RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0372p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

ARCHIE DIXON,

 Petitioner-Appellant,

v.

MARC C. HOUK, Warden,

 Respondent-Appellee.

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No. 08-4019

Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 05-01290—James S. Gwin, District Judge.

Argued: August 5, 2010

Decided and Filed: December 9, 2010 

Before: MERRITT, SILER, and COLE, Circuit Judges

_________________

COUNSEL

ARGUED: Michael J. Benza, LAW OFFICE OF MICHAEL J. BENZA, Chagrin Falls,

Ohio, for Appellant. Thomas E. Madden, OFFICE OF THE OHIO ATTORNEY

GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Lawrence J. Whitney,

BURDON & MERLITTI, Akron, Ohio, Henry F. DeBaggis, Cleveland, Ohio, for

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

Columbus, Ohio, for Appellee. 

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

COLE, J. (pp. 9–23) , delivered a separate concurring opinion. SILER, J. (pp. 24–29),

delivered a separate dissenting opinion.

1
No. 08-4019 Dixon v. Houk Page 2

_________________

OPINION

_________________

MERRITT, Circuit Judge. This is a coerced confession, death penalty case. On

November 4, 1993, at the police station house in Toledo, Ohio, petitioner Dixon, after

receiving Miranda warnings, advised detectives that he would not voluntarily answer

their questions without a lawyer present to advise him. Notwithstanding his refusal to

answer questions voluntarily, the detectives five days later devised a strategy to put

pressure on Dixon to confess by questioning him, without Miranda warnings. The

primary habeas corpus issue raised by Dixon is what effect the deliberate, planned police

decision to continue the questioning but not to give warnings under Miranda v. Arizona,

384 U.S. 436 (1966) — a strategy that also included an offer “to cut a deal” for Dixon

rather than his confederate (Hoffner) — has on the admissibility of a confession rendered

four hours later when he agreed to confess. 

The detective told Dixon at the end of the unwarned interrogation, “Now is the

time to say so [confess] because if Tim [Hoffner] cuts a deal it’s kind of like a bus is

leaving. The first one that gets on is the only one that gets on.” Ohio v. Dixon, 805

N.E.2d 1042, 1051 (2004). The police designed a strategy to get a coerced confession

without giving Miranda warnings. The confession would then be followed by the

warnings given in a tape recording before the confession was recorded. Based on this

inverted sequence of events — refusal to answer after Miranda warnings, reinterrogation without warnings, confession, recorded warnings, recorded confession —

the prosecution argues that the warnings after the initial confession made the confession

“voluntary.” The question is whether the police can cleanse what would otherwise be

an inadmissible confession in this way. The Ohio trial judge said, “No,” but he was

reversed by the Ohio Supreme Court. We agree with the trial judge. A confession

obtained by this kind of police pressure is inadmissible under Miranda and coerced and

involuntary under the Due Process Clause. If the consequences of this kind of

deliberate, unlawful conduct specifically designed to violate Miranda and get a
No. 08-4019 Dixon v. Houk Page 3

confession is allowed to prevail, as our dissenting colleague contends, the time has come

to simply overrule Miranda.

I. Factual and Procedural Background

On November 4, 1993, Dixon was interrogated at the police station and expressly

exercised his right to remain silent unless a lawyer were present, although he had not

been technically “arrested” at that time. The detectives were, therefore, on notice that

Dixon did not want to talk to them in the absence of his lawyer. After his formal arrest

for murder five days later on November 9, he was interrogated twice more. The

detective decided not to give him any Miranda warnings during the first of these two

sessions because as the Ohio Supreme Court found, in agreement with the trial court,

“the detectives believed that Dixon would invoke his right to counsel if he were issued

Miranda warnings,” which would foreclose further interrogation and defeat their effort

to get a confession. Ohio v. Dixon, 805 N.E.2d at 1049. The detectives’ coercive

strategy succeeded; in the first session, Dixon confessed to a closely related crime. Four

hours later, in the second session, Dixon capitulated to the pressure. The detectives

advised him of his Miranda rights, and he confessed to the murder.

The Ohio trial judge immediately suppressed Dixon’s statements confessing to

the murder because “they were obtained as a result of a deliberate, bad faith plan on the

part of the police to violate his rights” under Miranda, including an “ultimately false”

statement by the interrogator in the form of a “promise of possible benefits” if Dixon

confessed. The trial judge also found that, although the detectives said that Dixon told

them during the second interrogation on November 9 that he had talked to his lawyer by

phone and was following his lawyer’s advice to confess, this statement by Dixon was

false. The trial judge found that he had not talked to his lawyer and that no lawyer

would likely have given him such advice. Ohio v. Dixon, Trial Court Opinion and

Journal entry, Appellant Appendix, Vol. 3, p. 1252. The State took an interlocutory

appeal on the suppression issue, and the Ohio Court of Appeals disagreed with the trial

judge and found the confession admissible despite the deliberate violation of Miranda.

Ohio v. Dixon, 656 N.E.2d 1 (1996). (This decision was later upheld by the Ohio
No. 08-4019 Dixon v. Houk Page 4

Supreme Court. 805 N.E.2d 1042.) Dixon was then convicted on the basis of the

confession of a brutal murder in which he participated with his associate in burying the

victim alive. The Ohio jury sentenced him to death and then sentenced his associate to

death. 

After exhausting both his direct and state post-conviction appeals, Dixon filed

for a writ of habeas corpus. Unlike the Ohio trial judge, the district court did not find

the interrogation to be coercive. It followed the ruling of the Ohio Supreme Court on

the Miranda violation and fully accepted its argument that Oregon v. Elstad, 470 U.S.

298 (1985), had held that confessions like the one in this case rendered under an

“interrogate first, warn later” police strategy were admissible. Because Miranda and

Elstad, as well as many other cases, forbid this type of deliberately coercive police

strategy that yields an involuntary confession, we reverse the district court and issue the

writ of habeas corpus.

II. The Errors of the Ohio Supreme Court under AEDPA

To issue the writ, we must conclude that the state courts’ adjudication

(1) “involved an unreasonable application of, clearly established federal law, as

determined by the Supreme Court,” 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 proceedings.” 28 U.S.C. § 2254(d). The Ohio Supreme Court erred in both ways.

First, its reliance on Elstad as the basis for admitting the confession involved an

unreasonable application of that case. Second, its finding that Dixon’s confession, after

first asking for a lawyer, was not influenced, caused, or coerced by the detectives’

deliberate “confession first, warnings later” police strategy was based on an

unreasonable determination of the facts and flatly contradicted the trial court’s findings.

The detectives planned to get a confession by violating the Miranda warning

requirement after Dixon asked for a lawyer, and their plan worked four hours later when

they returned for further interrogation and got the confession.
No. 08-4019 Dixon v. Houk Page 5

The Ohio Supreme Court relied on Oregon v. Elstad, 470 U.S. 298 (1985), for

its conclusion that Dixon’s confession was admissible and not coerced and involuntary

under Miranda and Due Process. In that case, an officer mentioned a burglary when he

came in to arrest the defendant at the defendant’s home. The defendant immediately

responded that he was involved. Elstad held that the momentary statement and response

had “none of the earmarks of coercion” that is likely to produce an involuntary

confession, id. at 316, and that the defendant’s later full-dress confession at the station

house after full and complete Miranda warnings was admissible. The Court in Elstad

defined the concept of a “coerced” confession and distinguished the case from other

cases in which the failure to warn was accompanied by “actual coercion or other

circumstances calculated to undermine the suspect’s ability to exercise his free will.”

