Webb v. Mitchell

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0385p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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MICHAEL D. WEBB,

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Petitioner-Appellant,

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No. 06-4606

v.

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Respondent-Appellee. -

BETTY MITCHELL, Warden,

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Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 98-00766—Susan J. Dlott, Chief District Judge.

Argued: June 10, 2009

Decided and Filed: November 5, 2009

Before: ROGERS, SUTTON and GRIFFIN, Circuit Judges.

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COUNSEL

ARGUED: Keith A. Yeazel, LAW OFFICE, Columbus, Ohio, for Appellant. Charles L.

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

ON BRIEF: Keith A. Yeazel, LAW OFFICE, Columbus, Ohio, James D. Owen, THE

OWEN LAW FIRM, Columbus, Ohio, for Appellant. Robert E. Prather, OFFICE OF THE

OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

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OPINION

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SUTTON, Circuit Judge. A jury convicted Michael D. Webb of the aggravated

murder of his son, Michael (“Mikey”) Patrick Webb, and at the jury’s recommendation a

state trial court sentenced him to death. The Ohio courts affirmed his convictions and

sentence on direct review and denied postconviction relief. Webb sought a writ of habeas

corpus, which the district court denied. We affirm.

1

No. 06-4606 Webb v. Mitchell Page 2

I.

Webb lived in a modest home in Goshen, Ohio, with his wife Susan, two teenage

daughters, Tami and Amy, and two young sons, Charlie and Mikey. State v. Webb, 638

N.E.2d 1023, 1026 (Ohio 1994). Early on the morning of November 21, 1990, Tami awoke

in her basement bedroom to the smell of gasoline. Id. at 1027. Webb soon came into her

room and told a frightened Tami that he smelled gasoline and that he thought someone had

“rigged” the house. Id. Without telling Tami to get out of the house, Webb proceeded

upstairs while Tami hid under her covers. Id.

Soon after Webb went upstairs, an explosion occurred on the main floor of the house,

throwing Webb from the hall outside the master bedroom into the bathroom. Id. at 1027–28.

Webb’s wife and youngest son were asleep in the master bedroom at the time, and Mikey

slept in his bedroom across the hall. Id. Tami and Amy safely escaped the resulting fire

through the exterior basement door as soon as they heard the explosion. Id. at 1027. Webb

escaped the house by breaking through the bathroom window, cutting himself and bloodying

his hands in the process. Id. Firefighters rescued Webb’s wife and youngest child from the

master bedroom. Id. Mikey died from smoke inhalation, apparently while hiding under his

bed to seek refuge from the flames. Id.

Law enforcement investigated the cause of the fire. Fire Chief Murphy discovered

a plastic gasoline can from Webb’s garage in the front foyer as well as a “very definite pour

pattern or trailer” leading down the hallway from the foyer to the main floor bedrooms. Id.

From there, trailers led into both bedrooms, including over Mikey’s bed to the rear wall of

his bedroom. Id. An unignited gasoline trailer also led downstairs to the basement, where

gasoline had been poured on Tami’s and Amy’s beds. Id. Several pieces of physical

evidence linked Webb to the fire: a two-liter soda bottle containing gasoline found

downstairs, which had Webb’s fingerprints on it; Webb’s partial bloody fingerprints on a

matchbook outside, with the prints corresponding to the “peculiar way” Webb held a

matchbook when lighting matches; and a plastic gas can from Webb’s garage found in the

foyer. Id. Webb, it turns out, had a motive as well: He began an extramarital affair in 1990

and told his mistress he planned to leave his wife so he could be with her, id.; and he had just

No. 06-4606 Webb v. Mitchell Page 3

finished draining $102,000 (plus interest) from his daughters’ trust accounts within the past

year, a theft that would be hidden by their deaths because he was their heir.

An Ohio jury convicted Webb of the aggravated murder of Mikey and eleven other

counts not relevant to this appeal. Id. After a mitigation hearing, the jury recommended the

death penalty, and the trial court agreed. Id. On direct review, the state court of appeals and

the Ohio Supreme Court affirmed Webb’s conviction and death sentence. Id. at 1028, 1038.

Webb sought state post-conviction relief, which the Ohio courts denied. See State v. Webb,

No. CA96-12-108, 1997 WL 656312 (Ohio Ct. App. Oct. 20, 1997), appeal denied, State

v. Webb, 690 N.E.2d 15 (Ohio 1998). He also filed a motion for reconsideration and another

motion seeking reopening of his direct appeal, both to no avail. See State v. Webb, 708

N.E.2d 710, 711 (Ohio 1999); State v. Webb, 640 N.E.2d 845, 845 (Ohio 1994).

In 1998, Webb filed a federal petition for habeas corpus, which (as amended) raised

fifteen claims for relief. The district court rejected the petition because Webb had

procedurally defaulted several claims and the remainder failed on the merits. The district

court granted a certificate of appealability on seven claims.

II.

Because Webb filed his federal habeas petition after the effective date of the

Antiterrorism and Effective Death Penalty Act, we may grant the writ with respect to claims

“adjudicated on the merits in State court proceedings” only if the state-court adjudication

“resulted in a decision that was contrary to, or involved an unreasonable application of,

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

28 U.S.C. § 2254(d)(1), or “resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding,”

id. § 2254(d)(2).

A.

Webb claims that Ohio violated his due process rights by failing to disclose a police

report issued five days after the fire. See Brady v. Maryland, 373 U.S. 83, 86 (1963). The

report says that Tracy Jordan, a student at Goshen High School, thought that Bob Gambrell,

another student and Amy Webb’s ex-boyfriend, smelled like gasoline the morning of the fire.

No. 06-4606 Webb v. Mitchell Page 4

The report does not say who told this to the police. When officers spoke with Jordan,

according to the report, she denied that Gambrell smelled like gasoline the morning of the

fire. But she did tell police that Gambrell said he “hoped it was Amy’s house that burnt up,”

and that Gambrell did not wear his red letterman’s jacket to school that morning, as he often

did. App’x 3202.

