. This argument
fails for several reasons. First, Gray has never been so extended, by the United States Supreme
Court or any federal court of appeals. See Brown v. Lambert, 431 F.3d 661, 666 (9th Cir. 2005)
(granting habeas because prejudice is presumed in properly preserved Gray error); Jones v. Dretke,
375 F.3d 352, 356 (5th Cir. 2004) (recognizing the narrow applicability of Gray), cert. denied, 543
U.S. 1060 (2005); Szuchon v. Lehman, 273 F.3d 299, 326–27 (3d Cir. 2001) (considering a
Witherspoon/Gray claim on habeas where the state’s procedural bar was not firmly established);
Gall v. Parker, 231 F.3d 265, 332 (6th Cir. 2000) (granting a conditional writ of habeas corpus and
noting that Gray error is not subject to harmless error analysis where the claim was not procedurally
defaulted); United States v. Simmons, 961 F.2d 183, 185 & n.1 (11th Cir. 1992) (distinguishing Gray
and applying plain error review to a procedurally defaulted claim that jurors were impartial), cert.
denied, 507 U.S. 989 (1993). See also Payne v. Tennessee, 501 U.S. 808, 852 n.2 (1991) (Marshall,
J., dissenting) (placing Gray on an “endangered precedents” list). Given these facts, the Ohio
Supreme Court can hardly be labeled as unreasonable under AEDPA for failing to do so.
        Keith argues that our decision in Hughes v. United States, 258 F.3d 453, 463 (6th Cir. 2001),
where we presumed prejudice when a clearly biased juror was seated on a jury, should, by analogy,
apply here as well. In Hughes, the petitioner stole property, including a gun, from a Deputy United
States Marshal. Id. at 455. During voir dire, a juror who was eventually seated, when asked if she
could be fair to the defendant, answered “No.” Id. at 456. Clearly, Keith’s situation is not
analogous to Hughes—not seating the scrupled jurors here tells us nothing about the jurors who
were in fact chosen. Seating a juror who has clearly stated her partiality is not analogous to the
rejection of jurors who may be impartial. Thus, Hughes does not support Keith’s argument for an
extension of Gray.
        Most importantly, we find that an extension of Gray requiring automatic reversal of state
court decisions through habeas corpus petitions ignores fundamental differences between direct and
collateral review in our system of dual sovereigns. The Gray plurality was speaking in a context
where the alleged error was before the trial judge and the structural error was sought to be corrected
through direct review. The procedural disposition of Keith’s claim makes Gray inapplicable. The
argument for extension of Gray is weakened, not because the issue is any less important, but because
considerations of federalism and respect for the state trial process demand that it be so. “The
procedural default doctrine and its attendant ‘cause and prejudice’ standard are ‘grounded in
concerns of comity and federalism,’ and apply alike whether the default in question occurred at trial,
on appeal, or on state collateral attack.” Edwards v. Carpenter, 529 U.S. at 451 (citations omitted).
When a federal court vacates the judgment of a state trial court, a showing of actual prejudice is
required to insure that defaulted claims are considered only when they will have made a difference.
       When we consider all of the circumstances of this case: the equivocal nature of the
responses of the scrupled jurors on voir dire, the government’s surplus of unused peremptories, the
lack of a pattern of removing all scrupled jurors, and the highly prejudicial circumstances
No. 01-4266            Keith v. Mitchell, et al.                                                  Page 10


surrounding this execution-style multiple murder, we conclude that the district court did not clearly
err in finding as a matter of fact that there was no prejudice here sufficient to undermine a belief in
the fairness of the trial. See Keith v. Mitchell, No. 99-657, slip op. at 17, 43 (N.D. Ohio June 14,
2001). Thus, Keith’s procedural default cannot be excused, and the exclusion of the scrupled jurors
cannot be examined on the merits. We conclude that Keith’s challenge to the exclusion of the
scrupled jurors is barred from federal habeas review by his procedural default of the issue in the state
courts.
         Finally, we note that this is not “an extraordinary case, where a constitutional violation has
probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S.
478, 496 (1986). Keith does not claim that he is actually innocent. The aggravating circumstances
in this case were extremely compelling and, even assuming constitutional error, the exclusion of the
scrupled jurors did not so unfairly affect the proceedings as to result in the improper imposition of
the death penalty. Moreover, the Ohio Supreme Court’s independent review of the case mirrored
the jury’s finding that the aggravating circumstances clearly outweighed any mitigating
circumstances and warranted the death penalty. See Keith, 684 N.E.2d at 68-70; see also Stanford
v. Parker, 266 F.3d 442, 455 (6th Cir. 2001) (“As is required pursuant to Ky. Rev. Stat. Ann.
§ 532.075, the Kentucky Supreme Court reviewed Stanford’s death sentence on direct appeal and
determined that the death sentence was supported by the evidence, i.e., the balance of aggravating
and mitigating circumstances warranted death. [citation omitted] Stanford’s trial was fundamentally
fair and counsel’s failure to life-qualify the jury did not undermine the reliability of and confidence
in the result.”).
                      C. Ineffective Assistance of Counsel During Voir Dire
         Keith raises his counsel’s failure to object to the exclusion of the scrupled jurors in a second
context. He claims that counsel’s failure constituted ineffective assistance of counsel and that this
denied him his constitutional right to a fair trial. This issue was preserved below, and was addressed
by the state courts and the federal district court on its merits. Here, our standard is the familiar
Strickland standard; that the deficient performance of counsel prejudiced the defendant and deprived
him of a fair trial. See 466 U.S. at 687. For the reasons set out above and expanded on below, we
affirm the district court’s decision that the rulings of the Ohio Supreme Court did not warrant habeas
relief, under the standards of AEDPA.
         Keith alleges that trial counsel rendered ineffective assistance by 1) failing to conduct
meaningful voir dire generally, and 2) failing to object to the state trial court’s action removing
scrupled jurors for cause, the same grounds we considered above. See supra Part II.B. He argues
that his counsel should have objected to the trial judge’s removal of some of the scrupled jurors and
that his counsel did not adequately question jurors to insure an impartial jury.
         Counsel, like the trial court, is granted “particular deference” when conducting voir dire.
Hughes v. United States, 258 F.3d 453, 457 (6th Cir. 2001). “‘An attorney’s actions during voir dire
are considered to be matters of trial strategy . . . . A strategic decision cannot be the basis for a claim
of ineffective assistance unless counsel’s decision is shown to be so ill-chosen that it permeates the
entire trial with obvious unfairness.’” Miller v. Webb, 385 F.3d 666, 672-73 (6th Cir. 2004) (quoting
Hughes, 258 F.3d at 457). Nonetheless, “[d]espite this strong presumption that counsel’s decisions
are based on sound trial strategy, . . . ‘[t]he trial strategy itself must be objectively reasonable.’”
Miller, 385 F.3d at 673 (quoting Miller v. Francis, 269 F.3d 609, 616 (6th Cir. 2001)).
1. Failure to conduct meaningful voir dire.
       Keith complains that his counsel’s repeated questions about jurors’ religious beliefs was
“seriously unprofessional.” We believe, however, that read in context of the entire voir dire, Keith’s
No. 01-4266           Keith v. Mitchell, et al.                                                Page 11


