Cleveland Jackson v. Marc Houk

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0227p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Petitioner-Appellant, -

CLEVELAND R. JACKSON,

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No. 08-3677

v.

,

>

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Respondent-Appellee. -

MARC C. HOUK, Warden,

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Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 07-00400—Donald C. Nugent, District Judge.

Argued: April 20, 2011

Decided and Filed: July 24, 2012

Before: MERRITT, MARTIN, and ROGERS, Circuit Judges

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COUNSEL

ARGUED: James A. Jenkins, Cleveland, Ohio, for Appellant. Thomas E. Madden,

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

ON BRIEF: James A. Jenkins, John B. Gibbons, Cleveland, Ohio, for Appellant.

Thomas E. Madden, Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY

GENERAL, Columbus, Ohio, for Appellee.

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OPINION

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MERRITT, Circuit Judge. Cleveland R. Jackson was convicted by an Ohio jury

of two murders committed in 2002. The court sentenced him to two separate death

sentences, one for each murder. The Supreme Court of Ohio on direct appeal reversed

and vacated the death sentence for one of the murders based on the trial judge’s errors

in limiting the voir dire, but it affirmed the other death sentence. Jackson later filed a

federal habeas corpus petition, claiming a number of grounds of relief, all of which the

1

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district court denied. We granted a certificate of appealability as to nine of those claims,

the most difficult of which concerns the claim that the trial court violated Jackson’s right

to due process of law when, after denying his counsel the right to question the jury

concerning pretrial publicity, it then denied his motion for a change of venue premised

on the extraordinary pretrial publicity present in Lima, Ohio, the small community in

which he was tried. Based on Supreme Court precedent, we are required to affirm.

I. Factual and Procedural History

On the evening of January 3, 2002, Petitioner Jackson and his half-brother,

Jeronique Cunningham, went to the apartment of Shane Liles in Lima, Ohio, to rob him

of money and drugs. Liles had sold Cunningham crack cocaine earlier that day. Shortly

after the two arrived, Liles and Jackson discussed a drug transaction on the apartment’s

staircase while, nearby, Cunningham sat in the living room and watched television with

three teenagers who happened to be in the apartment. One of those teenagers was

Leneshia Williams.

The robbery was set into motion when Cunningham stood up and ordered the

three teenagers into the kitchen. It quickly turned violent when Cunningham produced

a gun and struck one of the teenagers in the jaw with it after he did not immediately

comply with Cunningham’s order. Jackson then brandished a gun of his own, aimed it

at Liles, and forced him upstairs where he robbed him of money and drugs. Jackson then

tied Liles’s hands behind his back and took him downstairs to the kitchen, where

Cunningham was holding captive the original three teenagers and four other individuals,

including one three-year-old girl named Jayla Grant.1 Jackson ordered Liles to give him

the rest of the money. When Liles responded that he had given Jackson all that he had,

Jackson shot him in the back.

Jackson and Cunningham then opened fire on everyone in the kitchen. After

shooting until both of their guns were emptied of ammunition, the two men fled the

1

In the record, Jayla Grant’s first name is spelled “Jala.” However, we will follow the district

court and spell her name “Jayla.”

No. 08-3677 Jackson v. Houk Page 3

scene. Though all in the kitchen were shot at least once, two were killed: Leneshia

Williams and Jayla Grant.

Jackson was indicted for both murders and for aggravated robbery and attempted

aggravated murder as to the surviving shooting victims. In a trial completed

immediately prior to Jackson’s trial, Cunningham was also charged with, convicted of,

and sentenced to death for the same two murders. His habeas appeal is separately

pending before this court. The murder counts each contained two death-penalty

specifications, one alleging that the murder was committed as part of a course of conduct

to kill or attempt to kill two or more persons, and one alleging that the murder was

committed during an aggravated robbery and with prior calculation and design. At trial,

Jackson denied committing the murders. He took the stand in his own defense, appeared

to attribute the robbery principally to Cunningham, and denied all of the shootings save

for that of Liles, which, Jackson maintained, only occurred when his gun accidentally

went off. Jackson claimed that Cunningham’s gun also malfunctioned after Cunningham

attempted to shoot one of the others in the kitchen, that Cunningham then took Jackson’s

gun, and that Jackson heard one shot as he ran out of the apartment. He claimed to find

out only later that others had been shot, though he also conceded meeting with

Cunningham shortly thereafter and fleeing the scene in a car together. Unpersuaded by

this account, the jury convicted Jackson of all counts and specifications, and, after a

penalty-phase hearing, imposed a sentence of death for each murder count. The court

followed the jury’s verdict and separately sentenced Jackson to death for each murder.

The preceding factual account is drawn from Jackson’s direct appeal to the

Supreme Court of Ohio. State v. Jackson, 836 N.E.2d 1173, 1183-85 (Ohio 2005). That

court rejected all of Jackson’s claims of error as to his guilt, but accepted one claim of

error challenging one of his two death sentences: as to the murder count pertaining to

three-year-old Jayla Grant, the court determined that the trial court abused its discretion

in handling the jury voir dire by denying Jackson’s request to inform potential jury

members — some of whom had expressed tendencies toward automatic imposition of

the death penalty for child killers — that one of the victims was a young child. Id. at

No. 08-3677 Jackson v. Houk Page 4

1187-92. It found that this error did not affect the validity of the other death sentence.

Id. at 1192. Though it remanded the Grant count for resentencing, the result of the direct

appeal was that Jackson’s death sentence, if only for the murder of Leneshia Williams,

became final.

After unsuccessfully pursuing post-conviction relief in the Ohio state courts,

Jackson filed a petition for a writ of habeas corpus in federal district court, pursuant to

28 U.S.C. § 2254. His petition raised twenty claims. The district court denied them all

and declined to grant a certificate of appealability on any of them. Jackson v. Houk,

No. 3:07CV0400, 2008 WL 1946790 (N.D. Ohio May 1, 2008).

We then certified nine of Jackson’s habeas claims for appellate review: (1) the

trial court improperly limited Jackson’s ability to uncover juror bias against him in

connection with pretrial publicity which led it to deny his motion for a change of

venue; (2) the trial court improperly prohibited trial counsel from examining prospective

jurors about potential bias against someone accused of killing a young child; (3) the trial

court improperly prohibited trial counsel from conducting a careful and searching

examination of prospective jurors about potential bias against someone accused of

killing a young child; (4) the trial court improperly prohibited trial counsel from

examining prospective jurors about whether they could consider a life sentence for the

killing of a young child; (5) the trial court improperly prohibited trial counsel from

examining prospective jurors who expressed reservations about imposing the death

penalty; (6) the trial court improperly excused prospective jurors who expressed

reservations about imposing the death penalty; (7) the cumulative effect of the trial

court’s errors in voir dire amounted to a denial of a fundamentally fair trial; (8) trial

counsel rendered ineffective assistance of counsel throughout trial; and (9) trial counsel

rendered ineffective assistance of counsel by failing to investigate and introduce helpful

and explanatory mitigating evidence at trial. We will address each in turn, beginning

with Jackson’s venue claim.