The report also recounts the officer’s conversation with Gambrell. Gambrell at first

denied even being at school that day, but then “changed his mind” and disputed Jordan’s

recollection of their conversation that morning. App’x 3203. According to Gambrell, he

said “I hope it wasn’t Amy’s house that burnt up.” Id. (emphasis added). Gambrell also

claimed he left his jacket in a friend’s car and would bring it in for examination in a few

days. The record does not disclose what happened to the jacket or whether the police ever

investigated Gambrell further.

Webb claims that this information, together with other evidence, shows that

Gambrell committed the crime. Gambrell was the ex-boyfriend of Amy Webb; he

“practically liv[ed]” at the Webb household prior to the fire, eating dinner with the family

“[a] couple of times a week” according to Webb’s then-wife, App’x 3510–11; he knew the

layout of the house; Webb believed that Gambrell “cannot stand him” because Webb “ran

him out of the house” after catching him fooling around with Amy, R.37, Ex. 2788; and

Tami saw someone wearing a red sweatshirt “staring” at her just before the explosion.

App’x 1868. Webb claims that, when these facts are added to the information in the police

report—that Gambrell may have smelled like gasoline that morning, that Jordan allegedly

heard Gambrell say he “hoped it was Amy’s house that burnt up,” App’x at 3202, and that

Gambrell did not wear his red letterman’s jacket to school that morning—it undermines

confidence in the jury’s verdict.

Webb did not raise his Brady claim in the state proceedings, but the district court

excused his procedural default and reviewed the claim on the merits because Webb did not

learn of the police report until federal habeas discovery. Because this claim was not

“adjudicated on the merits in State court proceedings,” we give fresh review to the merits of

this claim—as the State concedes we should. See Danner v. Motley, 448 F.3d 372, 376 (6th

Cir. 2006).

No. 06-4606 Webb v. Mitchell Page 5

A Brady claim contains three elements: (1) the evidence “must be favorable to the

accused” because it is exculpatory or impeaching; (2) the State must have suppressed the

evidence, whether willfully or inadvertently, and (3) the evidence must be material, meaning

“prejudice must have ensued” from its suppression. Strickler v. Greene, 527 U.S. 263, 282

(1999). The key question here is the last one: Did the failure to turn over the police report

prejudice Webb’s case? Put another way, is there “a reasonable probability that” the report

“would have produced a different verdict”? Id. at 281.

The 1991 police report does not satisfy this standard. Webb’s theory that Gambrell,

not he, set the fire rests on an implausible chain of events. If Webb is right, here is what

happened: Gambrell retrieved Webb’s gasoline container from Webb’s garage, entered the

house through the basement door and doused two floors of the house with gasoline.

Gambrell hid from view while Webb and Tami talked. Gambrell stared at Tami in her

basement bedroom without being identified (even though Tami knew Gambrell as her

sister’s ex-boyfriend), then sneaked back upstairs. Gambrell entered the hallway connecting

the upstairs bedrooms, opened the closet near the foyer and started a fire in that closet, Webb,

638 N.E.2d at 1028—all without Webb noticing, even though Webb stood in the same

hallway when returning to the master bedroom to awaken his wife after talking to Tami, id.

Gambrell then walked to the end of that hallway nearest the bedrooms and ignited the second

fire—standing exactly where Webb claims he stood before an explosion threw him into the

bathroom, id. No rational jury would believe all of this transpired, particularly that Webb

stood next to Gambrell when Gambrell lit the fire that caused the explosion. How, if all of

this were true, could the suppression of the police report be the reason that Webb did not

identify Gambrell as the arsonist? Webb has no answer.

Not only does this argument rest on a precarious chain of inferences, it also rests on

a flimsy foundation: that Tami saw an unidentified person in a red sweatshirt in the house

shortly before the explosion. See Webb, 638 N.E.2d at 1027. Nothing else puts Gambrell

or anyone else other than the Webb family inside the home on the morning—at 6 a.m.—of

the fire. The prosecutor’s cross-examination of Tami at trial cast considerable doubt on the

notion that she saw anyone other than her father shortly before the explosion. How, for

example, could Tami see someone “staring” at her but simultaneously claim that the face was

obscured? App’x 1868, 1878–79. And if she could see enough to know the individual was

No. 06-4606 Webb v. Mitchell Page 6

“staring” at her, why wouldn’t she have recognized her sister’s ex-boyfriend who was

frequently at the house? She also conceded during cross-examination that she based her

“feeling” that an unidentified person in a red sweatshirt stared at her “upon the fact that [she]

could not believe” Webb started the fire. Webb, 638 N.E.2d 1027 (modification in original).

Several pieces of physical evidence, moreover, linked Webb to the fire. In the

basement, Murphy discovered a two-liter plastic soda container, which had Webb’s

fingerprints on it and which still contained gasoline. Webb, 638 N.E.2d at 1027.

Investigators also found bloody fingerprints on a matchbook outside, and Webb admitted the

prints were his. Id. at 1028. The location of the prints also corresponds to the “peculiar

way” Webb held a matchbook when lighting matches. Id. But, even though the police

fingerprinted Gambrell in 2003 to see if his prints matched unidentified prints from the crime

scene, not one piece of physical evidence links Gambrell to the fire. The State also

established that Webb had a motive for setting the fire: He commenced an extramarital affair

in 1990, telling his mistress he planned to leave his wife so he could be with her, id. at 1027,

and he had finished stealing $102,000 from his daughters’ trust accounts within the past

year; a theft that their deaths would forever hide because he was their heir.

The information in the police report also is equivocal and does not “markedly”

strengthen the theory that Gambrell set the fire. Kyles v. Whitley, 514 U.S. 419, 441 (1995).

