James Hanna v. Todd Ishee

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0321p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

-

JAMES HANNA,

-

Petitioner-Appellant,

-

-

No. 09-3360

v.

,

>

-

Respondent-Appellee. -

TODD ISHEE, Warden,

N

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 03-00801—Thomas M. Rose, District Judge.

Argued: January 19, 2012

Decided and Filed: September 11, 2012

Before: SILER, CLAY, and McKEAGUE, Circuit Judges.

_________________

COUNSEL

ARGUED: Tyson L. Fleming, OFFICE OF THE OHIO PUBLIC DEFENDER,

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

ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Tyson L.

Fleming, Rachel Troutman, OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus,

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

GENERAL, Columbus, Ohio, for Appellee.

_________________

OPINION

_________________

CLAY, Circuit Judge. Petitioner James Hanna was convicted of aggravated

murder by an Ohio jury and sentenced to death. He appeals an order by the district court

denying his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. For

the reasons set forth below, we AFFIRM the district court’s judgment denying the

petition.

1

No. 09-3360 Hanna v. Ishee Page 2

BACKGROUND

I. The Crime

The facts underlying Petitioner’s conviction, as derived from the Ohio Supreme

Court’s decision denying Petitioner’s direct appeal, are not in dispute:

In the late summer of 1997, Petitioner was an Ohio state inmate housed at the

Lebanon Correctional Institution (LCI), located in Lebanon, Ohio. Petitioner was

nineteen years into a life sentence for murder and aggravated murder when, around

August 18, 1997, he was assigned a new cellmate, Peter Copas. The two had been

cellmates for only four days when Petitioner brutally attacked Copas in his sleep.

Although Copas initially survived the attack, he developed an infection and succumbed

to his injuries several days later.

From the outset of the rooming arrangement, the relationship between Petitioner

and Copas was strained. Petitioner was upset with prison officials for moving Copas

into his cell without prior notification. His displeasure only mounted after Copas proved

to be a less than ideal cellmate, using Petitioner’s belongings without permission,

unilaterally rearranging their cell, breaking Petitioner’s TV set, and leaving the cell door

open, resulting in the theft of some of Petitioner’s property. The pair had words over

these events and within two days of moving in together, Copas filed a formal transfer

request, stating that he and Petitioner were “unable to co-exist.”

On the evening of August 21, 1997, Copas returned to their cell drunk, crawled

onto his top bunk, and vomited. According to Petitioner’s later statements, at that point

he decided he had “had enough.” Around 4:00 or 5:00 a.m. that morning, Petitioner

sharpened the tip of a paintbrush handle and lit it with matches to stiffen it into a shank.

He then removed a padlock from Copas’ lock box and placed it inside the end of a sock

to create an additional weapon. As Copas slept, Petitioner stood up from his bunk,

approached his cellmate, and thrust the paintbrush deep into Copas’ closed eyesocket.

Copas awoke and demanded, “Why the hell did you do that?” Petitioner

responded by bludgeoning his victim with his fists and the padlock, beating Copas into

No. 09-3360 Hanna v. Ishee Page 3

unconsciousness. Petitioner then flushed the paintbrush handle and the sock down the

toilet, replaced Copas’ lock, and returned to his own bed to smoke a cigarette.

Around 6:00 a.m., Copas regained consciousness and ran to the cell door,

screaming, “My celly’s trying to kill me!” A corrections officer discovered Copas

bleeding profusely at the door of the cell. Copas was taken to the prison infirmary, and

Petitioner was handcuffed. When a guard asked what happened, Petitioner responded,

“I told them not to put him in here with me.”

Copas was transferred to the Middletown Regional Hospital for treatment of his

injuries. The emergency room physician, however, did not realize that Copas had been

stabbed, because the prison infirmary did not report such an injury, and Copas

apparently did not notify anyone either. The physician saw no indication of a foreign

object, and x-rays taken of Copas’ face and skull were negative. The emergency room

physician did not order a CAT scan.

Copas was treated at the hospital for superficial injuries and returned to the

prison. Once there, however, LCI’s medical director became concerned that Copas

might have suffered a concussion during the attack. Four days later, a CAT scan was

taken which revealed five inches of the wooden paintbrush handle lodged in Copas’

skull, just behind his severely swollen right eye. Doctors immediately performed

surgery, and Copas appeared to recover quickly. However, on September 5, 1997,

Copas developed a post-surgical infection. His condition rapidly deteriorated, and he

lapsed into a coma. He died on September 10, 1997, nineteen days after the attack.

According to statements Petitioner later made to authorities and in letters he

wrote to a fellow inmate, Petitioner admitted the attack and provided some insight into

his underlying motivations. Petitioner explained that he chose to stab Copas in the eye

because “the ear is too hard. You would use an ice pick in the ear. The eye is much

softer.” Petitioner also bragged that he “stabbed one of [Copas’] eyeballs up out of its

socket.” Petitioner explained that he “didn’t mean for the [paintbrush] to break,” and that

he “wanted it to go further in than what it did, but it broke off.” Petitioner told his friend

that “those idiots of the administration there wouldn’t move [Copas] the hell out of my

No. 09-3360 Hanna v. Ishee Page 4

cell, so I took him out of his misery.” Petitioner described “beat[ing] all on his stupid-

ass-head off-and-on for two hours.” Petitioner also allegedly told another LCI inmate

that he tried to “bash the motherfucker’s brains in” because Copas “had turned his TV

off on him.” See State v. Hanna, 767 N.E.2d 678, 686–89 (Ohio 2002).

II. The Guilt Phase of Trial

On January 26, 1998, a Warren County, Ohio grand jury issued a two-count

indictment against Petitioner for (1) aggravated murder with prior calculation and

design, in violation of Ohio Rev. Code Ann. § 2903.01; and (2) possession of a deadly

weapon while under detention, in violation of Ohio Rev. Code Ann. § 2923.131(B). The

murder charge was designated a capital crime pursuant to three aggravating

specifications: (1) commission of the offense while in a detention facility, under Ohio

Rev. Code Ann. § 2929.04(A)(4); (2) being a repeat offender of an offense including as

an essential element the purposeful killing or intent to kill another, under Ohio Rev.

Code Ann. § 2929.04(A)(5); and (3) being a repeat violent offender under Ohio Rev.

Code. Ann. § 2929.01. The possession of a deadly weapon charge was also subject to

a repeat offender specification under Ohio Rev. Code Ann. § 2941.149.

Petitioner was appointed counsel and proceeded to a fifteen-day jury trial in the

Warren County Court of Common Pleas. The state’s case against Petitioner consisted

primarily of medical records, the testimony of prison officials and medical personnel,

statements made by Petitioner to prison authorities following the attack, and letters

Petitioner wrote to his friend, an inmate housed at another correctional institution.

Petitioner’s defense dealt almost exclusively with his intent during the attack.

He argued that he did not intend to kill Copas when he attacked him. Although trial

counsel suggested that Copas’ death was at least partially attributable to errors

committed in his medical treatment, Petitioner did not formally pursue an intervening

cause defense.

As evidence of Petitioner’s intent, the state emphasized Petitioner’s statements

to authorities after the crime and the incriminating letters Petitioner wrote to his friend.

No. 09-3360 Hanna v. Ishee Page 5

The state also introduced the testimony of James Ertel, a trooper who interviewed all the

inmates housed on the same cell block as Petitioner and Copas. Trooper Ertel prepared

an incident report that provided some background about the animosity between the

cellmates and the overall tenor of the cell block’s environment. Significant to the

arguments before us, the state also called Ricardo Lee, a fellow LCI inmate who was a

friend of Copas and who claimed to have knowledge about the cellmates’ deteriorating

relationship prior to the crime.

Based on the above evidence, the jury found Petitioner guilty of aggravated

murder and the § 2929.04(A)(4) specification. The trial judge separately found

Petitioner guilty of the §§ 2929.04(A)(5) and 2929.01 specifications. The deadly

weapon charge was dismissed on the state’s motion.

III. The Penalty Phase of Trial

Following the guilty verdicts, the trial court held a separate penalty proceeding

on November 9 and 10, 1998. At the penalty hearing, defense counsel presented

testimony by a psychologist, Petitioner’s sister, an Ohio state trooper, and a corrections

employee. Petitioner also made an unsworn statement, expressing remorse for his

actions and asking the jury to consider the fact that he would be confined to maximum

security isolation if they returned a sentence of life imprisonment. After less than a

dayof deliberation, the jury recommended the death penalty. The trial court entered final

judgment on November 20, 1998, sentencing Petitioner to death.

