52 Scott v. Mitchell Nos. 98-4272/4321

III. CONCLUSION

Because we conclude that there was no manifest

miscarriage of justice in Scott’s trial or sentencing that wouldauthorize us to issue a federal writ of habeas corpuscountermanding the judgment of the Ohio courts, weREVERSE the order of the district court granting Scott’spetition for a writ of habeas corpus; we AFFIRM thejudgment of the district court in all other respects.

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

JAY D. SCOTT,

Petitioner-Appellee/

Cross-Appellant,

v.

BETTY MITCHELL, Warden,

Respondent-Appellant/

Cross-Appellee.

Appeal from the United St

for the Northern District of 

No. 95-02037—Kathleen McDo

Judge.

Argued: January 

Decided and Filed: A

Before: BOGGS, SILER, and B

Judges.

____________

COUNSE

ARGUED: Stuart A. Cole, OFFICGENERAL OF OHIO, CAPITAColumbus, Ohio, for Appellant. T
2 Scott v. Mitchell Nos. 98-4272/4321

OFFICE OF TIMOTHY FARRELL SWEENEY, Cleveland,Ohio, for Appellee. ON BRIEF: Stuart A. Cole, Jonathan R.Fulkerson, OFFICE OF THE ATTORNEY GENERAL OFOHIO, CAPITAL CRIMES SECTION, Columbus, Ohio, forAppellant. Timothy F. Sweeney, LAW OFFICE OFTIMOTHY FARRELL SWEENEY, Cleveland, Ohio, John S.Pyle, GOLD, SCHWARTZ & CO., Cleveland, Ohio, forAppellee. 

_________________

OPINION

_________________

ALICE M. BATCHELDER, Circuit Judge. Respondent

Betty Mitchell (“the Warden”) appeals the district court’sgrant of a writ of habeas corpus under 28 U.S.C. § 2254 toOhio death row inmate Jay D. Scott. The district courtgranted the writ on the basis of only one of the grounds raisedin his petition, finding all of the other grounds either defaultedor meritless. Scott cross-appeals the court’s rejection of hisremaining arguments. After having the benefit of lengthy oralargument, and having given the careful consideration to therecord and the parties’ arguments that the gravity of thequestion before us demands, we are convinced that the districtcourt erred in holding that the ground on which it granted thewrit was not procedurally barred. Because we conclude thatthe district court correctly held that the other grounds raisedby Scott’s petition were either defaulted or without merit, wewill reverse the issuance of the writ.

I. FACTUAL AND 

PROCEDURAL 

BACKGROUND

A. Factual History

The facts of the underlying crime are not in significant

dispute, except to the extent that Scott challenges thesufficiency of the evidence presented at trial to prove thesefacts. The following summary is largely taken from thedistrict court’s Order, which in turn quoted it from theopinion of the Ohio Supreme Court.

Nos. 98-4272/4321 prosecution, any rational trier of essential elements of the crime beThis familiar standard [views evfavorable to the prosecution[, anddiscretion only to the extent nefundamental protection of due proVirginia, 443 U.S. 307, 319 (19citations and footnotes omittedprocedurally defaulted.

Scott argues that the evidenc

insufficient to prove that he cocommit aggravated robbery. If truedeath sentence, as the only specificeligible was “caus[ing] the deatcommitting or attempting to coimmediately after committing oAggravated Robbery.” To supporthat nothing was taken from the Ventered the store with money, and there had been no discussion of robstore.

We agree with the district court 

that ample evidence was presented find Scott guilty of the specificatio

[U]nder R.C. § 2911.01, [...] an atheft constitutes aggravated robbobjective is evidenced by the seJones parked his car around the c[Scott] and O’Neal. Of further r[Scott] was aware of a pending him upon his apprehension.

State v. Scott, 497 N.E.2d at 64. Thabeas relief.
50 Scott v. Mitchell Nos. 98-4272/4321

10In Ohio, the “principal offender” is the one who actually caused the

death. See Byrd, No. 96-3209, slip op. at 5 n.2 (citing State v. Penix, 513

N.E.2d 744, 746 (Ohio 1987)).

constitutionally required narrowing process, and so the factthat the aggravating circumstance duplicated one of theelements of the crime does not make this sentenceconstitutionally infirm.” Id. at 246. Similarly, the Ohio

Legislature “narrow[ed] the class of felony murders subject tothe death penalty by excluding those who commit [murder inthe course of an] arson, robbery, burglary or escape, unlessthey are charged with a different aggravating circumstance.”State v. Buell, 489 N.E.2d 795, 807 (Ohio 1986); see also

Ohio Rev. Code § 2929.04(A) (1996) (“Imposition of thedeath penalty for aggravated murder is precluded, unless oneor more of the following is specified in the indictment . . . andproved beyond a reasonable doubt:”). Scott fell within thenarrowed category of death-eligible felony murderers becausehe committed or attempted to commit aggravated robbery.See Ohio Rev. Code § 2929.04(A)(7) (1996).

Moreover, even if an overlap were problematic, there is

none here. Pursuant to Ohio Rev. Code § 2929.04(A)(7),Scott’s indictment for aggravated murder added that “either[he] was the principal offender in the commission of theAggravated Murder or, if not the principal offender,committed the Aggravated Murder with prior calculation ordesign.” The Ohio Supreme Court has held that this languageis distinct from the definition of felony murder, because inaddition to causing a death during a felony, the defendantmust also be proved to have caused the death personally anddirectly10 or in a premeditated manner. See State v. Jenkins,

473 N.E.2d 264, 280 n.17 (Ohio 1984); State v. Barnes, 495N.E.2d 922, 925 (Ohio 1986) (per curiam).

F. Sufficiency of the Evidence Used to Convict Scott

An habeas court reviews claims that the evidence at trial

was insufficient for a conviction by asking “whether, afterviewing the evidence in the light most favorable to the

Nos. 98-4272/4321 

On May 6, 1983, Vinnie Prince, 

V&E Delicatessen at East 86th StrCleveland, was shot and killed duof her shop. An autopsy revealegunshot wound to the chest.

Octavia Hickman, who lived nea

that on the day of the shooting, whome after shopping at the nearbnoticed a greenish-blue Cadillac wpull up across from her house. She inside the car, one behind the wheeseat. She later observed another nearby fence and dive through Cadillac. The car then drove away

Another witness near the deli w

was Clifford Roberson. Roberson store with a female companion whinside the store. He immediatelpushed her up against the wall of tprotect her. When he heard a scraround and saw two black maleRoberson testified that the taller mwearing “some type of rag around long-barreled pistol. Upon opRoberson observed Prince lying “awas trying to chase them or somedown a nearby police car and infsituation.

Solomon Smith, another witnes

that he saw “two men run across tthe corner of Mr. Cooper’s house, and jump the fence.” He described males, one 5’10 1⁄2” tall, the other “not observe anything in the fleeing 

Sometime after this incident, 

received a telephone call from Ricto meet with him. Tramble testifi
4 Scott v. Mitchell Nos. 98-4272/4321

informed Officer Moore that on the day Prince was killed,Tramble was with Edward O’Neal, Michael Streeter, DannyJones, and Scott; they were all at O’Neal’s girlfriend’s house“to get high.” Tramble said he overheard Scott say, “Well Idid what I had to do. She shouldn’t have made me move likethat. F__k it. It’s over with.” Tramble testified that, laterthat day, Scott told Tramble, “[t]hese niggers don’t knowwhat they’re doing. [T]hey get to crying about this and cryingabout that. This is what I do.” Scott professed to Tramblethat he was “a stick-up man.” Tramble related further that thenext day O’Neal informed him that Scott and O’Neal wereinvolved in the V&E Deli incident, including the shooting ofPrince.

On the basis of this information, the police apprehended

and arrested Danny Jones and confiscated Jones’s automobile,an older model, blue, turquoise-bottom Cadillac with a whitetop, bearing a thirty-day tag but no license plate. Jones signeda typewritten statement stating that he and O’Neal, Streeter,and Scott had been driving around looking for a place to rob.After selecting the V&E Deli as a target, Scott requested“front money” in order to fabricate a purchase, and asked forsomeone to go into the store with him. O’Neal finally agreedto accompany Scott into the store. At this time, Jonesobserved that Scott was armed with a .38-caliber pistol thatlooked like a police revolver, and O’Neal was carrying a .25-caliber automatic handgun. Jones pulled his car around thecorner from the V&E Deli, and O’Neal and Scott got out ofthe car while Jones and Streeter waited for them. Shortlythereafter, Scott and O’Neal came running through a yard andclimbed over a fence. O’Neal ran to the car and got in andScott dived into the car through a window. Jones was told to“pull off.” Later, Jones asked O’Neal what happened andO’Neal replied “that J.D. [Scott] shot her [...] cause she wentfor her [gun].” When Jones asked Scott if he had killed her,Scott replied, “naw she was still standing up when we ran outthe door.” At trial, Jones repudiated the part of histypewritten statement in which he acknowledged their intentto rob the V&E Deli, contending instead that Scott andO’Neal had gone into the store to get cold beer.

