RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0096p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

JAMES R. GOFF,

 Petitioner-Appellant,

v.

MARGARET BAGLEY, Warden,

 Respondent-Appellee.

X

-

-

-

-

>

,

-

-

-

N

No. 06-4669

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 02-00307—James L. Graham, District Judge.

Argued: April 28, 2009

Decided and Filed: April 6, 2010 

Before: MERRITT, MOORE, and GILMAN, Circuit Judges.

_________________

COUNSEL

ARGUED: David J. Graeff, Westerville, Ohio, for Appellant. Laurence R. Snyder,

OFFICE OF THE OHIO ATTORNEY GENERAL, Cleveland, Ohio, for Appellee.

ON BRIEF: David J. Graeff, Westerville, Ohio, W. Joseph Edwards, LAW OFFICE

OF W. JOSEPH EDWARDS, Columbus, Ohio, for Appellant. Laurence R. Snyder,

OFFICE OF THE OHIO ATTORNEY GENERAL, Cleveland, Ohio, for Appellee.

MOORE, J., delivered the opinion of the court, in which GILMAN, J., joined.

MERRITT, J. (pp. 47-49), delivered a separate opinion concurring in part and dissenting

in part. 

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Petitioner-Appellant James R. Goff

(“Goff”) appeals the district court’s denial of his petition for a writ of habeas corpus

filed pursuant to 28 U.S.C. § 2254. Goff was convicted in Ohio state court in 1995 of

1
No. 06-4669 Goff v. Bagley Page 2

1

The two murder convictions were merged into one count of aggravated murder with an

aggravated burglary specification.

two counts of aggravated murder (each with one capital specification),1 three counts of

aggravated burglary, two counts of aggravated robbery, and one count of grand theft.

He was sentenced to death.

The district court certified seventeen claims for appeal, but we are primarily

concerned with only two. First, Goff asserts that the jury instructions given during the

penalty phase of his trial regarding unanimity and mitigating factors were flawed.

Second, Goff asserts that his appellate counsel was ineffective for failing to raise a claim

during Goff’s direct appeal to the Ohio Court of Appeals that Goff was denied his right,

under Ohio law, to allocute before sentencing.

For the reasons discussed below, we conclude that Goff is entitled to relief on the

basis of the second issue, but that recent Supreme Court precedent precludes his first

issue. We conclude that Goff’s remaining assignments of error are meritless. We

therefore REVERSE the decision of the district court and GRANT Goff a conditional

writ of habeas corpus based on Goff’s ninth and twelfth assignments of error.

I. BACKGROUND

On January 24, 1995, a Clinton County, Ohio, grand jury indicted Goff on two

counts of aggravated murder (each with a capital specification), three counts of

aggravated burglary, two counts of aggravated robbery, and two counts of grand theft

with specifications. Following a trial, Goff was convicted of all counts except for one

count of grand theft and the grand-theft specifications. At the conclusion of the penaltyphase hearing, the jury recommended that Goff be sentenced to death. The trial judge

then conducted his own weighing of the mitigating and aggravating factors and

sentenced Goff to death. Goff appealed to the Twelfth District Court of Appeals for

Clinton County, Ohio, which affirmed his convictions and sentence. State v. Goff, No.

CA95-09-026, 1997 WL 194898, at *31 (Ohio Ct. App. Apr. 21, 1997). Goff then
No. 06-4669 Goff v. Bagley Page 3

appealed to the Ohio Supreme Court, which affirmed Goff’s death sentence and made

the following findings of fact:

[Myrtle] Rutledge, an eighty-eight-year-old woman, was in the

process of moving out of her old farmhouse and into a new doublewide

trailer home that was built directly behind the farmhouse. Her daughter,

Esther Crownover, had been helping her sort out items from the old

house, in which she had lived for forty-seven years.

Rutledge decided to purchase some new furniture for her new

house, and on September 14, 1994, she and Crownover went to Butler

Home Furnishings in Wilmington, Ohio. After purchasing a new

mattress, box springs, chair, ottoman, and sofa, Rutledge made

arrangements for the furniture to be delivered the next day.

Butler Home Furnishings had employed appellant for furniture

deliveries for about a year. Harold E. Butler, Jr., the son of the owner,

would contact appellant when he had a delivery and then, depending on

the item, would get another person to assist appellant with the delivery.

Butler Furnishings had also used Manuel Jackson as a delivery person for

the seven months prior to September 1994.

Appellant and Jackson were contacted to make the delivery to

Rutledge on September 15, 1994. When appellant and Jackson arrived

with the furniture, Rutledge directed them to put the new furniture in the

new house. Since there was no bed frame in the new house, appellant

asked whether Rutledge wanted them to obtain the frame from the old

house and assemble the bed in the new house. After they indicated that

they would not charge Rutledge any additional money for this service,

Rutledge took them into the old house, up to the second floor, and

pointed out the bed frame that was to be used with the new bedding. The

old house was in a state of disarray from the ongoing moving process.

Jackson thought he saw appellant “snooping” through Rutledge’s

belongings.

Appellant and Jackson disassembled the old bed, took the frame

to the new house, and set up the new bed. While Jackson finished the

assembly, appellant obtained Rutledge’s signature on the delivery form.

Later that afternoon, Rodney Rutledge, the victim’s son, arrived

at his mother’s house around 4:00 p.m. to mow the lawn. She showed

him her new furnishings that had been delivered that day. When he left

(around 5:30 p.m.), his mother’s car was parked in the driveway next to

the house.

On the night of September 15, Myrtle Rutledge spoke on the

telephone to her sister (6:30-7:00 p.m.) and her sister-in-law (around 9:00
No. 06-4669 Goff v. Bagley Page 4

p.m.) concerning the upcoming family reunion on Saturday, September

17. On Friday, September 16, 1994, Rutledge’s son drove past his

mother’s house six different times during the course of his employment.

Each time his mother’s car was not parked in the driveway next to the

house. Rutledge’s sister also drove past the house and noticed the car

was not there.

On Saturday morning, Crownover went to Rutledge’s home to

pick her up for the reunion. The car was not there, and when her mother

did not answer the door, Crownover assumed that she had already left for

the reunion. When she arrived at the reunion her mother was not there.

She went back to her mother’s house, entered, and went upstairs to her

mother’s bedroom. There she found her mother’s battered and naked

body lying on the floor of the bedroom. A pool of blood was on the bed,

as well as the floor area. After ascertaining that there was no pulse, she

tried using the phone to call the police, but there was no dial tone. She

covered her mother with a blanket and drove to the police station.

The police and an ambulance were dispatched. Once it was

determined that Rutledge was dead, the police secured the scene and

began a criminal investigation. Deputy Sheriff Fred W. Moeller, the

crime scene investigator, determined that the door to the victim’s house

had been forced open. Someone had apparently tried to enter the home

through a window, because the window screen was lying on the ground

outside the house, but entry was not made though the window. The

phone wires on the outside of the house were cut.

No fingerprints were found in the bedroom. In Moeller’s opinion,

the room had been cleaned. Other fingerprint smudges were found in the

house, but never matched. There was no evidence of blood anywhere

else in the house except the bedroom. Denise K. Rankin, a serologist,

identified a pubic hair found at the scene as being consistent with a pubic

hair obtained from appellant after his arrest.

After Moeller left the scene to return to the police station, he was

notified that the victim’s car was found on North High Street in the city

of Wilmington. He went to the scene, and the keys to the car were found

on the floor on the driver’s side. A pink towel was on the front seat of

the car, and no prints were found anywhere on the car. Moeller believed

that someone had wiped down the car.

The deputy coroner testified that Rutledge died from blunt and

sharp trauma to the head, neck, shoulders, and ankle. Her death also

resulted from blood loss due to multiple stab wounds, one of which

severed the carotid artery. The coroner was unable to determine the time

of death.
No. 06-4669 Goff v. Bagley Page 5

When appellant and Jackson left Rutledge’s house after

delivering the furniture on September 15, they purchased some crack

cocaine and went to appellant’s house to smoke it. Appellant later

returned the truck to the furniture store.

Jackson did not see appellant again until 1:00-1:30 a.m. the

following morning when he saw him running through an alley. Jackson

later saw him on Grant Street. Appellant had changed his clothes from

earlier in the day when they had delivered the furniture.

Appellant asked Jackson whether he wanted to smoke some

crack, showing him what Jackson thought was about $80 worth of crack.

Jackson was with Tim Bart, and all three proceeded to appellant’s house.

After they smoked the crack, which took a couple of hours, Bart

suggested stealing some meat to trade for more crack. They were going

to walk to the store, when appellant indicated he knew where there was

a car they could use, but it was stolen. Appellant said the car was on

North High Street. Bart and Jackson opted not to use the stolen car, and

they walked to Bob and Carl’s Meat Store. Bart stole the meat, and he

and appellant “took off.”

Jackson saw appellant around noon the next day, and appellant

asked him to tell anyone who asked, that he (appellant) had been with

Jackson from 9:00 p.m. on September 15 until 3:00 a.m. on September

16.

Later, on September 17, Timothy Shaffer found appellant playing

pool at a game room in Wilmington. Appellant, Shaffer, and David

Walls ended up at Shaffer’s trailer, where they smoked three to four

“joints.” All three left the trailer and went to buy some crack. After the

purchase, Shaffer and appellant went to appellant’s house to smoke the

crack. Appellant wanted Shaffer to sign a note saying that he (Shaffer)

helped in a crime committed on September 15, but Shaffer refused to

sign. Appellant went and stayed at Shaffer’s trailer until September 21.

While staying with Shaffer, appellant talked with him about

Rutledge’s death. Appellant asked Shaffer what he would do if he killed

someone. Appellant then told him he stabbed a lady and bent the blade

of the knife. He also choked her. Appellant then told Shaffer he took her

car and left it in front of the Mulberry Hill Apartments. After wiping the

steering wheel, he drove the car to North High Street, where he left it,

and then bought about $90 worth of crack and smoked it. Appellant

admitted that he went to Rutledge’s house to rob her.

On September 21, Shaffer saw a newspaper article about the

Rutledge murder and asked appellant to leave his trailer. About two

weeks later, Shaffer received a letter from appellant telling him that his
No. 06-4669 Goff v. Bagley Page 6

(appellant’s) life was in Shaffer’s hands and to not tell anyone. Shaffer

eventually called Colonel Tim Smith at the sheriff’s department, and

turned over a pair of tennis shoes and a laundry basket belonging to

appellant. Shaffer ultimately told Smith all of what appellant had said

about the murder.

Appellant was arrested on September 21, 1994 on a drug charge.

During the interrogation, appellant admitted that he had a crack habit,

that he bought crack whenever he could, and that he would steal and

trade items to buy crack. He indicated that he delivered furniture to the

Rutledge residence, but when questioned about the murder, appellant

asked for an attorney and questioning ceased.

The state also presented three inmates, Jerry Lee Price, Danny

Smith, and Keith Jones, to testify to various statements appellant had

made to them regarding the Rutledge crime while incarcerated on the

drug charge. Smith’s testimony was excluded, since he failed to identify

appellant in court; however, both Price and Jones testified regarding the

murder.

Jones’s testimony was by far the most damaging. Appellant told

Jones that he had delivered furniture to an old lady in her late 80’s. She

had given appellant some money when he put the new bed together and

later that night he went back to get the rest of the money he saw she had.

Appellant entered through the kitchen and found Rutledge in the

bedroom. Appellant told him that Rutledge called him “Jimmy,” so he

“had to get rid of the bitch.” Jones asked him questions concerning the

crime because Jones could not believe appellant could do such a thing to

an old woman. Appellant asserted that she had lived her life, and since

she could send him to prison, he had to kill her. After he took the money

and the car, he went and bought crack. Appellant ran into a friend and

they went and smoked it. Appellant said he killed her by himself, using

a fishing tackle knife from his house. He told Jones they would never

find the knife because he got rid of it. Jones wrote a letter to the

prosecutor’s office, although he was not sure he believed appellant, but

that he (Jones) had an elderly mother and could not think of something

like that happening to her.

State v. Goff (Goff I), 694 N.E.2d 916, 918-21 (Ohio 1998). Goff filed a motion to

reconsider in the Ohio Supreme Court, which denied the motion on July 22, 1998. State

v. Goff, 696 N.E.2d 1089 (Ohio 1998). Goff then filed a petition for a writ of certiorari

with the United States Supreme Court, which denied the writ on June 24, 1999. Goff v.

Ohio, 527 U.S. 1039 (1999).
No. 06-4669 Goff v. Bagley Page 7

Goff also filed a motion for postconviction relief pursuant to OHIO REV. CODE

§ 2953.21, which the state trial court denied on procedural and substantive grounds

without an evidentiary hearing. See State v. Goff (Goff II), No. CA2000-05-014, 2001

WL 208845, at *1 (Ohio Ct. App. Mar. 5, 2001). The Ohio Court of Appeals affirmed

this denial, id. at *10, and the Ohio Supreme Court declined review, State v. Goff, 749

N.E.2d 756 (Ohio 2001).

Additionally, Goff filed a motion for relief from judgment, making claims very

similar to those raised in his motion for postconviction relief, which both the trial court

and the Ohio Court of Appeals denied. State v. Goff, No. CA2000-10-026, 2001 WL

649820, at *1 (Ohio Ct. App. June 11, 2001). The Ohio Supreme Court again declined

review. State v. Goff, 754 N.E.2d 261 (Ohio 2001).

Goff next applied to reopen his direct appeal pursuant to Rule 26(B) of the Ohio

Rules of Appellate Procedure, alleging ineffective assistance of appellate counsel, and

the Ohio Court of Appeals denied the application on procedural and substantive grounds.