Id. at 309. In a later case, Missouri v. Seibert, 542 U.S. 600 (2004), the U.S. Supreme

Court said that the holding in Elstad on its face was obviously designed to distinguish

a case exactly like Dixon’s in which the police follow a deliberate question-first, warnlater strategy. The Supreme Court in Seibert said that Elstad stands for the proposition

that such a “police strategy adapted to undermine the Miranda warnings” renders the

confession inadmissible “because the question-first tactic threatens to thwart Miranda’s

purpose of reducing the risk that a coerced confession would be admitted.” Id. at 617.

Elstad itself is clear, and Seibert simply reinforced its meaning.

In the instant case, five days before the question-first strategy was used, Dixon

had made it completely clear to the police that he did not want to talk to the detectives

without a lawyer present. Not only is the police strategy used here inconsistent with

Elstad and Seibert, it contravenes the clear language of Chief Justice Warren’s opinion

in Miranda itself.

Once warnings have been given, the subsequent procedure is

clear. If the individual indicates in any manner, at any time prior to or

during questioning, that he wishes to remain silent, the interrogation must

cease. At this point he has shown that he intends to exercise his Fifth

Amendment privilege; any statement taken after the person invokes his

privilege cannot be other than the product of compulsion, subtle or

otherwise. Without the right to cut off questioning, the setting of incustody interrogation operates on the individual to overcome free choice
No. 08-4019 Dixon v. Houk Page 6

in producing a statement after the privilege has been once invoked. If the

individual states that he wants an attorney, the interrogation must cease

until an attorney is present. At that time, the individual must have an

opportunity to confer with the attorney and to have him present during

any subsequent questioning. If the individual cannot obtain an attorney

and he indicates that he wants one before speaking to police, they must

respect his decision to remain silent.

Miranda v. Arizona, 384 U.S. 436, 473-74 (1966) (emphasis added). The Supreme

Court has consistently maintained that the bright-line rule of Miranda against further

interrogation by police remains in effect. E.g., Edwards v. Arizona, 451 U.S. 477, 484-

85 (1981).

Moreover, in contrast to the finding of the Ohio Supreme Court that Dixon’s

statements at the evening interrogation four hours later were “voluntary” and not “the

product of a compulsion, subtle or otherwise,” the trial judge who heard the testimony

of the witnesses found exactly the opposite. The trial court recounted that the detectives

had engaged in a thirty-minute interrogation of Dixon before Miranda warnings were

given and the tape recorder turned on. During that time they informed Dixon that his

confederate, Hoffner, had led police to the buried body of the victim. They advised

Dixon that they had not arrested Hoffner but let him go home, and then referred back to

the earlier afternoon interrogation that had ended with the detective’s advice to “get on

the bus” because “the first one that gets on it is the only one” who will get a “deal.”

This sequence of events is in direct conflict with the findings of the Ohio

Supreme Court of “no coercion” or of the “voluntariness” of Dixon’s confession. The

Ohio Supreme Court attempted to purge the detectives’ offer of the “deal” of any

coercive effect by implausibly characterizing it only as a mere “admonition to tell the

truth.” On the contrary, the “cut-a-deal” dialogue was another step in the effort to get

a confession by persuading Dixon that he had no right to silence or a lawyer but rather

a duty to incriminate himself — the very opposite of his Miranda rights and his right to

due process. Holding out the promise of a “deal” to avoid the death penalty in return for

a confession, as the trial judge found, is a high-pressure tactic designed to override

Dixon’s previous five-day stand against talking. A confession given in response to such
No. 08-4019 Dixon v. Houk Page 7

tactics is not voluntary. See Mincey v. Arizona, 437 U.S. 385, 396-99 (1978) (positing

a per se rule against use of such a coerced confession).

To summarize, there are three clear constitutional errors by the Ohio Supreme

Court that remove the case from AEDPA deference under 28 U.S.C. § 2254(d):

1. The Ohio Supreme Court unreasonably applied Miranda v. Arizona in

refusing to require the police to terminate interrogation upon the exercise of the right to

have a lawyer present and in allowing the police to demand involuntary answers by reinstituting the questioning without warnings.

2. That court unreasonably applied Oregon v. Elstad by holding that the

deliberate, planned refusal to warn, followed by warnings after confession should be

treated the same as the momentary, innocent failure to warn in Elstad.

3. That court’s finding that Dixon’s confession was voluntary resulted in a

decision that was based on an unreasonable determination of facts presented in the state

court proceeding. The “admonition” that Dixon should “cut a deal” was not simply “an

admonition to tell the truth.” It was part of the coercive strategy to get Dixon to confess

involuntarily. In this conclusion, we are in accord with the court that actually heard the

evidence and that was in the best position to determine the facts — the Ohio trial court.

In addition, the last violation occurred in part because the Ohio Supreme Court

erroneously placed the burden of proof on Dixon to prove that his confession was

coerced. That court concluded that “Dixon has failed to explain how the detective’s

coercive subjective intent coerced him to a greater extent than if the Miranda violation

had been inadvertent.” 805 N.E.2d at 1050-51. This view is contrary to Supreme Court

law. E.g., Colorado v. Connelly, 479 U.S. 157, 167 (1986) (holding that “coercive

police activity is a necessary predicate to ‘suppression’ ” and when shown “the state

bears a ‘heavy’ burden in proving waiver”); North Carolina v. Butler, 441 US. 369, 373

(1979) (same). In Miranda itself the Court said that “a heavy burden rests on the

government”; the satisfaction of this burden “will not be presumed simply from the

silence of the accused after warnings are given or simply from the fact that a confession
No. 08-4019 Dixon v. Houk Page 8

was in fact eventually obtained.” 384 U.S. at 475. Here the confession was “eventually

obtained” but only after the police wore Dixon out with admittedly illegal interrogation,

the only purpose of which was to get him to confess against his will. The police used

both illegal questioning and, as the Ohio trial judge found, false enticement “to cut a

deal.”

Accordingly, the petition for writ of habeas corpus is granted pursuant to

28 U.S.C. § 2254(d) and the State has 180 days to retry Dixon. In light of our ruling on

the coercive police interrogation issue, the other issues raised in the petition are

pretermitted.
No. 08-4019 Dixon v. Houk Page 9

_______________________

CONCURRENCE

_______________________

COLE, Circuit Judge, concurring. I concur in the majority opinion, but write

separately because I would also grant Dixon’s petition on his ineffective assistance of

counsel claim.

I.

At the penalty phase, Dixon’s counsel presented as “mitigating evidence” the

testimony of an employee of the Bureau of Sentence Computation for the Ohio

Department of Rehabilitation and Correction, who testified that Dixon would serve a life

sentence with no chance for parole. Counsel also admitted into evidence a copy of

Dixon’s birth certificate to establish his youth. Dixon contends that his counsel’s failure

to present additional mitigating evidence constitutes ineffective assistance of counsel.

