RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0200p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

FREDERICK TREESH,

 Petitioner-Appellant,

v.

MARGARET BAGLEY, Warden,

 Respondent-Appellee.

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No. 07-3524

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 02-00462—Solomon Oliver, Jr., Chief District Judge.

Argued: March 4, 2010

Decided and Filed: July 13, 2010 

Before: SILER, CLAY, and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ARGUED: S. Adele Shank, LAW OFFICE OF S. ADELE SHANK, Columbus, Ohio, for

Appellant. Thomas E. Madden, OFFICE OF THE OHIO ATTORNEY GENERAL,

Columbus, Ohio, for Appellee. ON BRIEF: S. Adele Shank, LAW OFFICE OF S. ADELE

SHANK, Columbus, Ohio, Timothy F. Sweeney, LAW OFFICE OF TIMOTHY FARRELL

SWEENEY, Cleveland, Ohio, for Appellant. Thomas E. Madden, Seth P. Kestner, OFFICE

OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. 

SILER, J., delivered the opinion of the court, in which GRIFFIN, J., joined. CLAY,

J. (pp. 20-21), delivered a separate concurring opinion.

_________________

OPINION

_________________

SILER, Circuit Judge. A state court jury convicted Frederick Treesh of aggravated

murder and several other charges, and the court sentenced him to death. The Ohio courts

upheld his conviction and sentence on direct review and in post-conviction proceedings.

1
No. 07-3524 Treesh v. Bagley Page 2

Treesh petitioned the U.S. District Court for the Northern District of Ohio for a writ of

habeas corpus under 28 U.S.C. § 2254. The district court denied the petition but granted

Treesh a certificate of appealability (“COA”) on two of his claims. Treesh appeals those

claims and requests that we grant a COA as to a third claim. For the following reasons, we

AFFIRM the district court’s denial of Treesh’s petition, and DENY his request for an

expanded COA.

I. FACTUAL AND PROCEDURAL BACKGROUND

On direct appeal, the Ohio Supreme Court related the facts of the case in State v.

Treesh, 739 N.E.2d 749, 756-58 (Ohio 2001), which will not be fully repeated herein.

A. Direct Appeal

Before trial, Treesh filed a motion to suppress his statements as violating Miranda

v. Arizona, 384 U.S. 436 (1966). After a suppression hearing, the trial court summarily

denied Treesh’s motion in a one-sentence order. The jury found Treesh guilty of five counts:

aggravated felony murder, aggravated robbery, felonious assault of a peace officer, and two

counts of attempted aggravated murder. Each of the five counts included a firearm

specification and Treesh pleaded guilty to one count of carrying a weapon under disability.

The trial court adopted the jury’s sentence recommendation of death.

The Ohio Eleventh District Court of Appeals affirmed Treesh’s conviction and

sentence. In particular, it rejected Treesh’s arguments that the trial court erred in not

suppressing his statements and that trial counsel was ineffective by failing to challenge for

cause the jurors at issue here. State v. Treesh, No. 95-L-057, 1998 Ohio App. LEXIS 4886,

at *25-45, 123-25 (Ohio Ct. App. Oct. 16, 1998). Treesh appealed to the Supreme Court of

Ohio raising, inter alia, the two claims presented here. The Ohio Supreme Court rejected

both claims, Treesh, 739 N.E.2d at 763-67, 779, and the United States Supreme Court denied

Treesh’s petition for a writ of certiorari, State v. Treesh, 533 U.S. 904 (2001).
No. 07-3524 Treesh v. Bagley Page 3

B. State Post-Conviction Proceedings

The state trial court summarily dismissed Treesh’s petition for post-conviction relief

without an evidentiary hearing. On appeal, the Ohio Eleventh District Court of Appeals

affirmed the trial court’s denial of post-conviction relief. State v. Treesh, No. 97-L-080,

1998 WL 964528, at *9 (Ohio Ct. App. Dec. 18, 1998). The Ohio Supreme Court summarily

dismissed Treesh’s appeal, concluding that it did not present a substantial constitutional

question. State v. Treesh, 709 N.E.2d 848 (Ohio 1999).

C. Federal Habeas Corpus Proceedings

In 2002, Treesh filed the instant petition for writ of habeas corpus. The district court

denied Treesh’s petition, Treesh v. Bagley, No. 1:02 CV 462, 2007 WL 1039081, at *64

(N.D. Ohio Mar. 31, 2007), and granted a COA as to Claims 2 (the introduction of Treesh’s

statements were obtained in violation of his constitutional rights) and 15(c) (he was denied

the effective assistance of counsel by trial counsel’s failure to exclude certain jurors), id. at

*67-69. We denied Treesh’s request to certify additional claims for appeal.

II. ANALYSIS

A. Standard of Review

We review the district court’s decision to grant or deny a habeas petition de novo.

Murphy v. Ohio, 551 F.3d 485, 493 (6th Cir. 2009). Because Treesh filed his habeas petition

after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.