An unknown source says Jordan smelled gasoline on Gambrell the morning of the fire, but

Jordan denies that was so. Jordan claims that Gambrell said that he “hoped it was Amy’s

house that burnt up.” But not only would that be an odd statement for Gambrell to make had

he set the fire (and not turned himself in), it also contradicts Gambrell’s recollection of the

conversation (he “hoped it wasn’t Amy’s house that burnt up,” App’x 3203), and at any rate

Jordan and Gambrell were two components of a teenage love triangle involving Amy,

making the misunderstanding unsurprising. That Gambrell regularly wore a red letter jacket,

that he did not wear the jacket to school the morning after the fire, that the jacket was never

tested and that Tami saw someone wearing a red sweatshirt shortly before the explosion

provide tenuous—in truth highly speculative—support for Webb’s theory. But they do not

“markedly” support it, particularly since the foundation of the point—Tami’s apparent

“identification” of an individual in a red sweatshirt on the night of the fire—collapsed on

cross-examination. Perhaps we would see their evidence differently if this were a close case,

No. 06-4606 Webb v. Mitchell Page 7

but it is not. All of the physical evidence points towards Webb, and the notion that Gambrell

started the fire rests on an implausible sequence of events.

Resisting this conclusion, Webb argues that the evidence significantly weakens the

prosecution’s case by impeaching the thoroughness of the police investigation. See Kyles,

514 U.S. at 445. With the report, he says, he could have impeached testimony that the police

followed up on all leads because he could have shown that the police never tested

Gambrell’s jacket. At this point, in retrospect, it is of course unfortunate that the police did

not test Gambrell’s jacket. But, in contrast to Kyles, the undisclosed police report would not

have “revealed a remarkably uncritical attitude on the part of the police” regarding the

“crucial . . . evidence” in the case. Kyles, 514 U.S. at 445. The marginal relevance of the

information in the report together with the implausibility by the time of trial that anyone

other than Webb committed the crime leave no reasonable probability that the verdict would

have been different if Webb had been given the report.

Webb adds that police records indicating another person had a motive and

opportunity to commit the crime are always material. Not true. Whether the information is

material turns on the nature of the link between the other person and the crime and whether

it affects how a jury would view a central issue in the case. See Banks v. Dretke, 540 U.S.

668, 698, 701–02 (2004).

Suppressing the 1990 police report, Webb also argues, prejudiced his trial

preparation and presentation. Any impact the suppression had on Webb’s trial preparations

is irrelevant, however; “only the effect on the trial’s outcome matters.” Wilson v. Parker,

515 F.3d 682, 702 (6th Cir. 2008). And we have shown why no reasonable probability exists

that, had the 1990 police report been disclosed, the outcome would have been different.

B.

Webb separately argues that the Ohio appellate courts violated his rights under the

Ex Post Facto and Due Process Clauses by reviewing his sufficiency-of-the-evidence

challenge under a tougher standard than the one that existed on the day he committed the

crime (or stood trial). At the time of the murder, Ohio courts would not uphold a conviction

premised on circumstantial evidence unless it was “consistent only with the theory of guilt

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and irreconcilable with any reasonable theory of innocence.” State v. Kulig, 309 N.E.2d 897,

899 (Ohio 1974). A jury verdict thus would stand only if no reasonable trier of fact could

have acquitted the defendant. See York v. Tate, 858 F.2d 322, 330 (6th Cir. 1988); State v.

Jenks, 574 N.E.2d 492, 497 (Ohio 1991). Within a year of the murder, the Ohio Supreme

Court abolished the distinction between direct and circumstantial evidence, establishing that

a jury verdict stands if “any reasonable trier of fact could have found the defendant guilty

beyond a reasonable doubt.” Jenks, 574 N.E.2d at 503; accord Jackson v. Virginia, 443 U.S.

307, 319 (1979).

Webb raised this issue—that the state courts should have applied the old standard,

not the new one—on direct review, but the Ohio Supreme Court rejected it and applied the

Jenks standard in affirming his conviction. Webb, 638 N.E.2d at 1029–30. Because the

Ohio Supreme Court assessed Webb’s challenges on the merits, AEDPA’s deferential

standard of review applies. Under AEDPA, we look to the law as it stood on the date the

Ohio Supreme Court adjudicated Webb’s claim when assessing whether its decision

contradicted or unreasonably applied clearly established U.S. Supreme Court precedent. See

Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003).

Webb’s ex post facto challenge goes nowhere. As the Ohio Supreme Court correctly

recognized, Webb, 638 N.E.2d 1029 n.1, the Ex Post Facto Clause “does not of its own force

apply to the Judicial Branch,” Marks v. United States, 430 U.S. 188, 191 (1977). The Ohio

Supreme Court’s rejection of Webb’s ex post facto challenge is not just reasonable; it is

entirely consistent with U.S. Supreme Court precedent.

The answer to Webb’s due process challenge is less obvious, but in the end he cannot

show that the state courts unreasonably applied then-existing U.S. Supreme Court precedent

in rejecting this challenge. Relying on Collins v. Youngblood, 497 U.S. 37 (1990), the state

court concluded that the fair-warning requirements of the Due Process Clause, Bouie v.

Columbia, 378 U.S. 347 (1964), incorporated the requirements of the Ex Post Facto Clause

and applied them jot-for-jot to the judiciary. See Webb, 638 N.E.2d at 1029 n.1, 1030. Later

U.S. Supreme Court precedent rejected this view, holding that the judiciary is bound by

“concepts” of fair warning, which does not encompass “jot-for-jot the specific categories”

of the Ex Post Facto Clause. Rogers v. Tennessee, 532 U.S. 451, 459 (2001). But that does

No. 06-4606 Webb v. Mitchell Page 9

not make the state court’s pre-Rogers determination unreasonable. At least two precedents

at the time suggested the clauses were coextensive. See Bouie, 378 U.S. at 353–54, 362 (“If

a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must

follow that a State Supreme Court is barred by the Due Process Clause from achieving

precisely the same result by judicial construction.”); Marks, 430 U.S. at 192 (same). Our

own precedents pointed in the same direction. Before and after Webb, we held that the two

clauses were co-extensive, see Gall v. Parker, 231 F.3d 265, 305 (6th Cir. 2000); Dale v.