IV. Subsequent Proceedings

On December 22, 1999, Petitioner filed for post-conviction relief before the state

trial court, pursuant to Ohio Rev. Code Ann. § 2953.21. The trial court denied relief

without discovery or an evidentiary hearing on March 22, 2001. State v. Hanna, No.

98CR17677, 2001 WL 3604367 (Ohio Ct. Com. Pl. Mar. 22, 2001) (“Hanna II”).

Petitioner appealed, asserting three assignments of error. The Twelfth Circuit District

Court of Appeals affirmed. State v. Hanna, No. CA 2001-04-032, 2002 WL 4529 (Ohio.

Ct. App. Dec. 31, 2001) (“Hanna III”). The Supreme Court of Ohio denied a petition

No. 09-3360 Hanna v. Ishee Page 6

for review and a motion for reconsideration. State v. Hanna, 770 N.E.2d 1048 (Ohio

2002) (table); State v. Hanna, 770 N.E.2d 1050 (Ohio 2002) (table).

In appealing his conviction and sentence to the Supreme Court of Ohio,

Petitioner presented fifteen assignments of error.1 The court unanimously affirmed the

conviction and sentence on May 22, 2002. State v. Hanna 767 N.E.2d 678 (Ohio 2002)

(“Hanna I”). Petitioner sought a writ of certiorari from the United States Supreme

Court, which was denied on November 18, 2002. Hanna v. Ohio, 537 U.S. 1036 (2002).

On September 25, 2003, Petitioner notified the United States District Court for

the Southern District of Ohio that he intended to seek a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. Petitioner requested appointment of counsel and leave to proceed

in forma pauperis, which the district court granted. On November 17, 2003, Petitioner

filed a federal habeas petition, asserting ten grounds for relief.

Petitioner filed several motions for further discovery before the district court.

He also filed a motion for an evidentiary hearing in order to develop his claims of a

Brady violation and of ineffective assistance during the penalty phase of his trial. The

district court granted Petitioner’s request for additional discovery. On March 20 and 21,

2007, the magistrate judge conducted a two-day evidentiary hearing.

On November 18, 2008, the magistrate judge issued a report and

recommendation (R&R) that recommended denying Petitioner the writ of habeas corpus.

Petitioner filed objections to the R&R, and the state filed a response. On February 26,

2009, the district court adopted the magistrate judge’s report in full and denied the

petition. Hanna v. Ishee, No. C-1:03-cv-801, 2009 WL 485487 (S.D. Ohio Feb. 26,

2009) (“Hanna IV”).

The district court granted a certificate of appealability (COA) on one claim, part

of another, and four subclaims. Petitioner requested an expansion of the COA from this

1

A defendant sentenced to death under Ohio Rev. Code Ann. § 2904 is entitled to an appeal as

of right before the Supreme Court of Ohio. Along with the other issues presented on appeal, the state

supreme court must independently weigh the aggravating circumstances against the mitigating factors to

review the appropriateness and proportionality of the death sentence. Ohio Rev. Code. Ann. § 2929.05(A).

No. 09-3360 Hanna v. Ishee Page 7

Court, which was denied. On January 4th, 2011, Petitioner filed the present appeal,

alleging four assignments of error.2 The district court had jurisdiction pursuant to

28 U.S.C. § 2254. This Court takes jurisdiction under 28 U.S.C. § 2253(a).

DISCUSSION

I. Legal Framework

A. Standard of Review

Because Petitioner filed his petition for a writ of habeas corpus after the effective

date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we review

the district court’s legal conclusions de novo and its factual findings for clear error.

Smith v. Mitchell, 567 F.3d 246, 255 (6th Cir. 2009). Pursuant to AEDPA, a federal

court shall not grant a habeas petition with respect to any claim adjudicated on the merits

in state court unless the state 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).

A state court’s decision is “contrary to . . . clearly established federal law” if “the

state court arrives at a conclusion opposite to that reached by the Supreme Court on a

question of law or if the state court decides a case differently than the Supreme Court on

a set of materially indistinguishable facts.” Lundgren v. Mitchell, 440 F.3d 754, 762–63

(6th Cir. 2006) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000))

(internal quotations and alterations omitted). A state court decision is “an unreasonable

application of clearly established federal law” if “the state court identifies the correct

2

Petitioner did not brief his subclaim argument that he received ineffective assistance because

his counsel failed to present significant mitigation evidence from his siblings. Accordingly, this argument

is deemed abandoned. See Robinson v. Jones, 142 F.3d 905, 906 (6th Cir. 1998).

No. 09-3360 Hanna v. Ishee Page 8

governing legal principle but unreasonably applies that principle to the facts of the

[petitioner’s] case.” Id. at 763. Clearly established federal law is determined by the

holdings, as opposed to the dicta, of the Supreme Court’s decisions as of the time of the

relevant state court decision. Id.

The Supreme Court has stressed that AEDPA’s standard is “difficult to meet”

and “demands that [state court] decisions be given the benefit of the doubt.” Cullen v.

Pinholster, 131 S. Ct. 1388, 1398 (2011) (internal quotations and citations omitted). A

state court’s factual determinations are entitled to a “presumption of correctness,” only

rebuttable by “clear and convincing evidence” that the state court based its determination

on an “unreasonable determination of the facts.” See Schriro v. Landrigan, 550 U.S.

465, 473–74 (2007). In reviewing whether a state court decision was an unreasonable

application of federal law, we must remain mindful that “an unreasonable application of

federal law is different from an incorrect [one],” Williams, 529 U.S. at 410, and decline

to award habeas relief where fairminded jurists could disagree on the correctness of

the state court’s decision. Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (citing

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

Recently, the Supreme Court further limited review under § 2254(d) “to the

record that was before the state court that adjudicated the claim on the merits.”

Pinholster, 131 S. Ct. at 1398. Thus, even if a petitioner was granted an evidentiary

hearing pursuant to § 2254(e),3 the federal court must disregard newly obtained

evidence that supports a claim that was previously adjudicated on the merits before the

state court. Id. Pinholster suggested, however, that the prohibition on new evidence

might not always apply, using as an example the hypothetical defendant who diligently

pursues his claim through the state courts, but nevertheless presents a “new claim” in

3

Section 2254(e) provides an incentive to diligently investigate and pursue claims in state court

by instructing that a petitioner who has “failed to develop the factual basis of a claim” before the state

courts should not be granted an evidentiary hearing on federal review, unless the claim relies on (1) a new,

previously unavailable rule of constitutional law, or (2) facts that could not have been previously

discovered through the exercise of due diligence.

A federal evidentiary hearing is also inappropriate unless the newly obtained evidence would be

sufficient to establish, by clear and convincing evidence, that but for the constitutional error, no reasonable

factfinder would have found the applicant guilty of the underlying offense. See Williams, 529 U.S. at 435.

No. 09-3360 Hanna v. Ishee Page 9

federal court because of the forced production of evidence previously made unavailable

to him during his state court proceedings. See Pinholster, 131 S. Ct. at 1401 n.10

(Thomas, J. majority); Id. at 1417–18 (Sotomayor, J. dissenting). The Supreme Court,

however, declined to decide “where to draw the line between new claims and claims

adjudicated on the merits.” Id. at 1401 n.10.

B. Procedural Bars

1. Exhaustion

AEDPA’s standard of review applies only to claims that have been properly

exhausted before the state courts. Section 2254(b)(1) provides that a federal court may

not award habeas relief to an applicant in state custody “unless it appears that . . . the

applicant has exhausted the remedies available in the courts of the State; or . . . there is

an absence of available State corrective process.” To meet AEDPA’s exhaustion

requirement, we require a petitioner to prove that: (a) he has exhausted the remedies

available in the courts of the state; (b) there is an absence of state corrective process; or

(c) existing circumstances render the state’s process ineffective to protect the petitioner’s

rights. D’Ambrosio v. Bagley, 527 F.3d 489, 495 (6th Cir. 2008). A claim is “fairly

presented” for exhaustion purposes where the petitioner presented both the factual and

legal basis for his claim to the state courts. McMeans v. Brigano, 228 F.3d 674, 681

(6th Cir. 2000) (citing Franklin v. Rose, 811 F.2d 322, 324–25 (6th Cir. 1987)).