See State v. Goff (Goff III), 784 N.E.2d 700, 701 (Ohio 2003). The Ohio Supreme Court

affirmed this decision on March 19, 2003, noting that “Goff ha[d] failed to raise a

genuine issue as to whether [he] was deprived of the effective assistance of counsel on

appeal before the court of appeals, as required by App.R. 26(B)(5).” Id. (internal

quotation marks omitted) (second alteration in original).

In May 2002, Goff filed a petition for a writ of habeas corpus in the United States

District Court for the Southern District of Ohio, alleging twenty-five constitutional

errors. Joint Appendix (“J.A.”) at 9-72 (Goff Pet. for Writ). Without holding an

evidentiary hearing, the district court denied each claim. Goff v. Bagley (Goff IV), No.

1:02-cv-307, 2006 WL 3590369 (S.D. Ohio Dec. 1, 2006). Goff filed a motion for a

certificate of appealability (“COA”), and the district court certified seventeen claims for

appellate review, including whether Goff received ineffective assistance of appellate

counsel because his appellate counsel failed to raise the issue of Goff’s right to

allocution before sentencing. Goff v. Bagley (Goff V), No. 1:02-cv-307, 2007 WL
No. 06-4669 Goff v. Bagley Page 8

2

The district court granted a COA regarding whether “petitioner’s appellate attorneys provide[d]

constitutionally ineffective assistance of counsel by failing to raise the . . . failure of trial counsel to

recognize that James Goff was constitutionally entitled to allocution before sentencing.” Goff V, 2007 WL

2601096, at *10-11. However, because it is the duty of the sentencing court to ensure that the defendant

is provided the right to allocution, at least one Ohio court has noted that trial counsel is not ineffective for

failing to bring to the sentencing court’s attention the fact that the court has not provided the defendant an

opportunity to allocute. City of Defiance v. Cannon, 592 N.E.2d 884, 887-88 (Ohio Ct. App. 1990)

(“[O]nly the trial court has a duty with respect to affording a defendant the right to allocution. Because

counsel ha[s] no duty, [counsel’s] omission to advise [is] . . . neither deficient nor prejudicial.”). Thus,

under this view, appellate counsel is ineffective for failing to raise the sentencing court’s failure to provide

allocution, not for failing to raise a claim of ineffective assistance of trial counsel on the basis of the

absence of allocution.

Even assuming that Cannon is a correct statement of Ohio law, Cannon does not prevent us from

addressing the issue of whether Goff’s appellate counsel were ineffective when they failed to raise the

allocution issue. As an initial matter, Goff has argued the ineffective-assistance-of-appellatecounsel/allocution issue both as a failure to raise the issue of trial counsel’s ineffectiveness and as a failure

to raise the right to allocution directly. See Goff Br. at 79-80; Goff Reply Br. at 19. Further, aside from

the COA on the issue of ineffective assistance of appellate counsel, the district court granted a COA on

the issue of allocution: “Were Petitioner Goff’s constitutional rights violated when he was denied the right

to allocution before sentencing?” Goff V, 2007 WL 2601096, at *15. Under the two argument headings,

Goff has consistently noted his right to allocution under Ohio law. See J.A. at 53 (Pet. for Writ at 45);

Goff Reply Br. at 19. The district court discussed this issue as well. Goff IV, 2006 WL 3590369, at *33.

Additionally, in his Ohio Rule of Appellate Procedure 26(B) application before the Ohio Court of Appeals,

Goff reasserted his right to allocution under Ohio law. J.A. at 1237-38 (Rule 26(B) Application at 4-5).

Therefore, we conclude that Goff’s argument that his appellate counsel was ineffective for failing to raise

the issue of allocution in Goff’s direct appeal is encompassed by the COA. Cf. Hargrave v. McKee, 248

F. App’x 718, 723-24 (6th Cir. 2007) (unpublished opinion) (analyzing a COA to include a general

argument petitioner made in his briefs on appeal and before both the state court and the district court).

2601096, at *10-11, *15, *21 (S.D. Ohio Sept. 10, 2007).2 We now consider each of

Goff’s arguments.

II. ANALYSIS

A. Standard of Review

“In a habeas corpus proceeding, this Court reviews a district court’s legal

conclusions de novo and its factual findings for clear error.” Smith v. Mitchell, 567 F.3d

246, 255 (6th Cir.) (internal quotation marks omitted), cert. denied, 130 S. Ct. 742

(2009). Goff filed his habeas petition in May 2002, after the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and, thus, AEDPA

governs our review of Goff’s claims. Lindh v. Murphy, 521 U.S. 320, 326-27, 336

(1997). AEDPA provides that

(d) An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the
No. 06-4669 Goff v. Bagley Page 9

merits in State court proceedings unless the adjudication of the

claim—

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of

the evidence presented in the State court

proceeding.

28 U.S.C. § 2254(d) (emphases added). The Supreme Court has explained that

[u]nder the “contrary to” clause, a federal habeas court may grant the

writ if the state court arrives at a conclusion opposite to that reached by

this Court on a question of law or if the state court decides a case

differently than this Court has on a set of materially indistinguishable

facts. Under the “unreasonable application” clause, a federal habeas

court may grant the writ if the state court identifies the correct governing

legal principle from this Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.

Terry Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O’Connor, J., opinion of the

Court for Part II). We have stressed that “clearly established law under the Act

encompasses more than just bright-line rules laid down by the Court. It also clearly

includes legal principles and standards enunciated in the Court’s decisions.” Taylor v.

Withrow, 288 F.3d 846, 850 (6th Cir. 2002). We apply a presumption of correctness to

state court findings of fact, and the petitioner may rebut this presumption only “‘by clear

and convincing evidence.’” Bailey v. Mitchell, 271 F.3d 652, 656 (6th Cir. 2001)

(quoting 28 U.S.C. § 2254(e)(1); citing Seymour v. Walker, 224 F.3d 542, 552 (6th Cir.

2000); Sanders v. Freeman, 221 F.3d 846, 852 (6th Cir. 2000)).

B. Jury Instructions

In his first and second assignments of error, Goff argues that the state court’s

failure to provide clearer jury instructions on mitigation impermissibly required the jury

to reject unanimously a sentence of death, based on unanimous mitigation findings,

before considering a life sentence alternative and did not provide adequate guidance on
No. 06-4669 Goff v. Bagley Page 10

the use of mitigating factors. While the instant appeal was pending, the United States

Supreme Court granted certiorari and decided Smith v. Spisak (Spisak III), — U.S. —,

130 S. Ct. 696 (2010), rev’g Spisak v. Mitchell (Spisak I), 465 F.3d 684 (6th Cir. 2006),

vacated by Hudson v. Spisak, 128 S. Ct. 373 (2007), reinstated by Spisak v. Hudson

(Spisak II), 512 F.3d 852 (6th Cir. 2008), the resolution of which controls our disposition

of Goff’s first jury-instruction claim and counsels against our granting relief on the

second.

1. Jury Instructions Regarding “Acquit-first” and Unanimity in

Mitigation Factors

In his first assignment of error, Goff relies heavily on this court’s acquittal-first

jury-instruction opinion in Spisak I, which the Supreme Court reversed in Spisak III, 130

S. Ct. at 681-84. Indeed, Goff states in his brief that “the identical issue is presented

here.” Goff Br. at 19. Goff filed a pre-trial motion for a penalty-phase jury instruction

that, “in essence, . . . [the jury] need not unanimously reject the recommendation of a

death sentence before proceeding to consider the life sentences,” specifically requesting

an instruction that:

You, the jury, should first consider whether to return a verdict of

(recommend a sentence of) death.

You must unanimously agree that the aggravating circumstances are

sufficient to, and do outweigh, the mitigating circumstances in order to

return a verdict (recommendation) of death.

If you are unable to agree unanimously that a death sentence is

appropriate under this standard of proof, you are to proceed to consider

which of the life sentence verdicts (recommendations) to return.

You are not required to determine unanimously that the death sentence

is inappropriate before you consider the life sentences.

J.A. at 904-06 (Mot. for Penalty Phase Jury Instruction). Goff also requested an

additional instruction relating the lack of a unanimity requirement in finding mitigating

factors. Id. at 889-90 (Mot. to Instruct the Jury on the Lack of Requirement). The trial

court rejected both of Goff’s proposed instructions, id. at 437, 445-46 (Penalty Phase

Hr’g Tr. at 2442, 2450-51), and instructed the jury as follows:
No. 06-4669 Goff v. Bagley Page 11

In making your decision you will consider all the evidence, the

arguments of counsel, and all other information and all other reports

which are relevant to the nature and circumstances of the aggravating

circumstances or to any mitigating factors including, but not limited to,

the nature and circumstances of the offense, and 1) the history and

character and background of the Defendant, 2) the youth of the

Defendant, and 3) any other factors that are relevant to the issue of

whether the Defendant should be sentenced to death.

You are to weigh the aggravating circumstances which you have

already found against any mitigating factors which you find to exist.

You are limited in your consideration solely to your findings in Count 1

and Count 2 relating to the death of Myrtle Rutledge and those

aggravating circumstances which you have found to exist.

[Explaining findings related to Count 1 and Count 2] . . . .

Mitigating factors must be considered collectively when they are

weighed against the aggravating circumstances. The Prosecution has the

burden to prove beyond a reasonable doubt that the aggravating

circumstance[s], of which the Defendant was found guilty, outweigh the

factors in mitigation of imposing the death sentence. To outweigh means

to weigh more than or to be more important than. The existence of

mitigating factors does not preclude or prevent the death sentence, if you

find beyond a reasonable doubt that the aggravating circumstances

outweigh the mitigating factors. However, if you are not convinced by

proof beyond a reasonable doubt that the aggravating circumstances

outweigh the mitigating factors, then you must choose one of the two life

sentences.

You shall recommend death only if you unanimously find by

proof beyond a reasonable doubt that the aggravating circumstances

outweigh the mitigating factors. [I]f you do not so find, you shall

unanimously sign a verdict for either a sentence of life with parole

eligibility after serving 20 years of imprisonment or a sentence of life

with parole eligibility after serving 30 full years of imprisonment.

Verdict forms with these three options will be furnished to you.

Id. at 710-12 (Penalty Phase Hr’g Tr. at 2714-16). As to the verdict forms, the trial court

instructed the jury:

At this point I want to make a few comments with regard to the

verdict forms. You will have you in the Court [sic] six verdict forms.

They read as follows, “In the Court of Common Pleas, Clinton County,

Ohio,” they will have the same heading, “State of Ohio v. James Goff,

Case No. 95 5 008, Verdict, Recommendation of Death,” and then there
No. 06-4669 Goff v. Bagley Page 12

is a recitation of the specification to Count 1, and it says, “We, the Jury,

being duly impaneled, do hereby find beyond a reasonable doubt that the

aggravating circumstance outweighs the mitigating factors and

recommend to the Court the imposition of the death penalty.” If this is

your verdict form you would date it and sign it on one of the lines

provided.

The next one also refers to Count 1, same heading, but it reads,

“We, the Jury being duly impaneled, do not find beyond a reasonable

doubt that the aggravating circumstance outweighs the mitigating factors

and recommend to the Court that the Defendant receive life

imprisonment with parole eligibility after serving 30 full years.” If this

is your verdict, then you would date it and you would sign it.

The next one has the same heading, “Specification to Count 1,

Verdict, Life Imprisonment after 20 full years.” It reads, “We the Jury

being duly impaneled do not find beyond a reasonable doubt that the

aggravating circumstance outweighs the mitigating factors and

recommend to the Court that the Defendant receive life imprisonment

with parole eligibility after serving 20 full years.” Again, if this is your

verdict form then you would date it and each of you would sign it.

Those are the verdict forms with regard to Count -- the

specification to Count 1. The same three verdict forms exist for

specification to Count 2. Again, the “Specification to Count 2” is listed

at the top of the page. It says -- you would have three forms, “Verdict,

Life Imprisonment After 20 Full Years;[”] [“]Verdict, Life Imprisonment

After 30 Full Years;” and “Verdict, Recommendation of Death.”

Each verdict form, if that is your verdict, then you would date it

and you would sign it. If it’s the verdict for Recommendation of Death,

if that’s your verdict form, each of you must date it and sign it. If it’s

Life Imprisonment After 30 Full Years, you would date it and sign it, and

if it’s Life Imprisonment After 20 Full Years, then you would date it and

you would sign it.

. . . .

. . . When all 12 of you agree on a verdict, all of you should sign

the appropriate form in ink, as I’ve already indicated to you, and advise

the Bailiff and you will then be returned to the Courtroom.

Id. at 717-19 (Penalty Phase Hr’g Tr. at 2721-23) (first alteration in original).

On appeal, Goff presents a single argument that the trial court impermissibly

utilized an acquittal-first jury instruction coupled with an instruction requiring unanimity
No. 06-4669 Goff v. Bagley Page 13

in finding mitigation factors, and that these instructions were unconstitutional under

Spisak I. The Ohio Supreme Court rejected both the acquittal-first and mitigationunanimity arguments on direct appeal, specifically finding that the instructions were not

invalid under State v. Brooks, 661 N.E.2d 1030, 1040-42 (Ohio 1996), even though Goff

was tried six months before the Brooks decision, and that “[t]he jury was never told that

it had to make a unanimous finding on the individual factors before weighing them.”

Goff I, 694 N.E.2d at 921-22. The Ohio Supreme Court concluded that “the ‘substance’

of what the jury must determine was included in the charge given; therefore, [Goff] was

not prejudiced.” Id. at 922. The district court also rejected Goff’s arguments, finding

that the instructions did not violate the Supreme Court’s opinions in Mills v. Maryland,

486 U.S. 367 (1988), and McKoy v. North Carolina, 494 U.S. 433 (1990), and that this

court’s prior decision in Davis v. Mitchell, 318 F.3d 682 (6th Cir. 2003), while not a

Supreme Court precedent, was also distinguishable. Goff IV, 2006 WL 3590369, at *6-

10.

