Petition for Writ of Certiorari — Bill Cool, Warden, Petitioner v. Nathaniel Jackson
Supreme Court briefDec 4, 2024
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No. _____
In the Supreme Court of the United States
______________________________
BILL COOL, WARDEN,
v.
Petitioner,
NATHANIEL JACKSON,
Respondent.
______________________________
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
______________________________
APPENDIX
______________________________
DAVE YOST
Ohio Attorney General
T. ELLIOT GAISER*
Ohio Solicitor General
*Counsel of Record
JANA M. BOSCH
Deputy Solicitor General
30 E. Broad St., 17th Floor
Columbus, Ohio 43215
614.466.8980
thomas.gaiser@ohioago.gov
Counsel for Petitioner
Bill Cool, Warden
TABLE OF CONTENTS
Page
Appendix A: Opinion, United States Court of
Appeals for the Sixth Circuit, August 6, 2024 ......... 1a
Appendix B: Opinion & Order, United States
District Court for the Northern District of Ohio,
February 23, 2021 ................................................... 29a
Appendix C: Order, On Petition for Rehearing
En Banc, United States Court of Appeals for the
Sixth Circuit, September 5, 2024 ........................... 85a
1a
APPENDIX A
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0164p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Nos. 21-3207/3280
NATHANIEL JACKSON,
Petitioner-Appellee/Cross-Appellant,
v.
BILL COOL, Warden,
Respondent-Appellant/Cross-Appellee.
Appeal from the United States District Court for the
Northern District of Ohio at Youngstown.
No. 4:07-cv-00880—James S. Gwin, District Judge.
Argued: March 18, 2024
Decided and Filed: August 6, 2024
Before: MOORE, COLE, and GRIFFIN, Circuit
Judges.
______________________________
COUNSEL
ARGUED: Jana M. Bosch, OFFICE OF THE
OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellant/Cross-Appellee. Adam M. Rusnak, OFFICE
OF THE FEDERAL PUBLIC DEFENDER FOR THE
SOUTHERN DISTRICT OF OHIO, Columbus, Ohio,
2a
for Appellee/Cross-Appellant. ON BRIEF: Jana M.
Bosch, Benjamin M. Flowers, Diane R. Brey, OFFICE
OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellant/Cross-Appellee. Adam M. Rusnak,
Paul R. Bottei, OFFICE OF THE FEDERAL PUBLIC
DEFENDER FOR THE SOUTHERN DISTRICT OF
OHIO, Columbus, Ohio, for Appellee/Cross-Appellant.
______________________________
OPINION
______________________________
GRIFFIN, Circuit Judge.
The Great Writ of Habeas Corpus is an
extraordinary remedy that “guard[s] against extreme
malfunctions in the state criminal justice systems.”
Harrington v. Richter, 562 U.S. 86, 102 (2011)
(internal quotation marks omitted). This case is the
epitome of such an extreme judicial malfunction.
Petitioner Nathaniel Jackson was convicted of a
capital offense and sentenced to death. But Jackson’s
sentencing proceeding was blatantly unconstitutional
at its core due to the trial- court judge’s bias and
misconduct, as well as his exclusion at sentencing of
relevant mitigating evidence. The prejudicial judicial
bias and misconduct included numerous ex parte
communications between the judge and prosecutor
regarding substantive sentencing issues and the ghost
writing by the prosecutor of the judge’s opinion
sentencing Jackson to death. In state court, when this
unethical conduct came to light, the Ohio appellate
courts publicly reprimanded the trial judge and
ordered him to conduct new sentencing proceedings:
the judge was to “personally review and evaluate the
appropriateness of the death penalty” and “prepare an
entirely new sentencing entry.”
3a
On remand, Jackson moved to present three
additional volumes of mitigating evidence. The trial
judge denied the motion, and he orally resentenced
Jackson based on the stale, ten-year- old mitigation
record. A few hours after the resentencing hearing
concluded, the judge issued a second opinion
sentencing Jackson to death that was functionally
identical to the original, corrupted opinion and
contrary to the Ohio Court of Appeals’ specific
instructions on remand. Nevertheless, the Ohio
appellate courts affirmed Jackson’s sentence.
Jackson then filed a petition for a writ of habeas
corpus in federal district court. The district court
granted Jackson’s petition on his claim that he was
unconstitutionally denied the opportunity to present
relevant mitigating evidence at his resentencing
proceedings, but it denied Jackson’s other claims,
including that the trial judge was unconstitutionally
biased. The warden appeals the district court’s habeas
grant, and Jackson cross appeals regarding his
judicial-bias and ineffective-assistance-of-counsel
claims.
We affirm the district court in part and reverse in
part. We first hold that Ohio’s standard for assessing
the potential for judicial bias is contrary to clearly
established federal law as defined by the Supreme
Court. And on de novo review, Jackson has
demonstrated
that
the
trial
judge
was
unconstitutionally biased. Second, the Supreme Court
has clearly established that when a trial court is
determining whether to impose the death penalty,
capital defendants have a right to present any and all
relevant mitigating evidence supporting a sentence
less than death, including at resentencing
4a
proceedings, and Ohio’s failure to provide Jackson
that right violated the Eighth Amendment. Therefore,
we affirm the district court’s issuance of a writ of
habeas corpus on Jackson’s mitigating-evidence
claim, reverse the district court’s denial of Jackson’s
habeas petition on his judicial-bias claim, and remand
for further proceedings consistent with this opinion.
I.
Nathaniel Jackson and Donna Roberts conspired
to kill Roberts’s former husband, Robert Fingerhut.
See, e.g., State v. Jackson, 73 N.E.3d 414, 419 (Ohio
2016); State v. Roberts, 850 N.E.2d 1168, 1174–75
(Ohio 2006). In 2001, they executed their plan:
Jackson broke into Fingerhut’s home and fatally shot
him. The couple left a conspicuous trail of letters and
phone calls, which enabled their quick apprehension.
In 2002, they were each separately indicted, tried, and
convicted in Ohio state court of aggravated burglary,
aggravated robbery, and aggravated murder with two
death-penalty specifications—murder during an
aggravated burglary and murder during an
aggravated robbery.
At Jackson’s and Roberts’s mitigation hearings,
the juries recommended that the court impose the
death penalty. 1 The trial judge, Trumbull County
1 Ohio death-penalty proceedings involve three phases: the guilt
phase (trial and jury verdict); the mitigation (or penalty) phase
(presentation of mitigating and aggravating evidence and jury
makes a recommendation on death sentence); and the sentencing
phase (if jury recommended death penalty, judge decides
whether to impose the death penalty). See Ohio Rev. Code §§
2929.03(B)–(D), (F). Some practitioners consider both the
mitigation and sentencing phases as part of the overall
“sentencing” proceedings. For this opinion, we use the term
5a
Court of Common Pleas Judge John M. Stuard,
followed those recommendations and imposed death
sentences for both Jackson and Roberts. On direct
appeal, the Ohio appellate courts affirmed Jackson’s
convictions and sentence and soon after denied his
petition for post-conviction relief. State v. Jackson,
839 N.E.2d 362, 325 (Ohio 2006); State v. Jackson,
2006 WL 1459757, at *1 (Ohio Ct. App.), appeal denied
855 N.E.2d 1258 (Ohio 2006) (unpublished table
decision).
However, in Roberts’s direct appeal, the Ohio
Supreme Court affirmed her convictions but vacated
her death sentence due to Judge Stuard’s ex parte use
of the prosecutor in preparing Roberts’s sentencing
opinion. Roberts, 850 N.E.2d at 1172. At Roberts’s
sentencing hearing, her counsel noticed that the
prosecutor “was looking at a document and appeared
to be reading along with [Judge Stuard].” Id. at 1188.
Roberts’s counsel vehemently objected, and Judge
Stuard conceded that he had engaged in ex parte
communications with the prosecution in drafting the
sentencing opinion—apparently, Judge Stuard had
given notes to the prosecutor outlining the sentence to
be imposed with supporting reasons and tasked the
prosecutor with drafting the opinion and making
revisions. This conduct plainly violated Ohio law’s
requirement in death-penalty cases that the trial
court personally weigh the evidence and draft the
sentencing opinion, Ohio Rev. Code § 2929.03(F), so
the Ohio Supreme Court vacated Roberts’s sentence
and remanded for resentencing.
“sentencing proceedings” to encompass both the mitigation and
sentencing phases.
6a
After Judge Stuard’s conduct surfaced in Roberts’s
case, Jackson moved for new sentencing proceedings
and asked the Ohio Supreme Court to disqualify
Judge Stuard. Judge Stuard responded, conceding
that he had engaged in the same ex parte
communications with the prosecutor’s office in
drafting Jackson’s sentencing opinion. In re
Disqualification of Stuard, 863 N.E.2d 636, 637 (Ohio
2006) (mem.). Nevertheless, the single Ohio Supreme
Court justice tasked with adjudicating the petition
declined to disqualify Judge Stuard because, in his
view, there was no record of hostility or bias toward
either party. Id. at 638.
Jackson’s motion for new sentencing proceedings
remained pending for nearly three years. Only after
Jackson initiated a mandamus action to compel a
ruling; Jackson again sought Judge Stuard’s
disqualification; and the Ohio Supreme Court publicly
reprimanded Judge Stuard for violating two canons of
Ohio’s code of judicial conduct based on his ex parte
communications with the prosecution, Disciplinary
Couns. v. Stuard, 901 N.E.2d 788, 792 (Ohio 2009), did
Judge Stuard rule on the motion—he denied Jackson
a new sentencing hearing. The Ohio Court of Appeals
reversed. State v. Jackson, 941 N.E.2d 1221, 1225–26
(Ohio Ct. App. 2010). Because Judge Stuard’s
improper conduct was the same in both cases, the
court afforded Jackson “the same relief” it gave to
Roberts, and on remand for resentencing proceedings,
it ordered Judge Stuard to “personally review and
evaluate the appropriateness of the death penalty,
prepare an entirely new sentencing entry[,] . . . and
conduct whatever other proceedings are required by
law and consistent with this opinion.” Id. at 1226.
7a
Nearly two years later, in 2012, Judge Stuard
denied a motion for his recusal and resentenced
Jackson. During the resentencing hearing, Judge
Stuard permitted Jackson to offer an allocution, in
which Jackson described his good behavior on death
row. However, Judge Stuard denied Jackson’s motion
to introduce three volumes of mitigating evidence that
he had not proffered at his first sentencing
proceedings. This evidence included statistics on Ohio
death-row inmates, affidavits from Jackson’s family
members, his own affidavit expressing dissatisfaction
with his trial counsel, psychological information
showing his intellectual disabilities, his school
records, and his criminal history. The court therefore
relied on the ten- year-old record made at Jackson’s
mitigation hearing.
Judge Stuard again imposed the death penalty. He
issued the second sentencing opinion—which largely
mirrored the original opinion—mere hours after the
resentencing hearing. Apart from adding some
introductory paragraphs explaining the additional
procedural history, making minor typographical and
grammatical changes, and rewriting a few paragraphs
describing the trial evidence, the second sentencing
opinion was “almost identical” to the first. Jackson, 73
N.E.3d at 433. Compare, 2002 Opinion, R. 47-6,
PageID 10070–81, with 2012 Opinion, R. 47-17,
PageID 13477–93. Indeed, it did not even mention
Jackson’s new allocution or request to admit
additional mitigating evidence.
The Ohio Supreme Court affirmed Jackson’s
second death sentence. Jackson, 73 N.E.3d at 419.
Relevant here, the court rejected Jackson’s claims that
Judge Stuard was biased, that Judge Stuard erred in
8a
denying him the opportunity to present additional
mitigating evidence, and that his attorneys at the
penalty-phase stage were ineffective. Id. at 423–25,
427–30, 437–39.
Meanwhile, Jackson filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 in the
United States District Court for the Northern District
of Ohio, raising 37 grounds for relief. The district court
granted his petition on one ground, holding that the
Ohio state courts violated Jackson’s Eighth
Amendment right to present mitigating evidence at
his capital resentencing proceedings and that the Ohio
Supreme Court’s decision affirming his death
sentence was an unreasonable application of and
contrary to clearly established Supreme Court
precedent. Jackson v. Houk, 2021 WL 698590, at *8–
11 (N.D. Ohio Feb. 23, 2021). It otherwise rejected his
claims and denied him a certificate of appealability.
The warden timely appealed to this court, and
Jackson cross appealed, requesting a certificate of
appealability on additional grounds for relief. We
granted that application in part, adding two more
claims for our review. Thus, these consolidated
appeals present three claims: (1) whether Judge
Stuard was unconstitutionally biased in violation of
the Fourteenth Amendment; (2) whether Jackson was
denied the opportunity to present additional relevant
mitigating evidence at his second sentencing
proceedings in violation of the Eighth Amendment;
and (3) whether Jackson’s trial counsel were
ineffective at the penalty-phase stage in violation of
the Sixth Amendment.
9a
II.
In habeas proceedings, we review a district court’s
legal conclusions de novo and its factual findings for
clear error. Upshaw v. Stephenson, 97 F.4th 365, 370
(6th Cir. 2024). Our review of the state court’s
decision, however, is more deferential. See id. Under
the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), federal courts shall not grant a writ of
habeas corpus for a claim adjudicated on the merits in
state-court proceedings unless the adjudication of the
claim either “(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.”
Tolliver v. Sheets, 594 F.3d 900, 915–16 (6th Cir. 2010)
(quoting 28 U.S.C. § 2254(d)).