counsel does appear to have been pursuing a consistent and reasonable strategy. As in Stanford, 266
F.3d at 454–55, it is apparent that trial counsel’s conduct during voir dire in Keith’s proceeding did
not “permeate[] the entire trial with obvious unfairness.” Miller, 385 F.3d at 673. Defense counsel
exercised peremptory challenges against those prospective jurors who expressed particularly strong
religious beliefs. For instance, defense counsel inquired into a subsequently excused juror’s
religious beliefs by asking how long he had been Catholic. When the juror responded, “All my life,”
defense counsel may reasonably have felt that this indicated a more socially and politically
conservative juror who would be less hesitant to impose the death penalty. Defense counsel was
also quite active during voir dire, and exercised his entire initial allotment of peremptory challenges.
In fact, he twice requested additional peremptory challenges. Thus it was not unreasonable for the
Ohio Supreme Court to determine that defense counsel was pursuing an objectively reasonable voir
dire strategy that he believed would empanel the best possible jury. 684 N.E.2d at 55.
        Even if we assume counsel’s voir dire strategy to be objectively unreasonable, Keith must
still demonstrate prejudice to prevail on his ineffective assistance of counsel claim. In other words,
he must show that counsel’s failure to conduct more comprehensive voir dire substantially
undermined the fairness of the trial. This court has previously shown deference to counsel’s conduct
of voir dire in light of trial counsel’s failure to ask specific questions:
                Under Strickland’s prejudice prong, Stanford’s counsel’s failure to ask life-
       qualifying questions during general voir dire did not constitute ineffective assistance
       of counsel. First, there is no evidence that any potential jurors were inclined to
       always sentence a capital defendant to death. Second, nothing in the record indicates
       that counsel’s failure to ask life-qualifying questions led to the impanelment of a
       partial jury. Third, considering the totality of the evidence, there is no reasonable
       probability that, even if defense counsel erred, the sentencer would have concluded
       that the balance of aggravating and mitigating circumstances did not warrant death.
       See Strickland, 466 U.S. at 695. . . . Stanford’s trial was fundamentally fair and
       counsel’s failure to life-qualify the jury did not undermine the reliability of and
       confidence in the result.
Stanford, 266 F.3d at 455.
        Keith has not shown what our precedents require: “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different,” where a
reasonable probability “is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. 694. Instead, he relies on Gray’s presumption of prejudice—labeling Banks’s
voir dire “not meaningful” and failing to offer any alternative. We are satisfied that even Keith’s
hypothetical jury, selected through a different set of questions, when seated, would also have
imposed the death penalty in this case. Given the extremely brutal and callous circumstances of
these multiple murders, the district court did not err in finding that there was not a “reasonable
probability” of a difference in outcome based simply on the possible seating of one or more of these
scrupled jurors.
2. Failure to object to the removal of the scrupled jurors.
        Keith argues that his counsel specifically erred by failing to object to the trial judge’s
removal of the three scrupled jurors. The argument supporting this point merely repeats those made
in the claim that the trial judge should not have excluded three of the scrupled jurors.
        First, as discussed above in Part II.C.1, there is little indication that defense counsel was
constitutionally ineffective during voir dire. Like the court, Keith’s defense counsel observed the
demeanor of the potential jurors and had access to additional information from each of their
No. 01-4266            Keith v. Mitchell, et al.                                                    Page 12


questionnaires. He actively questioned all the prospective jurors. The fact that one prospective
juror, whom Banks felt had expressed hesitation about the death penalty, was eventually placed on
the jury demonstrates that Banks’s performance was not objectively unreasonable. Juror Candice
Bores responded to the trial judge’s question of whether she could join in recommending the death
penalty by stating that she could only if she “was totally sure and had no doubts.” The record
reflects the court’s recognition of her continuing hesitation during follow-up questions. Bores’s
selection undermines Keith’s argument that any other impartial jury would have reached a different
result.
        In addition, Keith cannot show Strickland prejudice from his counsel’s failure to object. In
the absence of any evidence that a different set of unbiased jurors would have had a “reasonable
probability” of a different result, any erroneous exclusion of an impartial juror was harmless because
we have every reason to believe the replacement was also an impartial juror. Keith does not dispute
that he was convicted and sentenced by an impartial jury, and he presents no reason to think that a
jury composed of a slightly different set of impartial jurors would have reached a different verdict
or sentence.
                                    D. The Affidavit of Indigency
        Keith next complains that his rights to counsel and due process were violated when the state
trial court failed to make sufficient inquiry on the record regarding his filing of an affidavit of
indigency and request for appointed counsel, thereby forcing Keith to trial without the effective
assistance of counsel. He argues that his inability to pay counsel the fees demanded adversely
affected counsel’s representation of him. He further argues that his affidavit of indigency alone,
filed three weeks after arraignment and two months before trial, was sufficient to trigger a duty on
the part of the trial court to inquire as to his financial status and his satisfaction, or lack thereof, with
his retained counsel.
         Keith retained Banks as his attorney prior to his arraignment. Three weeks later, Keith
decided or realized that he would be unable to pay Banks’s fee, and he filed an affidavit of
indigency. Contrary to the claims of Petitioner, the affidavit did not ask for appointment of counsel.
It read,
        I, Kevin Keith . . . , affiant herein . . . , does hereby depose and say: That I am
        without the necessary funds with which to pay for the costs of an Attorney and that
        I am without any possession, real or personal of sufficient value . . . with which to
        offer as security for such costs, and that I am a true indigent and pauper within the
        meaning of the law.
There was no record of a pretrial inquiry into Keith’s affidavit, but in a post-trial Judgment Entry,
the trial court judge stated:
        Why wasn’t there any action taken on Kevin Keith’s affidavit of indigency which he
        filed with the Court? It was explained that this affidavit of indigency and request for
        appointment of counsel was filed without the knowledge of Defendant’s attorney,
        James Banks. In fact there is some question as to whether or not Kevin Keith
        actually signed this affidavit as he was incarcerated and the notary was interviewed
        and claimed that she did not notarize this for Kevin Keith. Mr. Banks also indicated
        that if the Defendant backed out of his fee arrangement he would pursue this matter
        at no cost to the county because he felt it was his obligation. The Court recalled
        specifically asking the Defendant i[f] he agreed to proceed with his attorney and he
        offered no objection. As the Court explained to the appellate attorneys, it does not
        recall whether or not this was on the record during any of the proceedings, however,
No. 01-4266           Keith v. Mitchell, et al.                                                 Page 13


