# Hartman v. Bagley

> Court of Appeals for the Sixth Circuit · July 10, 2007 · 492 F.3d 347

URL: https://www.frixlaw.com/law-library/cases/9631945

## Case

- **Full name:** Brett X. HARTMAN, Petitioner-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** July 10, 2007
- **Citations:** 492 F.3d 347; 2007 U.S. App. LEXIS 16249; 2007 WL 1976005
- **Precedential status:** Published
- **Opinion:** Concurring in part by Clay
- **Judges:** Daughtrey, Clay, Gilman
- **Cited by:** 204 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9631945

## How later opinions describe it (automated extraction)

- concluding that petitioner established cause for failure to timely appeal the denial of his state habeas petition where docket showed that copy of denial was sent only to petitioner, not his attorney, and where affidavit showed that no legal mail for the petitioner was receive…
- finding cause to excuse a procedural default when the state-court docket indicated that the decision was not sent to the petitioner and the petitioner submitted an affidavit from a prison employee stating that the petitioner received no legal mail during the relevant period
- finding that petitioner established cause for failure to timely file order where court docket showed copy of order was sent only to petitioner, not to his attorney, and where affidavit showed that no legal mail for petitioner was received by prison
- holding no prejudice where petitioner’s main argument is only “contentions that counsel failed to expand on or corroborate or fully develop the factors listed in” his psychologist’s report that were testified to in front of the jury
- rejecting an identical claim about the instruction, “[I]f . . . you cannot unanimously agree that the [death penalty is appropriate], . . . you will then [impose a life sentence]”

## Opinion text

CLAY, Circuit Judge,
concurring in part and dissenting in part.
With the exception of Parts II.B and II.C, I join in the majority’s well-reasoned opinion. With respect to Petitioner’s claim of ineffective assistance of counsel at the sentencing phase, I concur in the majority’s analysis of procedural default and its conclusion that Petitioner established cause to excuse the procedural default. However, I respectfully dissent from the majority opinion inasmuch as it denies Petitioner’s ineffective assistance of counsel claim on the merits. In my view, Petitioner’s counsel performed ineffectively at the sentencing phase, thereby violating Petitioner’s Sixth Amendment Right to Counsel. Correspondingly, I believe Petitioner has shown prejudice to excuse procedural default of this claim. See Coleman v. Thompson, 501 U.S. 722, 750 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991) (a petitioner must show cause and prejudice to obtain federal habeas relief on a procedurally defaulted claim); Joseph v. Coyle, 469 F.3d 441, 462-63 (6th Cir.2006) (“[Establishing Strickland prejudice likewise establishes prejudice for purposes of cause and prejudice.”). On the matter of acquittal-first jury instructions, I also dissent on the belief that the Ohio Supreme Court’s decision runs contrary to clearly established Supreme Court precedent on jury instructions in capital cases. I would therefore vacate Petitioner’s death sentence and remand for a new sentencing phase trial.
Like the majority, I would review Petitioner’s ineffective assistance claim de novo because the Ohio state courts failed to adjudicate this claim on the merits. See Wiggins v. Smith, 539 U.S. 510, 528-31 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003); McKenzie v. Smith, 326 F.3d 721, 726-27 (6th Cir.2003); Clinkscale v. Carter, 375 F.3d 430, 436 (6th Cir.2004). Petitioner contends that trial counsel “fail[ed] to thoroughly investigate his background and mental health history for potential mitigating evidence,” and failed to present sufficient evidence in mitigation. (Pet.’s Br. at 11, 13) 1 Reviewing this claim de novo, I would grant Petitioner habeas relief.