He argues specifically, that evidence of his family history, which included evidence of

domestic violence, sexual abuse, alcoholism, possible incest, and lack of positive role

models, should have been presented. The Warden answers that if any such evidence had

been introduced, it would have opened the door for the prosecution to introduce evidence

of Dixon’s bad character and prior bad acts.

The district court held an evidentiary hearing on Dixon’s ineffective assistance

of counsel claim. (R. 75.) It applied the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”), 28 U.S.C. § 2241 et seq., to Dixon’s petition, and under its

deferential standard of review the district court affirmed the Ohio Court of Appeals’

denial of Dixon’s ineffective assistance claim. (R. 79, at 42.) Both parties on appeal

agree AEDPA governs this claim; however, we must make an independent determination

as to whether AEDPA applies. Brown v. Smith, 551 F.3d 424, 428 n.2 (6th Cir. 2008).

In this case, AEDPA does not govern Dixon’s ineffective assistance of counsel

claim. When “new, substantial evidence” is presented to a federal district court on a

habeas claim that was not before the state court, the state court’s determination of the
No. 08-4019 Dixon v. Houk Page 10

issue could not have been on the merits, and thus is not entitled to AEDPA deference.

Brown, 551 F.3d at 429 (holding that the rule announced in Joseph v. Coyle, 469 F.3d

441, 469 (6th Cir. 2006), that AEDPA does not apply to habeas claims premised on

Brady material that appears for the first time during federal proceedings “applies

generally”). This rule only applies, however, if the threshold standard for admitting new

evidence is met.

In Brown, we found that the district court erred in applying AEDPA to the

ineffective assistance claim on habeas review because “the counseling notes that

form[ed] the basis of the claim were not in the record before the Michigan Court of

Appeals, and that court explicitly acknowledged that its review was limited to mistakes

apparent on the record.” Id. at 428-29 (internal quotation marks and citation omitted).

On post-conviction review, the Ohio Court of Appeals applied the standard set forth in

Strickland v. Washington, 466 U.S. 668 (1984), and held that Dixon failed to prove his

ineffective assistance of counsel claim after reviewing the evidence Dixon submitted to

support his claim, a report prepared by a mitigation specialist and affidavits from several

individuals. State v. Dixon, 2000 WL 1713794, at *16 (Ohio Ct. App. Nov. 17, 2000).

At the federal evidentiary hearing, the district court heard evidence not before the state

court through the testimony of Dixon’s trial counsel, Mark Geudtner and Joe Scalzo, as

well as Gary Ericson (the mitigation specialist hired by Dixon’s trial counsel), Dr.

Christopher Layne (the psychologist hired by Dixon’s trial counsel) and Anna Marie

Dixon (Dixon’s mother). The district court thus based its decision to deny Dixon’s

petition for habeas corpus, at least in part, on “new, substantial evidence,” Brown,

551 F.3d at 429, not previously before the state courts. Therefore, AEDPA will not

apply if the district court properly allowed Dixon to admit new evidence.

In order to admit new evidence on a habeas petition before a district court, the

following standard must be met: “(1) the petitioner must not be at fault for failing to

develop the evidence in state court, or (2) if the petitioner is at fault, the narrow

exceptions set forth in 28 U.S.C. § 2254(e)(2) apply.” Brown, 551 F.3d at 429 (citing

Holland v. Jackson, 542 U.S. 649, 652-53 (2004)). We review a district court’s decision
No. 08-4019 Dixon v. Houk Page 11

to hold an evidentiary hearing under an abuse-of-discretion standard. Lott v. Coyle, 261

F.3d 594, 602 (6th Cir. 2001). The district court found that Dixon diligently sought an

evidentiary hearing in the state courts, was repeatedly denied, and was not at fault for

failing to develop the record in state court. (R. 79, at 21.) If a petitioner is not barred by

28 U.S.C. § 2254(e)(2) from receiving an evidentiary hearing, the district court has

discretion to grant a hearing, Schriro v. Landrigan, 550 U.S. 465, 468 (2007), but it

must consider whether a hearing “could enable an applicant to prove the petition’s

factual allegations, which, if true, would entitle the applicant to federal habeas relief.”

Id. at 474. Dixon alleged that his counsel failed to create a mitigation strategy and had

no strategic reason for their failure to present mitigation evidence. The district court

correctly concluded that if these factual claims were true, it could entitle Dixon to relief

on his ineffective assistance claim. Therefore the district court did not abuse its

discretion in granting an evidentiary hearing on this claim.

Because the district court’s decision rested on properly admitted “new,

substantial evidence,” AEDPA is inapplicable and “the pre-AEDPA standard of review

[applies]: de novo for questions of law (including mixed questions of law and fact), and

clear error for questions of fact.” Brown, 551 F.3d at 430. “The performance and

prejudice components of Strickland present mixed questions of law and fact and are

reviewed de novo.” Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008).

II.

To prevail on an ineffective assistance of counsel claim, “the petitioner must

show that: (1) counsel’s performance was deficient, and (2) the deficient performance

prejudiced the defense so as to deprive the defendant of a fair trial.” Keith v. Mitchell,

455 F.3d 662, 670 (6th Cir. 2006) (citing Strickland, 466 U.S. at 687 (1984)).

A. Deficient Performance

Dixon contends he was denied the effective assistance of counsel because his

counsel failed to investigate and present relevant mitigating evidence during the penalty

phase. Dixon had the assistance of Joe Scalzo and Mark Geudtner during both the guilt
No. 08-4019 Dixon v. Houk Page 12

1

To the extent that Geudtner tried to compensate for his co-counsel’s failures, his efforts are

laudable. They do not, however, constitute effective assistance. Failure to begin mitigation preparations

before the close of the guilt phase is objectively unreasonable under Strickland. See Jells v. Mitchell, 538

F.3d 478, 493 (6th Cir. 2008) (collecting cases). 

and penalty phases of his trial. At the outset, they divided the responsibilities between

them; Geudtner was responsible for the pretrial motions and the trial, and Scalzo was

responsible for the penalty proceedings. In preparation for the penalty phase, they hired

Ericson, a licensed private investigator and mitigation specialist, and Dr. Layne, a

clinical psychologist. Ericson completed a fifty-one page mitigation report that included

extensive evidence of Dixon’s dysfunctional family and social history, and gave the

report to Scalzo. Ericson met with defense counsel early in the process, but had no

contact with them after that and never discussed his report with either Scalzo or

Geudtner. Dr. Layne conducted a battery of psychological tests on Dixon, but concluded

that the results would not have been helpful to Dixon in the penalty phase and did not

complete his report.