Because we are constrained by Spisak III, we agree with the district court. We

conclude that the jury instructions and verdict forms that Goff’s trial court utilized are

conceptually indistinguishable from those at issue in Spisak III, see Spisak III, 130 S. Ct.

at 682-84; Spisak I, 465 F.3d at 708-11, as Goff acknowledges in his brief. See Goff Br.

at 19 (“Spisak is significant since the identical issue is presented here.”). Therefore, we

are constrained to follow the Spisak III Court’s reasoning and to conclude that the jury

instructions properly “focused only on the overall balancing question[,] [a]nd the

instructions repeatedly told the jury to conside[r] all of the relevant evidence.” Spisak

III, 130 S. Ct. at 684 (third alteration in original); see also Hartman v. Bagley, 492 F.3d

347, 362-65 (6th Cir. 2007) (distinguishing case from Davis and Spisak I), cert. denied,

128 S. Ct. 2971 (2008). Goff is not entitled to relief on this claim.

Although a challenge to the jury instructions based on the perceived requirement

“‘to unanimously reject a death sentence before considering other sentencing

alternatives’” might still be available on AEDPA habeas review after the Court’s opinion
No. 06-4669 Goff v. Bagley Page 14

3

Goff also relies on this court’s prior opinion in Davis, as did the Spisak I panel, for this

proposition. See Spisak III, 130 S. Ct. at 689 (Stevens, J., concurring) (noting the Spisak I panel relied on

Davis for its erroneous conclusion that Mills clearly established that an acquittal-first instruction is

unconstitutional). Although the trial court’s unanimity instruction here, given after the instructions related

to the verdict forms, J.A. at 719 (Penalty Phase Hr’g Tr. at 2723), does somewhat resemble the unanimity

instruction rejected in Davis, 318 F.3d at 684, we conclude that any such argument relying on Mills is now

foreclosed under Spisak III, and we further note that the instructions and verdict forms at issue here are

distinguishable from those in Davis, see Davis, 318 F.3d at 689-90; see also Hartman, 492 F.3d at 362-65.

Additionally, we note that the Davis opinion was not decided until 2003, almost ten years after Goff’s trial.

See Davie v. Mitchell, 547 F.3d 297, 313-15 (6th Cir. 2008) (pre-Spisak III case rejecting petitioner’s

ability to rely on the Davis court’s Mills argument for alleged acquittal-first instruction because not clearly

established), cert. denied, 130 S. Ct. 503 (2009).

4

Both the Spisak III majority opinion and Justice Stevens’s concurring opinion held “that Mills

does not clearly establish that the [acquittal-first jury] instructions at issue were unconstitutional.” Spisak

III, 130 S. Ct. at 689 (Stevens, J., concurring) (citing Davis, 318 F.3d at 689, as the source of the Spisak

I court’s reliance on Mills).

in Spisak III,

3 see Spisak III, 130 S. Ct. at 684 (quoting Spisak I, 465 F.3d at 709); id. at

688-91 (Stevens, J., concurring), neither Goff nor any previous court below “referred to

Beck v. Alabama, 447 U.S. 625 (1980), or identified any other precedent from th[e

Supreme] Court setting forth this rule,” and the Court “ha[s] not, however, previously

held jury instructions unconstitutional for this reason,”4 id. at 684 (majority opinion).

Thus, this court need not decide whether any further arguments on this ground could

invalidate Goff’s jury instructions. See United States v. Hall, 549 F.3d 1033, 1042 (6th

Cir. 2008).

2. Refusal to Instruct Jury on Meaning of Mitigating Factors

In assignment of error two, Goff argues that the trial court committed a

constitutional error in refusing to instruct the jury on the meaning of mitigating factors

because the instruction given provided “no standard upon which to base their decision”

and “le[ft] the jury with the impression that they [we]re to consider mitigation as

lessening blame or culpability.” Goff. Br. at 26. Goff requested the following

instruction:

Mitigating factors are factors that, while they do not justify or excuse the

crime, nevertheless in fairness, sympathy and mercy, may be considered

by you, as they call for a penalty less than death, or lessen the

appropriateness of a sentence of death.
No. 06-4669 Goff v. Bagley Page 15

5

OHIO REV. CODE § 2929.04(B)-(C) provides:

(B) If one or more of the aggravating circumstances listed in division (A) of this

section is specified in the indictment or count in the indictment and proved

beyond a reasonable doubt . . . , the court, trial jury, or panel of three judges shall

consider, and weigh against the aggravating circumstances proved beyond a

reasonable doubt, the nature and circumstances of the offense, the history,

character, and background of the offender, and all of the following factors:

(1) Whether the victim of the offense induced or facilitated it;

(2) Whether it is unlikely that the offense would have been committed,

but for the fact that the offender was under duress, coercion, or

strong provocation;

(3) Whether, at the time of committing the offense, the offender,

because of a mental disease or defect, lacked substantial capacity to

appreciate the criminality of the offender’s conduct or to conform

the offender’s conduct to the requirements of the law;

(4) The youth of the offender;

(5) The offender’s lack of a significant history of prior criminal

convictions and delinquency adjudications;

(6) If the offender was a participant in the offense but not the principal

offender, the degree of the offender’s participation in the offense

and the degree of the offender’s participation in the acts that led to

the death of the victim;

(7) Any other factors that are relevant to the issue of whether the

offender should be sentenced to death.

(C) The defendant shall be given great latitude in the presentation of evidence of the

factors listed in division (B) of this section and of any other factors in mitigation

of the imposition of the sentence of death.

The existence of any of the mitigating factors listed in division (B) of this

section does not preclude the imposition of a sentence of death on the offender

but shall be weighed pursuant to divisions (D)(2) and (3) of section 2929.03 of

the Revised Code by the trial court, trial jury, or the panel of three judges against

the aggravating circumstances the offender was found guilty of committing.

Amendments to the language of § 2929.04 since Goff’s trial are not relevant here.

J.A. at 896-98 (Mot. to Alter Definition of Mitigating Circumstances). The trial court

rejected Goff’s alternative instruction, id. at 441-42 (Penalty Phase Hr’g Tr. at 2446-47),

and instructed the jury according to OHIO REV. CODE § 2929.04(B)-(C)5 as follows:

In making your decision you will consider all the evidence, the

arguments of counsel, and all other information and all other reports

which are relevant to the nature and circumstances of the aggravating

circumstances or to any mitigating factors including, but not limited to,

the nature and circumstances of the offense, and 1) the history and

character and background of the Defendant, 2) the youth of the

Defendant, and 3) any other factors that are relevant to the issue of

whether the Defendant should be sentenced to death.

You are to weigh the aggravating circumstances which you have

already found against any mitigating factors which you find to exist. . . .

. . . .

Mitigating factors must be considered collectively when they are

weighed against the aggravating circumstances. The Prosecution has the
No. 06-4669 Goff v. Bagley Page 16

burden to prove beyond a reasonable doubt that the aggravating

circumstance[s], of which the Defendant was found guilty, outweigh the

factors in mitigation of imposing the death sentence. To outweigh means

to weigh more than or to be more important than. The existence of

mitigating factors does not preclude or prevent the death sentence, if you

find beyond a reasonable doubt that the aggravating circumstances

outweigh the mitigating factors. However, if you are not convinced by

proof beyond a reasonable doubt that the aggravating circumstances

outweigh the mitigating factors, then you must choose one of the two life

sentences.

J.A. at 710-12 (Penalty Phase Hr’g Tr. at 2714-16) (emphases added).

The Ohio Supreme Court rejected Goff’s argument on direct appeal, concluding

that a failure to define “mitigation” was not prejudicial error because “[t]he trial court

defined what factors the jury was to consider, and implicit in the trial court’s instruction

was that the factors set forth by the defense were factors relevant to whether appellant

should be sentenced to death.” Goff I, 694 N.E.2d at 922; id. at 923 (citing Buchanan

v. Angelone, 522 U.S. 269 (1998)). The district court also rejected Goff’s argument on

the grounds that the instruction given did not violate state law and that the Constitution

did not require the requested mitigation definition. Goff IV, 2006 WL 3590369, at *11-

12. We agree.

“The Eighth Amendment requires that the jury be able to consider and give effect

to all relevant mitigating evidence offered by petitioner.” Boyde v. California, 494 U.S.

370, 377-78 (1990); Buell v. Mitchell, 274 F.3d 337, 353 (6th Cir. 2001). Because the

Supreme Court has held that “the state may shape and structure the jury’s consideration

of mitigation so long as it does not preclude the jury from giving effect to any relevant

mitigating evidence,” Buchanan, 522 U.S. at 276 (citing Johnson v. Texas, 509 U.S. 350,

362 (1993); Penry v. Lynaugh, 492 U.S. 302, 326 (1989); Franklin v. Lynaugh, 487 U.S.

164, 181 (1988)), the issue is “whether there is a reasonable likelihood that the jury has

applied the challenged instruction in a way that prevents the consideration of

constitutionally relevant evidence,” Boyde, 494 U.S. at 380. “Any barrier to such

consideration [of mitigating evidence] must fail.” McKoy, 494 U.S. at 371. However,

“‘[o]n habeas review, errors on instructions are not reviewable unless they deprive a
No. 06-4669 Goff v. Bagley Page 17

6

Although Buchanan was decided after Goff’s conviction and thus is not controlling precedent

under AEDPA, see Mason, 320 F.3d at 638 n.19, the case is instructive because the Court therein relied

on its precedents that were in effect at the time of Goff’s conviction, see Buchanan, 522 U.S. at 275-78.

defendant of constitutional due process.’” Mason v. Mitchell, 320 F.3d 604, 638 (6th

Cir. 2003) (quoting Gall v. Parker, 231 F.3d 265, 321 (6th Cir. 2000)).

In Buchanan, the Supreme Court explicitly stated that “we have never gone

further and held that the state must affirmatively structure in a particular way the manner

in which juries consider mitigating evidence.” Buchanan, 522 U.S. at 276. The Court

rejected the defendant’s argument that the trial court should have included additional

explanations with the state’s pattern instruction, specifically a further explanation of the

concept of mitigation stating, “‘[i]n addition to the mitigating factors specified in other

instructions, you shall consider the circumstances surrounding the offense, the history

and background of [the defendant,] and any other facts in mitigation of the offense.’”

Id. at 273 (first alteration in original). The Court held that a specific instruction “on the

concept of mitigating evidence generally” is not constitutionally required. Id. at 270,

279. Here, as the Ohio Supreme Court concluded, the trial court’s instruction essentially

tracked the language of the state-law jury instruction, which itself provided more general

information on the concept of mitigation than the challenged “all the evidence”

instruction upheld in Buchanan.

6

 See State v. Holloway, 527 N.E.2d 831, 834-36 (Ohio

1988) (looking to § 2929.04(B)(7) for proper definition of mitigating factors and finding

trial court’s use of different definition in subsequent written opinion was harmless error

in part because jury was given proper § 2929.04(B) instruction at time). “Where the trial

court instructs the jury in accordance with state law and sufficiently addresses the

matters of law at issue, no error results and the petitioner is not entitled to habeas relief.”

White v. Mitchell, 431 F.3d 517, 534 (6th Cir. 2005).

Contrary to Goff’s assertion, we conclude that the instruction given, considered

in the context of the entire instructions and proceedings, see Boyde, 494 U.S. at 377-78,

380-84, did not fail to provide the jury with a “standard upon which to base their

decision” or “leave[] the jury with the impression that they [we]re to consider mitigation

as lessening blame or culpability,” Goff. Br. at 26, rather than as relevant to lessen the
No. 06-4669 Goff v. Bagley Page 18

sentence imposed. Neither the use of the instruction given nor the failure to use the

proposed instruction violated clearly established federal law under either the Eighth

Amendment or the Due Process Clause. See Spisak III, 130 S. Ct. at 683 (finding similar

instructions sufficiently “explained the concept of a ‘mitigating factor’”); Mason, 320

F.3d at 638-39 (holding that Supreme Court precedent prior to 1994 conviction “did not

clearly establish a defendant’s due process right to a jury instruction on the definition

of mitigation” and rejecting exact same argument); Buell, 274 F.3d at 353 (upholding

similar, but more limited, instruction against challenge that mitigating factors were not

appropriately defined). Goff is not entitled to relief on this claim.

C. Ineffective Assistance of Appellate Counsel

On the first appeal of right, a defendant is entitled to effective assistance of

appellate counsel. Mahdi v. Bagley, 522 F.3d 631, 636 (6th Cir. 2008), cert. denied, 129

S. Ct. 1986 (2009). As we have previously stated,

[c]laims of ineffective assistance of [appellate] counsel are judged under

the Strickland standard, which requires that the appellant affirmatively

establish (1) that counsel’s performance was objectively deficient; and

(2) prejudice, which means that there is a reasonable probability that, but

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

have been different.

Id. (internal quotation marks omitted); Mason v. Mitchell, 543 F.3d 766, 772 (6th Cir.

2008) (“Claims of ineffective assistance of counsel have ‘two components: A petitioner

must show that counsel’s performance was deficient, and that the deficiency prejudiced

the defense.’” (quoting Wiggins v. Smith, 539 U.S. 510, 521 (2003))), cert. denied, 130

S. Ct. 492 (2009). “To establish that counsel was deficient, ‘the defendant must show

that counsel’s representation fell below an objective standard of reasonableness.’”

Smith, 567 F.3d at 257 (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)).

Prejudice is shown if “there is ‘a reasonable probability that, but for his counsel’s

[failings] . . . , [the defendant] would have prevailed on his appeal.’” Mapes v. Tate

(Mapes II), 388 F.3d 187, 194 (6th Cir. 2004) (alterations in original) (quoting Smith v.