2. Procedural Default

A claim is also exhausted under § 2254(b) when it is clear that a petitioner would

be barred from review due to a state procedural bar. See Gray v. Netherland, 518 U.S.

152, 161–62 (1996). In such a case, though exhausted for AEDPA’s purposes, the

procedural default doctrine nevertheless bars federal review of the claim if the petitioner

failed to comply with the state’s adequate and independent procedural requirements. See

Wainwright v. Sykes, 433 U.S. 72, 87 (1977). For purposes of determining procedural

default, we look to the “last explained state court judgment.” Munson v. Kapture,

384 F.3d 310, 314 (6th Cir. 2004) (emphasis removed) (citing Yist v. Nunnemaker,

No. 09-3360 Hanna v. Ishee Page 10

501 U.S. 797, 805 (1991)). When that decision rests upon procedural default as “an

alternative ground,” we may, but are not required to, reach the merits of the claim on

habeas review. McBee v. Abramajtys, 929 F.2d 264, 265 (6th Cir. 1991).

This Court applies a four-pronged analysis to determine whether a claim has been

procedurally defaulted, looking to whether:

(1) the petitioner failed to comply with an applicable state procedural

rule;

(2) the state courts actually enforced the state procedural sanction;

(3) the state procedural bar provides an adequate and independent

state ground by which the state has foreclosed federal review; and

(4) if procedurally barred, whether the petitioner can demonstrate

“cause” and “prejudice”,” or a “fundamental miscarriage of

justice” to excuse the default.

See Murray v. Carter, 477 U.S. 478, 495–96 (1986); Maupin v. Smith, 785 F.2d 135, 138

(6th Cir. 1986). To show cause, the petitioner must demonstrate some objective factor

external to his defense that impeded his counsel’s efforts to comply with the state’s

procedural rule. Murray, 477 U.S. at 488. To demonstrate prejudice, the petitioner must

show more than the mere possibility of prejudice, but instead that the error worked to his

actual and substantial disadvantage, “infecting his entire trial with an error of

constitutional dimensions.”4 Id. at 494.

In spite of these limitations, the Supreme Court has emphasized that AEDPA

“stops short of imposing a complete bar on federal court relitigation of claims already

rejected in state proceedings.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

Rather, federal habeas review continues to serve the important role of “guard[ing]

against extreme malfunctions in the state criminal justice systems.” Id. (quoting Jackson

v. Virginia, 443 U.S. 307, 332 n.5 (1979)).

With this framework in mind, we review Petitioner’s claims for relief.

4

A petitioner may also assert that his case raises a fundamental miscarriage of justice by arguing

that he is actually innocent of the crime for which he was convicted. Schlup v. Delo, 513 U.S. 298, 314–15

(1995). Petitioner does not raise a Schlup actual-innocence claim in this case.

No. 09-3360 Hanna v. Ishee Page 11

II. Brady v. Maryland

A. Introduction

In Petitioner’s first claim for relief, he argues that the state violated Brady v.

Maryland, 373 U.S. 83 (1963), when it suppressed evidence relating to witness Ricardo

Lee. Lee, a fellow LCI inmate, was friends with Copas. According to Lee, he and

Copas applied for a rooming transfer shortly before the attack because they wanted to

be cellmates. Lee contended that, while waiting for the transfer to be processed, he

attempted to act as a peacemaker between Petitioner and Copas. Lee recounted several

conversations he had with Petitioner, including one the day before the attack, when

Petitioner allegedly told Lee that “[Lee] had better do something because his wick was

getting short.” In an effort to impeach Lee’s credibility, the defense asked whether Lee

expected to receive or in fact received any consideration from the state in exchange for

his testimony. Lee denied exchanging any expectation or benefit for his testimony.

Later in the trial, the prosecution called an officer with the State Highway Patrol,

Trooper James Ertel. Trooper Ertel visited LCI shortly after the attack and interviewed

sixty-nine individuals, including Petitioner, Lee, and the other inmates housed on their

cell block. Trooper Ertel prepared an extensive incident report (the “Ertel Report”)

memorializing these interviews, of which only portions were turned over to the defense

before trial. During his testimony, Trooper Ertel made several statements alluding to

potential Brady material that had not been disclosed to the defense. The trial judge

immediately recessed the court, ordered all Brady material contained in the report to be

disclosed to the defense, and granted defense counsel a weekend to review any newly

obtained material.

On direct appeal and in his post-conviction petition, Petitioner argued that the

prosecution’s handling of the Ertel Report violated Brady in two respects. First, he

contended that by failing to timely disclose certain portions of the Ertel Report, the state

deprived him of potential impeachment evidence. Additionally, Petitioner broadly

accused the prosecution of continuing to withhold relevant Brady material either

No. 09-3360 Hanna v. Ishee Page 12

contained in the Ertel Report or that related to LCI’s other inmates. The state courts

denied Petitioner’s delayed disclosure claim on all levels and rejected Petitioner’s

continued suppression claim, reasoning that it was speculative and otherwise

unsupported by the record. Hanna I, 767 N.E.2d at 693–94; Hanna III, 2002 WL 4529,

at *7.

On federal habeas review, Petitioner renewed his claim that the prosecution

continued to withhold relevant Brady material.5 In the interest of “clos[ing] the loop,”

the magistrate judge granted Petitioner full access to the prosecutor’s files. There,

Petitioner discovered Lee’s prison disciplinary records and several letters written by Lee

to the state prosecutor prior to trial.

In the first letter, dated June 17, 1998, Lee wrote that his “one objection to

testifying on behalf of the state” was his concern for his continued safety at LCI should

the other inmates learn he was a cooperating witness for the prosecution. Lee stated that

he lacked “sufficient protection” from the other inmates and that he felt he had “no

safety” at LCI. Lee categorically demanded to “be transferred to another prison” or else

he would “refuse to honor any subpeanoe [sic].” Within a week of Lee’s letter, he was

transferred to a lower security correctional institution, despite the fact that his

disciplinary records were inconsistent with such a transfer. The transfer documents

indicate that Lee was moved at the request of the “Warren County Prosecutor” due to a

“concern for [Lee’s] safety.” Shortly thereafter, Lee wrote a second letter to the

prosecutor, dated June 28, 1998, expressing his “satisfact[ion]” with the transfer and his

readiness “to carry out [his] duty as a competent witness.” Lee affirmed that he was

“pleased with his living conditions and available anytime.”

Based on this new information, Petitioner argued that the state improperly

withheld significant impeachment information regarding Lee’s testimony.6 Petitioner

5

Petitioner also renewed his delayed disclosure claim; however, that issue was not certified for

appeal.

6

Petitioner also renewed his claim of tardy disclosure; however, that argument has not been

certified for appeal.

No. 09-3360 Hanna v. Ishee Page 13

accused the prosecutor of making a tacit arrangement to transfer Lee to a lower-security

prison in exchange for his testimony and of being complicit in Lee’s false statements to

the contrary at trial. The state disputes Petitioner’s interpretation, contending that the

letters demonstrate only a concern for Lee’s safety. In support, the state points to the

prosecutor’s testimony at the federal evidentiary hearing, affirming that the institutional

transfer was for security purposes only and that the state did not consider the transfer to

be consideration traded for Lee’s testimony. The district court denied Petitioner’s Brady

claim on the merits, finding that although the letters indicated that Lee probably sought

special consideration for his testimony, there was “no evidence of a corresponding

assurance or promise from [the prosecutor].” Hanna IV, 2009 WL 485487, at *26.

B. Procedural Posture

Before addressing the merits of this claim, it is necessary to address the state’s

argument that Petitioner’s Brady claim is unreviewable on federal habeas appeal.

According to the state, Petitioner’s current Brady claim is unexhausted, because the

argument now before us is allegedly substantially different than the one Petitioner

presented to the state courts. Petitioner counters that he exhausted this claim when he

generally accused the state of continuing to withhold Brady material about LCI’s

inmates, including Lee. Petitioner also contends that any shortcomings in his efforts to

exhaust should be excused based on the state’s continued misconduct.

