holding that the district court did not abuse its discretion in denying discovery requests where the habeas petitioner had procedurally defaulted the claim, and stating “Rule 6 embodies the principle that a court must provide discovery in a habeas proceeding only 4 ‘where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief.’”
How later courts described this case
- holding that the district court did not abuse its discretion in denying discovery requests where the habeas petitioner had procedurally defaulted the claim, and stating “Rule 6 embodies the principle that a court must provide discovery in a habeas proceeding only 4 ‘where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief.’”
- holding district court properly denied a habeas petitioner’s discovery requests relating to procedurally defaulted ineffective-assistance claims because the petitioner had not shown that the requested discovery could “resolve any factual disputes that could entitle him to relief”
- holding that petitioner’s claims to the state courts alleging prosecutorial misconduct in improperly vouching for the No. 06-4238 Carter v. Mitchell Page 18 credibility of a witness were insufficient to preserve claims based on other instances of prosecutorial misconduct
- holding that the district court did not err in denying the petitioner’s discovery motion when the petitioner “ma[d]e[ ] no effort to explain how” the requested discovery could support his ineffective assistance of counsel claim in light of the trial evidence
Written by the judges who cited it.
The opinion
MERRITT, Circuit Judge,
dissenting.
I would issue the writ of habeas corpus because the jury selection process violated Williams’ right to an “impartial jury” under the Sixth Amendment, as explained by Chief Justice Moyer in his dissenting opinion in the Ohio Supreme Court in this case.
Judge Rogers’ complex 77-page opinion for the Court illustrates the highly complex, convoluted nature of our federal death penalty jurisprudence which depends on multiple layers of intersecting state and federal doctrines and, through various door-closing devices like “procedural default,” prevents the Court from reaching many of Williams’ claims on the merits. (See, for example, footnote 21.) Such a system, as has been often noted by judges and scholars, produces “randomized” executions with “no observable differences between outcomes in the ‘standardless’ discretion disapproved of in Furman, and the ‘guided discretion’ upheld in Gregg.” Zimring, The Contradictions of American Capital Punishment 9 (2003). See Kozinski, Death: The Ultimate Run- *978 On Sentence, 46 Case W.L.Rev. 1 (1995) (situation not different from the time the Supreme Court “wiped the slate clear of all death statutes” as our institutions “have gone about recreating and expanding the death penalty”).
In such a randomized system, the capital case often is won or lost at voir dire. The voir dire and the method of jury selection become more important than the trial itself. Executions depend on “the line between innocence and guilt [which] is drawn with reference to reasonable doubt” by individual jurors, Schlup v. Delo, 513 U.S. 298, 329 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995), and on the fact that just 1 of the 12 jurors is empowered to prevent the imposition of the death penalty by finding at the sentence stage that the mitigating factors outweigh the aggravating factors. Mills v. Maryland, 486 U.S. 367 , 108 S.Ct. 1860 , 100 L.Ed.2d 384 (1988). Thus the conduct of the voir dire and the number of pro-death-penalty jurors versus the number of jurors who disfavor the death penalty make a big difference in the outcome of the case. Execution may turn on the views of one juror.
The Sixth Amendment guai-antees the right to an “impartial jury” in criminal prosecutions, not one biased in favor of automatically imposing the death penalty. In the present case, as Chief Justice Moyer suggests, we simply create a legal fiction when we say that Williams had an “impartial” or neutral and unbiased jury insofar as the death penalty is concerned. The trial court in this case administered a double dose of lethal rulings at the voir dire — those jurors who disfavor the death penalty were excused for cause, those who favor the automatic imposition of the death penalty for murder were not excused for cause.
The state prosecutor “death qualified” the jury and stacked it in favor of proponents of the death penalty before the case was tried. At the voir dire, the prosecutor was successful in having the court excuse for cause those jurors predisposed to disfavor the death penalty. Even though a quarter of the States and all members of the European Union have abolished the death penalty, jurors who would agree with the policy of these States and nations are said to be biased and unrepresentative and were eliminated from service on this jury. As a practical matter, this left a jury made up of pro-death-penalty jurors. 1
Chief Justice Moyer pointed out in his dissent for himself and Justice Pfeifer that the state trial court went much further *979 than simply eliminating anti-death penalty jurors. It declined to excuse for cause jurors who would automatically impose the death penalty for murder. His dissenting opinion explains the situation clearly:
I would also reverse this 'conviction on the ground that Williams was not adequately protected from juror bias in favor of the death penalty. Of the nine prospective jurors for whom the trial court denied defense challenges for cause based on expression of death penalty bias, five were excused upon the exercise of peremptory challenges by defense counsel, another was excused for personal reasons, the number of one of the jurors was not reached, and two, Eddleman and Camp, were seated as jurors. Appellant argues that each of these prospective jurors was biased in favor of the death penalty. With regard to Eddleman, Scanlon and Subecz, I agree.