Robbins, 528 U.S. 259, 285 (2000)).
No. 06-4669 Goff v. Bagley Page 19

7

Even if these arguments were not waived, we would conclude that they are meritless. First,

Goff’s claim that trial counsel did not properly prepare the psychologist, Dr. Jeffery Smalldon, is belied

by the record. Review of the penalty-phase transcript reveals that Dr. Smalldon was competent and

prepared, testifying extensively about both meetings that he had with Goff and Goff’s family and about

his findings. J.A. at 572-622 (Penalty Phase Hr’g Tr. at 2577-627). Second, although it is true that, during

the guilt phase, the prosecutor elicited from two police officers the fact that Goff had requested an attorney,

Goff cannot show that he was prejudiced by appellate counsel’s failure to raise this issue—there is no

evidence that there was any likelihood that Goff’s appeal would have ended differently had his appellate

counsel raised this issue. Lastly, the record reveals that no actual conflict of interest was present in Goff’s

case. One of the prosecutors directly involved in Goff’s prosecution, as well as two other prosecutors not

directly involved with the case, had previously served as Goff’s guardian ad litem. This fact was discussed

thoroughly by the defense, the prosecution, and the court when it was brought to the court’s attention.

Through this conversation, it became clear, as the district court noted, that “none of the prosecutors had

learned any information while representing petitioner as guardians ad litem that they could have used

against him, or otherwise put to improper use, in prosecuting him for the aggravated murder of Myrtle

Rutledge.” Goff IV, 2006 WL 3590369, at *35 (citing Penalty Phase Hr’g Tr. at 2461, 2466-67 (J.A. at

456, 461-62)). Thus, there was no actual conflict of interest requiring recusal.

In his ninth assignment of error, Goff contends that he received ineffective

assistance of appellate counsel due to appellate counsel’s failure to raise the following

issues on direct appeal: (1) the trial court’s failure to afford Goff his right to allocution;

(2) trial counsel’s failure to recognize that the alternate juror substituted midstream

during the penalty-phase hearing tainted that hearing; (3) trial counsel’s failure to

recognized the need for a principal-offender instruction during the penalty phase;

(4) trial counsel’s failure to request that the trial court give a jury instruction regarding

the credibility of informants/accomplices; (5) ineffective assistance of trial counsel for

informing the jury during voir dire that Goff would not testify at trial; (6) trial counsel’s

failure properly to prepare the psychologist who testified at the penalty-phase hearing;

(7) trial counsel’s failure to exclude reference to Goff’s request for an attorney during

the guilt phase; and (8) trial counsel’s failure to raise an actual-conflict issue. None of

these claims are specifically argued under this assignment of error; rather, five of the

arguments are presented in conjunction with other assignments of error. The three

arguments not so presented—arguments six, seven, and eight—are waived on appeal.

See United States v. Hall, 549 F.3d 1033, 1042 (6th Cir. 2008) (“‘[I]ssues adverted to

in a perfunctory manner, unaccompanied by some effort at developed argumentation, are

deemed waived.’” (quoting United States v. Johnson, 440 F.3d 832, 846 (6th Cir. 2006))

(alteration in original)).7

 Each of the remaining arguments are addressed below.
No. 06-4669 Goff v. Bagley Page 20

8

As to Bagley’s procedural-default argument, although Goff did not raise this issue on direct

appeal, he did raise it in his Ohio Rule of Appellate Procedure 26(B) motion. The Ohio Supreme Court

rejected the claim on the merits, concluding that “Goff ha[d] failed to raise ‘a genuine issue as to whether

[he] was deprived of the effective assistance of counsel on appeal’ before the court of appeals, as required

by App.R. 26(B)(5).” Goff III, 784 N.E.2d at 701 (second alteration in original). Thus, this claim is not

defaulted for purposes of habeas review. Haliym v. Mitchell, 492 F.3d 680, 688–93 (6th Cir. 2007)

(concluding procedural default did not apply, despite untimely Ohio Rule of Appellate Procedure 26(B)

motion, because “an Ohio court’s finding that there is ‘no genuine issue,’ which denies the Murnahan

[Rule 26(B)] application at stage one of the two stage procedure, is a determination on the merits for the

purpose of excusing procedural default”); James v. Brigano, 470 F.3d 636, 640-42 (6th Cir. 2006) (holding

that a claim was not procedurally defaulted when a defendant raised the claim in an Ohio Rule of Appellate

Procedure 26 motion and the Ohio Court of Appeals rejected the claim on the merits).

1. Right to Allocution

In his ninth and twelfth assignments of error, Goff contends that he received

ineffective assistance of appellate counsel because his appellate counsel did not raise the

failure of the trial court to afford Goff his right to allocute before sentencing. Bagley

contends that this claim is procedurally defaulted8 and that, on the merits, this claim fails

because (1) there is no constitutional right to allocution, and (2) Goff chose not to make

an unsworn statement to the jury during the penalty phase, which allegedly discharged

the trial court’s duty with regard to allocution. We disagree with Bagley’s contentions

and conclude that Goff is entitled to relief on this ground.

Bagley’s contention that Goff’s claim must fail because there is no constitutional

right to allocution misconstrues the effective-assistance framework. Although it is

correct, as the district court noted, that “there is no right to allocution under the federal

constitution,” Goff IV, 2006 WL 3590369, at *33 (citing, inter alia, Cooey v. Coyle, 289

F.3d 882, 912 (6th Cir. 2002)), there is a constitutional right to the effective assistance

of appellate counsel, see, e.g., Mahdi, 522 F.3d at 636. If it was both deficient and

prejudicial for Goff’s appellate counsel to fail to raise the allocution claim, then Goff’s

constitutional right to the effective assistance of counsel on appeal has been violated,

regardless of the fact that counsel’s underlying failure is a matter of state law. See

Mason v. Hanks, 97 F.3d 887, 892-94 (7th Cir. 1996) (concluding that the fact that an

ineffective-assistance-of-appellate-counsel claim is based on a failure to pursue certain

state-law claims “poses no impediment to [a petitioner’s] claim of ineffectiveness”);

Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984) (“On the one hand, the issue
No. 06-4669 Goff v. Bagley Page 21

9

Ohio Rule of Criminal Procedure 32 was amended in 1998; however, the pre-1998 version, in

effect at the time of Goff’s sentencing, did not differ materially from the current version. See OHIO CRIM. R. 32(A)(1) (1993) (amended 1998) (“Before imposing sentence the court . . . shall address the defendant

personally and ask if he or she wishes to make a statement in his or her own behalf or present any

information in mitigation of punishment.”).

of ineffective assistance—even when based on the failure of counsel to raise a state law

claim—is one of constitutional dimension . . . . On the other hand, the validity of the

claim that Alvord’s appellate counsel failed to assert is clearly a question of state law,

and we must defer to the state’s construction of its own law.” (citations omitted)),

superseded by statute on other grounds; see also Bedford v. Collins, 567 F.3d 225, 237

(6th Cir. 2009) (“[T]he invocation of this state-law right [to allocution] could implicate

the Sixth Amendment if the prosecution violated state-law rules about the allocution

procedure and defendant’s counsel unreasonably failed to object.”), petition for cert.

filed (U.S. Jan. 15, 2010) (No. 09-8671); Reutter v. Sec’y for Dep’t of Corr., 232 F.

App’x 914, 915 (11th Cir.) (unpublished opinion) (“Even though [petitioner]’s

ineffective-assistance-of-appellate-counsel claim was based on counsel’s failure to raise

a state-law issue, . . . the ineffective-assistance claim itself was a federal constitutional

claim.” (citing Alvord, 725 F.2d at 1291)), cert. denied, 552 U.S. 956 (2007); cf. Mapes

v. Coyle, 171 F.3d 408, 427-28 (6th Cir. 1999) (citing Mason v. Hanks, 97 F.3d at 893-

94); Lewis v. Smith, 100 F. App’x 351, 356 (6th Cir.) (same), cert. denied, 543 U.S. 877

(2004). We conclude that counsel’s performance was both deficient and prejudicial.

Ohio law provides all criminal defendants with the right to allocution before a

sentence is imposed. OHIO CRIM. R. 32(A)(1) (“At the time of imposing sentence, the

court shall . . . address the defendant personally and ask if he or she wishes to make a

statement in his or her own behalf or present any information in mitigation of

punishment.”)9

; State v. Campbell, 738 N.E.2d 1178, 1188 (Ohio 2000). It is the duty

of the sentencing court to inform the defendant of this right to allocution, and failure to

do so is typically reversible error. See Campbell, 738 N.E.2d at 1190. At the time of

Goff’s sentencing, there was a substantial amount of caselaw confirming this fact. See,

e.g., Silsby v. State, 164 N.E. 232 (Ohio 1928) (holding that an Ohio statute “impose[s]

a mandatory duty upon a trial judge to ask an accused person whether he has anything
No. 06-4669 Goff v. Bagley Page 22

10OHIO REV.CODE § 2947.05 was repealed on July 1, 1996. Prior to that date, § 2947.05 stated,

in relevant part:

Before sentence is pronounced, the court shall inform the defendant of the verdict of the

jury or of the finding of the court and shall ask the defendant whether he has anything

to say as to why judgment should not be pronounced against him.

OHIO REV. CODE ANN. § 2947.05 (repealed 1996). Goff was sentenced in August 1995; thus, § 2947.05

would have applied to Goff’s sentencing. The state courts’ application of § 2947.05 was firmly established

at the time of Goff’s sentencing. See, e.g., City of Columbus v. Herrell, 247 N.E.2d 770, 774 (Ohio Ct.

App. 1969) (holding that a trial court’s failure to comply with § 2947.05 required a remand for

resentencing, consistent with Silsby, 164 N.E. 232); City of Columbus v. Shuffelt, 159 N.E.2d 238, 239

(Ohio Ct. App. 1958) (same); State v. Ausberry, 82 N.E.2d 751, 751–52 (Ohio Ct. App. 1948) (same); see

also State v. Baker, 177 N.E.2d 348, 352 (Ohio Ct. App. 1960) (granting motion for leave to appeal to

allow the defendant to raise on appeal the trial court’s failure to comply with § 2947.05).

to say why judgment should not be pronounced against him” and that failure to discharge

that duty requires reversal and remand for resentencing (syllabus)); State v. Hays, 442

N.E.2d 127, 129 (Ohio Ct. App. 1982) (noting that OHIO CRIM.R. 32(A)(1) “require[s]

that the accused be granted an opportunity to be heard in mitigation of punishment”

(citing Silsby, 164 N.E. 232)); see also City of Defiance v. Cannon, 592 N.E.2d 884, 888

(Ohio Ct. App. 1990) (stating that OHIO CRIM. R. 32(A)(1) and OHIO REV. CODE

§ 2947.0510 both “clearly mandate[] that a court give . . . the defendant an opportunity

to speak prior to the imposition of sentence,” and that the trial court’s failure to ask the

defendant if he or she wishes to allocute requires “remand[] for the sole purpose of

resentencing” (citing, inter alia, Silsby, 164 N.E. 232)); accord State v. Hawkins, No.

65344, 1994 WL 505279, at *2 (Ohio Ct. App. Sept. 15, 1994) (unpublished opinion)

(same); City of Cleveland v. Justice, Nos. 56883, 56884, 1990 WL 43676, at *5 (Ohio

Ct. App. Apr. 12, 1990) (unpublished opinion) (same); State v. Priest, No. 86 CA 29,

1987 WL 10638, at *1 (Ohio Ct. App. Apr. 28, 1987) (unpublished opinion) (same);

State v. Sullivan, No. E-80-54, 1981 WL 5643, at *3 (Ohio Ct. App. June 12, 1981)

(unpublished decision) (same).

In the instant case, there is no evidence in the record that the state trial court

(common pleas court) ever addressed Goff’s right to allocution. Under Ohio law at the

time of Goff’s direct appeal, this omission was reversible error. Failure on the part of

Goff’s appellate counsel to raise such an obviously winning claim clearly falls below an

objective standard of reasonableness—deficiency is established by the fact that appellate

counsel failed to raise the allocution issue on appeal in the face of overwhelming
No. 06-4669 Goff v. Bagley Page 23

11OHIO REV.CODE § 2929.03 has been amended several times since Goff’s sentencing; however,

the pertinent language of (D)(1) remains unaltered.

caselaw regarding the right to allocute. Moreover, this same caselaw holds that a

sentencing court’s failure to provide the right to allocution requires a remand for

resentencing, thereby establishing prejudice. See Mapes II, 388 F.3d at 194 (explaining

that prejudice exists if there is a reasonable probability that the appeal would have been

successful had the claim been raised). Thus, we conclude that there is a reasonable

probability that, but for appellate counsel’s unprofessional errors, the result of Goff’s

direct appeal would have been different. The Ohio Supreme Court’s conclusion that

Goff failed to raise a genuine issue of material fact regarding ineffective assistance of

appellate counsel constitutes an unreasonable application of Supreme Court precedent.

Bagley contends that Goff decided not to give an unsworn statement and that this

decision waived his right to allocution. This argument is meritless. In addition to the

right to allocution before the court imposes sentence discussed above, capital defendants

in Ohio also have the right to make an unsworn statement at the penalty phase. OHIO

REV.CODE ANN. § 2929.03(D)(1) (“The court, and the trial jury if the offender was tried

by a jury, . . . shall hear the statement, if any, of the offender, and the arguments, if any,

of counsel for the defense and prosecution, that are relevant to the penalty that should

be imposed on the offender. . . . If the offender chooses to make a statement, the offender

is subject to cross-examination only if the offender consents to make the statement under

oath or affirmation.”)11

; see also Campbell, 738 N.E.2d at 1190. Although “[§]

2929.03(D)(1) permits a capital defendant to make a penalty-phase statement without

oath or cross-examination . . . [,] an unsworn statement under [§] 2929.03(D)(1) is not

an allocution under the rule [OHIO CRIM.R. 32(A)(1)].” Campbell, 738 N.E.2d at 1190

(emphasis added) (citing State v. Reynolds, 687 N.E.2d 1358, 1372 (Ohio 1998)). “The

penalty phase in a capital case is not a substitute for a defendant’s right of allocution [at

sentencing].” Reynolds, 687 N.E.2d at 1372. The right to allocution is associated with

the sentencing proceeding before the judge, and “[t]he purpose of allocution is to allow

the defendant an additional opportunity to state any further information which the judge

may take into consideration when determining the sentence to be imposed.” Cannon,
No. 06-4669 Goff v. Bagley Page 24

12From the parties’ briefing and arguments on appeal, we were advised that this conference was

sealed. However, the state court had granted the parties’ joint motion to unseal this portion of the

transcript, and we have obtained and reviewed the three transcript pages at issue.