One final point, before turning to the merits of these claims. Jackson filed his

habeas petition subsequent to the effective date of the Antiterrorism and Effective Death

No. 08-3677 Jackson v. Houk Page 5

Penalty Act (AEDPA). This fact significantly constrains our review of most of

Jackson’s claims. Where a claim was not overlooked but was adjudicated on the merits

in a state court proceeding, we may grant the writ only if the state court adjudication

“(1) 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; or (2) resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d). In the recent case of Greene v. Fisher, 565 U.S. ____, 132 S. Ct. 38, 43-44

(2011), a unanimous Supreme Court observed that the AEDPA standard “is difficult to

meet, because the purpose of AEDPA is to ensure that federal habeas relief functions as

a guard against extreme malfunctions in the state criminal justice systems, and not as a

means of error correction.” (internal quotation marks and citations omitted.)

II. The Denial of Jackson’s Motion for a Change of Venue

We address first Jackson’s claim that the trial court constitutionally erred when

it denied his motion for a change of venue premised on the extensive pretrial publicity

surrounding the murders, while at the same time denying him the right to question the

jury about any specific details concerning a juror’s knowledge of the publicity. Jackson

presented this claim on direct appeal, but the Supreme Court of Ohio did not address it

at all. Because de novo review leads to affirmance, we need not decide whether AEDPA

deference applies under the rule of Harrington v. Richter, 131 S. Ct. at 784-85.

Accordingly, we review it de novo. We take into account the unusually detailed and

extensive publicity about the murders in this case, and about the trial and death sentence

of Cunningham immediately before Jackson’s trial. We also take into account for

purposes of due process the limitations placed on defense counsel during voir dire, and

the small size of the community in which these events took place. We are governed by

the strict principles limiting federal review of jury voir dires and motions for change of

venue imposed by the Supreme Court in Mu’Min v. Virginia, 500 U.S. 415 (1991) and

Skilling v. United States, 130 S. Ct. 2896 (2010). Constrained by the language of these

two Supreme Court opinions, we conclude that no due process violation occurred.

No. 08-3677 Jackson v. Houk Page 6

A. Factual Background

We turn first to the details of the pretrial publicity that surrounded this case.

Newspapers and television in the community of Lima, Ohio, consistently identified

Jackson and his accomplice, Cunningham, as the sole suspects in the case from the

moment of their apprehension some three days after the murders. [J.A. 7470.] Nearly

every step of the legal proceedings against them was chronicled, beginning with their

first appearance in court, which the Lima News covered with photographs of the two men

in bullet proof vests and an article relating that “[e]xtra officers were brought in for

added security due to the publicity surrounding the crime” and quoting a victim’s family

member as saying, “I can’t wait to see what they’re going to get.” [J.A. 7473-74.]

Two days later, a newspaper account mentioned that security problems caused by “the

high running emotions surrounding the case” were forcing court and state officials to

avoid preliminary hearings. [J.A. 7477.] Accounts spoke of a “mountain of evidence,

including two lengthy statements” from both defendants. [J.A. 7483.] The pretrial

motions in Jackson’s case — including the venue motion at the heart of the present

appeal — received considerable media attention. [J.A. 7485-91.] Newspaper accounts

even covered the litigation surrounding the contents of proposed jury questionnaires to

be used in selecting Jackson’s jury. [J.A. 7492.]

Meanwhile, the pre-trial rulings and trial of Cunningham, which occurred just

prior to that of Jackson, were covered in detail by the press. [See, e.g., J.A. 7493-7522.]

Opening arguments in the Cunningham trial were described under the headline “‘New

Year’s Massacre’ on Eureka Street.” [J.A. 7513.] Media accounts relayed the testimony

of James Grant, the father of the child victim, in which he described “begg[ing] for his

young daughter’s life as a gun was pointed at her head and fired.” [J.A. 7509.] Later

accounts repeating this scene further dramatized the testimony in Cunningham’s trial:

“[T]he remaining soon-to-be victims huddled together on the kitchen floor, crying as

James Grant pleaded with the men to spare the life of his 3-year-old daughter,

[Jayla] Grant. But the men didn’t listen.” [J.A. 7515.] Television accounts described

testimony in Cunningham’s trial specifically accusing Jackson of shooting Jayla Grant.

No. 08-3677 Jackson v. Houk Page 7

[J.A. 7586.] As soon as the verdict came in, local television stations broke into daytime

programming such as The Oprah Winfrey Show in order to report that Cunningham had

been found guilty. [J.A. 7796.] A news account summarizing the jury’s death verdict

against Cunningham quotes an assistant prosecutor as promising of Jackson’s trial: “It’s

going to be a rewind and play it again.” [J.A. 7521.]

Cunningham was formally sentenced to death on June 26, 2002. [J.A. 7522.]

Two weeks later, jury selection in Jackson’s case began. The jury pool was aware of the

extensive media coverage of the murders and Cunningham’s trial and conviction. Our

examination of individual questioning in the voir dire indicates that of the twelve jurors

actually seated, all but one reported knowing about the case through the media, and the

one who said he did not apparently knew one of the victims personally. [J.A. 11843-44.]

Some seated jurors reported hearing it generally and others remembered specifics such

as that a young child was involved. [See, e.g., J.A. 11886.]

B. Procedural History and Standard of Review

Prior to his trial’s commencement, Jackson filed a motion for change of venue,

contending that the detailed and inflammatory media coverage required the court to

presume prejudice in advance of voir dire. He asked to move the trial away from Allen

County, where the town of Lima is located. [J.A. 857-63.] The prosecution, for its part,

sought to prevent any questioning during individual voir dire concerning the contents

of pretrial publicity encountered by potential jurors and moved in limine specifically to

foreclose any inquiry as to potential jurors’ knowledge of the facts or outcome of

Cunningham’s trial. The trial court granted the state’s motion and precluded all inquiry

into the contents of pretrial publicity [J.A. 1684-85, 11437-41], but it withheld a ruling

on Jackson’s venue motion until the conclusion of voir dire. After voir dire and with the

jury seated, the trial court denied Jackson’s venue motion, finding that the “impartiality

of the members of the jury selected and seated was not compromised by any pretrial

publicity.” [J.A. 1693.]

Following his conviction and death sentence, Jackson renewed his venue claim

in his brief on direct appeal before the Supreme Court of Ohio. Under his Proposition

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of Law I — framed, at a somewhat high level of generality, as an argument that Jackson

“was entitled to a trial by a fair and impartial jury free from bias or preconceived

opinions about guilt or punishment” under various state and federal constitutional

provisions — his brief argued specifically: “Jackson was entitled to a change of venue.

Changes in venue help to protect fair trial rights. A trial court can change venue when

it appears that a fair and impartial trial cannot be held in that court.” [J.A. 1937 (internal

quotation marks and citations omitted).] Jackson’s brief then went on to cite State v.