In an appendix to his Petition to Vacate, Petitioner attached a May 13, 1998 evaluation of Petitioner conducted by a clinical *372 and forensic psychologist, James W. Sid-dall, Ph.D., wherein Dr. Siddall identified “potential mitigating circumstances pursuant to Ohio Revised Code [§ ] 2929.04(B).” (J.A. at 1332) The Siddall Report set forth Petitioner’s social history, including instability in his living situation, adjustment problems at home and at school, physical abuse at the hands of a step-father, alleged sexual abuse at the hands of a step-mother, the death of his father in 1994, a history of substance abuse and alcoholism, and time as a runaway living homeless on the streets. Moreover, the Siddall Report assessed Petitioner’s mental status and personality, concluding that Petitioner suffered from “a mixed personality disorder with obsessive-compulsive, narcissistic, and antisocial features.” (Id. at 1337) It went on to characterize individuals with mixed personality disorder as typically “stubborn, self-centered, low in frustration tolerance, and failing] to conform to social norms,” (id.) and noted that “[ujnder the influence of disinhibiting substances, episodes of irritability, hostility, aggression, and loss of control may be observed.” (Id. at 1338) Petitioner’s trial counsel did not call Dr. Siddall to testify in the penalty phase, nor did he introduce the Siddall Report into evidence. Instead, the entire case in mitigation consisted of testimony from Petitioner’s sister, Rhea Wolpert (“Ms.Wol-pert”), and aunt, Arietta Hartman (“Ms.Hartman”). 2 Their testimony largely tracked the mitigating factors contained in the Siddall Report. Ms. Wolpert spoke about Petitioner’s difficulty adjusting as a child, his unstable family situation, his time as a runaway, his involvement with drugs and alcohol, and his family’s history of alcoholism. She testified that while Petitioner lived with her, he got himself a job, “was a hard worker,” and helped contribute (both financially and in terms of house work) to the household, but that even then she noticed his problems with alcohol. (J.A. at 708-09) Ms. Wolpert further stated that, in her experience, Petitioner had only “a little” difficulty with authority and was “[n]o[ ] more [rebellious] than any other child.” (Id. at 711-12)
Ms. Hartman testified that she agreed to care for Petitioner when he was eight because Petitioner was experiencing “discipline problems and problems with his stepfather” at home. (J.A. at 724) She indicated that Petitioner behaved hyperactively and had some difficulty adjusting both socially and academically at first, and that later he grew rebellious, lying and stealing apparently so Ms. Hartman would send him back to his mother. Ms. Hartman additionally reported on Petitioner’s episodes as a runaway, his involvement in theft, and his time served in a juvenile detention center. Further, she testified to his theft of a car, his apparent selling of drugs, alcoholism, and two additional stays in California group homes. Finally, Ms. Hartman testified that Petitioner took action to make amends with his father and step-mother, voluntarily turned himself in to the California group home that he had improperly left at an earlier time, and— while at the group home—earned his GED and got a job. As stated previously, the testimony of Ms. Wolpert and Ms. Hartman constitutes the entirety of the case Petitioner’s counsel put forth in mitigation. *373 Critically, Petitioner’s counsel proffered no evidence of physical abuse by Petitioner’s step-father or of sexual abuse by Petitioner’s step-mother, and insufficient Evidence of genetic alcoholism for the trial judge to allow reference to it in Petitioner’s ‘Exhibit U.’ 3 (Id. at 751-52)
Defendant must show both (1) deficient performance of counsel; and (2) that counsel’s deficient performance prejudiced the defense, thereby rendering the trial fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Counsel performs de-ficiently where his “representation f[a]ll[s] below an objective standard of reasonableness.” Id. at 688 , 104 S.Ct. 2052 . Objectively reasonable representation is properly measured with reference to “prevailing professional norms” and the inquiry takes into account all circumstances at the time of the conduct. Id. at 688-89 , 104 S.Ct. 2052 . Appellate courts review counsel’s performance with great deference. To satisfy the second prong of the inquiry, a “defendant [must] affirmatively prove prejudice” by showing “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 693-94 , 104 S.Ct. 2052 . The probability need only be so great as to “undermine confidence in the outcome.” Id. at 694 , 104 S.Ct. 2052 . Failure to satisfy either prong of the inquiry is dispositive.