Haberlin, 878 F.2d 930, 934–35 (6th Cir. 1989), making it difficult to second guess the

reasonableness of the state court’s efforts to make sense out of the same precedents.

Nor can we fault the state court’s conclusion that Youngblood “establishes that new

evidentiary rules [including sufficiency-of-the-evidence rules] may be applied retroactively.”

Webb, 638 N.E.2d at 1030. Youngblood upheld a statutory change that allowed courts to

reform improper jury verdicts, reasoning that these kinds of after-the-crime procedural

changes fell outside of the Ex Post Facto Clause. After parsing the Court’s precedents and

searching for the original meaning of the Clause, Youngblood concluded that the Clause

“addressed . . . laws, whatever their form, which make innocent acts criminal, alter the nature

of the offense, or increase the punishment.” 497 U.S. at 46 (internal quotation marks

omitted). This definition conspicuously omitted alterations to the “legal rules of

evidence”—part of Justice Chase’s well-known definition of ex post facto laws in Calder v.

Bull, 3 U.S. (3 Dall.) 386, 390 (1798). See Youngblood, 497 U.S. at 43 n.3, 46. If

Youngblood could say that ex post facto requirements (and thus due process requirements)

do not extend to evidentiary rules, the Ohio Supreme Court reasonably could conclude that

they do not extend to standards of review.

Even though the Ohio Supreme Court never analyzed Webb’s challenge under the

Bouie line of cases, its decision is neither contrary to nor an unreasonable application of

these cases. All of these cases involved judicial decisions that allegedly retroactively

converted an innocent act into a crime. See Osborne v. Ohio, 495 U.S. 103, 116–17 (1990);

Splawn v. California, 431 U.S. 595, 601 (1977); Marks, 430 U.S. at 195–96; Rose v. Locke,

423 U.S. 48, 53 (1975); Hamling v. United States, 418 U.S. 87, 115–16 (1974); Douglas v.

Buder, 412 U.S. 430, 432 (1973); Rabe v. Washington, 405 U.S. 313, 315–16 (1972); Bouie,

378 U.S. at 354–55. None involved appellate standards of review or evidentiary

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determinations. Jenks also changed a common-law doctrine, see York, 858 F.2d at 330, yet

all of the U.S. Supreme Court cases involved judicial interpretations of statutes, see Osborne

v. Ohio, 495 U.S. at 116–17 (summarizing cases).

Webb says that we should give fresh review to the state court’s decision rather than

deferentially reviewing it under AEDPA because the state court analyzed his claim only

under the Ex Post Facto Clause. Not true. Acknowledging that ex post facto requirements

do not apply to judicial decisions, the Ohio Supreme Court interpreted Bouie to place

“similar constraints” on courts through due process. Webb, 638 N.E.2d at 1029 n.1. So

while the state court relied on ex post facto cases, it addressed Webb’s due-process fair-

warning claims. We thus cannot give unconstrained, non-AEDPA review to his claims and

thus have no basis for reviewing his claims under Rogers, 532 U.S. 451, which postdates the

Ohio Supreme Court’s decision by seven years.

C.

Webb argues that his trial counsel provided constitutionally ineffective assistance

during the penalty phase of his trial by failing adequately to investigate and present

mitigating evidence. In state post-conviction proceedings, the Ohio Court of Appeals found

this claim barred by res judicata and did not address it on the merits. State v. Webb, No.

CA96-12-108, 1997 WL 656312, at *2 (Ohio Ct. App. 1997). The district court held Webb

did not procedurally default this claim, however, and proceeded to review the claim on the

merits. We thus give fresh review to the merits of this claim—as the State concedes we

should.

To prevail, Webb must show that his counsel’s performance was deficient and that

he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687 (1984). To show

prejudice, Webb must demonstrate that, but for counsel’s poor performance, “there is a

reasonable probability” the result would have been different. Id. at 694. In the penalty-

phase investigation context, that requires producing evidence Webb’s trial counsel should

have uncovered that “differs in a substantial way—in strength and subject matter—from the

evidence actually presented.” Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir. 2005).

No. 06-4606 Webb v. Mitchell Page 11

Webb’s trial counsel obtained a psychological evaluation of Webb, but chose not to

present any psychological evidence during the penalty phase. He instead presented nine

family members, including Webb’s then-wife and daughters, and one close family friend.

Webb also made an unsworn statement to the jury. Counsel argued that Webb should not

receive a death sentence mainly because (1) he could continue to contribute to his family’s

welfare if allowed to live, (2) the living victims of Webb’s crimes—his family—wanted to

spare his life, and (3) residual doubt about Webb’s guilt favored leniency. (At the district

court’s habeas hearing, it bears noting, his ex-wife testified against him and his children no

longer testified in support of him.)

Webb argues that the mitigation investigation was “appallingly inadequate,” R. 41

at 67, and submits four affidavits purporting to show why. The first is from Michel Coconis,

Webb’s mitigation investigator, whom trial counsel hired three days before the guilt phase

began. Coconis points to several factors that she believes rendered her investigation

incompetent, including too many other commitments at the time, being hired too close to

trial, speaking to family members only in group settings and talking to family members only

when the guilt-phase proceedings dominated their thoughts.

James Owens, a capital defense attorney in Ohio, submitted the second affidavit. He

provides a bullet-point how-to manual for capital defense litigation. In commenting on

Webb’s mitigation investigation, he says that a failure adequately to investigate “evidence

of mitigation” constituted one “of the many errors made by [Webb]’s trial counsel without

any possible potential strategic purpose.” App’x 3960–61. Martin D. Yant’s affidavit

speaks to the inadequacy of trial counsel’s investigation at the guilt phase of the trial.