L. No. 104-132, 110 Stat. 1214 (“AEDPA”), we may grant the writ “with respect to a ‘claim

that was adjudicated on the merits in state court proceedings’ if the state court’s decision

‘was contrary to, or involved an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States.’” Murphy, 551 F.3d at 493

(quoting § 2254(d)(1)). “A state-court decision is contrary to clearly established federal law

‘if the state court applies a rule that contradicts the governing law set forth in [the Supreme

Court’s] cases’ or ‘if the state court confronts a set of facts that are materially

indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result

different from [that] precedent.’” Id. at 493-94 (quoting Williams v. Taylor, 529 U.S. 362,

405 (2000)). “A state-court decision is an unreasonable application of clearly established
No. 07-3524 Treesh v. Bagley Page 4

federal law if it correctly identifies the governing legal rule but applies it unreasonably to the

facts of a particular prisoner’s case, or if it either unreasonably extends or unreasonably

refuses to extend a legal principle from Supreme Court precedent to a new context.” Id. at

494 (quotation marks and citations omitted).

“[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, 529 U.S. at 412.

Moreover, “[t]he state court decision need not cite Supreme Court cases, or even evince an

awareness of Supreme Court cases, ‘so long as neither the reasoning nor the result of the

state-court decision contradicts them.’” Williams v. Bagley, 380 F.3d 932, 942 (6th Cir.

2004) (quoting Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)).

B. Miranda Violation

Treesh argues that the trial court admitted statements obtained from him in violation

of Miranda. Specifically, he contends that he was never fully apprised of his Miranda rights,

he did not knowingly and intelligently waive those rights, his request for counsel was

ignored, his statements were not voluntary, and the state court’s conclusions to the contrary

were contrary to or involved an unreasonable application of clearly established federal law.

1. Sufficiency of Warnings

In Miranda, the Supreme Court established “certain procedural safeguards that

require police to advise criminal suspects of their rights under the Fifth and Fourteenth

Amendments before commencing custodial interrogation.” Ducksworth v. Eagan, 492 U.S.

195, 201 (1989). In particular, Miranda prescribed the following four warnings:

[A suspect] must be warned prior to any questioning [1] that he has the right

to remain silent, [2] that anything he says can be used against him in a court

of law, [3] that he has the right to the presence of an attorney, and [4] that

if he cannot afford an attorney one will be appointed for him prior to any

questioning if he so desires.

Miranda, 384 U.S. at 479. Although these precise words do not have to be used, “the

warnings [must] reasonably convey to a suspect his rights as required by Miranda.” Florida

v. Powell, 130 S. Ct. 1195, 1204 (2010) (internal quotation marks and alterations omitted).
No. 07-3524 Treesh v. Bagley Page 5

When Officer Janusczak arrested Treesh around 12:15 a.m. on August 28, 1994, he

recited a full set of Miranda warnings. He then asked Treesh if he understood his rights.

After Treesh failed to respond, Janusczak began to repeat the warnings, but Treesh

interrupted him and said “Yeah, yeah, I know.” The Cleveland Police Department held

Treesh in a cruiser at the scene of his arrest until the Euclid Police Department took over

custody. Treesh was then transported to the Euclid City Jail, where he showered before

being transported to the Eastlake police station around 1:30 to 2:30 a.m. When Treesh

arrived at the station, he was immediately taken into a booking room where Lieutenant

Doyle gave Treesh the following version of the Miranda warnings:

You understand you’re under arrest? You’ve been arrested before.

Do you understand your Miranda rights? I’m going to ask you some

questions over the next hour or so, two hours or three hours. You have a

right to answer the questions that I ask, or you can stop me at any time. If

you can’t afford an attorney, one will be appointed.

Do you understand me? Okay.

According to Doyle, Treesh twice indicated during this interview that he understood

his rights. He did not affirmatively request an attorney or invoke his right to remain silent.

Instead, Treesh agreed to talk to Doyle and was then interrogated for approximately one hour

and forty-five minutes. Sometime during the interview, Doyle asked Treesh if he

remembered his rights:

Q: Do you understand your Miranda rights? Okay, I told them to you

before, right? Why don’t you tell me.

A: I have the right to remain silent. Anything I say can and will be

used against me in a court of law, blase, blase, blase.

Q: You have a right to an attorney. Okay.

After this interview, Treesh was placed in a jail cell, but was awakened shortly

before 7:00 a.m. and returned to the booking room. Doyle read the Miranda warnings to

Treesh before beginning this interview:

DOYLE: Before we start talking again, just as I told you before, you

know your Miranda rights. You know I’m a police officer.

You know you’re under arrest, you’re at the police station.
No. 07-3524 Treesh v. Bagley Page 6

1

Treesh insists that he made an initial request for counsel when he first arrived at the booking

room of the Eastlake Police Department. The Ohio Supreme Court, however, concluded that he did not

make such a request. Treesh, 739 N.E.2d at 766. “A federal court is to apply a presumption of correctness

to state court findings of fact for habeas corpus purposes unless clear and convincing evidence is offered

to rebut this presumption.” James v. Brigano, 470 F.3d 636, 643 (6th Cir. 2006) (citing 28 U.S.C.