A state-court decision is “contrary to” clearly
established Supreme Court precedent “if the state
court applies a rule different from the governing law
set forth in [Supreme Court] cases, or if it decides a
case differently than [the Supreme Court has] done on
a set of materially indistinguishable facts.” Bell v.
Cone, 535 U.S. 685, 694 (2002). And a state-court
decision employs an “unreasonable application” of
clearly established Supreme Court precedent “if the
state court identifies the correct governing legal
principle from [the Supreme Court’s] decisions but
unreasonably applies that principle to the facts of the
prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 413
(2000). In reviewing whether a state-court decision
was “contrary to” or an “unreasonable application” of
10a
Supreme Court precedent, “we look to the last
reasoned state court decision” that adjudicated the
relevant claim on the merits. Mack v. Bradshaw, 88
F.4th 1147, 1154 (6th Cir. 2023). Only if a petitioner
can surpass AEDPA’s “daunting standard,” id., do we
apply de novo review to his claims, Rice v. White, 660
F.3d 242, 251–52 (6th Cir. 2011) (unreasonableapplication prong); Issa v. Bradshaw, 904 F.3d 446,
453 (6th Cir. 2018) (contrary- to prong). Under such
review, “no deference is due” to the state court’s faulty
decision. See Panetti v. Quarterman, 551 U.S. 930, 948
(2007).
III.
Jackson first asserts that he was denied a fair
tribunal, in violation of the Fourteenth Amendment’s
Due Process Clause, because Judge Stuard was
unconstitutionally biased against him. And he
contends that the Ohio Supreme Court, in the last
reasoned state-court decision to address this claim,
applied a standard contrary to the federal standard
for evaluating judicial bias, so we should review this
claim de novo. We agree.
A.
The right to a fair, unbiased judge in criminal cases
is undoubtedly clearly established. See Caperton v.
A.T. Massey Coal Co., 556 U.S. 868, 876 (2009) (“It is
axiomatic that ‘[a] fair trial in a fair tribunal is a basic
requirement of due process.’” (quoting In re
Murchison, 349 U.S. 133, 136 (1955) (alteration in
original)). “[T]he Due Process Clause clearly requires
a fair trial in a fair tribunal, before a judge with no
actual bias against the defendant or interest in the
outcome of his particular case.” Bracy v. Gramley, 520
U.S. 899, 904–05 (1997) (internal quotation marks
11a
and citations omitted). Judicial bias, which “is a deepseated favoritism or antagonism that makes fair
judgment
impossible,”
is
“constitutionally
unacceptable.” Coley v. Bagley, 706 F.3d 741, 750 (6th
Cir. 2013) (citing Mayberry v. Pennsylvania, 400 U.S.
455, 465–66 (1971); Withrow v. Larkin, 421 U.S. 35,
47 (1975)).
The standard for assessing the risk of judicial bias
under federal law is also clearly established. This
standard is an “objective” one, requiring recusal when
“the probability of actual bias on the part of the judge
or decisionmaker is too high to be constitutionally
tolerable.” Caperton, 556 U.S. at 872 (quoting
Withrow, 421 U.S. at 47). To conduct this inquiry,
“[t]he Court asks not whether the judge is actually,
subjectively biased, but whether the average judge in
his position is likely to be neutral, or whether there is
an unconstitutional potential for bias.” Id. at 881
(internal quotation marks omitted). Because a finding
of judicial bias is a structural defect that affects the
entire proceeding, it is not subject to a harmless-error
analysis. Cf. Arizona v. Fulminante, 499 U.S. 279, 309
(1991); see Railey v. Webb, 540 F.3d 393, 399 (6th Cir.
2008).
B.
On direct appeal from his resentencing
proceedings, Jackson asserted that “he was denied a
fair and impartial trial judge on resentencing.”
Jackson, 73 N.E.3d at 423. Based on Judge Stuard’s
improper ex parte communications and collaboration
with the prosecutor; refusal to recuse himself;
statements on the record expressing disagreement
with the necessity of resentencing; refusal to consider
Jackson’s mitigating evidence at resentencing; and
12a
issuance of a second sentencing opinion mirroring the
original, tainted one mere hours after the
resentencing hearing, Jackson claimed that Judge
Stuard was biased against him in violation of the
Fourteenth Amendment. Id. at 423–25, 433. Assessing
this claim under Ohio law’s subjective standard for
judicial bias, the Ohio Supreme Court rejected
Jackson’s argument. Id. at 423, 425. Because Jackson
had “fail[ed] to demonstrate that Judge Stuard had
actual bias and acted with ‘ill will’ or formed ‘a fixed
anticipatory judgment’ against him,” the Ohio
Supreme Court denied relief on this ground. Id. at 425
(quoting State ex rel. Pratt v. Weygandt, 132 N.E.2d
191, 192 (Ohio 1956)). 2
We hold that Ohio law’s subjective judicial-bias
standard is contrary to clearly established federal law.
Compare Pratt, 132 N.E.2d at 195 (establishing a
2 The warden contends that Jackson procedurally defaulted his
judicial-bias claim, arguing that Jackson failed to fairly present
it to the state courts. One way a habeas petitioner procedurally
defaults a claim is by “failing to raise a claim in state court”—i.e.,
that he did not “fairly present[]” the claim to the state court—
”and pursue that claim through the state’s ordinary appellate
review procedures.” Williams v. Anderson, 460 F.3d 789, 806 (6th
Cir. 2006) (internal quotation marks omitted). “To fairly present
a claim to a state court[,] a petitioner must assert both the legal
and factual basis for his or her claim.” Id. (emphasis omitted).
Jackson did just that: he claimed that “he was denied a fair and
impartial trial judge on resentencing” because “Judge Stuard’s
bias denied him due process in violation of the Fourteenth
Amendment.” Jackson, 73 N.E.3d at 423, 425. And he supported
this argument by highlighting the factual circumstances (ex
parte communications, denying Jackson a resentencing,
disciplinary actions taken against Judge Stuard, refusing to
admit wrongdoing, etc.) that we rely on here. Thus, this claim is
not procedurally defaulted.
13a
subjective standard for judicial bias), with Caperton,
556 U.S. at 881 (holding that the judicial-bias inquiry
is objective, not subjective). See also Rippo v. Baker,
580 U.S. 285, 286–87 (2017) (per curiam) (vacating a
state court’s judgment finding no bias because the
state court “applied the wrong legal standard”). Ohio’s
“actual” judicial-bias standard predates the Supreme
Court’s objective judicial-bias standard by over 50
years, and the Ohio Supreme Court erred in using this
outdated standard when assessing Jackson’s judicialbias claim. Because the state court “applie[d] a rule
different from the governing law set forth in [the
Supreme Court’s] cases,” that decision is “contrary to”
clearly established federal law under § 2254(d)(1).
Bell, 535 U.S. at 694. Thus, we review the merits of
Jackson’s judicial-bias claim de novo. Issa, 904 F.3d at
453.
Judge Stuard’s most egregious conduct was his
facilitation of and participation in multiple ex parte
communications—and in turn, ethical violations—
related to Jackson’s sentencing opinion. Disciplinary
Couns., 901 N.E.2d at 791. Without informing
Jackson, Judge Stuard approached the prosecutor to
ghost write Jackson’s sentencing opinion. After
consulting Judge Stuard’s incomplete notes, the
prosecutor used his discretion to create a draft
opinion. Judge Stuard reviewed the prosecutor’s draft,
edited it, and told the prosecutor “to make the
corrections.” Id. at 790. The prosecutor did so—but he
also incorporated another prosecutor’s “editorial
suggestions.” Id. That version eventually became
Judge Stuard’s first opinion ordering Jackson’s
execution.
14a
These ex parte communications were neither
innocent nor harmless. Judge Stuard did not have an
innocuous conversation with the prosecutor in a public
setting, Getsy v. Mitchell, 495 F.3d 295, 309–12 (6th
Cir. 2007) (en banc), nor did he ask the prosecutor to
draft a ministerial order that benefited Jackson,
Whisenhant v. Allen, 556 F.3d 1198, 1208–10 (11th
Cir. 2009). Instead, Judge Stuard secretly recruited
the prosecutor to draft the entirety of an opinion
sentencing Jackson to death: he left the prosecutor to
turn his two pages of incomplete, handwritten notes
into a twelve-page opinion outlining the facts and
procedural history, weighing the aggravating and
mitigating factors (while characterizing Jackson’s
mitigating
evidence
as
“self-serving,”
“not
convincing,” and “lack[ing] sincerity”), and ultimately
imposing the death penalty. Although “ex parte
contact does not, in itself, evidence any kind of bias,”
it is hard to imagine a more “extreme” case of bias
from ex parte contact than this one. Getsy, 495 F.3d at
311 (citations omitted).
And Judge Stuard’s conduct evidencing bias did
not stop there. After his improper ex parte contacts
came to light, he refused to accept responsibility,
stating that he did “nothing wrong.” During his
disciplinary proceedings, Judge Stuard downplayed
his conduct by claiming that the prosecution was
simply performing a ministerial task and purportedly
gained no tactical advantage from writing the opinion.
The Disciplinary Counsel and Ohio Supreme Court
disagreed: they found that Judge Stuard violated two
ethical canons in Ohio’s judicial code of conduct and
publicly reprimanded him for doing so. Disciplinary
Couns., 901 N.E.2d at 791–92.
15a
Despite these findings—and years after Jackson
had moved for relief—Judge Stuard refused to recuse
himself or grant Jackson a new sentencing hearing.
Instead, he had to be directed by the Ohio Court of
Appeals to afford Jackson a new hearing and
“personally” draft a new, untainted opinion
“evaluat[ing] the appropriateness of the death
penalty.” Jackson, 941 N.E.2d at 1226. Two years
later—to ensure that he disposed of the case before it
would be transferred to another judge upon his
retirement—Judge
Stuard
held
Jackson’s
resentencing proceeding (where, as discussed below,
he improperly denied Jackson the opportunity to
present mitigating evidence). And at that hearing, he
took the time to express his disagreement for the need
to hold a resentencing hearing, claiming that the
higher courts “misunderstood what occurred” but that
he was nonetheless required to abide by their rulings.
That very afternoon, Judge Stuard issued his
second sentencing opinion. Functionally, the second
opinion was “almost identical” to the original.
Jackson, 73 N.E.3d at 433. Even though Judge Stuard
was directed to “personally review and evaluate the
appropriateness of the death penalty” and “prepare an
entirely new sentencing entry,” Jackson, 941 N.E.2d at
1226 (emphasis added), he declined to scrap the
corrupted opinion and instead marginally modified it
to include the new procedural posture among other
minor changes. He did so because he viewed the need
for the hearing “in a very narrow light”: “to conduct
this re-sentencing based on a review of the evidence
that was presented during the trial” and do nothing
more. Indeed, the new sentencing opinion failed to
mention anything that occurred at the resentencing
hearing.
16a
Considering the totality of the circumstances, we
conclude that the objective risk of Judge Stuard’s bias
against Jackson was “too high to be constitutionally
tolerable.” Caperton, 556 U.S. at 872 (citation
omitted). Unbeknownst to Jackson, Judge Stuard
enlisted the prosecutor to draft his opinion sentencing
Jackson to death. After his unethical behavior was
exposed, he delayed Jackson’s resentencing; declined
to accept responsibility for his impropriety; and
refused to issue an untainted, personally crafted
sentencing opinion. Judge Stuard could impose the
death penalty, but he could not be bothered to draft an
opinion explaining why. These actions show a “deepseated” favoritism toward the prosecution and
antagonism toward Jackson, “mak[ing] fair judgment
impossible.” Coley, 706 F.3d at 750. Jackson must
demonstrate only an objective risk of bias, and he has
done at least that.
Further, by asking the prosecutor to draft the
original sentencing opinion for him, Judge Stuard
essentially allowed the prosecution to “act[] as both
accuser and judge in [Jackson’s] case.” Williams v.
Pennsylvania, 579 U.S. 1, 8 (2016). True, Judge
Stuard informed the prosecutor he would impose the
death penalty, but the two pages of notes he provided
to the prosecutor (which were “not very detailed”) can
hardly provide support for the harshest sentence
tolerated in the American justice system. Instead, the
prosecutor had significant discretion in explaining
why the aggravating circumstances outweighed
Jackson’s purportedly insincere and unconvincing
mitigating evidence. Judge Stuard’s decision to
involve the prosecution in this critical decision in
Jackson’s case and his failure to cure the effects of that
egregious error, even after being ordered to do so,
17a
suggests, at minimum, a risk of bias in favor of the
prosecution and against Jackson. Cf. id.; Bracy, 520
U.S. at 905.
The warden’s arguments to the contrary are
unconvincing. The warden focuses on the “few narrow
circumstances” in which the Supreme Court has found
an unconstitutional risk of bias, and he claims that
Jackson’s case is too dissimilar. See Tumey v. Ohio,
273 U.S. 510, 523 (1927); Caperton, 556 U.S. at 884;
Mayberry, 400 U.S. at 466; Murchison, 349 U.S. at
136; Williams, 579 U.S. at 14. But given our de novo
review, Issa, 904 F.3d at 453, we need not confine our
analysis to these cases. We instead analyze Judge
Stuard’s conduct under a broader lens. 3 See Caperton,
556 U.S. at 880 (“[D]isqualifying criteria cannot be
defined
with
precision.
Circumstances
and
relationships must be considered.” (internal quotation
marks omitted)). And even if this claim was not
subject to de novo review, the “general standard” for
establishing a claim of unconstitutional judicial bias
is clearly established. Marshall v. Rodgers, 569 U.S.
