RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0043p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

VON CLARK DAVIS,

Petitioner-Appellant,

v.

RALPH COYLE, Warden,

Respondent-Appellee.

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No. 02-3227

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 97-00402—James L. Graham, District Judge.

Argued: December 8, 2005

Decided and Filed: January 29, 2007 

Before: DAUGHTREY, COLE, and GIBBONS, Circuit Judges.

_________________

COUNSEL

ARGUED: Alan M. Freedman, MIDWEST CENTER FOR JUSTICE, LTD., Evanston, Illinois,

for Appellant. Michael L. Collyer, OFFICE OF THE ATTORNEY GENERAL, Cleveland, Ohio,

for Appellee. ON BRIEF: Alan M. Freedman, MIDWEST CENTER FOR JUSTICE, LTD.,

Evanston, Illinois, Laurence E. Komp, ATTORNEY AT LAW, Manchester, Missouri, for Appellant.

Michael L. Collyer, OFFICE OF THE ATTORNEY GENERAL, Cleveland, Ohio, for Appellee.

DAUGHTREY, J., delivered the opinion of the court, in which COLE, J., joined.

GIBBONS, J. (pp. 18-19), delivered a separate opinion concurring in the judgment.

_________________

OPINION _________________

MARTHA CRAIG DAUGHTREY, Circuit Judge. The petitioner, Von Clark Davis, was

convicted of aggravated murder and sentenced to death by a three-judge panel in Ohio state court.

The Ohio Court of Appeals affirmed his conviction and sentence, but the state supreme court

vacated the sentence and remanded the case to the trial court for resentencing. After refusing to

permit Davis to introduce new evidence at the rehearing, the same three-judge panel again imposed

the death penalty, finding that because of his criminal history and “explosive personality disorder,”

Davis would not be deterred from future criminal conduct by a life sentence. Following his

unsuccessful appeal of the second sentencing order, Davis filed a petition for a writ of habeas corpus

in federal court, contending, among other things, that his rights under the Eighth and Fourteenth

Amendments to the United States Constitution had been violated when he was denied the

1
No. 02-3227 Davis v. Coyle Page 2

opportunity to present evidence of his good behavior in prison during the five years he had spent on

death row between the first and second sentencing hearings. Because the decisions in the Ohio

courts rejecting this contention and upholding the sentencing order were both contrary to and

unreasonable applications of the rule announced by the United States Supreme Court in Skipper v.

South Carolina, 476 U.S. 1 (1986), we reverse the district court’s denial of relief and grant the

petitioner a conditional writ of habeas corpus.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1984, a three-judge panel convicted Davis of capital murder in the death of Suzette Butler,

and the Ohio Court of Appeals affirmed the conviction on direct appeal. See State v. Davis, No.

CA84-06-071, 1986 WL 5989 (Ohio Ct. App. May 27, 1986) (Davis I). As part of its review, the

Ohio Supreme Court provided the following statement of facts with regard to Davis’s conviction:

At approximately 7:40 p.m. on December 12, 1983, officers of the Hamilton

Police Department arrived at the scene of a shooting at American Legion Post 520

(hereinafter “the Legion”) . . . . Lying on the pavement approximately six feet

outside the front door of the Legion was the deceased victim, Suzette Butler. An

autopsy performed the following day by the county coroner revealed that Butler had

died as a result of multiple gunshot wounds to the left side of her head. One of the

entrance wounds suggested that the muzzle of the murder weapon was within four

to twenty inches of the victim’s head at the time the weapon was fired.

On the day of the shooting, Butler met her friend, Mona Aldridge, at the

Legion sometime between 5:00 p.m. and 6:30 p.m. Appellant, Von Clark “Red”

Davis, arrived shortly thereafter, and eventually sat at a table with Butler and

Aldridge. Apparently, [Davis] and Butler had cohabited for several months, but had

recently separated. After a brief period of time, [Davis] and Butler arose from the

table and walked out the front door. Prior to leaving, Butler told Aldridge that she

would be “right back” and asked Aldridge to watch her jacket, cigarettes and drink.

Several minutes later, a concerned Aldridge went to the front door of the Legion to

look for Butler. Aldridge opened the door slightly and discovered [Davis] pointing

a gun at Butler’s head. Aldridge panicked and went back inside the bar.

Momentarily, others followed her into the bar saying that someone had been shot.

The shooting was witnessed by Reginald Denmark and Cozette Massey. The

couple had been on a walk observing Christmas lights. As they were walking, they

saw a man and a woman talking in front of the Legion. The man and woman did not

appear to be arguing. Two shots rang out. As the woman (later identified as Butler)

fell, another shot was fired. Finally, “. . . after she was down, he bent down and shot

her in the head.” Both Massey and Denmark ultimately identified [Davis] as the

person who shot Butler.

It was later established that on the day of Butler’s murder, [Davis] had sought

out Mark “Poppa” Lovette to “do him a favor” in exchange for sixty dollars. Along

with a third party, Wade Coleman, a.k.a. Hank Stokes, [Davis] drove Lovette to a

pawn shop and gave him money to purchase a handgun. Lovette purchased a Raven

P .25 semi-automatic handgun and gave it to [Davis]. [Davis] again gave money to

Lovette and had him purchase shells for the gun at a K Mart store. Lovette was then

dropped off. [Davis] subsequently discovered that the K Mart shells did not fit the

weapon. Lovette was picked up again, the shells were returned to K Mart, and

[Davis] drove Lovette to a local gun shop. Lovette purchased a box of PMC .25

automatic shells and gave them to [Davis]. [Davis] then loaded the gun in the
No. 02-3227 Davis v. Coyle Page 3

presence of Lovette and Coleman and placed the gun under the driver’s seat of his

car. Late that afternoon, Lovette and Coleman were dropped off separately.

State v. Davis, 528 N.E.2d 925, 926-27 (Ohio 1988) (Davis II).

At trial, Davis did not present either a heat of passion or a provocation defense. Instead, his

counsel attempted to point out inconsistencies in the accounts of the shooting offered by state

witnesses, and Davis also testified on his own behalf, maintaining that he had purchased the murder

weapon as part of an exchange with “Silky Carr,” a Kentuckian whom Davis asserted had been

Butler’s drug dealer. He also claimed that Butler owed “Silky Carr” money and “that he left ‘Carr’

and Butler talking in front of the Legion on the night of the murder.” Id. at 927 n.5.

The Ohio Supreme Court affirmed Davis’s convictions but vacated his sentence because the

three-judge panel had improperly considered non-statutory aggravating circumstances during the

penalty phase of the proceedings. See id. at 931-36. The court also considered for the first time

whether to apply its holding in State v. Penix, 513 N.E.2d 744 (Ohio 1987), that a capital defendant

whose death sentence is vacated on appeal following a jury verdict is ineligible to be resentenced

to death, to defendants tried before a three-judge panel. The court declined to extend the holding in

Penix and thus concluded that Davis was eligible to be resentenced to death. See Davis II, 528

N.E.2d at 936.

On remand, the same three-judge panel that originally convicted and sentenced Davis again

imposed the death sentence upon the petitioner. Relying solely upon the record from the first

sentencing hearing, the panel found that the only remaining, applicable aggravating factor – that

Davis had been previously convicted of second-degree murder – outweighed the mitigating factors

present beyond a reasonable doubt. The Ohio Court of Appeals affirmed this sentence as well, see

State v. Davis, No. CA89-09-123, 1990 WL 165137 (Ohio Ct. App. Oct. 29, 1990) (Davis III), as

did the Ohio Supreme Court. See State v. Davis, 584 N.E.2d 1192 (Ohio 1992) (Davis IV).

In 1993, Davis filed a petition for post-conviction relief in the state trial court and was

granted an evidentiary hearing on a single issue – an alleged judicial conflict of interest. Relief was

ultimately denied, however, by the Butler County Court of Common Pleas, the Ohio Court of

Appeals affirmed the decision, see State v. Davis, No. CA95-07-124, 1996 WL 551432 (Ohio Ct.

