1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 14a0212p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

GREGORY ESPARZA, 

Petitioner-Appellant, 

v. 

ED SHELDON, Warden, 

Respondent-Appellee. 

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No. 13-3358 

Appeal from the United States District Court 

for the Northern District of Ohio at Toledo. 

No. 3:96-cv-07434—Christopher A. Boyko, District Judge. 

Argued: July 30, 2014 

Decided and Filed: August 28, 2014 

Before: SILER, SUTTON and KETHLEDGE, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Lori B. Riga, OFFICE OF THE FEDERAL PUBLIC DEFENDER/CAPITAL 

HABEAS UNIT, Cleveland, Ohio, for Appellant. Ashon L. McKenzie, OFFICE OF THE OHIO 

ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Lori B. Riga, Alan C. 

Rossman, Vicki Ruth Adams Werneke, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER/CAPITAL HABEAS UNIT, Cleveland, Ohio, Jeffry F. Kelleher, JEFFRY F. 

KELLEHER & ASSOCIATES, CO., Cleveland, Ohio, for Appellant. Ashon L. McKenzie, 

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

 

>
No. 13-3358 Esparza v. Sheldon Page 2 

_________________ 

OPINION

_________________ 

 SUTTON, Circuit Judge. Three decades ago, Gregory Esparza murdered Melanie 

Gerschultz for just over a hundred dollars in cash. An Ohio jury sentenced him to death. After 

the Ohio state courts refused to alter his sentence, Esparza unsuccessfully sought habeas relief in 

federal district court. Because the Ohio courts reasonably rejected his claims, we affirm. 

I. 

On February 12, 1983, Melanie Gerschultz and James Barailloux were working the night 

shift at a Toledo restaurant when Gregory Esparza walked inside. Wearing a ski mask and 

brandishing a gun, he ordered someone to open the register. Melanie complied, but James 

escaped through the back door and found help. When he returned, Esparza had fled, $110 was 

missing from the register’s cash drawer, and Melanie lay dying on the floor from a bullet wound 

in her neck. 

In October 1983, an Ohio grand jury indicted Esparza on one count of aggravated 

robbery and one count of aggravated murder with a capital specification. The trial court 

appointed Thomas Stebbins and Norman Zemmelman as Esparza’s lawyers and scheduled trial 

for January 23, 1984. When his lawyers asked for more time to interview potential witnesses, 

the court delayed the trial until March 5. And when both of them withdrew—Zemmelman citing 

a conflict of interest, Stebbins a dearth of experience—the court again delayed the trial until 

replacement counsel could familiarize themselves with the case. Jury selection eventually 

started on April 30, 1984, and opening arguments began four days later. After hearing that 

Esparza had confessed to a fellow inmate and to one of his siblings, among other evidence, the 

jury convicted on both counts. 

In connection with the penalty phase of the trial, Esparza’s lawyers moved for an 

“independent expert at state expense.” J.A. 270. They invoked two state statutes: Ohio Rev. 

Code § 2929.024, which provides independent expert services to indigent defendants, and Ohio 

Rev. Code § 2929.03(D)(1), which provides court-appointed expert services to capital 
No. 13-3358 Esparza v. Sheldon Page 3 

defendants. The court denied the first request but granted the second, appointing the Court 

Diagnostic and Treatment Center. Upon reading the Center’s report and finding it wanting, 

Esparza’s lawyers asked the court to undo their § 2929.03 request, to keep its results from the 

jury, to appoint an independent expert, and to grant a continuance of unspecified duration. The 

court granted a one-day continuance to permit argument over the motion but ultimately denied 

all four requests. 