Lundgren, a Supreme Court of Ohio case interpreting the federal constitutional standard

for a defendant’s right to a change of venue where prejudice should be presumed. See

653 N.E.2d 304, 313-14 (Ohio 1995) (citing, in the portion of the opinion cited in

Jackson’s brief, Sheppard v. Maxwell, 384 U.S. 333 (1966), and Rideau v. Louisiana,

373 U.S. 723 (1963)). Despite having this argument before it, the Supreme Court of

Ohio failed entirely to address the legal question of whether Jackson was entitled to a

change of venue. The word “venue” appears once in the court’s opinion, in a factual

statement recounting the trial court’s denial of Jackson’s motion. See Jackson,

836 N.E.2d at 1186. Overlooking the unmistakable presence of a discrete legal

argument in Jackson’s brief contending that he was entitled to a change of venue, the

Ohio court construed his argument as challenging only the manner in which voir dire

was undertaken, and never reached the distinct question of venue.

This procedural landscape has a significant effect on our standard of review of

Jackson’s venue claim, which he has renewed before this court in his habeas appeal.

AEDPA ordinarily limits our grant of habeas relief to cases where the state court has

acted “contrary to” or has “unreasonabl[y] appli[ed] . . . clearly established Federal law,

as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

But that stricture is limited to claims that were “adjudicated on the merits in State court

proceedings.” 28 U.S.C. § 2254(d). In cases such as this, “when a claim has not been

adjudicated on the merits in State court proceedings, and has not been procedurally

defaulted, we look at the claim de novo rather than through the deferential lens of

AEDPA.” Hill v. Mitchell, 400 F.3d 308, 313 (6th Cir. 2005) (internal quotation marks

and citations omitted).

No. 08-3677 Jackson v. Houk Page 9

The State has advised us in a supplemental brief on October 11, 2011, that this

venue issue is not properly before us for decision because it “was not raised in the

habeas petition,” “was not reviewed by the District Court,” and “Jackson never sought

nor received a COA on this claim.” We have gone back over the record and find that the

record does not support these statements and that counsel for the State is in error that we

“lack jurisdiction to grant relief on this claim.” The record demonstrates that Grounds

II, III and VII of the habeas petition describe due process claims going to the strict

limitations placed on Jackson’s counsel in questioning the jurors regarding their

exposure to the extensive pretrial publicity that prompted his request for a change of

venue. Item 3 of the Certificate of Appealability lists as an issue the fact that the trial

court limited Jackson’s ability to uncover juror bias against him and denied his motion

for a change of venue. The district court denied the claim on the merits by citing

Supreme Court cases, particularly stating that in “Mu’Min, 500 U.S. at 422, the Court

determined that, while a trial court may question potential jurors about their exposure

to pre-trial publicity, the court need not inquire about what media coverage each had

viewed.” Jackson, 2008 WL 1946790, at *41 (internal citations omitted). We do not

lack jurisdiction to review the issue.

C. Merits of the Venue/Voir Dire Issue

Early in the 1960's the Supreme Court recognized that some instances of

pervasive pretrial publicity may render the defendant’s trial fundamentally unfair

regardless of professions of impartiality on the part of jurors seated during voir dire.

In Rideau, a case where the defendant’s televised confession was broadcast to the

community shortly before his trial, the Court held that “it was a denial of due process of

law to refuse the [defendant’s] request for a change of venue.” 373 U.S. at 726 (1962).

In Estes v. Texas, the Court again reversed a conviction where “there had been a

bombardment of the community with the sights and sounds,” 381 U.S. 532, 538 (1965),

of media coverage of an initial pretrial hearing involving the defendant. The Court noted

that a showing of actual prejudice “is not a prerequisite to reversal” where “the

circumstances [are] held to be inherently suspect.” Id. at 542, 544. And in Sheppard,

No. 08-3677 Jackson v. Houk Page 10

faced with what it called a “carnival atmosphere” wrought by extensive media coverage

both before and throughout the trial, the Court held that “where there is a reasonable

likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should

continue the case until the threat abates, or transfer it to another county not so permeated

with publicity.” 384 U.S. at 363. The Court held that “appellate tribunals have the duty

to make an independent evaluation of the circumstances,” and not defer to the state trial

court. Id. at 362. The Court said: “Given the pervasiveness of modern communications

and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial

courts must take strong measures to ensure that the balance is never weighed against the

accused.” Id.

This presumption of prejudice based on pervasive publicity continued into the

1980's. In Patton v. Yount, 467 U.S. 1025, 1031 (1984), the Court acknowledged a

presumption of prejudice: the “jurors’ claims that they can be impartial should not be

believed.” These views concerning pretrial publicity and voir dire arose from a concern

that human nature is such that a juror may want to conceal his own bias or may not be

aware of it.

In Mu’Min, 500 U.S. at 433, and Skilling, 130 S. Ct. at 2918 (2010), the Court

replaced the presumption of prejudice based on pervasive publicity and the need for

extensive voir dire in such circumstances with a constitutional rule of deference to the

trial judge with regard to voir dire and change of venue. Mu’Min, a death penalty case

decided 5-4 on this issue, rejected as a constitutional standard the Standards for Criminal

Justice of the American Bar Association § 8-3.5 (2d ed. 1980), which called for

interrogation of each juror concerning “what the prospective juror has read and heard

about the case.” 500 U.S. at 430 (internal quotation marks omitted). Rather, the Court

“stressed the wide discretion granted to the trial court in conducting voir dire in the area

of pretrial publicity and in other areas of inquiry that might tend to show juror bias.” Id.

at 427. The trial court in Mu’Min had conducted the voir dire with four prospective

jurors in each group and did not allow counsel to ask about the “content” of the publicity

No. 08-3677 Jackson v. Houk Page 11

a juror had heard or read about the case. The Supreme Court specifically approved this

procedure.

The state trial judge in the instant case closely followed the language of the

Mu’Min case and conducted the voir dire based on it. Although all of the jurors knew

something about the case, the trial judge did not allow questions about the “content” of

what they knew or the source of their knowledge. All of the jurors who were accepted

on the jury by the trial court did state, however, that they could render a fair and

unbiased verdict without regard to their knowledge of the case arising from the extensive

pretrial publicity. The Supreme Court of Ohio recognized that the trial judge had

conducted the voir dire in accordance with the pattern approved in the Mu’Min case.

Jackson, 836 N.E.2d at 1186-87.

In Skilling, a 2010 case, the Supreme Court revisited and reaffirmed Mu’Min in

a 5-4 opinion. See 130 S. Ct. at 2918, 2923. The Court had before it massive, intense,

persistent pretrial publicity in Houston, Texas, about the Enron scandal and the

culpability of Enron’s officials. The defendant was the chief operating officer who

became the chief executive of Enron. In denying a change of venue, the Court

repeatedly cited and quoted Mu’Min with approval:

Jury selection, we have repeatedly emphasized, is “particularly within the

province of the trial judge.”. . . see, e.g., Mu’Min, 500 U.S. at 424.

....

When pretrial publicity is at issue, “primary reliance on the judgment of

the trial court makes [especially] good sense” because the judge “sits in

the locale where the publicity is said to have had its effect” and may base

her evaluation on her “own perception of the depth and extent of news

stories that might influence a juror.” Mu’Min, 500 U.S. at 427.

Appellate courts making after-the-fact assessments of the media’s impact

on jurors should be mindful that their judgments lack the on-the-spot

comprehension of the situation possessed by trial judges.