Geudtner testified that he realized at the end of the trial that Scalzo had prepared

insufficiently for mitigation. Thus, Geudtner spent the weekend after the guilty verdict

was rendered developing three arguments to put before the jury in the mitigation phase.1

Geudtner planned to introduce evidence showing that: (1) Dixon had served eight

months in jail for a crime for which he was later exonerated by DNA evidence;

(2) Dixon offered to plead guilty if the death penalty were not sought and the

prosecution rejected his offer; and (3) other capital cases in the area did not result in the

death penalty for those defendants. Geudtner did not seek a ruling from the trial court

on whether such evidence would be admissible at the penalty phase, however, and the

court prohibited Geudtner from presenting it. Geudtner explained that he did not seek

a ruling on the admissibility of this evidence prior to the start of the penalty phase

because he did not want to give the prosecution a preview of his strategy. Unfortunately

for Dixon, this left defense counsel unclear about their overall strategy; the trial court

granted a continuance only until that afternoon for counsel to develop a mitigation

strategy.
No. 08-4019 Dixon v. Houk Page 13

A defendant has “a constitutionally protected right—to provide the jury with the

mitigating evidence that his trial counsel either failed to discover or failed to offer.”

Williams v. Taylor, 529 U.S. 362, 393 (2000). In order to prove his counsel were

deficient, Dixon must show “that his ‘counsel’s representation fell below an objective

standard of reasonableness.’” Awkal v. Mitchell, 613 F.3d 629, 638 (6th Cir. 2010) (en

banc) (quoting Strickland, 466 U.S. at 688). When deciding whether counsel’s

assistance was deficient at the penalty phase we do not decide “‘whether counsel should

have presented a mitigation case,’ but rather, ‘whether the investigation supporting

counsel’s decision not to introduce mitigating evidence of [petitioner’s] background was

itself reasonable.’” Jells v. Mitchell, 538 F.3d 478, 491 (6th Cir. 2008) (quoting Wiggins

v. Smith, 539 U.S. 510, 523 (2003)). When determining the reasonableness of counsel’s

investigation, the “quantum of evidence known to counsel must be considered, as well

as whether that evidence should have led a reasonable attorney to investigate further.”

Clark v. Mitchell, 425 F.3d 270, 284 (6th Cir. 2005) (citing Wiggins, 539 U.S. at 527).

Dixon argues that his counsel were deficient in failing to introduce mitigating

evidence of Dixon’s dysfunctional family and social history, which included domestic

violence, possible incest, alcoholism, and negative role models, and by failing to call the

following witnesses: his mother, older brother, and his foster parents Nancy and Dale

Wolfe. The Warden argues that defense counsel’s “life means life” mitigation theme

was a strategic decision not to introduce details of Dixon’s past in order to avoid the

admission of evidence of Dixon’s bad character and prior bad acts. Dixon claims that

it was deficient for his counsel not to consider a way to cabin witnesses’ testimony to

avoid introduction of such evidence and for failing to make a motion in limine to exclude

his prior conviction.

Strickland dictates that counsel’s performance must be evaluated “under

prevailing professional norms.” 466 U.S. at 688. “[T]he ABA standards for counsel in

death penalty cases provide the guiding rules and standards to be used in defining the

‘prevailing professional norms’ in ineffective assistance cases.” Hamblin v. Mitchell,

354 F.3d 482, 486 (6th Cir. 2003). The Supreme Court has clarified though, that
No. 08-4019 Dixon v. Houk Page 14

2

The 2003 revised edition explicitly addresses this scenario and states that

when faced with the possibility that any portion of the defense case will open the door

to the prosecution’s presentation of otherwise inadmissible aggravating evidence[,]

[c]ounsel should pursue all appropriate means (e.g., motions in limine) to ensure that the

defense case concerning penalty is constricted as little as possible by this consideration.

ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, § 10.11 (2003

rev. ed.).

3

Defense counsel filed a motion to exclude any evidence of other crimes, wrongs, or acts on

December 5, 1993, almost two years before the trial began. The trial court denied the motion finding that

“any evidentiary issues dealing with other criminal acts [would be] dealt with during trial as they arose.”

Nothing in the record indicates this issue was ever revisited by either party or the court.

“[r]estatements of professional standards . . . can be useful as ‘guides’ to what

reasonableness entails, but only to the extent they describe the professional norms

prevailing when the representation took place.” Bobby v. Van Hook, — U.S. —, 130

S.Ct. 13, 16 (2009) (citing Strickland, 466 U.S. at 688) (explaining that looking to the

ABA guidelines announced eighteen years after [the defendant] went to trial ignored the

limitations set by Strickland). The guilt and penalty phases of Dixon’s trial were

conducted in October-November 1995. Therefore, the guidelines in place at that time,

the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty

Cases (1989), are useful in determining what constitutes reasonable representation. As

explained in the guidelines, “[c]ounsel should consider all pretrial motions potentially

available” to address issues such as “matters of evidence or procedure at either the

guilt/innocence or penalty phase of trial which may be appropriately litigated by means

of a pretrial motion in limine.” Id. at § 11.5.1. With regards to presentation of evidence

at sentencing, counsel should present “all reasonably available evidence in mitigation

unless there are strong strategic reasons to forego some portion of such evidence.” Id.

at § 11.8.6. The ABA guidelines support the commonsense notion that when faced with

the possibility of the prosecution introducing damaging rebuttal evidence, counsel

should make reasonable efforts to prevent this from occurring.2

Neither of Dixon’s attorneys filed a motion in limine to prohibit Dixon’s past

conviction from being admitted,3

 nor did either attorney speak with any of the potential

witnesses or Ericson to develop a strategy to present mitigating evidence without

permitting the admission of potentially aggravating evidence from Dixon’s life. Of
No. 08-4019 Dixon v. Houk Page 15

4

The Ohio rules of evidence apply to the penalty phase of a capital trial. State v. Lorraine, 613

N.E.2d 212, 220 (Ohio 1993).

course, if there were no legal avenue for counsel to pursue to prevent such evidence from

being admitted, failure to do so could not be considered unreasonable. A brief

examination of Ohio law is therefore necessary to determine whether counsel’s lack of

investigation of this issue was constitutionally deficient.

Under Ohio law, the “history, character, and background of the offender” is a

statutory mitigation factor, Ohio Rev. Code § 2929.04(B), and defendants have “great

latitude in the presentation of evidence of [mitigation] factors.” Ohio Rev. Code

§ 2929.04(C). The Ohio Supreme Court has found that the prosecution’s burden of

proving beyond a reasonable doubt that the aggravating factors outweigh the mitigating

factors “empow[ers]” the prosecutor “to rebut mitigation evidence offered by the

defendant where the prosecutor has a good faith basis for believing that such evidence

is false.” State v. DePew, 528 N.E.2d 542, 554 (Ohio 1988). But this rebuttal is limited

“to those instances where the defense offers a specific assertion, by a mitigating witness

or by the defendant, that misrepresents the defendant’s prior criminal history.” State v.