App. Sept. 30, 1996), and the Ohio Supreme Court denied further review. See State v. Davis, 674

N.E.2d 372 (Ohio 1997). Similarly, Davis’s attempts to obtain relief pursuant to an application to

reopen his direct appeal in the Ohio Court of Appeals, under Ohio Appellate Rule 26(B), were

unsuccessful.

Meanwhile, in April 1997, Davis filed this petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254, alleging 28 grounds for relief. In December 1997, the district court concluded

that ten of Davis’s claims had been procedurally defaulted. The district court subsequently granted

Davis’s motion to amend his petition by adding 14 issues but later concluded that the additional

issues were also procedurally barred. Ultimately, the district court also held that the remaining 18

issues were either defaulted or without merit, denied habeas relief, and dismissed Davis’s § 2254

petition. The court did grant a certificate of appealability on 18 issues, and, at the petitioner’s

request, we certified one additional question. 

On appeal, Davis has now abandoned several of those certified questions. Most of the

remaining issues present challenges to the process of the petitioner’s resentencing, including his

contentions that he should have been allowed to withdraw his jury waiver prior to resentencing

because it had been involuntarily entered at the time of his original trial, that it was error to deny his

requests both for the appointment of additional experts and to introduce new mitigation evidence,

that the three-judge panel should not have separated during deliberations, and that the Ohio Court
No. 02-3227 Davis v. Coyle Page 4

of Appeals did not review adequately on direct appeal either his original sentence or the reimposed

sentence. Davis also challenges the district court’s determination that several of the issues in his

habeas petition were procedurally defaulted either because they were not raised on direct appeal in

the state courts or because they were raised in an untimely motion to reopen his appeal in state court.

II. ANALYSIS

A. Standard of Review

We review the legal basis for a district court’s dismissal of a § 2254 petition de novo and the

court’s factual findings underlying its analysis for clear error. See Hill v. Hofbauer, 337 F.3d 706,

710 (6th Cir. 2003). Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.

104-132, 110 Stat. 1214 (1996) (AEDPA), the district court may not grant a habeas petition with

respect to any claim that was adjudicated on the merits in the state courts unless that adjudication

resulted in a decision that (1) was contrary to, or involved an unreasonable application of, clearly

established federal law; or (2) was based on an unreasonable determination of the facts in light of

the evidence presented to the state courts. See 28 U.S.C. § 2254(d). Under the “contrary to” clause,

a federal court may grant the writ if the state court arrives at a conclusion opposite that reached by

the Supreme Court on a question of law or if the state court decides a case differently from the

Supreme Court on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362,

413 (2000); Hill, 337 F.3d at 711. Under the “unreasonable application” clause, a federal court may

grant the writ if the state court identifies the correct governing legal principle from the Supreme

Court’s decisions but unreasonably applies that principle to the facts of the petitioner’s case. See

Williams, 529 U.S. at 413; Hill, 337 F.3d at 711. An unreasonable application of federal law differs

from an incorrect application of federal law, and on federal habeas review the district court may not

issue the writ simply because the court concludes that the state court applied clearly established

federal law erroneously or incorrectly. See Williams, 529 U.S. at 410-12.

Because the petitioner filed his habeas petition in April 1997, one year after the effective date

of AEDPA, most of the matters raised on appeal are subject to review under the standard set out

above. When that is not the case, we will note the appropriate standard in our discussion of the

issues.

B. The Sentencing Process

The petitioner first raises a number of issues challenging the process by which the trial court

sentenced Davis to death. In order to place these issues in proper context, we recount, this time in

detail, many of the facts pertinent to the sentencing proceedings.

The presentence report prepared by probation officer John Bohlen prior to Davis’s initial

sentencing in 1984 indicated that Davis had been released on parole from incarceration in an

unrelated case in 1980, after serving a ten-year sentence for the 1970 stabbing death of his wife,

Ernestine. The report further noted that Davis had entered prison with an eighth-grade education

but, while incarcerated, had earned not only the equivalent of a high school diploma through the

General Educational Development Testing Service (GED), but also had fulfilled the requirements

for an associate’s degree in business administration, received certificates in auto body repair and in

masonry, and completed job training as a dental technician. Furthermore, following his parole,

Davis completed an additional three years of course work toward a bachelor’s degree at Urbana

College.

At the first sentencing hearing, Davis presented testimony from two family members – his

mother, Alister Tipton, and his step-father, Charles Tipton. The parents had married when Davis

was a young teenager. According to Alister Tipton, Davis was the second oldest of her nine children

and was a “good boy” and a “normal child.” She further testified that during Davis’s ten years in
No. 02-3227 Davis v. Coyle Page 5

prison following his earlier conviction, the family visited him regularly – at least once a month – and

that Davis “was always in good spirits and . . . always talked about his work, how he was achieving

in his work and in his school.”

Dr. Roger H. Fisher, a clinical psychologist who had interviewed Davis in May 1984,

detailed Davis’s “successful vocational history,” noting that Davis was “quite a hard working man,

who is very dedicated to doing a good job for people who employ him and allow him to work for

them.” Fisher reasserted his findings, based on an earlier interview with Davis at the London

Correctional Institution, that Davis was an “active-detached individual with schizoid trends” and

could be classified as having a compulsive personality disorder. On cross-examination, however,

Fisher stated that, based on his interview and examination of Davis, it was his opinion that Davis

was “free of any mental disease or defect which would have impaired his capacity to appreciate the

criminality of any conduct in which he engaged or to have conformed his conduct to the requirement

of the law” at the time he was accused of murdering the victim in this case, Suzette Butler. Fisher

further testified that Davis maintained his innocence at all times during their interview and relayed

his theory that a drug dealer named Silky Carr was responsible for the death of Butler. Noting that

Davis had been charged with two assaults on his wife, the latter one resulting in her death, as well

as the death of Suzette Butler in this case, Fisher “assume[d] that the man [Davis] has difficulty

relating to women in solving problems he has with them in a nonviolent way . . . and that’s a

psychological problem.” He concluded that Davis could be suffering from an “explosive psychiatric

disorder,” which is “characteristic of persons who solve problems by becoming very overwrought

and violent with little or no provocation and then settle back down and who are able to cope with

things in a nonviolent way, but who seem to go over the deep end very quickly and very violently.”

The state introduced evidence concerning Davis’s involvement in the 1969 shooting and

1970 stabbing of Ernestine Davis, which provided the factual basis for the aggravating factor

specified in Davis’s capital indictment under Ohio Rev. Code § 2929.04(A)(5). Following the

presentation of this evidence and arguments by counsel, the three-judge panel, constituted pursuant

to the provisions of Ohio Rev. Code § 2929.022(A), sentenced Davis to death by electrocution,

having unanimously found that any mitigating factors were outweighed, beyond a reasonable doubt,

by the aggravating circumstances of the crime. As required by § 2929.03(F) of the Ohio Revised

Code, the panel listed the specific mitigating factors it found to be present in this matter:

(1) The Defendant adjusted well to prison routine and during his stay in prison,

obtained a high school GED and an associate degree in Business Administration, and

studied for and worked as a dental technician.

(2) There has always been a good family relationship between the Defendant and all

members of his family, including his step father.

(3) Since his release on parole, he has maintained at least partial employment.

(4) As testified by the psychologist, Defendant has a compulsory personality

disorder or explosive disorder which may have contributed to the violence in this

case.

The court further noted that the following aggravated circumstances had been proved beyond a

reasonable doubt:

(1) The manner by which the Defendant purchased the gun, used to kill the victim

in this case.