....

In reviewing claims of this type, the deference due to district courts is at

its pinnacle: “A trial court’s findings of juror impartiality may be

No. 08-3677 Jackson v. Houk Page 12

overturned only for manifest error.” Mu’Min, 500 U.S. at 428 (internal

citations and quotation marks omitted).

Id. at 2917-18, 2923.

Based on Skilling, there seems to be no doubt that the Mu’Min constitutional

standard represents the current Supreme Court law of due process that must be applied

by lower courts to problems related to change of venue and the questioning of jurors.

The older standards articulated in the 1960's and repeated in the 1984 Patton v. Yount

case no longer represent the current state of the law, and we are constrained to apply the

new standards of Mu’Min. That standard and our uncertainty as to the scope and content

of the jurors’ knowledge leads us to defer to the state trial judge’s rejection of a change

of venue from the small town where the case was tried to another county of the state.

Absent more detailed knowledge of what the jurors knew from the press, we are unable

to say what effect the publicity had. Mu’Min’s deferential voir dire rule eliminates the

factual basis for an appellate finding of “manifest error” by the trial judge.

III. Jackson’s Other Voir Dire Claims

1. Whether the Trial Court Improperly Prohibited Trial Counsel From Examining

Prospective Jurors About Potential Bias Against Someone Accused of Killing a

Young Child

Jackson claims that the trial court unduly restricted voir dire when it refused to

allow inquiry by defense counsel of prospective jurors concerning their views about

imposing the death penalty on a person who is convicted of killing a three-year-old

child. Counsel wanted to discover bias or a tendency toward automatic imposition of

the death penalty for this class of defendants. The Warden concedes that this claim is

properly preserved. As noted above, the Supreme Court of Ohio accepted this claim and

ruled that the trial court abused its discretion in this respect. Jackson’s argument on

appeal primarily pertains to that court’s remedy: the Ohio court vacated only the death

sentence imposed for the murder of Jayla Grant, the three-year-old child, but Jackson

contends that his improper death sentence (or even his conviction) for the other murder,

of Leneisha Williams, should have been vacated as well. Jackson contends that the child

No. 08-3677 Jackson v. Houk Page 13

murder washes over the whole case. The constraint of AEDPA precludes our issuing the

writ on this basis.

The Ohio Supreme Court’s description of the relevant facts, its reasoning, and

its disposition of the issue, are excerpted in part below:

During individual voir dire, after six prospective jurors had been

questioned, including four who eventually were seated as jurors, defense

counsel requested that the trial court inform prospective jurors that one

murder victim was three years old and allow the defense to question

prospective jurors about that fact to reveal any bias toward imposing the

death penalty. At the time this issue was raised, the trial court had not

informed the venire that one murder victim was three years old. Nor did

the court inform any of the remaining prospective jurors of this fact.

The trial court rejected defense counsel's request and would not

permit counsel to discuss the ages of the murder victims with the venire.

[. . .]

After another 15 prospective jurors had been individually

questioned, including three who eventually became jurors, defense

counsel again asked to examine prospective jurors about their views on

imposing the death penalty on child murderers.

The trial court denied defense counsel's second request, ruling

that a defendant is not entitled to question prospective jurors on the

specifics of the case. [. . .]

We conclude that the trial court's limitation on voir dire in this

case was an abuse of discretion. The trial court erred when it held that

appellant was not entitled to have prospective jurors informed that one

of the murder victims was three years old. While fairness requires that

jurors be impartial, prospective jurors need not be totally ignorant of the

facts and issues involved to be qualified as jurors. State v. Gross, 97 Ohio

St. 3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, at ¶ 38, citing State v.

Sheppard (1998), 84 Ohio St. 3d 230, 235, 703 N.E.2d 286; Murphy v.

Florida (1975), 421 U.S. 794, 799-800, 95 S. Ct. 2031, 44 L. Ed. 2d 589.

[. . .]

In this case, the trial judge misconstrued defense counsel's request

to inform the prospective jurors of Jayla's age as an attempt “‘to

predispose jurors to react a certain way to anticipated evidence,’” quoting

Missouri v. Clark, 981 S.W.2d 143, 147. Counsel were merely

attempting to discover whether prospective jurors could fairly consider

imposition of a life sentence in a case involving a three-year-old murder

victim. While it is improper for counsel to seek a commitment from

prospective jurors on whether they would find specific evidence

mitigating, State v. Bedford, 39 Ohio St. 3d at 129, 529 N.E.2d 913,

counsel should be permitted to present uncontested facts to the venire

No. 08-3677 Jackson v. Houk Page 14

directed at revealing prospective jurors’ biases. Turner v. Murray (1986),

476 U.S. 28, 36-37, 106 S. Ct. 1683, 90 L. Ed. 2d 27.

[. . .]

“The Constitution . . . does not dictate a catechism for voir dire,

but only that the defendant be afforded a fair and impartial jury. Even so,

part of the guarantee of a defendant's right to an impartial jury is an

adequate voir dire to identify unqualified jurors.” Morgan v. Illinois

(1992), 504 U.S. 719, 729, 112 S. Ct. 2222, 119 L. Ed. 2d 492; State v.

Wilson, 74 Ohio St. 3d at 386, 659 N.E.2d 292. “Without an adequate

voir dire the trial judge's responsibility to remove prospective jurors who

will not be able impartially to follow the court's instructions and evaluate

the evidence cannot be fulfilled.” Rosales-Lopez v. United States (1981),

451 U.S. 182, 188, 101 S. Ct. 1629, 68 L. Ed. 2d 22. Accordingly, the

exercise of the trial court's discretion to restrict inquiry by counsel is

subject to the essential demands of fairness. Morgan, 504 U.S. at 730,

112 S. Ct. 2222, 119 L. Ed. 2d 492, citing Aldridge v. United States

(1931), 283 U.S. 308, 310, 51 S. Ct. 470, 75 L. Ed. 1054.

Questions on voir dire must be sufficient to identify prospective

jurors who hold views that would prevent or substantially impair them

from performing the duties required of jurors. Morgan, 504 U.S. at

734-735, 112 S. Ct. 2222, 119 L. Ed. 2d 492. Moreover, the fact that

defendant bears the burden of establishing juror partiality, see

Wainwright v. Witt, 469 U.S. at 423, 105 S.Ct. 844, 83 L. Ed. 2d 841,

makes it all the more imperative that a defendant be entitled to

meaningful examination at voir dire in order to elicit potential biases held

by prospective jurors. Mu'Min v. Virginia, 500 U.S. at 441, 111 S. Ct.

1899, 114 L. Ed. 2d 493 (Marshall, J., dissenting).

The trial court here was on notice that some prospective jurors

harbored a strong bias in favor of imposing death for murderers of

children. If an issue of bias surfaces before trial, it is the trial court's

responsibility to conduct an adequate inquiry. Oswald v. Bertrand

(C.A.7, 2004), 374 F.3d 475, 484. See, also, United States v. Barber

(C.A.4, 1996), 80 F.3d 964, 968 (an inquiry is required during voir dire

to eliminate prejudice that threatens the fairness of the process or the

result). The greater the probability of bias, “the more searching the

inquiry needed to make reasonably sure that an unbiased jury is

impaneled.” Oswald v. Bertrand, 374 F.3d at 480.