During the penalty phase, Esparza’s lawyers focused the jury’s attention on his troubled 

youth. Esparza’s grandfather, Richard DeLa Rosa, testified that Esparza’s father Frank deserted 

his mother Beatrice and “all the[ir eight] kids” when Esparza was young. J.A. 7450. Beatrice 

started “going out again” shortly afterwards, often abandoning her children and leaving them in 

her ten-year-old daughter’s care. Id. at 7453. The family “didn’t have no food,” “money,” or 

“shoes to go to school,” and the children were sometimes sent home “because their hair was full 

of lice.” Id. at 7450. Eventually, the police “load[ed] the whole bunch” into a “paddy wagon” 

and placed them in a Children’s Home. Id. at 7454. DeLa Rosa took in most of Beatrice’s 

children, but he left Esparza behind. 

Esparza’s aunt, Virginia Gonzales, testified that Beatrice died when Esparza was young. 

She reported that Frank would whip Esparza with a wire hanger and would force his children to 

sit outside in a bitterly cold hallway when he wanted to be alone. 

Esparza’s brother Peter testified that, as children, the two of them would steal food from 

a corner store because “[t]here wasn’t nothing to eat in the house.” Id. at 7473. Frank came 

home drunk “all the time” and “smack[ed] [the children] around.” Id. at 7474. Making matters 

worse, Esparza “never really got too much attention with the family,” as evinced by the fact that 

DeLa Rosa “left him in the Children’s Home” but took care of the others. Id. at 7477. Esparza’s 

grandmother doted on Peter but ignored Esparza himself. Bounced from foster home to foster 

home, Esparza had trouble keeping in touch with his relatives. 

Finally, Ralph Grennay, one of Esparza’s foster fathers, testified that he “enjoyed” 

Esparza’s company and that Esparza “got along fine” with his family. Id. at 7494. Under his 

tutelage, Esparza improved his grades, joined the Boy Scouts and a Youth for Christ church 

group, and played middle school football. After two years, however, Esparza’s counselors, 
No. 13-3358 Esparza v. Sheldon Page 4 

psychiatrists and psychologists recommended—against Grennay’s wishes—that Esparza begin 

visiting his blood relatives more frequently. Id. at 7505. Grennay feared, with some foresight, 

that removing Esparza would “take away everything we tried to work with him for.” Id. at 7510. 

To bolster their mitigation theory, Esparza’s lawyers also introduced more than two 

hundred pages of records depicting his childhood in horrific terms. This “Family File” contained 

psychological evaluations, his juvenile record and summaries of his troubled social history. One 

entry reported that, when Esparza was two or three, “one of his brothers poured Drano on the 

other children and they were all burned over their bodies.” R. 193-1 at 4. When he was five, he 

“got his hand caught in a car” and was “dragged by his knees.” Id. A second entry set forth the 

verbal and physical abuse, financial difficulties and pending divorce action that culminated in a 

“[c]omplete family breakdown . . . in the early 1970’s.” R. 185-1 at 21. A third entry explained 

why Esparza ended up in the Grennays’ care. On a routine home visit, a social worker 

discovered Esparza bleeding from the nose; his step-mother had beat him after an argument. A 

fourth entry connected Esparza’s “deep-seated feelings of rejection” to his pattern of “delinquent 

activity,” which it described as a “means of achieving peer acceptance.” R. 193-1 at 33. 

Despite his lawyers’ efforts, the jury sentenced Esparza to death, and the trial court 

accepted its recommendation. The Ohio Court of Appeals and the Ohio Supreme Court affirmed 

that sentence on direct appeal. When his attempts to secure state post-conviction relief failed, 

Esparza filed a habeas petition in federal district court in 1996. 

The district court found four of Esparza’s fifty-six claims to be well-taken: (1) a defective 

indictment, (2) ineffective assistance of counsel at the penalty phase, (3) an improper denial of a 

continuance request, and (4) cumulative error. We affirmed on the first ground without reaching 

the others. Esparza v. Mitchell, 310 F.3d 414, 422 (6th Cir. 2002). But the Supreme Court 

reversed the decision. Mitchell v. Esparza, 540 U.S. 12 (2003) (per curiam). On remand, the 

district court reconsidered and then rejected Esparza’s remaining grounds for relief, see Esparza 

v. Anderson, 2012 WL 2872149 (N.D. Ohio July 12, 2012), amended by 2013 WL 774155 (N.D. 