58, 62 (2013) (citation omitted); see also Caperton, 556
U.S. at 872. For the reasons we have articulated, the
risk of Judge Stuard’s bias was too high to be
constitutionally tolerable.
In sum, Judge Stuard failed to act as a fair
tribunal,
denying
Jackson
his
Fourteenth
Moreover, the warden disaggregates Jackson’s claimed
instances of judicial bias. But when analyzing the risk of judicial
bias, we look at “all the circumstances” collectively. Caperton,
556 U.S. at 872; see also Coley, 706 F.3d at 750 (considering
whether the defendant’s arguments “cumulatively establish[ed]
the requisite probability of actual bias”).
3
18a
Amendment right to an unbiased, neutral arbiter. As
such, Jackson is entitled to a writ of habeas corpus on
his judicial-bias claim.
IV.
Next, Jackson claims that the trial court’s
exclusion of additional mitigating evidence during his
resentencing proceedings violated his Eighth
Amendment right to present all relevant mitigating
evidence that might provide a basis for imposing a
sentence less than death. And he contends that the
Ohio Supreme Court’s rejection of this claim was an
unreasonable application of and contrary to the rights
clearly established in Lockett v. Ohio, 438 U.S. 586
(1978) (plurality opinion), Eddings v. Oklahoma, 455
U.S. 104 (1982), Skipper v. South Carolina, 476 U.S. 1
(1986), and their progeny. We agree, as we have
previously held that these cases clearly established
that “a defendant be ‘permitted to present any and all
relevant mitigating evidence that is available,’ [and] .
. . at resentencing, a trial court must consider any new
evidence that the defendant has developed since the
initial sentencing hearing.” Davis v. Coyle, 475 F.3d
761, 774 (6th Cir. 2007) (quoting Skipper, 476 U.S. at
8). That holding was correct then, and today we
reiterate that Lockett, Eddings, and Skipper require
capital sentencing courts to consider any and all
relevant mitigating evidence presented at the time of
sentencing, with no exception for cases where prior
sentencing proceedings had been held. For the
following reasons, the district court correctly
concluded that Jackson is entitled to relief on this
claim.
19a
A.
As in Davis, we first outline the clearly established
Supreme Court precedent confirming Jackson’s right
to present all relevant mitigating evidence at his
death-penalty sentencing proceedings. To comply with
the Eighth Amendment, the death penalty may “not
be imposed under sentencing procedures that create[]
a substantial risk that it would be inflicted in an
arbitrary and capricious manner.” Gregg v. Georgia,
428 U.S. 153, 188 (1976) (plurality opinion); see also
generally Furman v. Georgia, 408 U.S. 238 (1972). The
Eighth Amendment therefore requires “individualized
sentencing determinations in death penalty cases,”
Stringer v. Black, 503 U.S. 222, 230 (1992), meaning
the sentencing court must consider “the character and
record of the individual offender and the
circumstances of the particular offense as a
constitutionally indispensable part of the process of
inflicting the penalty of death,” Woodson v. North
Carolina, 428 U.S. 280, 304 (1976) (plurality opinion).
Before Lockett, the Supreme Court had opined that
judges in capital sentencings are “authorized, if not
required, to consider all of the mitigating and
aggravating circumstances involved in the crime.”
Williams v. Oklahoma, 358 U.S. 576, 585 (1959). In
Lockett, the Supreme Court squarely endorsed this
rule: “the sentencer, in all but the rarest kind of
capital case, [must] not be precluded from considering,
as a mitigating factor, any aspect of a defendant’s
character or record and any of the circumstances of
the offense that the defendant proffers as a basis for a
sentence less than death.” 438 U.S. at 604 (footnotes
omitted). In doing so, the Court reaffirmed the wellestablished principle that “an individualized decision
20a
is essential in capital cases” because the death penalty
“is so profoundly different from all other penalties”
and “[t]he need for treating each defendant in a capital
case with that degree of respect due [to] the
uniqueness of the individual is far more important
than in noncapital cases.” Id. at 605. Accordingly,
because the Lockett defendant’s sentencing court
considered only a “limited range of mitigating
circumstances” when determining whether to impose
the death penalty, the Supreme Court remanded for a
resentencing, where the sentencing court was to
conduct an individualized consideration of all the
defendant’s mitigating evidence. Id. at 606–09.
The Supreme Court then extended Lockett in
Eddings, where the Court held unconstitutional a
capital sentence in which the sentencing judge
excluded evidence of the defendant’s family history.
Eddings, 455 U.S. at 113. Noting that the exclusion of
such evidence violated Lockett, the Eddings Court
held that, “[j]ust as the State may not by statute
preclude the sentencer from considering any
mitigating factor, neither may the sentencer refuse to
consider, as a matter of law, any relevant mitigating
evidence.” Id. at 113–14. Of course, sentencing courts
may assign the appropriate weight to mitigating
evidence, id. at 114–15, and they retain their
“traditional authority . . . to exclude, as irrelevant,
evidence not bearing on the defendant’s character,
prior record, or the circumstances of his offense,”
Lockett, 438 U.S. at 604 n.12. But post-Eddings, “they
may not give [mitigating evidence] no weight by
excluding such evidence from their consideration.”
455 U.S. at 115. As such, the Eddings Court vacated
the defendant’s death sentence and remanded for
resentencing proceedings for the state court to
21a
consider “all relevant mitigating evidence,” including
evidence regarding the defendant’s rough upbringing
and family history. Id. at 117.
Then in Skipper, recognizing once more that “the
sentencer may not refuse to consider or be precluded
from considering any relevant mitigating evidence,”
the Supreme Court again reversed a death sentence.
476 U.S. at 4 (internal quotation marks omitted).
There, the trial court disregarded Eddings by refusing
to allow the defendant to present testimony from
several witnesses that the defendant “made a good
adjustment” during his time in jail awaiting trial. Id.
at 3–4. While the state courts prohibited the
defendant from presenting this evidence because it
was relevant only to his “future adaptability to prison
life,” which the trial court deemed “not a[t] issue in
this case,” id. at 3 (emphasis omitted), the Supreme
Court disagreed, holding that such evidence was
“relevant evidence in mitigation of punishment”
because it might have served “as a basis for a sentence
less than death,” id. at 4 (citation omitted). In other
words, even post- offense conduct may be considered
mitigating, and it therefore “may not be excluded from
the sentencer’s consideration” if it shows that “the
defendant would not pose a danger if spared (but
incarcerated).” Id. at 5. Accordingly, the Supreme
Court remanded for resentencing, at which the
defendant was “permitted to present any and all
relevant mitigating evidence that is available.” Id. at
8.
The Supreme Court has repeated these clearly
established principles time and time again. See, e.g.,
Hitchcock v. Dugger, 481 U.S. 393, 398–99 (1987) (“[I]t
could not be clearer that the advisory jury was
22a
instructed not to consider, and the sentencing judge
refused to consider, evidence of nonstatutory
mitigating circumstances, and that the proceedings
therefore did not comport with the requirements of
[Skipper, Eddings, and Lockett].”); Kansas v. Marsh,
548 U.S. 163, 175 (2006) (“In aggregate, our
precedents confer upon [capital] defendants the right
to present sentencers with information relevant to the
sentencing decision and oblige sentencers to consider
that information in determining the appropriate
sentence.”); Abdul-Kabir v. Quarterman, 550 U.S. 233,
246 (2007) (“[The Supreme Court has] firmly
established that sentencing [courts] must be able to
give meaningful consideration and effect to all
mitigating evidence that might provide a basis for
refusing to impose the death penalty on a particular
individual, notwithstanding the severity of his crime
or his potential to commit similar offenses in the
future.”).
Notably, we have applied Lockett, Eddings, and
Skipper to resentencing proceedings that took place
after the defendant’s initial opportunity to present
mitigating evidence. See Davis, 475 F.3d at 774
(“Skipper requires that, at resentencing, a trial court
must consider any new evidence that the defendant
has developed since the initial sentencing hearing.”
(citation omitted)). Today, we reinforce Davis’s correct
analysis and follow its holding—which remains
consistent with clearly established Supreme Court
precedent and by which we are bound. See, e.g.,
Rodgers, 569 U.S. at 64; Smith v. Stegall, 385 F.3d
993, 998 (6th Cir. 2004); Tolliver, 594 F.3d at 916 n.6;
Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir. 2003).
23a
Therefore, we hold that Lockett, Eddings, Skipper,
and their progeny clearly established that capital
defendants have a right to present during their
sentencing proceedings “any and all relevant
mitigating evidence that is available.” Skipper, 476
U.S. at 8; see also Stegall, 385 F.3d at 998 (explaining
that, while the federal circuit courts cannot create
clearly established law under AEDPA, we may
“determine whether a legal principle or right ha[s]
been clearly established by the Supreme Court”). This
principle is broad because “[w]hen the choice is
between life and death,” the Eighth and Fourteenth
Amendments require the sentencing court to consider
the “defendant’s character or record and any of the
circumstances of the offense that the defendant
proffers as a basis for a sentence less than death.”
Lockett, 438 U.S. at 604–05.
B.
In light of this clearly established federal law, the
question then becomes whether the Ohio Supreme
Court’s decision affirming the trial court’s exclusion of
additional mitigating evidence at Jackson’s
resentencing was an unreasonable application of, or
contrary
to,
this
clearly
established
law.
Unquestionably, the answer is yes.
Start with the unreasonable-application prong of §
2254(d)(1): the Ohio Supreme Court “identifie[d] the
correct governing legal principle . . . but unreasonably
applie[d] that principle to the facts of [Jackson’s]
case.” Taylor, 529 U.S. at 413. Despite correctly
identifying Lockett, Eddings, and Skipper, the Ohio
Supreme Court reasoned that Jackson could not
present additional mitigating evidence during his
resentencing proceedings because “[t]he United States
24a
Supreme Court has not determined that a capital
defendant has a categorical constitutional right to
introduce new mitigation evidence that is discovered
after a sentencing hearing in which the defendant was
given an opportunity to present all the mitigation
evidence he desired.” Jackson, 73 N.E.3d at 427. But
the Supreme Court has held that trial courts may not
refuse to consider any relevant mitigating evidence in
death-penalty cases, Eddings, 455 U.S. at 115, and in
turn, that capital defendants may present “any and all
relevant mitigating evidence that is available” at the
time the court is considering whether to impose the
death penalty, see Skipper, 476 U.S. at 5, 8. Here, the
trial court was considering whether to impose the
death penalty at Jackson’s resentencing, yet it
prevented him from presenting relevant mitigating
evidence. Jackson, 941 N.E.2d at 1226. The Ohio
Supreme Court’s attempt at narrowing the Supreme
Court’s purposely broad rule is unavailing and
violates the principle clearly defined by Lockett,
Eddings, and Skipper. Thus, the Ohio Supreme Court
unreasonably applied clearly established Supreme
Court precedent by prohibiting Jackson from
presenting all available, relevant mitigating evidence
at his resentencing proceedings.
For many of the same reasons, the Ohio Supreme
Court’s decision was also contrary to clearly
established Supreme Court precedent. Recall that a
state-court decision is “contrary to clearly established
federal law” if, for example, “the state court arrives at
a conclusion opposite to that reached by [the Supreme
Court] on a question of law.” Carter v. Mitchell, 829
F.3d 455, 468 (6th Cir. 2016) (alteration in original)
25a
(quoting Taylor, 529 U.S. at 405). 4 Here, the relevant
question of law—whether the trial court must
consider all relevant mitigating evidence when
determining a sentence in capital proceedings—is one
that the Supreme Court has squarely answered. Yet
the Ohio Supreme Court refused to follow the
Supreme Court’s answer to that question. The Ohio
Supreme Court unreasonably narrowed the LockettEddings-Skipper rule so much that it reached a
conclusion opposite to that of the Supreme Court.
Compare Jackson, 73 N.E.3d at 430 (“No binding
authority holds that the Eighth Amendment requires
a resentencing judge to accept and consider new
mitigation evidence at a limited resentencing when
the defendant had the unrestricted opportunity to
present mitigating evidence during his original
mitigation hearing.”), with Eddings, 455 U.S. at 114
(“[T]he sentencer [may not] refuse to consider . . . any
relevant mitigating evidence.”). Therefore, we also
hold that the Ohio Supreme Court applied a standard
contrary to that of the Supreme Court by categorically
excluding Jackson’s proffered mitigating evidence at
his second capital sentencing proceedings.
The warden resists our conclusions, arguing that
the Supreme Court has never considered “whether
and when a defendant may introduce new mitigating
4 Because we find that the Ohio Supreme Court’s decision was
contrary to clearly established Supreme Court precedent on a
question of law, we need not consider Jackson’s alternative
argument that this decision was also contrary to such precedent
by “confront[ing] facts that are materially indistinguishable from
[the] relevant Supreme Court precedent and arriv[ing] at an
opposite result.” Carter, 829 F.3d at 468 (internal quotation
marks omitted).
26a
evidence in ‘a proceeding on remand for the limited
purpose of correcting an error that occurred after the
defendant had had a full, unlimited opportunity to
present mitigating evidence to the sentencer.’” But
this argument fails to recognize that a “lack of a
Supreme Court decision on nearly identical facts does
not by itself mean that there is no clearly established
federal law,” given that “a general standard” from
relevant Supreme Court cases can “supply such law.”