At a minimum, the trial court should have granted defense

counsel's request to inform the venire that one murder victim was a

three-year-old child. If the prospective jurors had been aware of this fact

when they were asked general questions of fairness and impartiality, they

may well have been prompted to admit to a predisposition to recommend

the death penalty for those who murder children. However, without

knowledge of this fact, prospective jurors could respond truthfully to

No. 08-3677 Jackson v. Houk Page 15

general questions of fairness and impartiality while the specific concern

was left unprobed.

In this case, appellant was charged with killing a three-year-old

child. “[I]t is in just these circumstances, when the crime itself is likely

to inflame the passions of jurors, that courts must be vigilant in ensuring

that the demands of due process are met.” McKenzie v. Smith (C.A.6,

2003), 326 F.3d 721, 727-728 (case involving brutal assault on

three-year-old child). Protecting children from harm is a common human

characteristic, and many people harbor strong feelings and emotions

whenever a child is a victim of a violent crime. Some prospective jurors,

when presented with this fact, may have been unable to remain

dispassionate and impartial when deciding whether the death sentence

should be imposed. The possibility that one juror might not have fairly

considered sentencing options and may have voted for the death penalty

solely because appellant murdered a three-year-old child is a risk too

great to ignore. “If even one such juror is empaneled and the death

sentence is imposed, the State is disentitled to execute the sentence.”

Morgan, 504 U.S. at 729, 112 S. Ct. 2222, 119 L. Ed. 2d 492. Therefore,

we find that due process required that defense counsel be allowed to

determine whether any members of the venire harbored prejudices

regarding this fact in order to exercise their challenges intelligently.

We hold that in a death-penalty case involving the murder of a

young child the defendant is entitled, upon request, to have the

prospective jurors informed of that fact and to ask questions that seek to

reveal bias. The trial court retains its discretion as to the form and

number of questions on the subject, including whether to question the

prospective jurors individually or collectively. See State v. Wilson,

74 Ohio St. 3d at 386, 659 N.E.2d 292; Ham v. South Carolina, 409 U.S.

at 527, 93 S. Ct. 848, 35 L. Ed. 2d 46.

The trial court abused its discretion by refusing defense counsel's

requests to advise prospective jurors that one of the murdered victims

was a three-year-old child and by refusing to allow voir dire on that fact.

Therefore, the death sentence imposed on appellant in Count I for the

aggravated murder of Jayla Grant is vacated. The matter is remanded to

the trial court for resentencing consistent with R.C. 2929.06. Our

disposition of this issue does not affect the separate death sentence

imposed on Jackson for the death of Leneshia Williams. (Emphasis

added.)

Jackson, 836 N.E.2d at 1189-92. Now in this habeas appeal, it is the final sentence of

the above-quoted excerpt with which Jackson takes issue: he maintains — as he must

for this case to qualify for habeas relief under 28 U.S.C. § 2254(d)(1) — that the Ohio

Supreme Court either acted contrary to or unreasonably applied clearly established

Supreme Court precedent in vacating only one, but not the other, of Jackson’s two death

No. 08-3677 Jackson v. Houk Page 16

sentences, where defense counsel was forbidden to inquire about bias on the part of

potential jurors against accused child killers.

We do not agree for the simple reason that there was no “clearly established law”

governing this issue for the Ohio court to contravene or unreasonably apply in disposing

of Jackson’s claim. We are limited in determining what counts as clearly established law

to the “holdings,” as opposed to the dicta, of Supreme Court cases in effect at the time

of the state court’s decision. Williams v. Taylor, 529 U.S. 362, 412 (2000). The

holdings of the Supreme Court governing questions a defendant’s counsel is

constitutionally entitled to ask of potentially biased jurors are narrow, as our previous

discussion indicates, and cluster primarily around the topic of racial bias. Jackson

appears in his brief on appeal principally to rely on Turner v. Murray as the case the

Ohio court unreasonably applied, but the holding of that case is explicitly limited to race.

See 476 U.S. 28, 36-37 (1986) (“We hold that a capital defendant accused of an

interracial crime is entitled to have prospective jurors informed of the race of the victim

and questioned on the issue of racial bias.”). Other cases cited by Jackson similarly fall

short of establishing whether the Ohio Supreme Court violated clearly established

constitutional law when it vacated one, but not both, of Jackson’s death sentences. In

Ham v. South Carolina, the Supreme Court reversed a conviction where a trial court

“refus[ed] to make any inquiry as to racial bias of the prospective jurors,” but

conspicuously rejected — over a vigorous dissent — an argument contending that it was

error not to allow defense counsel to question the jury pool about non-racial bias, which

in that case consisted of a bias against “men with beards.” 409 U.S. 524, 527-28 (1973);

see also id. at 531-34 (Marshall, J., concurring in part and dissenting in part). Notably,

even in the sphere of racial bias, the Supreme Court has retreated from a conception of

Ham as a “per se” or “universal[ly] applicab[le]” rule entitling counsel to ask certain

questions during voir dire. Ristiano v. Ross, 424 U.S. 589, 596 & n.8 (1976).

This is not to endorse the reasoning of the Supreme Court of Ohio as legally

correct. See Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (distinguishing AEDPA-

reasonableness from legal correctness). In Greene, the Supreme Court has told us we

No. 08-3677 Jackson v. Houk Page 17

may not engage in “error correction.” 132 S. Ct. at 143. Indeed, the Supreme Court of

Ohio’s analysis leading to its vacating of the death sentence related to the Jayla Grant

murder may be persuasive as an extension of constitutional principles. Nevertheless, the

Ohio court’s holding on the murder of Leneisha Williams does not violate clearly

established Supreme Court precedent. The two murders were tried together to the same

jury, and one of the death penalty specifications — a so-called “mass murder”

specification applying to defendants who killed or attempted to kill two or more people

— could very plausibly be thought explicitly to invite, if not require, jurors to consider

the two murders together when making their sentencing determination. Why the

Supreme Court of Ohio concluded that bias against child killers may have infected one

but not the other of these two simultaneously imposed death sentences is not stated. But

the Supreme Court has declared that even this form of summary adjudication merits so-

called AEDPA deference. Richter, 131 S. Ct. at 784-85 (stating that “[w]hen a federal

claim has been presented to a state court and the state court has denied relief, it may be

presumed that the state court adjudicated the claim on the merits,” even where the state

court fails to give reasons supporting its conclusions). Likewise, here we do not believe

that the failure of the Ohio court to explain its reasoning meets the AEDPA standard of

an “extreme malfunction[] in the state criminal justice system[],” Greene, 132 S. Ct. at

43 (internal citations and quotation marks omitted). Such failures appear with some

frequency in our legal system in courts from the lowest to the highest.

In sum, we hold only that there was no clearly established law governing the

issue of what questions defense counsel is entitled to ask in order to examine jurors

concerning non-racial bias against defendants accused of murdering a child. On that

basis alone, against the backdrop of AEDPA as interpreted by the Supreme Court, we

must deny Jackson’s claim.