592 N.E.2d at 888. Moreover, “[n]o authority requires a trial court to inform a capital

defendant of his right to make an unsworn, penalty-phase statement.” Campbell,

738 N.E.2d at 1190.

Bagley correctly notes that the penalty-phase transcript reflects that a conference

occurred wherein the parties were slated to discuss Goff’s “rights relative to giving [an]

unsworn statement.” J.A. at 663 (Penalty Phase Hr’g Tr. at 2668). The contents of that

conference reveal that Goff’s trial counsel had advised him of his right to make an

unsworn statement to the jury, and that Goff declined to so address the jury.12 Contrary

to Bagley’s contention, at the conference the trial judge did not inform Goff of his right

to give an unsworn statement; only Goff’s counsel addressed him at the conference,

although Goff did waive his right to make an unsworn statement on the record. Even if

the trial judge had been the one to address Goff relative to making an unsworn statement,

the right to make an unsworn statement to the jury at the penalty phase is not equivalent

to the right of allocution before the judge imposes sentence. Campbell, 738 N.E.2d at

1190; Cannon, 592 N.E.2d at 888. Thus, even if the sentencing court informed Goff of

his right to give an unsworn statement to the jury at the penalty phase, such information

could not discharge the sentencing court’s duty to inform Goff about his right to

allocution before sentencing by the judge, and any wavier by Goff of his right to give

an unsworn statement to the jury would not have impacted his right to allocute. See

Campbell, 738 N.E.2d at 1188-90 (“[I]n this context [where the trial court failed to

inform the defendant of the right to allocution], we find the doctrine of waiver

inapplicable.”). Accepting Bagley’s contention—“that Goff chose not to make an

unsworn statement to the jury,” Bagley Br. at 74—we nevertheless conclude that the trial

court failed in its duty to inform Goff of his right to allocute before sentencing by the

judge.

Accordingly, we hold that Goff’s appellate counsel was ineffective for failing to

raise on direct appeal the issue of Goff’s right to allocution before sentencing and that
No. 06-4669 Goff v. Bagley Page 25

13Ohio Rule of Appellate Procedure 26(B) “governs applications by a criminal defendant to

reopen an appeal ‘based on a claim of ineffective assistance of appellate counsel.’” James, 470 F.3d at

640 (quoting OHIO APP.R. 26(B)(1)). The Ohio courts should grant an Ohio Rule of Appellate Procedure

26(B) motion “‘if there is a genuine issue as to whether the applicant was deprived of the effective

assistance of counsel on appeal.’” Id. (quoting OHIO APP. R. 26(B)(5)).

the opposite conclusion reached by the Ohio Supreme Court in rejecting Goff’s Ohio

Rule of Appellate Procedure 26(B) application on the merits constitutes an unreasonable

application of federal law.

2. Substitution of Alternate Juror During Penalty Phase

In his ninth and fourteenth assignments of error, Goff asserts that trial counsel

caused a constitutional, structural error when it allowed an alternate juror, who did not

deliberate with the jury during the guilt phase, to take the place of a sitting juror during

the penalty phase and that appellate counsel was ineffective for failing to raise this issue

on direct appeal. Goff presented this claim in an Ohio Rule of Appellate Procedure

26(B) motion to reopen his direct appeal, claiming that ineffective assistance of appellate

counsel established cause and prejudice for failing to raise the issue on direct appeal.13

The Ohio Court of Appeals denied the motion and the Ohio Supreme Court affirmed this

denial, concluding that “Goff . . . failed to raise a genuine issue as to whether [he] was

deprived of the effective assistance of counsel on appeal before the court of appeals, as

required by App.R. 26(B)(5).” Goff III, 784 N.E.2d at 701 (internal quotation marks

omitted) (alteration in original). The district court rejected Goff’s underlying claim of

trial-counsel error as procedurally defaulted because Goff did not establish that his

appellate counsel was ineffective and thus could not establish cause and prejudice for

his failure to raise the underlying claim on direct appeal. Goff IV, 2006 WL 3590369,

at *29-30. We also reject Goff’s claim.

As an initial matter, Goff has cited no caselaw to support his argument that the

substitution of an alternate juror—who was present for both the guilt-phase and penaltyphase hearings but did not participate in the guilt-phase deliberation—for a sitting juror

before the commencement of penalty-phase deliberations is a constitutional violation,

nor could we find any. Moreover, Goff’s repeated assertion that the substitution of the
No. 06-4669 Goff v. Bagley Page 26

juror caused Goff not to be convicted by a unanimous jury is also unsupported by

caselaw and defies common sense. A unanimous jury convicted Goff at the end of the

guilt-phase proceedings; no later change in the make-up of the jury could alter that fact.

Thus, Goff has not established that the substitution of the alternate juror, in and of itself,

caused a constitutional violation.

As to Goff’s ineffective-assistance-of-appellate counsel claim, at the time of

Goff’s direct appeal, the Ohio Supreme Court, in a case with materially indistinguishable

facts, had held that it did not violate state law to replace a sitting juror with an alternate

juror between the guilt and penalty phases. See State v. Hutton, 559 N.E.2d 432, 442-45

(Ohio 1990). Additionally, Goff has not asserted that the substitution procedure used

in his case violated state law. Thus, there seems no likelihood that, had Goff’s appellate

counsel raised this issue, the result of his appeal would have been different, and we

cannot say that Goff’s appellate counsel was ineffective for not raising a claim that had

little to no possibility of success. See Valentine v. United States, 488 F.3d 325, 338-39

(6th Cir. 2007) (rejecting a claim of ineffective assistance of appellate counsel where the

underlying claim “had little probability of success”), cert. denied, 128 S. Ct. 1311

(2008). We conclude that Goff is not entitled to relief on this claim.

3. Principal-Offender Instruction

In his ninth and fifteenth assignments of error, Goff contends that the trial court

should have instructed the jury regarding the definition of principal offender and that

appellate counsel was ineffective for failing to raise this issue on appeal. Goff raised the

underlying claim in his failed Ohio Rule of Appellate Procedure 26(B) motion. The

district court also rejected the claim. We conclude that this claim is meritless.

Goff’s argument under these assignments of error is confusing, to say the least.

It appears that Goff is asserting that, at the guilt phase and at the penalty phase, the jury

was not (1) instructed regarding the requirement that Goff be a principal offender in

order to be death eligible; (2) instructed regarding the definition of principal offender;

or (3) provided verdict sheets that reflected the principal-offender requirement. The

record reveals that Goff’s assertions are baseless.
No. 06-4669 Goff v. Bagley Page 27

According to Ohio law, “[t]o be eligible for the death penalty under R.C. [OHIO

REV. CODE §] 2929.04(A)(7) as ‘the principal offender,’ the defendant must have been

the actual killer.” State v. Taylor, 612 N.E.2d 316, 325 (Ohio 1993). In the context of

aggravated murder, principal offender has been defined as “one who personally performs

every act constituting the offense.” State v. Sneed, 584 N.E.2d 1160, 1168 (Ohio 1992)

(internal quotation marks omitted). At the guilt phase of Goff’s trial, the trial court

instructed the jury that “[b]efore you can find the Defendant Guilty of Specification No.

1 under Count 1, you must find that the State has proved beyond a reasonable doubt that

. . . the Defendant personally committed each act which constituted the aggravated

murder, including the act or acts that caused the death of Myrtle Rutledge.” J.A. at 401

(Guilt Phase Hr’g Tr. at 2380) (emphasis added). This instruction correctly defined the

term principal offender. See Sneed, 584 N.E.2d at 1168 (holding that a trial court’s

instruction defining principal offender as “one who personally performs every act

constituting the offense, in this case aggravated murder” was sufficient to comply with

OHIO REV.CODE § 2929.04(A)(7) (internal quotation marks omitted)). After receiving

this correct instruction, the jury specifically found, via a verdict form, that Goff was the

principal offender:

We, the Jury, having found the Defendant, James R. Goff, Guilty of

aggravated murder as he stands charged in Count 1 of the indictment now

further find that the aggravated murder was committed while the said

James R. Goff was committing or attempting to commit, or while fleeing

immediately after committing or attempting to commit aggravated

burglary and the offender was the principal offender in the commission

of the aggravated murder.

J.A. at 420-21 (Guilt Phase Hr’g Tr. at 2416-17) (reading of verdict form) (emphasis

added). There is simply no merit to Goff’s assertions, and Goff’s appellate counsel was

not ineffective for failing to raise such a frivolous claim on direct appeal. Goff is not

entitled to relief on this claim.
No. 06-4669 Goff v. Bagley Page 28

4. Informant/Accomplice Instruction

In Goff’s ninth and sixteenth assignments of error, Goff argues that the trial court

erred in failing to give a specific instruction to the jury regarding the credibility of

testimony by accomplices and informants and that appellate counsel was ineffective for

failing to raise this issue on direct appeal. Goff raised the underlying claim as part of his

Ohio Rule of Appellate Procedure 26(B) motion, which the Ohio courts denied. The

district court rejected this argument, and we conclude that Goff is not entitled to relief

on this claim.

We have noted that “accomplice instructions as a general matter” are not

required, and we have held that a trial court does not violate a defendant’s constitutional

rights by failing to give a specific accomplice instruction so long as the jury instructions

“‘adequately informed the jury regarding the credibility of witness testimony’” and

“‘alerted the jury to the various considerations that it should take into account in

weighing testimony.’” Scott v. Mitchell, 209 F.3d 854, 883 (6th Cir. 2000) (quoting

United States v. Carr, 5 F.3d 986, 992 (6th Cir. 1993)). In the instant case, the trial court

gave the following instruction:

You are the sole judges of the facts and the credibility of the

witnesses and the weight of the evidence. To weigh the evidence you

must consider the credibility of the witnesses. You will apply the tests

of truthfulness which you apply in your daily lives. These tests include

the appearance of each witness upon the stand, their manner of testifying,

the reasonableness of their testimony, the opportunity they had to see,

hear, and know the things concerning which they testified about, their

accuracy of memory, their frankness or lack of it, their intelligence, their

interest and bias, if any, together with all the facts and circumstances

surrounding their testimony. Applying these tests you will assign to the

testimony of each witness such weight as you deem proper.

You are not required to believe the testimony of any witness

simply because he or she was under oath. You may believe or disbelieve

all or any part of the testimony of any witness. It is your province to

determine what testimony is worthy of belief and what testimony is not

worthy of belief.
No. 06-4669 Goff v. Bagley Page 29

14On Lee v. United States, 343 U.S. 747 (1952), cited by Goff in his brief, does not change our

analysis. In determining that certain testimony was not per se incompetent, the On Lee Court

acknowledged:

The trend of the law in recent years has been to turn away from rigid rules of

incompetence, in favor of admitting testimony and allowing the trier of fact to judge the

weight to be given it. . . .

The use of informers, accessories, accomplices, false friends, or any of the

other betrayals which are ‘dirty business’ may raise serious questions of credibility. To

the extent that they do, a defendant is entitled to broad latitude to probe credibility by

cross-examination and to have the issues submitted to the jury with careful instructions.

Id. at 757. This passage is not a command that a specific jury instruction be given if an accomplice or

informant testifies, but rather is an explanation of the Supreme Court’s decision to categorize matters of

credibility as questions of weight, not admissibility.

15OHIO REV.CODE § 2923.03 has been amended since Goff’s sentencing; however, the pertinent

language of subsection (D) has remained constant.

J.A. at 397-98 (Guilt Phase Hr’g Tr. at 2373-74) (emphases added). This instruction

both informs the jury regarding credibility and alerts the jury to what is properly

considered when determining credibility; thus it satisfies the criteria established in Scott.

Therefore, the failure to give a specific accomplice instruction did not violate Goff’s

constitutional rights.14

Moreover, Goff’s appellate counsel was not ineffective for failing to raise this

issue on direct appeal. Goff correctly points out that, under Ohio law, “[i]f an alleged

accomplice of the defendant testifies against the defendant in a case in which the

defendant is charged with . . . an offense,” the trial court is required to “state

substantially” a specific jury instruction regarding accomplice testimony:

The testimony of an accomplice does not become inadmissible because

of his complicity, moral turpitude, or self-interest, but the admitted or

claimed complicity of a witness may affect his credibility and make his

testimony subject to grave suspicion, and require that it be weighed with

great caution.

It is for you, as jurors, in the light of all the facts presented to you from

the witness stand, to evaluate such testimony and to determine its quality

and worth or its lack of quality and worth.