Rodgers, 569 U.S. at 62 (citation omitted). The general
standard from Lockett, Eddings, and Skipper is that,
when choosing a capital defendant’s sentence, “the
sentencer may not refuse to consider or be precluded
from considering ‘any relevant mitigating evidence.’”
Skipper, 476 U.S. at 4 (quoting Eddings, 455 U.S. at
114). And, given that Judge Stuard was instructed to
“evaluate the appropriateness of the death penalty” on
remand, Jackson, 941 N.E.2d at 1226, it is immaterial
that the relevant proceeding was a resentencing or
that much of Jackson’s proffered mitigating evidence
was available (though not compiled or discovered) at
the time of his first sentencing. See Davis, 475 F.3d at
774. The bottom line is that Judge Stuard was again
tasked with deciding whether to impose the death
penalty on Jackson, so Lockett, Eddings, and Skipper’s
general, clearly established standard applied to
Jackson’s resentencing.
In sum, the Ohio Supreme Court issued an opinion
that was an unreasonable application of and contrary
to Lockett and its progeny, which require sentencing
courts, when deciding whether to impose the death
penalty, to consider all relevant mitigating evidence
the defendant presents during his sentencing
proceedings, regardless of when the proceedings take
place, when the mitigating evidence was discovered,
27a
or whether prior sentencing proceedings had been
held. We therefore analyze Jackson’s mitigatingevidence claim de novo. See Rice, 660 F.3d at 251– 52;
Issa, 904 F.3d at 453.
C.
Considering this clearly established Supreme
Court precedent, our de novo review is simple.
Pursuant to the Eighth and Fourteenth Amendments,
Lockett, Eddings, and Skipper entitled Jackson to
present “any and all” relevant mitigating evidence he
had compiled at the time of his resentencing
proceedings, yet the trial court prevented him from
doing so. The fact that Jackson had already been
sentenced once is irrelevant. Jackson was not subject
to any sentence, so Judge Stuard was tasked with
determining whether the death penalty or life in
prison was the appropriate sentence, given all the
relevant circumstances—both aggravating and
mitigating. But Judge Stuard refused to allow
Jackson to present all the relevant mitigating
circumstances, meaning he violated Jackson’s Eighth
Amendment rights—a violation that the Ohio
appellate courts affirmed. For these reasons, Jackson
is entitled to a writ of habeas corpus on his mitigatingevidence claim.
V.
Finally, Jackson claims that his attorneys at the
mitigation-phase stage provided ineffective assistance
of counsel. However, Jackson asks us to pretermit
consideration of this claim if we grant his petition on
any other grounds. And at oral argument, the warden
agreed with that proposed procedure. Given our
conclusions concerning Jackson’s other claims, and
pursuant to Jackson’s unopposed request, we decline
28a
to address Jackson’s ineffective-assistance claim. See,
e.g., Thomas v. Westbrooks, 849 F.3d 659, 667 (6th Cir.
2017) (pretermitting consideration of the petitioner’s
additional claims after granting him habeas relief on
one claim); Davis, 475 F.3d at 775 (“Because we must
remand the case for yet another sentencing hearing,
we need not address in detail each of the remaining
allegations of constitutional error raised before this
court by Davis.”).
VI.
For these reasons, we affirm the district court’s
grant of Jackson’s petition for a writ of habeas corpus
under 28 U.S.C. § 2254 for his mitigating-evidence
claim, reverse the denial of his petition on his judicialbias claim, and decline to address his ineffectiveassistance-of-counsel claim. We remand to the district
court for further proceedings consistent with this
opinion.
29a
APPENDIX B
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
NATHANIEL JACKSON,
Petitioner,
vs.
MARC V. HOUK,
Respondent.
Case No.
4:07-cv-00880
OPINION & ORDER
[Resolving Doc. 64]
JAMES S. GWIN, UNITED STATES DISTRICT
COURT JUDGE:
Nathaniel Jackson, an inmate sentenced to death
by the State of Ohio, petitions for habeas corpus relief
under 28 U.S.C. § 2254. 1 He raises 37 Grounds of
relief. Respondent Warden Marc C. Houk answered. 2
Petitioner filed a traverse. 3
The Petitioner Jackson briefing does a markedly
poor job. Because of defective pleading, Petitioner
Jackson gives a plausible argument with regard to
only a single claim.
Indeed, most of Jackson’s petition suffers two fatal
flaws. First, the petition fails to argue within the
1 Doc. 64; Doc. 65.
2 Doc. 71.
3 Doc. 73.
30a
AEDPA framework. Jackson’s habeas briefing copies
many of his arguments from his state-court briefs,
sometimes verbatim Because Jackson simply copies
state court briefing, Jackson fails to identify the
relevant last-in-time state-court adjudication for his
challenges, let alone explain how the relevant
adjudications are (1) contrary to or an unreasonable
application of clearly established federal law or (2)
based on an unreasonable interpretation of the facts.
Second, Jackson’s habeas grounds consist of
conclusory, sometimes incoherent arguments, and
most arguments fail to muster any persuasive factual
or legal support.
Still, in Ground 30, Petitioner Jackson establishes
that the state courts violated Jackson’s constitutional
rights when it denied Jackson the opportunity to
present updated mitigation evidence at his 2012
resentencing.
Therefore, the Court GRANTS Jackson’s habeas
corpus petition on Ground 30 and remands to the state
trial court for resentencing.
I. Background
A. Trial Evidence
For expediency, the Court reproduces the Ohio
Supreme Court’ summary of the facts established at
trial. Under 28 U.S.C. § 2254, the Court presumes
these facts to be correct. 4
{¶ 5} Donna Roberts lived with Robert Fingerhut,
her former husband, in Howland Township,
4 Davis v. Ayala, 576 U.S. 257, 271 (2015) (citing 28 U.S.C. § 2254
(e)(1)).
31a
Trumbull County. Fingerhut, who operated
Greyhound bus terminals in Warren and
Youngstown, owned two insurance policies on his
life, both of which named Roberts as sole
beneficiary. The total death benefit of the two
policies was $550,000.
{¶ 6} At some point, Jackson began an affair with
Roberts. In 2001, the affair was interrupted by
Jackson’s confinement in the Lorain Correctional
Institution. While Jackson was in prison, he and
Roberts exchanged numerous letters and spoke on
the telephone. Prison authorities recorded many of
their telephone conversations.
{¶ 7} Passages from the letters and telephone calls
indicated that the two plotted to murder
Fingerhut. Jackson repeatedly pledged to kill
Fingerhut upon Jackson’s release from prison. In
one letter, Jackson wrote, “Donna I don’t care what
you say but Robert has to go! An[d] I’m not gonna
let you stop me this time.” At Jackson’s request,
Roberts purchased a ski mask and a pair of gloves
for Jackson to use during the murder. On the day
before Jackson was released, he and Roberts had
one final recorded conversation. Jackson told her,
“I got to do this Donna. I got to.” He also told
Roberts his plan: “I just need to be in that house
when he come home. * * * Baby it ain’t gonna
happen in the house.”
{¶ 8} Jackson was released on December 9, 2001.
Roberts drove to Lorain to pick him up, spent that
night with him in a motel, and spent much of the
next two days with him as well. On December 11,
2001, Fingerhut was shot to death at his home.
32a
{¶ 9} When police responded to the crime scene,
Roberts was hysterical and asked them to do
whatever was necessary to catch the killer. She
also reported that Fingerhut’s car had been stolen.
During a search of the house, the police found, in a
dresser in the master bedroom, 145 handwritten
letters and cards that Jackson had sent to Roberts.
In the trunk of Roberts’s car, the police found a bag
with Jackson’s name on it containing clothes and
139 letters that Roberts had sent to Jackson. On
December 12, Fingerhut’s car was found in
Youngstown.
{¶ 10} On December 21, 2001, Jackson was
arrested at a friend’s house in Youngstown.
Jackson had a bandage around his left index finger
at the time of his arrest. The police seized a pair of
bloodstained gloves with the left index finger
missing and a pair of tennis shoes from the house.
The tread pattern on the shoes was consistent with
a shoe print left in blood near Fingerhut’s body.
{¶ 11} During a subsequent police interview,
Jackson said, “I just didn’t mean to do it, man.” He
then related his version of what happened,
essentially claiming that he shot Fingerhut in selfdefense. Jackson claimed to have known Fingerhut
for a couple of years. Jackson said that on the
evening of December 11, he approached Fingerhut
about getting a job at the Youngstown bus
terminal. They met later that evening, and
Jackson sold Fingerhut “some weed.” He then
asked Fingerhut if he could go to Fingerhut’s house
to “chill” before starting work the next day, and
Fingerhut gave Jackson a ride to Fingerhut’s
home. According to Jackson, after they went inside
33a
the home, Fingerhut started making racial
comments and other disparaging remarks toward
him. Fingerhut then pulled a revolver, Jackson
tried to grab it, and Fingerhut shot Jackson in the
finger as Jackson reached for the gun. Jackson
then took the gun from Fingerhut during the
“tussle” and shot him twice. Jackson was unsure
where the shots hit Fingerhut but said that
Fingerhut was still breathing when Jackson fled
the house and drove away in Fingerhut’s car.
{¶ 12} Fingerhut’s autopsy showed that he had
been shot three times, including a penetrating
gunshot wound to the top of the head that was
determined to be fatal. There was also a laceration
between Fingerhut’s left thumb and index finger,
and further examination showed that the fatal
bullet hit his hand before entering the top of his
head. Gunshot residue on the body indicated that
the distance from the muzzle of the firearm to the
head wound was 24 inches or less.
{¶ 13} Finally, expert testimony established that
the DNA profile of bloodstains found inside
Fingerhut’s car and on its trunk-release lever
matched Jackson’s DNA profile. 5
B. Relevant State-Court Procedural History
In separate trials before the same judge, two juries
separately convicted Petitioner Nathaniel Jackson
and Donna Roberts of capital murder and
recommended death sentences for both. 6 The trial
5 State v. Jackson (“Jackson III”), 73 N.E.3d 414, 419-20 (Ohio
2016).
6 Id. at 420.
34a
judge, Judge Stuard, imposed death in both cases. 7
Petitioner Jackson’s sentence was affirmed after a
direct appeal and a postconviction relief petition. 8
1. Donna Roberts’s Direct Appeal and
Resentencing
Petitioner Jackson’s coconspirator, Donna Roberts,
appealed her conviction and sentence. In Roberts’s
direct appeal, the Ohio Supreme Court affirmed
Roberts’s conviction. 9 However, the Ohio Supreme
Court vacated her death sentence based on the
following facts:
{¶ 154} At the sentencing hearing, the court read
aloud its sentencing opinion and imposed the death
penalty on Roberts. As the court was doing so,
defense counsel noticed that the prosecutor was
looking at a document and appeared to be reading
along with the trial judge. At the end of the court’s
reading, defense counsel raised a “vehement”
objection to the prosecution’s apparent ex parte
involvement with the sentencing opinion.
{¶ 155} The trial judge conceded that the
prosecution had participated in the drafting of the
opinion without the knowledge of defense counsel.
The trial judge stated that he had given notes to
the prosecutor and had instructed the prosecutor,
“[T]his is what I want.” The [trial] court added that
the opinion had to be corrected six or seven times.
The trial judge apologized to defense counsel for
7 Id. at 420-21.
v. Jackson (“Jackson I”), 839 N.E.2d 362 (Ohio 2006);
State v. Jackson, 111 Ohio St. 3d 1469 (2006).
9 State v. Roberts, 850 N.E.2d 1168, 1188 (Ohio 2006).
8 State
35a
not providing them with a copy of the opinion
before the sentencing hearing. 10
In its decision vacating Roberts’s sentence, the
Ohio Supreme Court observed that Ohio law gives the
trial court sole responsibility for weighing the
evidence and drafting death-sentence opinions. 11 In
Roberts’s case, the Ohio Supreme Court concluded
that the trial court’s delegation of responsibility to the
prosecution violated Ohio law. 12 The Ohio Supreme
Court explained that its “conclusion is compelled
particularly in light of the trial court’s ex parte
communications about sentencing with the prosecutor
in preparing the sentencing opinion.” 13 Accordingly,
the Ohio Supreme Court remanded Roberts’s case to
the trial court for resentencing. 14
At the resentencing, Judge Stuard again sentenced
Donna Roberts to death. 15
2. Jackson’s Resentencing and Second
Direct Appeal
Following the Ohio Supreme Court’s decision
vacating Roberts’s death penalty, on August 15, 2006,
Petitioner Jackson requested the trial court’s
10 State v. Roberts, 850 N.E.2d at 1188.
11 State v. Roberts, 850 N.E.2d at 1188.
12 Id. at 1189.
13 Id.
14 Id. at 1190. Notably, in January 2009, the Ohio Supreme Court
publicly reprimanded Judge Stuard for his ex parte
communications with a prosecutor in the Roberts case. Jackson
III, 73 N.E.3d at 422.
15 State v. Roberts, 998 N.E.2d 1100, 1103 (Ohio 2013).
36a
permission to move for a new sentencing hearing. 16
The trial court did not immediately rule on Jackson’s
motion.