Nos. 98-4272/4321 definition to not violate due procsame in Byrd, No. 96-3209, slip opno reason to ignore this precedent

E. Alleged Unconstitutionality 

Scheme Facially and 

Scott raised before the district c

why the death penalty in geunconstitutional. He focuses his artwo: that the fact that felony melement of the offense and a groufails to narrow the class of persopenalty, and that electrocution punishment. The rest are incorpfootnote. The great majority of thethe electrocution issue, were summarily in Byrd. See No. 96-32will do the same, for substantially tin the district court’s Order. Altho

claim that Ohio fails to narrow tconvicts, it did not explicitly addrargument. Hence, it merits brief d

The Warden has not argued tha

overlap of felony murder between aggravating circumstance is procedistrict court dismissed it on the mright that the same act was the baggravating circumstance, this alonrelief. See Lowenfield v. Phelp

(1988). There, the Supreme Court circumstances are not ends unto thmeans by which a state may perforSee id. at 244. Lowenfield uphel

scheme, in which the narrowing futhe legislature when it circumscrieligible for the death penalty. See that the sentencing jury is also reqof an aggravating circumstance in 
48 Scott v. Mitchell Nos. 98-4272/4321

accomplice instruction that required the jury to look foradditional corroboration, just not in the language he proposed.There is no error here, much less one justifying a writ.

2. Definition of Reasonable Doubt

The trial judge read Ohio’s statutory definition of

reasonable doubt to the jury, which included the phrase“firmly convinced,” and added some concluding remarks thatessentially repeated the same language:

Now, the Legislature of Ohio has specifically

established the legal meaning of the term “reasonabledoubt,” and I will read that definition to you:“Reasonable doubt is present when, the jurors, after theyhave carefully considered and compared all evidence,cannot say they are firmly convinced of the truth of thecharge. It is a doubt based upon reason and commonsense. Reasonable doubt is not mere possible doubt,because everything relating to human affairs ordependent upon moral evidence is open to some possibleor imaginary doubt.

“Proof beyond a reasonable doubt is proof of such

character that an ordinary person would be willing to relyand act upon it in the most important of his affairs.”

All of the evidence should be examined carefully and

conscientiously by you, and, if after a full and impartialconsideration of all the evidence, you are firmlyconvinced beyond a reasonable doubt of the truth of thecharge or charges, then the State has proved its case andyou must find the defendant guilty.

If you are not firmly convinced of the truth of the

charge, then the State has not proved its case and youmust find the defendant not guilty.

Scott claims that this definition unconstitutionally conflatesthe reasonable doubt standard with the less demanding “clearand convincing” standard.

The district court correctly relied on Thomas v. Arn, 704

F.2d 865, 867-69 (6th Cir. 1983), which held this precise

Nos. 98-4272/4321 

The police also apprehended O’

a typewritten statement. O’Neal staand Scott were driving around in stopped in front of the V&E Deli bwanted to get some bologna and cScott into the store. Scott asked for when the old woman minding the sScott pulled out a pistol. Scott toand when the woman began to “hoa single shot at the woman, strikinhe was momentarily stunned by thiuntil Scott grabbed him and pulled began to run. They jumped the O’Neal stated that he did not see treach for a weapon.

At trial, O’Neal’s testimony dif

written statement in that he testifiScott—who ordered the bologna O’Neal further testified that he waordeal and that it was Michael Scaliber weapon in his possession O’Neal confirmed that he had talkehappened at the V&E Deli.

Barbara Campbell, a trace-ev

Cuyahoga County Coroner’s Officof a “Walker Nitrate Test” revealed which killed Prince was approximbody when it was fired. Campbell fmetal test conducted on the victPrince did not handle or fire a wDetective David Hicks, however, fully loaded .38-caliber revolver on found.

On May 17, 1983, the grand jur

Scott was apprehended six monthDetective James Svekric of the CleDuring the trip back to Cleveland
6 Scott v. Mitchell Nos. 98-4272/4321

1O’Neal, Jones, and Streeter each pled guilty to robbery offenses and

received shock probation and/or suspended sentences.

2This section provides a death-penalty-qualifying specification if 

The offense was committed while the offender was committing,attempting to commit, or fleeing immediately after committingor attempting to commit kidnapping, rape, aggravated arson,aggravated robbery, or aggravated burglary, and either theoffender was the principal offender in the commission of theaggravated murder or, if not the principal offender, committedthe aggravated murder with prior calculation and design.

Ohio Rev. Code § 2929.04(A)(7) (1996).using his name in connection with a homicide and robbery.Up to that point, the arresting officers had informed Scottonly that he was wanted in connection with a homicide; theyhad made no mention that Scott was also charged withaggravated robbery. Scott maintained that he had been inReading, Pennsylvania, when the incident occurred.

B. Procedural History

Scott and his three accomplices1 were indicted by the

Cuyahoga County Grand Jury on two counts: (1) aggravatedrobbery in violation of Ohio Rev. Code § 2911.01, and (2)aggravated murder in violation of Ohio Rev. Code § 2903.01.The grand jury added two specifications to the murder count:(1) a death-penalty specification for violation of Ohio Rev.Code § 2929.04(A)(7),2 and (2) a firearm specification forviolating Ohio Rev. Code § 2941.141.

Scott pled not guilty, proceeded to trial, and was convicted.

The trial court then held a sentencing hearing as prescribed byOhio Rev. Code §§ 2929.022(A) and 2929.03, and the juryrecommended the death penalty. The trial judge adopted therecommendation and sentenced Scott to death for his murderconviction. Scott was also sentenced to 7-25 years ofimprisonment for his aggravated robbery conviction and 3years of imprisonment for the firearm specification.

Nos. 98-4272/4321 defense significant enough to conviction review.

Nor did the court err in refu

instruction. In United States v. C1993), an appellant challenged the anything more than a general instrcredibility. In dismissing the argu

The court's instruction adequaregarding the credibility of witneare not troubled simply because explicitly highlight the credibiliaccomplice testimony. The instto the various considerations taccount in weighing testimony, afor rejecting the testimony of the it had chosen to do so. In short, given by the court substantiamaterial as the instruction requthere was no reversible error.

Id. at 992. We have since followaccomplice instructions as a gensignificantly less favorable to defenof some of our sister circuits. See, 

627 F.2d 1052 (10th Cir.1980) (finwhen no accomplice instruction evidence corroborated the accomStates v. Davis, 439 F.2d 1105 (9th v. United States, 411 F.2d 644 (5th States v. McCabe, 720 F.2d 951, 95lack of accomplice instruction to bevidence was insufficient “to unreliability of accomplice testimo506 F.2d 111, 120 (D.C. Cir.1974instruction harmless because acc"materially corroborated"); Unite

F.2d 393, 396 (10th Cir.1972) corroborated the accomplice's test
46 Scott v. Mitchell Nos. 98-4272/4321

an abnormal fear of imprisonment since he was alreadyincarcerated at the time. The Ohio Supreme Court also reliedon Howard in rejecting Scott’s appeal. See State v. Scott, 497N.E.2d 55, 63 (Ohio 1986). We have never directly followedor contradicted Howard, although we have acted consistentlywith it by dismissing a claim of error for failure to produceany evidence that the witnesses were addicted at trial. SeeUnited States v. Freeman, Nos. 91-1011, 91-1012, 1991 WL203088, at **3 (6th Cir. Oct. 4, 1991) (unpublished). Instead,in an unpublished opinion, when an appellant challenged therefusal to give a similar instruction for a witness who was anaddict-informer but not addicted at trial, we relied on ourauthority governing addict-informer instructions. See UnitedStates v. Anderson, Nos. 97-5352, 97-5382, 1998 WL833701, at **4 (6th Cir. Nov. 20, 1998). "This court has longrecognized the importance of an addict-informant instructionin appropriate cases." United States v. Brown, 946 F.2d 1191,1195 (6th Cir.1991). However, there is no per se rulerequiring such instructions to be given in all cases involvingaddict testimony; instead, "the need for such an instructiondepends on the circumstances of each case." Id. (internalquotation omitted). The district court errs by failing to givea requested instruction only when the requested instruction iscorrect, not substantially covered by the actual jury charge,and when not giving the instruction would substantiallyimpair defendant's defense. See United States v. Sassak, 881F.2d 276, 279 (6th Cir.1989).

We agree with the district court, and adopt the reasoning of

Howard. It is certainly consistent with our handful ofunpublished decisions on the issue, none of which has beenreceptive to requiring the addict instruction, and it is sensible;there is no reason to believe that Tramble’s former drug useimpaired his testimony at trial. But Scott’s argument islacking even under our prior case law. The requestedinstruction is correct, as it is remarkably similar to the SixthCircuit pattern instruction for addict-informers. But the trialcourt’s instruction to consider the witnesses’ motives shouldhave been sufficient, and there was no impairment to Scott’s

Nos. 98-4272/4321 

Scott timely appealed his convi

Both were affirmed by the Ohio Ohio Supreme Court. The Unitdenied Scott a writ of certiorari, thoBrennan filed a dissenting opinioU.S. 923, 923 (1987).

Scott then secured a stay of exe

Cuyahoga County Common Pleas relief pursuant to Ohio Rev. Code successfully moved to dismiss, but reversed the dismissal in part and the issue of whether Scott was dencounsel at the mitigation phase oBoth parties unsuccessfully appeaSupreme Court, and the case was pleas court for the hearing. At the at which Scott’s family members the trial court issued findings of fato the effect that Scott had noassistance in the mitigation pSpecifically, the court found that was more credible than that of ScoScott and his family were primarilto provide mitigating evidence, anstrategy pursued in the mitigation hinterest. Scott unsuccessfully appeof certiorari on the ineffective assithe United States Supreme Court.