OHIO REV. CODE ANN. § 2923.03(D).15 However, at the time of Goff’s trial and direct

appeal, Ohio law held that this section applied only if a witness had been indicted as an

accomplice. See State v. Wickline, 552 N.E.2d 913, 918 (Ohio 1990) (defining

“accomplice” under a former version of § 2923.03(D) as a person who “at the very least
No. 06-4669 Goff v. Bagley Page 30

. . . [was] indicted for the crime of complicity”); State v. Lordi, 748 N.E.2d 566, 572

(Ohio Ct. App. 2000) (applying the Wickline accomplice definition to a later version of

§ 2923.03(D)); State v. Royce, Nos. CA92-09-023, CA92-09-024, CA92-09-025, CA92-

09-026, 1993 WL 534691, at *4 (Ohio Ct. App. Dec. 27, 1993) (applying

§ 2923.03(D)—the version applicable during Goff’s trial and appeal—and holding that

a trial court did not err in refusing to give the accomplice instruction because the witness

“was not charged with complicity as a result of his involvement with appellants’ criminal

activities”). None of the witnesses who testified against Goff were indicted as

accomplices, and Goff points to no contrary Ohio authority to support an argument that

§ 2923.03(D) applies under such facts. Goff cannot demonstrate prejudice because he

has not shown that there is any likelihood that his appeal would have had a different

outcome had appellate counsel raised this issue. We conclude that this claim is

meritless.

5. Right to Testify

In his ninth and seventeenth assignments of error, Goff asserts that he was denied

his right to testify on his own behalf when trial counsel foreclosed his ability to testify

by informing prospective jurors at voir dire that Goff would not testify at any point

during the proceedings, and that appellate counsel was ineffective for failing to raise this

issue on direct appeal. Goff raised the underlying claim for the first time as part of his

failed Ohio Rule of Appellate Procedure 26(B) motion. The district court rejected this

claim, noting that “the trial record is devoid of any evidence that petitioner’s right to

testify was usurped against his will or in violation of his fundamental rights.” Goff IV,

2006 WL 3590369, at *27. We agree.

“The right of a defendant to testify at trial is a constitutional right of fundamental

dimension and is subject only to a knowing and voluntary waiver by the defendant”;

nevertheless, “[b]arring any statements or actions from the defendant indicating

disagreement with counsel or the desire to testify, the trial court is neither required to sua

sponte address a silent defendant and inquire whether the defendant knowingly and

intentionally waived the right to testify, nor ensure that the defendant has waived the
No. 06-4669 Goff v. Bagley Page 31

right on the record.” United States v. Webber, 208 F.3d 545, 550-51 (6th Cir. 2000).

Indeed, “when a tactical decision is made not to have the defendant testify, the

defendant’s assent is presumed,” and if a defendant disagrees with this decision, he

“must alert the trial court that he desires to testify or that there is a disagreement with

defense counsel regarding whether he should take the stand.” Id. at 551 (internal

quotation marks omitted). “When a defendant does not alert the trial court of a

disagreement, waiver of the right to testify may be inferred from the defendant’s

conduct. Waiver is presumed from the defendant’s failure to testify or notify the trial

court of the desire to do so.” Id.

As the district court correctly noted, there is no evidence that Goff ever alerted

the trial court to his desire to testify at trial. Accordingly, we will presume that Goff

waived this right, and, applying that presumption, we must conclude that Goff’s

constitutional rights were not violated by either trial counsel’s statements at voir dire or

appellate counsel’s failure to raise this issue on direct appeal. We therefore conclude

that Goff is not entitled to relief on this claim.

6. Conclusion on Claims of Ineffective Assistance of Appellate Counsel

In sum, although we reject most of Goff’s arguments regarding ineffective

assistance of appellate counsel, we conclude that Goff’s appellate counsel was

ineffective for failing to raise the issue of Goff’s right to allocution and that the opposite

conclusion reached by the Ohio Supreme Court constitutes an unreasonable application

of federal law. We grant Goff relief on this basis, the scope of which is explained below.

D. Scope of Remedy

Having concluded that Goff is entitled to relief based on appellate counsel’s

failure to raise during Goff’s direct appeal a claim based on Goff’s right to allocution

before sentencing, we now turn to the question of the proper scope of relief to accord

Goff. Mapes II is instructive on this point. In Mapes II, we concluded that the petitioner

received ineffective assistance of appellate counsel due to counsel’s failure to raise an

Eighth Amendment claim regarding the trial judge’s instruction to the jury not to
No. 06-4669 Goff v. Bagley Page 32

consider some mitigating evidence. Mapes contended that, by granting the writ based

on the Sixth Amendment violation, the court “also established that there was an Eighth

Amendment violation at sentencing,” and that this conclusion was now the law of the

case. Mapes v. Tate (Mapes II), 388 F.3d 187, 193 (6th Cir. 2004) (emphasis removed).

We rejected Mapes’s argument, noting that we were

present[ed with] a very narrow question: whether Mapes was deprived

of effective assistance of appellate counsel in violation of the Sixth

Amendment. Contrary to Mapes’s contention, determination of this issue

does not require us to decide the underlying issue whether Mapes’s

Eighth Amendment rights were violated at sentencing. As we stated

repeatedly in Mapes I, Mapes’s underlying claims were not raised on

direct appeal and are thus barred by procedural default, an adequate and

independent ground for affirming his sentence. Mapes [v. Coyle (Mapes

I)], 171 F.3d [408,] 419, 424, 427 [(6th Cir. 1999)]. We further pointed

out in Mapes I that these underlying claims are “relevant only insofar as

[they] bear[ ] on the question whether appellate counsel was

unconstitutionally ineffective in failing to raise [them].” Id. at 427.

Id. at 194 (fifth, sixth, and seventh alterations in original). We further noted that,

although it was necessary to evaluate the underlying Eighth Amendment claim when

determining if Mapes had received ineffective assistance of appellate counsel, such an

evaluation “does not require a decision on or a determination of these issues[ the

underlying claim]. All that is required is a determination that, based on the nature of the

underlying claims, there is ‘a reasonable probability that, but for his counsel’s [failings]

. . . , [the defendant] would have prevailed on his appeal.’” Id. (quoting Smith v.

Robbins, 528 U.S. 259, 285 (2000)) (first alteration added). We granted the writ

“conditioned upon Ohio courts granting a new, direct appeal,” stressing that “[t]he

[further] remedy Mapes requests goes far beyond ‘neutraliz[ing]’ the constitutional

deprivation suffered by the defendant and would, therefore, contravene the rule

announced in Magana v. Hofbauer, 263 F.3d 542, 553 (6th Cir. 2001).” Id. at 194-95

(third alteration in original); see also Magana, 263 F.3d at 553 (“[A] remedy for a Sixth

Amendment violation should be tailored to the injury suffered from the constitutional

violation and should not unnecessarily infringe on competing interests.” (internal

quotation marks omitted)).
No. 06-4669 Goff v. Bagley Page 33

Applying the rationale of Mapes II to the instant case, we conclude that the only

appropriate remedy that we can provide is to grant the writ of habeas corpus unless the

Ohio courts reopen Goff’s direct appeal. This narrow relief will allow us to neutralize

the constitutional violation without overstepping the bounds of our power in this case.

Therefore, we GRANT Goff’s petition for a writ of habeas corpus unless the Ohio courts

reopen Goff’s direct appeal within 120 days to allow Goff to raise his allocution

argument.

E. Remaining Claims

We now turn to Goff’s remaining claims, none of which provide him any further

relief.

1. “Life Sentence is a Life Sentence” Jury Instruction

As his third assignment of error, Goff contends that the trial court should have

submitted to the jury Goff’s proposed jury instructions regarding parole eligibility

because the prosecution alluded to Goff’s future dangerousness during the prosecution’s

closing argument. Bagley counters that the trial court properly rejected Goff’s proposed

instructions because the jury could have recommended life with the possibility of parole.

Goff filed a motion to submit to the jury the following instruction:

If sentenced to life imprisonment, under no circumstances could

defendant be considered for parole for ___ years. If I deem it

appropriate, I may, upon your verdict of life, sentence defendant to ___

consecutive life sentences whereupon he could not be considered for

parole for at least ___ years.

There is no certainty that defendant would ever be released on

parole. After the minimum eligibility period I have already mentioned,

the State Parole Board would be required by law to make a determination

that there is a reasonable probability that, if defendant is released, he will

assume his proper and rightful place in society, without violation of the

law, and that his release is not incompatible with the welfare of society.

The Board may not make this determination without consulting those

concerned with the decision. You, as jurors, retain a right under the law

to express your views to the Board. A prisoner released on parole
No. 06-4669 Goff v. Bagley Page 34

remains on parole for the balance of his life and if he violates the terms

of the parole he may be returned to prison to serve the life sentence.

So that you will have no misunderstanding concerning the

sentence of life imprisonment, I have instructed you concerning the law

as it relates to parole. However, I further instruct you that the subject of

possible parole must be excluded from your deliberations. So far as you

are concerned, a life sentence is a life sentence. If upon and after

consideration of all evidence you believe your verdict should be

imprisonment for life, it would be a violation of your oaths as jurors to

refuse to make that recommendation because of a baseless doubt that the

State Parole Board will properly carry out its legal duties.

J.A. at 907-08 (Mem. in Supp. of Mot. to Instruct the Jury Regarding Parole at 1-2). The

trial court denied the motion, instead instructing the jury as follows:

Members of the Jury, you have heard the evidence and the

arguments of counsel and you will now decide whether you will

recommend to the Court that the sentence of death shall be imposed upon

the Defendant, and if not, whether the Defendant shall be sentenced to

life imprisonment with parole eligibility after serving 20 full years of

imprisonment or to life imprisonment with parole eligibility after serving

30 full years of imprisonment.

J.A. at 709 (Penalty Phase Hr’g Tr. at 2713).

Goff presented this claim on direct appeal, and the Ohio Supreme Court rejected

it:

We have consistently held that consideration of parole and

consecutive or concurrent sentences is not for the jury’s consideration.

See State v. Mills (1992), 62 Ohio St. 3d 357, 374, 582 N.E.2d 972, 987;

State v. Mitts (1998), 81 Ohio St. 3d 223, 229-230, 690 N.E.2d 522,

528-529. The trial court did not abuse its discretion in declining to

instruct the jury as appellant requested. Further, appellant’s trial counsel

made it clear in closing argument that the sentence imposed on the

aggravated murder count would be in addition to the sentences he would

receive on the other charges. Defense counsel also emphasized in voir

dire and in closing argument that even if a life sentence was imposed,

there was no guarantee that parole would be granted.

Goff I, 694 N.E.2d at 924. The district court also rejected Goff’s claim on the merits,

explaining that “a capital defendant is not entitled to an instruction about his parole
No. 06-4669 Goff v. Bagley Page 35

ineligibility if a life imprisonment without possibility of parole is not an option,” and

that, “[a]t the time that [Goff] was convicted and sentenced, there were only three

sentencing options,” none of which involved life without the possibility of parole. J.A.

at 1283 (8/19/03 Op. and Order at 34). We agree with the district court.

The Supreme Court has held that, “if the State rests its case for imposing the

death penalty at least in part on the premise that the defendant will be dangerous in the

future,” and life without the possibility of parole is the only alternative to a death

sentence, “due process plainly requires that [the defendant] be allowed to bring it [the

fact that the defendant is ineligible for parole] to the jury’s attention by way of argument

by defense counsel or an instruction from the court.” Simmons v. South Carolina, 512

U.S. 154, 168-69 (1994); Shafer v. South Carolina, 532 U.S. 36, 39 (2001) (reiterating

that if “a capital defendant’s future dangerousness is at issue, and the only sentencing

alternative to death available to the jury is life imprisonment without possibility of

parole, due process entitles the defendant ‘to inform the jury of [his] parole ineligibility,

either by a jury instruction or in arguments by counsel’” (quoting Ramdass v. Angelone,

530 U.S. 156, 165 (2000)) (alteration in original)). In the instant case, at the time of

Goff’s sentencing, Ohio law provided for three alternative sentences in capital cases:

“death, life imprisonment with parole eligibility after serving twenty years, and life

imprisonment with parole eligibility after serving thirty years.” J.A. at 1283 (8/19/03

Op. and Order at 34). None of these alternatives involve life without the possibility of

parole. Therefore, Simmons and its progeny are not applicable to Goff’s case. Thus,

Goff cannot demonstrate that the Ohio Supreme Court’s decision regarding this jury

instruction was contrary to, or an unreasonable application of, Supreme Court precedent.

2. Disclosure of Plea Agreement

In his fourth assignment of error, Goff contends that the prosecution committed

a Brady v. Maryland, 373 U.S. 83 (1963), violation by failing to disclose a plea

agreement between a key witness, Keith Lamar Jones, and federal prosecutors. Goff

raised this claim on state postconviction review. When evaluating and ultimately

rejecting Goff’s claim, the Ohio Court of Appeals made the following findings of fact:
No. 06-4669 Goff v. Bagley Page 36

Unbeknownst to either the state or appellant, on June 15, 1995,

Jones had signed a written plea agreement with the United States

attorney which included the following paragraph:

Finally, the United States Attorney for the Southern

District of Ohio agrees that if [Jones] provides substantial

assistance in the investigation or prosecution of others

who have committed criminal offenses, the United States

Attorney may move the Court . . . for an appropriate

departure from the otherwise applicable guideline range

for [Jones’] sentence and will in connection therewith

make known to the Court the nature and extent of

[Jones’] assistance. [Jones] understands that whether

such motion should be made lies within the discretion of

the United States Attorney and that whether and to what

extent such motion should be granted are solely matters

for determination by the Court.

On July 10, 1995, Jones entered a guilty plea to one count of false

use of a social security number in violation of Section 408(a)(7)(B), Title

42, U.S. Code.

On cross-examination during his testimony at appellant’s trial,

when asked whether he was under indictment or investigation in federal

court, Jones replied that he was for misuse of a social security number.

Appellant’s trial counsel further delved into the pending federal charge.

Appellant’s trial counsel elicited not only that Jones had been indicted

under the federal charge, but that he had also pled guilty to the federal

charge. Jones admitted that in addition to the time he had already served,

he was “looking at more time[.]” Appellant was subsequently convicted

in July and sentenced in August 1995.