Although we agree that Petitioner diligently advocated for the broad release of

all potential Brady material throughout his state proceedings, it is clear that the state

courts were not fairly presented with the argument now made before this Court.

Whether or not Petitioner’s efforts to exhaust were sufficient, his current claim is easily

distinguishable because the factual basis supporting his arguments has changed

dramatically. See Williams v. Taylor, 529 U.S. 420, 437 (2000) (noting that a claim is

only exhausted where the defendant has presented the state courts with both the legal and

the factual bases supporting the claim). Accordingly, Petitioner’s present Brady claim

is unexhausted.

No. 09-3360 Hanna v. Ishee Page 14

Even if we could excuse Petitioner’s failure to exhaust, the circumstances of this

claim arguably play into Pinholster’s distinction between unexhausted claims and so-

called “new claims.” See Pinholster, 131 S. Ct. at 1401 n.10; id. at 1417–18

(Sotomayor, J. dissenting).7 In Pinholster, the Supreme Court suggested that its

restrictions might not apply where, as Petitioner alleges is the case here, new evidence

emerges in federal habeas proceedings due to prosecutorial misconduct. Id. The

Supreme Court noted that such new evidence might transform a previously unexhausted

claim into a “new claim” nevertheless appropriate for federal habeas review. Id.

However, neither this Court nor the Supreme Court has yet had occasion to develop this

distinction, and because disposition of this issue is not required to deny relief on

Petitioner’s claim, we decline to do so here.

C. Legal Framework

Nevertheless, this Court may deny relief on the merits, notwithstanding a failure

to exhaust, where appropriate. See 28 U.S.C. § 2254(b)(2). Because we are convinced

that the newly discovered evidence does not entitle Petitioner to relief on this

unexhausted claim, we elect to deny this claim on its merits.

Under Brady v. Maryland, 373 U.S. 83, 87 (1963), a defendant’s due process

rights are violated if the prosecution suppresses material exculpatory evidence that is

favorable to the defense. Likewise, the prosecution violates Brady if it fails to honor a

defense request for specific exculpatory evidence or if it fails to volunteer evidence not

requested by the defense, or requested only generally. Kyles v. Whitley, 514 U.S. 419,

433 (1995); United States v. Frost, 125 F.3d 346, 382 (6th Cir. 1997). Brady applies

regardless of the good or bad faith of the prosecution. Strickler v. Greene, 527 U.S. 263,

7

The state appears to concede that, if we were inclined to excuse Petitioner’s failure to exhaust,

Petitioner would not be precluded under Ohio law from raising the new evidence supporting this claim in

state proceedings. See Ohio Rev. Code § 2953.23(A)(1) (providing that a petitioner’s second or successive

petition for post-conviction relief will not be entertained unless the petitioner can show that he was

“unavoidably prevented from discover[ing] the facts” and that “clear and convincing evidence” show that,

“but for the constitutional error at trial, no reasonable factfinder would have found the petitioner guilty .

. . or eligible for the death sentence.”); see also Ohio Crim. Rule 33(6) (providing similarly that a

defendant may seek a new trial when “new evidence material to the defense is discovered which the

defendant could not with reasonable diligence have discovered and produced at the trial.”)

No. 09-3360 Hanna v. Ishee Page 15

280 (1999). In addition to showing that the prosecution withheld evidence, establishing

a Brady violation requires a defendant to show that: (1) the evidence at issue was

favorable to the accused, either because it was exculpatory or it was impeaching, id. at

281–82; and (2) the evidence was material, such that “there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding would

have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985); Jells v.

Mitchell, 538 F.3d 478, 501–02 (6th Cir. 2008).

D. Application

The district court denied this claim because, at least within this Circuit, evidence

that a witness sought consideration for his testimony is only Brady material if there is

cause to believe that the witness actually reached an express or tacit agreement with the

prosecution in exchange for his testimony. See Bell v. Bell, 512 F.3d 223, 232–33 (6th

Cir. 2008) (en banc) (citing United States v. Risha, 445 F.3d 298, 303 n.5 (3d Cir.

2006)); see also Giglio v. United States, 405 U.S. 150, 154–55 (1972); cf. United States

v. Risha, 445 F.3d 298, 303 n.5 (3d Cir. 2006). Regardless of whether our stance

qualifies as clearly established federal law, this case is arguably distinguishable from

Bell in that the circumstances at least strongly imply that Lee was transferred in an effort

to secure his willingness to testify. Whether that action was taken solely out of a

concern for Lee’s safety, or whether it was procured in consideration for his testimony,

is not a factual dispute that we need resolve. Moreover, because this factual dispute

could not be fully explored without the benefit of additional testimony which may be

barred by Pinholster, we refuse to opine on whether the Lee letters actually qualify as

Brady material.

Rather, even crediting Petitioner’s interpretation of the letters and presuming that

they ought to have been disclosed, Petitioner cannot obtain relief on this claim.

Ultimately, Petitioner is unable to meet Brady’s materiality requirement, because the Lee

letters cannot “reasonably be taken to put the whole case in such a different light as to

undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435–36 (1995).

Likewise, Petitioner cannot show a reasonable probability that, had the evidence been

No. 09-3360 Hanna v. Ishee Page 16

disclosed to the defense, his punishment would have been different. Strickler, 527 U.S.

at 280.

Petitioner’s defense rested nearly exclusively on the question of his intent at the

time of the attack. On this score, Lee’s testimony was of relatively minimal importance.

Lee only corroborated a larger presentation of uncontested evidence showing escalating

disputes between Petitioner and Copas preceding the attack. However, the defense did

not dispute that Petitioner and Copas were openly hostile towards one another. And

although Lee bolstered the government’s case for motive, his testimony provided no

additional insight into Petitioner’s mind during the attack itself.

Petitioner reiterates the theory he put to the jury at trial—namely, that Lee was

an instigator and active participant in Copas’ threats against Petitioner, not the altruistic

conciliator Lee made himself out to be at trial. However, Petitioner never argued that

he was so threatened by Lee, Copas, or Copas’ other friends that the attack was an act

of self-defense. Likewise, Petitioner never argued that he attacked Copas in a misguided

effort to assert his dominance or to secure his future safety in a violent prison

environment. Accordingly, even had Lee been fully impeached and the jury been

convinced that Lee or Copas had previously threatened Petitioner, these victories would

not have affected Petitioner’s concessions that the attack was committed while Copas

was intoxicated and unconscious.

By contrast, Petitioner’s own admissions provided the most probative evidence

as to his intent during the attack—i.e., that he tried to stab the paintbrush in further, but

that it broke off; that he chose to stab his victim in the eye, rather than in the ear, because

“the eye is softer;” that he “took [Copas] out of his misery;” and that he “tried to bash

the motherfucker’s brains in.” Compared against such statements, Lee’s testimony about

prior disagreements between the cellmates was not material. Accordingly, we cannot

reasonably conclude that the result of the proceeding would have been any different had

the defense successfully impeached Lee with the suppressed evidence.

Our conclusion carries through equally to the penalty phase of the trial. In

presenting his case for mitigation, Petitioner deliberately eschewed arguments that

No. 09-3360 Hanna v. Ishee Page 17

focused on the dangerousness of the prison environment or that argued that Petitioner

was only violent when provoked or when he needed to protect himself. Had Petitioner

pursued mitigation evidence of this type, Lee’s testimony might have been more

relevant. However, the defense deliberately avoided evidence that risked highlighting

to the jury Petitioner’s prior disciplinary infractions, as well as evidence that might have

inflamed the jurors regarding the dangers of the prison environment. Accordingly, Lee’s

testimony was wholly immaterial to Petitioner’s case in mitigation.

Because Petitioner’s Brady claim is unexhausted and because he cannot

demonstrate that the suppressed evidence undermines our confidence either in the

verdict or in the punishment imposed, Petitioner cannot succeed under his first theory

for relief.

III. Strickland v. Washington

Petitioner next claims that he suffered ineffective assistance of counsel during

both the guilt and penalty phases of his trial. First, he argues that his trial counsel was

ineffective in failing to discover that one of the jurors was ineligible for jury duty.

Second, he contends that his trial counsel was ineffective for failing to present expert

testimony regarding the impact of long term incarceration on Petitioner’s psyche and

conduct. Neither claim merits relief.