In addition to these post-convicti

pursued post-conviction relief purs584 N.E.2d 1204, 1209 (Ohio 1992claiming denial of effective assistaseek relief by applying for delayCourt of Appeals, or by filing a dethe Ohio Supreme Court. Scott firhis appeal in the Ohio Court of ApThe Ohio Supreme Court affirmedUnited States Supreme Court den
8 Scott v. Mitchell Nos. 98-4272/4321

3In its Order, the district court felt “compelled to mention” that

Cleveland attorneys Timothy F. Sweeney and John S. Pyle, servingpursuant to the Criminal Justice Act, have done an exceptional jobdefending Scott. They have also performed commendably on appeal.filed a delayed direct appeal with the Ohio Supreme Court,which was refused.

The Ohio Supreme Court, on the Warden’s motion, set

October 25, 1995, as the date for Scott’s execution. OnSeptember 20, 1995, Scott filed a notice of intent to file ahabeas petition with the federal district court. The districtcourt granted an indefinite stay of execution while Scottpursued his federal habeas relief, and appointed Scott’scurrent counsel.

Scott’s petition presented twenty-one grounds for relief,

divided into three categories: (1) constitutional violationstainting the entire course of the state court proceedings(Grounds 1-6); (2) constitutional violations prejudicing Scottduring specific stages of the proceedings (Grounds 7-19); and(3) constitutional violations relating generally to the Ohiodeath-penalty scheme (Grounds 20-21). Scott requested leaveto conduct discovery and an evidentiary hearing, but bothwere denied for failure to show good cause. The court alsomade clear that because Scott filed his petition before theeffective date of the Anti-Terrorism and Effective DeathPenalty Act of 1996 (AEDPA), it would not apply thedemanding standards of review mandated by that statute.

The court heard lengthy oral arguments from both parties

and received post-hearing briefs on certain issues. OnSeptember 30, 1998, the court issued its opinion denyinghabeas relief on all grounds except one: Ground 18, whichchallenged the trial court’s penalty-phase jury instructionregarding unanimity of the sentencing recommendation.3Scott was granted a certificate of appealability to cross-appealthe denial of the remaining grounds, and both sides filedtimely notices of appeal.

Nos. 98-4272/4321 

9Scott cites an Eighth Circuit case f

harmless-error test does not apply if the Chapman harmless error test, but Gilliam 

substantial and injurious effect or and are subject to harmless-error 

Mitchell, 179 F.3d 990, 994-95 (6tv. Abrahamson, 507 U.S. 619, 638 

Also as with the challenge to the 

State claims that both of these clathey were not objected to contempono response. The district court reainstruction challenged here, relatiwithout discussing its potential whether this claim was defaulted, the merits. The court also correctlregarding the definition of reasonabbecause the Ohio Supreme Couropinion that discussed Scott’s case594 N.E.2d 604, 607 (Ohio 1992)

1. Instruction on Credibility of A

Tramble admitted being an a

information to the police, and Joneagainst Scott as accomplices. instructions on the particular unrelithat the testimony of drug addicts sgreat care” because of their constaabnormal fear of imprisonment. general instructions on the jury’s motivation and credibility, and intestimony must be corroborated “by evidence.”

The district court, relying on Un

F.2d 564, 570 (4th Cir. 1979), founaddict instruction because there wawas still addicted at the time of tri
44 Scott v. Mitchell Nos. 98-4272/4321

appropriate case could be . . . the result of a tactical, informeddecision by counsel, completely consonant with his duties torepresent the accused effectively”). Without effectiveresearch into the available mitigating testimony, of course, itwould be impossible for the lawyers to have made aninformed decision either way, even if residual doubt was aviable option in retrospect. If we were to hold Scott’s lawyersto be ineffective, then, it would have to be on the grounds oftheir failure to research mitigating evidence, not their failureto present it. Otherwise, there would be merit to the districtcourt’s concern in this case that to condone the lawyers’performance would be to create a post-hoc exception forfaulty lawyering. Regardless, the Constitution guaranteescompetent counsel and a fair trial, not perfection. In light ofthe finding of the state common pleas court’s evidentiaryhearing that the lawyers’ testimony is more credible than thatof Scott’s family, and that Scott’s criminal history would havebeen known to the attorneys even without further research, webelieve that the decision of Scott’s attorneys to pursue aresidual-doubt strategy in this case was not objectivelyunreasonable, because it was adequately (if not ideally)informed and was quite arguably the best course of actionavailable.

D. Cumulative Error From Two Allegedly Erroneous

Guilt-Phase Jury Instructions

As noted above, to warrant habeas relief, jury instructions

must not only have been erroneous, but also, taken as a whole,so infirm that they rendered the entire trial fundamentallyunfair. See Coe, 161 F.3d at 329. This burden is even greater

than that required to demonstrate plain error on direct appeal.See Frady, 456 U.S. at 166; Henderson, 431 U.S. at 154

(“The question in such a collateral proceeding is whether theailing instruction by itself so infected the entire trial that theresulting conviction violates due process, not merely whetherthe instruction by itself is undesirable, erroneous, or evenuniversally condemned” (citations and internal quotationsomitted)). Allegations of “trial error” raised in challenges tojury instructions are reviewed for whether they had a

Nos. 98-4272/4321 

Before this court, Scott defe

reasoning that the unanimity instrimpermissible effect of causing onthat unanimity was required not othe mitigating factors versus the agas to the existence of each mitigatinthe other hand, maintains that instruction is procedurally barred failure to lodge a contemporainstruction in the trial court, aninstruction had no such effect on factors. Scott’s cross-appeal furthepenalty-phase instructions, namelignore considerations of mercy in advising that its recommendation binding on the court, were unconprejudiced by comments made by venire regarding media coverage Scott’s involvement in it; (3) Sineffective in the penalty phase fpresent witnesses in mitigation residual doubt strategy; (4) the allegedly erroneous jury instructprocess rights; and (5) Ohunconstitutional on its face and variety of reasons. We will addreturn.

II.

ANALY

When reviewing a district court

for a writ of habeas corpus filed bdate, we presume primary, or histthe state courts to be correct, rebconvincing evidence under one of in the pre-AEDPA version of 28 UByrd v. Collins, No. 96-3209, slip 2000) (citing McQueen v. ScroggyCir. 1996)). We review de novo matters of law or mixed questions o
10 Scott v. Mitchell Nos. 98-4272/4321

4The Maupin test is essentially a group of enumerated factors that is

identical to the approach subsequently endorsed by Coleman: that the

cause and prejudice/actual innocence test is to be applied in all federalhabeas cases where the state court decision is based on an independentand adequate state ground. See Coleman, 501 U.S. at 750. Although we

have remained faithful to the analysis endorsed by Maupin, our more

recent decisions have not always employed a “Maupin test” per se. See,

e.g., Byrd, No. 96-3209, slip. op. at 53-54 (articulating the factors from

Maupin and related cases differently but analogously); Jones v. Toombs,

125 F.3d 945, 946 (6th Cir. 1997) (applying the Coleman formulationwithout mentioning Maupin, although reaching the same result). In thiscase, however, we find it useful to follow Maupin’s enumerated factors.

v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999). We afford“complete deference to evidence-supported state courtfindings of fact. [...] But the more substantive standard bywhich our de novo review is conducted is the determinationwhether the trial errors asserted by the petitioner resulted ina trial so devoid of fairness as to have amounted to a denial ofthe due process guaranteed by the fourteenth amendment.”Lundy v. Campbell, 888 F.2d 467, 469 (6th Cir. 1989) (citingSumner v. Mata, 455 U.S. 591 (1982) (per curiam)).

A. The Trial Court’s Penalty-Phase Jury Instructions

Because the state claimed that nearly half of Scott’s claims,

including his challenges to the penalty-phase jury instructions,had been procedurally defaulted, the district court began itslegal analysis with a discussion of the law of proceduraldefault, including a discussion of Wainwright v. Sykes, 433

U.S. 72 (1977), Coleman v. Thompson, 501 U.S. 722 (1991),

and Maupin v. Smith, 785 F.2d 135 (6th Cir.1986), this

circuit’s seminal case applying the law of procedural defaultin federal habeas cases in which the state argues that anhabeas claim is barred by the petitioner’s failure to observe astate procedural rule. Maupin laid out a 4-part test that, as thedistrict court correctly noted, we have consistently applied4

since its issuance:

When a state argues that a habeas claim is precluded bythe petitioner’s failure to observe a state procedural rule,

Nos. 98-4272/4321 It was their responsibility to preScott’s family’s or even Scott’s. 1204, 1207-08 (6th Cir. 1995), we be objectively unreasonable when verdict to prepare for the sentencinany family members or friends, anall into mitigation except to pvideotape. We followed Glenn in 843, 848-49 (6th Cir. 1997), to find he failed to investigate or presendespite the availability and willinand friends. We characterized counnot a “strategic decision, but advocacy.” Id. at 849; see also Byr

63 (following Austin and Glenn))

F.3d 1409, 1424 (en banc) (Merrittattorneys’ near-complete failure mitigating evidence, because each was preparing it, to go beyond incompetence). In Mapes, we remeffectiveness of appellate counsel, raise the fact that the sentencing phresearch into mitigating factors.