In my view, trial counsel failed to provide objectively reasonable representation at the mitigation phase. See Strickland, 466 U.S. at 688 , 104 S.Ct. 2052 . “[Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 691 , 104 S.Ct. 2052 . Accordingly, we must consider “whether counsel conducted a reasonable investigation of Defendant’s background.” Spisak v. Mitchell, 465 F.3d 684, 707 (6th Cir.2006). As an aid “to determining what is reasonable,” courts have looked to the American Bar Association Guidelines. Rompilla v. Beard, 545 U.S. 374, 387 , 125 S.Ct. 2456 , 162 L.Ed.2d 360 (2005) (citing Wiggins, 539 U.S. at 524 , 123 S.Ct. 2527 ). The ABA Standards for Criminal Justice provide that:
[t]he lawyer ... has a substantial and important role to perform in raising mitigating factors both to the prosecutor initially and to the court at sentencing. This cannot effectively be done on the basis of broad general emotional appeals or on the strength of statements made to the lawyer by the defendant. Information concerning the defendant’s background, education, employment record, mental and emotional stability, family relationships, and the like, will be relevant, as will mitigating circumstances surrounding the commission of the offense itself. Investigation is essential to the fulfillment of these functions.
1 ABA Standards for Criminal Justice 4-4.1 (1982 Supp.).
“In assessing the reasonableness of an attorney’s investigation, ... a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.” Wiggins, 539 U.S. at 527 , 123 S.Ct. 2527 . Trial counsel apparently possessed at least some of Petitioner’s mental health records and his criminal records. Beyond that, the record reflects that trial counsel’s mitíga *374 tion phase investigation involved consultation with Dr. Siddall, and discussions with Ms. Wolpert and Ms. Hartman. Dr. Sid-dall evaluated Petitioner and prepared a report to assist counsel in identifying potential mitigating factors for presentation at the sentencing phase. Dr. Siddall interviewed Petitioner personally and administered several psychological and personality assessment tests. Although the Siddall Report identified several pathways for further investigation, it does not appear that trial counsel pursued those paths.
Rather, from the record before us, it appears that trial counsel unreasonably limited his investigation, all but foreclosing consideration of three potential mitigating factors. First, the Siddall Report clearly identified genetic alcoholism as a factor in mitigation. Ms. Wolpert proffered vague testimony about her family’ history of alcoholism and Petitioner’s personal struggles with alcohol abuse, as did Ms. Hartman. 4 Not surprisingly, the trial judge found this testimony insufficient to establish genetic alcoholism and, accordingly, redacted that mitigating factor from an exhibit prepared by Petitioner’s counsel to guide the jury’s deliberations. Consistent with the ABA Guidelines,
[rjecords should be requested concerning not only the client, but also his parents, grandparents, siblings, and children. A multi-generational investigation frequently discloses significant patterns of family dysfunction and may help ... underscore the hereditary nature of a particular impairment.
Hamblin v. Mitchell, 354 F.3d 482 , 487 n. 2, 488 (6th Cir.2003) (quoting ABA Guidelines for the Appointment & Performance of Def. Counsel in Death Penalty Cases ¶ 10.7, at 80-83 (2003)) (citing the “2003 ABA Guidelines ... because they are the clearest exposition of counsel’s duties at the penalty phase ..., duties that were recognized by this court as applicable to the 1982 trial of the defendant in Glenn v. Tate”). A “reasonably competent attorney” would have pursued stronger evidence of genetic alcoholism. See Wiggins, 539 U.S. at 534 , 123 S.Ct. 2527 .
Second, according to the Siddall Report, Petitioner suffered physical abuse at the hands of his step-father, and sexual abuse at the hands of his step-mother. As the majority indicates, Petitioner’s claims of physical and sexual abuse were not corroborated by Petitioner’s family members during interviews with Dr. Siddall. Yet, Dr. Siddall’s investigation was not exactly searching itself. In fact, the report indicates that Dr. Siddall relied on background information summarizing Petitioner’s “criminal justice involvement, mental health treatment, and the circumstances of the instant offense,” two meetings with Petitioner himself, and telephone interviews with Petitioner’s mother and Ms. Hartman. (J.A. at 1332) The fact that Petitioner’s mother and Ms. Hartman did not corroborate Petitioner’s claims of childhood abuse goes not unequivocally mean that trial counsel, upon investigation, would find no record of abuse. 5 On the *375 basis of this very small body of evidence, when coupled with the often secretive treatment of abuse, a reasonably competent attorney could not simply conclude “that further investigation would have been fruitless.” See Wiggins, 539 U.S. at 525 , 123 S.Ct. 2527 . To the extent that Dr. Siddall partially attributed Petitioner’s personality disorder to “instability and abuse in his home environment,” (id. at 1338), trial counsel had even greater reason to investigate the alleged instances of abuse.