A. Legal Framework

Claims of ineffective assistance of counsel are analyzed under the familiar two-

part performance and prejudice framework established in Strickland v. Washington,

466 U.S. 668 (1984). See Darden v. Wainwright, 477 U.S. 168, 184 (1986).

A convicted defendant’s claim that counsel’s assistance was so defective

as to require reversal of a conviction or death sentence has two

components. First, the defendant must show that counsel’s performance

was deficient. This requires showing that counsel made errors so serious

that counsel was not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment. Second, the defendant must show

that the deficient performance prejudiced the defense. This requires

showing that counsel’s errors were so serious as to deprive the defendant

No. 09-3360 Hanna v. Ishee Page 18

of a fair trial, a trial whose result is reliable. Unless a defendant makes

both showings, it cannot be said that the conviction or death sentence

resulted from a breakdown in the adversary process that renders the

result unreliable.

Strickland, 466 U.S. at 687. “Ineffectiveness is not a question of basic, primary, or

historical fact,” but rather is “a mixed question of law and fact.” Id. at 698.

This Court determines whether counsel’s performance was deficient by reference

to an objective standard of reasonableness, based on prevailing professional norms.

Rickman v. Bell, 131 F.3d 1150, 1154 (6th Cir. 1997) (citing Strickland, 466 U.S. at

688). Counsel’s performance must be assessed according to the time of representation,

rather than viewed with the benefit of hindsight. See Strickland, 466 U.S. at 689 (“A fair

assessment of attorney performance requires that every effort be made to eliminate the

distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at the time.”). Because

of the inherent difficulties in making this determination, this Court must “indulge a

strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. The burden rests on the defendant to overcome the

presumption that the challenged conduct might be considered sound trial strategy. Id.

In order to demonstrate prejudice, a “defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. A reasonable probability is defined

as “a probability sufficient to undermine confidence in the outcome”; certainty of a

different outcome is not required. Id. “Thus, analysis focusing solely on mere outcome

determination, without attention to whether the proceeding was fundamentally unfair or

unreliable, is defective.” Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).

B. Failure to Discover Ineligible Juror

Petitioner’s first Strickland-based claim focuses on his counsel’s failure to

discover that one of the individuals who served on his jury panel was a convicted felon,

and thus, ineligible for jury service under Ohio law. See Ohio Rev. Code Ann.

No. 09-3360 Hanna v. Ishee Page 19

§ 2961.01. Although the venire of prospective jurors was asked about their criminal

histories in a written questionnaire, the juror at issue submitted responses that did not

make his felon status immediately apparent. Petitioner claims that effective voir dire

would have resolved any ambiguities in the juror’s responses and automatically

disqualified him from sitting on the panel. In his federal habeas appeal, Petitioner

supplements this claim with evidence he alleges demonstrates that the juror was

traumatized by exposure to prison violence during his own incarceration. Petitioner

argues that the juror’s personal background rendered him a particularly biased and

inappropriate person to judge Petitioner’s guilt.

1. Procedural Posture

Before we can turn to the merits, we first consider the state’s argument that

Petitioner’s claim is procedurally defaulted under Ohio’s res judicata doctrine.

Petitioner did not raise this claim on direct appeal, but he included it in his post-

conviction petition and his post-conviction appeal. The Ohio Court of Appeals and the

Ohio Supreme Court considered and rejected this claim under both Sixth Amendment

and ineffective assistance of counsel theories. The state courts reasoned that although

nothing had prevented trial counsel from inquiring into the juror’s felon status on voir

dire, the record did not otherwise establish that whatever errors counsel might have

committed deprived Petitioner of his right to a fair trial. See Hanna II, 2001 WL

3604367, slip op. at 1–3; Hanna III, 2002 WL 4529, at *4–5. As to Petitioner’s

ineffective assistance of counsel claim, the Ohio Supreme Court also found that it was

precluded from granting relief because the claim was barred by Ohio’s res judicata

doctrine. Hanna III, 2002 WL 4529, at *5–6. In finding Petitioner’s claim procedurally

defaulted, the Ohio Court of Appeals reasoned that Petitioner could have raised his

Strickland claim on direct appeal and that his failure to do so was not based on any

evidence submitted outside the original trial record. Id. After careful consideration, we

conclude that the Ohio Court of Appeals’ decision precludes us from granting federal

habeas relief on this claim.

No. 09-3360 Hanna v. Ishee Page 20

Ohio Rev. Code Ann. § 2953.21(J), the state’s post-conviction statute, provides

the exclusive remedy for collaterally attacking a criminal conviction. Under Ohio’s

post-conviction procedure, two variants of res judicata apply to the collateral review of

a criminal judgment. Durr v. Mitchell, 487 F.3d 423, 434 (6th Cir. 2007) (citing

Lundgren v. Mitchell, 440 F.3d 754, 765 n.2 (6th Cir. 2006)). A claim is res judicata if

(1) the petitioner could have brought a claim on direct appeal, but failed to do so; or (2)

the claim was actually brought and decided on direct appeal. Thus, under Ohio’s res

judicata doctrine, a defendant may not raise a claim in a post-conviction proceeding that

either could have been or actually was fully litigated at trial or on direct appeal. See

Agee v. Russell, 751 N.E.2d 1043, 1049 (Ohio 2001). Pursuant to AEDPA, the state

court’s application of the res judicata doctrine constitutes an adequate and independent

state ground barring federal habeas relief. Durr, 487 F.3d at 432 (citing Coleman v.

Mitchell, 268 F.3d 417, 429 (6th Cir. 2001)); Seymour v. Walker, 224 F.3d 542, 555 (6th

Cir. 2000); see also Wainwright, 433 U.S. at 87. Accordingly, Petitioner’s procedural

default precludes relief unless he can show cause excusing his failure to follow the

state’s rule and prejudice resulting therefrom. Maupin, 785 F.2d at 138.

In assessing this question, we begin by noting that Ohio treats the post-conviction

review of an ineffective assistance of counsel claim somewhat differently than we do in

federal court. This Court generally demurs from addressing an ineffective assistance

claim on direct appeal, because of the limited opportunity to develop and include record

evidence that would bear on the merits of such an allegation. See, e.g., United States v.

Williams, 612 F.3d 500, 508 (6th Cir. 2010). The Ohio courts, by contrast, allow an

ineffective assistance of counsel claim to be raised on direct appeal, and in fact,

encourage it, because they apply the res judicata doctrine to Strickland claims, just as

they would to any other, despite the comparative evidentiary limitations concomitant on

direct appeal. See, e.g., State v. Cole, 443 N.E.2d 169, 170 (Ohio 1982) (syllabus).

Nevertheless, Ohio has recognized two narrow exceptions which circumvent res

judicata’s application and provide a petitioner with the opportunity to raise a

Strickland claim for the first time on post-conviction review. Only one exception is

No. 09-3360 Hanna v. Ishee Page 21

relevant here.8 Pursuant to Ohio law, a petitioner may avoid res judicata’s bar if he can

show that a “fair determination” of the ineffective assistance of counsel claim requires

reference to evidence that was “outside the record” on direct appeal. See id. Because

Ohio law prohibits the addition of new evidence to the trial record on direct appeal, State

v. Ishmail, 377 N.E.2d 500, 502 (Ohio 1978), the state has excepted from res

judicata those matters that may only be reasonably determined by reference to evidence

that would necessarily fall outside the trial record—for instance, whether trial counsel

sufficiently prepared in advance of trial or whether the defense had strategic motivations

for its decisions. See State v. Smith, 477 N.E.2d 1128, 1131 n.1 (Ohio 1985). Although

the outside-the-record exception provides a narrow escape from procedural default, the

state’s res judicata doctrine presents an Ohio defendant with somewhat of a procedural

quandary—either he must raise his ineffective assistance of counsel claim immediately

on direct appeal and risk a potentially premature dispositive denial, or he must forego

his claim on direct appeal and simply hope that he can thereafter develop sufficient

outside-the-record evidence to overcome res judicata on collateral review.

Applying Ohio’s procedures here, Petitioner clearly failed to raise a voir dire-

based ineffectiveness claim on direct appeal, and his claim was therefore procedurally

defaulted on collateral review. The only way for Petitioner to have obtained collateral

review on the merits of his Strickland claim was to present the post-conviction courts

with sufficient outside-the-record evidence to surmount res judicata.