On October 5, 2006, Jackson filed an affidavit of
disqualification in the Ohio Supreme Court against
the trial judge, Judge Stuard, seeking to prevent
Judge Stuard from presiding over any further trial or
postconviction proceedings in his case. 17 Judge Stuard
responded to Jackson’s affidavit of disqualification,
contending that he could continue to preside over
Jackson’s case. 18
On November 29, 2006, Ohio Chief Justice Moyer
denied
Jackson’s
disqualification
request. 19
ChiefJustice Moyer concluded that the record “does
not compel [Judge Stuard’s] disqualification for any
alleged bias or prejudice.” 20 Justice Moyer explained:
[Judge Stuard] acknowledges that he held the
same kind of communications with the prosecuting
attorney’s office in both the Roberts and Jackson
capital cases before sentencing each of them to
death, and he denies that any hearing is needed in
his courtroom in the Jackson case to establish that
fact. The judge states that he is prepared to
reconsider the evidence and impose a new sentence
in this case just as he has been ordered to do in the
related Roberts case. He contends that his ex parte
16 State v. Jackson (“Jackson II”), 941 N.E.2d 1221, 1223 (Ohio
Ct. App. 2010).
17 Jackson III, 73 N.E.3d at 421.
18 In re Disqualification of Stuard, 863 N.E.2d 636, 637 (Ohio
2006).
19 Id. at 638.
20 Id.
37a
communications with the prosecuting attorney’s
office
were
administrative
rather
than
substantive, and he states that the prosecuting
attorney’s office simply typed up his notes after he
had independently weighed the evidence and
reached a decision about the proper sentences for
the two defendants. 21
As of January 2008, Judge Stuard still had not
ruled on Jackson’s request for leave to move for a new
sentencing hearing. On January 8, 2008, Petitioner
Jackson brought a mandamus action to require Judge
Stuard to rule on Petitioner’s motion. 22 On February
15, 2008, nearly 18 months after Jackson moved for
leave to file a new a new sentencing hearing, the trial
judge granted Jackson’s motion. 23
On February 29, 2008, Jackson moved “for a new
trial and/or sentencing hearing” on the grounds that
the prosecution impermissibly collaborated in the
drafting of the sentencing opinion. 24
In mid-May 2008, Petitioner Jackson filed a second
disqualification affidavit against Judge Stuard in the
Ohio Supreme Court. 25 Petitioner argued, inter alia,
that Jackson was entitled to the same relief afforded
by the Ohio Supreme Court in the Roberts case—
namely a resentencing—and implied that Judge
21 Id. at 637.
22 Doc. 48-8 at 49. On April 9, 2008, the Ohio Supreme Court
dismissed Petitioner’s mandamus action. State ex rel. Jackson v.
Stuard, 884 N.E.2d 64 (Ohio 2008).
23 Jackson III, 73 N.E.3d at 422.
24 Jackson III, 73 N.E.3d at 422.
25 Jackson III, 73 N.E.3d at 422; Doc. 47-3 Page ID 8550-8569.
38a
Stuard should be disqualified for his failure to grant
this relief. 26
The
Chief
Justice
denied
this
second
disqualification attempt. 27 The Chief Justice
explained that “an affidavit of disqualification is not a
vehicle to contest matters of substantive or procedural
law,” and “the judge’s alleged failure to provide timely
rulings on motions is not a concern that can be
addressed through an affidavit of disqualification.” 28
On May 4, 2009, Judge Stuard denied Jackson’s
motion for a new trial and sentencing hearing. 29
Jackson appealed the denial to the state appellate
court. 30
On October 15, 2010, the Ohio Eleventh District
Court of Appeals granted Jackson’s appeal and
reversed Judge Stuard’s denial of Jackson’s motion for
resentencing. 31 The state appeals court held that the
trial judge’s use of the prosecutor to assist in
preparing the sentencing opinion in Jackson’s case
was improper, vacated Jackson’s sentence, and
remanded for resentencing. 32 The state appellate
court mandated:
In the case at bar, . . . the fact pattern is factually
the same as that in Roberts. The record before us
establishes that the same drafting procedures
involving the sentencing entry that occurred in
26 Jackson III, 73 N.E.3d at 422; Doc. 47-3 Page ID 8562-8567.
27 Doc. 47-9.
28 Id. at 203 (internal quotation marks and citation omitted).
29 Jackson III, 73 N.E.3d at 422.
30 Id.
31 Jackson II, 941 N.E.2d at 1224.
32 Id. at 1226
39a
Roberts took place in the instant matter. . . . Based
on the Supreme Court of Ohio’s holding in Roberts,
appellant is entitled to the same relief afforded to
his co-defendant. Thus, the trial judge must
personally
review
and
evaluate
the
appropriateness of the death penalty, prepare an
entirely new sentencing entry as required by R.C.
2929.03(F), and conduct
whatever other
proceedings are required by law and consistent
with this opinion. 33
On August 14, 2012, the trial court conducted
Jackson’s resentencing hearing. 34 At the start of the
hearing, Jackson requested that Judge Stuard recuse
himself. 35 Judge Stuard denied the request. 36
Important to this habeas action, Petitioner
Jackson also sought to offer new evidence at his
resentencing hearing. Judge Stuard denied Jackson’s
motion to introduce additional mitigating evidence,
though Judge Stuard allowed Jackson to offer an
allocution. 37
Judge Stuard resentenced Jackson to death. 38 In
his second sentencing opinion, released later that
afternoon, Judge Stuard made only small changes to
the original sentencing opinion that was drafted by
the prosecution:
{¶ 91} The 2002 and 2012 sentencing opinions are
very similar. The 2002 sentencing opinion
33 Jackson II, 941 N.E.2d at 1226.
34 Jackson III, 73 N.E.3d at 422.
35 Id.
36 Id.; Doc 47-17 Page ID 13507.
37 Jackson III, 73 N.E.3d at 422.
38 Id.
40a
summarized the trial-phase evidence, discussed
the aggravating circumstances and mitigating
evidence, and explained why the trial court
concluded that “the aggravating circumstances,
outweighed, by proof beyond a reasonable doubt,
the collective mitigating factors.” The 2012
sentencing opinion added three new introductory
paragraphs explaining the reasons for Jackson’s
resentencing proceedings. Two other paragraphs
were rewritten to discuss the trial-phase evidence
in a different way. Otherwise, the two opinions are
almost identical. 39
Additionally, the second sentencing opinion made
no references to Jackson’s allocution. 40
On appeal from the resentencing, the Ohio
Supreme Court upheld the second death sentence. 41
The Court will describe the Ohio Supreme Court’s
affirmance below.
C. Relevant Federal Habeas Procedural
History
On October 31, 2007, Petitioner Nathaniel Jackson
filed this habeas corpus action. 42 On March 20, 2008,
Jackson filed a motion for a stay and abeyance,
indicating he had appealed the trial court’s denial of
his postconviction relief petition to the Ohio Eleventh
District Court of Appeals. 43 Jackson indicated he had
39 Id. at 433.
40 Id. at 430-31.
41 Jackson III, 73 N.E.3d at 427.
42 Doc. 14.
43 Doc. 28 at 2.
41a
also moved for a new sentencing hearing before the
trial court. 44
On April 18, 2008, the Court granted a stay
pending exhaustion of Jackson’s state-court
remedies. 45 The Court ordered Jackson to notify this
Court upon exhaustion. 46
On March 2, 2018, Jackson moved for leave to file
an amended habeas petition. Petitioner Jackson said
he had finally exhausted his state-court remedies. 47
That same day, Petitioner filed his amended petition
and a brief in support. 48
On March 15, 2018, the Court lifted the stay and
construed Petitioner’s amended petition as a first-intime habeas petition. 49 On October 1, 2018, the
Warden filed his return. 50 On March 31, 2019,
Petitioner Jackson filed his traverse. 51
On February 24, 2020, Petitioner moved to stay his
July 15, 2020 execution. 52 On March 9, 2020, the
Court granted Petitioner’s motion to stay his
execution pending the Court’s adjudication of his
habeas petition. 53
44 Id. at 3.
45 Doc. 33.
46 Id.
47 Doc. 63.
48 Doc. 64 (amended petition); Doc. 65 (brief in support).
49 Doc. 67.
50 Doc. 71.
51 Doc. 73.
52 Doc. 76.
53 Doc. 79.
42a
II. Legal Standards
A. Substantive Law
The Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”)54 governs a federal court’s review
of a state prisoner’s habeas corpus petition. AEDPA
limits federal review to a petitioner’s claims that he is
in custody in violation of the Constitution, laws, or
treaties of the United States. 55
AEDPA prohibits federal courts from granting a
habeas petition for any claim that the state court
adjudicated on the merits unless the state court’s
decision:
“(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 upon an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.” 56
Under the “contrary to” clause of § 2254(d)(1), “a
federal court must find a violation of law ‘clearly
established’ by holdings of the Supreme Court, as
opposed to its dicta, as of the time of the relevant state
court decision.” 57 The state court need not have been
aware of the relevant Supreme Court precedent, so
long as neither its reasoning nor its result contradicts
54 Pub. L. No. 104-132, 110 Stat. 1214 (1996).
55 28 U.S.C. § 2254(a).
56 28 U.S.C. § 2254(d); see also Miller v. Francis, 269 F.3d 609,
614 (6th Cir. 2001).
57 Miller, 269 F.3d at 614 (citing Williams v. Taylor, 529 U.S. 362,
412 (2000)).
43a
it. 58 In order to have an “unreasonable application of .
. . clearly established Federal law,” the state-court
decision must be “objectively unreasonable,” not
merely erroneous or incorrect. 59
Under § 2254(d)(2), a state court’s determination of
fact will be unreasonable only if it represents a “clear
factual error.” 60 Therefore, the state court’s
determination of facts must conflict with clear and
convincing evidence to the contrary. 61 “This standard
requires the federal courts to give considerable
deference to state-court decisions.” 62 State court
factual determinations are presumed to be correct. 63
B. Procedural Barriers to Habeas Review
Before a federal court will review the merits of a
petition for a writ of habeas corpus, a petitioner must
overcome several procedural hurdles. Specifically, the
petitioner must surmount the barriers of exhaustion,
procedural default, and time limitation.
As a general rule, a state prisoner must exhaust all
possible state remedies or have no remaining state
remedies before a federal court will review a petition
for a writ of habeas corpus. 64
58 Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (per curiam).
59 Williams, 529 U.S. at 405.
60 Wiggins v. Smith, 539 U.S. 510, 528-29 (2003).
61 Id.
62 Ferensic v. Birkett, 501 F.3d 469, 472 (6th Cir. 2007).
63 Ayala, 576 U.S. 271.
64 28 U.S.C. § 2254(b) and (c); see Baldwin v. Reese, 541 U.S. 27
(2004).
44a
To be properly exhausted, each claim must have
been “fairly presented” to the state courts. 65 Fair
presentation requires that the state courts be given
the opportunity to see both the factual and legal basis
for each claim. 66 Each claim must be presented to the
state courts as a federal constitutional issue, not
merely as an issue arising under state law. 67
Moreover, the claim must be presented to the state
courts under the same legal theory in which it is later
presented in federal court. 68 It cannot rest on a legal
theory which is separate and distinct from the one
previously considered and rejected in state court. 69
The procedural default doctrine serves to bar
habeas review of federal claims that a state court
declined to address because the petitioner did not
comply with a state procedural requirement. 70
Although procedural default is sometimes confused
with exhaustion, exhaustion and procedural default
are distinct concepts. 71 Failure to exhaust applies
where state remedies are still available at the time of
the federal petition. 72 In contrast, where state court
remedies are no longer available, procedural default
rather than exhaustion applies. [*17] 73
65 See e.g. Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009);
Frazier v. Huffman, 343 F.3d 780, 797 (6th Cir. 2003).
66 Wagner, 581 F.3d at 414.
67 Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984).
68 Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998).
69 Wong, 142 F.3d at 322.
70 Wainwright v. Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 53 L. Ed.
2d 594 (1977).
71 Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006).
72 Id. at 806 (citing Engle v. Isaac, 456 U.S. 107, 125 n. 28 (1982)).
73 Williams, 460 F.3d at 806.
45a
Procedural default may occur in two ways. First, a
petitioner procedurally defaults a claim if he fails to
comply with state procedural rules in presenting his
claim to the appropriate state court, and the state
court enforced that rule and declined to reach the
merits of a petitioner’s claims. 74 Second, a petitioner
may procedurally default a claim by failing to raise a
claim in state court and no longer having a remedy
available to him to exhaust his claims. 75
To overcome procedural default, a petitioner must
show cause for the default and actual prejudice that
resulted from the alleged violation of federal law. 76
“Cause” is a legitimate excuse for the default, and
“prejudice” is actual harm resulting from the alleged
constitutional violation. 77 If a petitioner fails to show
cause for his procedural default, the Court need not
address the issue of prejudice. 78 A petitioner may also
demonstrate a fundamental miscarriage of justice will
occur if the claims are not considered; a fundamental
miscarriage of justice results from the conviction of
one who is “actually innocent.” 79
74 Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986).
75 Williams, 460 F.3d at 806 (citing O’Sullivan v. Boerckel, 526
U.S. 838, 848 (1999)); see also Baston v. Bagley, 282 F. Supp. 2d
655, 661 (N.D. Ohio 2003) (“Issues not presented at each and
every level [of the state courts] cannot be considered in a federal
Habeas Corpus Petition.”); see also State v. Moreland, 50 Ohio St.
3d 58, 62 (1990) (failure to present a claim to a state court of
appeals constituted a waiver).
76 Coleman v. Thompson, 501 U.S. 722, 730 (1991).
77 Castro v. Harris, No. 1:18-CV-1167, 2018 WL 3829101, at *3
(N.D. Ohio Aug. 13, 2018).
78 See Smith v. Murray, 477 U.S. 527, 532 (1986).
79 Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006) (citing
Murray v. Carrier, 477 U.S. 478, 496 (1986)).