§ 2254(e)(1)). This standard also applies to state appellate court findings of fact. See Sumner v. Mata, 449

I’m going to ask you some questions – –

TREESH: – – rights before.

DOYLE: Pardon?

TREESH: You gave me the rights before.

DOYLE: Okay, and I plan on continuing doing that. What I have to

tell you, though, again, I’m going to ask you questions and

you don’t have to answer the questions.

TREESH: Uh-huh.

DOYLE: If you decide to answer the questions, you can stop me at

any time. You have a right to an attorney.

TREESH: I already know all my rights.

DOYLE: Okay, but I’m going to tell you them.

TREESH: Okay.

DOYLE: If you can’t afford one, one will be appointed for you. Then

I’ve got to say, will you talk to me anyway?

TREESH: Yeah.

DOYLE: Do you understand your rights?

TREESH: Yeah.

Around 7:50 a.m., FBI Special Agent Alford advised Treesh, both orally and in

writing, of his Miranda rights. The form Alford gave Treesh included all four required

Miranda warnings. Treesh signed the form indicating that he waived those rights. Alford

interviewed Treesh for about an hour to an hour and a half. At 10:40 a.m., Doyle

interviewed Treesh again. During that interview, he again advised Treesh of his Miranda

rights, both orally and in writing, and obtained a written waiver from Treesh. Around 2:00

p.m., Doyle interviewed Treesh and Brooks together. When Doyle told them that the store

clerk was alive and had made a statement to police, they requested an attorney. This was

Treesh’s first request for an attorney since being arrested.1

 Treesh indicated that he would
No. 07-3524 Treesh v. Bagley Page 7

U.S. 539, 545-46 (1981). Treesh has not met that burden. Simply suggesting that the other witnesses were

dishonest or inaccurate does not constitute clear and convincing evidence.

give a statement, but only if they assured him they would not seek the death penalty.

When Doyle told him they would not make any deals, Treesh refused to give any

statements regarding their involvement in the Vine Street News robbery and murder.

However, Treesh and Brooks spoke about the involvement of others during the Eastlake

murder and of crimes committed in other states.

The Ohio Supreme Court concluded that the warnings that Treesh received from

Doyle before and during his first interrogation were incomplete. Treesh, 739 N.E.2d at

764-65. Although Treesh testified that Janusczak did not read the Miranda warnings

upon his arrest, the Ohio Supreme Court affirmed the trial court’s implicit conclusion

that the arresting officer did recite all four Miranda warnings. Id. at 765 (“Though the

testimony at the suppression hearing conflicted as to whether the arresting officer

actually recited the Miranda warnings, the trial court implicitly found the arresting

officer’s testimony about the arrest [to be] more credible than Treesh’s. . . . We will not

substitute our judgment for that of the trial court on this issue.” (internal citation

omitted)). Treesh has not presented clear and convicting evidence to indicate that this

factual conclusion was erroneous. See James, 470 F.3d at 643.

The Ohio Supreme Court went on to conclude that Janusczak’s “full arrest

warning, viewed in conjunction with the partial rewarnings at the interrogations,

indicates that Treesh was sufficiently apprised of his Miranda rights.” Treesh, 739

N.E.2d at 765. The question before us, then, is whether the Ohio Supreme Court’s

conclusion that Doyle’s incomplete warnings were sufficient to remind Treesh of the

previously recited Miranda rights was contrary to or an unreasonable application of

clearly established federal law. We hold that it was not.

In reaching its conclusion, the Ohio Supreme Court relied on Wyrick v. Fields,

459 U.S. 42 (1982). Treesh, 739 N.E.2d at 764. The Supreme Court in Fields concluded

that a suspect did not need to be readvised of his Miranda rights, which he had waived

in writing before the initiation of a polygraph examination, because “the circumstances
No. 07-3524 Treesh v. Bagley Page 8

[had not] changed so seriously that his answers no longer were voluntary” and his waiver

was still knowing and intelligent. 459 U.S. at 47-48. Since Fields, “[t]he courts have

generally rejected a per se rule as to when a suspect must be readvised of his rights after

the passage of time or a change in questioners.” United States v. Weekley, 130 F.3d 747,

751 (6th Cir. 1997) (concluding that officers did not need to readvise suspect of his

Miranda rights where he was read his rights upon his arrest, reminded of his rights

during transport and again in the elevator before he was questioned) (internal quotation

marks omitted). Instead, we apply a totality-of-the-circumstances test when considering

whether a delay between reading the Miranda warnings and custodial interrogation

requires the interrogating officers to readvise the suspect of his Miranda rights. Id. at

751-52.

Under Fields, additional warnings are only required if the circumstances

seriously changed between the initial warnings and the interrogation. Fields, 459 U.S.

at 47. Between Janusczak’s warnings and Doyle’s questioning of Treesh, he was taken

first to the Euclid City Jail then to the Eastlake Police Department. However, only

approximately two hours had passed between his arrest and his interrogation.