Third, Dr. Siddall concluded that Petitioner suffered from mixed personality disorder—a condition that, when combined with “disinhibiting substances,” can lead to “episodes of irritability, hostility, aggression, and loss of control.” (J.A. at 1338) As the Report reflects, Dr. Siddall further concluded that instability and abuse at home contributed to Petitioner’s mixed personality disorder. In my view, Dr. Siddall’s conclusion would prompt a reasonable attorney to investigate more fully Petitioner’s mental and emotional stability over time, for example, by requesting his school records, records from juvenile detention facilities and group homes, or from any medical professionals or counselors. On the record before us, it appears that trial counsel did not conduct additional investigation into the development and existence of a personality disorder. “Our Court’s precedents ... make clear that conducting a partial, but ultimately incomplete, mitigation investigation does not satisfy Strickland's requirements.” Dickerson v. Bagley, 453 F.3d 690, 695 (6th Cir.2006).
Aside from his insufficient investigation, trial counsel failed to introduce evidence within his control. Specifically, counsel failed to introduce evidence of Dr. Siddall’s conclusion that Petitioner suffered from “a mixed personality disorder with obsessive-compulsive, narcissistic, and antisocial features” which left him prone to “episodes of irritability, hostility, aggression, and loss of control” when under the influence. (See J.A. at 1337-38) Dr. Siddall’s report additionally indicated that Petitioner’s mixed personality disorder and propensity to substance abuse were “compounded by instability and abuse in his home environment.” (Id. at 1339). What is more, the Siddall Report raises the implication that counsel had in his possession some evidence of abuse. The Report quotes the findings of psychologists at the New Mexico Youth Diagnostic and Development Center that Petitioner “ ‘presented symptoms characteristic of children who had been abused including poor self-esteem, difficulty with authority, and rebellious behavior.’ ” (Id. at 1339) These findings apparently came from the mental health records in trial counsel’s possession which, of course, counsel did not introduce at the sentencing phase of Petitioner’s trial.
The majority finds that Petitioner’s trial counsel likely made strategic choices in presenting Petitioner’s case in mitigation “through the more sympathetic lens of family members’ testimony,” and in omitting reference to less helpful portions of the Siddall Report. I do not disagree that, by presenting mitigating evidence through Ms. Wolpert and Ms. Hartman, trial counsel humanized Petitioner in a way that Dr. Siddall’s testimony could not. Yet, by confining the case in mitigation to their testimony, trial counsel similarly limited the evidence of genetic alcoholism and abuse put before the jury. In doing so, counsel did not foreclose reference to less sympathetic elements of Petitioner’s background and history, since counsel himself elicited such testimony on direct examination of Ms. Wolpert and Ms. Hartman. Cf. Darden v. Wainwright, 477 U.S. 168, 186, 106 S.Ct. 2464 , 91 L.Ed.2d 144 (1986) (counsel not ineffective where limited mitigation *376 case was designed to foreclose rebuttal evidence of petitioner’s prior convictions); Clark v. Mitchell, 425 F.3d 270 , 286 n. 6 (6th Cir.2005) (finding counsel’s representation not deficient, in part, because it was likely that “counsel made a strategic decision to limit testimony about [the petitioner’s] past in order to prevent ‘opening-the-door’ to evidence of [his] criminal background”). Ms. Wolpert readily described Petitioner’s efforts to work hard and contribute to the household while he lived with her, and testified that Petitioner had only “a little” difficulty with authority as a child. (J.A. at 711-12) Similarly, Ms. Hartman testified that Petitioner had taken steps to mend his relationship with his father and step-mother, to make good at the California group home from which he previously absconded, and to earn his GED and hold down a job. In my view, the contention that counsel made strategic choices to shape this case in mitigation “resembles more a post hoc rationalization of counsel’s conduct than an accurate description of their deliberations prior to sentencing.” See Wiggins, 539 U.S. at 526-27 , 123 S.Ct. 2527 (emphasis in original). At any rate, “virtually unchallengeable” strategic choices follow “thorough investigation of law and facts relevant to plausible options.” Strickland, 466 U.S. at 690 , 104 S.Ct. 2052 (emphasis added). Absent thorough investigation of plausible leads, I would not find that Petitioner’s trial counsel performed effectively.