On September 7, 1995, the United States attorney filed a motion

for substantial assistance asking the federal court to consider Jones’

“substantial assistance . . . in a case prosecuted by local authorities” in

determining an appropriate departure from the applicable sentencing

guidelines. On September 15, 1995, the state received a letter from

Jones’ attorney seeking a letter on behalf of Jones regarding his

assistance in appellant’s trial. On September 20, 1995, the state

addressed a letter to the federal court which stated that Jones’ “testimony

was critical in the successful prosecution of [appellant.] . . . Mr. Jones

voluntarily contacted our office and provided us with information and

testimony that was extremely beneficial in the preparation of our case.”

During Jones’ October 31, 1995 sentencing hearing, the United

States attorney stated that Jones was the state’s key witness in appellant’s

trial and that his testimony was critical. Jones’ attorney, in turn, stated
No. 06-4669 Goff v. Bagley Page 37

that Jones had been very cooperative not only in appellant’s trial, but also

with “agents of the United States government from divisions of the IRS,

Health and Human Services and others[.]” That same day, Jones was

sentenced to a twenty-four month term of imprisonment, instead of a

possible maximum sixty-month term.

Goff II, 2001 WL 208845, at *4-5 (alterations and omissions in original). The Ohio

Court of Appeals then concluded that “there is no evidence of any consideration to be

given Mr. Jones in exchange for his testimony. The affidavits and exhibits reflect that

the state did not receive any requests until some 51 days after Jones testified. There is

no evidence of any prior promises or agreements.” Id. at *5 (internal quotation marks

omitted). Additionally, the Court of Appeals noted that “[w]hile the record indicates

when the state became aware of Jones’ then-pending federal charge, it is not clear when,

if ever before Jones’ testimony, the state learned about Jones’ plea agreement and/or

guilty plea.” Id. The Court of Appeals also concluded that, “even assuming that the

state failed to disclose Jones’ plea agreement to appellant, we find, based upon the

totality of the circumstances, that there is no ‘reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been

different.’” Id. at *6 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).

The district court also denied relief on this claim, noting that “[t]here is no

evidence that the state prosecutors ever promised Jones any consideration in exchange

for his testimony . . . . [or] that they were aware that [Jones] had entered into a plea

agreement.” Goff IV, 2006 WL 3590369, at *16. The district court explained that “a

prosecutor has no obligation under Brady to learn of information possessed by other

government agencies having no involvement in the investigation or prosecution at

issue,” and rejected Goff’s contention “that the knowledge of the federal prosecutors

should be imputed to the [state] prosecutors.” Id. (citing United States v. Morris, 80

F.3d 1151, 1169-70 (7th Cir. 1996)). We agree.

It is true that, “[p]ursuant to Brady, ‘the suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the evidence

is material either to guilt or punishment, irrespective of good faith or bad faith of the
No. 06-4669 Goff v. Bagley Page 38

prosecution,’” United States v. Garner, 507 F.3d 399, 405 (6th Cir. 2007) (quoting

Brady, 373 U.S. at 87); however, “‘Brady clearly does not impose an affirmative duty

upon the government to take action to discover information which it does not possess,’”

United States v. Graham, 484 F.3d 413, 417 (6th Cir. 2007) (quoting United States v.

Beaver, 524 F.2d 963, 966 (5th Cir. 1975)), cert. denied, 128 S. Ct. 1703, 128 S. Ct.

1704 (2008). Goff has failed to demonstrate that the Ohio Court of Appeals’s factual

finding—that the state prosecutor had no knowledge of Jones’s plea agreement before

Jones testified—is clearly erroneous, and thus we take that fact as true. See Bailey, 271

F.3d at 656. Furthermore, Goff has pointed to no federal authority requiring a state

prosecutor to inquire into the federal prosecution of a witness that is unrelated to the

state case and that does not involve any persons acting on behalf of the state prosecutor.

Indeed, there is federal law supporting the opposite proposition—that Brady and its

prodigy do not “impos[e] a duty on the prosecutor’s office to learn of information

possessed by other government agencies that have no involvement in the investigation

or prosecution at issue.” Morris, 80 F.3d at 1169; Moon v. Head, 285 F.3d 1301, 1310

(11th Cir. 2002) (refusing to impute to a Georgia prosecutor information that Tennessee

authorities possessed regarding a defendant, where there was no evidence that (1) the

Georgia and Tennessee agencies shared any resources or labor, (2) the two agencies

worked together during the investigation of the defendant, or (3) the Tennessee

authorities were under the direction or supervision of the Georgia prosecutor). Under

these circumstances, we cannot say that the Ohio Supreme Court’s conclusion on this

issue was contrary to, or an unreasonable application of, Supreme Court precedent. Goff

is not entitled to relief on this claim.

3. Jury Instruction Regarding Specific Mitigating Factors

In his fifth assignment of error, Goff contends that the trial court’s refusal to

submit to the jury Goff’s proposed jury instruction regarding specific mitigating factors

that the jury could consider resulted in an unfair trial. Such factors included:

(1) Mr. Goff’s personality disorder;

(2) any residual doubt about the defendant’s guilt of the offense

charged, or an aggravated circumstance;
No. 06-4669 Goff v. Bagley Page 39

(3) Mr. Goff’s potential for rehabilitation;

(4) Mr. Goff’s ability to make a well-behaved and peaceful

adjustment to life in prison;

(5) Mr. Goff’s ability to lead a useful life behind bars if sentenced to

life imprisonment;

(6) Mr. Goff’s devotion to and care of his family members;

(7) Mr. Goff’s deprivation of parental nurturing, and the fact his

conduct disorder was caused by family environment; and

(8) The youth of the offender.

Goff Br. at 57. Additionally, Goff asserts in assignment of error eight that it was error

for the trial court not to instruct the jury regarding Goff’s drug use as a mitigating factor.

Rather than submit Goff’s proposed instructions, the trial court instructed the jury as

follows:

In making your decision you will consider all the evidence, the

arguments of counsel, and all other information and all other reports

which are relevant to the nature and circumstances of the aggravating

circumstances or to any mitigating factors including, but not limited to,

the nature and circumstances of the offense, and 1) the history and

character and background of the Defendant, 2) the youth of the

Defendant, and 3) any other factors that are relevant to the issue of

whether the Defendant should be sentenced to death.

You are to weigh the aggravating circumstances which you have

already found against any mitigating factors which you find to exist.

J.A. at 710 (Penalty Phase Hr’g Tr. at 2714) (emphases added).

Goff raised this issue on direct appeal, and, citing Eddings v. Oklahoma, 455 U.S.

104 (1982), the Ohio Supreme Court rejected Goff’s claim. Goff I, 694 N.E.2d at 922-

23. The district court also rejected the claim, noting that the jury instruction given did

not violate state law and that “petitioner was not denied due process . . . . [because t]he

court’s instructions permitted the jury to consider all the evidence presented by

petitioner in mitigation.” Goff IV, 2006 WL 3590369, at *19, *23. We, too, reject

Goff’s claim.

As stated above, “[t]he Eighth Amendment requires that the jury be able to

consider and give effect to all relevant mitigating evidence offered by petitioner.”

Boyde, 494 U.S. at 377-78. An instruction is constitutional so long as the jury is
No. 06-4669 Goff v. Bagley Page 40

permitted to consider all of the relevant mitigation evidence. Buell, 274 F.3d at 353.

“Where the trial court instructs the jury in accordance with state law and sufficiently

addresses the matters of law at issue, no error results and the petitioner is not entitled to

habeas relief.” White, 431 F.3d at 534.

Here, the trial court’s instruction allowed the jury to consider all of Goff’s

mitigation evidence, and thus adhered to Supreme Court doctrine. Cf. Buell, 274 F.3d

at 353 (denying habeas relief where the trial court gave a jury instruction very similar

to the one at issue in the instant case). Moreover, Goff has not argued that the trial

court’s instruction violated Ohio law. Because the instruction did not violate state law,

and did not limit the jury’s consideration of mitigating factors, we conclude that the

Ohio Supreme Court’s resolution of this claim was not contrary to, or an unreasonable

application of, federal law.

4. Refusal to Instruct the Jury Not to Consider the Nature and

Circumstances of the Offense

In his sixth assignment of error, Goff asserts that the trial court should have

instructed the jury not to consider the nature and circumstances of the crime when

weighing the mitigating and aggravating factors. Instead, the trial court specifically

instructed the jury to consider “all the evidence, . . . including . . . the nature and

circumstances of the offense.” J.A. at 710 (Penalty Phase Hr’g Tr. at 2714). The Ohio

Supreme Court denied this claim on direct appeal. Goff I, 694 N.E.2d at 922-23. The

district court also rejected this claim, finding that “[t]he Ohio Supreme Court has held

that under § 2929.04(B), it is proper, and indeed required, that the court instruct the jury

to consider the nature and circumstances of the offense as a mitigating factor,” and that

“[a] state statute which requires the jury to consider the circumstances of the crime for

which the defendant was convicted is not unconstitutional.” Goff IV, 2006 WL 3590369,

at *20. We agree.

We have noted that Ohio law requires the jury to “‘consider, and weigh against

the aggravating circumstances proved beyond a reasonable doubt, the nature and

circumstances of the offense.’” Slagle v. Bagley, 457 F.3d 501, 520 (6th Cir. 2006)
No. 06-4669 Goff v. Bagley Page 41

(quoting OHIO REV. CODE § 2929.04), cert. denied, 551 U.S. 1134 (2007). Such a

requirement is not unconstitutional. See Tuilaepa v. California, 512 U.S. 967, 976

(1994) (“[O]ur capital jurisprudence has established that the sentencer should consider

the circumstances of the crime in deciding whether to impose the death penalty.”);

Slagle, 457 F.3d at 521. Therefore, we cannot conclude that the Ohio Supreme Court’s

rejection of this claim was contrary to, or an unreasonable application of, federal law.

5. Refusal to Instruct the Jury Not to Consider the Aggravated Murder

Itself

In his seventh assignment of error, which is very similar to his sixth assignment

of error, Goff argues that the trial court should have instructed the jury not to consider

the aggravated murder itself when weighing the mitigating and aggravating factors. The

Ohio Supreme Court rejected this claim on direct appeal, noting that “the [trial] court

correctly identified the aggravating circumstances, and the process of weighing the

aggravating circumstances against the mitigating factors.” Goff I, 694 N.E.2d at 922.

The district court agreed, concluding that the instruction was correct under state law and

that it did not violate the Constitution. Goff IV, 2006 WL 3590369, at *22. As we

explained above, the trial court’s jury instruction regarding the nature and circumstances

of the crime comports with both state law and the Constitution. Moreover, Goff has

pointed to no authority requiring that a jury be specifically instructed that it cannot

consider the aggravated murder itself. Therefore, the Ohio Supreme Court’s decision

on this matter was not contrary to, or an unreasonable application of, federal law.

6. Trial Court’s Refusal to Consider Drug Abuse as a Mitigating Factor

In assignment of error ten, Goff asserts that the trial court refused to consider

Goff’s drug abuse at the time of the commission of the crime as a mitigating factor,

rendering Goff’s death sentence unfair. The trial court made the following observations

in its sentencing opinion:

b) The Defendant has argued that he suffered from alcohol and/or

drug impairment at the time of the offense.
No. 06-4669 Goff v. Bagley Page 42

Although there was evidence that the Defendant had used crack

cocaine earlier in the day, there was no evidence that at the time of the

offense he had used alcohol or was under the influence of either alcohol

or crack cocaine at the time of this offense. Furthermore, the use of

alcohol or drugs is not an excuse for committing a crime.

The Court assigns no weight to this as a mitigating factor.

J.A. at 935-36 (8/18/95 Decision at 9-10). The Ohio Supreme Court rejected this claim

on the merits during Goff’s direct appeal:

The trial court’s statement that it “assigns no weight to this as a

mitigating factor” indicates clearly that the trial court did not “refuse to

consider” alcohol and drug abuse as a mitigating factor. At the same

time, we also agree that some of the trial court’s earlier chosen language

may be inartful, to the extent that the trial court’s sentencing opinion may

be susceptible of a reading that indicates no need to consider the factor

simply because appellant was not under the influence of drugs or alcohol

at the time of the offense. The court’s statement in that regard would be

an incorrect definition of mitigation, one that relates directly to

culpability, as opposed to those factors that are relevant to whether the

offender should be sentenced to death. . . .

However, when this portion of the sentencing opinion is

considered in its entirety, there is no error. Moreover, if there was error,

our independent review would cure it.

Goff I, 694 N.E.2d at 925 (internal citation omitted) (second emphasis added). The

district court also rejected this claim, noting that any error the trial court committed was

corrected when the Ohio Supreme Court independently reweighed the aggravating and

mitigating factors. Goff IV, 2006 WL 3590369, at *38-39. We agree.

We have “held that reweighing by the Ohio Supreme Court under Ohio Rev.

Code § 2929.05(A) satisfies the requirements of Clemons [v.Mississippi, 494 U.S. 738

(1990), which allows an appellate court to cure errors by the trial court in weighing

mitigating and aggravating factors,] when the court either eliminates impermissible

aggravating factors or adds overlooked mitigating factors.” Lundgren v. Mitchell, 440

F.3d 754, 783 (6th Cir. 2006) (citing Baston v. Bagley, 420 F.3d 632, 638 (6th Cir.

2005)). In the instant case, the Ohio Supreme Court independently reweighed the

mitigating and aggravating factors, concluding that Goff “used marijuana, ‘speed,’ and
No. 06-4669 Goff v. Bagley Page 43

inhalants. His crack cocaine dependency occurred during a period of several months in

1994, leading to this crime. However, we give little weight to appellant’s voluntary

substance abuse.” Goff I, 694 N.E.2d at 931. This reweighing, which considered Goff’s

substance-abuse argument, cured any failure on the part of the trial court in regard to

weighing Goff’s substance abuse. Goff is not entitled to relief on this ground.