As the Ohio Court of Appeals recognized, Petitioner’s main piece of outside-the-

record evidence was an affidavit submitted by an expert in capital defense, David L.

Doughten.9 Hanna III, 2002 WL 4529, at *5. The Doughten affidavit provided detailed

8

The other exception provides that if the same counsel who represented the defendant at trial also

represents the defendant on direct appeal, res judicata does not apply. State v. Lambrecht, 568 N.E.2d

743, 745 (Ohio Ct. App. 1989) (explaining that counsel cannot be expected to argue his own

ineffectiveness). Petitioner was represented by different counsel on trial than on direct appeal, so the first

res judicata exception does not apply.

9

Petitioner contends that the Ohio Supreme Court inaccurately identified the outside-the-record

evidence he offered in support of this claim. Petitioner reiterates that this claim was actually supported by

three pieces of evidence: (1) the felon juror’s written questionnaire, which was not included in the direct

appeal record; (2) an affidavit by one of Petitioner’s trial counsel, Kelly Culshaw; and (3) the Doughten

affidavit. Culshaw’s affidavit, however, is limited to affirming that the questionnaire (and in fact, all the

No. 09-3360 Hanna v. Ishee Page 22

opinions as to errors allegedly committed by trial counsel and opined that those errors

constituted ineffective assistance. One error discussed in some detail was trial counsel’s

allegedly deficient performance during voir dire.

As the post-conviction decision makes clear, Ohio’s case law conflicts as to

whether an expert attorney affidavit actually constitutes outside-the-record evidence.

Id. at *5. In finding that the affidavit did not overcome Petitioner’s procedural default,

the Ohio Supreme Court reasoned that “[t]he voir dire conducted by appellant’s counsel

[was] part of the record,” and thus, the arguments and conclusions drawn therefrom by

the expert at least could have been raised on direct appeal. Id. at *6.

Applying this standard, we can find no error in the Ohio Court of Appeals’

analysis. The import of the Doughten affidavit was only to bolster legal arguments that

were based on evidence that apparently could have been discovered and argued on direct

appeal with due diligence. Petitioner’s failure to raise this ineffective assistance of

counsel claim on direct appeal therefore renders it procedurally defaulted under state law

and ineligible for federal habeas relief.

2. Application

Despite the procedural bar, we note that the Ohio Court of Appeals also

impliedly considered this claim on its merits. In judging trial counsel’s performance, the

court obliquely referenced the Doughten affidavit and found that it “failed to

demonstrate that [Petitioner’s] trial counsel breached any essential duty . . . or presented

sufficient operative facts to require an evidentiary hearing.” Id. The court also

suggested that Petitioner could not meet Strickland’s prejudice prong because “the

evidence outside the record is only marginally significant and does not advance the

petitioner’s claim beyond a mere hypothesis and a desire for further discovery.” Id.

questionnaires of the sitting jurors), were excluded from the direct appeal record. Her affidavit does not

provide any satisfactory explanation as to why the attorneys handling Petitioner’s direct appeal failed to

obtain the questionnaires. When asked by this Court at oral argument, Petitioner’s federal habeas counsel

also could not answer this question. Nevertheless, even if the questionnaires and Culshaw affidavit should

have been noted as separate pieces of outside-the-record evidence, the Doughten affidavit adequately

recounted the contents of the other two documents. By reviewing the Doughten affidavit, the Ohio

Supreme Court effectively considered all three pieces of evidence and found that none of it was sufficient

to surmount res judicata.

No. 09-3360 Hanna v. Ishee Page 23

Applying § 2254(d) review, we agree that this analysis was not contrary to or an

unreasonable application of clearly established federal law.

a. Performance

The Sixth and Fourteenth Amendments guarantee a criminal defendant’s right

to a fair and impartial jury. See Morgan v. Illinois, 504 U.S. 719, 729 (1992). “In

essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel

of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961) (internal

citation omitted). The presence of even a single biased juror deprives a defendant of his

right to an impartial jury. Williams v. Bagley, 380 F.3d 932, 944 (6th Cir. 2004) (citing

Morgan, 504 U.S. at 729). Should counsel perform so deficiently during the jury

selection process so as to deny the defendant his Sixth Amendment right to an impartial

jury, the defendant may be entitled to relief on the basis of ineffective assistance of

counsel. See Holder v. Palmer, 588 F.3d 328, 338 (6th Cir. 2009).

As a starting point, the Sixth Amendment “does not require an absolute bar on

felon-jurors,” because a juror’s felon status is not necessarily indicative of a bias against

the defendant (or, for that matter, against the prosecution). United States v. Boney,

977 F.2d 624, 633 (D.C. Cir. 1992). Accordingly, it is inappropriate to invalidate, as a

matter of law, any conviction simply because it was reached by a jury that mistakenly

included a convicted felon. Id. Thus, the appropriate framework to review a felon-juror

claim is to inquire whether the juror was partial and, in the context of this Strickland

claim, whether trial counsel’s failure to discover that partiality deprived Petitioner of his

Sixth Amendment right. Id.; see also Holder, 588 F.3d at 338–339.

When confronting an allegation of juror bias, we must first look to whether the

juror swore under oath “that he could set aside any opinion he might hold and decide the

case on the evidence,” and whether that “protestation of impartiality” ought to be

believed. Patton v. Yount, 467 U.S. 1025, 1036 (1984). A state court’s finding of

impartiality is a factual determination entitled to 28 U.S.C. § 2254(e)’s presumption of

correctness, Dennis v. Mitchell, 354 F.3d 511, 520 (6th Cir. 2003), and may “be

No. 09-3360 Hanna v. Ishee Page 24

overturned only for ‘manifest error.’” Hill v. Brigano, 199 F.3d 833, 843 (6th Cir. 1999)

(quoting Patton, 467 U.S. at 1031).

“If a juror is found to have deliberately concealed material information, bias may

be inferred. If, however, information is not concealed deliberately, the movant must

show actual bias.” Williams, 380 F.3d at 946 (emphasis in original) (quoting Zerka v.

Green, 49 F.3d 1181, 1186 (6th Cir. 1995)). To show actual bias, the defendant “must

first demonstrate that a juror failed to answer honestly a material question on voir dire,

and then further show that a correct response would have provided a valid basis for a

challenge for cause.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556

(1984). “The motives for concealing information . . . may vary, but only those reasons

that affect a juror’s impartiality can truly be said to affect the fairness of a trial.” Id.

Bias may not be inferred in the instant case because the record does not show that

the juror in question deliberately concealed his felon status. In fact, the juror indicated

several times in his questionnaire that he had experience with prison and probation

services and that he had been incarcerated in the past. Although the juror did not

volunteer his felon status on voir dire, he was never directly asked about it by either the

government or defense counsel. The juror’s written responses were somewhat cryptic

and confusing, but they do not indicate deliberate evasiveness. Rather, the state and

Petitioner appear to agree that the juror likely struggled to understand the questions

asked of him. Even so, Petitioner maintains that the responses were sufficiently

suspicious and should have triggered further investigation by Petitioner’s trial counsel.

b. Prejudice

Even if this Court were to assume deficient performance, Petitioner cannot show

(especially on the record that was before the state courts) that the juror harbored any

actual bias. At voir dire, the juror testified that he would follow the court’s instructions;

that he would not assume guilt or innocence; that he could return a sentence less than

death if the mitigating factors outweighed the aggravating circumstances; that he

believed laws apply equally to inmates as they would to a “person on the street”; and that

inmates were “human beings, just like everybody else.” Additionally, the juror stated

No. 09-3360 Hanna v. Ishee Page 25

that he would not let his knowledge of probation or parole departments impact his ability

to be fair and impartial.10 Given these responses, Petitioner cannot show prejudice and

the state court’s decision to deny relief was not contrary to, or an unreasonable

application of, clearly established federal law.

C. Failure to Present an Adequate Case in Mitigation

Petitioner’s argument that his counsel was ineffective for failing to present an

adequate case in mitigation also fails. At the penalty phase, defense counsel focused on

evidence showing that Petitioner suffered a troubled childhood. Petitioner now contends

that this mitigation defense was constitutionally deficient because it focused on matters

that occurred years before Petitioner’s long incarceration and had no relevance to the

person Petitioner became while in prison. Instead, Petitioner contends that his defense

counsel should have introduced the additional proposed testimony of a psychologist and

an expert in prison culture. He asserts that these experts could have testified that the

stresses of lifelong incarceration, compounded with his organic neurological defects and

troubled childhood, directly contributed to the attack.