The final affidavit, from a psychologist named Jeffrey Smalldon, critiques counsel’s

choice not to present any psychological mitigating evidence. Smalldon also criticizes the

decision by trial counsel to hire a psychological expert, Richard Sexton, with no experience

in mitigation preparation or forensic psychology and who ultimately did not testify. In

Smalldon’s opinion, loose language in Sexton’s report, not properly couched in appropriate

qualifiers, could have hurt Webb during mitigation had Sexton testified. Smalldon also

opined that Sexton’s failure to do a “comprehensive psychological, psychosocial, and

possibly neuropsychological inquiry” did not serve Webb well. App’x 3313–14.

No. 06-4606 Webb v. Mitchell Page 12

While some of these affidavits may well identify legitimate critiques of counsel’s

performance, they do not establish prejudice. The Coconis, Owens and Yant affidavits do

not point to any evidence that differs substantially—in strength and subject matter—from

the evidence Webb’s counsel possessed. See Hill, 400 F.3d at 319. The three affidavits,

indeed, fail to point to any evidence that the allegedly deficient investigation failed to

uncover.

While the Smalldon affidavit attempts to demonstrate prejudice, it does not do so.

Smalldon presents a more nuanced and troubling picture of Webb’s mental health than

Sexton does, ultimately diagnosing him with “prominent passive-aggressive, paranoid, and

antisocial features.” App’x 3940. He also speculates that Webb sometimes “totally

disregards important aspects of reality in the course of responding to some deep-seated

emotional need,” such as being a “heroic figure” for his family. Id. But Smalldon bases his

assessment primarily on reports created by Webb’s trial counsel and interviews with Webb,

which Sexton also conducted. Smalldon thus merely develops a different psychological

profile based on the same facts Sexton apparently used, making it difficult to maintain that

Sexton (and Webb’s counsel) failed to uncover mitigating evidence that a later investigation

uncovered. See Hill, 400 F.3d at 315–16; Smith v. Mitchell, 348 F.3d 177, 201–02 (6th Cir.

2003); cf. Rompilla v. Beard, 545 U.S. 374, 390–93 (2005) (defense counsel failed to

uncover history of mental illness, severe privation and abuse); Wiggins v. Smith, 539 U.S.

510, 534–35 (2003) (same).

We also cannot reliably evaluate how much of Sexton’s report differs from

Smalldon’s, or any other aspect of Sexton’s performance, further hamstringing a cognizable

prejudice argument. Smalldon—a psychologist specifically hired during post-conviction

proceedings to evaluate possible ineffective-assistance defenses—provides the only record

of Sexton and his findings. For reasons never explained, Webb has not introduced Sexton’s

report in any state or federal post-conviction proceeding. While we do not doubt the

competence or good faith of Smalldon, that does not make him an objective evaluator of

Sexton’s work. On this record—which does not contain Sexton’s report and does not

contain any newly uncovered facts that Webb’s counsel (Sexton) should have discovered

earlier—Smalldon cannot help Webb overcome “the strong presumption” that his trial

No. 06-4606 Webb v. Mitchell Page 13

counsel conducted a reasonable investigation. Campbell v. Coyle, 260 F.3d 531, 553 (6th

Cir. 2001).

One loose end: Why didn’t Webb’s counsel nonetheless introduce Sexton’s report

or at least offer Sexton as a witness? One possibility, as confirmed by Smalldon, is that the

report contained information potentially damaging to Webb’s mitigation theory. The other

is the tension that may arise between a residual doubt theory and psychological testimony.

Psychological evidence may conflict with a residual doubt theory at mitigation because, to

be persuasive, it simultaneously must explain how the defendant’s psychological makeup

could lead him to commit the murder but mitigate the circumstances of his doing so. See

McCracken v. Gibson, 268 F.3d 970, 980 (10th Cir. 2001).

But even if the Smalldon affidavit estalished prejudice, which it did not, Webb did

not make a sufficient showing of deficient performance. His counsel’s decision not to

introduce Sexton’s psychological evaluation, which described Webb as cold and violent, was

not unreasonable because this evaluation would have undermined Webb’s mitigation theory

that he could contribute to his family’s welfare if allowed to live. Because Sexton’s initial

evaluation was unfavorable, Webb’s counsel’s decision not to seek a more extensive

psychological evaluation was also reasonable.

D.

Webb claims that the prosecutor violated his due-process rights during the guilt

phase by commenting on Webb’s failure to testify, by taunting Webb and by presenting

character evidence even though Webb did not testify. This misconduct, Webb adds, also

infected the penalty phase because the trial judge instructed the jury to consider all of the

guilt-phase evidence when evaluating whether to impose the death penalty. To obtain relief,

the prosecutorial misconduct must have “so infected the trial with unfairness as to make the

resulting conviction a denial of due process,” Darden v. Wainwright, 477 U.S. 168, 181

(1986) (internal quotation marks omitted), and the state court’s contrary ruling on the point

must have been unreasonable.

Under the Fifth (and Fourteenth) Amendment, the prosecution may not comment on

a defendant’s refusal to testify. See Griffin v. California, 380 U.S. 609, 614 (1965). In

No. 06-4606 Webb v. Mitchell Page 14

arguing that the prosecution’s guilt-phase summation violated this prohibition, Webb focuses

on one incident. During a lunch recess near the end of the trial, one of the prosecutors

(Breyer) was in the courtroom with Webb and a court deputy. Breyer told Webb that he

could not believe Webb would stoop low enough to blame his daughters as part of his

defense. (This exchange does not appear in the trial transcript, but Breyer tacitly admitted

it occurred, see App’x 2949). Two hours later, another prosecutor (White) concluded his

rebuttal summation by standing “five to six feet” from Webb and declaring “[t]hat man right

there in that chair killed his son. That man right there in that chair tried to kill every single

person in his house.” App’x 2901K, 2904. Webb then burst out “[y]ou’re wrong,” and

White responded “[h]e spoke” before finishing his summation. App’x 2901K.