        this Court specifically remembers the look on Defendant’s face when the Court
        asked him the question.
The Ohio Supreme Court considered and rejected this asserted error on direct appeal, noting that the
affidavit itself expressed no dissatisfaction with Banks’s representation, but merely stated that Keith
was without sufficient funds to pay counsel. Keith, 684 N.E.2d at 58-59. Once Banks agreed to
waive his fee if necessary, that problem was eliminated.
         This claim is not cognizable on habeas because Keith relies upon state procedural rules and
state case law to support his assertion that the state trial court should have, upon receiving the
affidavit, inquired into his satisfaction with his attorney. Baze v. Parker, 371 F.3d 310, 322 (6th Cir.
2004), cert. denied, 531 U.S. 1157 (2005), (an issue raising solely a violation of state law or
procedure is not cognizable under § 2254); Anderson v. Harless, 459 U.S. 4, 6 (1982) (federal claim
must have been adequately presented to the state courts). The federal cases Keith cites are, as the
district court observed, “marginally relevant” and require, at a minimum, that the defendant must
show some dissatisfaction with his attorney’s performance in order to trigger the inquiry Keith
wants. United States v. Iles, 906 F.2d 1122, 1131 (6th Cir. 1990) (“We affirm the general principle
that a district court usually must engage a defendant in person where he has expressed dissatisfaction
with counsel and has sought to have him removed. In this case, however, the defendant never
indicated that this was necessary. We think it clear that at a minimum ‘the defendant must show his
hand. . . .’ Since the district court was not put on notice that Iles was dissatisfied with counsel and
wished to have him removed or to have new counsel, the district court had no duty to inquire.”)
(citations omitted).
        Thus, to the extent that this claim is properly cognizable under habeas, it fails because the
affidavit failed to give the judge the required indication that Keith was dissatisfied with Banks or
even that he wanted counsel to be appointed for him if Banks refused to serve without pay. Rather,
the affidavit simply stated that Keith could not pay Banks, a problem that was solved when Banks
agreed to represent Keith pro bono if necessary.
                         E. Cumulative Effect of Trial Counsel’s Errors
        Finally, Keith argues that the cumulative effect of counsel’s errors deprived him of a fair trial
and entitle him to habeas relief. The State asserts that this claim was not exhausted in the state
courts and is therefore barred from federal habeas review. Alternatively, the State argues that the
claim is without merit.
       Because Keith did not raise his claim of cumulative error in the state courts, it is procedurally
defaulted. See Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002). Furthermore, “[t]he Supreme
Court has not held that constitutional claims that would not individually support habeas relief may
be cumulated in order to support relief.” Scott v. Elo, 302 F.3d 598, 607 (6th Cir. 2002) (citing
Lorraine, 291 F.3d at 447); see also Millender v. Adams, 376 F.3d 520, 529 (6th Cir. 2004), cert.
denied, 544 U.S. 921 (2005). Finally, because the individual claims are all essentially meritless,
Keith cannot show that the cumulative error violated his constitutional rights. See Seymour v.
Walker, 224 F.3d 542, 557 (6th Cir. 2000).
                                                  III
       For the foregoing reasons, we AFFIRM the district court’s denial of Keith’s petition for
habeas corpus.
No. 01-4266           Keith v. Mitchell, et al.                                                 Page 14


                  __________________________________________________
                   CONCURRING IN PART AND DISSENTING IN PART
                  __________________________________________________
        CLAY, Circuit Judge, concurring in part and dissenting in part. While I concur in Parts II.D
and II.E of the majority’s opinion, pertaining to Petitioner’s affidavit of indigency and the
cumulative error claims respectively, I dissent from Parts II.A and II.C. I would instead hold that
Petitioner received ineffective assistance of counsel during both the mitigation phase of trial and voir
dire and accordingly grant habeas relief from the sentence of death imposed upon Petitioner.
Additionally, I concur with the result of Part II.B., rejecting Petitioner’s claim that the trial court
erred in dismissing scrupled jurors during voir dire, but not its rationale. In contrast to the majority,
I see no reason to hold that Gray v. Mississippi, 481 U.S. 648 (1987), does not apply to cases on
collateral review, and would instead simply hold that the trial court did not abuse its discretion in
excusing the scrupled jurors. Accordingly, I would vacate Petitioner’s sentence but uphold his
conviction.
                                               I.
                   Ineffective Assistance of Counsel in the Mitigation Phase
         Despite a long and well-recognized line of Supreme Court case law requiring counsel in
death penalty cases to conduct at least a cursory investigation into mitigation evidence, it is
uncontested in this case that defense counsel failed to conduct any investigation. Instead, defense
counsel submitted reports containing information that any reasonable attorney would recognize
could only prejudice a defendant, including: (1) victim impact information; (2) an extensive list of
evidence implicating Petitioner; (3) a record of Petitioner’s prior convictions; (4) erroneous positive
statements about Petitioner’s family and childhood; and (5) a psychiatrist’s report stating that
Petitioner was not mentally impaired and that no mitigating factors existed. It cannot be reasonably
argued that submitting such information was a legitimate strategy simply because the report also
mentioned that Petitioner was a good football player and considered himself a nice guy. Therefore,
I would hold that Petitioner received ineffective assistance of counsel during the mitigation phase
of his trial, requiring vacation of his death sentence.
A.      Counsel’s Conduct During the Mitigation Phase
        The following facts regarding the performance of Petitioner’s counsel during the mitigation
phase are not disputed. Mr. Banks, counsel for Petitioner, did not discuss the concept of mitigation
with Petitioner. He did not question Petitioner about his life or childhood. He did not interview
Petitioner’s family or friends, despite their expressed willingness to speak with him. At the hearing,
he presented no opening statement, witnesses or closing statement. He did not argue innocence,
residual doubt, or even ask the jury to spare Petitioner’s life. Furthermore, he allowed the
submission of two highly prejudicial reports he had requested the court to prepare prior to the
hearing.
        The first report contained the results of a one hour examination of psychologist Dr.
Schonberg. It noted, among other things, that Petitioner did not appear to have any mental illnesses,
was of average intelligence, and was not currently depressed, or “down in the dumps.” (Schonberg
Rep. at 2.) It also recounted Petitioner’s statements that he was a nice guy, had no anger problems,
and did not have a significant substance abuse problem. Further, the report stated that Petitioner’s
family had no history of alcoholism, and that Petitioner was never physically or sexually abused.
Finally, Dr. Schonberg concluded:
No. 01-4266           Keith v. Mitchell, et al.                                              Page 15