(2) The manner by which the Defendant purchased the ammunition for the gun.
No. 02-3227 Davis v. Coyle Page 6

1

 The statutory provision that mandates appellate review of every death sentence also empowers the Court of

Appeals independently to weigh the evidence in support of the sentence. Ohio Rev. Code § 2929.05(A). Pursuant to

this authority, the court concluded that the presence of the statutory aggravating circumstance in the case outweighed

the mitigating factors, beyond a reasonable doubt, thus justifying Davis’s death sentence. See Davis I, 1986 WL 5989,

at **12.

2

 At the time the Ohio Supreme Court vacated the original sentencing order, decisional law was not settled as

to whether a reviewing court must remand a case for resentencing upon its determination that the trial court considered

an improper aggravating factor. The Ohio Supreme Court nevertheless specifically held that the independent review

conducted by the intermediate appellate court was not sufficient to bring the sentence within the Ohio General

Assembly’s directive that a sentencing court examine specific factors that argue in favor of or against the imposition of

the death penalty. See Davis II, 528 N.E.2d at 936 (citing Proffitt v. Florida, 428 U.S. 242, 258 (1976)). 

(3) The shooting of the victim, the firing at close range and finally placing the gun

almost against her skull and discharging the weapon.

(4) The prior purposeful killing of his wife in 1970 by multiple stab wounds.

(5) Committing the present offense while on parole for the murder of his wife.

In summary, the trial court observed: 

The killing of the victim in this case was planned, calculated and designed by the

Defendant and carried out in an execution fashion. Further, he had previously been

convicted of second degree Murder for the purposeful killing of his wife. These

make it impossible for this panel to arrive at any other conclusion than that the

aggravated circumstances, proven beyond a reasonable doubt, outweigh the

mitigating factors.

Davis argued on direct appeal that the trial court had improperly considered non-statutory

aggravating factors in making its sentencing determination. Given that only the fourth of the five

factors listed by the trial court corresponded to an aggravating factor enumerated in § 2929.04 of

the Ohio Revised Code, it is not surprising that the Ohio Court of Appeals agreed that the

consideration of non-statutory aggravating factors was improper. See Davis I, 1986 WL 5989, at

**11. Nevertheless, the appeals court held that reversal of Davis’s death sentence was not

necessary. The court reasoned that by finding Davis guilty of a statutory aggravating circumstance,

the trial court had rendered him eligible for the death penalty and that consideration of the nonstatutory aggravating factors did not entail the introduction of otherwise inadmissible evidence. See

id. at **12.1

The Ohio Supreme Court reversed. The court concluded that although Ohio Rev. Code

§ 2929.04(B) requires the trial court to consider the nature and circumstances of the offense, such

a directive cannot substitute for a statutory mandate that the sentencer weigh only enumerated,

proven, aggravating circumstances against particular mitigating factors.2 See Davis II, 528 N.E.2d

at 934-35. Furthermore, the court found that it “c[ould not] accept independent review [by the court

of appeals] as a cure in this particular action because [it] cannot know if the result of the weighing

process by the three-judge panel would have been different had the impermissible aggravating

circumstances not been present.” Id. at 936. Therefore, the court remanded the case to the trial

court “for a new sentencing trial at which the [improper factors] shall not be considered as

aggravating circumstances in the weighing process.” Id. (emphasis added).

Despite what appeared to be a clear mandate from the state supreme court, the reconstituted

three-judge panel declined to interpret the ruling to require a full sentencing trial, or even an

evidentiary hearing. Instead, the trial court found it sufficient merely to reconsider the record from
No. 02-3227 Davis v. Coyle Page 7

the earlier proceeding, supplemented by argument from both Davis and the state. Indeed, at a nonevidentiary hearing held prior to Davis’s resentencing, one of the trial judges on the panel justified

the denial of Davis’s motions to withdraw his jury waiver and to introduce new evidence by

observing that the panel “got the impression from the Supreme Court of Ohio that they were simply

telling us to again reflect upon the trial as it took place and the evidence as we received it to

determine whether those aggravating circumstances proved beyond a reasonable doubt outweighed

anything in mitigation thereof as it existed then.” (Emphasis added.)

Nevertheless, in response to Davis’s motion to present additional evidence concerning his

post-sentence prison behavior and psychological profile, the trial court gave the petitioner the

opportunity to enter on the record summaries of the testimony that would have been offered by four

witnesses Davis would have called at the resentencing hearing, had he been permitted to introduce

new evidence. According to this proffer, Sergeant Gordy Pullman, Captain Oscar McGraw, and

social worker Herb Wendler would have testified concerning Davis’s adaptation to and good

behavior on death row. Davis would also have called Dr. Fisher, who testified at the first sentencing

hearing, to provide a “psychological update.”

Taking into account only the record of the trial and first sentencing proceeding, the judges,

not surprisingly, again imposed a death sentence upon Davis. The sentencing order issued by the

court pursuant to Ohio Rev. Code § 2929.03(F) reiterated the four mitigating factors set out in the

first sentencing opinion. The court then concluded, “As we are required by Section 2929.04(B),

Ohio Revised Code, to consider the nature and circumstances of the offense, the history, character

and background of the offender, and all of the factors in mitigation of the sentence of death

presented herein, we find the aggravating circumstance, the Defendant’s previous conviction of the

prior purposeful killing of his wife in 1970, outweighs the mitigating circumstances beyond a

reasonable doubt.”

On appeal from the new sentencing order, the Ohio Court of Appeals ratified the action of

the trial court, observing that “[i]t is basic law that a reversal and remand to the trial court for further

proceedings has the effect of reinstating the cause in the trial court in status quo ante.” Davis III, 1990 WL 165137, at **2. Because the error in Davis’s original sentence “occurred at the

deliberative state of the proceedings, after the evidence had been submitted to the court,” the

appellate court held that, upon remand, “it was not necessary for the panel to consider additional

evidence.” Id.

Although it, too, affirmed Davis’s death sentence, the Ohio Supreme Court avoided explicit

endorsement of this interpretation of its prior remand order, ruling instead that cases such as Skipper

v. South Carolina, 476 U.S. 1 (1986), were factually distinguishable and, therefore, did not require

that the petitioner be given the opportunity to present new evidence at the resentencing hearing. See

Davis IV, 584 N.E.2d at 1194-95. Thus, the court held, because Davis had not been denied the

opportunity to present all relevant mitigating evidence at his first sentencing trial, and because the

trial court on remand again considered all the same evidence, “[Davis] was not denied the type of

individualized consideration of relevant mitigating factors required in capital cases.” Id. at 1195

(distinguishing Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, 455 U.S. 104 (1982);

and Hitchcock v. Dugger, 481 U.S. 393 (1987)). One justice dissented, concluding that in

remanding the case for “a new sentencing trial,” the Ohio Supreme Court had “intended the trial

court to sentence the appellant after a full hearing, including the reintroduction of mitigating

evidence from the first sentencing as well as any post-trial mitigating evidence.” Id. at 1198-99

(Wright, J., dissenting). 
No. 02-3227 Davis v. Coyle Page 8

1. Introduction of Additional Evidence

Davis now submits that the decision of the three-judge panel to exclude testimony

concerning his exemplary behavior on death row in the time between the two sentencing hearings

violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments, and that the state

courts’ decisions affirming the panel’s ruling were contrary to the those of the Supreme Court of the

United States in Lockett, Eddings, and Skipper. Based upon a careful examination of these opinions,

we agree.

In Lockett, the Supreme Court considered the constitutionality of a former provision in the

Ohio death penalty statute that did not permit a sentencing judge to consider, as mitigating evidence,

factors such as the defendant’s character, prior record, and age. See 438 U.S. at 597. The Court

ruled in Lockett that “the Eighth and Fourteenth Amendments require that the sentencer, in all but

the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect

of a defendant’s character or record and any of the circumstances of the offense that the defendant

proffers as a basis for a sentence less than death.” Id. at 604. 