1. Application

On direct appeal, Petitioner argued that his counsel was ineffective for failing to

engage an expert to testify on conditions of confinement. The court rejected the

argument and held that testimony about prison conditions “was of questionable

relevance,” “did not relate to [Hanna], his background, or the nature and circumstances

of the crime,” and therefore, was “not mitigating.” Hanna I, 767 N.E.2d at 702. On

collateral review, Hanna raised a similar, but somewhat different claim, alleging that his

10

In addition, the district court allowed Petitioner to depose the juror in order to develop his

federal habeas petition. Although Pinholster precludes us from granting relief based on this new evidence,

we have reviewed the deposition and are convinced that it does not warrant further consideration by the

state courts. Although the juror made several statements regarding traumatic experiences he had while

incarcerated, he also affirmed that he did not allow these experiences to bear on his service at Petitioner’s

trial. Likewise, the juror testified that he did not inform his fellow jurors of his status as a convicted felon,

and he did not share his prison experiences with them. The juror further affirmed that he would not have

answered the questions posed to him on voir dire any differently had further inquiry been made into his

felon status or his impartiality. Given the overall tenor of these responses, we find that Petitioner would

not likely make out a showing of prejudice, even considering the new evidence submitted in support of this

claim.

No. 09-3360 Hanna v. Ishee Page 26

counsel was ineffective for failing to engage the services of a prison culture expert to

testify about how prison life affected him and to help the jury better understand the

background of the incident. The post-conviction court summarily rejected this claim as

brought “with the benefit of hindsight” and “lack[ing] operative facts” to find a

Strickland violation. Hanna II, 2001 WL 3604367, slip op. at 11–12. The post-

conviction appellate court glossed over this claim, agreeing that the items submitted in

support, which included affidavits of proposed testimony from a prison expert and prison

personnel,“alleged no operative facts to indicate that [the proposed testimony] would

result in different findings by the jury . . . [or] that trial counsels’ presentation violated

the standards of Strickland [].” See Hanna III, 2002 WL 4529, at *3. The district court

agreed that Petitioner could not prove deficient performance. Hanna IV, 2009 WL

485487, at *27–31. We agree that Petitioner is not entitled to relief under § 2254(d).

a. Performance

Counsel’s failure to make a reasonable investigation into the defendant’s

psychiatric history and family background, and to present sufficient mitigating evidence

to the jury at sentencing, can constitute ineffective assistance of counsel. Wiggins v.

Smith, 539 U.S. 510, 522–23 (2003); Williams v. Taylor, 529 U.S. 362, 363 (2000). In

assessing whether counsel’s efforts were deficient for failing to introduce certain

evidence in mitigation, the focus must remain on whether counsel’s investigation into

various avenues of mitigating evidence was itself reasonable. Wiggins, 539 U.S. at 523.

In assessing the reasonableness of the investigation, we take into account the quantum

of evidence known to counsel, as well as whether the known evidence should have

prompted a reasonable attorney to investigate further. Id. at 527. Further investigation

is not required when counsel reasonably believes that such investigation would be

“fruitless or even harmful.” Strickland, 466 U.S. at 691.

Petitioner cannot claim that trial counsel utterly failed to investigate his case for

mitigation. Rather, his argument is limited to a complaint that counsel should have

pursued a different mitigation strategy. His argument cannot support a successful

Strickland claim. The record shows that Petitioner received funds for an investigator,

No. 09-3360 Hanna v. Ishee Page 27

a mitigation specialist, and a psychologist, who all were hired to assist in counsel’s

efforts to present a case in mitigation. Dr. Kathleen Burch, Psy.D., a clinical

psychologist, interviewed Petitioner prior to trial and provided the primary testimony on

Petitioner’s behalf during the penalty phase. Additionally, counsel sought and received

an order to obtain any and all of Petitioner’s medical, hospital, psychological,

institutional, school, and employment records. This investigation included records from

as far back as Petitioner’s early childhood to as recent as his prison records at LCI. Dr.

Burch’s testimony referenced the records throughout her testimony, demonstrating that

the effects of Petitioner’s long-term incarceration were considered as part of her

psychological assessment and more broadly as part of defense counsel’s efforts to

develop Petitioner’s overall case for mitigation. Given the above, Petitioner cannot

show that his counsel utterly failed to consider a prison-life mitigation theory.

b. Prejudice

Moreover, Strickland’s prejudice prong cannot be met where the omitted

testimony would be cumulative to other evidence already on the record. See, e.g., Broom

v. Mitchell, 441 F.3d 392, 410 (6th Cir. 2006); Clark v. Mitchell, 425 F.3d 270, 286

(6th Cir. 2005). To this effect, Petitioner cannot show deficient performance because

the jury was encouraged to consider the stresses of prison culture and the impact

of its dangerous environment on Petitioner’s behavior. In discussing Petitioner’s

psychological defects and troubled background, Dr. Burch testified specifically that

Petitioner’s organic brain defects (1) impaired his impulse control; (2) caused him to

perceive false threats and to overreact to minor threats; (3) negatively affected his

concentration; and (4) hindered his long-term decisionmaking—all issues directly

relevant to Petitioner’s proposed prison life arguments. Dr. Burch testified that

Petitioner was “not a person that has been out in the world” and that “he has never really

lived independently.” Although she admitted that her assessments were primarily based

on records from Petitioner’s childhood and juvenile incarcerations, her testimony also

made clear that she had reviewed Petitioner’s more recent prison records. For example,

Dr. Burch referenced several specific conduct violations and notes that related to

No. 09-3360 Hanna v. Ishee Page 28

Petitioner’s incarceration at LCI. Additionally, the overall tenor of Dr. Burch’s

testimony emphasized that Petitioner’s psychological defects and childhood background

had negative effects that could be expected to carry forward to his conduct as an adult.

In addition to Dr. Burch’s expert testimony, trial counsel emphasized the stresses

of prison life in closing arguments at both the guilt and penalty phases of trial. Counsel

pointed out that Petitioner had been incarcerated for approximately twenty years before

the attack and urged the jury to view the cellmates’ tense relationship through the lens

of prison culture. Although Petitioner argues that expert testimony would have offered

a unique perspective on these issues, the impact of additional testimony is simply too

speculative to prove prejudice under Strickland’s and AEDPA’s combined doubly high

standard for relief.

Finally, and as the district court correctly noted, the testimony of a prison expert

was, at best, a “double-edge[d]” sword. See Hanna IV, 2009 WL 485487, at *27–31

(citing Wiggins, 539 U.S. at 535). Much of the omitted evidence about prison culture

risked highlighting Petitioner’s problems in handling situations not strictly-controlled

by prison authorities. Such testimony also risked introducing Petitioner’s history of

disciplinary infractions, which included a prior attempted stabbing of a fellow inmate.

Id. at *29–30. This background would have undermined a pillar of Petitioner’s case in

mitigation—that the death penalty was not warranted because lifelong imprisonment in

solitary confinement could adequately secure the future safety of prison guards and other

inmates.

Given the above, Petitioner cannot show deficient performance and his argument

for prejudice is exceedingly speculative. Accordingly, the state court decision denying

Petitioner’s Strickland claim based on ineffective assistance of counsel during the

mitigation phase does not warrant habeas relief.

No. 09-3360 Hanna v. Ishee Page 29

IV. Flawed Jury Instruction

A. Introduction

In Petitioner’s fourth claim for relief, he challenges the instruction provided to

the jury on causation during the penalty phase of his trial. Petitioner argues that the

causation instruction “fatally undermined” his defense, because it diluted the mens rea

component of Ohio’s aggravated murder statute in contravention of his right to due

process.

Petitioner raised this claim on direct appeal and in his post-conviction

proceedings. On direct appeal, the Ohio Supreme Court denied the claim on the merits.