       Under the provisions of the Ohio Revised Code, Section 2929.04; Criteria for
       Imposing Death or Inprisonment [sic] for a Capital Offense, the death penalty will
       be precluded if the Court found any of three mitigating circumstances. [Petitioner]
       states that he is innocent of these charges. It would not appear that the offender
       acted under duress, nor would it appear that the victim of the offense induced or
       facilitated it. The offense would not appear to have been a product of the offender’s
       mental deficiency or psychosis, the client having no psychiatric history. Therefore,
       based on interview impressions, it is this examiner’s opinion that there are no
       mitigating factors in this case.
(Schonberg Rep. at 3.)
        The second report was a pre-sentence report. It contained: (1) three pages recounting the
crime and evidence against Petitioner; (2) a page long victim impact statement including information
regarding the psychological state and monetary troubles of the surviving victims and their relatives;
(3) a one sentence section labeled “Defendant’s version” that included Petitioner’s claim of
innocence; (4) a one page history of Petitioner’s prior record; (5) a two page summary of Petitioner’s
parole and supervised release history; and (6) a one page social history of Petitioner. The social
history stated that Petitioner was an illegitimate child who was raised by his grandparents and had
a happy and normal childhood. It also stated that Petitioner maintained employment and had a
daughter for whom he paid $25 dollars per week in child support.
        After the jury recommended sentencing Petitioner to death, Petitioner’s post-conviction
counsel uncovered relevant mitigating evidence. Post-conviction counsel submitted affidavits
indicating that Petitioner’s mother was an alcoholic who drank during her pregnancies, that Social
Services had determined that Petitioner’s mother neglected him and had placed him with his
grandparents, that Petitioner’s grandfather had abused at least one of Petitioner’s half-siblings and
probably had abused the other children, presumably including Petitioner, and that Petitioner’s
custodial grandmother was a convicted murderer. Additionally, counsel submitted an affidavit from
a Dr. Smalldon stating that Dr. Schonberg’s report was inadequate and unprofessional. In particular,
Dr. Smalldon critized Dr. Schonberg’s willingness to accept Petitioner’s statements about his life
at face value and draw such broad conclusions from an hour long interview. Further, Dr. Smalldon
opined that Petitioner may suffer from a mild brain impairment. Unfortunately, post-conviction
counsel was not able to fully develop this evidence due to the post-conviction trial court’s refusal
to allow a hearing.
B.     The Ohio Courts’ Treatment of Counsel’s Conduct
        Despite the conduct of counsel and evidence suggesting that Petitioner’s childhood was not
as “happy and normal” as reported in the pre-sentence report, PSRI at 8, all of the Ohio courts
determined that counsel’s decision to forgo the presentation of mitigation evidence was “strategic.”
See State v. Keith, 684 N.E.2d 47, 67 (Ohio 1997); State v. Keith, No. 3-98-05 (Ohio App. 3 Dist.
May 1998); State v. Keith, No. 3-94-13, 1996 WL 156710, *23 (Ohio App. 3 Dist. April 5, 1996);
State v. Keith, No. 94-CR-0042 (Common Pleas Ct. of Crawford County Ohio Feb. 4 1998). They
reasoned that mitigation evidence was inconsistent with Petitioner’s claim of innocence at trial.
Additionally, the Ohio Court of Appeals held that the evidence submitted in affidavit form by post-
conviction counsel was merely duplicative of evidence contained in both Dr. Schonberg’s report and
the pre-sentence report. Thus, it held that counsel’s failure to present mitigation evidence did not
prejudice Petitioner.
No. 01-4266           Keith v. Mitchell, et al.                                              Page 16


C.     Standard of Review
        As noted in the majority opinion, AEDPA governs this Court’s review of the state court
holding in this case. Under AEDPA, this Court may only reverse a state court holding if the holding
was: “(1) contrary to or 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). Under § 2254(d)(1) a state court decision is contrary to a clearly
established Federal law if “the state court arrives at a conclusion opposite to that reached by [the
Supreme Court] on a question of law, or if the if the state court decides a case differently than [the
Supreme Court] on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 360,
413 (2000). A state court decision is an unreasonable application of clearly established Federal law
if “the state court identifies the correct governing legal principle but unreasonably applies that
principal to the facts of the prisoner’s case.” Id.
D.     Clearly Established Law on Ineffective Assistance of Counsel
        The Supreme Court first articulated the now familiar two part test for determining whether
counsel is ineffective in Strickland v. Washington, 466 U.S. 668 (1984), and “[i]t is past question
that the rule set forth in Strickland qualifies as ‘clearly established Federal law, as determined by
the Supreme Court of the United States.’” Williams, 529 U.S. at 390. Under Strickland, a defendant
seeking to establish that his counsel’s assistance was ineffective must show: (1) that his counsel’s
performance was deficient, in other words, that it “fell below an objective standard of
reasonableness;” and (2) that the defense was prejudiced by the attorney’s deficient performance.
Strickland, 466 U.S. at 687-88. In establishing prejudice, a defendant “need not show that counsel’s
deficient conduct more likely than not altered the outcome of the case,” but only, “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.”
        In Strickland, the Court dealt specifically with a claim that counsel’s failure to investigate
and present mitigation evidence constituted deficient performance. Strickland, 466 U.S. at 699. The
Court explained that while strategic choices made after a through investigation “are virtually
unchallengeable; . . . strategic choices made after a less than complete investigation are reasonably
precise to the extent that reasonable professional judgments support the limitations on investigation.
In other words, counsel has a duty to make reasonable investigation or to make a reasonable decision
that a particular investigation is unnecessary.” Id. at 690-91. Thus, it follows that any decision to
forgo mitigation evidence is unreasonable if not made after a reasonable decision not to investigate
further. See id.
        The Supreme Court has now applied Strickland in the AEDPA context at least three times
to hold that a defense attorney’s failure to adequately investigate and present mitigating evidence
at the sentencing phase of a death penalty trial constitutes ineffective assistance of counsel. See
Rompilla v. Beard, — U.S. —, 125 S. Ct. 2546 (June 10, 2005); Wiggins v. Smith, 539 U.S. 510
(2003); Williams, 529 U.S. at 390. In these cases, the Court has reiterated that trial counsel has an
“obligation to conduct a thorough investigation of the defendant’s background” in death penalty
cases. Wiggins, 539 U.S. at 522, 524 (citing ABA guidelines advising attorneys to conduct thorough
investigations); Williams, 529 U.S. at 396. In this context, the Court has warned against a tendency
to invoke “strategy” as a “post-hoc rationalization of counsel’s conduct [rather] than an accurate
description of their deliberations prior to sentencing” to explain counsel’s decisions. Id. at 527.
No. 01-4266            Keith v. Mitchell, et al.                                                  Page 17