The Court extended this decision in Eddings, in which it held unconstitutional a capital

sentence imposed after the trial judge excluded evidence of the defendant’s family history. “By

holding that the sentencer in capital cases must be permitted to consider any relevant mitigating

factor, the rule in Lockett recognizes that a consistency produced by ignoring individual differences

is a false consistency.” Eddings, 455 U.S. at 112. Thus, “[j]ust as the State may not by statute

preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to

consider, as a matter of law, any relevant mitigating evidence.” Id. at 113-14 (emphasis in original).

Of course, the Court recognized that its opinions should not be taken as “limit[ing] the

traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant’s

character, prior record, or circumstances of his offense.” Lockett, 438 U.S. at 604 n.12. But the

Court has also made clear that evidence of the defendant’s conduct while incarcerated may indeed

be relevant to the question of his sentence. In Skipper, for example, the trial court had excluded as

irrelevant evidence of the defendant’s good behavior during the period of his incarceration between

arrest and trial. The Supreme Court reversed Skipper’s death sentence, holding that such evidence

was relevant to refute the state’s allegations of future dangerousness, and noting that “any

sentencing authority must predict a convicted person’s probable future conduct when it engages in

the process of determining what punishment to impose.” Skipper, 476 U.S. at 5 (quoting Jurek v.

Texas, 428 U.S. 262, 275 (1976)). Because, in the capital context, a sentencing authority may

consider a defendant’s past conduct as indicative of his probable future behavior, “evidence that the

defendant would not pose a danger if spared (but incarcerated) must be considered potentially

mitigating” and, under Eddings, may not be excluded from the sentencer’s consideration. Id.

Hence, the core of the analysis in Skipper reflects the Court’s understanding that the right

of a defendant to present evidence of good behavior in prison is particularly relevant when a

prediction of future dangerousness figures centrally in a prosecutor’s plea for imposition of the death

penalty. In Skipper, the right to produce such evidence was triggered specifically “by the

prosecutor’s closing argument, which urged the jury to return a sentence of death in part because

petitioner could not be trusted to behave if he were simply returned to prison.” Id. at 5 n.1. Thus,

“it is not only the rule of Lockett and Eddings that requires that the defendant be afforded an

opportunity to introduce evidence [of good behavior in prison]; it is also the elemental due process

requirement that a defendant not be sentenced to death ‘on the basis of information which he had

no opportunity to deny or explain.’” Id. (quoting Gardner v. Florida, 430 U.S. 349, 362 (1977)).

Despite these holdings of the Supreme Court, the trial court in this case refused to allow

Davis to present witnesses who would have testified as to his adaptation to death row, even over the
No. 02-3227 Davis v. Coyle Page 9

3

 The prosecution did not object to the presentation of these witnesses. At the motions hearing held July 31,

1989, the prosecutor discussed the holding of Skipper and then stated, “Looking at these cases . . . it’s my considered

judgment . . . that perhaps the ruling of this court should be in partial agreement with the defense, that they should be

allowed to present evidence . . . limit[ed] to evidence that was not available at the time of the first hearing, that is, the

evidence such as good behavior.”

state prosecutor’s suggestion that such evidence should be considered admissible.3 The state

intermediate appellate court concluded, however, that the trial court “committed no Lockett error,”

because “the appellant was permitted to introduce ample evidence in mitigation at the original

sentencing hearing, including evidence of his good behavior in prison.” Davis III, 1990 WL 165137,

at **2 (emphasis added). The Ohio Supreme Court affirmed, interpreting Skipper to forbid the

exclusion only of a defendant’s good prison record between his arrest and trial, and holding that

Skipper has no applicability to post-trial prison behavior. See Davis IV, 584 N.E.2d at 1195. The

court observed:

In the case at bar, no relevant mitigating evidence was excluded from consideration

by the panel during the mitigation phase of appellant’s 1984 trial. All mitigating

evidence which was available at that time was duly received and considered by the

panel including evidence concerning appellant’s ability to adjust to prison life. That

same relevant evidence was again received and considered by the panel in 1989 for

purposes of resentencing appellant. The evidence excluded from consideration by

the panel at appellant’s resentencing hearing concerned certain post-trial matters.

Under these circumstances, we do not believe that Skipper or, for that matter,

Lockett, Eddings, or Hitchcock requires that appellant’s death sentence be vacated.

Id. (internal citations omitted). In dissent, one justice argued, however, that the directives of Lockett

and its progeny should be considered “just as important in resentencing as they are in the original

sentencing,” and noted that they “are consistent with the directive in R.C. 2929.04(c) that a

defendant ‘be given great latitude’ in presenting evidence of mitigating factors.” Id. at 1199

(Wright, J., dissenting). 

We conclude that the decision of the state courts to disallow the proffered evidence was

“contrary to” United States Supreme Court decisions on this issue and, therefore, that it runs afoul

of Williams. See 529 U.S. at 413. Although neither side was permitted to introduce additional

evidence at Davis’s resentencing, the state used this opportunity to argue that Davis’s status as a

repeat offender rendered him too dangerous for anything other than a death sentence:

To outweigh means to be more important than. And when you come right down to

it, the issue in this case is the answer to this question. Is anything you heard in this

case . . . in the defendant’s mitigation evidence, is there anything more important in

this case than the fact that Von Clark Davis is a repeat offender? I submit it’s the

most important thing in this defendant’s history, character or background . . . that

your Honors can consider . . . . The aggravating circumstances in this case, repeat

killing, recognizes a special danger demonstrated by an individual who purposely

and repeatedly kills another, purposely and repeatedly disregards the safety, personal

integrity and human worth of others.

Then, addressing Davis’s exemplary prison record, the prosecution continued:

How much weight can we assign that positive prison record? . . . Consider this, the

same people who in 1981 looked at this evidence before this positive record, the

parole board, made a prediction in 1981 that Von Clark Davis was, and I quote the

record, “a minimal risk to persons and property.” How wrong they were in December
No. 02-3227 Davis v. Coyle Page 10

of 1983 in the situation of Suzette Butler. And coupled with [the fact that] the

defendant has an explosive personality disorder, it’s hard to say that this defendant

is not too dangerous, that we can predict that he’s not too dangerous. (Emphasis

added.)

In rebuttal, Davis was then forced to rely solely upon the evidence presented at his first

sentencing hearing, consisting of testimony from Bohlen, the probation officer who had prepared

the presentence report based on records compiled during Davis’s previous stay at the London

Correctional Institution. Those records indicated that Davis’s functioning in the prison was “very

good” and that he had generally adapted well. Davis was prevented, however, from presenting the

testimony of three employees of the Department of Corrections who could have offered relevant

information about Davis’s more recent behavior and adjustment to prison life since his incarceration

after his trial in 1984. 

Such testimony would have established that Davis was classified as an “A” prisoner,

indicating that he had no discipline or conduct problems; that he was the clerk on death row for the

unit manager and helped conduct tours of death row; and that he had created no problems for other

inmates or for security personnel and had no conduct write-ups. Davis worked directly for Oscar

McGraw, the unit manager for death row, who complimented Davis’s positive attitude and pleasant

personality. Herb Wendler, Davis’s case manager, observed that Davis was cooperative and

courteous, that he had been given much more freedom than other inmates on death row, and that he

had been placed in various positions of trust within the unit.

Although there could conceivably be some question about the relevance of such evidence

in the abstract, the record in this case establishes without doubt that it was highly relevant to the

single aggravating factor relied upon by the state – that future dangerousness should keep Davis on

death row. As the Supreme Court observed in Eddings, in such a situation “[t]he sentencer[s] . . .

may determine the weight to be given [the] relevant mitigating evidence,” but “may not give it no

weight by excluding such evidence from their consideration.” Eddings, 455 U.S. at 114-15. In light

of the clear constitutional mandate of the Supreme Court at the time of Davis’s resentencing, we

have no choice but to conclude that the Ohio Supreme Court’s decision to exclude the proffered

testimony, based on the court’s belief that the facts of Davis’s case could be distinguished from

Skipper’s solely on the basis of timing, was both an unreasonable application of the decision in

Skipper and contrary to the holding in that opinion and its antecedent cases.