7. Prosecutorial Misconduct

In his thirteenth assignment of error, Goff contends that he was denied a fair trial

due to prosecutorial misconduct, which occurred when the prosecutor made the

following statement in his closing argument:

I heard this on the radio and it really, really strikes home. I heard an

individual on the radio say that the juries of today, of which you are one,

when they reach their verdicts, when they reach their recommendation of

sentencing, as in this case, are setting the standards of behavior

acceptable to society, and Ladies and Gentlemen of the Jury, that is true.

And the question is, what standard of behavior are you going to set for

society as you go back in that Jury Room and deliberate? What is your

standard? Is the standard going to be you can kill somebody with no

remorse because you want money to go buy crack? Or is the standard

going to be, we will not accept that?

J.A. at 683 (Penalty Phase Hr’g Tr. at 2687). After this statement was made, Goff’s

attorney asked for a sidebar conference, at the conclusion of which the trial court

instructed the jury as follows:

The Court is going to give you an instruction at this time that you

are to ignore and disregard any comments that were just made by the

State concerning enforcing the standards of behavior acceptable to

society. Your job here today is to follow the instruction of the Court and

make your decision accordingly.

J.A. at 683-84 (Penalty Phase Hr’g Tr. at 2687-88). On direct appeal, the Ohio Supreme

Court concluded that the prosecutor’s comments were improper, but ultimately rejected

Goff’s claim on the ground that there was no showing of prejudice:

The prosecutor, however, did overstep the bounds of proper argument on

one occasion, arguing that the jury must set the standards of behavior
No. 06-4669 Goff v. Bagley Page 44

acceptable to society, and appealing to public sentiment. However,

defense counsel immediately objected, and the jury was instructed to

disregard the prosecutor’s inappropriate comments. The jury is

presumed to follow the court’s instruction.

Goff I, 694 N.E.2d at 926. The district court likewise rejected Goff’s claim, Goff IV,

2006 WL 3590369, at *55-58, as do we.

“In the evaluation of a claim for prosecutorial misconduct, it is not enough that

the prosecutor’s comments were improper, but ‘[t]he relevant question is whether the

prosecutors’ comments “so infected the trial with unfairness as to make the resulting

conviction a denial of due process.”’” Smith, 567 F.3d at 255 (quoting Darden v.

Wainwright, 477 U.S. 168, 181 (1986)) (quoting Donnelly v. DeChristoforo, 416 U.S.

637, 643 (1974))). In other words, “[i]n order to satisfy the standard for prosecutorial

misconduct, the conduct must be both improper and flagrant.” Broom v. Mitchell, 441

F.3d 392, 412 (6th Cir. 2006), cert. denied, 549 U.S. 1255 (2007). To determine

whether improper conduct is flagrant, we consider four factors:

(1) the likelihood that the remarks of the prosecutor tended to mislead the

jury or prejudice the defendant; (2) whether the remarks were isolated or

extensive; (3) whether the remarks were deliberately or accidentally

made; and (4) the total strength of the evidence against the defendant.

Bates v. Bell, 402 F.3d 635, 641 (6th Cir.), cert. denied, 546 U.S. 865 (2005).

In the instant case, it is clear that the remarks made by the prosecution were

improper, but we do not believe that they were flagrant. Although the remarks were

deliberately made and might have misled the jury absent a curative instruction, the trial

court immediately gave a curative instruction, which we must presume the jury followed.

Scott, 209 F.3d at 879 (holding that curative instructions are “presume[d] to have been

effective unless there is an ‘overwhelming probability’ that they were ignored” (quoting

Richardson v. Marsh, 481 U.S. 200, 208 (1987))). Further, the remarks were isolated,

and there was substantial evidence before the jury favoring a death sentence. Therefore,

we conclude that the Ohio Supreme Court’s decision on this issue is not contrary to, or

an unreasonable application of, federal law.
No. 06-4669 Goff v. Bagley Page 45

16Even if these two arguments were not waived, Goff would not be entitled to relief. The trial

court was well within its discretion in asking prospective jurors if, under appropriate circumstances, they

could return a death sentence. See Mu’Min v. Virginia, 500 U.S. 415, 424 (1991) (noting, in the context

of questions regarding racial bias, that “the trial court retains great latitude in deciding what questions

should be asked on voir dire”). Moreover, it appears that such a question does not violate Ohio law. See,

e.g., State v. Evans, 586 N.E.2d 1042, 1057-58 (Ohio 1992) (holding that the trial court’s inquiry of each

juror “whether they could impose the death penalty upon the defendant” was not improper (internal

quotation marks omitted)). Given the precedent available, it is unlikely, even if trial counsel had objected

to the question, that the objection would have, or should have, been sustained, and, thus, Goff cannot

demonstrate prejudice on this claim.

As to Goff’s fourth claim under this heading, Goff does not point to any specific way in which

his trial counsel was ineffective in regard to the plea offer. Although Goff does have an affidavit from an

experienced capital defense attorney outlining a view on effective assistance in this arena, that affidavit

does not specifically address Goff’s representation. J.A. at 1175-83 (Vickers’s Aff.). The affidavit does

not state whether Goff received effective assistance during his plea bargaining experience, but merely

makes a blanket statement that “the vast majority of capital defendants will be misrepresented—and their

constitutional right to the effective assistance of counsel denied—if their counsel does not do everything

within his ability to resolve the case in a plea less than death.” J.A. at 1183 (Vickers’s Aff. ¶ 28).

Goff admits that his counsel advised him to take the plea deal and that he rejected the deal against

counsel’s advice. Goff IV, 2006 WL 3590369, at *44. However, Goff does not present any evidence

regarding what effort counsel did or did not make in trying to convince Goff to accept the plea bargain.

The district court noted that Goff’s “sole allegation is that his trial attorneys failed to obtain assistance

from more experienced attorneys to persuade [Goff] to accept the prosecution’s plea offer.” Id. at *45.

8. Ineffective Assistance of Trial Counsel

As noted above, to demonstrate ineffective assistance of counsel, Goff must

establish that his trial counsel was deficient and that this deficiency prejudiced Goff.

Strickland, 466 U.S. at 687. Prejudice is shown if Goff establishes “that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. In his eleventh assignment of error,

Goff asserts that his trial counsel was ineffective because: (1) counsel failed to object

at voir dire when the trial court asked each juror whether he or she could vote for the

death penalty; (2) counsel did not make a proper inquiry into certain mitigating factors,

specifically the degree of Goff’s involvement in the crime (i.e., whether Goff was the

principal offender); (3) counsel did not object to improper prosecution arguments,

specifically the prosecutor’s reference to the jury setting a moral standard with its

verdict; and (4) counsel did not properly attempt to convince Goff to accept a plea

agreement. We have already addressed and rejected the underlying claims presented by

arguments two and three. Given this rejection, Goff cannot show prejudice and his claim

of ineffective assistance of trial counsel based on those arguments must fail. As for

arguments one and four, nowhere in Goff’s briefs does Goff actually argue or explain

these two claims; thus, these arguments are deemed waived. Hall, 549 F.3d at 1042.16
No. 06-4669 Goff v. Bagley Page 46

We have found no binding authority that requires capital counsel to seek out such advice, nor does Goff

point to any. Furthermore, the affidavit Goff provides does not state that Goff’s counsel was ineffective.

Thus, there is no evidence that Goff’s trial counsel was ineffective in this regard.

III. CONCLUSION

Because we conclude that Goff received ineffective assistance of appellate

counsel in regard to his right to allocution under Ohio law, we REVERSE the decision

of the district court and GRANT Goff’s petition for a writ of habeas corpus unless the

Ohio courts reopen Goff’s direct appeal within 120 days to permit his counsel to raise

this issue on direct appeal. We AFFIRM the denial of a writ of habeas corpus on all

other issues raised in this appeal.
No. 06-4669 Goff v. Bagley Page 47

___________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

____________________________________________________

MERRITT, Circuit Judge, concurring in part and dissenting in part. Nothing in

the instructions in this case puts the jury on notice concerning rules as simple as

(1) which party has the burden of proof in establishing the existence of any single

mitigating factor or whether collectively the mitigators outweigh the aggravators, or

(2) whether unanimity is required as to the existence of one or all of the “collective

mitigators,” or, finally, (3) what effect it would have on the verdict if a single juror

believes without agreement from other jurors that a particular mitigator should reduce

the penalty to life imprisonment without parole. In this totally confused state of affairs,

a juror could think that the defendant must prove mitigators by the same standard as the

prosecution must prove aggravators and that jury unanimity is required as to mitigators

just as to aggravators or that a new trial is required in the absence of jury unanimity. 

Although the Supreme Court has now established that the Mills doctrine does not

prohibit this potential for massive confusion in the jury room as they deliberate on the

need to impose the death penalty, Justice Stevens, in his concurring opinion in Smith v.

Spisak, 558 U.S. —, 130 S. Ct. 676 (Jan. 12, 2010), after agreeing with the majority in

Spisak that “Mills does not clearly establish [under AEDPA] that the instructions at issue

were unconstitutional,” states: “But, in my view, our decision in Beck v. Alabama, 447

U.S. 625 (1980), does.” Spisak, 130 S. Ct. at 689. Justice Stevens describes the

potential confusion in Ohio’s mitigation and acquittal-first instructions as follows:

The acquittal-first jury instructions used during Spisak’s penalty phase

interposed before the jury the same false choice that our holding in Beck

prohibits. By requiring Spisak’s jury to decide first whether the state had

met its burden with respect to the death sentence, and to reach that

decision unanimously, the instructions deprived the jury of a meaningful

opportunity to consider the third option that was before it, namely, a life

sentence. Indeed, these instructions are every bit as pernicious as those

at issue in Beck because they would have led individual jurors (falsely)

to believe that their failure to agree might have resulted in a new trial and

that, in any event, they could not give effect to their determination that
No. 06-4669 Goff v. Bagley Page 48

a life sentence was appropriate unless and until they had first convinced

each of their peers on the jury to reject the death sentence.

Id. at 690-91. Having explained, in part, this problem of confusion in the jury room,

Justice Stevens concludes as follows:

Spisak and the Court of Appeals both correctly assailed the jury

instructions at issue in this case, but in my view Beck provides the proper

basis in clearly established federal law to conclude the instructions were

unconstitutional.

Id. at 691. 

It is unclear from the paragraph in the majority opinion in Spisak that mentions

Justice Stevens’ concurring opinion what position the majority takes with respect to

Justice Stevens’ argument that the Beck v. Alabama due process case should be used as

the source for the holding that the confusing Ohio mitigation and acquittal-first

instructions are unconstitutional. The majority neither explicitly accepts nor rejects his

argument. Spisak, 130 S. Ct. at 684.

Justice Stevens was under the impression that the Ohio Supreme Court had

changed its instructions in 1996 in State v. Brooks, 75 Ohio St. 3d 148 (1996): 

Ohio no longer uses the type of jury instructions at issue in this case. In

1996, the Ohio Supreme Court instructed that “[i]n Ohio, a solitary juror

may prevent a death penalty recommendation by finding that the

aggravating circumstances in the case do not outweigh the mitigating

factors. Jurors from this point forward should be so instructed.” State

v. Brooks, 75 Ohio St. 3d 148, 162, 661 N.E.2d 1030, 1042. . . . [T]he

Ohio high court laudably improved upon the accuracy of Ohio capital

jury instructions in Brooks.

Spisak, 558 U.S. at ____, 130 S. Ct. at 689 n.1. But in fact there has been no significant

change in Ohio law on this subject and instructions continue to leave the burden of proof

on mitigators in a state of confusion as well as the question of unanimity on mitigators

and the consequences for the death penalty of juror disagreement about mitigators. The

courts in Ohio are still not required to tell the jury explicitly that “in Ohio a solitary juror

may prevent [the] death penalty . . . . Jurors from this point forward should be so
No. 06-4669 Goff v. Bagley Page 49

instructed.” Brooks, 75 Ohio St. 3d at 159-60. Neither are the Ohio courts required to

advise the jury what happens when the jurors disagree on the weight to be given to a

mitigating factor. Ohio courts are still upholding death verdicts that do not clarify the

“acquittal-first,” mitigation confusion. See, e.g., State v. Gray, No. 92303, 2010 WL

320481, at *3 - *4 (Ohio Ct. App. Jan. 28, 2010) (refusing to find plain error when judge

only instructed jury that they must find death penalty unanimously); State v. Smith, 97

Ohio St. 3d 367, 372, 780 N.E.2d 221, 229 (2002) (“Although it is advisable for courts

to explicitly instruct the jury that a single juror ‘may prevent a death penalty

recommendation by finding that the aggravating circumstances . . . do not outweigh the

mitigating factors,’ the charge as given did not create prejudicial error.” (citation

omitted) (emphasis added)). It would appear that almost all of the large number of

condemned prisoners on death row in Ohio are there as a result of the same basic set of

instructions that Justice Stevens’ opinion labels as unconstitutional under clearly

established federal law. 

In light of the fact that it still remains undecided whether the petitioner Goff in

this case is being condemned to death on the basis of unconstitutional jury instructions,

I would first ask the parties to brief the question raised by Justice Stevens in his

concurring opinion. In the absence of such briefing and consideration, I am inclined to

follow Justice Stevens’ argument, which would require the issuance of the writ of habeas

corpus on due process grounds using Beck as the source of the constitutional law that

invalidates these highly confusing Ohio jury instructions. Goff has made the argument

that the Ohio instructions are completely confusing for the same reasons, and I agree

with him that no one should be executed as a result of such instructions. The only

question is: Can he shift his argument as a matter of form, not substance, to rely on due

process under the Beck case as explained by Justice Stevens? I think we should allow

Goff to unlink his argument from Mills and Spisak and state his question more broadly

to include the issue as outlined by Justice Stevens, as explained above.

Except for our court’s disposition of the issue of the constitutionality of the jury

instructions described above, I would concur in the other parts of the court’s opinion.