E.      The Ohio Courts’ Decisions Were Contrary to and an Unreasonable Application of
        Clearly Established Federal Law
        The Ohio courts’ denial of Petitioner’s ineffective assistance of counsel claim was both
contrary to and an unreasonable application of clearly established Federal law as articulated by the
Supreme Court in Strickland. Under Strickland, counsel’s failure to present any mitigation
evidence without first conducting an investigation is considered deficient performance. 466 U.S.
at 691; see Wiggins, 539 U.S. at 523. Thus, the Ohio courts’ holding that Petitioner’s counsel made
a strategic decision not to present mitigation evidence despite his unreasonable failure to conduct
any investigation is contrary to Strickland. Similarly, the Ohio courts’ determination that counsel’s
submission of the presentence report and Dr. Schoenberg’s evaluation was reasonable trial strategy
constituted an unreasonable application of Strickland. Because the overwhelming majority of the
reports contained information that was prejudicial as opposed to beneficial, counsel’s decision fell
below an objective standard of reasonableness as evidenced by prevailing professional norms.
Together, these errors prejudiced Petitioner because there is a reasonable probability that but for the
errors one juror might have decided to sentence Petitioner to life, not death.
        1.      Counsel’s Errors
                a.      Failure to Investigate or Present Mitigation Evidence
        Counsel’s complete failure to investigate before deciding not to present mitigating evidence
at sentencing is deficient performance as a matter of law under Supreme Court case law, and thus,
the Ohio courts’ determination that counsel did not err is contrary to Federal law as articulated in
Strickland. Wiggins, 539 U.S. at 523; Strickland, 466 U.S. at 691. The Ohio courts all determined
that counsel’s failure to present mitigation evidence was strategic. They reasoned that presenting
mitigation evidence was incompatible with a claim of innocence. Putting aside the dubious
proposition that mitigation and innocence are inconsistent, the Ohio courts’ reasoning must be
rejected because counsel’s strategic decision not to present mitigation evidence is only protected
under Strickland to the extent the decision followed a reasonable investigation. Wiggins, 539 U.S.
at 523; Strickland, 466 U.S. at 691. It is uncontested in this case that Mr. Banks conducted
absolutely no investigation. Therefore, his decision not to present mitigation evidence constituted
deficient performance. Wiggins, 539 U.S. at 523; Strickland, 466 U.S. at 691.
                b.      Submission of Psychological and Pre-Sentence Reports
        Counsel’s decision to submit the psychological and pre-sentence reports fell far below the
standard of attorney conduct articulated in Strickland: “reasonableness under prevailing
professional norms.” Strickland, 466 U.S. at 688. Thus, the Ohio court’s holding to the contrary
constitutes an unreasonable application of Strickland.
          According to ABA guidelines, counsel in death penalty cases have an obligation to consider
the strategic implications of requesting a pre-sentence report where such reports are optional. ABA
Guidelines, Death Penalty Cases, Guideline 10.12(A)(1); Strickland, 466 U.S. at 688 (stating that
ABA standards are guides to prevailing professional norms); see also Wiggins, 539 U.S. at 524. The
commentary following Guideline 10.12 expressly notes that requesting such a report in Ohio may
amount to ineffective assistance of counsel because it allows the prosecution to present a defendant’s
prior record and victim impact evidence, where such information would otherwise be inadmissible.
ABA Guideline 10.12 and accompanying commentary; Ohio Rev. Code § 2929.03(D) (stating that
only a defendant may request reports). Additionally, Guideline 10.12 states that “counsel should
. . . provide to the report preparer information favorable to the client [and] . . . take appropriate steps
to ensure that improper, incorrect or misleading information that may harm the client is deleted from
the report.”
No. 01-4266           Keith v. Mitchell, et al.                                               Page 18