Although not dispositive, the numbers in this case paint a compelling picture. Dr. Siddall’s report identified ten potential mitigating factors. Trial counsel received the report a mere five days before Petitioner’s mitigation hearing began. At the hearing, counsel put forth the testimony of two witnesses, and admitted one summary exhibit into evidence. The entirety of Petitioner’s case in mitigation spans approximately 40 pages of transcript. Trial counsel’s closing argument covered a total of ten pages in the transcript, culminating in “a two and a half page story about the ancient Greek philosopher and orator Aeschylus, the conclusion of which was counsel telling the jury ‘the answer is in your hand.’ ” (Pet.’s Br. at 21 n. 9; see also J.A. at 774) Qualitatively and quantitatively, trial counsel’s performance fell below “prevailing professional norms.” See Strickland, 466 U.S. at 688-89 , 104 S.Ct. 2052 .
Additionally, Petitioner must show he suffered prejudice as a result of trial counsel’s deficient performance. Petitioner need only show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 693-94 , 104 S.Ct. 2052 . The probability need only be so great as to “undermine confidence in the outcome.” Id. at 694 , 104 S.Ct. 2052 . “In assessing prejudice, [this Court] reweigh[s] the evidence in aggravation against the totality of available mitigating evidence.” Wiggins, 529 U.S. at 534, 120 S.Ct. 1620 . “Mitigating evidence unrelated to dangerousness may alter the jury’s selection of penalty, even if it does not undermine or rebut the prosecution’s death-eligibility case.” Williams v. Taylor, 529 U.S. 362, 398 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). Ultimately, “the ‘prejudice’ prong is satisfied if ‘there is a reasonable probability that at least one juror would have struck a different balance.’ ” Hamblin, 354 F.3d at 493 .
On appeal, Petitioner relies on counsel’s failure to introduce the Siddall Report—or to have Dr. Siddall testify—to show prejudice. Either through the report itself or through questioning Dr. Siddall, counsel could have elicited testimony on Petitioners personality disorder, the way his social and familial history likely contributed to the disorder, and the way the disorder (coupled with his alcoholism) rendered him *377 incapable of controlling his impulses. This, of course, is critically important inasmuch as impulse control bears on Petitioner’s culpability. Cf. California v. Brown, 479 U.S. 538, 545 , 107 S.Ct. 837 , 93 L.Ed.2d 934 (1987) (O’Connor, J., concurring) (noting that a “defendant ] who eommit[s] criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse”). In fact, the Ohio death penalty statute rakes “mental disease or defect” a mitigating factor. See Ohio Rev. Code § 2929.04(B)(3). 6 Thus, had the jury known of Petitioner’s apparent personality disorder, and had counsel investigated and adduced evidence of genetic alcoholism and abuse, “there is a reasonable probability that at least one juror would have struck a different balance,” finding Petitioner less culpable and sentencing him to life in prison, not death. See Wiggins, 539 U.S. at 537 , 123 S.Ct. 2527 ; see also Williams, 529 U.S. at 395-98 , 120 S.Ct. 1495 (finding prejudice from counsel’s failure to investigate and introduce evidence which “might well have influenced the jury’s appraisal of his moral culpability”).