We are further persuaded of the correctness of our conclusion based on its ratification by the

United States Supreme Court’s recent opinion in Ayers v. Belmontes, 127 S.Ct. 469 (2006). In that

case, the Court unmistakably recognized yet again the importance of permitting capital defendants

to put forth evidence of the likelihood of future good conduct at sentencing. The Ayers majority

stated:

[J]ust as precrime background and character and postcrime rehabilitation may

“extenuat[e] the gravity of the crime,” so may some likelihood of future good

conduct count as a circumstance tending to make a defendant less deserving of the

death penalty. Cf. Skipper, 476 U.S., at 4-5 (explaining that while inferences

regarding future conduct do not “relate specifically to [a defendant’s] culpability for

the crime he committed,” those inferences are “‘mitigating’ in the sense that they

might serve ‘as a basis for a sentence less than death.’”).

Id. at 475 (citations omitted).

Moreover, we are not alone among our sister circuits in recognizing that the holding in

Skipper that a defendant be “permitted to present any and all relevant mitigating evidence that is
No. 02-3227 Davis v. Coyle Page 11

4

 Pursuant to the version of Ohio Rev. Code § 2929.06 in effect at the time of Davis’s resentencing:

If the sentence of death that is imposed upon any offender is vacated upon appeal

because the court of appeals or the supreme court, in cases in which the supreme

court reviews the sentence upon appeal, could not affirm the sentence of death

under the standards imposed by section 2929.05 of the Revised Code, is vacated

available,” Skipper, 476 U.S. at 8, requires that, at resentencing, a trial court must consider any new

evidence that the defendant has developed since the initial sentencing hearing. See, e.g., Robinson

v. Moore, 300 F.3d 1320, 1345-48 (11th Cir. 2002) (counsel is obliged to present newly available

evidence at resentencing, although failure to do so in that case was not prejudicial); Smith v. Stewart, 189 F.3d 1004, 1008-14 (9th Cir. 1999) (failure to investigate and present additional evidence at

resentencing constitutes ineffective assistance of counsel); Spaziano v. Singletary, 36 F.3d 1028,

1032-35 (11th Cir. 1994) (Lockett requires trial court to consider any new evidence that the parties

may present at a resentencing hearing); Alderman v. Zant, 22 F.3d 1541, 1556-57 (11th Cir. 1994)

(at resentencing hearing, trial court must consider reliable evidence of relevant developments

occurring after defendant’s initial death sentence). Most significantly, in a case with facts virtually

indistinguishable from those in Davis’s case, the Ninth Circuit held that Lockett, Eddings, and

Skipper dictate that evidence of a defendant’s good behavior and peaceful adjustment while in prison

following imposition of the death sentence is indeed mitigating evidence that should be considered

at a resentencing hearing. See Creech v. Arave, 947 F.2d 873, 881-82 (9th Cir. 1991).

There remains for our resolution the question of a remedy for the rejection of the new

evidence that the petitioner sought to introduce before the three-judge panel. The respondent cites

precedent to support the proposition that if a sentencer considers improper aggravating

circumstances, the state appellate court may reweigh the remaining aggravating circumstances

against the mitigating circumstances or may determine that the error was harmless. See Parker v.

Dugger, 498 U.S. 308, 319 (1991); Clemons v. Mississippi, 494 U.S. 738, 745-50 (1990).

Presumably, the warden, by citing these cases, contends that any constitutional error committed in

this matter may be rectified simply by a state court reconsideration of Davis’s suitability for

execution or for lifetime incarceration. But, reweighing in this case is not possible because the

improperly-excluded evidence was never put into the record. Defense counsel’s proffer concerning

the proposed witnesses’ testimony merely summarized his interviews with these witnesses; the

actual substance of the witnesses’ testimony was not put before any court and, therefore, no factual

basis for reweighing exists. For this reason, the Supreme Court has decided that, when a trial court

improperly excludes mitigating evidence or limits the fact-finder’s consideration of such evidence,

the case must be remanded for a new sentencing hearing. See Skipper, 476 U.S. at 8.

The Skipper error in this case is both indisputable and dispositive. Because we must remand

the case for yet another sentencing hearing, we need not address in detail each of the remaining

allegations of constitutional error raised before this court by Davis. We will, however, discuss those

issues insofar as they should also have affected the outcome in the state litigation or may arise again

on remand to the state court. 

2. Validity of the Appellate Review

The petitioner contends that in affirming both the three-judge panel’s imposition and its

reimposition of the death penalty, the Ohio appellate courts ran afoul of the United States Supreme

Court’s ruling in Hicks v. Oklahoma, 447 U.S. 343, 346 (1980), that a defendant’s right to due

process is violated when state courts “arbitrarily disregard” provisions of state criminal statutes.

Specifically, Davis argues that the then-applicable provisions of Ohio Rev. Code § 2929.06 forbade

a trial court from reimposing the death penalty upon resentencing after concluding that a nonstatutory aggravating circumstance has been improperly considered by the sentencer.4
No. 02-3227 Davis v. Coyle Page 12

upon appeal for the sole reason that the statutory procedure for imposing the

sentence of death that is set forth in sections 2929.03 and 2929.04 of the Revised

Code is unconstitutional, or is vacated pursuant to division (C) of section 2929.05

of the Revised Code, the trial court that sentenced the offender shall conduct a

hearing to resentence the offender. At the resentencing hearing, the court shall

sentence the offender to life imprisonment with parole eligibility after serving

twenty full years of imprisonment or to life imprisonment with parole eligibility

after serving thirty full years of imprisonment.

We note that the petitioner’s Hicks claim was not raised in the district court, was not

included in the certificate of appealability and, therefore, is not properly before us. In anticipation

of a similar argument being raised on remand, however, we note that the state courts of Ohio have

construed the state statute at issue to apply only when a jury, not a three-judge panel, recommends

a sentence of death. See Davis II, 528 N.E.2d at 936. Such an interpretation does not “arbitrarily

disregard” state criminal statutes; indeed, that conclusion flows from the determination of the Ohio

Supreme Court in Penix that, pursuant to Ohio statutory mandates, “when an accused is tried by

jury, . . . a death sentence may be imposed by the trial judge only upon recommendation of the same

jury that tried the guilt phase of the proceedings. . . .” 513 N.E.2d at 748 (emphasis added).

Because Davis was tried initially by a three-judge panel, not by a jury, the restrictive resentencing

provisions of Ohio Rev. Code § 2929.06 are not applicable in this matter. It thus follows that the

sentencing process in this case did not violate due process under Hicks, that the sentencing court was

not precluded from re-imposing the death penalty, and that there is no constitutional impediment to

consideration of the death penalty upon remand for resentencing. 

3. Withdrawal of the Jury Waiver

Following remand from the Ohio Supreme Court for a new sentencing hearing, Davis filed

a motion to withdraw his waiver of the right to have his sentence determined by a jury, rather than

by the three-judge panel that originally heard his case and imposed the death sentence, arguing that

the original waiver had not been voluntarily, knowingly, and intelligently entered. The trial court

denied the motion and, as noted above, again sentenced Davis to be executed. 