2. Retention of Pro-Death-Penalty Jurors And Exclusion of Anti-Death-Penalty

Jurors

Jackson next argues that the trial court failed to excuse jurors in an even-handed

way when it allowed jurors who have a preference for the death penalty in murder cases

No. 08-3677 Jackson v. Houk Page 18

to remain while at the same time excusing jurors who dislike the death penalty or have

reservations about imposing the death penalty. The constitutional problem of whether

to allow states to exclude jurors who have qualms about the death penalty begins with

Witherspoon v. Illinois, 391 U.S. 510 (1968). In an opinion by Justice Stewart, the Court

said that the jury in a capital case “can do little more — and must do nothing less — than

express the conscience of the community on the ultimate question of life or death,” id.

at 519, and the state may not “cull[]” from the jury “all who harbor doubts about the

wisdom of capital punishment — of all who would be reluctant to pronounce the

extreme penalty,” id. at 520. The Court made it clear that a state may exclude jurors

who are “automatically . . . against” id. at 522 n.21, the death penalty but not those who

harbor doubt or “would be reluctant to pronounce the extreme penalty,” id. at 520.

Witherspoon is no longer the law. In 1985, Justice Rehnquist wrote an opinion for the

Court — like his opinion in Mu’Min — that holds that “deference must be paid to the

trial judge who sees and hears the juror” and must include “a presumption of

correctness” under 28 U.S.C. § 2254, a presumption that is now strengthened by AEDPA

deference. Wainwright v. Witt, 469 U.S. 412, 426 (1985). Here, Ohio’s highest court

upheld the trial judge’s rulings on the acceptance or rejection of jurors. The U.S.

Supreme Court has now made it completely clear that the interest of the state in

imposing the death penalty must be honored under AEDPA by deferring to the state

court concerning the exclusion of jurors who are reluctant to impose the death penalty.

See Uttecht v. Brown, 551 U.S. 1 (2007). Scholars now argue that this new deference

to the state’s interest in imposing the death penalty has tilted the scales heavily in favor

of a system that prefers jurors who favor the death penalty, instead of those who are

reluctant to impose it. See, e.g., G. Ben Cohen, “The Death of Death-Qualification,” 59

CASE W. RES. L. REV. 87 (2008); Adam M. Clark, “An Investigation of Death

Qualification As A Violation of the Rights of Jurors,” 24 BUFF. PUB. INT. L.J. 1 (2006).

Jackson’s challenge focuses on four jurors questioned during voir dire, none of

whom were excused for cause. Concerning Juror No. 230, Jackson focuses his argument

on a single exchange between defense counsel and this juror during voir dire, where the

juror answered “I think so” when asked if there were circumstances in which he would

No. 08-3677 Jackson v. Houk Page 19

“automatically” impose the death penalty. [J.A. 11743.] However, at multiple other

times during this juror’s examination — including directly after this response — the

juror indicated a willingness to follow the judge’s instructions, and that he did not think

the death penalty was “right for every case.” [J.A. 11721-22, 11745.] Jackson maintains

that Juror No. 291 would only return a verdict other than death if the defendant proved

it was done in self-defense, but the record demonstrates that she in fact acknowledged

other circumstances in which she might not impose the death penalty [J.A. 12230], and

in any case consistently denied that she would automatically impose the death penalty

in every case [J.A. 12228-29]. Jackson makes a similar allegation as to Juror No. 299,

and, while the record at times provides more support than it does for No. 291

[J.A. 12277-78], No. 299 at other times expressed a willingness to weigh mitigating

evidence consistent with the court’s instructions and denied that she would automatically

impose the death penalty upon conviction [J.A. 12289-90]. In light of the record, the

Ohio court’s determination that these responses satisfied Witt was not unreasonable.

Finally, Jackson complains that the trial court did not excuse for cause Juror No. 263.

The Ohio Supreme Court found that he waived this objection by not raising it during voir

dire itself, where trial counsel explicitly passed the juror for cause. Jackson, 836 N.E.2d

at 1188; [J.A. 12047]. Even were we to overlook the procedural implications of defense

counsel’s failure to challenge this juror for cause (which are unraised by the Warden in

this appeal), our review of the record suggests that this juror’s responses during voir dire

complied with the dictates of Witt as he expressed an ability to consider fairly all

sentencing options. [See J.A. 12042.]

Jackson also contests the trial court’s refusal to allow him to rehabilitate anti-

death-penalty jurors excused for cause as unqualified to sit on a capital jury during voir

dire. This core claim was rejected by the Supreme Court of Ohio on direct appeal,

Jackson, 836 N.E.2d at 1187, and the district court sitting in habeas, Jackson, 2008 WL

1946790, at *45.

Jackson identifies four jurors who were excused for cause as biased against the

death penalty without his having a chance to rehabilitate them. Juror No. 222 during

No. 08-3677 Jackson v. Houk Page 20

initial questioning by the trial court repeatedly and clearly indicated that he would be

unable to follow the court’s instructions in considering the penalty of death, and was

then excused for cause. [J.A. 11632.] Juror No. 228 during questioning by the trial

court unequivocally stated his opposition to the death penalty and his inability to follow

the court’s instructions, and — after a sidebar in which the trial court agreed to defense

counsel’s request for a further line of inquiry — was excused. [J.A. 11671-76.] Juror

No. 300 also repeatedly indicated an unwillingness to follow the court’s instructions in

considering the death penalty. [J.A. 12297-99.] In light of the limited scope of our

review in this habeas appeal, as explained above, we cannot say the Ohio Supreme

Court’s resolution of Jackson’s claims as to these jurors was unreasonable.

Juror No. 301, out of all jurors Jackson identifies, was perhaps most equivocal

in her responses. Under initial questioning by the trial court, she first indicated that she

would have no choice and would be “required” to consider the death penalty

[J.A. 12316]; she then responded that she “d[id]n’t know” whether she could or not, but

that she “would try” [id.]. Later, under questioning by the prosecution, she indicated she

“would fairly consider” the death penalty despite her scruples about it. [J.A. 12324.]

Under further questioning, she then answered that she could not give the death penalty

“equal weight” compared to other sentences, and then said, “I would try my best to

consider it, but already I know in my head that there is that bias there that if I were given

a choice I would not treat the death penalty as much as an option.” [J.A. 12328-29.]

The trial court then granted the prosecution’s challenge for cause, and refused defense

counsel’s request to attempt to rehabilitate her. We agree with the Ohio Supreme

Court’s precatory observation that it would “have been preferable for the trial court to

permit defense counsel to question th[is] juror[].” Jackson, 836 N.E.2d at 1187. But,

again, under the limited scope of our review, we cannot grant habeas relief on Jackson’s

claim. We are not permitted to return to the 1968 Witherspoon relaxed standard that

allows all but death penalty abolitionists to serve.