Henness, 679 N.E.2d 686, 698 (Ohio 1997) (emphasis added). Additionally, evidence

of a defendant’s good character presented at mitigation allows the prosecution to rebut

with evidence of the defendant’s prior bad acts. Ohio R. Evid. 404(A)(1); see also State

v. Jalowiec,744 N.E.2d 163, 177-78 (Ohio 2000) (explaining that defendant opened the

door to rebuttal by “call[ing] several witnesses [at sentencing] to testify about what a

good person he was.”)4

The relevant law demonstrates that evidence misrepresenting Dixon’s criminal

past, or evidence of his good character, might have opened the door to rebuttal evidence

by the prosecution. See Jalowiec, 744 N.E.2d at 177 (“The trial court has discretion to

determine what relevant evidence is admissible as proper rebuttal.”). But more

importantly, the details of Dixon’s dysfunctional family history would not. We

previously found this to be true when interpreting Ohio law in Mason v. Mitchell,

320 F.3d 604 (6th Cir. 2003). In Mason, we explained that, “[t]estimony that simply put
No. 08-4019 Dixon v. Houk Page 16

Mason’s childhood into context without misrepresenting it would not have been subject

to the prosecutor’s rebuttal evidence[.]” Id. at 627; see also id. at 622 (“[T]estimony in

this case concerned Mason’s troubled childhood . . . which would have aided him at

sentencing because it did not give the prosecutor the same opportunity for rebuttal that

evidence about good character or rehabilitation potential could have.”)

This case is similar to Mason in another important respect. In Mason, defense

counsel obtained some mitigating information, and we explained that “the limited

information obtained by defense counsel did not discharge counsel’s duty to investigate,

but triggered the duty to investigate.” Mason, 320 F.3d at 624 n.12. To determine the

reasonableness of counsel’s investigation, we look at the “quantum of evidence known

to counsel” and whether “that evidence should have led a reasonable attorney to

investigate further.” Clark, 425 F.3d at 284 (citing Wiggins, 539 U.S. at 527) (emphasis

added).

Here, Dixon’s counsel had a detailed, thorough mitigation report and several

witnesses willing and available to testify, yet neither attorney investigated a way to use

any of this evidence, either by discussing with potential witnesses or Ericson a way to

limit their testimony to only those subjects that would not “open the door” for the

prosecution, or by filing a motion in limine in the hope that the court would deny

admission of Dixon’s prior conviction. Scalzo explained that he was concerned about

the jury learning of Dixon’s criminal history, but also acknowledged that the evidence

could be found too prejudicial to be admitted. Scalzo could not remember if he and

Geudtner ever discussed the possibility of filing such motions, and there is no evidence

they ever discussed the mitigation phase. Geudtner stated that he left preparation of the

mitigation phase entirely to Scalzo, and realized at the end of the guilt-phase portion of

the trial that Scalzo “hadn’t prepared much” and “pretty much fell flat on his face.” He

described Scalzo’s performance as “overwhelmingly deficient.”

To determine the reasonableness of counsel’s mitigation strategy, “‘a reviewing

court must consider the reasonableness of the investigation said to support that

strategy.’” Jells v. Mitchell, 538 F.3d 478, 492 (6th Cir. 2008) (quoting Wiggins,
No. 08-4019 Dixon v. Houk Page 17

539 U.S. at 527). Given the “great latitude” Ohio grants defendants in the presentation

of mitigation evidence, “professionally competent assistance in Ohio capital cases”

requires a “reasonably thorough investigation into all possible mitigation evidence that

would present a sympathetic picture of the defendant’s family, social, and psychological

background.” Id. at 495-96 (citing Wiggins, 539 U.S. at 524). “Strategic choices made

after thorough investigation of law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable professional judgments support the

limitations on investigation.” Strickland, 466 U.S. at 690-91 (emphasis added); see also

Spisak v. Mitchell, 465 F.3d 684, 704 (6th Cir. 2006) (“[A]ny decision to forego

mitigation evidence is unreasonable if not made after a reasonable determination to cease

further investigation.”), overruled on other grounds by Smith v. Spisak, 554 U.S. — , 130

S. Ct. 676 (2010). If counsel stops short of a thorough investigation, however, “‘the

deference owed to counsel’s strategic judgments about mitigation is directly proportional

to the adequacy of the investigations supporting such judgments.’” Eley v. Bagley,

604 F.3d 958, 973 (6th Cir. 2010) (quoting Jells, 538 F.3d at 492).

Dixon’s counsel did not speak with any of the witnesses who could have testified

on Dixon’s behalf. Without any investigation regarding the extent to which rebuttal

evidence might be allowed, defense counsel abandoned the idea of introducing any

evidence related to Dixon’s extremely dysfunctional family in favor of a “life means

life” mitigation theme. Scalzo described his mitigation strategy as, “to go on more

economical things: How long is a person supposed to live while in prison, how much is

it going to cost, versus giving him death, from an economic standpoint.” Geudtner, who

began working on the penalty phase the weekend before it was set to begin, after

learning Scalzo had prepared nothing, testified that he never read Ericson’s report.

Counsel’s failure to make a thorough investigation of either law or facts made “a fully

informed decision with respect to sentencing strategy impossible.” Wiggins, 539 U.S.

at 527-28. Counsel’s decision not to present any of the evidence available to them in
No. 08-4019 Dixon v. Houk Page 18

5

Counsel’s deficient performance at the mitigation phase is particularly troubling when viewed

within the larger trial context. Counsel put on no case-in-chief and cross-examined only three of the state’s

fifteen witnesses at the guilt-phase portion of the trial. The trial transcript of the state’s witnesses was 364

pages long, with only eight of the pages covering cross-examination. Scalzo agreed that “there was very

little cross-examination of any witness.” Geudtner described their strategy once the trial started as to

“pretty much just to sit there and take it,” because he did not feel that they had “much of a chance to

prevail on the guilt phase of the trial.”

Furthermore, Scalzo’s other explanation for not presenting mitigating evidence is similarly

unreasonable. Scalzo explained that he did not present evidence of Dixon’s family history because “it was

from our experience that juries weren’t buying that. In the situation—I didn’t want to upset them any more

than they already were about the crime.” Counsel’s explanation that he viewed the report as not helpful

is not a strategic decision, but rather “an abdication of advocacy.” Austin v. Bell, 126 F.3d 843, 849 (6th

Cir. 1997) (finding counsel’s failure to present mitigating witnesses “because he did not think it would do

any good,” even though several friends, relatives, experts and a minister were available and willing to

testify,“an abdication of advocacy” and not a strategy). When a defendant has been found guilty of death

penalty charges, he is “virtually guaranteed a sentence of death unless he [can] produce sufficient

mitigation evidence at the penalty phase to generate reasonable doubt in the mind of at least one juror.”

Frazier v. Huffman, 343 F.3d 780, 793 (6th Cir. 2003).

mitigation was not reasonable and their performance at the penalty phase was deficient

under Strickland.

5

B. Prejudice

A finding of deficient performance alone is insufficient for Dixon to prevail on

an ineffective assistance of counsel claim. “An error by counsel, even if professionally

unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the

error had no effect on the judgment.” Strickland, 466 U.S. at 691. He must also

demonstrate prejudice, that is, a reasonable probability that the newly available

mitigation evidence would have led to a different outcome. Wiggins, 539 U.S. at 537.