Scott’s penalty-phase attorneys 

well-advised to conduct more reseathan they did. Unlike in Austin and lawyers had a credible reason for a desire to keep Scott’s extensive jury. See also Byrd, No. 96-3209The state trial and appeals courts fScott’s best interest, given his cthroughout trial and sentencing acriminal past. Moreover, both thSupreme Courts have endorsed a rewarranted by the circumstances. 476 U.S. 162, 181 (1986) (recognextremely effective argument for d(citation omitted)); State v. Johnso(Ohio 1986) (“omission of [mi
42 Scott v. Mitchell Nos. 98-4272/4321

could not come close to rebutting with clear and convincingevidence. Moreover, while acknowledging the questionableamount of research done by counsel, the court decided thatthe second Strickland prong could not be met because Scottcould not show a “reasonable probability” that the sentencewould have been different otherwise. Strickland, 466 U.S. at694. The court ended its discussion, however, with afootnote, noting that this too was a close call since one jurormight always have been persuaded, and that the question wasultimately mooted by the court’s grant of the writ on anotherground.

The district court was correct to focus on the second

Strickland prong. It is clear that, in its words, the “mitigatingcircumstances Scott wishes his counsel had presented . . . arelargely, even overwhelmingly, negated by evidence that hisbackground includes commission of robbery, assault,kidnaping, and other violent acts upon innocent citizens,” andthat prosecutors would have elicited such information fromany family members who testified for Scott. The mitigatingevidence would have revealed Scott’s personal loyalty to hissiblings, girlfriend, and children, and an exceedingly violentenvironment throughout his upbringing. As the district courtsaid, it is impossible to say for certain that one juror wouldnot have been swayed by this evidence, but certainty is notrequired here; we must ask only whether Scott has met hisburden of demonstrating a reasonable probability that thiswould happen. None of the proffered mitigating evidencereduces Scott’s culpability for the Prince murder or the stringof violence that preceded it. Scott can only offer ahypothetical juror, not a reasonable probability, and hencecannot show prejudice.

As to the first Strickland prong, were we to reach it, it is not

clear that the lawyers’ performances fell below the objectivestandard. The state court fact findings that we are bound byindicate that neither Scott nor any proposed witness made anyattempt to assist the attorneys in finding mitigating evidence,and that this made the job more difficult. This difficulty, ofcourse, does not excuse a lack of attempt on the lawyers’ part.

Nos. 98-4272/4321 

the federal court must go through First, the court must determinprocedural rule that is applicable and that the petitioner failed to coSecond, the court must decide wactually enforced the state proThird, the court must decide wheforfeiture is an “adequate and inon which the state can rely to federal constitutional claim. [...] will involve an examination interests behind the procedural rinterest in considering federal petitioner must demonstrate und“cause” for him to not follow the he was actually prejudiced by therror.

Id. at 138 (citations omitted). For pdefault analysis, the district court gground for relief—the claim thainstruction on unanimity is unchallenges to two other penalty-phthe jury’s recommendation of deatrial court (Ground 14) and that emotions of mercy or sympathy (contemporaneous objection to anhad been raised. The district court these three arguments for the first tOhio Court of Appeals noted thstandard of review, but went on to claims. See Scott, 1985 WL 9047 Court more explicitly relied on thnonetheless allowed for the possibplain error. The Ohio Supreme Creview of the record for plain errshorter review as to Ground 16instruction claim, however, the Ohithis:
12 Scott v. Mitchell Nos. 98-4272/4321

Appellant next argues that the requirement of

unanimity in recommending a life sentence denies acapital defendant his right to a fair trial and freedom fromcruel and unusual punishment.

Again, appellant neglected to object to the trial court’s

instruction in this regard and has accordingly waived anyobjections with regard to this alleged error. State v.

Fanning, supra. More importantly, in State v. Jenkins,[...], this court ruled that a jury’s recommendation of alife sentence under R.C. 2929.03(D)(2) must beunanimous.

State v. Scott, 497 N.E.2d 55, 69 (Ohio 1986).

The district court concluded that none of these three claims

had been procedurally defaulted. The court first noted that inexamining Scott’s fourteenth and sixteenth grounds and“arguably in examining Scott’s eighteenth ground, as well,”the Ohio Supreme Court had not simply relied on Ohio’scontemporaneous-objection rule, but had conducted a plainerror analysis; hence, the Ohio Supreme Court “did notwholly overlook Scott’s procedural default.” Relying on anunpublished decision of this circuit, Knuckles v. Rogers, No.

92-3208, 1993 WL 11874 (6th Cir. Jan 21, 1993) (percuriam), the district court further concluded that in any event,Ohio’s contemporaneous-objection rule is not an adequateand independent state ground on which the state could rely toforeclose review of these claims because that rule is notindependent of federal law.

1. The Trial Court’s Penalty-Phase Instruction on Jury

Unanimity

With regard to Scott’s challenge to the penalty-phase

unanimity instruction—the only ground on which the districtcourt granted the writ—we hold that the district court erred.It is undisputed here that the first Maupin prong has been

established; Scott does not question the applicability ofOhio’s contemporaneous-objection rule and he does not claimto have made such an objection. Scott does not address inthis appeal the fourth Maupin prong, the cause and prejudice

Nos. 98-4272/4321 

8Scott had the right under Ohio law 

unsworn statement to the jury, and he chopportunity to continue to deny his guilt (I wanted to reflect to you. Insult when yotold the jury that he was not going to tshould show him mercy since he was nneeded to know (“I don’t have to sit here I mean, I don’t want no mercy . . . I don’[sic] mouths, and I’m telling you, it is mdidn’t care that you found me guilty, bucouldn’t because the truth has got to risescare me when they say you are going to 

The district court found all but o

for ineffectiveness of his trial counit to be procedurally barred, and Sdefaulted allegations on appeal. This that Scott’s sentencing-phase because they failed to research pand also failed to interview Scott’who often attended the trial. Scottany mitigating evidence other thstatement to the jury.8 They pu

strategy, in which the defendant appdoubt regarding the conviction in afrom imposing the death penalty. post-conviction evidentiary heardetermined that: (1) trial counsereliable than that of the family memof Scott and his family was respfailure to identify and obtain mitfamily members; (3) the family meoffer assistance until after Scott’Scott chosen to have a pre-sentprepared or had the family membehave learned of Scott’s extensive calso made two other mixed findinthat the family’s testimony was unthat Scott’s lawyers acted in his court appropriately acknowledghearing’s findings on the primary, h
40 Scott v. Mitchell Nos. 98-4272/4321

unless there is an “overwhelming probability” that they wereignored. Richardson v. Marsh, 481 U.S. 200, 208 (1987).

Scott’s scenario of jury bias is not nearly tenable enough to

overcome these presumptions. Scott and Justice Marshallcited Quercia v. United States, 289 U.S. 466 (1933), for the

proposition that the judge’s comments warped the jury’sperception beyond all hope of repair. The extremity of thatcase’s facts, however, provide a perfect foil to demonstratethe mildness of the instant case. In Quercia, the trial judge

instructed the jury that he believed every word the defendantsaid to be a lie because the defendant had wiped his handswhile on the stand. See id. at 468-69. Here, we have onlyScott’s inference that the court’s facially innocuous statementmay have been understood as a “frank, unguarded admission”of the judge’s opinion, which would then have a prejudicialeffect on a juror’s verdict. All we know for certain is that thecourt communicated the existence of pretrial publicity, whichPatton held not to be an indelible influence on a juror’s mind.See also United States v. Peters, 754 F.2d 753, 762-63 (7thCir. 1985) (recounting several studies demonstrating capitaljurors’ ability to put media reports out of their minds and voteexclusively on the evidence). This alone does not destroyfundamental fairness.

C. Ineffective Assistance of Trial Counsel During the

Penalty Phase

We apply to this claim the same de novo standard listed

above. For Scott’s counsel to have deprived him of his SixthAmendment right to effective assistance, the counsel’sperformance must have “so undermined the properfunctioning of the adversarial process that the trial cannot berelied on as having produced a just result.” Strickland v.

Washington, 466 U.S. 668, 686 (1984). It is Scott’s burdento show his attorneys’ performance fell below an objectivestandard of reasonableness and that Scott was therebyprejudiced. See id. at 687-88. Counsel’s performance is

strongly presumed to be effective. See id. at 690; Kimmelman

v. Morrison, 477 U.S. 365, 381 (1986).

Nos. 98-4272/4321 test, although the district court did Scott focuses on the second and thithat the Ohio courts did not acontemporaneous-objection rule anadequate nor an independent state 

(a). The Second Maupin Prong 

The determination of whether a 

based on a state procedural rule ireview de novo. See Couch v. Jabe1991) (per curiam). Scott argued conducting a plain-error review, thexcused the procedural default and state procedural sanction. The disagree: “It is questionable whether truly overlooked Scott’s procedural merits of Scott’s three grounds re[...] A plain error analysis is not tthe merits, so the Ohio Supremoverlook Scott’s procedural defau

On appeal, Scott cites the Sup

Harris v. Reed, 489 U.S. 255, 257 courts are to apply the “plain stateLong to determine whether a state on a state law ground, and that anthe holding was based on or interequires the application of the Lofind that the Ohio Supreme Court djury unanimity instruction on its meprocedural bar, citing as evidence sentence disposition of this claimbegan the last sentence with the w

Scott’s argument is meritless. 