Webb claims the prosecutor’s remark that “[h]e spoke” “naturally and necessarily”

commented on Webb’s refusal to testify and that this represented a deliberate strategy since

Breyer’s earlier remark primed Webb for an outburst. Pet’r Br. at 71–72. The Ohio courts

did not unreasonably apply Darden and Griffin in concluding otherwise. Whether a

prosecutor’s comment violates the Fifth Amendment turns on content and context: (1) Did

the prosecutor “manifestly intend[]” to comment on the defendant’s Fifth Amendment right

or would a jury “naturally and necessarily” interpret the remark that way; (2) was it an

isolated occurrence or part of an extensive pattern; (3) how strong was the prosecution’s

other evidence and (4) did the judge give a curative instruction? Bowling v. Parker, 344

F.3d 487, 514 (6th Cir. 2003).

No evidence shows that White “manifestly intended” to comment on Webb’s refusal

to testify. The isolated remark more plausibly reflected surprise and a plea for the judge to

restore order during the climax of his summation. See Byrd v. Collins, 209 F.3d 486, 534

(6th Cir. 2000) (finding no manifest intent where benign, equally plausible explanations

exist). Even though a lawyer might have interpreted the remark as commenting on Webb’s

Fifth Amendment rights, a lay juror would not “naturally and necessarily” reach that

conclusion. See id. Breyer’s earlier remark, while inappropriate and unethical, does not

change matters. It is highly unlikely that a prosecutor could plausibly think that this remark

would so inflame Webb that, two hours later, he would speak out, giving another prosecutor

an opportunity to sneak in an oblique reference to Webb’s silence at the end of the

No. 06-4606 Webb v. Mitchell Page 15

summation. The trial judge also mitigated any harm from White’s comment by instructing

the jury on Webb’s Fifth Amendment rights during his general instructions to the jury.

Webb persists that fourteen other statements during the prosecution’s summation also

commented on Webb’s refusal to testify. Taken together with the first statement, Webb

urges, these statements show a pattern of improper comments that infected the entire trial.

Four of the statements refer to evidence as uncontradicted. But that kind of reference

does not reflect on a defendant’s failure to testify if evidence other than the defendant’s own

testimony could have contradicted it. See Joseph v. Coyle, 469 F.3d 441, 474 (6th Cir.

2006); Raper v. Mintzes, 706 F.2d 161, 164 (6th Cir. 1983).

Seven other statements merely summarize the evidence. Prosecutors may

“summarize the evidence and comment on its quantitative and qualitative significance”

during their summation, see Bowling, 344 F.3d at 514, which includes responding to the

defense’s “reasonably likely contentions and tactics,” Bedford v. Collins, 567 F.3d 225, 233

(6th Cir. 2009), and recounting testimony about the defendant’s knowledge and

conversations. Prosecutors also have “leeway” during their summation to argue “reasonable

inferences from the evidence.” Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000). Webb

makes no attempt to demonstrate how the seven statements overstep these bounds.

Two more statements occurred during the prosecution’s rebuttal summation. But

these refer to defense counsel and his summation, not to Webb.

That leaves the last statement, in which the prosecution referred to a piece of

evidence as “uncontradicted” that only Webb could have contradicted. See Raper, 706 F.2d

at 164–65. But the Supreme Court has not held that such comments invariably violate

Griffiin, id., and Webb makes no attempt to show that the Ohio Supreme Court unreasonably

applied Griffin in finding this remark permissible. Even if the statement did cross the line,

moreover, it does not establish an extensive pattern in the context of the prosecution’s

summation, which spanned ninety-four pages of transcript, and the trial, which spanned

1,500 pages.

Webb’s claim about the prosecutor’s introduction of other-acts evidence fares no

better. While framed as a prosecutorial-misconduct challenge, it amounts in the end to a

No. 06-4606 Webb v. Mitchell Page 16

challenge to the trial court’s decision to allow the introduction of this evidence. See Coleman

v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001). “A prosecutor may rely in good faith on

evidentiary rulings made by the state trial judge and make arguments in reliance on those

rulings,” Cristini v. McKee, 526 F.3d 888, 900 (6th Cir. 2008), and a trial court violates due

process only if admitting the evidence under state law violates “fundamental conceptions of

justice.” Dowling v. United States, 493 U.S. 342, 352–53 (1990). Webb makes no attempt

to show how the admission of this evidence violated this standard or how the Ohio Supreme

Court unreasonably applied or contradicted Dowling in rejecting this claim. And we doubt

he could prevail on any such argument because the evidence that Webb contests plausibly

goes to motive as well as to character. Cf. Leavitt v. Arave, 383 F.3d 809, 829 (9th Cir.

2004) (holding other-acts evidence violates due process if the evidence “goes only to

character and there are no permissible inferences the jury may draw from it” (internal

quotation marks omitted)).

III.

Webb next challenges the district court’s conclusion that Webb procedurally

defaulted two of his ineffective-assistance-of-counsel claims. A habeas petitioner

procedurally defaults a claim if: (1) the petitioner fails to comply with a state procedural

rule; (2) the state courts enforce the rule; (3) the state procedural rule is an adequate and

independent state ground for denying review of a federal constitutional claim; and (4) the

petitioner cannot show cause and prejudice excusing the default. See Maupin v. Smith, 785

F.2d 135, 138 (6th Cir. 1986).

A.

The district court erred, Webb says, in holding that he procedurally defaulted his

claim that trial counsel acted ineffectively by failing to object to a penalty-phase jury

instruction. In orally instructing the jury on its obligation to balance the aggravating and

mitigating factors, the trial judge apparently had a slip of the tongue:

To outweigh means to weigh more, to be more important than. In this

regard, it is the quantity of the evidence that must be given consideration by

you, and the quality of the evidence may or may not be commensurate with

the quantity of the evidence . . . .