Moreover, “Petitioner ... has the kind of troubled history ... relevant to assessing a defendant’s moral culpability.” Wiggins, 539 U.S. at 535 , 123 S.Ct. 2527 (citing Penny v. Lynaugh, 492 U.S. 302, 319 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989)). Through Dr. Siddall’s report, or his testimony, the jury would have received a more comprehensive understanding of Petitioner’s social history. Trial counsel’s limited examination of Ms. Wolpert—Peti-tioner’s much older and distant sister— and Ms. Hartman did not sufficiently explore Petitioner’s “troubled history” of abuse, alcoholism, and (briefly) homelessness. See Carter v. Bell, 218 F.3d 581, 596-97 (6th Cir.2000) (failure to investigate unstable childhood and history of violence); Greer v. Mitchell, 264 F.3d 663, 678 (6th Cir.2001) (counsel knew of and failed to investigate family history of alcoholism, violence, foster care, and incarceration); cf. Smith v. Mitchell, 348 F.3d 177, 204 (6th Cir.2003) (finding no prejudice where “trial counsel presented five witnesses at mitigation, and its principal witness ... presented a comprehensive picture of [the petitioner’s] family, social, psychological background, based upon extensive review of ‘ [njumerous sources of information,’ which included not only psychological tests, but also interviews, hospital records, school reports, and social services records”).
Dr. Siddall’s testimony on these mitigating factors would differ both “in strength and subject matter ... from the evidence actually presented at sentencing.” See Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir.2005). The record here reflects that trial counsel put forth insufficient evidence of genetic alcoholism, and no evidence of physical and sexual abuse. Cf. Smith, 348 F.3d at 200 (finding no prejudice where “virtually all of the mitigating elements that [the petitioner] complain[ed] of were presented via [the mitigation expert’s] testimony and her mitigation report”); Hill, 400 F.3d at 317 (finding evidence cumulative where “most of the information” to be conveyed “was included in the nine psychological reports submitted in the penalty and mitigation phases”). Therefore, stronger evidence of genetic alcoholism, or any evidence of abuse, put forth either through Dr. Siddall’s testimony or more in *378 depth examination of Ms. Wolpert and Ms. Hartman would not be “merely cumulative,” and could thus support a finding of prejudice. Cf. Broom v. Mitchell, 441 F.3d 392, 410 (6th Cir.2006) (“[F]ailure to present additional mitigating evidence that is ‘merely cumulative’ of that already presented does not rise to the level of a constitutional violation.”). Finally, above and beyond the evidence at counsel’s disposal, a thorough investigation of the mitigating factors identified by Dr. Siddall would likely have revealed further evidence of genetic alcoholism or abuse. Thus, Petitioner’s trial counsel rendered ineffective assistance, falling short of the requirements of the Sixth Amendment.
I also disagree with the majority’s conclusion on Petitioner’s acquittal-fírst jury instruction claim. The Ohio Supreme Court did consider this claim on the merits albeit, as the majority acknowledges, without reference to federal law. Accordingly, for purposes of this dissent, I limit my review in accordance with the Anti-Terrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254 (d); cf. Wiggins, 539 U.S. at 529-31 , 123 S.Ct. 2527 ; McKenzie, 326 F.3d at 726-27 ; Clinkscale, 375 F.3d at 436 ; but see Danner v. Motley, 448 F.3d 372, 376 (6th Cir.2006) (reviewing de novo where the state court considered petitioner’s federal constitutional claim on the merits under state law). Since the Ohio Supreme Court did not apply clearly established federal law, the relevant inquiry is whether their decision runs “contrary to ... clearly established [Supreme Court] precedent.” Williams, 529 U.S. at 405-06 , 120 S.Ct. 1495 . Thus, the gravamen of this Court’s review must be whether the Ohio Supreme Court’s decision is “diametrically different, opposite in character or nature, or mutually opposed” to that precedent. Id. at 406 , 120 S.Ct. 1495 (internal quotation marks omitted). In my view, the Ohio Supreme Court’s decision on this claim runs contrary to clearly established Supreme Court precedent—specifically, Mills v. Maryland, 486 U.S. 367 , 108 S.Ct. 1860 , 100 L.Ed.2d 384 (1988), and our Circuit precedent in Davis v. Mitchell, 318 F.3d 682 (6th Cir.2003) and Spisak v. Mitchell, 465 F.3d 684 (6th Cir.2006), cases which bear on the inquiry inasmuch as they inform the analysis of acquittal-first jury instructions under Mills .