Harris, as we explain below in refactor, is whether the state court dstate procedural ground that is both from federal law; Harris does not state procedural rule was actually 
14 Scott v. Mitchell Nos. 98-4272/4321

court decision also relies on an alternative ground. Scott’sonly arguable basis for asserting that the Ohio Supreme Courtdid not enforce the contemporaneous-objection rule is its“More importantly” sentence. The district court viewed thissentence as only “arguably”amounting to a plain error review,and did not accept Scott’s argument that this was the primaryholding. We conclude that the Ohio Supreme Court’sadversion to Ohio’s substantive law regarding jury unanimitywith regard to the recommendation of a life sentence was noteven arguably a plain error review, but was simply asupplement to its holding that Scott had waived any objectionto the jury instruction by failing to object at the time theinstruction was given.

(b). The Third Maupin Prong – Adequate and

Independent State Ground

Scott claims not only that the Ohio Supreme Court did not

enforce the contemporaneous-objection rule and hold hischallenge to the unanimity instruction barred; he claims thatbecause the contemporaneous-objection rule does notpreclude the state appellate courts from performing a plainerror review, the rule itself is dependent on federal law and istherefore not an “independent and adequate state ground”under Maupin. Here the district court agreed. For support, itturned to our unpublished decision in Knuckles v. Rogers, No.

92-3208, 1993 WL 11874, at **2-3 (6th Cir. Jan. 21, 1993)(per curiam):

[I]t is clear that Ohio has a contemporaneous objection

rule, and that the Ohio courts treat the failure to object toa claimed error as a procedural default. Ohio R. Crim. P.52; State v. Williams, 304 N.E.2d 1364 (Ohio 1977).Since Knuckles failed to object contemporaneously to theallegedly improper remarks, he violated Ohio'scontemporaneous objection rule and committed aprocedural default. However, the procedural default didnot foreclose all consideration by the Ohio appellatecourt; the Ohio court examined the record to determineif the allegedly improper remarks were "plain error."

Nos. 98-4272/4321 in response to evidence presented have said 

It is the duty of the trial judge to with the goal of eliciting the trubetween the parties. In charging is not limited to instructions owithin his province, whenever hassist the jury in arriving at explaining and commenting udrawing their attention to the paimportant; and he may expresfacts, provided he makes it clmatters of fact are submitted to tdistrict judge may not assume thor she may, however, analyze aas long as the district judge doeWhen commenting on the evidetake great care to avoid undue p

United States v. Blakeney, 942 F1991) (citations, quotations and altthe judge did not exceed his authorthe existence of the article and dibasis to judge juror impartiality.

Allegations of jury bias must b

when the challenged influence occutheir oath to be impartial. Holding not bias a juror in Patton v. You

(1984), the Court said that the parta question of historical fact: did a juaside any opinion he might hold aevidence, and should the juror's phave been believed.” Accordinglya determination by a state court waof correctness on habeas review uThis is especially so in light of the the court gave, which we must pres
38 Scott v. Mitchell Nos. 98-4272/4321

B. The Trial Judge’s Comments to the Jury Venire

We examine this claim de novo, with deference to facts

found in state court, for denial of fundamental fairness. It isnot procedurally barred.

Scott challenges a remark made by the trial judge which he

claims communicated to the jury the court’s belief that Scottparticipated in the crime. During voir dire, the judgeexplained to the jury that the court knew there was notorietysurrounding the case because he had seen a newspaper articleon it. The judge mentioned some details of the crime, thencontinued, “Not only was Mr. Scott – at least from thenewspaper reports that I think I had read – was involved inthis, there were three other--. . . .” At that point, the defenseobjected, and received a sidebar. The Court gave a curativeinstruction explaining the court’s lack of knowledge on thecase beyond the article. Scott moved for a mistrial, which theprosecution reluctantly joined. Denying the motion, the Courtgave another instruction reiterating its neutrality and thejury’s duty to decide based solely on the evidence.

Dissenting from Scott’s denial of certiorari, Justices

Marshall and Brennan lambasted the Ohio courts forupholding such an “extraordinary error” that “overwhelmedthe presumption of innocence.” Scott v. Ohio, 480 U.S. at

925. They also pointed out that empaneling another jurywould have been easy at the voir dire stage. For this reasonand because the prosecutor joined the mistrial motion, thedistrict court found this issue a “close call.” Nonetheless, thecourt found no fundamental unfairness. It viewed thecomments as reporting to the jury the media’s conclusion, andthe fact that even the judge had seen the coverage, in anattempt to determine the jury’s ability to be impartial. Itconcluded by noting that the verdict would likely have beenupheld under Supreme Court precedent even if the jurythemselves had read the article.

We find no error in the district court’s conclusion. The

threat of prejudicial comments from the court usually arises

Nos. 98-4272/4321 

The basic inquiry in the plain 

whether the defendant has beeWhether a person is denied a fairesolved by applying principles law. Therefore, we conclude court's decision was not indepen

(footnote omitted). The district couthe reasoning in Knuckles, this Ohio’s application of its contempthis case was not independent of fedthat follow, we hold that the distrthat the Ohio Supreme Court’s dinot rest on an adequate and indepe

In the recent published opinion in 

(6th Cir. 1998), this circuit addresfederal habeas court is required to finding of procedural bar because an alternative holding. We explainto the state court’s statements in H“well-settled” principle of law thabeen raised on direct appeal but waived, and that petitioner’s claim [his] direct appeal,” id. at 330 (qu

258 (alteration in original)), the 

things one step further, . . . and expCoe had no cognizable claim. sufficiently clear and express stateIt is Coe that governs our analysis 

Knuckles, on the other hand, is an 

therefore is not binding upon subsSee 6 Cir. R. 206 (1998). And, in 

did not hold that Ohio’s contempothe Ohio court’s application of thaof federal law; rather, we held tcourt’s decision that there was independent of federal law.
16 Scott v. Mitchell Nos. 98-4272/4321

5The court alleviated this concern by finding that the Warden also

failed the fourth Maupin prong, the cause and prejudice test. That

conclusion was also erroneous, as we will address below.

Here, the district court itself acknowledged that its

“adequate and independent state ground” analysis was “moretenuous” with regard to the unanimity instruction than theother two claims, because “the Ohio Supreme Court did notclearly apply a plain error analysis to Scott’s eighteenthground . . .”5 As we have indicated, however, the concluding

sentence in the relevant Ohio Supreme Court passage simplydid not amount to any type of review, much less onedependent on or intertwined with federal law.

More importantly—and we use that term advisedly—Harris

specifically instructed state courts that they

need not fear reaching the merits of a federal claim in analternative holding. By its very definition, the adequateand independent state ground doctrine requires thefederal court to honor a state holding that is a sufficientbasis for the state court's judgment, even when the statecourt also relies on federal law. Thus, by applying thisdoctrine to habeas cases, Sykes curtails reconsideration of

the federal issue on federal habeas as long as the statecourt explicitly invokes a state procedural bar rule as aseparate basis for decision. In this way, a state court mayreach a federal question without sacrificing its interestsin finality, federalism, and comity.

Harris, 489 U.S. at 264 n. 10 (citations omitted). Further, theSupreme Court instructed in Coleman that “[a] predicate to

the application of the Harris presumption is that the decision

of the last state court to which the petitioner presented hisfederal claims must fairly appear to rest primarily on federallaw or to be interwoven with federal law.” Coleman, 501

U.S. at 735. As Coleman makes very clear, to apply Harrisany more broadly would eviscerate the very foundations ofthe adequate and independent state ground doctrine, which are

Nos. 98-4272/4321 

duty, your efforts must be to aConsider all the evidence and mintelligence and impartiality, wiprejudice, so that the State of Ohfeel that their case was fairly an

We rejected a challenge to the subsMapes as well:

Third, an instruction to a death-sdisregard the statutory criteria sentence may be constitutionallof the probability that such an inarbitrary and unpredictable res

Brown, 479 U.S. 538, 541, 107 934 (1987). According to the Cobe given unbridled discretion in those charged with capital off

instruction that the jury should sentiment, conjecture, sympathpublic opinion or public feunobjectionable in Brown, it "ser

of confining the jury's impositioby cautioning it against relextraneous emotional factors." I

837. Thus, there is no merit claimed entitlement to a "mercifuin light of the likely tendency olead to arbitrary differences in sentenced to death.

171 F.3d at 415-16 (emphasis omittThe district court also correctly re

that the instruction followed that dall emotional responses, both in fThere was no error as to this instru
36 Scott v. Mitchell Nos. 98-4272/4321

1982), any error was waived. As was the case in Coe, thestate court’s statement could have been clearer and moreexpress, but the test is not whether the state court could havesaid it better. It is enough that the court specifically held thatthe claims were waived; the court’s alternative holding thatthere was no plain error “does not require us to disregard thestate court’s finding of procedural bar.” Coe, 161 F.3d at 330.

We further conclude, however, that the district court

correctly determined that neither of these claims had merit.The trial judge instructed the jury that its recommendation ofdeath would be “just that – a recommendation,” while arecommendation of life imprisonment “is binding upon theCourt, and I, the Judge, must impose the specific life sentencewhich you recommend.” Scott claims that this violates theprinciple established in Caldwell v. Mississippi, 472 U.S. 320

(1985), that courts must not mislead the jury into believing ithas less responsibility than it actually does for choosing thedeath sentence.

We recently rejected this precise claim in Mapes v. Coyle,

171 F.3d 408, 414-15 (6th Cir. 1999). Moreover, as thedistrict court correctly held, Caldwell is limited to situations

in which the jury is misled as to its role “in a way that allows[it] to feel less responsible than it should for the sentencingdecision. Thus, to establish a Caldwell violation, a defendantnecessarily must show that the remarks to the jury improperlydescribed the role assigned to the jury by local law.” Romano

v. Oklahoma, 512 U.S. 1, 9 (1994) (citations and alterationsomitted); see also Dugger, 489 U.S. at 407; Kordenbrock,

919 F.2d at 1101. As Mapes points out, this instruction

accurately describes Ohio law. There is no error with regardto this instruction.