“A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694. Thus, if there is a reasonable probability that a

single member of the jury would have found that the aggravating circumstances of the

crime did not outweigh the mitigating circumstances, Dixon is entitled to a new penaltyphase trial. See State v. Robb, 723 N.E.2d 1019, 1044 (Ohio 2000) (only a unanimous

jury can impose death). Dixon has met this burden. 

To determine prejudice we must “reweigh the mitigation evidence against the

evidence of aggravation. . . . including evidence presented in habeas proceedings.”

Williams v. Anderson, 460 F.3d 789, 804 (6th Cir. 2006). “Prejudice is established

where, taken as a whole, the available mitigating evidence might well have influenced
No. 08-4019 Dixon v. Houk Page 19

the sentencer’s appraisal of the petitioner’s moral culpability.” Jells, 538 F.3d at 498

(citation and internal quotations omitted).

The jury found Dixon guilty of the following aggravating circumstances

presented at sentencing: (1) that he was the principal offender and committed the murder

during a robbery and kidnapping; and (2) that he had committed the murder with prior

calculation and design. Dixon, 805 N.E.2d at 1058. The evidence submitted at the

penalty phase in mitigation was Dixon’s age at the time of the offense (twenty years old)

and the testimony of the Chief of the Bureau of Sentence Computation, who testified to

the time of actual incarceration if the jury recommended a life sentence. The jury did

not hear any evidence related to Dixon’s background. 

In support of his ineffective assistance claim, Dixon submitted Ericson’s report

along with affidavits from James Eisenberg (a forensic and clinical psychologist), Paul

Dixon, Jr. (Dixon’s brother), Anna Marie Dixon (his mother), Nancy Wolfe (his former

foster mother), David Lewis (his high-school wrestling coach), and testimony of several

individuals from the federal court evidentiary hearing. Ericson’s mitigation report, more

than fifty pages in length, was the result of a comprehensive review of a multitude of

records, including, school, employment, hospital, psychological, and court records, as

well as interviews with Dixon’s mother, brother, former foster parents, former probation

officer, a deacon and Dixon’s church, and the mother of Dixon’s girlfriend.

The report revealed the following details about Dixon. His family life was

dysfunctional and abusive, and he had no positive role models, outside of approximately

eighteen months living with foster parents. There was a family history of alcoholism.

Dixon’s father, uncle, paternal grandfather, and both maternal grandparents were

alcoholics, and his mother had a “drinking problem.” Dixon’s father was arrested

between seven and ten times for driving under the influence of alcohol and was ordered

by a court to attend an alcohol treatment program.

Dixon’s father physically abused him. Lucas County Children Services records

revealed a history of abuse of both Dixon and his brother by both parents, but that

Dixon’s father was “particularly abusive when drinking especially to [Dixon].” Indeed,
No. 08-4019 Dixon v. Houk Page 20

Dixon’s mother filed, but later dropped, several domestic violence charges against

Dixon’s father. His father’s violence was not limited to Dixon, however. Dixon’s foster

mother described how employees at the local court feared Dixon’s father because he had

once made a death threat to a court employee. One evening, Dixon’s father shot six

rounds of his shotgun from inside the home because he was angry at Dixon’s mother.

The accounts of abuse Dixon endured from his father are particularly troubling.

The father hit Dixon with a baseball bat, “kicked” him, “smacked” him, and “lost

control” with Dixon. In one instance, Dixon did not do what his father asked, causing

his father to “put his steel toed boots on” and kick Dixon “like a man;” as a result, one

of Dixon’s ribs is deformed. In another incident, Dixon’s father hit him in the face so

hard it left fingerprints. The police were called, but his mother explained that “luckily”

Dixon was asleep, with his face down where he had been hit. The police left without any

further investigation or arrest. Dixon himself described his father as “very aggressive”

and stated that his father beat him a number of times; Dixon’s brother described their

father as “explosive.” 

Ericson further reported that Dixon himself suffered from alcohol abuse,

polysubstance abuse, anxiety and depression. He began taking drugs when he was

thirteen years old, when “behavioral and family issues were most significant.” He

attended a treatment and rehabilitation center, and “[a]ttention was given to his lack of

understanding of the negative consequences of his drug involvement and the lack of a

male role model.” Ericson’s report summarized medical records indicating that

individual counseling was recommended due to the high level of dysfunction within the

family, but that the family could not be motivated to follow through with these

suggestions.

Additionally, Dixon’s brother, Paul Dixon, Jr., a Marine based in North Carolina,

was available to testify on Dixon’s behalf. Paul explained how he spent little time at

home during his youth, and how an environment away from his home allowed him to

“have abilities and qualities that are basic to most people, but not common to my

immediate family.” He described his family as “extremely tense,” “often disruptive and
No. 08-4019 Dixon v. Houk Page 21

perhaps dysfunctional.” He attested that Dixon did not have the benefit of an extended

removal from the family as he did, and how Dixon was “negatively affected because of

it.”

Paul’s statements are supported by Dixon’s former foster parents, Nancy and

Dale Wolfe—who had Dixon in their care for about one to one and one half years. They

“observed a major backslide [in Dixon’s behavior]” and how he “became very defiant”

and “belligerent” when the court decided to release him back to his parents. Nancy

Wolfe explained how Dixon “modeled his behavior after his father.” Dixon told Dale

Wolfe that he was fearful of his father and did not want to go home.

There is also evidence of incest and sexual abuse within the family. Dixon’s

sister was repeatedly molested by her maternal grandfather as a child. Records from

Lucas County Children Services indicate that sexual contact and possible intercourse

occurred between both brothers and their sister, as well as their father and their sister.

Both parents resisted counseling and characterized their sons’ behavior as “normal

curiosity.”

A case worker with the Lucas County Court of Common Pleas, Juvenile

Division, did a case assessment on the Dixons after several sessions with the family. He

described sexual encounters between the siblings and felt they learned such behavior

from their father. When asked about the sexual inappropriateness, Dixon’s father

threatened the case worker and told him he was “asking for serious trouble.” The case

worker explained how the Dixon family was given the worst score regarding “family

system pathology” from “day one,” never improved, and was one of the worst families

with which he had worked.

The Warden argues that details of Dixon’s childhood would have had little or no

effect on his sentence. The evidence belies such a conclusion. The evidence shows

Dixon’s family history was filled with chronic alcoholism, domestic violence, possible

incest, and negative role models. As Dr. Eisenberg explained, this information would

have provided the jury with “insight and understanding into the development of Dixon’s
No. 08-4019 Dixon v. Houk Page 22

personality and pathology,” and “an understanding of the family dynamics that lead to

Mr. Dixon’s violent behavior.”

The circumstances of the crime are heinous, there is no doubt. But at no point

during the trial did the jury hear any details of Dixon’s dysfunctional and abusive

upbringing. It is arguable whether any actually mitigating evidence was presented. The

introduction of Dixon’s birth certificate showed the jury that he was above the age of

eighteen when he committed the offense. The testimony of the Bureau of Sentence

Computation employee was even less helpful, as the Ohio Supreme Court explained that

“sentence computations [are] entitled to no weight in mitigation.” Dixon, 805 N.E.2d

at 1062 (citing State v. White, 709 N.E.2d 140, 155-56 (Ohio 1999). The large

discrepancy between the nominal evidence given to the jury and the available evidence

of Dixon’s dysfunctional family life demonstrates a reasonable probability that at least

one member would not have returned a sentence of death. See Rompilla v. Beard, 545

U.S. 374, 393 (2005) (finding prejudice where the evidence not presented at sentencing

“adds up to a mitigation case that bears no relation to the few naked pleas for mercy

actually put before the jury”).