46a
Simply stated, a federal court may review only
federal claims that were evaluated on the merits by a
state court. Claims that were not so evaluated, either
because they were never presented to the state courts
(i.e., exhausted) or because they were not properly
presented to the state courts (i.e., were procedurally
defaulted), are generally not cognizable on federal
habeas review.
Furthermore, there is a one-year statute of
limitation for filing a § 2254 petition. 80 The limitation
period runs from the date on which the judgment
became final by the conclusion of a petitioner’s direct
appeals or the date on which the time for seeking such
review expired, whichever later occurs. 81
III. Discussion
Petitioner Jackson raises 37 claims in his habeas
corpus petition. Due to defective pleading, Jackson
fails to satisfy his burden as to most claims. As to
Ground 30, however, Petitioner establishes that the
state courts denied Jackson his constitutional rights
under the Eighth and Fourteenth Amendments to the
U.S. Constitution.
The analysis below explains why Petitioner
succeeds on Ground 30, but fails on all other Grounds.
The Court addresses claims that share the same
deficiency together. 82
80 28 U.S.C. § 2244(d)(1) and (2).
81 Id.
82 Some Grounds are discussed in more than one grouping. ]
47a
A. Petitioner Establishes in Ground 30 that
the Trial Court Violated His
Constitutional Rights When It Denied
Jackson the Opportunity to Present New
Mitigation Evidence at His Resentencing.
Ground 30 argues that, at Petitioner’s 2012
resentencing, the trial court constitutionally erred by
not considering “any new evidence that Jackson had
proffered in favor of a sentence of less than death.” 83
Specifically, Petitioner alleges:
The trial judge three times stated that he would
not consider any new or additional evidence that
supported a sentence of less than death. [8/14/12
Tr. 5, 14]. Twice the judge stated that he had
already drafted his sentencing opinion. [Tr 22, 27].
Almost immediately following the resentencing
hearing, the judge filed his sentencing opinion.
That opinion reflected that the judge had not
considered any new evidence that Jackson had
proffered in favor of a sentence of less than death.
It also reflected that the judge had not considered
any information from Appellant’s allocution. 84
In response, the Warden argues that there is no
clearly established law “as to whether a defendant on
resentencing like Jackson is entitled to a complete ‘doover’ of mitigation.” 85
83 Doc. 65 at 99.
84 Id. at 99-100. Because Petitioner copies this argument from a
state-court brief, his provided citations are unhelpful.
85 Doc. 71 at 48. In the alternative, the Warden implies that, to
the extent the trial court erred by not considering mitigation
evidence, this error was cured by the Ohio Supreme Court’s
consideration of the evidence in its independent sentencing
48a
As a preliminary matter, the Court observes that
Petitioner’s Ground 30 is a mere rewrite of an
argument Jackson made to the Ohio Supreme Court. 86
Despite Jackson’s responsibility to identify the last
reasoned state court opinion on Ground 30, Petitioner
fails to identify the last relevant state-court ruling, let
alone explain how that relevant ruling is contrary to
clearly established federal law. Given this briefing
failure, the Court could find that Petitioner defectively
pleaded Ground 30. The Court declines to do so,
however, because it is persuaded that it should
overlook the briefing inadequacies to consider the
merits.
Clearly established federal law provides that a
capital defendant has a constitutional right to
mitigate his sentence. 87 In Lockett v. Ohio, 88 the U.S.
Supreme Court overturned an Ohio death-penalty
statute that permitted a sentencer to consider only a
under O.R.C. 2929.05. Id. at 47. The Court rejects this
alternative argument. Though the Ohio Supreme Court
discussed the evidence that Jackson wanted to introduce at his
resentencing, the Ohio Supreme Court held that such evidence
could not be introduced. Jackson III, 73 N.E.3d at 430. Thus,
assuming the trial court erred in excluding the updated
mitigation evidence at the resentencing, it is not fair to say that
the Ohio Supreme Court cured the error by considering Jackson’s
desired new evidence—because the new evidence was never in
the record.
86 Compare the text of habeas Ground 30, Doc. 65 Page ID 2349623499, with the text of Proposition 5, Jackson’s second direct
appeal brief, Doc 48-7 Page ID 15409-15416.
87 Lockett v. Ohio, 438 U.S. 586, 608-09 (1978) (plurality);
Furman v. Georgia, 408 U.S. 238 (1972).
88 438 U.S. 586 (1978).
49a
limited range of mitigating circumstances. 89 The
Court held that “the Eighth and Fourteenth
Amendments require that the sentencer, in all but the
rarest kind of capital case, not be precluded from
considering, as a mitigating factor, any aspect of a
defendant’s character or record and any of the
circumstances of the offense that the defendant
proffers as a basis for a sentence less than death.” 90
In Eddings v. Oklahoma, 91 the U.S. Supreme
Court extended its Lockett rule, holding that
sentencers considering capital punishment “may not
give [mitigating evidence] no weight by excluding such
evidence from their consideration.” 92 In other words,
“[j]ust as the State may not by statute preclude the
sentencer from considering any mitigating factor,
neither may the sentencer refuse to consider, as a
matter of law, any relevant mitigating evidence.” 93
In Skipper v. South Carolina, 94 the U.S. Supreme
Court applied its Lockett-Eddings rule to the prisonbehavior context. 95 Skipper involved near identical
claims to Jackson’s Ground 30 claim.
South Carolina convicted Skipper of capital
murder and rape. 96 The South Carolina trial court
sentenced Skipper to death.
89 Id.
90 Id. at 604 (emphasis in original).
91 455 U.S. 104 (1982).
92 Eddings, 455 U.S. at 115 (emphasis in original).
93 Eddings, 455 U.S. at 113-14.
94 476 U.S. 1 (1986).
95 Skipper, 476 U.S. at 3.
96 Id. at 2.
50a
After conviction and at Skipper’s sentencing
hearing, the trial court rejected as irrelevant
Skipper’s offer of evidence “regarding [Skipper’s] good
behavior during the other seven months he spent in
jail awaiting trial” and testimony that Skipper “made
a good adjustment” while awaiting trial. 97 The jury
sentenced Skipper to death. 98
The U.S. Supreme Court vacated Skipper’s death
sentence because Skipper had a right to place before
the sentencing jury all relevant evidence in mitigation
of punishment—including his good prison behavior. 99
In the capital context, a sentencing authority may
consider a defendant’s past conduct as indicative of his
probable future behavior, so “evidence that the
defendant would not pose a danger if spared (but
incarcerated) must be considered potentially
mitigating” and, under Eddings, may not be excluded
from the sentencer’s consideration. 100
In Davis v. Coyle, the Sixth Circuit interpreted
Lockett, Eddings, and Skipper and applied their
holdings to a like case. 101 Indeed, Davis concerned a
defendant who had been given an opportunity to
present all relevant mitigating evidence at his initial
sentencing hearing, but was denied an opportunity to
present
new
mitigating
evidence
at
his
102
resentencing.
The Sixth Circuit vacated Davis’s
second death sentence and held that:
97 Id. at 4.
98 Id.
99 Id. at 4.
100 Id. at 5.
101 Davis v. Coyle, 475 F.3d 761, 774 (6th Cir. 2007).
102 Id. at 768-70.
51a
[T]he decision of the three-judge panel to exclude
testimony concerning his exemplary behavior on
death row in the time between the two sentencing
hearings violated his rights under the Fifth, Sixth,
Eighth, and Fourteenth Amendments, and that
the state courts’ decisions affirming the panel’s
ruling were contrary to the those of the Supreme
Court of the United States in Lockett, Eddings, and
Skipper. 103
The Davis court concluded that “the holding in
Skipper . . . requires that, at resentencing, a trial court
must consider any new evidence that the defendant
has developed since the initial sentencing hearing.” 104
In the instant case, the Ohio Supreme Court
somehow rejected the Davis Court’s reading of
Lockett, Eddings, Skipper:
To hold, as [Davis v. Coyle] does, that a new
mitigation hearing must be held, even though no
constitutional error infected the original one,
would transform the right to present relevant
mitigation into a right to update one’s mitigation.
Such a right has no clear basis in Lockett or its
progeny. 105
The Ohio Supreme Court said that it was not
bound by Davis or any “rulings on federal statutory or
constitutional law made by a federal court other than
the United States Supreme Court.” 106
103 Id. at 770.
104 Id. at 774 (citing Skipper, 476 U.S. at 8).
105 Jackson III, 73 N.E.3d at 429 (quoting Roberts, 998 N.E.2d at
1108).
106 Id. at 428 (quoting Roberts, 998 N.E.2d at 1108).
52a
But the Davis Court correctly interpreted the U.S.
Supreme Court’s Lockett, Eddings, Skipper holdings.
The Ohio Supreme Court’s finding guts the Supreme
Court’s requirement that “evidence that the defendant
would not pose a danger if spared (but incarcerated)
must be considered potentially mitigating” and
“[u]nder Eddings, such evidence may not be excluded
from the sentencer’s consideration.” 107
Rejecting the core holdings of Lockett, Eddings,
Skipper, 108 the Ohio Supreme Court rejected
Jackson’s claims that he had a right to present new
and updated mitigation evidence at his resentencing:
Jackson was given a full opportunity to present
mitigating evidence during his initial sentencing
hearing. Accordingly, Jackson was not entitled to
improve or expand his mitigating evidence simply
because the court of appeals required the judge to
resentence him and prepare a new sentencing
opinion. 109
Davis v. Coyle interpreted Supreme Court
requirements. This Court is bound by Davis and the
Sixth Circuit’s understanding of the dictates of the
Supreme Court’s Lockett, Eddings, and Skipper
precedent. In addition, the Ohio Supreme Court’s
interpretation destroys the Supreme Court’s holding
107 Skipper, 476 U.S. at 5.
108 The
Ohio Supreme Court concluded that “[n]o binding
authority holds that the Eighth Amendment requires a
resentencing judge to accept and consider new mitigation
evidence at a limited resentencing when the defendant had the
unrestricted opportunity to present mitigating evidence during
his original mitigation hearing.” Id. at 430.
109 Id.
53a
that defendants be given a chance to offer mitigating
evidence.
Therefore, the Court finds that the Ohio Supreme
Court’s decision to prevent Jackson from presenting
mitigating evidence at his resenting hearing “was
both an unreasonable application of the Skipper
decision and contrary to the holding in that opinion
and its antecedent cases.” 110
Consequently, the Court grants Jackson’s habeas
corpus petition on Ground 30.
B. Petitioner Fails to Meet His § 2254
Burden as to All Other Grounds Due to
His Conclusory Argumentation and His
Failure to Argue Within the AEDPA
Framework.
Petitioner, represented by counsel, has submitted
defective briefing. There are two primary problems.
The first problem is that Petitioner employs
conclusory argumentation in nearly every Ground.
Throughout the petition and traverse, Petitioner
asserts that a prosecutor’s conduct or a state court’s
decision violated his constitutional rights without
explaining how his rights were violated—or pursuant
to what U.S. Supreme Court authority.
For example, Ground 24 states, in its entirety:
A free standing Atkins claim has not yet been
raised in the Ohio courts in spite of substantial
credible evidence including IQ scores of 70 and 72
in high school. Petitioner is entitled to the effective
110 Davis, 475 F.3d at 773.
54a
assistance of
Martinez. 111
counsel.
Strickland,
Evitts,
Ground 24, like many of Petitioner’s other
Grounds, is not a fully developed argument. It fails to
provide any useful factual or legal citations. It fails to
explain how it would overcome a procedural default.
It does not explain the standard for effective
assistance of counsel or how Petitioner’s attorneys
failed to meet this standard. This Ground is defective
on its face.
The second and arguably more significant problem
is that Petitioner does not argue within the AEDPA
framework. As explained above, to secure relief under
AEDPA, a state prisoner’s habeas petition cannot be
granted with respect to any claim that was
adjudicated on the merits in state court unless the
adjudication (1) resulted in a decision that was
contrary to, or involved an unreasonable application
of, clearly established federal law or (2) resulted in a
decision that was based upon an unreasonable
determination of the facts. 112 In making this
determination, the Court looks to the last reasoned
state-court adjudication of a petitioner’s claim. 113
In his opening brief, Petitioner fails to argue most
Grounds within the appropriate framework. For many
Grounds, he merely copies arguments from his
various state-court briefs. With this approach, he does
not identify the relevant last-in-time state-court
decision, let alone explain how the decision is (1)
111 Doc. 65 at 66.
112 28 U.S.C. § 2254(d).
113 See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018); Williams v.
Mitchell, 792 F.3d 606, 612 (6th Cir. 2015).
55a
contrary to or an unreasonable application of federal
law or (2) based on an unreasonable determination of
facts.
For example, with Ground 11, Petitioner
challenges the trial court’s adjudication of his
suppression motion. 114 This Ground fails to
acknowledge the Ohio Supreme Court’s consideration
(and rejection) of this challenge, 115 let alone explain
how the Ohio Supreme Court’s decision warrants
AEDPA relief.
In the Warden’s answer, the Warden argues that
the Court should dismiss Jackson’s petition on the
basis of his defective pleading. 116 The Warden argues
that to do otherwise would require the Court to dive
through thousands of pages of records, identify which
state-court decisions Petitioner should have
challenged, and conjure arguments for Petitioner on
how the relevant state court-decisions violate clearly
established law or are based on unreasonable
interpretations of facts. 117 The Warden says that such
an exercise would make the Court act as the
Petitioner’s advocate. 118
In the Petitioner’s traverse, Petitioner attempts to
cure his AEDPA pleading deficiency in two ways. 119
114 Doc. 65 at 35.
115 Jackson I, 839 N.E.2d at 371-74.
116 See generally Doc. 71; see id. at 102 (concise recitation of
Warden’s argument).