Additionally, Doyle partially readvised Treesh of his Miranda rights, which alerted

Treesh to the fact that he could still invoke those rights. Treesh’s recitation of at least

three of those rights during his interview also demonstrates that he was aware of his

rights. Accordingly, the Ohio Supreme Court’s conclusion that Doyle was not required

to fully readvise Treesh of his Miranda rights was not contrary to or an unreasonable

application of Fields, particularly in light of the application of Fields by our sister

circuits. See, e.g., United States v. Clay, 408 F.3d 214, 222 (5th Cir. 2005) (no need for

rewarning where there was no evidence that suspect no longer understood the warnings

or did not understand their applicability to interrogation that occurred two days after

initial warning); United States ex rel. Patton v. Thieret, 791 F.2d 543, 547-48 (7th Cir.

1986) (Miranda rights did not need to be reread after forty minute lapse); Evans v.

McCotter, 790 F.2d 1232, 1237-38 (5th Cir. 1986) (rights voluntarily waived where

suspect was twice advised of rights over a three-hour period notwithstanding change of

interview locations); Stumes v. Solem, 752 F.2d 317, 320 (8th Cir. 1985) (five-hour
No. 07-3524 Treesh v. Bagley Page 9

interval between first and second interviews did not invalidate suspect’s waiver given

before the first interview); Jarrell v. Balkcom, 735 F.2d 1242, 1254 (11th Cir. 1984)

(change in interrogators and three-hour lapse did not render confession inadmissible);

United States ex rel. Henne v. Fike, 563 F.2d 809, 814 (7th Cir. 1977) (nine hours

between warnings and waiver not too long).

2. Waiver

Treesh contends that the Ohio Supreme Court’s conclusion that Treesh heard and

understood the Miranda warnings recited by Janusczak and that he waived those rights

involved unreasonable applications of clearly established federal law. He also argues

that the state courts failed to make a determination as to whether Treesh’s waiver was

knowing and intelligent. Instead, Treesh contends that the Ohio Supreme Court wrongly

consolidated its analysis of the voluntariness of the waiver with its analysis of whether

Treesh’s waiver was made knowingly and intelligently. We consider that argument first.

a. Knowing and intelligent waiver

We begin by noting that to the extent Treesh raised this issue before the Ohio

Supreme Court, he failed to articulate clearly that he was challenging whether his waiver

was knowing and intelligent. Given Treesh’s failure to clearly raise the issue before the

Ohio Supreme Court, it is not surprising that the court’s treatment of the issue was not

entirely cogent. Nonetheless, the Ohio Supreme Court implicitly concluded that

Treesh’s waiver was knowing and intelligent. Although the Ohio Supreme Court never

explicitly stated that Treesh made a knowing and intelligent waiver of his rights, it

acknowledged that waivers must be knowing and intelligent. Treesh, 739 N.E.2d at 763-

64 (“It is well established that a defendant who is subjected to custodial interrogation

must be advised of his or her Miranda rights and make a knowing and intelligent waiver

of those rights before statements obtained during interrogation will be admissible.”). It

also considered factors relevant to that analysis. For example, in examining the facts

underlying his claim, the court noted that Doyle testified that Treesh did not appear to

be under the influence of drugs or alcohol, and that Treesh acknowledged awareness of
No. 07-3524 Treesh v. Bagley Page 10

his rights several times throughout the interviews and eventually signed two written

waivers of his rights. Id. at 764-65. The court held that “Treesh was sufficiently

apprised of his Miranda rights,” id. at 765, and went on to conclude that “appellant’s

waiver was not improperly obtained,” id. at 766.

A suspect may waive his Miranda rights “provided the waiver is made

voluntarily, knowingly, and intelligently.” Miranda, 384 U.S. at 444. “The waiver

inquiry ‘has two distinct dimensions.’” Berghuis v. Thompkins, 560 U.S. --, 130 S. Ct.

2250, 2260 (2010) (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)).

First, the relinquishment of the right must have been voluntary in the

sense that it was the product of a free and deliberate choice rather than

intimidation, coercion, or deception. Second, the waiver must have been

made with a full awareness both of the nature of the right being

abandoned and the consequences of the decision to abandon it. Only if

the “totality of the circumstances surrounding the interrogation” reveal

both an uncoerced choice and the requisite level of comprehension may

a court properly conclude that the Miranda rights have been waived.

Moran, 475 U.S. at 421. An express written or oral statement of waiver is not required.