The evidence of Dixon’s family history would have presented the jury with a

different calculation to make at the penalty phase. As we have explained before, 

‘I and the public know [w]hat all schoolchildren learn,’ it has been said,

“[t]hose to whom evil is done [d]o evil in return.” W.H. Auden,

“September 1, 1939.” While these words may not capture a satisfactory

theory of morality, they assuredly suggest a plausible theory for sparing

a life at a mitigation hearing[.]

Johnson v. Bagley, 544 F.3d 592, 606 (6th Cir. 2008) (finding prejudice under Strickland

because the new evidence differed “from that heard by the jury not only in degree but

also in kind”); see also Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (“[E]vidence about

the defendant’s background and character is relevant because of the belief, long held by

this society, that defendants who commit criminal acts that are attributable to a

disadvantaged background . . . may be less culpable than defendants who have no such

excuse.”).
No. 08-4019 Dixon v. Houk Page 23

In Williams v. Anderson, we found prejudice when similar facts were not

presented as mitigating evidence, namely, the defendant’s alcoholic and abusive mother,

lack of father figure, primary male role model’s career as a criminal, and a violencecondoning environment. 460 F.3d 789, 804-05 (6th Cir. 2006); see also Morales v.

Mitchell, 507 F.3d 916, 951 (6th Cir. 2007) (Suhrheinrich, J., dissenting) (noting we

have “found prejudice when the jury was deprived of non-cumulative mitigating

evidence such as severe physical, psychological, or sexual abuse, a violent upbringing,

or abject poverty”). Additionally, we have found prejudice where the jury heard little

to no evidence in mitigation when compared to what evidence could have been presented

on the defendant’s behalf. See Hamblin v. Mitchell, 354 F.3d 482, 490, 493 (6th Cir.

2003) (finding prejudice where counsel did not present the jury with any mitigating

evidence and evidence of a childhood where “abuse, neglect, violence and hunger were

common” existed); Frazier, 343 F.3d 780, 797 (6th Cir. 2003) (no evidence presented

at the penalty phase except the defendant’s one-sentence plea for mercy and defense

counsel could have presented evidence of defendant’s brain injury).

Dixon’s case is no different from those where have found prejudice in both

respects. The jury heard no evidence during the guilt phase of the trial that could be

considered mitigating. And the evidence presented at the penalty phase did not address

any actual mitigating factors. Furthermore, the evidence of Dixon’s extremely

dysfunctional family never heard by the jury is similar to evidence in cases where we

have found prejudice. Had Dixon’s counsel presented to the jury evidence of the abusive

and tragic upbringing Dixon experienced, there is a reasonable probability that at least

one juror would have voted not to put him to death. Indeed, given the circumstances of

the offense, the submission of such evidence is precisely what was called for during the

penalty phase. The failure by Dixon’s counsel to present any of this evidence was

constitutionally deficient by any measure.

Accordingly, while I join the majority opinion, I would also reverse the district

court’s denial of Dixon’s petition for a writ of habeas corpus on his ineffective assistance

of counsel claim.
No. 08-4019 Dixon v. Houk Page 24

________________

DISSENT

________________

SILER, Circuit Judge, dissenting. I respectfully dissent from the majority

opinion finding that the Ohio Supreme Court unreasonably applied clearly established

federal law in deciding this case based on the evidence presented in the state court under

28 U.S.C. § 2254(b). Whether this court would rule otherwise is not the issue. Instead,

we must look at State v. Dixon, 805 N.E.2d 1042 (Ohio 2004), to see if it was contrary

to 28 U.S.C. § 2254(b). As the majority indicates, the Ohio Supreme Court found that

the second statement by Dixon to the officers on November 9, 1993, was admissible

under the authority of Oregon v. Elstad, 470 U.S. 298 (1985). 

Although Dixon has argued that the Ohio Supreme Court should have followed

Missouri v. Seibert, 542 U.S. 600 (2004), I agree with the majority when it indicates that

the Seibert decision was not binding upon the Ohio Supreme Court at the time it decided

State v. Dixon. The Ohio Supreme Court rendered its opinion in Dixon on April 14,

2004, and denied reconsideration on June 9, 2004. Seibert was not decided by the

United States Supreme Court until June 28, 2004. Nevertheless, we can review what

Seibert said about Elstad.

The facts in this case resemble the facts in Elstad and Seibert, but are easily

distinguished. In Elstad, the accused made an initial inculpatory statement without

Miranda warnings at the time of his arrest at his home. His subsequent confession at

the sheriff’s office one hour later after being advised of his Miranda rights was

admissible. In Seibert, the accused was questioned first for 30 to 40 minutes without

Miranda warnings. After admitting her guilt, Seibert was given a 20-minute break, after

which the officers advised her of her Miranda rights, and she then admitted her guilt

again. However, as stated above, the Ohio Supreme Court did not have the Seibert

decision as evidence of clearly established federal law at the time of its decision in

Dixon. 
No. 08-4019 Dixon v. Houk Page 25

In our case, the officers at the time of the first interrogation on November 9

deliberately decided not to use the Miranda warnings, because they thought Dixon

would invoke his right to silence. Later, at the second interrogation on November 9,

circumstances had changed significantly. First, Dixon was initially arrested for forgery,

not murder. At the time of the first interrogation, the officers knew of the disappearance

of Hammer, the victim, but had not found the buried body. The first interview lasted

approximately 45 minutes, and the police focused their questions on Hammer’s

disappearance. Dixon denied knowledge of Hammer’s disappearance during that

interrogation, but admitted the forgery of Hammer’s automobile title. Dixon, 805 N.E.2d

at 1049. Also significant is that between the time of the first interview on November

9, which concluded at 3:30 p.m., and the second interview, which began at 7:30 p.m., the

police found Hammer’s body. At the second interview, before being questioned, “Dixon

volunteered that he had heard that police had found the body and asked whether Hoffner

[co-defendant] was in custody.” Id. Dixon also said that he had talked to his attorney

and wanted to tell the police what happened. The majority says that the trial judge found

otherwise, but the Ohio Supreme Court found that he told this to the detectives

questioning him. Id. at 1050. After being advised of his Miranda rights twice and

signing a waiver-of-rights form, Dixon implicated himself in Hammer’s death. Id. 

The Ohio Supreme Court correctly followed federal law. In Elstad, the Supreme

Court emphasized the coercive effect of the initial interview without Miranda warnings.

Thus, it said:

There is a vast difference between the direct consequences

flowing from coercion of a confession by physical violence or other

deliberate means calculated to break the suspect’s will and the uncertain

consequences of disclosure of a “guilty secret” freely given in response

to an unwarned but noncoercive question, as in this case.