No. 06-4606 Webb v. Mitchell Page 17

App’x 3149 (emphasis added). The trial judge refused to give the jurors written copies of

the instructions, which did not contain this error, even after the jurors asked for them.

Webb’s trial counsel never brought the error to the attention of the trial judge or requested

that the judge re-instruct the jury.

Under Ohio law, defendants generally must raise ineffective assistance of trial

counsel claims on direct review, see Greer v. Mitchell, 264 F.3d 663, 674 (6th Cir. 2001),

although this rule was in flux at the time of Webb’s direct appeal in the early 1990s. See

Franklin v. Anderson, 434 F.3d 412, 418 (6th Cir. 2006); State v. Murnahan, 584 N.E.2d

1204, 1207–09 (Ohio 1992) (establishing rule that defendants could not raise ineffective-

assistance claims in post-conviction proceedings). Webb obtained new counsel on appeal,

who raised twenty-six issues on direct review, including several ineffective-assistance

claims. See Webb, 638 N.E.2d at 1034, 1037. But Webb’s counsel did not appeal the jury

instruction or argue ineffective assistance for failing to object to that instruction. Webb

subsequently raised this ineffective assistance claim in state post-conviction proceedings, but

the Ohio courts found it barred by res judicata. See Webb, 1997 WL 656312, at *5–6.

Webb then moved to reopen his direct appeal under Ohio Rule of Appellate

Procedure 26(B), the prescribed mechanism for asserting ineffective assistance of appellate

counsel claims under Ohio law, see Ohio R. App. P. 26(B)(1). The Ohio Court of Appeals

rejected the claim as time barred and without merit. See App’x 1422–23; see also State v.

Webb, 708 N.E.2d 710, 711 (Ohio 1999). On the merits, the Ohio Court of Appeals

recognized that the U.S. Supreme Court has held that effective appellate counsel should

select the best claims on appeal, not every non-frivolous claim, to maximize the likelihood

of success. See Jones v. Barnes, 463 U.S. 745, 751–52 (1983). Accordingly, it held that

picking and choosing between various ineffective-assistance claims on direct review was not

objectively unreasonable.

Webb does not deny that he procedurally defaulted his ineffective-assistance claim

with respect to his trial counsel. He argues instead that the claim with respect to his

appellate counsel amounts to cause and prejudice excusing the default. See Smith v. Ohio

Dept. of Rehabilitation and Corrections, 463 F.3d 426, 432 (6th Cir. 2006).

No. 06-4606 Webb v. Mitchell Page 18

We agree with Webb that he did not procedurally default the appellate-counsel claim

by filing an untimely Rule 26(B) motion. We have previously held that the time limitation

in Rule 26(B) is not an independent state ground that the Ohio courts have enforced for

capital-sentence petitioners whose direct appeal had concluded, and whose post-conviction

relief proceedings were initiated, after Murnahan. See Franklin, 434 F.3d at 420–21; cf.

Beuke v. Houk, 537 F.3d 618, 632 (6th Cir. 2008). Ohio’s Rule 26(B) time bar accordingly

does not satisfy one of the Maupin requirements for procedural default. Franklin, 434 F.3d

at 420.

Deferential AEDPA review still governs our consideration of Webb’s ineffective

assistance of appellate counsel claim, however, because the Ohio courts also addressed this

claim on the merits. See Brooks v. Bagley, 513 F.3d 618, 624 (6th Cir. 2008). Ineffective

assistance of appellate counsel claims are governed by the same Strickland standard as

ineffective assistance of trial counsel. See Smith v. Robbins, 528 U.S. 259, 285 (2000).

(Robbins, by the way, guides our analysis even though the Supreme Court decided Robbins

after the Ohio courts ruled on Webb’s Rule 26(B) motion because Robbins merely explains

Strickland without creating a new rule. See West v. Bell, 550 F.3d 542, 552 n.3 (6th Cir.

2008)).

The Ohio courts did not unreasonably apply Strickland’s deficiency or prejudice

prongs. To establish deficient performance, Webb must demonstrate his appellate counsel

made an objectively unreasonable decision by choosing to raise other issues instead of this

ineffective assistance of trial counsel issue, meaning that issue “was clearly stronger than

issues that counsel did present.” Robbins, 528 U.S. at 285, 288.

Webb’s ineffective assistance of trial counsel claim is not “clearly stronger” than the

issues he raised on direct review. When reviewing a death sentence on direct review, O.R.C.

§ 2929.05(A) requires Ohio courts independently to “weigh the aggravating circumstances

against the mitigating factors and consider whether the death sentence is disproportionate

to sentences in similar cases,” which the Ohio courts did in this case, see Webb, 638 N.E.2d

at 1037. The Ohio Supreme Court has consistently held that this “careful independent

reweighing” cures errors by the jury or trial court in “weighing the aggravating

circumstances against any mitigating factors,” State v. Lott, 555 N.E.2d 293, 304 (Ohio

No. 06-4606 Webb v. Mitchell Page 19

1990)—including erroneous penalty-phase jury instructions, see State v. Cook, 605 N.E.2d

70, 83 (Ohio 1992). See Nields v. Bradshaw, 482 F.3d 442, 451 (6th Cir. 2007). Even if

Webb’s trial counsel performed deficiently, it is highly unlikely that appellate counsel could

have established prejudice from the deficient performance since independent review cured

any harm from his failure to object. An obviously meritless claim is never “clearly stronger”

than the claims raised on direct appeal.

Webb also cannot establish prejudice even if this claim were “clearly stronger” than

some of the twenty-six issues raised on direct appeal. To establish prejudice, Webb must

demonstrate “a reasonable probability that, but for his counsel’s unreasonable failure to”

raise this issue on appeal, “he would have prevailed.” Robbins, 528 U.S. at 285. The Ohio

Supreme Court’s independent review cured any potential harm from the failure to object, so

the result of the appeal would have been the same even if his appellate counsel had raised

this claim. Because the Ohio courts properly held Webb’s appellate counsel did not perform

ineffectively, Webb has not established cause and prejudice excusing the procedural default

of his ineffective trial counsel claim.