The trial court also instructed the jury:

You must not be influenced by any consideration of

sympathy or prejudice. It is your duty to carefully weighthe evidence to decide all disputed questions of fact, toapply the instructions of the Court to your findings, andto render your verdict accordingly. In fulfilling your

Nos. 98-4272/4321 federalism, finality and comity. S749.

The state court decision in the 

more obviously on adequate and ingrounds than did the state court d

There, the Virginia Supreme Court that requested summary dismissal grounds, although the court’s usconsideration whereof [referring suggested that the court may have cfilings as well. Coleman, 501 UCourt refused to read this ambiguity explicit grant of a dismissal mprocedural grounds. Those grofederal law.” Id. at 744.

Nothing in the Ohio Supreme C

to the unanimity instruction suggefederal law. That court explicitly the error by failing to object at trialinterpreted a state statute to require is no mention of a plain-error anathat federal law played a role in dthe Ohio Supreme Court’s concluthe unanimity instruction, even if it to federal law, was in addition explicit holding on state procedura

Finally, in Engle v. Isaac, 456 U

Supreme Court specifically found failure to object contemporaneouRule 30 is an adequate and indepfederal habeas review absent a prejudice. In so holding, the CScott’s argument:

Relying upon State v. Long, [...the Ohio Supreme Court has recoOhio's plain-error rule, to excuse however, does not persuade u
18 Scott v. Mitchell Nos. 98-4272/4321

would have excused respondents' defaults. First, theLong court stressed that the plain-error rule applies onlyin "exceptional circumstances," such as where, "but forthe error, the outcome of the trial clearly would havebeen otherwise." [...] Second, the Long decision itself

refused to invoke the plain-error rule for a defendant whopresented a constitutional claim identical to the onepressed by respondents.

See id. at 125 n. 27. In Coleman, the Court also very strongly

implied its continued disapproval of the rule the district courthere ascribes to Knuckles. As a preamble to its discussion of

independent state grounds, the Court acknowledged that it hadpreviously held that Oklahoma’s review for “fundamentaltrial error” before applying state procedural defaults “was notindependent of federal law so as to bar direct review becausethe State had made application of the procedural bar dependon an antecedent ruling on federal law.” Coleman, 501 U.S.at 741 (citing Ake v. Oklahoma, 470 U.S. 68 (1985))(quotations and alterations omitted). The Coleman Court thendistinguished that holding by observing simply that “Ake wasa direct review case. We have never applied its rule regardingindependent state grounds in federal habeas. But even if Akeapplies here, it does Coleman no good because the VirginiaSupreme Court relied on an independent state proceduralrule.” Id. The Supreme Court, then, does not find the mere

reservation of discretion to review for plain error inexceptional circumstances sufficient to constitute anapplication of federal law. Neither Scott nor Knuckles points

to any change in Ohio law that could distinguish Engle orColeman from the present case, and as in Ohio’s Long casethat Engle cites, the Ohio Court here did not invoke its plainerror review for this claim.

We issued a similar ruling in Paprocki v. Foltz, 869 F.2d

281, 284-85 (6th Cir. 1989). There we enforced a default forfailure to object contemporaneously in a Michigan court,although the state courts reserved the right to excuse thedefault for “manifest injustice.” We noted that

Nos. 98-4272/4321 on that jury, id. at 1040, its reinstruction that “a solitary juror mrecommendation” was prospective that all instructions requiring unanilife or death in previously decided were unconstitutional. See id. at the Brooks opinion to cast doub

Court’s previous approval of Scomatter, Mapes’s). As we have exp

which well preceded Mapes, explinstructions like those in this case 

Mapes dicta cannot preclude us fr

case.

We further note that the district 

in finding error in the trial court’s fits unanimity instruction as to the cThe Supreme Court has chastiencouraging deadlock and ugovernmental interest in unanimoUnited States, 119 S.Ct. 2090, 2099same in Coe, 161 F.3d at 339-40.

2. The Trial Court’s Penalty

Regarding Considerations of 

Recommendation 

As with the challenge to the unan

claims that Scott’s challenges to tare defaulted because Scott maobjection. The district court held been procedurally defaulted becaushad performed a plain-error reviedistrict court determined, howevwithout merit.

We think that the district court 

claims were not procedurally defathe Ohio Supreme Court explicitly to raise any contemporaneous precedent of State v. Fanning, 43
34 Scott v. Mitchell Nos. 98-4272/4321

mitigating factors.” This instruction pertains only to theweighing process, and not to the existence of individualmitigating or aggravating factors. Indeed, the instructionreferences these factors in the past tense, which suggests thatthe jurors were to have formed their opinions on the factors’existence before attempting to reach unanimity on their netweight. As in Coe, “[n]othing in this language couldreasonably be taken to require unanimity as to the presence ofa mitigating factor.” 161 F.3d at 338. Whether or not thedistrict court was correct that the instruction violated Ohiolaw by not conforming with the Ohio Supreme Court’ssubsequent decision in Brooks (which we find doubtful, giventhat court’s approval of Scott’s sentence), it does not violateScott’s federal constitutional rights under Mills and thereforecannot justify habeas relief.

Our conclusion is not altered by the portion of the opinion

in Mapes v. Coyle, 171 F.3d 408 (6th Cir. 1999), whichsuggests that such unanimity instructions are erroneous. Inthat Ohio capital case, we reviewed a similar challenge to avirtually identical unanimity instruction. See Mapes, 171

F.3d at 416 (“[Y]ou must unanimously find that the State hasfailed to prove beyond a reasonable doubt that the aggravatingcircumstances of which the defendant was found guilty ofcommitting outweigh the mitigating factors.”). We stated indicta that this instruction was erroneous because Brooks hadfound such instructions to violate the Eighth and FourteenthAmendments, but we declined to issue a writ on this groundbecause the petitioner had procedurally defaulted that claim.See id. at 416-17, 419. The only reliance on federalconstitutional law in Brooks, however, is its citation to Millsin explaining why it would thenceforth require that Ohiojurors be explicitly instructed that “a solitary juror mayprevent a death penalty recommendation by finding that theaggravating circumstances in the case do not outweigh themitigating factors.” Brooks, 661 N.E.2d at 1042. Although

the Brooks case was remanded for resentencing because the

Ohio Supreme Court could not be sure of the effect that theinstruction to “determine unanimously that the death penaltyis inappropriate before you can consider a life sentence” had

Nos. 98-4272/4321 

[w]e would be loath to adopt an and prejudice" rule that would dicourts from undertaking the sort the Michigan court, and we do ncourt's explanation of why the juin no manifest injustice can constituted a waiver of the proc

Id. at 285. Although this statementowards the determination of whethenforced the bar (Maupin’s secoindependence from federal law, applicable to this discussion.

All in all, we think it is clear that 

decision of this court, cannot provsupport a finding that the Ohio Supan independent state procedural Scott’s challenge to the trial court’on jury unanimity.

In addition to his claim that O

objection rule is not independent argues that it is not “adequate” beenforced. The Supreme Court hastate rule must be firmly establisheorder to be adequate. See Ford v423-24 (1991); Byrd v. Collins, N(6th Cir. Apr. 6, 2000) (following the Ohio Supreme Court has retainto waive the rule and has been “reapplying it. He points to cases potential defaults and dismissed oZuern, 512 N.E.2d 585, 592 (defendant raised his nine constitstate’s death penalty statute by a gethan by a specific motion. The Ohialthough this technically constitute“because of the nature of the casnecessary where the death penalty 
20 Scott v. Mitchell Nos. 98-4272/4321

the right to consider the constitutional challenges in particularcases.” Id. This somewhat relaxed approach to reviewing a

claim that was raised, but in an incorrect manner, is a separatematter entirely from Scott’s complete failure to objectcontemporaneously. In State v. Hamblin, 524 N.E.2d 476,

479 (Ohio 1988), the capital defendant raised in the appellatecourt two grounds for ineffective assistance of counsel, andadded three new grounds in the Supreme Court. Although thenew grounds were technically waived, the court said that“[b]ecause this is a capital case, we will review all fivearguments relating to the claim of ineffective assistance ofcounsel.” Id. As was the case in Zuern, Hamblin did notinvolve a completely forfeited issue. In State v. Williams, 528N.E.2d 910, 914 (Ohio 1988), the Court observed that“[b]ecause of the gravity of the sentence that has beenimposed on appellant, we have reviewed the record with carefor any errors that may not have been brought to our attention.In addition, we have considered any pertinent legal argumentswhich were not briefed or argued by the parties.” Despite thisobservation, the court affirmed the sentence and did notdiscuss any specific error that the parties had not raised.None of these cases involved the contemporaneous-objectionrule. Finally, in State v. Coleman, 544 N.E.2d 622, 627 (Ohio

1989), the court did apparently waive the default resultingfrom the defendant’s failure to object contemporaneously toa jury instruction: “However, since this is a capital case wehave reviewed the jury instructions and find not only thatthere was a correct statement of the law but also that the trialcourt additionally instructed the jury it could not convict thedefendant of aggravated murder unless it found [specificintent to kill].”