Elstad, 470 U.S. at 312. It went on to hold “that, absent deliberately coercive or

improper tactics in obtaining the initial statement, the mere fact that a suspect has made

an unwarned admission does not warrant a presumption of compulsion.” Id. at 314.

Obviously, the first statement of November 9 was not coercive. One might feel that the
No. 08-4019 Dixon v. Houk Page 26

deliberate act by the officers in failing to advise Dixon of his Miranda rights on the first

interview was an improper tactic. However, Justice O’Connor, the author of Elstad, later

declared in her dissent in Seibert that the state of mind of the police is irrelevant to the

voluntariness of the suspect to abandon his rights. Seibert, 542 U.S. at 625 (O’Connor,

dissenting) (citing Moran v. Burbine, 475 U.S. 412, 423 (1986)).

It is my belief that these facts, including (1) the passage of time between the two

interviews on November 9; (2) Dixon told the officers he had talked to his attorney and

wanted to make a statement; and (3) circumstances had changed between the two

interviews, that is, that the officers had found the body and the likely charge would be

homicide not forgery, are sufficient to dissipate the taint of the initial interview of

November 9. The Ohio Supreme Court followed Elstad in making this determination,

and I would not find that it unreasonably applied Miranda or Elstad. 

Although the majority also discusses the alleged erroneous burden of proof on

Dixon to show that his confession was coerced, that issue was not certified to this court

and has not been raised by Dixon.

Moreover, even if there was a Miranda violation, the admission of the

“confession at trial is subject to harmless error analysis.” Arizona v. Fulminante,

499 U.S. 279, 303 (1991). Under Brecht v. Abrahamson, 507 U.S. 619 (1993), an error

is harmless unless it “had [a] substantial and injurious effect or influence in determining

the jury’s verdict.” Id. at 637. Here, several witnesses established that Dixon stole

Hammer’s car about the time of his disappearance. Even more damaging, however, was

the testimony of Kirsten Wilkerson, Dixon’s girlfriend, who described in great detail the

efforts of both Dixon and Hoffner, as well as her own participation, to kill Hammer and

transport him to the burial site. Thus, the admission of Dixon’s statement to the police

did not have a substantial and injurious effect upon the jury’s verdict.

I also respectfully disagree with the concurring opinion by my distinguished

colleague in which he indicates that he not only concurs with the majority opinion on the

Miranda issue, but that he would also grant the writ on the basis that Dixon received

ineffective assistance of counsel during the mitigation phase of the trial. 
No. 08-4019 Dixon v. Houk Page 27

Although the parties and the district court all agreed that AEDPA sets up the

standard of review on this issue, and although no error was claimed either in the district

court or in this court for failure to consider this under a de novo standard, the

concurrence may be correct that AEDPA does not apply because the district court held

an evidentiary hearing involving the testimony of several witnesses. Without deciding

which standard applies, however, I would affirm the district court under either the

AEDPA standard or a de novo review for the reasons set out herein. Also, like the

district court, I would find that under Strickland v. Washington, 466 U.S. 668, 687

(1984), Dixon has failed to show prejudice by the alleged deficient performance on the

part of his counsel during the penalty phase of the trial. In determining prejudice, “a

petitioner ‘need not show that counsel’s deficient conduct more likely than not altered

the outcome of the case,’ but only ‘that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.’”

Williams v. Anderson, 460 F.3d 789, 801-02 (6th Cir. 2006) (quoting Strickland, 466

U.S. at 687-88). Moreover, “the prejudice question is ‘whether there is a reasonable

probability that, absent the errors, the sentencer–including an appellate court, to the

extent it independently reweighs the evidence–would have concluded that the balance

of aggravating and mitigating circumstances did not warrant death.’” Smith v. Mitchell,

348 F.3d 177, 199 (6th Cir. 2003) (quoting Strickland, 466 U.S. at 695). During the

mitigation phase, trial counsel only presented the testimony of Sally Ann Walters

concerning the significance of a sentence of life without parole for 20 years or life

without parole for 30 years and a certified copy of Dixon’s birth certificate to show his

age. Nevertheless, counsel conducted a significant investigation through Gary Ericson,

a licensed private investigator and mitigation specialist, and a psychologist, Dr.

Christopher Layne. 

Ericson prepared a 51-page mitigation report. He reviewed records detailing

Dixon’s birth, juvenile, educational, employment and psychological histories. He

offered information about Dixon’s family environment, including physical violence and

emotional abuse from his father. He also investigated possible sexual abuse, which

actually was inflicted by Dixon against a four-year-old child. Ericson found that Dixon
No. 08-4019 Dixon v. Houk Page 28

had been committed to a juvenile facility and earned a GED there. He also had a

positive adjustment in his placement with a foster family. Ericson also found that Dixon

had raped his younger sister and started taking drugs at the age of thirteen. Ericson

presented his report to trial counsel, who found that Dixon did not want it to be

presented to the jury. Counsel said Dixon was upset about it and would go “ballistic in

the courtroom if all this information was presented at a sentencing hearing.” The

psychologist, Dr. Layne, had concluded before the trial that Dixon’s intelligence was

low-normal. He also found that Dixon had a criminal personality, called an antisocial

personality disorder. He told defense counsel that he would not be helpful if called as

a witness, in view of his findings. He knew that Dixon’s medical records had indicated

possible Reyes Syndrome as a child, but he did not find any symptoms of Reyes

Syndrome. He also reasoned that Dixon did not exhibit any of the primary symptoms

of brain damage. In view of this information, Dixon’s counsel strategically decided not

to introduce the testimony of either Ericson or Layne. 

Trial counsel have an obligation to conduct a full investigation of their client’s

background in death penalty cases. Williams v. Taylor, 529 U.S. 362, 396 (2000). The

district court found that the failure to use Dr. Layne as a witness was not a deficient

performance, because his testimony would not have helped Dixon. On the failure to call

Ericson as a witness, the court found that there was no prejudice, because evidence of

a poor childhood likely would not have been sufficient to change a juror’s mind. The

district court found that, had the defense tried to show that Dixon was a “good guy,” his

previous conduct including the conviction for gross sexual imposition on a four-year-old

child, “would surely have been introduced into evidence.”

Although the concurrence criticizes the fact that counsel did not speak with any

of the witnesses who could have testified for Dixon, the mitigation report from Ericson

was a very thorough product. The law does not require that each counsel discuss with

all potential witnesses what his or her testimony is supposed to be, so long as someone

explores it and counsel concludes that for strategic reasons the evidence should not be

introduced. Even the concurring opinion agrees that Ericson’s mitigation report was a
No. 08-4019 Dixon v. Houk Page 29

comprehensive review of Dixon’s background. The aggravating facts of the homicide

and the burial of the victim while he was still alive was such a heinous crime that it

would have been difficult to find anything to mitigate the crime unless the offender was

insane or mentally retarded, which was not the case here.

This case is a companion to Hoffner v. Bradshaw, 622 F.3d 487 (6th Cir. 2010),

which recites additional facts from the trial. Because the majority and concurrence do

not discuss the other issues under the certificate of appealability, I also do not. However,

I find no merit in any of the other issues raised and would affirm the denial of the writ

of habeas corpus by the district court.