North Carolina v. Butler, 441 U.S. 369, 373 (1979). Moreover, although mere silence

is not enough to establish a waiver, “silence, coupled with an understanding of his rights

and a course of conduct indicating waiver, may [] support a conclusion that a defendant

has waived his rights.” Id. Thus, “[w]here the prosecution shows that a Miranda

warning was given and that it was understood by the accused, an accused’s uncoerced

statement establishes an implied waiver of the right to remain silent.” Thompkins, 130

S. Ct. at 2262.

The Ohio Supreme Court’s conclusion that Treesh waived his rights was not an

unreasonable application of federal law. When Treesh failed to respond after Janusczak

asked Treesh if he understood the rights just read to him, Janusczak began to recite the

Miranda warnings again. Treesh interrupted him, however, and said “Yeah, yeah, I

know.” He later indicated to Doyle that he understood his rights (admittedly after an

incorrect recitation of those rights), and agreed to talk. Additionally, Treesh was able

to at least partially recite his Miranda rights. Although he never specifically stated that
No. 07-3524 Treesh v. Bagley Page 11

2

Treesh contends that the fact that he repeatedly indicated that he understood the Miranda

warnings being read to him, despite the fact that those warnings were either inaccurate or incomplete,

indicates that he did not understand his rights. We disagree. Although Treesh never objected when

inaccurate warnings were read to him, the remainder of his actions indicated he understood his rights. He

repeatedly said he knew his rights and that they had already been read to him. In addition, he was able to

partially recite those rights during his interrogation. Accordingly, we do not find this fact persuasive.

he waived his rights, such a showing is not required to prove waiver. See id. at 2261.

Treesh’s actions indicated that he was aware of his rights and that he waived them. He

never invoked his right to counsel or his right to silence. Considering the circumstances,

the Ohio Supreme Court’s conclusion that Treesh waived those rights was not an

unreasonable application of federal law.

Additionally, the record indicates that the Ohio Supreme Court did not

unreasonably apply federal law in concluding that Treesh’s waiver was knowing and

intelligent. To be deemed knowing and intelligent, “[t]he Constitution does not require

that a criminal suspect know and understand every possible consequence of a waiver of

the Fifth Amendment privilege.” Spring, 479 U.S. at 574. Instead, “we examine ‘the

particular facts and circumstances surrounding [the] case, including the background,

experience, and conduct of the accused,’” Garner v. Mitchell, 557 F.3d 257, 260 (6th

Cir. 2009) (alterations in original) (quoting Johnson v. Zerbst, 304 U.S. 458, 464

(1938)), to determine “whether the ‘suspect [knew] that he [could] choose not to talk to

law enforcement officers, to talk only with counsel present, or to discontinue talking at

any time,’” id. (alterations in original) (quoting Spring, 479 U.S. at 574). “[T]he

Supreme Court has never said that impairments from drugs, alcohol, or other similar

substances can negatively impact” a suspect’s waiver of his Miranda rights. Matylinsky

v. Budge, 577 F.3d 1083, 1095 (7th Cir. 2009).

The evidence supports the Ohio Supreme Court’s implicit conclusion that Treesh

knowingly and intelligently waived his rights. He appears to have understood the rights

Janusczak read to him, evidenced by his interrupting Janusczak’s second recitation of

those rights and saying “Yeah, yeah, I know.”2

 Additionally, he continuously told

officers who interrogated him that his rights had been read to him and was even able to

partially recite those rights. Moreover, every officer who interrogated Treesh testified
No. 07-3524 Treesh v. Bagley Page 12

that he appeared to be coherent, was not confused or disoriented by the questions they

asked, and did not appear to be under the influence of drugs or alcohol. In further

support of the conclusion that Treesh made a knowing and intelligent waiver of his

rights, Treesh ultimately signed a written waiver. Treesh later testified that he was

familiar with the criminal justice system, that he knew his rights, and that he knew where

he was when he arrived at the Eastlake Police Station. Given the officer’s testimony

regarding Treesh’s mental state, as well as Treesh’s statements to police and other

indications that he understood his rights, it was not unreasonable for the Ohio Supreme

Court to conclude that Treesh knowingly and intelligently waived his Miranda rights.

b. Voluntariness of the waiver

In his brief, Treesh contends that “even if [he] had been properly warned of and

had knowingly waived his Miranda rights, his statements were not voluntary,” because

he “was coerced into confessing when Officer Doyle lied to him by falsely claiming that

a video tape of the crime existed, and by exploiting Treesh’s desire to exonerate his girl

friend.” Treesh also argues that the officers were “overreaching” by exploiting Treesh’s

exhaustion and cocaine-induced high. Nonetheless, he cites no case law in support of

his argument.

“[I]t is a ‘settled appellate rule that issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed waived.’”

United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996) (quoting United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990)); see also United States v. Layne, 192 F.3d 556,

566-67 (6th Cir. 1999) (deeming issue waived where defendant did not make a legal

argument regarding the issue). Because Treesh has not developed a legal argument

regarding the voluntariness of his statement, he has forfeited this issue on appeal.

C. Ineffective Assistance of Counsel

Treesh asserts that he was denied the effective assistance of counsel when trial

counsel failed to challenge jurors Cynthia Barth and Barbara Modica for cause. Cynthia

Barth took paralegal classes taught by the prosecutor in this case, Charles Coulson. The
No. 07-3524 Treesh v. Bagley Page 13

trial judge asked Barth whether “[t]he fact that [Coulson] was [her] instructor[] would

. . . put [her] in a position that [she] could not listen to the case and render a fair and

impartial verdict?” Barth responded that it would not. Coulson followed up on the issue

with the following exchange:

Coulson: Mrs. Barth, I see you are a paralegal. Did I help you get

there?