Challenging the failure to permit withdrawal of his waiver of the right to be tried by a jury,

Davis first contends that the waiver was not voluntary because the trial court’s denial of his motion

to sever the charges in the indictment forced him to seek a non-jury trial. Of course, this argument

can succeed only to the extent that the court’s decision to deny severance was in error and also

constituted a violation of due process. Davis also contends that his jury trial waiver was not

“knowing and intelligent” because, at the time the waiver was executed, he did not know and could

not anticipate that the Ohio Supreme Court would subsequently hold that a capital defendant whose

sentence was set aside following a jury verdict was ineligible for reimposition of the death penalty

on remand for resentencing, see Penix, 513 N.E.2d at 745, but that Penix would not control

situations involving sentencing and resentencing by three-judge panels. See Davis II, 528 N.E.2d

at 936. The petitioner claims that this drastic difference in potential penalties upon resentencing

violated his constitutional right to equal protection of the law.

a. The Motion to Sever

The indictment against Davis contained two counts: aggravated murder, in violation of Ohio

Rev. Code § 2903.01(A); and possession of a weapon while under a disability, in violation of Ohio

Rev. Code § 2923.13(A)(2). Davis’s prior conviction for the stabbing and second-degree murder

of his first wife was specified in Count 1 to support an aggravating circumstance defined in

§ 2929.04(A)(5), which was a necessary element to make the alleged murder of Suzette Butler a

capital offense. Another prior conviction, this one for shooting at his first wife with a firearm with
No. 02-3227 Davis v. Coyle Page 13

5

 Because Ohio Rev. Code § 2929.022(A) permits a capital defendant charged with a prior conviction

specification under § 2929.04(A)(5) to have the trial judge determine the existence of the aggravating circumstance at

the sentencing hearing, rather than submit that issue to the jury, severance of the two counts would have allowed Davis

to keep evidence of the second-degree murder conviction from the jurors until the sentencing phase of the proceedings.

the intent to murder her, was likewise specified in the indictment, but only in support of the weapons

charge in Count 2.

Prior to trial, Davis filed a motion to sever these two counts, alleging that he would be

prejudiced by joinder of the offenses. Specifically, Davis argued that if the two counts were tried

together, the jury would hear evidence concerning his prior homicide conviction, which would be

admissible solely to prove under Count 2 that he could not legally possess a firearm, thereby creating

a risk that the jury would improperly consider that prior act in deciding his guilt on the aggravated

murder charge in Count 1.5

 Davis also argued that the provisions of Ohio Rev. Code § 2929.022(A)

supported his position that the Ohio legislature intended to provide special protection for capital

defendants against the improper consideration of prior bad acts. 

When the trial court denied his motion for severance, Davis waived his right to a jury trial

and elected to proceed instead before a three-judge panel. On appeal, the Ohio Court of Appeals

found that the two counts had been properly joined in the indictment pursuant to Ohio Rule of

Criminal Procedure (8)(A), and that petitioner had not met his burden of affirmatively demonstrating

prejudice by the joinder. See Davis I, 1986 WL 5989, at **7-8. The appeals court also rejected the

petitioner’s argument that § 2929.022(A) permitted the defendant to bar all evidence concerning a

prior purposeful killing that would be admissible at trial for reasons other than to prove the

aggravating circumstance. See id. at *8. The Ohio Supreme Court affirmed, agreeing that the

offenses had been properly joined under Rule 8(A), which permits joinder of separate offenses only

where the offenses charged “are of the same or similar character, or are based on the same act or

transaction, or are based on two or more acts or transactions connected together or constituting parts

of a common scheme or plan, or are part of a course of criminal conduct.” The court found that

“[c]learly . . . the crimes charged in the indictment arose from the same act or transaction.” Davis

II, 528 N.E.2d at 928. The court also ruled that § 2929.022(A) did not trump Rule (8)(A) to mandate

severance. “[I]t is not the purpose of R.C. 2929.022(A) to provide a defendant with a blanket

statutory right to preclude, at the guilt phase, the introduction of all evidence pertaining to prior

purposeful killings which is otherwise admissible, i.e., the evidence necessary to prove the offense

of having a weapon while under a disability.” Id. at 929. 

In denying Davis’s motion for severance, the Ohio courts applied state law and, as a result,

we must accept as binding the state supreme court’s interpretation of the interaction between the

capital specification-election provision, Ohio Rev. Code § 2929.022(A), and the rules for joinder

and severance of criminal charges. In considering whether the denial of severance amounted to an

error warranting relief in a habeas proceeding, the issue before us is not whether the failure to sever

counts for separate trials was a violation of a state rule of procedure, but whether the failure to sever

denied the petitioner due process of law under the Fourteenth Amendment. See Corbett v.

Bordenkircher, 615 F.2d 722, 724 (6th Cir. 1980). In other words, in order to obtain federal habeas

relief on this claim involving state law, Davis must show that misjoinder of the counts “result[ed]

in prejudice so great as to deny a defendant his . . . right to a fair trial.” United States v. Lane, 474

U.S. 438, 446 n.8 (1986).

Without question, a risk of undue prejudice exists whenever joinder of counts permits

introduction of evidence of other crimes that would otherwise be inadmissible. See, e.g., Bean v.

Calderon, 163 F.3d 1073, 1084 (9th Cir. 1998). By allowing joinder of offenses, the possibility

exists that a jury may use the evidence of one of the charged crimes to infer a general criminal

disposition by the defendant; the jury also may confuse or cumulate the evidence of the various
No. 02-3227 Davis v. Coyle Page 14

6

 Ohio Rev. Code § 2945.75(B) provides that, whenever the prosecution must prove the existence of a prior

conviction, it is sufficient to provide a certified copy of the entry of judgment for the prior conviction, accompanied by

evidence to identify the named defendant as the offender in the present case. See State v. Blonski, 707 N.E.2d 1168,

1172 (Ohio Ct. App. 1997); State v. Day, 651 N.E.2d 52, 54 (Ohio Ct. App. 1994). Although the state must introduce

evidence that the individual named in the proffered judgment entry is in fact the defendant then on trial, it must do so

in a manner that does not allow the jury to hear details of the prior conviction. See Blonski, 707 N.E.2d at 1172.

crimes charges. See Lucero v. Kerby, 133 F.3d 1299, 1314 (10th Cir. 1998). The prejudice that

Davis must demonstrate, however, in order to justify a grant of a writ of habeas corpus is actual

prejudice, not merely the potential for prejudice. See Herring v. Meachum, 11 F.3d 374, 377-78 (2d

Cir. 1993).

After examining settled case law, we conclude in this case that the fact that a jury had

learned of Davis’s prior felony conviction did not result in an unfair trial as a matter of law. For

example, in Spencer v. Texas, 385 U.S. 554 (1967) (reaffirmed by Marshall v. Lonberger, 459 U.S.

422 (1983)), the Supreme Court considered the constitutionality of a Texas recidivist statute under

which the jury trying the pending criminal charge was informed of a defendant’s prior convictions

during the guilt phase. The trial court instructed the jury that these prior convictions were to be

considered for sentencing purposes only, and could not be taken into account in determining guilt

on the pending charge. The Court recognized that evidence of a prior conviction might be admitted,

among other reasons, to prove an element of the indicted offense. See id. at 560. Nevertheless, in

such a situation, “the jury learns of prior crimes committed by the defendant, but the conceded

possibility of prejudice is believed to be outweighed by the validity of the State’s purpose in

permitting introduction of the evidence.” Id. at 561. The Court concluded that the prejudice suffered

by a defendant in such a case does not rise to the level of a violation of due process:

To say the United States Constitution is infringed simply because this type of

evidence may be prejudicial and limiting instructions inadequate to vitiate prejudicial

effects, would make inroads into this entire complex code of state criminal

evidentiary law, and would threaten other large areas of trial jurisprudence. . . . This

type of prejudicial effect is acknowledged to inhere in criminal practice, but it is

justified on the grounds that (1) the jury is expected to follow instructions in limiting

this evidence to its proper function, and (2) the convenience of trying different

crimes against the same person . . . in the same trial is a valid governmental interest.