        In this case, Mr. Banks conduct fell well below the standards set forth in ABA Guideline
10.12. In the first place, considering the information contained in the reports, it is highly unlikely
that Mr. Banks considered the strategic implications of placing the reports before the jury. No
reasonable defense attorney could actually read these reports and determine that there was anything
to be gained by submitting them as evidence at the mitigation stage. As discussed above, the
reports contained pages documenting Petitioner’s prior record, impact on the victims and their
families, evidence implicating Petitioner, erroneous statements about Petitioner’s background and
childhood, and a psychologist’s conclusion that no mitigating factors existed. In contrast, the report
contained one sentence on Petitioner’s version of the events. Additionally, Dr. Schonberg’s report
stated that Petitioner was not depressed, which a jury could easily interpret as evidence of lack of
remorse. Finally, Dr. Schonberg also made the outrageous statement that no mitigating factors
existed. This is exactly what the jury, not Dr. Schonberg, was convened to determine. No
reasonable attorney could conclude that the mitigating value of the report outweighed the
introduction of the prejudicial evidence simply because the report also contained a handful of
positive sentences about the Petitioner.
        The Ohio courts’ determination to the contrary is an unreasonable application of Strickland.
The Ohio courts found that the decision of counsel to submit the reports was “strategic.” Strickland,
however, warns courts not to accept post-hoc rationalizations for counsel’s conduct. The Ohio
courts’ justification of counsel’s conduct is just such a rationalization. There is absolutely no
support in the record evidencing that Mr. Banks considered the implications of submitting the
reports. Moreover, as explained above, counsel’s decision, to the extent it was even a conscious
decision, was not a reasonable strategy.
         Next, there is no evidence that Mr. Banks made any effort to provide favorable information
to the probation officer who prepared the pre-sentence report. As will be discussed more thoroughly
in the section below on prejudice, post-conviction counsel discovered relevant mitigation evidence
that should have been presented at trial. Mr. Banks failed to have this information included in the
pre-sentence report. Thus, the jury never heard the evidence.
         Finally, Mr. Banks made no effort to insure that the information contained in the report was
accurate. Again, as will be discussed below, the reports submitted to the jury contained information
that conflicted with information discovered by the post-conviction counsel. Because of counsel’s
failure to correct the erroneous information, the jury received inaccurate and prejudicial information
about Petitioner’s life.
       2.      Prejudice
         Counsel’s failure to present mitigating evidence and his submission of the psychological and
presentence reports prejudiced Petitioner. To demonstrate prejudice under Strickland, Petitioner
must show that but for counsel’s errors there is a reasonable probability that the outcome of the
proceedings would have been different. Strickland, 466 U.S. at 694. Under Ohio law, a jury verdict
sentencing a defendant to death must be unanimous. State v. Robb, 723 N.E.2d 1019, 1044 (Ohio
2000). Thus, to demonstrate prejudice in this case, Petitioner need only show that but for counsel’s
errors, there is a reasonable probability that one juror would have voted differently.
          In this case, there is a reasonable probability that one juror would have spared Petitioner’s
life if the jury had not received Petitioner’s prior record or the victim impact evidence contained in
the reports and instead received mitigation evidence. Under Ohio law, neither a defendant’s prior
record nor victim impact evidence is admissible to prove aggravation. See Ohio Rev. Code
§ 2929.04; State v. Jackson, 751 N.E.2d 946, 957 (Ohio 2001) (limiting aggravating factors to
statutory aggravating factors that have been charged and proved beyond a reasonable doubt. Thus,
but for counsel’s submission of the reports, the jury would not have had access to Petitioner’s record
No. 01-4266               Keith v. Mitchell, et al.                                                            Page 19


of the victims’ trauma. See ABA Guideline 10.12 and accompanying commentary. Furthermore,
the jury clearly considered Petitioner’s prior record in its deliberations. The jury’s prejudicial
consideration of Petitioner’s prior record is evidenced by a question the jury submitted to the court
during its sentencing deliberations. The jury asked the court to verify the dates of Petitioner’s
imprisonment for a prior robbery. Petitioner’s prior record very clearly affected the jury’s
deliberations, and thus, there is a reasonable probability that but for counsel’s submission of the
reports, one juror would have voted to recommend sentencing Petitioner to life imprisonment instead
of death.
        Had defense counsel acted as competent counsel, the jury would have heard mitigating
evidence concerning Petitioner in place of the victim impact evidence and Petitioner’s prior record.
The jury would have known and been able to consider the information obtained by post-conviction
counsel, namely, that Petitioner’s mother was an alcoholic who drank during her pregnancies; that
Social Services determined that Petitioner’s mother neglected him and placed him with his
grandparents; that Petitioner’s grandfather abused at least one of1Petitioner’s half-siblings and
probably abused the other children, presumably including Petitioner; and that Petitioner’s custodial
grandmother was a convicted murderer. See Rompilla, 125 S.Ct. at 2468-69 (finding prejudice
where evidence that Petitioner was abused and that his mother was an alcoholic was not presented
at the mitigation hearing).
        The majority’s assertion that the mitigation evidence duplicated information already
submitted to the jury through the reports is simply incorrect. First, Dr. Schonberg’s report states that
Petitioner’s family had no history of alcoholism. In fact, Petitioner’s mother admits that she was
an alcoholic who drank while she was pregnant. Additionally, there is substantial evidence of drug
abuse in Petitioner’s family. Second, the reports do not state that Ohio Social Services found that
Petitioner’s mother was not fit to care for him. Instead, the pre-sentence report states, “[Petitioner]
was raised by his grandfather . . . due to the fact that his mother was too young.” This statement
implies that Petitioner’s mother voluntarily    relinquished him to her parents and not that Social
Services had to come and take him away.2 Finally, Dr. Schonberg’s report states that Petitioner was
not abused. While it is not clearly established that Petitioner was abused, there is evidence
suggesting abuse. This evidence could have been further developed if the post-conviction trial court
had allowed post-conviction counsel to present evidence at a hearing.
       In light of counsel’s submission of extremely prejudicial evidence and counsel’s failure to
submit mitigation evidence, there is certainly a reasonable probability that but for counsel’s errors
one juror would have chosen to sentence Petitioner to life and not death.
                                                    II.
                           Ineffective Assistance of Counsel During Voir Dire
       In addition to abdicating his duties during the mitigation phase of trial, defense counsel also
rendered ineffective assistance during voir dire. Despite the ABA death penalty guidelines clear
mandate that counsel should “develop a strategy for rehabilitating . . . [scrupled] jurors,”
Comments to Guideline 10.10.2., defense counsel utterly failed to even attempt to rehabilitate
scrupled jurors. Given the equivocal nature of the scrupled jurors statements, a reasonable

         1
          Although Petitioner informed Dr. Schonberg that he was not abused, Dr. Smalldon states in his affidavit that
Dr. Schonberg’s conclusions are not warranted in light of his brief meeting with Petitioner and that it was unprofessional
to take what Petitioner said at face value.
         2
          Additionally, it seems that the mitigation expert hired by post-conviction counsel was unable to obtain the
Social Services file because there was no court order releasing it. It is unclear if post-conviction counsel requested a
court order but the post-conviction trial court was clearly not interested in developing a factual record.
No. 01-4266            Keith v. Mitchell, et al.                                                   Page 20