Barth: Yes.

 . . . 

Coulson: Do you think your experience as a paralegal would in any

way interfere with your ability to listen to the law as the

Judge gives it to you and apply it in this case?

Barth: No, I think it would help actually.

Coulson: You think you might be able to understand these

instructions even better?

Barth: Hopefully.

Coulson: Well if I did any good, I hope so. I had you for research

and writing?

Barth: Yes.

Coulson: I think you mentioned that.

Barth: Actually I think that your paralegal was there more than

you were. I didn’t mean to embarrass you.

Treesh’s trial counsel did not ask Barth any questions about her relationship with

Coulson. Counsel passed for cause and Barth was seated as a juror.

During voir dire, Modica admitted that she had seen media reports about the case

and made statements suggesting that she was predisposed in favor of the death penalty.

Modica stated that she had read three to four articles about the case in the Cleveland

Plain Dealer, that she “followed” the case, found it interesting, had discussed the case

with friends (but not at great length), and that she would presume the articles were

“pretty much accurate.” However, she noted that she did not believe everything she read

in the newspaper. Modica also stated that she would be able to ignore what she read and
No. 07-3524 Treesh v. Bagley Page 14

decide the case based on the evidence presented in the courtroom. Treesh’s counsel did

not follow-up regarding Modica’s exposure to the case. In response to her statement that

she believed in the death penalty, however, Treesh’s counsel had the following exchange

with Modica:

Hawkins: You indicated to both the Judge and the Prosecutor that

you favor the death penalty, that correct?

Modica: When it’s warranted. . . . It seems to me that if someone

is judged guilty of a crime that’s heinous enough to even

bring that charge against him, if he’s guilty I don’t see

even why he should be up and walking around.

Hawkins: Now, you said heinous crime, what crimes did you have

in mind when you said that?

Modica: Well, murder is what I am thinking.

Hawkins: Do you think anybody that purposely kills another,

purposely murders another themselves should be put to

death?

Modica: No. . . . If it was something happens that wasn’t planned

ahead of time, or – – I don’t know exactly. . . . I am

thinking maybe if you did it out of a moment of instant

passion, or something like that.

Nonetheless, Modica also mentioned several factors that would impact her decision

regarding the death penalty, including a person’s reasons for committing murder,

whether he was mentally retarded or had developmental difficulties, and whether he was

under the influence of drugs. She also stated that she would be able to make a decision

based on the evidence presented and apply the law as directed by the judge. Treesh’s

counsel passed for cause as to Modica and she was seated as a juror.

1. Legal Standard

We engage in a two-part inquiry when reviewing ineffective-assistance-ofcounsel claims: 

First, the defendant must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that counsel

was not functioning as the “counsel” guaranteed the defendant by the
No. 07-3524 Treesh v. Bagley Page 15

Sixth Amendment. Second the defendant must show that the deficient

performance prejudiced the defense. This requires a showing that

counsel’s errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984). We are not required to “address

both components of the inquiry if the defendant makes an insufficient showing on one.”

Id. at 697. For example, we “need not determine whether counsel’s performance was

deficient before examining the prejudice suffered by the defendant as a result of the

alleged deficiencies.” Id. Because “it is easier to dispose of [Treesh’s] ineffectiveness

claim on the ground of lack of sufficient prejudice,” we do not determine whether trial

counsel’s performance was deficient. Id.

Treesh asserts that no state court evaluated the prejudice prong of Strickland, and

that we should therefore not apply AEDPA deference to that prong. We disagree. In

discussing the controlling law for ineffective assistance of counsel claims, the Ohio

Supreme Court cited the appropriate prejudice standard under Strickland. Treesh, 739

N.E.2d at 778. In rejecting the specific claims at issue here, it explained as follows:

Treesh contends that his counsel were ineffective for failing to challenge

two jurors, Cynthia Barth and Barbara Modica, during voir dire. Treesh

argues that counsel should have challenged Barth because she had taken

paralegal classes taught by the prosecutor, Charles Coulson. Treesh

claims that counsel should have challenged juror Modica due to her

media exposure about the case and her alleged predisposition in favor of

the death penalty. We find both contentions meritless. It is unlikely that

a challenge for cause, if made, would have succeeded in either case.

Barth testified that her past affiliation with Coulson’s paralegal course

would not impair her ability to render a fair and impartial verdict.

Likewise, though Modica admitted exposure to some newspaper articles

about the case, and admitted that she favored the death penalty “[w]hen

it’s warranted,” she stated that she had not formed an opinion about the

case and that she could fairly and impartially weigh the evidence

presented.

Id. at 779. Although the Ohio Supreme Court did not use the word “prejudice” in this

particular discussion, it is clear that its conclusion was based on the prejudice prong.

The court reasoned that “[i]t is unlikely that a challenge for cause, if made, would have
No. 07-3524 Treesh v. Bagley Page 16

succeeded in either case.” Id. This clearly entails an adjudication on prejudice grounds.