Id. at 562. The Court noted that the defendant’s interests are also protected by the discretion of the

trial court to limit or forbid the admission of particularly prejudicial evidence. See id. Furthermore,

courts have observed that where documentary evidence is used, as it is in Ohio,6

 to prove the prior

crime, such evidence is seldom, if ever, so inflammatory that the jury will be unable to follow

instructions to disregard any inclination to convict a defendant based upon conduct committed in

a past criminal episode. See Bruton v. United States, 391 U.S. 123, 135 (1968). 

Left to our own devices, we might well remain skeptical, despite the wealth of settled law,

about the degree to which Ohio’s joinder provisions undercut the protection afforded a capital

defendant by Ohio Revised Code § 2929.022(A), especially given the heightened concerns regarding

undue prejudice in a capital case. Nevertheless, a habeas corpus proceeding is not an appropriate

vehicle for this court to substitute its own judgment for that of the State of Ohio. “[A] state rule of

law does not run afoul of the Fourteenth Amendment because another method may seem to our

thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at bar.”

Spencer, 385 U.S. at 564 (internal quotation marks and citation omitted). Because the denial of

Davis’s motion for severance did not constitute a denial of the petitioner’s due process right to a fair

trial, that ruling cannot be said to have rendered his waiver of a jury trial involuntary. 
No. 02-3227 Davis v. Coyle Page 15

7

 The Ohio legislature subsequently amended Ohio Rev. Code § 2929.06 to provide for reimposition of the

death penalty in cases tried to a jury after the effective date of the amendment. See Ohio Rev. Code § 2929.06(B).

8

 Obviously, Ring’s mandates would apply only in situations in which the criminal defendant did not exercise

the prerogative to waive the constitutional right to a jury trial. See, e.g., United States v. Ashe, 47 F.3d 770, 775-76 (6th

Cir. 1995) (“Any right, even a constitutional right, may be surrendered . . . if that waiver was made knowingly and

voluntarily.”).

b. The Penix–Davis Dichotomy

 On remand from the Ohio Supreme Court for resentencing, the petitioner also moved to

withdraw his jury waiver on the ground that it was not knowing and intelligent because he did not

anticipate the Ohio Supreme Court’s decision in Penix, which was decided while Davis’s case was

still on direct appeal. The court held in Penix that a capital defendant who is sentenced by a jury

in the first instance becomes ineligible for the death penalty following reversal of that sentence. See

513 N.E.2d at 748.7 Davis now argues in effect that he should have been allowed to withdraw his

jury waiver prior to resentencing because reimposition of the death sentence by the three-judge panel

was a violation of his right to equal protection of the laws, given that a defendant originally

sentenced to death by a jury would not have been eligible for imposition of the same sentence on

remand. 

In Davis IV, 584 N.E.2d at 1196, the Ohio Supreme Court addressed this claim as follows:

In his fifth proposition of law, appellant challenges the constitutionality of our

holding in Davis [II], supra, which permitted the three-judge panel to consider

reimposing the death penalty on remand. Appellant argues that our holding in Davis

[II] is unconstitutional since a defendant whose death sentence is vacated following

a jury trial would not similarly be subject to the death penalty upon sentencing

remand. See State v. Penix, . . . 513 N.E.2d 744 [(1987)]. In effect, appellant

requests that we reconsider our holding in Davis [II] in which we distinguished

Penix. However, we decline appellant’s invitation, at this time, to revisit our basic

holding in Davis [II].

As an initial matter, we note that this ruling is not a decision on the merits and, therefore, that the

AEDPA standard of review set out in § 2254 does not apply to this claim. See Newton v. Million, 349 F.3d 873, 878 (6th Cir. 2003). When the state courts do not assess the merits of a petitioner’s

claims, the federal habeas court need not extend the deference otherwise due under AEDPA. See

id. Instead, the habeas court reviews de novo questions of law and mixed questions of law and fact.

See id. 

When a law seeks to regulate an individual’s fundamental rights or distinguishes between

individuals on the basis of certain suspect characteristics, the statute is subject to strict scrutiny

under the Equal Protection Clause. See Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 312

(1976). Davis clearly does not belong to a “suspect class” for equal protection purposes, however.

Federal courts have consistently held that prisoners do not constitute such a class, see Hadix v.

Johnson, 230 F.3d 840, 843 (6th Cir. 2000), nor do capital defendants. See Tigner v. Cockrell, 264

F.3d 521, 526 (5th Cir. 2001); Pitsonbarger v. Bramley, 141 F.3d. 728, 739 (7th Cir. 1998). 

Nor has Davis’s fundamental right to have his punishment determined by a jury yet been

implicated in this matter. In the United States Supreme Court’s opinion in Ring v. Arizona, 536 U.S.

584, 602 (2002), the Court did recognize that Sixth Amendment jurisprudence now requires that a

jury find, beyond a reasonable doubt, any fact necessary to increase a defendant’s authorized

punishment.8

 Ring, however, post-dates not only the petitioner’s sentencing and resentencing, but
No. 02-3227 Davis v. Coyle Page 16

also the denial of habeas relief by the district court. Consequently, the state courts cannot be faulted

for failing to analyze Davis’s motion to withdraw his jury waiver under a fundamental-rightsanalysis when the right in question had yet to be recognized by the Supreme Court in the context

raised by the petitioner.

Furthermore, the decisions of the Ohio state courts in refusing to grant the petitioner’s

withdrawal motion cannot be successfully attacked as violating the rational basis prong of an equal

protection analysis. In order to succeed in such a challenge, Davis must demonstrate that there is

no conceivable basis sufficient to sustain the statute, “even if there is no indication that the

suggested rationale actually motivated the legislature in enacting it.” Innes v. Howell Corp., 76 F.3d

702, 708 (6th Cir. 1996). In denying Davis the habeas corpus relief he sought, the district judge

noted that a sound, rational basis did indeed exist in this case for the different treatment of

defendants resentenced after jury trials and those resentenced after trials before three-judge panels.

According to the district court, “[t]here are obvious difficulties presented in trying to reassemble the

original trial jury to participate in a resentencing hearing.” By contrast, “the three judges who

comprised the original panel in the petitioner’s case were still available to resentence the petitioner.”

Because such a distinction is arguably rational, we must conclude that Davis’s equal protection

challenge to the original denial of his motion to withdraw his jury waiver is without merit.

C. Procedure on Remand to State Court

Nevertheless, we anticipate that Davis’s counsel will renew his motion to withdraw the jury

waiver upon remand to the state trial court for the new sentencing hearing necessitated by our

finding of Skipper error. We note that under Ohio Revised Code § 2945.05, a waiver of jury trial

“may be withdrawn by the defendant at any time before the commencement of trial.” Granted, the

resentencing hearing that we order today will not constitute a “trial” in the sense that the petitioner’s

guilt or innocence is again at issue. However, in this case, the proceeding can indeed be considered

the functional equivalent of “trial” because, unlike sentencing in a non-capital case, it will take the

form of an evidentiary proceeding on the question of whether Davis should receive the death penalty

or some form of a life sentence. 

Moreover, we think there is a legitimate question as to whether a criminal defendant should

be held to a jury waiver entered almost 25 years before his newly-mandated sentencing hearing.

In the Sixth Circuit, at least, we have recognized that a defendant’s jury waiver entered prior to the

first trial of his case does not bar his right to a jury trial on the same case after remand from a

reviewing court. See, e.g., United States v. Groth, 682 F.2d 578, 580 (6th Cir. 1982) (“waiver of a

jury trial does not bar a demand for a jury on retrial of the same case unless the original waiver

explicitly covers this contingency”); United States v. Lee, 539 F.2d 606, 608 (6th Cir. 1976) (“when

a reviewing court finds error in the conduct of a trial and reverses with directions for a new trial

. . . the general rule is that a litigant is not bound by his prior waiver of a jury trial . . . [u]nless the

language of a waiver unambiguously states that it will apply in all retrials should they be ordered”).