probability exists that defense counsel would have been able to successfully rehabilitate the jurors.
Thus, counsel’s failure prejudiced Petitioner under Strickland, 466 U.S. at 668, and Gray v.
Mississippi, 481 U.S. 648 (1987), and the Supreme Court of Ohio’s decision to the contrary was an
unreasonable application of clearly established federal law. Counsel’s failure to attempt to
rehabilitate jurors provides an additional basis for vacating Petitioner’s sentence of death because
it led to a jury “organized to return a verdict of death.” Id. at 68 (internal citations and quotations
omitted).
        A.      Events at Voir Dire
         During voir dire the district court asked all jurors, “In a proper case if the facts warrant it and
the law permits it, could you join in signing a verdict form which might recommend to the court the
imposition of the death penalty?” (J.A. at 1514.) Two jurors gave equivocal responses. First, Juror
Barbara Costamire responded “that is bothering me.” (J.A. at 1517.) The court asked “that is
bothering you?,” and she responded “yes,” at which point the trial court excused her. (J.A. at 1517.)
Second, Juror Julie Hoffman responded, “that would be an uncomfortable thing for me to do.” The
court then excused Julie Hoffman without any followup. (J.A. at 1519.) Counsel did not object to
the trial court’s exclusion of either juror or attempt to rehabilitate them.
B.      Ohio Supreme Court Decision
        The Ohio Supreme Court found that defense counsel’s performance during voir dire was not
ineffective within the meaning of the Sixth Amendment. Applying Strickland, 466 U.S. at 668, the
court held that counsel did not render deficient performance because counsel’s actions during voir
dire are presumed strategic and because even if counsel’s voir dire performance was deficient it did
not prejudice Petitioner. The Ohio Supreme Court recognized that the Supreme Court’s decision
in Gray v. Davis, 481 U.S. 648 (1987), requires courts to presume prejudice when a trial court
improperly excludes jurors with reservations on the death penalty, but declined to apply the
presumption to counsel’s errors, which resulted in a similar exclusion.
C.      Standard of Review
        Here, again our review of the Ohio Supreme Court’s decision is limited by AEDPA. As
discussed in the previous section, we may only overturn a state court determination on habeas
review if the state court’s holding was contrary to or an unreasonable application of clearly
established federal law as articulated by the Supreme Court. 28 U.S.C. § 2254(d). A state court’s
failure to extend Supreme Court cases may constitute an unreasonable application of clearly
established law. Yarborough v. Alvarado, 541 U.S. 652, 666 (2004).
D.      The Ohio Supreme Court’s Decision Was an Unreasonable Application of Strickland
        and Gray
        The Ohio Supreme Court’s determination that defense counsel did not render constitutionally
ineffective assistance in failing to attempt to rehabilitate jurors is an unreasonable application of the
Supreme Court’s holdings in Strickland and Gray. As discussed in section I, under Strickland, a
defendant seeking to establish that his counsel’s assistance was ineffective must show: (1) that his
counsel’s performance was deficient; and (2) that the defense was prejudiced by the attorney’s
deficient performance. Strickland, 466 U.S. at 687-88. Here, counsel acted in a manner contrary
to established professional norms by failing to attempt to rehabilitate jurors. Furthermore, his
actions resulted in the exclusion of two jurors for whom a reasonable probability of rehabilitation
existed. If such jurors had been rehabilitated, their exclusion would have been reversible error under
Gray. Thus, it is unreasonable not to find prejudice under Strickland and Gray.
No. 01-4266                Keith v. Mitchell, et al.                                                                Page 21


         1.        Counsel’s Failure to Attempt to Rehabilitate Constituted Deficient Performance
        The majority relies much on Strickland’s presumption that an attorney’s conduct is strategic
unless proven otherwise. The presumption of3 strategy is inappropriate in this case, however,
because Petitioner has successfully rebutted it. In the instant case, Petitioner has submitted an
affidavit from an experienced death penalty defender, Gerald Simmons. According to Simmons, it
is standard practice for a death penalty defender to attempt to rehabilitate scrupled jurors and to
object to their exclusion. In fact, Simmons states that it is “unacceptable” not to attempt to
rehabilitate scrupled jurors or object to their exclusion.
        Simmons statements are supported by the 2003 ABA Guidelines on Death Penalty
Representation.4 Guideline 10.10.2 indicates that death penalty defenders should be familiar with
techniques to life qualify the jury and rehabilitate scrupled jurors. The commentary to 10.10.2
further explains:
         Counsel should conduct a voir dire that is broad enough to expose those prospective
         jurors who are unable or unwilling to follow the applicable sentencing law, whether
         because they will automatically vote for death in certain circumstances or because
         they are unwilling to consider mitigating evidence. Counsel should also develop a
         strategy for rehabilitating those prospective jurors who have indicated opposition to
         the death penalty.
ABA Guideline 10.10.2, commentary; see also Strickland, 466 U.S. at 688 (noting that ABA
guidelines reflect prevailing professional norms). In light of Simmons’ affidavit and the ABA
guidelines, there is no reason for this Court to presume that counsel’s conduct during voir dire was
strategic. In other words, counsel’s failure to attempt to rehabilitate the scrupled jurors or object to
their exclusion was objectively unreasonable in light of prevailing professional norms.
         2.        Counsel’s Failure to Attempt to Rehabilitate Prejudiced Petitioner
        To establish that a defense attorney’s failure to rehabilitate a scrupled juror was prejudicial
in violation of the Sixth Amendment, a defendant must demonstrate that there is a reasonable
probability that but for counsel’s errors, the excluded juror would have been rehabilitated and thus
not subject to exclusion under Witherspoon and Witt. Because a reasonable probability existed that
counsel’s attempts to rehabilitate jurors Julie Hoffman and Barbara Costamire would have been
successful, Petitioner has established prejudice.




         3
            Petitioner’s presentation of rebuttal evidence distinguishes this case from Sanford v. Parker, 266 F.3d 442 (6th
Cir. 2001), on which the majority relies. In Sanford, which was not a Supreme Court case, and thus less persuasive in
our AEDPA review, this Circuit held that an attorney’s failure to “life qualify” the jury in a death penalty case did not
constitute deficient performance under Strickland. 266 F.3d at 454. There, this Court noted that “[the petitioner]
present[ed] no evidence to rebut the presumption that counsel’s failure to ask life-qualifying questions during general
voir dire constituted trial strategy.” Id. Furthermore, it is questionable whether it makes sense to apply a presumption
that an attorney’s conduct is strategic in cases like the one at bar, in which counsel is admittedly not qualified to represent
his client under the law of the relevant jurisdiction.
         4
          Although the guidelines were complied in 2003, many years after Bank’s conduct at voir dire, the guidelines
are primarily a summary of existing practice and rely on numerous sources that predate Bank’s conduct. Eric M.
Freedman, Introduction to ‘The Guiding Hand of Counsel’: ABA Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases, 31(4) Hofstra L.R. 903, 903 (2003); see also Hamblin v. Mitchell, 354 F.3d
482, 486-87 (6th Cir. 2003) (holding that the 2003 guidelines essentially codify norms applied to cases in the 1980s).
No. 01-4266           Keith v. Mitchell, et al.                                               Page 22