Ohio Feb. 27, 2013), and granted him a certificate of appealability on the ineffective-assistance 

and continuance claims, id. at *54. 
No. 13-3358 Esparza v. Sheldon Page 5 

II. 

Two sets of rules govern Esparza’s claim that his lawyers provided constitutionally 

ineffective assistance of counsel at the penalty phase of his trial. The first: He must establish the 

prerequisites of an ineffective-assistance claim—that his lawyers provided deficient counsel and 

that this defective representation prejudiced the outcome of the penalty-phase proceedings. See 

Strickland v. Washington, 466 U.S. 668, 687 (1984). The second: He must surmount the 

Antiterrorism and Effective Death Penalty Act (AEDPA), which bars us from overriding a state 

court’s ruling on the merits unless it unreasonably applied Supreme Court precedent. 28 U.S.C. 

§ 2254(d). Through it all, he must establish that the state courts unreasonably departed from 

Supreme Court precedent based on the record they had before them. Cullen v. Pinholster, 131 S. 

Ct. 1388, 1398 (2011). New evidence developed during federal habeas proceedings, generally 

speaking, is off limits. See Moore v. Mitchell, 708 F.3d 760, 784 & n.11 (6th Cir. 2013). 

Esparza cannot meet these requirements. 

Reduced to its essence, Esparza’s theory is that his lawyers developed too much bad 

evidence at the penalty phase of his trial and not enough good. We need not decide whether 

“there is any reasonable argument that [Esparza’s] counsel satisfied Strickland’s deferential 

standard” of performance, Harrington v. Richter, 131 S. Ct. 770, 788 (2011), or indeed whether 

Esparza has accurately described his lawyers’ conduct. The Ohio courts rejected all of his 

ineffective-assistance arguments for lack of prejudice. Because their decisions were not 

unreasonable, we must do the same. 

A. 

Esparza blames trial counsel for not preparing for the penalty phase until a “mere five 

days before [it] actually began.” Appellant Br. at 46. True or not, this allegation did not lead to 

an investigation that produced little or no mitigation evidence. E.g., Wiggins v. Smith, 539 U.S. 

510, 515–16 (2003). His lawyers put on four witnesses who described Esparza’s youth in 

graphic detail. They also introduced more than two hundred pages of records that reinforced this 

theory of leniency. On direct appeal, the Ohio Supreme Court described those records as 

Esparza’s “most persuasive argument against . . . the death penalty.” State v. Esparza, 

529 N.E.2d 192, 199 (Ohio 1988). The trial judge’s sentencing opinion underlines the force of 
No. 13-3358 Esparza v. Sheldon Page 6 

counsel’s presentation. It highlighted the “lamentable conditions [Esparza] endured throughout 

his babyhood, childhood and adolescence” and referenced specific incidents discussed by 

defense witnesses and the Family File alike. J.A. 180. “This court has encountered cases of 

more miserable upbringing,” it continued, “but, praise God, not often.” Id. at 181. 

The existence of “some mitigation evidence,” true enough, does not “foreclose an inquiry 

into whether a facially deficient . . . investigation might have prejudiced the defendant.” Sears v. 

Upton, 130 S. Ct. 3259, 3266 (2010). But there is no prejudice under Strickland when a 

thorough investigation “would barely have altered the sentencing profile presented” to the jury. 

Id. Esparza can prevail only by pointing to new evidence that “differ[s] in a substantial way—in 

strength and subject matter—from the evidence actually presented at sentencing.” Hill v. 

Mitchell, 400 F.3d 308, 319 (6th Cir. 2005). That simply is not the case here. 