No. 08-3677 Jackson v. Houk Page 21

IV. Ineffective Assistance Claims

1. Whether Trial Counsel Rendered Ineffective Assistance Throughout Trial

As the basis for his claim that his trial counsel was constitutionally ineffective

— conceded to be preserved by the Warden — Jackson cites various incidents from the

guilt phase of the trial: (1) counsel’s alleged failure to demonstrate the need for

adequate investigative and expert assistance; (2) counsel’s alleged failure to investigate

and prepare evidence in support of a motion to suppress; (3) counsel’s alleged

ineffectiveness during voir dire; (4) counsel’s alleged failure to provide any guidance

during opening statements; (5) counsel’s alleged failure to object to inflammatory

portions of the prosecution’s opening statement; (6) counsel’s alleged failure to cross-

examine effectively Jackson’s half-sister, Tara Cunningham; and (7) counsel’s alleged

failure to cross-examine effectively forensic pathologist Dr. Cynthia Beisser. Jackson’s

guilt-phase ineffective assistance claim was rejected by both the Supreme Court of Ohio

on direct review, Jackson, 836 N.E.2d at 1204-06, and the district court in denying

Jackson’s habeas petition, Jackson, 2008 WL 1946790, at *57-62.

Claims of ineffective assistance of counsel are analyzed under the well

established two-pronged test announced in Strickland v. Washington, 466 U.S. 668

(1984). In order to prevail on this claim, Jackson must demonstrate first that his

counsel’s performance was deficient — that is, that counsel’s performance fell below an

objective level of reasonable representation — and then that the deficient performance

prejudiced his right to a fair trial, meaning a trial the outcome of which is reliable and

worthy of confidence. Id. at 687-88, 694. The Supreme Court has recently again

underlined the difficulty of prevailing on a Strickland claim in the context of habeas and

AEDPA; it requires the petitioner not only to demonstrate the merit of his underlying

Strickland claim, but also to demonstrate that “there is no possibility fairminded jurists

could disagree that the state court’s decision [rejecting the Strickland claim] conflicts

with this Court’s precedents.” Richter, 131 S. Ct. at 786 (noting that this was “meant to

be” a difficult standard to meet). Considering that Strickland’s own standard invites

deference to the conduct of counsel, Strickland, 466 U.S. at 689, combining that standard

No. 08-3677 Jackson v. Houk Page 22

with AEDPA creates a “doubly” deferential standard, Richter, 131 S. Ct. at 788 (also

noting that “[t]he Strickland standard is a general one, so the range of reasonable

applications is substantial”). In the end, our significantly constrained review of this

claim boils down to the determination of whether “there is any reasonable argument that

counsel satisfied Strickland’s deferential standard.” Id. Briefly addressing this question

in the context of each of his sub-claims below, we conclude that the Supreme Court of

Ohio did not unreasonably apply Strickland in disposing of Jackson’s ineffective

assistance claim, nor create an “extreme malfunction[] in the state criminal justice

system[].” Greene, 132 S. Ct. at 43.

Jackson’s first sub-claim contends that trial counsel failed to demonstrate the

need for expert assistance reasonably necessary to assist in his defense. However, the

Supreme Court of Ohio found and our examination of the record confirms that trial

counsel did successfully request both a clinical psychologist (specifically in preparation

for a potential mitigation phase) and a ballistics expert. Jackson, 836 N.E.2d at 1204.

Accordingly, the Ohio court’s rejection of this sub-claim was not unreasonable.

Jackson’s second sub-claim argues that trial counsel failed effectively to

investigate, prepare, and litigate a motion to suppress potentially incriminating

statements made by Jackson to the police. The Supreme Court of Ohio found that this

claim must fail because Jackson could not have suffered Strickland prejudice, as the

statements in question were never introduced at trial. Id. Jackson in his brief on appeal

does not appear to contest this proposition and fails to cite anything to contradict it from

the record, and accordingly we find that the Ohio court acted reasonably in disposing of

this claim.

Jackson’s third sub-claim alleges that his trial counsel engaged in deficient

performance during voir dire. Apart from largely repeating arguments — described

above — complaining of the trial court’s limitations on voir dire, he suggests that trial

counsel was ineffective in not zealously contesting the trial court’s limitation and in not

questioning jurors in more detail concerning their possible bias in favor of the death

penalty or racial bias. On the contrary, our review of the record indicates that counsel

No. 08-3677 Jackson v. Houk Page 23

made numerous motions and objections throughout voir dire vigorously contesting the

district court’s voir dire limitations and otherwise conducted as able and thorough a voir

dire as was possible under the circumstances. Accordingly, the Ohio court’s rejection

of this sub-claim was not unreasonable.

In his fourth sub-claim, Jackson complains of his counsel’s alleged failure to

provide the jury with guidance during his opening statement. This claim was put before

the Ohio courts, which did not address it. Accordingly, we may review it de novo.

Thompson v. Bell, 580 F.3d 423, 439 (6th Cir. 2009). Nonetheless, this sub-claim does

not merit Strickland relief. As the district court noted in disposing of this claim, we have

previously held that the decision to forgo an opening statement entirely “is ordinarily a

mere matter of trial tactics and . . . will not constitute . . . a claim of ineffective assistance

of counsel.” Millender v. Adams, 376 F.3d 520, 525 (6th Cir. 2004) (internal citations

and quotation marks omitted). Here, defense counsel did make an opening statement,

which, although relatively brief, coherently presented a theory of the case in which

Cunningham was the primary shooter and had a different “agenda” than Jackson.

[J.A. 12646-49.] We find that counsel’s opening statement was not deficient

performance.

Fifth, Jackson contends that his counsel was ineffective for not objecting to

allegedly inflammatory portions of the prosecution’s opening statement. The Supreme

Court of Ohio rejected this sub-claim by finding that the allegedly improper statements

were not sufficiently prejudicial to Jackson to merit relief. Jackson, 836 N.E.2d at 1206.

We specifically denied Jackson’s motion for a certificate of appealability as to his

allegations of prosecutorial misconduct, and so, having already found that the underlying

claim of prosecutorial misconduct was not “adequate to deserve encouragement to

proceed further,” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (internal citations and

quotation marks omitted), we cannot find that defense counsel’s failure to object to it

constituted ineffective assistance.

Sixth, Jackson complains of defense counsel’s alleged failure properly to cross-

examine Tara Cunningham, Jackson’s half-sister and a witness for the prosecution, who

No. 08-3677 Jackson v. Houk Page 24

testified that she witnessed Jackson’s and Jeronique Cunningham’s discussion of their

plan to rob Shane Liles and that, after the shootings, she heard Jackson say that he

“didn’t mean to shoot that baby.” [J.A. 12800-02.] His core contention in support of

this sub-claim is that trial counsel failed to discover or properly cross-examine Tara

Cunningham concerning an alleged deal struck between her and the prosecution in

exchange for her testimony. The Supreme Court of Ohio rejected this argument,

reasoning that “[t]here is no evidence in the record that the state offered anything to Tara

for her testimony.” Jackson, 836 N.E.2d at 1205. We agree with the Ohio court’s

evaluation of the record, and further note that defense counsel did effectively cross-

examine Tara Cunningham: trial counsel elicited that she feared losing her public

housing, [J.A. 12812], and that she smoked marijuana on the morning of the murders,

[J.A. 12813-14], and, further, confronted her with her prior testimony in the trial of

Jeronique Cunningham, her other half-brother, where she conspicuously did not mention

hearing Jackson’s post-shooting comment about not “mean[ing] to shoot that baby.”