These cases do indicate that the Ohio Supreme Court

employs an abundance of caution in capital cases, and, onoccasion, has relaxed its enforcement of default. They do not,however, indicate that Ohio reserves so much leeway incapital cases that we are justified here in ignoring itssovereign decision founded upon its own procedural rule. Incases where state procedural grounds have not been enforcedby federal courts because they were not firmly established and

Nos. 98-4272/4321 

or more mitigating circumstanbe life imprisonment.

For both the death verdict and verdict, the jury was told thaunanimous.

Id. at 337 (alterations in original). court in Coe found this instruction inter alia, Mills, “because there wathat the jurors believed that they mitigating circumstances that they present.” Id. Coe upheld the insunanimity only as to the results of far different matter than requirpresence of a mitigating factor . clearly and correctly that in ordeverdict, each juror must conclude outweigh the aggravators.” Id. at 3In this regard, Coe specifically disfrom those at issue in Mills, 486 verdict form that read “Based unanimously find that each of circumstances which is marked 'yeby a preponderance of the evidecircumstance marked 'no' has preponderance of the evidence” Kubat, 867 F.2d at 369 (“If . . . ythat there is a sufficiently mitigpreclude imposition of the death severdict form which so indicates.”)required unanimity in the finding 

Similarly, Scott’s jury was instr

if it unanimously found “that the awhich Jay Scott was found guilty omitigating factors,” and to choose aif it was unanimous in finding “thto prove that the aggravating defendant . . . was found guilty of 
32 Scott v. Mitchell Nos. 98-4272/4321

condemned by Mills v. Maryland, 486 U.S. 367 (1988). Thedistrict court saw the fact that a minority of this Court hadfollowed Kubat, and the majority had merely distinguished itfactually, in Kordenbrock v. Scroggy, 919 F.2d 1091 (6th Cir.1990) (en banc), as evidence that we would follow Kubathere. Therefore, the court found a substantial possibility thatthe “faulty jury instruction which created this mis-impressionviolated Scott's Fourteenth Amendment right to be free fromdeprivation of life without due process of law.”

We think that the court’s likening of the instruction given

here to those at issue in Mills and Kubat was incorrect. Thoseinstructions required the jury to be unanimous in its findingof each mitigating factor, whereas this instruction plainlyapplies only to the overall weighing of mitigating andaggravating factors. In this regard, Scott’s argument isindistinguishable from the one we recently rejected in Coe v.Bell, 161 F.3d 320, 336-39 (6th Cir. 1998). In that case, 

The jury was then given the form its verdict should take: (1) We, the Jury, unanimously find the following listedstatutory aggravating circumstance or circumstances;. . . . . (2) We, the Jury, unanimously find that there are nomitigating circumstances sufficiently substantial tooutweigh the [aggravating circumstances] so listedabove. (3) Therefore, we, the Jury, unanimously find that thepunishment shall be death.The alternate result was then provided for and explained:

If you unanimously determine that no statutoryaggravating circumstance has been proved by theState beyond a reasonable doubt; or if the Juryunanimously determine that [aggravatingcircumstances] have been proved by the Statebeyond a reasonable doubt; but that said[aggravating circumstances] are outweighed by one

Nos. 98-4272/4321 regularly applied, the facts have than these isolated examples of d

498 U.S. at 423-24 (finding state Batson challenges to racial makeup close to being “firmly established because it was a novel rule applied of Columbia, 378 U.S. 146, 149 (19explanation that petition was worraised an issue because that court identically worded appeal); Warne

1207, 1213-14 (6th Cir. 1992) Court’s reliance on failure to raise direct appeal as reason for default requirement at the time). Rather, tin which some minor inconsistencbeen noted but held not to be sevefederalism, finality and comity intthe bar. See, e.g., Coleman, 50concurring) (“Petitioner argues thafact waive the rule on occasion, buthat there is a practice of waiving thissues are at stake, even fundamentoo scanty to permit a conclusion tadequate and independent state gr489 U.S. 401, 410 n. 6 (1989) (“rthe Florida Supreme Court has fairule consistently and regularly bemerits in several cases raisinpostconviction review. In the however, the [court] has faithfully not raised on direct appeal cannot breview”); Byrd, No. 96-3209, slip Dugger in holding that four exampOhio courts are not enough to ovecases enforcing the default); Coe, [cases that are not adverse or toisolated and unpublished, and so aran otherwise ‘strict and regular’ pr771 F.2d 962, 966 (6th Cir. 1985) our prior determination whethe
22 Scott v. Mitchell Nos. 98-4272/4321

contemporaneous objection rule with respect to Sandstromviolations, and, in any event, we held that a federal habeaspetitioner must meet the Sykes test if the Michigan courts in

fact applied such a rule”).

Application of the adequate and independent state ground

doctrine in this case also requires an assessment of thespecific state interest served by enforcing thecontemporaneous-objection rule. See Wesselman v. Seabold,

834 F.2d 99, 101 (6th Cir. 1987) (noting that resolution of thisprong “turns on the substantiality of the state interestinvolved”); Maupin, 785 F.2d at 138 (same). Thisconsideration reinforces the need to enforce the proceduraldefault here, because the contemporaneous-objection rule hasbeen lauded as few other procedural requirements have been.Not only did the Court expressly endorse Ohio’s Rule 30 inEngle, but the sweeping language of cases such as United

States v. Frady, 456 U.S. 152 (1982) (raising the issue underthe Federal Rules), suggests that the Court places highimportance on the contemporaneous-objection rule regardlessof jurisdiction:

Orderly procedure requires that the respectiveadversaries’ views as to how the jury should beinstructed be presented to the trial judge in time to enablehim to deliver an accurate charge and to minimize therisk of committing reversible error. It is the rare case inwhich an improper instruction will justify reversal of acriminal conviction when no objection has been made inthe trial court.

Id. at 165-66 (quoting Henderson v. Kibbe, 431 U.S. 145, 154(1977)). Perhaps nowhere, however, has this conviction beenstated more strongly than in Sykes:

The contemporaneous-objection rule itself is by no

means peculiar to Florida, and deserves greater respectthan Fay gives it, both for the fact that it is employed bya coordinate jurisdiction within the federal system andfor the many interests which it serves in its own right. Acontemporaneous objection enables the record to be

Nos. 98-4272/4321 

open court.” Id. This rule was availabwithout this rule, moreover, the Jenkins ambiguity in the unanimity instruc“well-recognized [rule] that when statuproceeding to influence punishment, such imprisonment in place of death, and the staa nonunanimous vote, the jury cannot secuunanimity.” Id.State v. Springer, 586 N.E.2d 96, 9the court held that when the deadlocked as to sentence, the coulife sentence. In State v. Brooks1996), the court reviewed a sentejury must unanimously agree thinappropriate before recommendinfound this contrary to § 2929.03(DBrooks purported to “harmonize” holdings by requiring an instructiothat a solitary juror could prevent tpenalty. See id. at 1041-42. T“notable” that Springer and Brooks sentence was imposed, but decide

clarified, not altered, Ohio law on the trial court’s instruction requiriinconsistent with Ohio law.

Since “the fact that the instructi

under state law is not a basis for haMcGuire, 502 U.S. 62, 71-72 (199on to observe that the “instructionto believe the court could accepunanimous recommendation, and gas to the effect a jury split would determination of guilt, or on the seor would then impose on Scott.” Kubat v. Thieret, 867 F.2d 351 (7ta similar instruction to create the that individual jurors would belrequired as to the existence of mi
30 Scott v. Mitchell Nos. 98-4272/4321

7The district court suggested in its Order that the Jenkins decision

was available to the trial court when it sentenced Scott, but we think thisis clearly wrong. Scott’s sentencing-phase jury recommended the deathpenalty on March 28, 1984, and the court adopted the recommendation onApril 4, 1984, but Jenkins was not released until December 17, 1984.

Nevertheless, the Ohio Supreme Court approved of the unanimityinstruction in Jenkins with such sweeping language as to suggest that the

question was well-settled under Ohio law. See Jenkins, 473 N.E.2d at

307. The Court relied almost exclusively on Ohio Crim. R. 31(A), whichprovided: “The verdict shall be unanimous. It shall be in writing, signedby all jurors concurring therein, and returned by the jury to the judge in

After you have retired, first, select a foreman or

forelady and when all 12 of you – I repeat – all 12 of youagree upon a verdict, you will sign the verdict in ink, andadvise the Court of this fact. You will remain in the jury

room until summoned back into the courtroom. Whenyou return to the courtroom, your verdict will be returnedto me, as you did before, and I will read it for you.

(emphasis added by district court). This was based on thefollowing provision of Ohio law:

If the trial jury unanimously finds, by proof beyond areasonable doubt, that the aggravating circumstances theoffender was found guilty of committing outweigh themitigating factors, the trial jury shall recommend to thecourt that the sentence of death be imposed on theoffender. Absent such a finding, the jury shall

recommend that the offender be sentenced to [one of thefollowing life imprisonment terms].

Ohio Rev. Code § 2929.03(D)(2) (emphasis added by districtcourt). It was clear to the district court that the statute did notrequire unanimity in recommending a life sentence, but rathermandated life imprisonment if the jury reached anything butunanimity on death. The court also reviewed three decisionsof the Ohio Supreme Court interpreting § 2929.03(D)(2). Thefirst, State v. Jenkins, 473 N.E.2d 264, 270 (Ohio 1984)

(syllabus ¶ 10), held that a jury’s recommendation of lifeimprisonment under that section must be unanimous.7 In

Nos. 98-4272/4321 

made with respect to the constirecollections of witnesses are frea federal habeas proceeding. It observed the demeanor of thosfactual determinations necessarthe federal constitutional quesamendment to § 2254 requires dsuch determinations made determinations themselves are lefirst instance if there is no contemthe admission of the evidence ogrounds.