Esparza’s new evidence consists of eighteen affidavits submitted to the Ohio Court of 

Common Pleas during state post-conviction review. The first fourteen were prepared by his 

relatives and friends. From these he derives twenty-eight facts allegedly never presented to the 

jury. In truth, his counsel did present many of these facts to the jury, including Fact 2 (“There 

was never any food in the house for the Esparza children”) and Facts 3 and 4 (Frank drank 

heavily and abused his family). And the others embellish themes already found in the trial-court 

record. Consider, for example, Fact 1 (“There were rats and cockroaches in the house [where] 

the Esparza children were raised”), Facts 15, 16, 17 and 18 (Esparza’s grandparents hated him 

and refused to raise him in their home), and Fact 21 (Frank would beat Esparza “in the area of 

his genitals”). None of the facts, whether these or the others, sufficiently differs in degree or 

kind to meet Strickland’s high bar. The same holds true for the facts set forth in the three 

affidavits from witnesses counsel did call: his brother Peter, his aunt Virginia, and his foster 

father Ralph.

The last affidavit, prepared by independent expert Dr. Julia Hawgood, does not introduce 

new facts at all. It instead explains “the connection between [Esparza’s] childhood experiences” 

and his crime, an explanation Esparza argues his lawyers never gave. Appellant Br. at 56–57. 

The record contradicts this claim twice over. Lead counsel Keithley Sparrow made this 

connection the centerpiece of his closing argument. Sparrow reiterated Esparza’s “chaotic and 
No. 13-3358 Esparza v. Sheldon Page 7 

disruptive childhood, the fact that he was constantly moved from place to place, the removal 

from his family when he was 7 years old, the death of his mother when he was 8,” and the abuse 

inflicted on him by his father. R. 189-1 at 49. He asked the jury to “[r]ead . . . th[e] family file. 

Read about Greg Esparza. . . . There is a lot of information for you.” Id. at 50. And he 

explicitly refracted Esparza’s actions through the lens of “what happened to him at age 7,” noting 

that Esparza “didn’t have any control over what was happening to him, and he was removed 

from a home which, while it wasn’t a nurturing home, was a family setting . . . . [W]hen you 

weigh all of those factors, when you weigh his life, you will determine that mercy requires . . . 

that your decision be a recommendation of life, not death.” Id. at 50–51. 

The record echoes Hawgood’s statements, making it difficult to conclude that this expert 

testimony could have made a difference. Hawgood observed that Esparza’s experiences “formed 

him into [a] person . . . who covered his vulnerability and sense of inadequacy with a tough, 

hard-shelled, often callous ‘machismo’” characteristic of “Hispanic . . . street subculture[].” J.A. 

2180–81. So did the Family File. See R. 193-1 at 22 (“[Esparza] portrays himself as a ‘tuff guy’ 

who is not going to be pushed around. Perhaps his defiant resentment toward authority . . . has 

to do with the fact that he has been placed in so many different living conditions in the last five 

years.”); R. 185-1 at 11 (“His behavior and attitude can be directly attributed to his father and the 

[M]exican concept of ‘machismo.’”). Hawgood observed that Esparza lacked positive role 

models and “long-term, consistent structure and guidance,” which intensified his “rebelliousness, 

his anger, and his hardshell survival tactics.” J.A. 2179. So did the Family File. See R. 193-1 at 

13 (“[Esparza] is in bad need of a very structured, stable environment . . . to learn a better way of 

. . . ventilating aggression more appropriately.”). Hawgood observed that Esparza’s behavior 

took a turn for the worse when he left the Grennays’ household, in whose care he had 

experienced “relative success interpersonally” and “academic[ally].” J.A. 2180. So did the 

Family File. See R. 185-1 at 8 (“[Esparza] seems to be adjusting quite well in this well 

organized loving family. . . . Hopefully it will continue.”). And so indeed did Ralph Grennay’s 

testimony at trial. See J.A. 7509–10. Because Hawgood’s affidavit added little to the trial court 

record that was not already there, any omission of this kind of argument and evidence had no 

cognizable prejudicial effect. 
No. 13-3358 Esparza v. Sheldon Page 8 

Precedent buttresses this conclusion. This case is not like Porter v. McCollum, 558 U.S. 