However, because the court did not set out the general juror-bias standard in discussing

whether trial counsel’s failure to challenge the jurors for cause was prejudicial, we

review the claim through AEDPA’s contrary-to clause. Packer, 537 U.S. at 8

(explaining that where the state court does not cite federal law, we may only grant

habeas “so long as neither the reasoning nor the result of the state-court decision

contradicts [federal law]”).

To establish prejudice, Treesh “must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S. at 694. Strickland defined “reasonable

probability” as “a probability sufficient to undermine confidence in the outcome.” Id.

To show prejudice arising out of trial counsel’s failure to challenge a juror, however,

Treesh must show that the juror was biased against him. Johnson v. Luoma, 425 F.3d

318, 328 (6th Cir. 2005). If a biased juror was impaneled, “prejudice under Strickland

is presumed, and a new trial is required.” Hughes v. United States, 258 F.3d 453, 463

(6th Cir. 2001).

Bias may be actual or implied. See Johnson, 425 F.3d at 326. “Actual bias is

‘bias in fact’—the existence of a state of mind that leads to an inference that the person

will not act with entire impartiality.” Hughes, 258 F.3d at 463 (citation and internal

quotation marks omitted). “The doctrine of presumed or implied, as opposed to actual,

bias provides that, in certain ‘extreme’ or ‘exceptional’ cases, courts should employ a

conclusive presumption that a juror is biased.” Johnson, 425 F.3d at 326 (quoting

United States v. Frost, 125 F.3d 346, 379 (6th Cir. 1997)). We may presume bias “only

where the relationship between a prospective juror and some aspect of the litigation is

such that it is highly unlikely that the average person could remain impartial in his

deliberations under the circumstances.” Id. (internal quotation marks and citation

omitted). Examples of such a relationship are “that the juror is an actual employee of

the prosecuting agency, that the juror is a close relative of one of the participants in the

trial or the criminal transaction, or that the juror was a witness or somehow involved in
No. 07-3524 Treesh v. Bagley Page 17

the criminal transaction.” Smith v. Phillips, 455 U.S. 209, 222 (1982) (O’Connor, J.,

concurring).

2. Cynthia Barth

Treesh asserts that we may presume that Barth was biased against him based on

her student-teacher relationship with Coulson, and that she was actually biased. First,

as to implied bias, we have previously expressed doubt over the continued viability of

the doctrine of implied bias after Smith. See Johnson, 425 F.3d at 326 (“Courts that have

reviewed the Smith decision, including this circuit, have suggested that the majority’s

treatment of the issue of implied juror bias calls into question the continued vitality of

the doctrine.”). Nonetheless, even accepting its continued viability, there is no Supreme

Court precedent recognizing implied bias from a mere student-teacher relationship.

Although Coulson was the instructor for Barth’s research and writing course, Barth

stated that she thought his “paralegal was there more than” he was. There is nothing in

the record that indicates that Coulson’s and Barth’s relationship rose to the level of the

sort of extreme or exceptional case where bias is conclusively presumed. Thus, the Ohio

Supreme Court’s failure to find implied bias was not contrary to clearly established

federal law.

Additionally, the record does not establish actual bias. Barth and Coulson did

not appear to have had a close relationship. Barth also indicated that Coulson’s status

as her former instructor would not put her in a position such that she “could not listen

to the case and render a fair and impartial verdict.” Finally, she swore “to well and truly

try the issue joined between the parties in this case and a true verdict enter according to

the evidence.” Considering Barth’s ability to promise to be impartial and the lack of

evidence in the record indicating she was actually biased, we agree with the Ohio

Supreme Court’s conclusion that a challenge for cause against Barth would have most

likely been unsuccessful. Without actual or implied bias, Treesh cannot demonstrate

prejudice from the seating of Barth.
No. 07-3524 Treesh v. Bagley Page 18

3. Barbara Modica

Treesh asserts that Modica was actually biased against Treesh, given her

predisposition in favor of the death penalty and her prior exposure to media coverage of

the case. “[I]t is beyond question that mere prior knowledge of the existence of the case,

or familiarity with the issues involved, or even some preexisting opinion as to the merits,

does not in and of itself raise a presumption of jury taint.” DeLisle v. Rivers, 161 F.3d

370, 382 (6th Cir. 1998) (en banc). “Where pretrial publicity cannot be presumed

prejudicial, [we] must then determine whether it rises to the level of actual prejudice.”

Foley v. Parker, 488 F.3d 377, 387 (6th Cir. 2007). To assess actual prejudice, we

review the voir dire of prospective jurors. Id. “The relevant question is ‘did [the] juror

swear that [she] could set aside any opinion [she] might hold and decide the case on the

evidence, and should the juror’s protestation of impartiality have been believed.’” Id.

(quoting Patton v. Young, 467 U.S. 1025, 1036 (1984)). Modica swore she could set

aside any prior opinion, and nothing in the record indicates that her prior exposure to the

case via media coverage undermined her promise to be impartial.