Pursuant to clearly established Supreme Court precedent, the Eighth and Fourteenth Amendments require individualized consideration of relevant mitigating factors before a state may impose a penalty of death. Lockett v. Ohio, 438 U.S. 586, 606 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978); Eddings v. Oklahoma, 455 U.S. 104, 110 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982). The holding in Mills follows from Lockett and Ed-dings. Mills holds that a defendant’s rights under the Eighth and Fourteenth Amendments are violated if
there is a substantial probability that reasonable jurors, upon receiving the judge’s instructions in th[e] case, and in attempting to complete the verdict form as instructed, well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance.
Mills, 486 U.S. at 384 , 108 S.Ct. 1860 . Applying Mills , the Supreme Court subsequently concluded that unanimity requirements in capital sentencing schemes “prevent! ] the jury from considering ... any mitigating factor that the jury does not unanimously find” prior to imposing a sentence of death and therefore violate the Eighth and Fourteenth Amendments. McKoy v. North Carolina, 494 U.S. 433, 435 , 110 S.Ct. 1227 , 108 L.Ed.2d 369 (1990).
*379 From Mills flows a line of cases in our Circuit examining so-called “acquittal-first” jury instructions. 7 As the majority observes, acquittal-first jury instructions encompass “[a]ny instruction requiring that a jury must first unanimously reject the death penalty before it can consider a life sentence.” Davis, 318 F.3d at 689 (emphasis added). Acquittal-first instructions implicate the Eighth and Fourteenth Amendment inasmuch as they create a substantial probability that the jury will impermissibly require unanimity as to mitigating factors. This not only constitutes a misapplication of Ohio law, but also spuriously tips the scale in favor of death. Under Davis , an acquittal-first instruction “precludes the individual juror from giving effect to mitigating evidence and runs afoul of Mills.” Davis, 318 F.3d at 689 ; see also Spisak, 465 F.3d at 709 .
The jury instructions here very clearly constitute acquittal-first jury instructions. They differ only slightly from the jury instructions in Davis and Spisak , and in ways even more constitutionally questionable. The trial courts in Davis and Spisak framed the issue as follows: “[I]f ... you find that the State failed to prove beyond a reasonable doubt that the aggravating circumstances ... outweigh the mitigating factors, ... you will then proceed to determine which of [the] possible life imprisonment sentences to recommend.” Davis, 318 F.3d at 685 (alterations added and omitted); see also Spisak, 465 F.3d at 709-10 . Here, the trial court employed slightly different language: 8 “[I]f ... you cannot unanimously agree that [the State] proved beyond a reasonable doubt that the aggravating circumstances ... outweigh the mitigating factors, ... you will then proceed to determine which of three possible life imprisonment sentences to impose.” (J.A. at 787-88) Although the words chosen for the jury instructions vary between Davis and Spisak on one hand and Petitioner’s case on the other, the meaning and effect of the instructions does not. If anything, the jury instruction in Petitioner’s case poses an even greater threat of misleading the jury because it reiterates that the jury must act “unanimously.” 9
*380 Additionally, the trial court’s verdict form substantially mirrors the verdict forms in Davis and Spisak , further compounding the risk of misleading the jury. What is more, the trial judge here dismissed the jury to deliberate with the direction to return a verdict “[wjhenever all 12 of you, and I repeat, all 12 jurors agree.” (J.A. at 793) Taken together, the inappropriate acquittal-fírst jury instructions, the verdict form, and the trial judge’s statement upon dismissing the jury for deliberations raise a reasonable likelihood that the jury applied the instructions in Petitioner’s case in such a way as to preclude giving effect to mitigating factors unless unanimously found, thereby violating Petitioner’s rights under the Eighth and Fourteenth Amendments. Accordingly, in my view, the Ohio Supreme Court’s decision runs contrary to the U.S. Supreme Court’s clearly established precedent in Mills .
Thus, because the trial court gave unconstitutional acquittal-first jury instructions, and because Petitioner’s counsel rendered ineffective assistance at the sentencing phase, I would vacate Petitioner’s sentence and remand for a new sentencing phase trial.