30, 33 (2009), where counsel’s mitigation theory made no reference to Porter’s “abusive 

childhood, his heroic military service . . . , his long-term substance abuse, and his impaired 

mental health and mental capacity.” Nor is it like Sears, where counsel failed to uncover 

evidence of physical abuse and “significant frontal lobe abnormalities” in the course of his 

investigation. 130 S. Ct. at 3262. Nor, contrary to Esparza’s claim at oral argument, is it like 

Glenn v. Tate, 71 F.3d 1204 (6th Cir. 1995), a pre-AEDPA case where counsel failed to uncover 

evidence of organic brain damage. But it is like Strickland. There, counsel focused on 

Washington’s “extreme emotional distress” and his decision to “accept[] . . . responsibility for 

his crimes.” 466 U.S. at 699. Subsequent investigation revealed merely that “numerous people” 

thought Washington “was generally a good person,” and that “a psychiatrist and a psychologist 

believed he was under considerable emotional stress.” Id. at 700. The Supreme Court turned 

Washington’s prejudice argument aside. 

Esparza’s rejoinders to this conclusion fall short. Esparza argues that, had his lawyers 

investigated more thoroughly, they would not have put his grandfather—who allegedly despised 

him—on the stand. Appellant Br. at 49. But he does not clothe this bare assertion of prejudice 

with evidence from the record. Nor do we see how he could, given that the new affidavits 

confirm DeLa Rosa’s testimony. 

Esparza faults his lawyers for failing to retain an independent psychologist, forcing him 

to rely on the Center’s experts instead. See Reply Br. at 22–23. But Esparza’s lawyers correctly 

invoked Ohio’s indigent-expert statute at trial. See Appellant Br. at 7, 12–13. Their only 

mistake was to treat the indigent-expert statute as “intertwined” with Ohio’s capital-expert 

statute (Ohio Rev. Code § 2929.03), which led them to believe that they were entitled to an 

independent (and not a court-appointed) expert under the latter’s terms. Esparza, 529 N.E.2d at 

194. Esparza does not explain how that mistake could have affected the trial court’s decision to 

deny his request under the former. Nor can he argue that, in denying his request, the trial court 

acted unreasonably. See Miller v. Colson, 694 F.3d 691, 699 (6th Cir. 2012) (holding that the 

right to an independent psychiatrist is not a “clearly established federal law” under AEDPA). 
No. 13-3358 Esparza v. Sheldon Page 9 

Esparza adds that the Ohio Court of Appeals never mentioned Hawgood’s affidavit on 

post-conviction review. Maybe so. But this fact does him no good. AEDPA deference applies 

even when “the state court’s reasoning is flawed or abbreviated.” Holder v. Palmer, 588 F.3d 

328, 341 (6th Cir. 2009). 

Because Esparza’s new evidence does not differ in “strength” or “subject matter” from 

the evidence he submitted at trial, we must defer to the Ohio courts’ reasonable refusal to find 

prejudice here. See Hill, 400 F.3d at 319. 

B. 

Esparza separately criticizes trial counsel for seeking a psychological evaluation under 

Ohio’s capital-expert statute. See Ohio Rev. Code § 2929.03(D)(1). Court-appointed experts 

from the Court Diagnostic and Treatment Center conducted the examination, and the statute 

required Esparza’s lawyers to disclose its results to the jury. After reading the report, his lawyers 

tried—unsuccessfully—to take back their request. See R. 188-1 at 4–20. As Esparza sees it, 

“The prejudice that flowed from the[] report[] is self-evident.” Appellant Br. at 62. The Ohio 

courts, however, reasonably held otherwise. 

We begin by observing that the Center’s report reinforces the mitigation theory his 

lawyers presented at trial. It emphasizes Esparza’s “extremely chaotic and disruptive childhood” 

and supplies anecdotes that confirm his witnesses’ testimony and the information in his Family 

File. See R. 186-1 at 67–68, 71. In many respects, then, the report bolsters his case. 