Juror Eddleman again presents the greatest difficulties. The majority admits that Eddleman contradicted herself on voir dire. Despite her repeated statements that she would prefer death and would not consider alternative life sentences, the majority concludes that the court’s rehabilitation of Eddleman was successful because “the trial judge’s questions were more than general inquiries regarding a juror’s ability to be fair and impartial.” I disagree. I believe this case represents precisely the sort of rehabilitation the United States Supreme Court intended to prohibit in Morgan v. Illinois when it held that general questions to a prospective juror by the court relating to fairness or impartiality cannot negate a statement by the prospective juror that he or she would automatically vote for death. 504 U.S. at 735-736, 112 S.Ct. at 2233, 119 L.Ed.2d at 506-507. 2
State v. Williams, 79 Ohio St.3d 1 , 679 N.E.2d 646, 664 (1997).
After quoting the exchange between defense counsel and Eddleman in which the juror seven times said that she would al *980 ways choose the death penalty over any other options such as life imprisonment (see footnote 1 below), the Chief Justice pointed out that the trial court’s attempt at rehabilitation was ineffective:
In contrast, Eddleman made very few responses suggesting that she could set aside her bias. Following the preceding exchange, the judge elicited a general response.
“The Court: Mrs. Eddleman, do you agree that you can listen to and follow the instructions of the Court?”
“Juror Eddleman. Yes.”
Then, after explaining the two phases of the trial and the sentencing options, the court asked, “Can you follow the instructions of law?” Eddleman answered, ‘Tes.”
Id. at 668.
The trial judge also weighted the jury selection process in favor of the death penalty with respect to juror Scanlon, as Chief Justice Moyer also pointed out in his dissenting opinion. Juror Scanlon gave the following set of answers to defense counsel’s questions on the death penalty:
MR. INGRAM: And you have said that if you take someone else’s life and it’s a proven fact, that the death penalty should be imposed.
JUROR SCANLON: Yes.
MR. INGRAM:' Well, what I want to know is if you get to a second phase and there’s a murder which is a proven fact—
JUROR SCANLON: I would vote for the death penalty.
MR. INGRAM: Every time?
JUROR SCANLON: Yes.
MR. INGRAM: Automatically?
JUROR SCANLON: If it’s an option given, yes.
MR. INGRAM: As long as the death penalty is an option you would vote for it every time you have a choice where there’s been a finding of guilty for aggravated murder?
JUDGE SCANLON: Yes.
MR. INGRAM: Did you say if he willfully and intentionally did it you would not even look at life imprisonment.
JUROR SCANLON: Right.
MR. INGRAM: If he willfully and intentionally did it it should be death?
JUROR SCANLON: Right.
MR. INGRAM: Automatically?
JUROR SCANLON: Right.
MR. INGRAM: Regardless of what could be said about the defendant?
JUROR SCANLON: Right.
MR. INGRAM: Because of the way you feel in a case where a defendant willfully and intentionally murdered someone you would want that defendant put to death?
JUROR SCANLON: Yes, sir.
MR. INGRAM: You wouldn’t even consider life imprisonment as an option?
JUROR SCANLON: Not if he intentionally took someone else’s life without any thought of what he did, no.
MR. INGRAM: If you find someone guilty of willful and intentional murder—
JUROR SCANLON: Then I believe they should be put to death.
MR. INGRAM: All the time?
JUROR SCANLON: Yes, sir.
MR. INGRAM: Regardless of what anybody says about anything?
JUROR SCANLON: Yes, sir.
MR. INGRAM: And you feel so strongly about it it may be very difficult for you to put your feelings out of your mind, correct?
*981 JUROR SCANLON: In that sense, yes.
MR. INGRAM: In light of everything that you just told me, your feelings about the death penalty, in cases of willful and intentional murder, would prevent or substantially impair you from fairly considering life imprisonment as a sentencing option?
JUROR SCANLON: I guess so.
Instead of following the requirements of Morgan v. Illinois, 504 U.S. 719, 729 , 112 S.Ct. 2222 , 119 L.Ed.2d 492 (1992) (“based on the requirement of impartiality ... a capital defendant may challenge for cause any juror” who will “automatically vote for the death penalty” without really weighing the “aggravating and mitigating circumstances”), that such a juror be excused for cause, the trial court overruled the defense objection. Defense counsel then had to exercise a peremptory challenge. Surely, if those who disfavor the death penalty may be excused for cause, the Chief Justice is correct that the failure to excuse Juror Scanlon for cause also violates the Sixth Amendment requirement of an unbiased jury. Juror Scanlon said 16 times that she would automatically impose the death penalty for first degree murder. There is no question about her strong predisposition to impose the death penalty in every murder case.