. Petitioner also challenges counsel’s effectiveness inasmuch as counsel conceded in his opening statement “there was nothing they could do to reduce the blame for this crime,” counsel failed to object to the prosecutor’s improper arguments, and counsel failed to object to the state’s use of certain victim impact evidence. However, this Court granted Petitioner’s COA on a more limited scope, certifying the question whether counsel performed ineffectively "by not conducting a sufficient investigation into mitigating factors and not presenting significant evidence during the sentencing phase.” (Order at 2 (Aug. 10, 2005)) Accordingly, claims of ineffective assistance on these alternative bases are not before this Court. See Bugh v. Mitchell, 329 F.3d 496 , 502 n. 1 (6th Cir.2003) (citing Valentine v. Francis, 270 F.3d 1032, 1035 (6th Cir.2001)).
. As the majority acknowledges, Ms. Wolpert, who is eleven years older than Petitioner, moved away from home when Petitioner was merely five years old. Until Petitioner's late teens, when he lived with Ms. Wolpert for a few years, Petitioner had little contact with Ms. Wolpert. As a result, almost the entire body of Ms. Wolpert's testimony came not from first-hand knowledge of Petitioner’s life and activities, but from stories relayed to her by their mother. Ms. Hartman lived with and cared for Petitioner for a similarly brief period of time (three and one-half years).
. Exhibit U was a chart prepared by Petitioner’s counsel setting forth mitigating factors that initially included the step-father’s abusiveness and genetic alcoholism. In response te» Respondent's objection to the exhibit's admissibility, the trial judge required Petitioner to redact references to both the physical abuse and alcoholism.
. Notably, when asked about Petitioner’s drinking, Ms. Wolpert responded, “He was involved a little bit.” (J.A. at 709) Counsel’s exploration of genetic alcoholism consisted of two questions: first, "there's alcoholism in your family; is that correct;” and second, “[Petitioner] has been around alcoholics and alcohol all of his life, if you're aware of that?” (Id. at 712) In each case, Ms. Wolpert gave brief, lukewarm affirmative answers. Ms. Hartman’s testimony recounted an episode where Petitioner was hospitalized as an adolescent following a "chuck-a-lucking” contest. (Id. at 738)
. In fact, the Siddall Report suggests that mental health records apparently in counsel's possession described Petitioner as presenting "symptoms characteristic of children who had been abused.” (J.A. at 1339)
. The statute directs the fact finder to consider "[wjhether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of the offender’s conduct or to conform the offender's conduct to the requirements of the law.” Ohio Rev. Code § 2929.04(B)(3).
. These cases also followed the Ohio Supreme Court’s decision applying Mills in State v. Brooks, 75 Ohio St.3d 148, 661 N.E.2d 1030 (1996). Several cases in this line consider the issue only in dicta, having found the challenges to the jury instructions procedurally defaulted. Scott v. Mitchell, 209 F.3d 854 (6th Cir.2000) being one of them, I would not consider this Court bound to follow it. Further, as the majority acknowledges, Roe v. Baker, 316 F.3d 557 (6th Cir.2002) concerned jury instructions dissimilar to those now at hand.
. At greater length, Petitioner’s penalty phase jury instructions read, in pertinent part, as follows:
If all 12 members of the jury find by proof beyond a reasonable doubt that the aggravating circumstances, as I have defined them, are sufficient to outweigh the mitigating factors, then you must return such finding to the Court.
I instruct you, as a matter of law, that if you make such finding, then you have no choice and must make a recommendation to the Court that the sentence of death be imposed on the Defendant [ ].
On the other hand, if after considering all of the evidence raised at trial which is relevant to the issues before you, the testimony, other evidence, and the arguments of counsel, you cannot unanimously agree that the State of Ohio proved beyond a reasonable doubt that the aggravating circumstances, as I have defined them, outweigh the mitigating factors, then you’ll return your recommendation reflecting your decision.
In this event, you will then proceed to determine which of the three possible life imprisonment sentences to impose....
(J.A. at 786-88) (emphasis added)
.More subtly, and perhaps a point more suitably explored by psychologists, the instruction at hand asks the jury to consider what the "State proved,” and not what it “failed to *380 prove.” The former, it seems, establishes a threshold presumption that the State, in fact, proved its case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9631945. Public record. Not legal advice.