The report, it is true, also contains additional potentially damaging information. The 

Center’s psychologist diagnosed Esparza with antisocial personality disorder, a personality type 

predisposed to “drug and alcohol abuse,” “poor judgment,” and “encounters with the law.” R. 

186-1 at 70. She added that “Esparza was the principal offender” in the “present offense.” Id. at 

71. But Esparza’s attempts to show that this other information made a difference in his sentence 

are not convincing. 

First, Esparza attacks the Center’s report for discussing all seven of Ohio’s statutory 

mitigating factors, see Ohio Rev. Code § 2929.04(B), including ones his trial attorneys did not 

raise. In effect, the report converted the absence of mitigation, he says, into the presence of 
No. 13-3358 Esparza v. Sheldon Page 10 

aggravation in contravention of Ohio law. See Appellant Br. at 12. But the trial judge cured any 

potential prejudice by instructing the jury to consider only one aggravating circumstance: the fact 

that Esparza “committed the offense of Aggravated Murder while committing Aggravated 

Robbery.” R. 189-1 at 81–82. Esparza offers no bases for overcoming the presumption that 

juries “follow their instructions.” Richardson v. Marsh, 481 U.S. 200, 211 (1987). 

Second, Esparza argues that an antisocial personality disorder diagnosis is categorically

prejudicial. See Reply Br. at 27–30. That is not the case. Ohio state law, for one, recognizes the 

disorder as a statutory mitigating factor. See State v. Seiber, 564 N.E.2d 408, 416 (Ohio 1990). 

And, for another, we have held—under AEDPA’s deferential standard, no less—that the failure 

to introduce evidence of a similar disorder caused prejudice. Williams v. Anderson, 460 F.3d 

789, 805 (6th Cir. 2006). Although Esparza correctly observes that the diagnosis can harm as 

much as it helps, its double-edged nature cuts against the categorical rule he espouses. 

Third, Esparza advances the more modest argument that the antisocial personality 

disorder diagnosis prejudiced him in this instance, pointing to the featured role the State gave it 

in its closing statement. See Appellant Br. at 58. But the Family File, submitted by his lawyers, 

is replete with references to the disorder, its symptoms and Esparza’s lifelong pattern of 

antisocial behavior. See R. 193-1 at 7, 8, 13, 20. It is difficult to see how the diagnosis could 

have prejudiced Esparza when his own lawyers placed most of its constituent parts before the 

jury. 

Even if the Family File had said nothing at all on this score, Esparza would face another 

problem. At trial, his lawyers undercut the report’s credibility by impeaching the psychologists 

responsible for it. The last defense witness, indeed, was Dr. William Seman, who supervised the 

diagnosis. Through him they established that the Center had conducted only two evaluations 

before Esparza’s, R. 188-1 at 102; that Esparza’s evaluation “deviate[d] . . . from the procedure” 

the Center typically would have used, id. at 103; that the diagnosis took only two days from start 

to finish, id. at 104, 110; and that antisocial personality disorder could “often” be treated in the 

right setting and might even “spontaneous[ly]” enter “remission,” id. at 115. Dr. Charlene 

Cassel, the diagnosing psychologist and the prosecution’s sole mitigation witness, admitted 

much the same on cross-examination. R. 189-1 at 33–34, 38–39. Hawgood’s affidavit relies on 
No. 13-3358 Esparza v. Sheldon Page 11 

these very admissions to question whether Esparza suffered from antisocial personality disorder 

to begin with. J.A. 2184–85. So do Esparza’s own briefs. See Appellant Br. at 46–48; Reply 

Br. at 25–27. 

Our precedent forecloses Esparza’s response: that his lawyers’ decision to introduce the 

Family File was ineffective assistance too. See Appellant Br. at 75. As the Ohio courts 

recognized, the File contained his best arguments for mercy. Without it, he would have been 

forced to rely on his witnesses’ testimony alone. Having rejected a prejudice claim on nearly 

identical facts before, see Keith v. Mitchell, 455 F.3d 662, 671–72 (6th Cir. 2006), we refuse 

Esparza’s invitation to reconsider that result. 