               a.      Improper Exclusion of Juror Under Witherspoon and Witt is Presumed
                       Prejudicial
        A juror may not be excluded under Witherspoon unless the juror’s views on the death penalty
“prevent or substantially impair the performance of his duty as juror in accordance with instructions
and oath.” Witt, 469 U.S. at 424; Adams v. Texas, 448 U.S. 38, 45 (1980). A juror’s mere
reservations or scruples regarding the death penalty are not a valid ground upon which a trial court
may exclude a juror. Id. Where a trial court improperly excludes a juror under Witherspoon for the
juror’s mere reservations or scruples, the trial court’s error is presumed prejudicial and the death
sentence must be reversed. Gray, 481 U.S. at 667-668. The improper exclusion of even one
qualified juror under Witherspoon-Witt may result in a jury more likely than the average jury to
impose death, thus rendering the jury partial. Id. As the Supreme Court explained in Gray,
       Because the Witherspoon-Witt standard is rooted in the constitutional right to an
       impartial jury and because the impartiality of an adjudicator goes to the very
       integrity of the legal system, the Chapman harmless-error analysis cannot apply. We
       have recognized that “some constitutional rights are so basic to a fair trial that their
       infraction can never be treated as harmless error.” The right to an impartial
       adjudicator, be it judge or jury, is such a right. As stated in Witherspoon, a capital
       defendant’s constitutional right not to be sentenced by a tribunal organized to return
       a verdict of death surely equates with a criminal defendant’s right not to have his
       culpability determined by a tribunal organized to convict.
Id. (internal quotation marks and citations omitted).
               b.      Strickland’s Reasonable Probability Standard
        As discussed above, Strickland requires a defendant to show that there is a reasonable
probability that the outcome would have been different. 466 U.S. at 694. Gray instructs courts to
presume the outcome would have been different where a juror is excluded under Witherspoon and
Witt. 481 U.S. at 668. Therefore, it must follow that if Petitioner can show that there is a
reasonable probability that a juror could not have been properly excluded under Witherspoon, this
Court must presume that there is a reasonable probability that the outcome would have been
different.
               c.      Petitioner Has Shown A Reasonable Probability
        Here, Petitioner has satisfied this burden. Petitioner has shown that there is a reasonable
probability that his defense counsel could have successfully rehabilitated two of his jurors, Julie
Hoffman and Barabara Costamire. Neither juror clearly stated that they were incapable of imposing
the death penalty but only that its imposition would “bother” them or make them “uncomfortable.”
There is nothing else in the record to indicate that Hoffman and Costamire could not have imposed
the death penalty despite the discomfort it might have caused them. While the trial court might have
acted within its discretion in excluding them in lieu of these statements, it seems likely that defense
counsel could have rehabilitated them. That is, in light of the equivocal nature of the statements of
Hoffman and Costamire, there is a reasonable probability that defense counsel could have
successfully shown that although Hoffman and Costamire had reservations about the death penalty,
they were capable of following their instructions and oath.
               d.      The Ohio Supreme Court’s Decision to The Contrary Was Unreasonable
        The Supreme Court of Ohio’s determination that Gray does not extend to ineffective
assistance of counsel cases is unreasonable. Whether defense counsel could have rehabilitated a
juror will always be speculative, thus leaving defendants with no recourse where defense counsel
No. 01-4266           Keith v. Mitchell, et al.                                               Page 23


errs and that error causes prejudice. Petitioner has no way of proving that rehabilitation would
have been successful because the attorney’s failure necessarily leaves no record. It should not
follow that an attorney’s abdication of his responsibilities can never result in prejudice within the
meaning of the Sixth Amendment. Consequently, the only rational holding would be to presume
prejudice under Gray when, as here, the jurors responses are equivocal, and do not clearly disqualify
them under Witherspoon.
                                             III.
                        The Trial Court’s Dismissal of Scrupled Jurors
         While I believe that Petitioner’s ineffective assistance of counsel claims warrant habeas
relief, I do not believe that the trial court’s dismissal of scrupled prospective jurors is grounds for
habeas relief. Unlike the majority, however, I see no need to resort to the amorphous concept of
“federalism” to dismiss this claim, especially as both AEDPA and the doctrine of procedural default
adequately protect the interest in deferring to state court proceedings. Assuming that Gray v.
Mississippi,481 U.S. at 667-668, is clearly established federal law, there is no justification for
refusing to apply it to this case, and the majority cites no authority for doing so. Congress has
defined the circumstances in which it believes a grant habeas of relief is appropriate – where a state
court’s decision is contrary to or an unreasonable application of clearly established federal law – and
this Court should not fashion its own doctrines in order to avoid granting the writ.
        Accordingly, I would simply hold that Petitioner procedurally defaulted this claim. As the
majority correctly notes, Petitioner’s counsel failed to make a contemporaneous objection to the trial
court’s exclusion of the scrupled jurors. Inasmuch as Petitioner cannot show prejudice resulting
from his attorney failure, his claim is defaulted. Petitioner cannot show prejudice because his claim
is meritless. Although a trial court may not dismiss a prospective juror simply because he or she
possesses scruples about the death penalty, the trial court has the authority to dismiss prospective
jurors who indicate an inability to apply the law. Witt, 469 U.S. at 424; Adams v. Texas, 448 U.S.
38, 45 (1980). A prospective juror’s statement that he or she is unable to consider the death penalty
evidences an inability to apply the law. See Witt, 469 U.S. at 424; Adams, 448 U.S. at 45.
Consequently, a trial court may dismiss a prospective juror who indicates that he or she would be
unable to consider the death penalty. See Witt, 469 U.S. at 424; Adams, 448 U.S. at 45. Furthermore,
the prospective juror’s responses need not unmistakably indicate an inability to follow the law. Witt,
469 U.S. at 425-26. The trial judge has the discretion to exclude a prospective juror where, “the trial
judge is left with the definite impression that a prospective juror would be unable to faithfully and
impartially apply the law” and “deference must be paid to the trial judge who sees and hears the
juror.” Id. at 426. In this case, the prospective jurors’ statements were ambiguous, and the trial
court acted within its discretion in excluding them.
                                                IV.
                                             Conclusion
       For the reasons set forth above, I would uphold Petitioner’s conviction but vacate the
sentence of death imposed on Petitioner and remand for a new mitigation phase trial.