Webb offers two rejoinders. He first argues that he is actually innocent and that his

innocence establishes the requisite cause to excuse a procedural default “where a

constitutional violation has probably resulted in the conviction of one who is actually

innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986). But Webb misunderstands how

we apply the actual innocence test. Webb grounds his actual innocence claim in the alleged

Brady violation we rejected earlier; he cannot excuse procedural default on this issue by

establishing a different constitutional violation “probably resulted in the conviction of one

who is actually innocent,” Schlup, 513 U.S. at 327 (internal quotation marks omitted). Webb

must show that this constitutional violation “probably resulted in the conviction of one who

is actually innocent.”

Webb next argues it does not matter whether he can show cause and prejudice

because he did not procedurally default this claim in the first place. According to Webb,

when the Ohio courts engage in the statutory independent review process, see O.R.C.

§ 2929.05(A), they implicitly review ineffective assistance of trial counsel claims. Thus, the

argument goes, this claim does not implicate Ohio’s res judicata rule.

No. 06-4606 Webb v. Mitchell Page 20

We accepted an implicit review theory once before. See Cone v. Bell, 359 F.3d 785,

790–94 (6th Cir. 2004), rev’d on other grounds Bell v. Cone, 543 U.S. 447 (2005). In Cone,

the petitioner included in his habeas petition an Eighth Amendment vagueness challenge to

an “especially heinous, atrocious and cruel” aggravator the jury relied upon in imposing a

death sentence. See id. at 788, 790. When the warden argued that Cone had procedurally

defaulted this claim by not raising it in the state courts, Cone responded that “the Tennessee

Supreme Court ‘necessarily reviewed’ the claim as part of its mandatory death penalty

review.” Id. at 789–90.

We agreed—based on the language of Tennessee’s mandatory independent review

statute and a Tennessee Supreme Court decision. Id. at 791–93. The statute requires the

Tennessee Supreme Court to review whether “the sentence of death was imposed in an

arbitrary fashion.” Tenn. Code. Ann. § 39-2-205(c) (current version at Tenn. Code Ann.

§ 39-13-206(c)); see also Cone, 359 F.3d at 790. The decision, State v. West, held

Tennessee courts had implicitly reviewed an Eighth Amendment vagueness challenge as part

of their mandatory statutory review under § 39-2-205. See 19 S.W.3d 753, 754, 756 (Tenn.

2000); see also Cone, 359 F.3d at 791–92. Due only to the language of the statute and the

decision in West, we concluded that Tennessee courts implicitly review Eighth Amendment

vagueness challenges on direct review, meaning that the claims were not procedurally

defaulted even though not explicitly raised on direct review. See Cone, 359 F.3d at 792–93.

We limited our holding, however, to Eighth Amendment vagueness challenges, as only those

challenges had statutory and decisional support. Id. at 793.

Cone is readily distinguishable. First, nothing in Ohio’s independent review statute

hints that Ohio courts implicitly review the performance of counsel during their mandatory

review. See O.R.C. § 2929.05(A). Second, we are unaware of a single Ohio case that

embraces the implicit review theory in any context, let alone in the context of an ineffective

assistance claim.

Webb disagrees, citing a number of cases in which the Ohio Supreme Court reviewed

issues not properly preserved below but explicitly raised on appeal when reviewing death-

penalty convictions. To the extent the Ohio courts review these improperly preserved claims

for plain error, that does not save the claims from procedural default. See Coleman v.

No. 06-4606 Webb v. Mitchell Page 21

Thompson, 501 U.S. 722, 741 (1991); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir.

2006). It requires a significant “conceptual leap” at any rate to go from reviewing claims not

properly preserved, but explicitly raised, to claims that were never raised at all. Cone, 359

F.3d at 792–93. We decline to make that leap today without any Ohio authority for

attempting it.

B.

Webb challenges the district court’s conclusion that he procedurally defaulted

numerous ineffective-assistance claims during the guilt phase. But nothing can come of this

challenge because the district court also rejected these claims on the merits and Webb did

not ask for a certificate of appealability on the merits determinations with respect to these

claims. No court thus could grant the writ on this basis even if we held that these claims

were not procedurally defaulted.

While we are generally not in the business of reversing certificates of appealability,

see Porterfield v. Bell, 258 F.3d 484, 485 (6th Cir. 2001), it bears repeating what is required

before one can be issued. To obtain a COA on an issue, a petitioner must show that

“reasonable jurists would find the district court’s assessment of the constitutional claim[]

debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). This inquiry is

straightforward when a district court denies a constitutional claim on the merits. But where

the district court denies an issue on procedural grounds without evaluating the merits of the

underlying constitutional claim, courts should grant a COA only if two requirements are

satisfied. See Slack v. McDaniel, 529 U.S. 473, 484–85 (2000). First, the court must

determine that reasonable jurists would find the district court’s procedural assessment

debatable or wrong. Id. at 484. Second, the court must determine that reasonable jurists

would find it debatable or obvious that the petitioner states a valid underlying constitutional

claim on the merits. Id. If the petitioner cannot make both of these showings, assessed in

whatever order, then a court should not grant a COA on the procedural issue. Id.

This framework faithfully applies the text of 28 U.S.C. § 2253—requiring “a

substantial showing of the denial of a constitutional right” before courts may grant a

COA—while not making procedural rulings unreviewable. See Slack, 529 U.S. at 484. By

contrast, it does violence to the text of § 2253—a jurisdictional statute, see Hill v. Mitchell,

No. 06-4606 Webb v. Mitchell Page 22

400 F.3d 308, 329 (6th Cir. 2005)—when courts grant COAs without assessing the

debatability of the underlying merits.

IV.

For these reasons, we affirm.