[J.A. 12806.] In light of the record, we cannot grant Strickland relief as to this sub-

claim.

Finally, Jackson contends that defense counsel failed to cross-examine

effectively forensic pathologist Dr. Cynthia Beisser, who testified for the prosecution

about the gunshot injuries suffered by the victims. In this sub-claim, he argues that

counsel’s failure to interview Dr. Beisser before attempting to cross-examine her

prejudiced Jackson’s case; he specifically directs our attention to an exchange where Dr.

Beisser refused to agree to a hypothetical question concerning possible bullet

trajectories, intended to bolster the defense’s argument that Cunningham, not Jackson,

shot the bullet that killed Jayla Grant. [J.A. 13116-13120.] Jackson argues that, had

defense counsel interviewed Dr. Beisser before cross-examining her, this allegedly

damaging exchange could have been avoided. Alternatively, he argues that defense

counsel should have called his own ballistics expert to refute Dr. Beisser’s testimony

concerning the path of the bullets fired. The Supreme Court of Ohio resolved this sub-

claim by finding no prejudice; it concluded that, because Ohio law did not require

Jackson to be the shooter in any case, and because substantial other evidence linked

No. 08-3677 Jackson v. Houk Page 25

Jackson to the murders, no prejudice could have flowed from counsel’s failure to

interview Dr. Beisser before cross-examining her. Jackson, 836 N.E.2d at 1205. The

court further noted that Jackson’s counsel had prevailed on a motion for funds to hire a

ballistics expert, but, in an apparent strategic decision, never called one to the stand. Id.

at 1205 n.1. Especially in light of the substantial evidence linking Jackson, and his

automatic handgun, to the shootings, we cannot find the Ohio court’s rejection of this

sub-claim unreasonable.

2. Whether Trial Counsel Rendered Ineffective Assistance of Counsel by Failing

to Investigate and Introduce Helpful and Explanatory Mitigating Evidence at Trial

Finally, Jackson argues that he was deprived of his right to effective assistance

of counsel during the penalty phase of the trial. Claims of ineffective assistance of

counsel as to the penalty phase of a capital proceeding are analyzed under the same two-

part Strickland standard described above, and in the context of capital sentencing, the

Supreme Court has made clear that counsel’s Sixth Amendment responsibilities include

a duty to engage in a reasonable investigation concerning aspects of the defendant’s

background that would support a mitigation case. Wiggins v. Smith, 539 U.S. 510, 522-

23 (2003). This claim was rejected by both the Supreme Court of Ohio on direct review,

Jackson, 836 N.E.2d at 1206, and the district court sitting in habeas, Jackson, 2008 WL

1946790, at *62-66.

Jackson’s argument in support of this claim appears to focus primarily on three

alleged failures of counsel. He claims (1) that counsel failed to investigate thoroughly

and effectively present evidence concerning Jackson’s traumatic childhood and his

violent and abusive mother; (2) that counsel failed to investigate thoroughly and

effectively present Jackson’s juvenile history, specifically a psychological evaluation

conducted after a juvenile conviction; and (3) that counsel failed to request or

demonstrate the need for a cultural expert to explain to the jury the effects of Jackson’s

heritage and upbringing on his behavior as a young adult. We will address each of these

sub-claims in turn.

No. 08-3677 Jackson v. Houk Page 26

Jackson’s first claim, alleging an ineffective investigation and presentation of his

starkly troubled childhood, is belied by the trial record. During the penalty phase,

defense counsel introduced first-hand accounts of Jackson’s childhood by calling to the

stand two of his aunts, and his mother. As an initial matter, all three witnesses testified

that Jackson’s mother stabbed Jackson’s abusive father to death in front of Jackson,

when he was three or four years old. [J.A. 13437, 13445-46, 13454-55.] The first aunt,

Joyce McNeal, testified that Jackson’s mother drank, that there was “a lot of physical

abuse” in Jackson’s childhood home, and that his mother attempted suicide multiple

times. [J.A. 13437-40.] The second aunt, Denise Cage, confirmed these details, and

further recalled hearing that Jackson had been raped in a foster home during a period in

which he had been removed from his mother’s care. [J.A. 13448.] Finally, Jackson’s

own mother, Betty Cunningham, confirmed her drug problems and suicide attempts, and

that Jackson had been taken from her by Children’s Services. [J.A. 13452-13460.]

Against this record, Jackson in this appeal nonetheless maintains that “[c]ounsel did not

present testimony demonstrating that . . . Cunningham had sub-standard parenting skills

and Children’s Services had to assist her in raising her children.” [Br. for Pet’r.-

Appellant 58.] We do not agree. Jackson also argues that counsel was ineffective for

not introducing records from Children’s Services concerning his history, but the

Supreme Court has expressly found no Strickland prejudice in cases where similar

unintroduced records “basically substantiate the testimony of [relatives].” See Cullen

v. Pinholster, 131 S. Ct. 1388, 1409-10 (2011).

Next, Jackson argues that counsel was ineffective for not discussing a

psychological evaluation made after Jackson’s juvenile arrest and conviction for gross

sexual imposition. A review of the record strongly suggests that the failure to introduce

materials related to Jackson’s juvenile criminal history was a strategic decision made by

counsel to avoid bringing up his conviction for gross sexual imposition; as the Warden

notes in his brief, Jackson’s counsel explicitly and successfully requested that the

prosecution be forbidden from referring to his juvenile record and convictions.

[J.A. 13503-04.] Strategic decisions such as this fall well outside the scope of our

review. See Strickland, 466 U.S. at 681.

No. 08-3677 Jackson v. Houk Page 27

Finally, Jackson argues that counsel was ineffective for not employing a “cultural

expert” to explain the effect of Jackson’s upbringing on his behavior in committing the

murders. Again, this claim is belied by the record: in addition to calling the three

relatives discussed above, Jackson’s counsel called a fourth witness in the penalty phase,

Dr. Kathleen Burch, a psychologist, who discussed the effect of Jackson’s childhood on

his present mental state. In addition to summarizing records from Children’s Services

describing various troubled episodes in Jackson’s childhood, Dr. Burch testified that

aspects of Jackson’s upbringing — in particular, his lack of a positive male role model

— made him statistically more susceptible to aggressiveness and deficient moral

development. [J.A. 13482-84.] She concluded that “as a consequence” of his history

— which included witnessing his father’s killing at the hands of his mother, being

abused at the hands of both his mother and several of her boyfriends, and occasional

periods without adequate food or shelter — “he developed a certain way of looking at

the world which limit[ed] his choices later on.” [J.A. 13502-03.] It is unclear, to say the

least, what a cultural expert could have offered the jury that Dr. Burch did not provide,

and so we can find no prejudice in this alleged error of counsel. The jury had before it

Jackson’s cultural background and the pathology behind his childhood development.

Accordingly, we reject Jackson’s claim that his counsel rendered ineffective

assistance during the trial’s penalty phase.

In light of the foregoing analysis, we affirm the judgment of the District Court.