Accord Sinistaj v. Burt, 66 F.3d 804, 808 (6th Cir. 1995) (rule in Groth inapplicable when no event

such as reversal and remand for a new trial intervenes between the waiver and the attempted

withdrawal). Likewise, the Ohio courts have held, in reversing a conviction “on the basis that [the

defendant] was neither charged nor found guilty of an essential element of the offense,” that the

defendant’s “previous waiver of a jury trial is also inherently revoked by the reversal of the

conviction and the [amended] indictment.” State v. McGee, 715 N.E.2d 1175, 1178 (Ohio Ct. App.

1998). That conclusion was based on the fact that on remand, additional evidence would be

introduced from both the prosecution and the defense, as is likely to occur on remand of this case.

While not directly on point, because Davis is not facing a new indictment, the reasoning of the Ohio

court in McGee should certainly inform the sentencing court’s determination of the viability of

Davis’s jury waiver on remand.
No. 02-3227 Davis v. Coyle Page 17

III. CONCLUSION

Several other issues raised on appeal have been procedurally defaulted or have been rendered

moot by the necessity of the Skipper remand. These include the claim that the trial court erred in

denying the motion for additional expert witnesses at resentencing, a motion that can, of course, be

renewed at the new sentencing hearing if determined necessary by counsel. The claim of bias raised

against two of the three judges on the trial court panel is without merit, as the district court

concluded, but also unlikely to arise on remand given the probability that the same three-judge panel

cannot be reconstituted after such a lengthy period of time. The claim of error concerning the

separation of those three judges during deliberations is now moot, but also a matter of state law that

is not reviewable under 28 U.S.C. § 2254. Finally, the constitutional challenge to Ohio Rev. Code

§ 2929.03(D)(1) appears to have been procedurally defaulted and cannot be excused on the basis of

ineffective assistance of counsel, because the petitioner has not established prejudice resulting from

the trial court’s ruling under that section of the state capital sentencing statute.

Based on the prejudicial Skipper error in denying the petitioner the right to present additional

evidence at his resentencing hearing, we REVERSE the judgment of the district court denying

habeas relief and REMAND the case for the issuance of a conditional writ under 28 U.S.C. § 2254.
No. 02-3227 Davis v. Coyle Page 18

_____________________

CONCURRENCE _____________________

JULIA SMITH GIBBONS, Circuit Judge, concurring. I agree with the majority’s conclusion

that we must remand this case for the issuance of a conditional writ under 28 U.S.C. § 2254 but

disagree with the opinion’s basis for this decision under Lockett, Eddings, and Skipper.

Applying the standard of review required by AEDPA, I am unable to conclude that the

decision of the Ohio Supreme Court was either “contrary to, or involved an unreasonable application

of, clearly established federal law, as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254(d)(1). Lockett and Eddings hold that a sentencer must consider all relevant

mitigating evidence. See Lockett, 438 U.S. at 604; Eddings, 455 U.S. at 113-14. Skipper holds that

post-sentence prison behavior is relevant mitigating evidence. See Skipper, 476 U.S. at 5.

Therefore, the majority concludes that the three-judge panel must consider Davis’s post-sentence

prison behavior at resentencing. (Op. 9.) I agree with the majority that Davis’s post-sentence prison

behavior and psychological profile are relevant mitigating evidence that must have been admitted

in the original sentencing hearing, had the evidence existed at the time. See Skipper, 476 U.S. at 7.

However, the issue in this case is whether the presentation of evidence of mitigating and aggravating

factors must be reopened when a death sentence is reversed for a reason unrelated to the presentation

of evidence. None of the Supreme Court cases cited by the majority supports this premise. See

Ayers, 127 S. Ct. at 474-75 (holding that jury instruction did not preclude jury from considering

mitigating evidence at trial); Skipper, 476 U.S. at 3-5 (holding that court erred by excluding relevant

mitigating evidence from trial); Eddings, 455 U.S. at 113-14 (holding that court erred by excluding

relevant mitigating evidence from trial); Lockett, 438 U.S. at 606 (holding that statute

unconstitutionally excluded relevant mitigating evidence from trial). In each of these cases, the error

allegedly committed was the exclusion of evidence, and the only appropriate remedy was the

admission of new evidence.

Furthermore, all but one of the cases cited by the majority from other circuits are factually

distinguishable. See Robinson, 300 F.3d at 1345-48 (holding that defendant was not prejudiced by

his counsel’s failure to introduce mitigating evidence at resentencing); Smith, 189 F.3d 1008-14

(holding that defendant’s counsel was ineffective for failing to introduce mitigating evidence at

resentencing); Spaziano, 36 F.3d at 1032-35 (noting that trial court was required to consider any

mitigating evidence actually presented at resentencing); Alderman, 22 F.3d at 1556-57 (holding that,

despite Lockett, court could exclude evidence at resentencing that lacked assurances of

trustworthiness). It is clear from these cases that when presentation of evidence has been reopened

at a resentencing hearing, all relevant mitigating evidence must be considered. However, none of

these cases stand for the proposition advanced by the majority that a trial court must reopen the

presentation of evidence. (Op. 11.) Creech is the only case cited by the majority that actually is on

point. In Creech, after the defendant’s sentence was vacated by the Idaho Supreme Court on the

ground that the trial judge failed to pronounce the sentence in the presence of the defendant as

required by Idaho law, the trial judge simply read the sentence to the defendant on remand. Creech, 947 F.3d at 881. On appeal of the defendant’s habeas petition, the Ninth Circuit held that the

presentation of evidence must be reopened for presentation of any and all mitigating evidence that

exists at the time of the hearing. Id. at 881-82. Although I agree with the majority that the facts of

Creech are “virtually indistinguishable,” the standard of review is not. Creech was decided before

AEDPA came into effect, and the court applied de novo review. Id. at 876.

This court may not grant the writ unless the decision of the Ohio Supreme Court was either

“contrary to, or involved an unreasonable application of, clearly established federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). As the Supreme
No. 02-3227 Davis v. Coyle Page 19

Court cases are not factually analogous and Creech is not a Supreme Court decision, I cannot

conclude that the decision of the Ohio Supreme Court was unreasonable.

I concur with the majority’s judgment that Davis must be resentenced, however, because

he was denied due process when his “death sentence was imposed, at least in part, on the basis of

information which he had no opportunity to deny or explain.” Gardner, 430 U.S. at 362. Although

the majority implies that this right somehow “triggers” the requirement of Lockett and Eddings that

a sentencer consider all mitigating evidence, (Op. 8), this due process requirement actually provided

an alternative, unanimous basis for the Supreme Court’s judgment in Skipper,see Skipper, 476 U.S.

at 5 n.1 (“[I]t is not only the rule of Lockett and Eddings . . . ; it is also [an] elemental due process

requirement . . . .”); id. at 9 (Powell, J., concurring) (“[The] result is not required by our decisions

in Lockett and Eddings . . . but because petitioner was not allowed to rebut evidence and argument

used against him.” (citing Gardner, 430 U.S. at 349)) (internal citations omitted). As the majority

correctly notes, just as in Skipper, Davis was denied the opportunity to introduce evidence rebutting

the prosecutor’s argument that the he was too dangerous for a sentence of life in prison. (Op. 9-10.)

Although Davis’s mere resentencing does not justify the reopening of evidence, when the prosecutor

used the resentencing to argue that the judges should discount Davis’s previous exemplary prison

record, he triggered Davis’s due process rights under Gardner to present rebuttal evidence.

After concluding that the case must be resentenced, I would refrain from expressing any

opinion as to the other, now-moot issues raised by Davis. In particular, I would avoid suggesting

to the Ohio courts an approach to the jury waiver issue, as the majority opinion does after

concluding that there is no basis for federal relief on that issue.

For the foregoing reasons, I concur in the judgment.