While recognizing that “the use of a foreseeability instruction in [an] aggravated murder

case” was “questionable” under state law, the Ohio Supreme Court reasoned that the

instructions as a whole made it clear that the jury had to find purpose to kill in order to

convict. Hanna I, 767 N.E.2d at 693. The post-conviction courts also rejected this

claim, finding that the causation instruction was not in error given that the trial court

properly recited Ohio’s definition of reasonable doubt. Hanna II, 2001 WL 3604367,

slip op. at 10; Hanna III, 2002 WL 4529, at *8.

Petitioner renewed this claim in his federal habeas petition. The district court

looked to the state court’s decision on direct appeal and agreed with its analysis. Hanna

IV, 2009 WL 485487, at *44–46. The district court concluded that because the trial

court properly instructed the jury with respect to specific intent, it did not impermissibly

lower the prosecution’s burden of proof by also including the instruction on

foreseeability. Id. at *46. The state urges us to affirm this ruling, arguing that because

the Supreme Court has never invalidated this type of jury instruction on due process

grounds, the state courts’ rulings cannot be contrary to or an unreasonable application

of clearly established federal law. We agree.

No. 09-3360 Hanna v. Ishee Page 30

B. Legal Framework

The Due Process Clause of the Fourteenth Amendment “protects the accused

against conviction except upon proof beyond a reasonable doubt of every fact necessary

to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364

(1970). “Supreme Court precedent clearly establishes that, ‘[i]n a criminal trial, the

State must prove every element of the offense, and a jury instruction violates due process

if it fails to give effect to that requirement.’” Joseph v. Coyle, 469 F.3d 441, 464 (6th

Cir. 2006) (quoting Middleton v. McNeil, 541 U.S. 433, 437 (2004)). A jury instruction

that shifts or relieves the state of its burden of proof also violates due process.

Sandstrom v. Montana, 442 U.S. 510, 520–24 (1979).

In Estelle v. McGuire, 502 U.S. 62 (1991), the Supreme Court established the

showing required to obtain habeas relief based on an incorrect jury instruction.

Estelle made clear that “the fact that the instruction was allegedly incorrect under state

law is not a basis for habeas relief.” Id. at 71–72 (citing Marshall v. Lonberger, 459

U.S. 422, 438 n.6 (1983)). Rather, we must consider “whether there is a reasonable

likelihood that the jury has applied the challenged instruction in a way that violates the

Constitution.” Id. at 72 (quoting Boyde v. California, 494 U.S. 370, 380 (1990) (internal

quotation marks omitted)). In doing so, it is incumbent upon the defendant to show that

the challenged instruction “by itself so infected the entire trial that the resulting

conviction violates due process.” Id. at 72 (quoting Cupp v. Naughten, 414 U.S. 141,

147 (1973)). A challenge to a jury instruction is not to be viewed in “artificial isolation,”

but rather must be considered within the context of the overall instructions and trial

record as a whole. Id. The category of infractions that can render an entire trial

fundamentally unfair is narrow. Id. at 72–73 (citing Dowling v. United States, 493 U.S.

342, 352 (1990)).

C. Application

Under Ohio’s statute for aggravated murder, the prosecution is charged with

proving that the murder was committed “purposefully, and with prior calculation and

No. 09-3360 Hanna v. Ishee Page 31

design.” Ohio Rev. Code Ann. § 2903.01(A). As part of its instructions, the trial court

provided the jury with an instruction titled “Causation,” which read as follows:

The State charges that the act of the defendant caused the death of Peter

Copas. Cause is an act which in a natural and continuous sequence

directly produces the death of Peter Copas and without which it would

not have occurred.

The defendant’s responsibility is not limited to the immediate or most

obvious result of the defendant’s act. The defendant is also responsible

for the natural and foreseeable results that follow, in the ordinary course

of events from the act.

See Hanna IV, 2009 WL 485487, at *45.11

Reviewing the challenged language in context with the jury instructions as a

whole, the causation instruction stands in isolation when compared to the multiple points

where the trial court properly instructed the jury on specific intent. As the district court

noted, the trial court repeatedly advised the jurors that they could not convict Petitioner

of aggravated murder unless they found that the state met its burden to prove Petitioner’s

specific intent to kill beyond a reasonable doubt:

(1) [the jury] was required to find beyond a reasonable doubt that Mr.

Hanna “purposely caused the death of Peter Copas with prior calculation

and design”; (2) a person acts purposely when it is his specific intent to

cause a certain result; (3) purpose is a decision of the mind to do an act

with a conscious objective of purposely producing a specific result; (4) to

do an act purposely is to do it intentionally and not accidentally; (5) no

person may be convicted of aggravated murder unless he specifically

intended to cause the death of another; and (6) prior calculation and

design means that the purpose to cause the death was reached by a

definite process of reasoning in advance of the homicide.

Id. at *46 (emphasis in original).

Bearing these repeated instructions in mind, we agree that the isolated causation

instruction did not lower the prosecution’s burden to prove intent. The instructions, read

in their totality, clearly place the burden of proof on the state. Moreover, defense

11

The language was apparently derived from Ohio’s civil instruction on causation.

No. 09-3360 Hanna v. Ishee Page 32

counsel’s admonitions also drew a clear line between the issues of causation and intent,

buttressing the distinction reflected in the jury instructions. Specifically, defense

counsel conceded that Petitioner’s actions caused Copas’ death, but repeatedly

underscored Petitioner’s lack of intent to kill and advised the jurors, both in opening and

closing arguments, that their verdict would turn almost entirely on this narrow issue.12

Petitioner cites to Francis v. Franklin, 471 U.S. 307, 310 (1985), for the

proposition that an improper instruction may warrant habeas relief where the

“dispositive issue” in the case is the defendant’s intent to kill. However, this case is

clearly distinguishable from Francis on both the law and the facts. In Francis, the

Supreme Court granted habeas relief to a defendant whose victim was killed when he

shot a bullet through a closed door. At trial, the defendant argued that the shot went off

accidentally and that he lacked the requisite intent to kill. In granting relief, the Supreme

Court focused on the instructions given to the jury on intent, not causation. The intent

instruction in Francis specifically called upon the jury to presume that the defendant

intended the natural and probable consequences of his acts. Id. at 309. Moreover, the

overall instructions did not cure this error because they charged the defendant with

rebutting the inference that he intended the foreseeable consequences of his actions. Id.

at 315.

If anything, Francis underscores our conclusion that the state courts properly

analyzed Supreme Court precedent in this case. The challenged instruction here is

clearly distinguishable from the one in Francis because Petitioner’s jury was only told

that it could infer causation from the defendant’s actions; the jury was not instructed to

infer anything about Petitioner’s intent from this conduct. Moreover, the error in

describing causation, to the extent there was any, was attenuated from the essential

12

Defense counsel’s decision not to pursue an intervening cause defense was presumably

strategic, given the difficulty of succeeding with such a theory under Ohio law, which provides that “[o]ne

who inflicts injury upon another is criminally responsible for that person’s death, regardless of whether

different or more skillful medical treatment may have saved his life. That rule has been qualified [only]

where there has been a gross or willful maltreatment of the patient by the medical personnel, which is

shown to have been an independent intervening cause of the patient’s death.” State v. Johnson, 381 N.E.2d

637, 640 (Ohio 1978); see also State v. Dukes, No. 2010-P-0027, 2011 WL 6938589, at *5–6 (Ohio Ct.

App. Dec. 30, 2011).

No. 09-3360 Hanna v. Ishee Page 33

element in dispute at trial. Finally, and in contrast to Francis, the overall instructions

provided at Petitioner’s trial were curative because they properly charged the jury as to

specific intent, whereas the broader instructions in Francis only underscored the

constitutional error. Id. at 315. Accordingly, Francis is not helpful to Petitioner’s claim

for relief.

Because the instructions, read overall, properly instructed the jury as to specific

intent, we cannot conclude that they were so infirm as to warrant habeas relief.

Although Petitioner’s intent was of critical importance to his defense, this fact alone

does not alter our analysis. The state courts’ rulings were therefore not unreasonable

applications of clearly established federal law. See also Campbell v. Coyle, 260 F.3d

531, 557 (6th Cir. 2001) (relying on Sandstrom to deny habeas relief where the

defendants challenged causation instructions, but the jurors were properly instructed on

specific intent); Byrd v. Collins, 209 F.3d 486, 527 (6th Cir. 2000).

CONCLUSION

For the reasons stated above, we AFFIRM the district court’s judgment

DENYING the petition for a writ of habeas corpus.