It likewise is no answer to suggest that counsel could have impeached the diagnosis more 

effectively by calling an expert such as Hawgood. Appellant Br. at 63. This is precisely the sort 

of tactical judgment Strickland counsels against second-guessing, see 466 U.S. at 689, as the 

Ohio Supreme Court has repeatedly held. E.g., State v. Thompson, 514 N.E.2d 407, 417 (Ohio 

1987) (holding that a lawyer’s decision to rely on cross-examination in lieu of an expert is not 

ineffective assistance). The Ohio courts reasonably concluded that Esparza’s lawyers neutralized 

any prejudice the diagnosis might have caused. See Esparza, 529 N.E.2d at 196. 

Finally, Esparza proposes that, had the Center had time to review his full file, it would 

never have diagnosed him with antisocial personality disorder in the first place. Maybe so. But 

no cognizable prejudice occurred, or at least the state courts could have reasonably so concluded. 

We have already explained why such a diagnosis is not categorically prejudicial. Indeed, there 

often will be cases where its mitigation value exceeds its harmful effects. This case illustrates 

the point: Unlike Hawgood’s explanation, an antisocial personality disorder diagnosis potentially 

helps diminish Esparza’s moral responsibility for his actions. More, even if the diagnosis was 

prejudicial, there is no guarantee that it would have stayed out of the trial. For any attempt by 

defense counsel to introduce psychological evidence would have opened the door to a rebuttal 

expert from the State. Pinholster, 131 S. Ct. at 1410. In sum, the Ohio courts did not 

unreasonably apply established Supreme Court precedent when they determined that Esparza 

was not prejudiced by the Center’s report. 
No. 13-3358 Esparza v. Sheldon Page 12 

C. 

Esparza blames trial counsel for requesting a presentence investigation using the same 

statute—and under the same terms—as they requested the Center’s report. See Ohio Rev. Code 

§ 2929.03(D)(1). That investigation set forth his extensive criminal record (juvenile and adult), 

R. 186-1 at 62–63, his addiction to painkillers, id. at 64, and his history of alcohol abuse, id. 

And it described him as “at least a moderate physical threat to the community,” id. at 65, because 

his criminal record “ha[d] escalated rapidly both in frequency and [aggressiveness],” id. 

However, Esparza was not prejudiced by the investigation because the Family File had already 

put each of these factors on full display. 

III. 

Esparza’s denial-of-continuance claim is governed by standards that are well established 

and difficult to meet. He must show that the trial court’s decision embodied an “unreasoning and 

arbitrary insistence upon expeditiousness in the face of a justifiable request for delay.” Morris v. 

Slappy, 461 U.S. 1, 11–12 (1983) (citations omitted). And he must show that the decision 

“resulted in actual prejudice to his defense.” Franklin v. Bradshaw, 695 F.3d 439, 453 (6th Cir. 

2012) (citations omitted). To prove “actual prejudice,” he must prove that a continuance “would 

have made relevant witnesses available or added something to the defense.” Id. (citations 

omitted). 

Esparza argues that the trial judge’s denial of his continuance request made it impossible 

for his lawyers to prepare an adequate penalty-phase theory. We have already explained why 

none of Esparza’s eighteen affidavits added anything meaningful to his defense, and why neither 

the Center’s report nor the presentence investigation subtracted anything from his defense. 

Because Esparza has failed to show prejudice, we hold that the Ohio courts reasonably rejected 

his denial-of-continuance claim as well. 

* * * 

Today’s decision is not necessarily the end of the road for Esparza. Among other things, 

he has the right to file a clemency application with the governor to reduce his sentence from 
No. 13-3358 Esparza v. Sheldon Page 13 

death to life in prison. In light of the many uninvited difficulties in his childhood, this 

application may be worth a serious look. 

IV. 

 For these reasons, we affirm.