117 E.g., id. at 29-31.
118 E.g., Doc. 71 at 39.
119 Petitioner also simply states that his pleading is not defective:
“Mr. Jackson has met his pleading requirements as reflected in
his [filings]. Any argument by the Warden that the pleading
56a
First,
Jackson
argues
that
AEDPA
is
120
For this proposition, Jackson
unconstitutional.
relies on a news article, law review articles, and nonbinding judicial opinions criticizing AEDPA. 121
This argument is unpersuasive. Jackson cites no
binding authority for his proposition that AEDPA is
unconstitutional. Moreover, the Court observes that
the Sixth Circuit and the U.S. Supreme Court have
considered many AEDPA cases—including challenges
to the statute’s constitutionality—and neither court
has found the statute to be unconstitutional. 122 On the
contrary, “there is universal agreement among each
circuit that AEDPA deference is constitutional.” 123
Jackson’s second attempt to cure his pleading
deficiency also fails. For many Grounds, Petitioner’s
traverse reproduces his opening brief’s argument and
tacks on a perfunctory statement to the effect of “the
state court violated AEDPA”—without actually
identifying the appropriate last state-court decision or
explaining how the state-court decision violates
AEDPA. 124
requirements have not been met is unsupported by the record
and law.” Doc. 73 at 19. Ironically, Petitioner’s assertion that his
pleading is not defective is unsupported by the record and law.
120 Id. at 13 (“AEDPA violates the federal Constitution and this
case must be decided without its application.”).
121 Id. at 13-14.
122 See, e.g., Felker v. Turpin, 518 U.S. 651, 664 (1997) (holding
that AEDPA did not unconstitutionally suspend the writ).
123 Betts v. Tibbals, No. 1:11-CV-01107, 2014 WL 4794530, at *3
(N.D. Ohio Sept. 24, 2014).
124 For example, In Petitioner’s traverse, he repeat’s his Ground
30 argument and adds the following statement at the end with
57a
Jackson’s belated, half-hearted attempt to situate
his Grounds within the AEDPA framework misses the
mark.
In short, nearly all of Petitioner’s Grounds are
defectively pleaded and are denied on this basis.
Though Petitioner has failed to meet his burden as to
all but Ground 30, the Court provides further analysis
as to why his other Grounds fail below.
C. Petitioner Defectively Pleads Grounds 15, 11-12, 27, 31-32, and 36 by Repeating
His State-Court Arguments Without
Challenging the Last Reasoned StateCourt Opinion.
Petitioner’s Grounds 1-5, 11-12, 27, 31-32, and 36
are mere rewrites of his state-court appellate
arguments. 125
• Ground 1 copies Jackson’s direct appeal brief
Proposition 2. 126
• Ground 2 copies Jackson’s direct appeal brief
Proposition 3. 127
no further analysis: “The Ohio courts violated 2254(d)(1) and
(d)(2).” Doc. 73 at 49.
125 This list is not comprehensive. The Court considers other
arguments Petitioner copied from his state-court briefs
separately.
126 Compare the text of habeas Ground 1, Doc. 65 Page ID 2341023416, with the text of Proposition 2, Jackson’s direct appeal
brief, Doc 34-14 Page ID 1333-1342.
127 Compare the text of habeas Ground 2, Doc. 65 Page ID 2341623421, with the text of Proposition 3, Jackson’s direct appeal
brief, Doc 34-14 Page ID 1343-1357. Both arguments assert the
same 10 sub claims with a concluding assertion of “cumulative
error.”
58a
• Ground 3 copies Jackson’s direct appeal brief
Proposition 4. 128
• Ground 4 copies Jackson’s direct appeal brief
Proposition 5. 129
• Ground 5 copies Jackson’s direct appeal brief
Proposition 6. 130
• Ground 11 copies Jackson’s direct appeal brief
Proposition 1. 131
• Ground 12 copies Jackson’s application to reopen
the first direct appeal. 132
• Ground 27 copies Jackson’s second direct appeal
brief Proposition 2. 133
128 Compare the text of habeas Ground 3, Doc. 65 Page ID 23421-
23422, with the text of Proposition 4, Jackson’s direct appeal
brief, Doc 34-14 Page ID 1358-1362. Both arguments assert the
same 4 sub claims with a concluding assertion of “cumulative
error.”
129 Compare the text of habeas Ground 4, Doc. 65 Page ID 23423,
with the text of Proposition 5, Jackson’s direct appeal brief, Doc
34-14 Page ID 1363-1368.
130 Compare the text of habeas Ground 5, Doc. 65 Page ID 23424,
with the text of Proposition 6, Jackson’s direct appeal brief, Doc
34-14 Page ID 1369-1373.
131 Compare the text of habeas Ground 11, Doc. 65, Page ID
23430-23431, with the text of Proposition 1, Jackson’s direct
appeal brief, Doc 34-14 Page ID 1328-1332.
132 Compare the text of habeas Ground 12, Doc. 65 Page ID 2343123439 with the text of the application to reopen the first direct
appeal, Doc 34-16 Page ID 1640-1653.
133 Compare the text of habeas Ground 27, Doc. 65 Page ID 2347723491, with the text of Proposition 2, Jackson’s second direct
appeal brief, Doc 48-7 Page ID 15382-15396.
59a
• Ground 31 copies Jackson’s second direct appeal
brief Proposition 6. 134
• Ground 32 copies Jackson’s second direct appeal
brief Proposition 7. 135
• Ground 36 copies Jackson’s application to reopen
the second direct appeal. 136
Repeating arguments presented to the state courts
is not necessarily a problem. Indeed, to satisfy the
exhaustion requirement explained above, petitioners
must present arguments to the federal courts that the
state courts have already had an opportunity to
consider below. 137
The problem is that Petitioner repeats his statecourt appellate arguments—sometimes nearly
verbatim—without identifying the ultimate outcome
of his state-court challenges. By repeating his
arguments without identifying the last relevant statecourt decisions, Petitioner essentially asks this Court
to conduct a de novo review.
“We cannot grant relief under AEDPA by
conducting our own independent inquiry into whether
the state court was correct as a de novo matter.” 138
134 Compare the text of habeas Ground 31, Doc. 65 Page ID 23499-
23501, with the text of Proposition 6, Jackson’s second direct
appeal brief, Doc 48-7 Page ID 15416-15419.
135 Compare the text of habeas Ground 32, Doc. 65 Page ID 2350123501, with the text of Proposition 7, Jackson’s second direct
appeal brief, Doc 48-7 Page ID 15420-15423.
136 Compare the text of habeas Ground 36, Doc. 65 Page ID 2350523506, with the text of the application to reopen the second direct
appeal, Doc 48-7 Page ID 15756-15765.
137 Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984).
138 Yarborough v. Alvarado, 541 U.S. 652, 665 (2004).
60a
“The question under AEDPA is not whether a federal
court believes the state court’s determination was
incorrect but whether that determination was
unreasonable—a substantially higher threshold.” 139
In answering this question, “a federal court must
‘review the last state court decision adjudicated on the
merits.’” 140
By repeating his state-court arguments and
ignoring the last reasoned state-court opinion,
Petitioner has defectively pleaded Grounds 1-5, 11-12,
27, 31-32, and 36. The Court declines to review
Petitioner’s state-court challenges de novo. The Court
also declines to identify the relevant state-court
adjudications of Petitioner’s challenges and conjure
arguments on Petitioner’s behalf for why these
adjudications violate clearly established federal law or
are based on unreasonable determinations of facts.
Accordingly, Grounds 1-5, 11-12, 27, 31-32, and 36
fail.
D. Ground 6 Improperly Challenges
Petitioner’s 2002 Sentencing that the
Ohio Supreme Court Vacated.
In Ground 6, Petitioner Jackson attacks the trial
court’s December 9, 2002 sentencing. 141 Jackson
argues that he “was deprived of the right to
individualized sentencing and his liberty interest in
the statutory sentencing scheme when the trial court
considered and weighed both alternatives under R.C.
139 Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
140 Williams, 792 F.3d at 612 (quoting Gagne v. Booker, 680 F.3d
493, 511-12 (6th Cir. 2012)).
141 Doc. 65 at 27.
61a
2929.04(A)(7) in violation of the Fifth, Eighth and
Fourteenth
Amendments
of
the
federal
Constitution.” 142
Ground 6 fails because the Ohio Supreme Court
vacated the trial court’s December 9, 2002 sentencing.
Thus, Petitioner attacks a sentencing entry that is no
longer operative. 143
Even if Petitioner had attacked the proper
judgment, his Ground would still fail. Jackson’s
Grounds 6 takes issue with the weight the trial judge
assigned to various sentencing factors, 144 but there is
no clearly established federal law mandating how
factors must be weighed. Instead, clearly established
federal law says that state courts imposing the death
penalty “must consider all relevant mitigating
evidence and weigh it against the evidence of
aggravating circumstances[, but] [federal courts] do
not weigh the evidence for them.” 145
E. Grounds 7 and 8 Argue that Petitioner’s
Death Sentence Is Unconstitutional on
Proportionality Grounds, But Clearly
Established Federal Law Imposes No
Proportionality Requirement.
In Ground 7, Petitioner argues that his death
sentence was disproportional relative to other Ohio
142 Id.
143 A § 2254 petitioner “seeks invalidation . . . of the judgment
authorizing [his] confinement.” Wilkinson v. Dotson, 544 U.S. 74,
83 (2005). Petitioner Jackson’s Ground 6 challenges a judgment
that is not authorizing his confinement.
144 Doc. 65 at 27.
145 Eddings, 455 U.S. at 117 (first alteration in the original).
62a
sentences. 146 With Ground 8, Petitioner argues that
Ohio’s proportionality-review process is flawed
because it fails to include death-eligible cases in which
a life sentence has been imposed. 147
Grounds 7 and 8 fail because the U.S. Constitution
does
not
require
any
assessment
of
“proportionality.” 148 Absent a showing that the Ohio
capital punishment system operates in an arbitrary
and capricious manner, Jackson “cannot prove a
constitutional violation by demonstrating that other
defendants who may be similarly situated did not
receive the death penalty.” 149
To the extent Ground 8 challenges Ohio’s
proportionality-review scheme directly, this argument
also fails. The Sixth Circuit has upheld the
constitutionality of the Ohio proportionality-review
scheme on numerous occasions. 150 In fact, the Sixth
Circuit has explicitly held that in “limiting
proportionality review to other cases already decided
by the reviewing court in which the death penalty has
been imposed, Ohio has properly acted within the
wide latitude it is allowed.” 151
146 Doc. 65 at 29.
147 Id. at 30.
148 Pulley v. Harris, 465 U.S. 37, 44-45 (1984).
149 McCleskey v. Kemp, 481 U.S. 279, 306-07 (1987); accord Getsy
v. Mitchell, 495 F.3d 295, 305-06 (6th Cir. 2007).
150 Leonard v. Warden, Ohio State Penitentiary, 846 F.3d 832, 854
(6th Cir. 2017) (collecting cases).
151 Buell v. Mitchell, 274 F.3d 337, 369 (6th Cir. 2001).
63a
F. Ground 9 and 10 Argue that Ohio’s
Capital Punishment Scheme Is
Unconstitutional, But Clearly Established
Federal Law Does Not Support this
Claim.
In Grounds 9 and 10, Petitioner argues that
“Ohio’s capital punishment scheme allows the death
penalty to be imposed in an arbitrary and
discriminatory manner in violation of [Furman v.
Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346
(1972)] and its progeny.” 152 Specifically, Petitioner
argues that Ohio’s scheme unconstitutionally gives
trial courts discretion to dismiss death-penalty
specifications when a defendant pleads guilty but not
when a defendant goes to trial. 153
Grounds 9 and 10 fail because the U.S. Supreme
Court has never held unconstitutional a state capitalpunishment scheme where a trial judge has discretion
to dismiss death penalty specifications only for
defendants who plead guilty.
In support of Grounds 9 and 10, Petitioner relies
on a Supreme Court Justice’s concurring opinion. This
concurring opinion was not endorsed by the other
justices, so its rationale is not clearly established
federal law. 154
152 Doc. 65 at 31--32.
153 Id. at 32.
154 ”‘Clearly established law,’ as the Supreme Court has reminded
us, ‘includes only the holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions.’” Frazier v. Jenkins, 770 F.3d 485,
495 (6th Cir. 2014) (quoting White v. Woodall, 572 U.S. 415, 419
(2014)).
64a
Petitioner
relies
on
Justice
Blackmun’s
155
concurrence in Lockett v. Ohio. As discussed above,
in Lockett, a plurality of the Supreme Court held
unconstitutional an Ohio death-penalty statute that
did not permit individualized consideration of
mitigating factors in capital cases. 156
In the concurrence, Justice Blackmun said that he
only partially joined the plurality and concurred “for
an additional reason not relied upon by the
plurality.” 157 This “additional reason” is the argument
that Petitioner now makes—that Ohio’s death penalty
scheme is unconstitutional because the scheme gives
trial courts discretion to dismiss death penalty
specifications when a defendant pleads guilty, but the
scheme does not give this discretion when a defendant
goes to trial. 158
Because the majority did not embrace Judge
Blackman’s concurrence’s reasoning, the reasoning is
not clearly established federal law. 159
G. Grounds 10 and 35 Argue that Ohio’s
Capital Punishment Scheme Is
Unconstitutional, But Clearly Established
Federal Law Does Not So Hold.