A contemporaneous-objectio

exclusion of the evidence objectmajor contribution to finality Without the evidence claimed to constitutional grounds, the jury mand that will be the end of the caconvict the defendant, and he wconstitutional claim to assert petition. If the state trial judge question after a full hearing, thpursuant to the 1966 amendmesignificant guidance from the stSubtler considerations as welhonoring a state contemporaneobjection on the spot may force thard look at its hole card, and thinks that the state trial judge wmust contemplate the possibility appellate courts or the ultimate iof habeas corpus based on the court's rejection of the federal c

We think that the rule of Fay 

may encourage "sandbagging" lawyers, who may take their chaguilty in a state trial court with constitutional claims in a federinitial gamble does not pay off. habeas courts to honor contempo
24 Scott v. Mitchell Nos. 98-4272/4321

may also make state courts themselves less stringent intheir enforcement. Under the rule of Fay v. Noia, state

appellate courts know that a federal constitutional issueraised for the first time in the proceeding before themmay well be decided in any event by a federal habeastribunal. Thus, their choice is between addressing theissue notwithstanding the petitioner's failure to timelyobject, or else face the prospect that the federal habeascourt will decide the question without the benefit of theirviews.

The failure of the federal habeas courts generally to

require compliance with a contemporaneous-objectionrule tends to detract from the perception of the trial of acriminal case in state court as a decisive and portentousevent. A defendant has been accused of a serious crime,and this is the time and place set for him to be tried by ajury of his peers and found either guilty or not guilty bythat jury. To the greatest extent possible all issues whichbear on this charge should be determined in thisproceeding: the accused is in the court-room, the jury isin the box, the judge is on the bench, and the witnesses,having been subpoenaed and duly sworn, await their turnto testify. Society's resources have been concentrated atthat time and place in order to decide, within the limits ofhuman fallibility, the question of guilt or innocence ofone of its citizens. Any procedural rule whichencourages the result that those proceedings be as freeof error as possible is thoroughly desirable, and thecontemporaneous-objection rule surely falls within thisclassification.

We believe the adoption of the Francis rule in this

situation will have the salutary effect of making the statetrial on the merits the "main event," so to speak, ratherthan a "tryout on the road" for what will later be thedeterminative federal habeas hearing. There is nothingin the Constitution or in the language of § 2254 whichrequires that the state trial on the issue of guilt orinnocence be devoted largely to the testimony of factwitnesses directed to the elements of the state crime,while only later will there occur in a federal habeas

Nos. 98-4272/4321 

On the other hand, if after 

relevant evidence raised at triaevidence, the statement of Jay Sof counsel, you find that the Statthat the aggravating circumstancJay Scott, was found guilty of comitigating factors, then you wreflecting your decision.

In this event, you will then pro

of two possible life imprisrecommend to the Court. [...]

Now, ladies and gentlemen, le

we continue, before I read to yoyou see it is almost identical, and identical,” to the forms that you says, and I just picked them “Sentencing Proceeding” on the case, the case number, and then ijury in this case being duly empabeyond a reasonable doubt circumstances which the defendaguilty of committing, are suffmitigating factors presented in t

“We, the jury, recommend th

be imposed upon the defendant, signed by the foreman or foreladsign.

The second form is: “We, th

duly empaneled and sworn, do fcircumstances which the defendaguilty of committing, are not sumitigating factors present in this 

“We, the jury, recommend 

Scott, be sentenced to life impeligibility after sentencing,” and an asterisk which refers down aimprisonment,” and again, the line is reserved for the foremaremainder of the eleven of you form. It must be unanimous. [.
28 Scott v. Mitchell Nos. 98-4272/4321

sentencing phase of a capital trial. See id. The Courtobserved that although it would not attempt to define “whatit means to be ‘actually innocent’ of a death sentence,” id., itcould not find such extraordinary injustice under the facts ofthat case, where the mitigating and aggravating factors hadbeen found to be equal. See id. Scott has made no attempt todemonstrate this kind of fundamental miscarriage of justice,and we are confident that he cannot do so.

Accordingly, we hold that the district court erred in

concluding that Scott’s claim of constitutional error withregard to the penalty-phase unanimity instruction was notprocedurally defaulted, and in further concluding that even ifthe claim were defaulted, Scott demonstrated cause andprejudice to excuse the procedural default. We further holdthat the Ohio Supreme Court relied on Ohio’scontemporaneous-objection rule—an adequate andindependent state ground—in holding that this claim had beendefaulted; that Scott failed to demonstrate cause and prejudiceto excuse the default, and that the district court erred inreaching the merits of this claim. We therefore REVERSEthe district court’s issuance of a writ of habeas corpus.

(d). The Merits of Scott’s Challenge to the Unanimity

Instruction

Nevertheless, out of an abundance of caution and in order

to clarify our precedents governing sentencing-phaseinstructions on jury unanimity, we will consider in thealternative the merits of Scott’s challenge. The unanimityinstruction given to Scott’s jury read:

If all 12 members of the jury find, by proof beyond a

reasonable doubt, that the aggravating circumstanceswhich Jay Scott was found guilty of committingoutweigh the mitigating factors, then you must returnsuch a finding to the Court. I instruct you as a matter oflaw that if you make such a finding, then you have nochoice and must recommend to the Court that thesentence of death be imposed upon the defendant, JayScott. [...]

Nos. 98-4272/4321 

hearing a full airing of the federwhich were not raised in the scriminal defendant thinks that an court is about to deprive him of right there is every reason fprocedure in making known his 

Sykes, 433 U.S. at 88-90 (footnote Certainly, Ohio’s rule passes the tcase.

(c). The Fourth Maupin Pro

Prejudice T

The district court’s primary 

procedural default as to the unanimthat Scott had shown cause and preto object. The court’s only explanareasonably believed a contemporafutile” because, as demonstrated in three-sentence disposition of this clat the time required jury verdicts sentences to be unanimous. ThCourt, however, has explicitly reje

the futility of presenting an objecannot alone constitute cause ftrial. If a defendant perceives a believes it may find favor in the not bypass the state courts simplwill be unsympathetic to the clthat has previously rejected a may decide, upon reflection, thaAllowing criminal defendants to of this opportunity would cosupporting Sykes.
26 Scott v. Mitchell Nos. 98-4272/4321

6Instead, Scott argues that even if we find procedural default, we

should at least review his claim for plain error. The Supreme Courtrejected precisely this contention in Frady, 456 U.S. at 164-65, noting that

to apply the same “plain-error” review to a habeas petition that wouldapply on direct appeal destroys any respect for the finality of the statecourt judgment and allows the petition to function as a second appeal.The Court was very clear that the cause and prejudice test must be usedinstead.

Engle, 456 U.S. at 130 (footnotes omitted). Scott does notaddress cause and prejudice on appeal,6 and even if he did hewould be hard-pressed to distinguish this holding; it wasmade in the context of Ohio’s contemporaneous-objectionrule, and the Court has said “that the standard for causeshould not vary depending on the timing of a proceduraldefault or on the strength of an uncertain and difficultassessment of the relative magnitude of the benefitsattributable to the state procedural rules [involved].” Murrayv. Carrier, 477 U.S. 478, 491 (1986).

The district court’s finding of prejudice was based on the

merits of Scott’s claim, and on its conclusion that thesentencing proceedings might reasonably have come to adifferent result absent the instruction of which Scottcomplains. Of course, evaluating the merits to determine theapplicability of procedural default is circular and underminesthe federalism concerns behind the doctrine. Moreover, whileSykes left open the definition of “prejudice,” Frady

“eliminate[d] any doubt about its meaning for a defendantwho has failed to object to jury instructions at trial,” Frady,

456 U.S. at 168:

[Henderson] summarized the degree of prejudice wehave required a prisoner to show before obtainingcollateral relief for errors in the jury charge as "whetherthe ailing instruction by itself so infected the entire trialthat the resulting conviction violates due process, notmerely whether the instruction is undesirable, erroneous,or even universally condemned." We reaffirm thisformulation, which requires that the degree of prejudice

Nos. 98-4272/4321 

resulting from instruction error context of the events at trialemphasized[,] a single instructijudged in artificial isolation, bucontext of the overall charge. Mconviction is commonly the culmincludes testimony of witnessereceipt of exhibits in evidence, aby the judge. Thus not only is thbut one of many such instructiinstruction itself is but one of setrial which may result in the jud

Id. at 169 (internal quotations, omitted). Presumably, this same instructions in the sentencing phathe briefs and record leaves us convprejudice here. Scott offers nassessment, however, and, in any cannot show cause for his default.

Although neither the district cou

is worth noting that an exception federal habeas petitioner demonstrorder to obtain review of his defauwhen the petitioner is able to deconsider those claims will remiscarriage of justice.” Coleman

456 U.S. at 135. The Court has ordinarily, petitioners who can miscarriage of justice will also be prejudice requirement, in extraoconstitutional violation has prconviction of one who is actually court may grant the writ even in thcause for the procedural default.” Dugger, 489 U.S. at 410 n. 6. In D

this exception will apply to dextraordinary cases, given the diconcept of actual innocence from