Similarly, Modica’s statements regarding the death penalty do not demonstrate

actual bias. “[A] prospective juror may be excluded for cause because of his or her

views on capital punishment . . . [when] the juror’s views would ‘prevent or substantially

impair the performance of [her] duties as a juror in accordance with [her] instructions

and [her] oath.’” Wainwright v. Witt, 469 U.S. 412, 424 (1985) (quoting Adams v.

Texas, 448 U.S. 38, 35 (1980)). “A juror who will automatically vote for the death

penalty in every case will fail in good faith to consider the evidence of aggravating and

mitigating circumstances as the instructions require [her] to do.” Morgan v. Illinois, 504

U.S. 719, 729 (1992). Nonetheless, after carefully reviewing the record, there is nothing

to indicate that Modica’s views on the death penalty would have prevented her from

returning anything less than a death sentence. It is true that Modica initially indicated

that she thought that anyone guilty of murder should not be “up and walking around.”

However, when pressed to consider the issue further, she admitted that she did not

believe that everyone who purposely murdered should be sentenced to death. She
No. 07-3524 Treesh v. Bagley Page 19

explained that such a sentence may not be warranted when the murder was the result of

momentary passion, and indicated that she would consider factors such as why the

defendant committed the murder, what the circumstances were, whether the defendant

was mentally retarded or had developmental difficulties as a child, and whether he was

using drugs at the time. These statements suggest that Modica would not “automatically

vote for the death penalty in every case,” and demonstrate that she could take into

consideration mitigating factors. Accordingly, the Ohio Supreme Court’s conclusion

that it was unlikely that Modica would have been excluded pursuant to a challenge for

cause is not contrary to clearly established Supreme Court precedent.

D. Certificate of Appealability

Treesh also argues that he is entitled to a COA on his claim that lethal injection

as conducted in Ohio violates the Eighth Amendment. Under AEDPA, an appeal from

the denial of a writ of habeas corpus may not be taken unless a COA has been issued.

28 U.S.C. § 2253(c)(1). A COA may not issue unless “the applicant has made a

substantial showing of the denial of a constitutional right.” § 2253(c)(2). We decline

to expand Treesh’s COA, because he has not “made a substantial showing of the denial

of a constitutional right.” See Cooey (Biros) v. Strickland, 589 F.3d 210 (6th Cir. 2009).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s denial of Treesh’s

petition.
No. 07-3524 Treesh v. Bagley Page 20

_____________________

CONCURRENCE

_____________________

CLAY, Circuit Judge, concurring. I agree with the majority opinion that Treesh

has failed to present clear and convincing evidence that Officer Janusczak did not

properly administer the Miranda warnings to Treesh upon his arrest. However, I write

separately to note that there might be other cases containing multiple sets of warnings

where later inaccurate warnings render any subsequent statements inadmissible under

Miranda because they create confusion as to whether the suspect was misled or confused

regarding his Miranda rights.

In the instant case, Officer Janusczak testified that immediately after he

handcuffed Treesh, he recited the full Miranda warnings and asked Treesh whether he

understood his rights. Treesh gave no response. Officer Janusczak began to repeat the

warnings, whereupon Treesh turned and said “Yeah, yeah, I know.” (J.A. at 3528; Supp.

Tr. at 15). On cross-examination, Officer Janusczak further testified that he “make[s]

it a point to mirandize everybody [he] arrest[s],” regardless of whether he plans to

interrogate them. (J.A. at 3538, Supp. Tr. at 25). Petitioner’s only evidence to the

contrary is his denial that he received Miranda warnings upon arrest. Based on this

evidence, we cannot dismiss the state court finding that Officer Janusczak properly

administered the Miranda warnings to Treesh and that Treesh responded with a

statement indicating that he knew and understood those rights. Furthermore, because the

circumstances between the arrest and the interrogation two hours later had not changed

so significantly that the officers in this case were required to readvise Treesh of his

Miranda rights under Wyrick v. Fields, 459 U.S. 42 (1982), Treesh’s subsequent

statements were not made in violation of his Miranda rights.

Nonetheless, I hesitate to adopt, as the majority does, the state court’s finding

that the defective warnings given to Treesh by Lieutenant Doyle at the outset of his

interrogation “reminded” Treesh of the previously administered correct warnings.

Treesh’s statements are admissible not because the partial warnings were an adequate
No. 07-3524 Treesh v. Bagley Page 21

reminder of Treesh’s rights, but because the officers were not required to readvise

Treesh of his rights under these circumstances. Conversely, in a case where a suspect

has not clearly acknowledged that he understood his rights and a later set of inaccurate

warnings could have counteracted the accurate warnings or confused the suspect as to

the true nature of his rights, his subsequent confession could be inadmissible.

In addition, I write separately to note that I concur with the majority’s conclusion

that Treesh is not entitled to an expansion of his COA on his lethal injection claim, but

for a different reason. Treesh has already submitted a COA application to this Court,

which was denied on September 2, 2008, in which he did not ask this Court to grant a

COA on this claim. Thus, Treesh has forfeited this claim.

For the foregoing reasons, I respectfully concur.