The Ohio death penalty system, as administered in this case, not only picks its jurors from those who favor the death penalty and eliminates those opposed. It picked jurors who would automatically impose the death penalty for first degree murder. That practice is inconsistent with the Sixth Amendment requirement assuring an “impartial jury” in criminal trials. The trial judge made fact findings and legal conclusions about the selection of the jury that practically assured the prosecution of a death verdict upon receiving a verdict of guilty. These errors not only violate Morgan v. Illinois, supra, but also the principle of Woodson v. North Carolina, 428 U.S. 280 , 96 S.Ct. 2978 , 49 L.Ed.2d 944 (1976), invalidating under the Eighth Amendment the automatic or mandatory imposition of the death penalty. When those who disfavor the death penalty are excluded and strong death penalty proponents who would automatically impose it are included, the death penalty becomes the inevitable result. Mills v. Maryland, supra, which allows jurors to weigh aggravators and mitigators in favor of life also becomes a dead letter because the method of jury selection prevents such jurors from sitting. In upholding this system, the Court upholds the worst of double standards: get rid of jurors with death penalty scruples, keep the jurors who have no scruples about imposing it automatically. It is hard to think of a more unfair system of jury selection. 3
I have serious doubts about the Court’s disposition of several other questions— particularly those involving questions of procedural default — but I would not reach those issues because I would grant the writ on the Sixth Amendment ground explained by Chief Justice Moyer and Justice Pfeifer.
. The practice of excusing jurors with scruples against the death penalty has a long history. Prior to 1968, state law controlled this process without federal court intervention. In Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968), the Supreme Court limited strictly such juror exclusion to just those jurors "who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence ... or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as .to the defendant’s guilt.” 391 U.S. at 522, n. 21 , 88 S.Ct. 1770 . This rule was reversed in Wainwright v. Witt, 469 U.S. 412 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985), eliminating "the requirement that a juror may be excluded only if he would never vote for the death penalty” and "the extremely high burden of proof” which Witherspoon had imposed upon the State. Id. at 421, 105 S.Ct. 844 . In Witt a much more general standard was substituted (i.e., that the juror’s view "would substantially impair the performance of his duties”), and the state trial judge was given much broader discretion in the process. Id. at 420 , 105 S.Ct. 844 . In the view of many scholars and judges, the result that has emerged is a double standard favoring the prosecution in capital cases. See Holdridge, Selecting Capital Jurors Uncommonly Willing to Condemn A Man to Die: Lower Court’s Contradictory Readings of Wainwright v. Witt and Morgan v. Illinois, 19 Miss.C.L.Rev. 283, 301-03 (1999).
. The Chief Justice then describes the Eddle-man voir dire in detail, 679 N.E.2d at 667 -68:
Eddleman unambiguously affirmed that her preference for the death penalty would be automatic. Though consistent with her previous responses, such statements must arouse profound doubt as to whether impartiality would ever be possible for Eddleman. The exchange was the following:
"[Defense Counsel]. You understand that you only have those three options if you get to the point' 1
"Juror Eddleman. Those three options, if it came right down to it, it would probably be the death penalty then. If there was any remote chance of them being paroled, I would probably go with the death penalty."
"[Defense Counsel] Automatically, just because of the possibility of parole.”
"Juror Eddleman. Yes.”
"[Defense Counsel] And are you saying that even though you know that these three alternatives should start out even in your mind? You are being honest with me.”
"Juror Eddleman. Yes.” "[Defense Counsel] And because of what you are saying about the death penalty being automatic, because of the eligibility of parole, you would be unable to fairly consider life imprisonment, am I right?”
"Juror Eddleman. If it was without ever a chance of parole, yes."
"[Defense Counsel] That’s not the way it is.
"Juror Eddleman. Since we don't have a choice[,] I would say the death penalty.”
"[Defense Counsel] And you say that knowing that there are these life sentencing options that you should consider.”
"Juror Eddleman. Because whenever I think about it I would think well, maybe 30 years down the line somebody may be getting out of prison and might meet up with one of my children or something. That’s what I’m thinking of whenever I thin of it.”
"[Defense Counsel] Is your bottom line, if I have to determine the sentence I’ll vote death because there’s eligibility for parole?”
"Juror Eddleman. Yes.”
. See Holdridge, supra, note 1.