In Grounds 10 and 35, Petitioner argues that the
death penalty and Ohio’s capital punishment scheme
155 438 U.S. at 618 (J. Blackmun, concurring).
156 Lockett, 438 U.S. at 605-06 (plurality).
157 Id. at 613 (J. Blackmun, concurring).
158 Id. at 618 (J. Blackmun, concurring).
159 ”‘Clearly established law,’ as the Supreme Court has reminded
us, ‘includes only the holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions.’” Frazier, 770 F.3d at 495 (quoting
White, 572 U.S. at 419).
65a
violate international law. 160 Specifically, Petitioner
says that “[i]nternational law is part of our law,” and
he lists a series of about 10 “international law
documents.” 161
Petitioner fails to elaborate on any of these
allegedly binding international law documents. He
does not explain what the documents are, what they
do, why they are binding, or how they apply here. He
does not even allege that that the documents prohibit
the death penalty or Ohio’s capital punishment
scheme. For the sake of argument, the Court assumes
that the documents prohibit the death penalty.
Grounds 10 and 35 fail due to their
incomprehensibility
and
underdevelopment. 162
Additionally, the Grounds fail because the Supreme
Court has never held that international law forbids
the death penalty. 163 “There is no indication that
international law influences rulings under the federal
constitution regarding the death penalty.” 164
160 Doc. 65 at 32-33, 107.
161 Id. at 32.
162 Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (“[I]t is the habeas
applicant’s burden to show that the state court applied
Strickland to the facts of his case in an objectively unreasonable
manner.”).
163 Wright v. Van Patten, 552 U.S. 120, 126 (2008) (“Because our
cases give no clear answer to the question presented, let alone
one in Van Patten’s favor, ‘it cannot be said that the state court
unreasonabl[y] appli[ed] clearly established Federal law.’” [Carey
v.] Musladin, 549 U.S. [70] at 77 [(2006)] (quoting 28 U.S.C. §
2254(d)(1)). Under the explicit terms of § 2254(d)(1), therefore,
relief is unauthorized.”).
164 Brinkley v. Houk, 866 F. Supp. 2d 747, 840 (N.D. Ohio 2011),
amended in part, No. 4:06 CV 0110, 2012 WL 1537661 (N.D. Ohio
Apr. 30, 2012), and aff’d, 831 F.3d 356 (6th Cir. 2016).
66a
H. Ground 13 Argues that the Trial Court
Violated the Constitution When It Failed
to Allow Petitioner to Conduct
Postconviction Discovery, But Clearly
Established Law Does Not Provide a
Constitutional Right to Postconviction
Discovery.
With Ground 13, Petitioner argues that, in his
postconviction proceeding, the trial court violated the
Fifth, Sixth, Eighth, and Fourteenth Amendments of
the U.S. Constitution by failing to provide the
Petitioner with the opportunity to conduct
discovery. 165 Petitioner fails to identify any case, let
alone a Supreme Court case, that says that the
Constitution gives a right to postconviction discovery.
Ground 13 fails because there is no federal
constitutional right to postconviction discovery. 166
I. Grounds 14, 15, 17, and 18 Are
Procedurally Defaulted.
In Grounds 14, 15, 17, and 18, Petitioner
challenges alleged errors stemming from his
postconviction relief proceeding. With Ground 14,
Petitioner says he was denied adequate funding for
experts. 167 With Ground 15, Petitioner says the state
failed to disclose exculpatory evidence. 168 With
Ground 17, Petitioner says the trial court improperly
165 Doc. 65 at 42-43.
v. Ritchie, 480 U.S. 39, 59-60 (1987) (citing
Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (“There is no
general constitutional right to discovery in a criminal case, and
Brady did not create one”)).
167 Doc. 65 at 44-45.
168 Id. at 45-46.
166 Pennsylvania
67a
employed res judicata. 169 With Ground 18, Petitioner
rehashes a series of his postconviction arguments. 170
In his answer, the Warden argues that Petitioner
procedurally defaulted Grounds 14, 15, 17, and 18
because the state courts denied the corresponding
postconviction claims for untimely presentation. 171
In his traverse, Petitioner fails to rebut the
Government’s
procedural
default
argument.
Petitioner says only the following: “The Petitioner
maintains that all issues have been properly
preserved for this Court’s review.” 172
The Warden is correct; Grounds 14, 15, 17, and 18
are procedurally defaulted. Grounds 14, 15, 17, and 18
stem from Petitioner’s second postconviction relief
petition. 173 Petitioner filed this petition after his 2012
resentencing. 174 The petition raised 19 grounds—18 of
which attacked Petitioner’s 2002 conviction, rather
than his limited 2012 resentencing. 175
A state trial court rejected these 18 claims as
untimely:
Defendant/Petitioner Jackson filed his postconviction relief petition on June 28, 2013. First,
the Court finds Jackson’s petition is untimely
pursuant to R.C. 2953.21(A)(2). Further, the Court
finds Jackson’s petition does not fall within the
169 Id. at 48-51.
170 Id. at 51-62.
171 Id. at 67.
172 Doc. 73 at 19.
173 See Doc. 48-8 at 32-64.
174 Id.
175 Id.
68a
exception to the one-hundred-eighty day rule as set
forth in R.C. 2953.23(A)(1)(a)&(b) & (A)(2). Despite
the re-sentencing in this matter which took place
on August 14, 2012, the time period does not toll
again for post-conviction relief. “Ohio case law
indicates that the time limit for a postconviction
relief petition runs from the original appeal of the
conviction, and that a resentencing hearing does
not restart the clock for postconviction relief
purposes as to any claims attacking the underlying
conviction.” State v. Piesciuk, 12th Dist. No.
CA2009-10-251, 2010-Ohio-3136, ¶ 12 (internal
citations omitted). 176
A state appeals court upheld the trial court’s denial,
and the Ohio Supreme Court declined to accept
jurisdiction. 177
In view of this state-court rejection on timeliness
grounds, Petitioner procedurally defaulted Grounds
14, 15, 17, and 18 when (1) he failed to comply with to
R.C. 2953.21(A)(2), and (2) the state court enforced
that rule and declined to reach the merits of
Petitioner’s claims. 178
The Petitioner does not demonstrate cause or
prejudice for the procedural default of these grounds
for relief and does not present a viable “actual
innocence” claim. 179 Grounds 14, 15, 17, and 18 are
procedurally defaulted.
176 Doc. 48-15 at 51.
177 Id. at 126.
178 Maupin, 785 F.2d at 138.
179 Lundgren, 440 F.3d at 764 (citing Murray, 477 U.S. at 496).
69a
J. Ground 16 Argues that a Trial Judge
Erred by Interjecting Opinions and
Personal Knowledge into Factual
Findings, But Petitioner Waived this
Ground Because It Is Conclusory and
Undeveloped.
In Ground 16, Petitioner argues that, in his
postconviction proceeding, a trial judge violated
Petitioner’s constitutional rights when the judge
“relied upon his personal knowledge to make findings
of facts.” 180
Petitioner describes several instances in which the
trial judge allegedly improperly injected his opinion
and personal knowledge into the court’s factual
findings. For example, Petitioner says that, for one
postconviction claim, Petitioner argued that his
counsel had failed to adequately prepare for
interviewing mitigation witnesses, such as family and
friends. 181 In rejecting this claim, the judge allegedly
opined that preparation for such interviews should not
take too long. 182 Petitioner says that this opinion
interjection, and others like it, were inappropriate.
Ground 16 fails. Petitioner fails to specifically
identify the postconviction decision that he
challenges. Despite the thousands of pages in the
record, Petitioner provides no useful record citations
for his factual allegations. 183 But even if he had
180 Doc. 65 at 46.
181 Id. at 47.
182 Id.
183 Petitioner
provides two record citation: “(p.25, findings of
facts, conclusions of law)” and “(P. 26).” Id. But Petitioner fails to
70a
provided such a citation, Petitioner fails to identify
any case, let alone a Supreme Court case, that says
that the Constitution prohibits the trial judge’s
alleged interjections.
“[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed
argumentation, are deemed waived. It is not sufficient
for a party to mention a possible argument in the most
skeletal way, leaving the court to . . . put flesh on its
bones.” 184
K. Grounds 19, 20, 22, 25, 26, 28, and 32
Generally Argue that the Trial Judge Was
Unconstitutionally Biased—Primarily
Due to His Reliance on a Prosecutor to
Draft the Death Sentence Opinion—But
the Grounds are Defectively Pleaded.
Grounds 19, 20, 22, 25, 26, 28, and 32 generally
argue that Jackson’s trial judge, Judge Stuard, was
unconstitutionally biased. The Grounds rely on
several bases but focus on the trial judge’s reliance on
a prosecutor to draft the death-sentence opinion.
Grounds 19, 20, 22, 25, 26, and 28 share the same
deficiencies as the rest of Jackson’s petition. Namely,
the Grounds uniformly (1) fail to challenge the
appropriate state-court decision, (2) consist of
conclusory, sometimes incoherent argument, and (3)
rely on arguments copied, sometimes verbatim, from
identify where these pincites come from or where they are on the
Court’s docket.
184 McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997)
(citation omitted).
71a
state-court briefs. As described in subsection B, these
Grounds fail due to their defective pleading.
But even if Petitioner had stated his argument
properly, his Grounds would fail. Properly asserted,
Petitioner’s Grounds 19, 20, 22, 25, 26, 28 and 32
would argue that the Ohio Supreme Court’s
affirmance of the trial court’s 2012 resentencing (1)
was contrary to, or an unreasonable application of,
clearly established federal law and (2) was based upon
an unreasonable determination of the facts. The Court
will discuss why each argument fails in turn.
1. In Affirming of the Trial Court’s 2012
Resentencing, the Ohio Supreme Court’s
Rejection of Petitioner’s Judicial Bias
Arguments Did Not Violate Clearly
Established Federal Law.
Petitioner’s above-mentioned Grounds implicate
two reasons why the Ohio Supreme Court’s affirmance
of the trial court’s 2012 resentencing might have
violated clearly established federal law. First, the
Grounds suggest that Jackson’s 2012 resentencing
was tainted by Judge Stuard’s ex parte contacts with
the prosecutor. Second, the Grounds suggest that
Judge Stuard was unconstitutionally biased. Neither
argument is persuasive.
a) The U.S. Supreme Court Has Not
Held
that
Ex
Parte
JudgeProsecutor Communications Violate
a Defendant’s Constitutional Rights.
As a preliminary matter, the Court observes that
Petitioner has waived the ex parte contacts argument
72a
by failing to raise this argument in his final Ohio
Supreme Court appeal. 185
But even if the argument were properly before this
Court, the Ground would fail because there is no
clearly established federal law providing that judgeprosecutor ex parte communications always violate a
defendant’s federal constitutional rights. Petitioner
identifies no such case, and the Court knows of none.
The only U.S. Supreme Court case that involves ex
parte judicial communications— [*42] Rushen v.
Spain 186—concerned ex parte communications
between a judge and a juror. 187 There, the Supreme
Court held that an ex parte judicial communication
with a juror was not structural error requiring
reversal. 188 Instead, the Court held that such ex parte
contact was subject to harmless error analysis. 189
Relevant to the instant case, the Rushen Court
noted that the Government had “apparently conceded,
in both federal and state court, that the undisclosed ex
parte
communications
established
federal
190
constitutional error.”
The Court thus said they
“assume[d], without deciding, that respondent’s
185 Williams, 460 F.3d at 806 (citing O’Sullivan, 526 U.S. at 848);
see Baston, 282 F. Supp. 2d at 661 (“Issues not presented at each
and every level [of the state courts] cannot be considered in a
federal Habeas Corpus Petition.”); see also Moreland, 50 Ohio St.
3d at 62 (failure to present a claim to a state court of appeals
constituted a waiver).
186 464 U.S. 114 (1983) (per curiam).
187 Id. at 116.
188 Id. at 117-19.
189 Id.
190 Rushen, 464 U.S. at 118 n.2.
73a
constitutional rights to presence and counsel were
implicated” in such a case. 191
In light of this Supreme Court language, the
Supreme Court has not said whether juror-judge ex
parte communications—or any other ex parte
communications—violate a defendant’s constitutional
rights. Where Supreme Court cases “give no clear
answer to the question presented, let alone one in [the
defendant’s] favor, ‘it cannot be said that the state
court unreasonabl[y] appli[ed] clearly established
Federal law.’” 192 Accordingly, the ex parte contact
argument fails.
b) Petitioner’s Judicial Bias Claim Is
Based on Factual Circumstances
that the U.S. Supreme Court Has
NotRecognized
as
Posing
an
Unconstitutionally High Risk of
Bias.
Petitioner argues that Judge Stuard was
unconstitutionally biased. Petitioner raises various
factual bases underlying his judicial bias claim: (1)
Judge Stuard relied upon the prosecution to draft the
initial sentencing opinion, and the 2012 revised
sentencing opinion remained almost identical to the
initial opinion; (2) Judge Stuard delayed ruling on
several of Petitioner’s motions; 193 (3) Judge Stuard
191 Id.
192 Van Patten, 552 U.S. at 126 (quoting Musladin, 549 U.S. at
77).
193 To
the extent Petitioner refers to Judge Stuard’s delay in
ruling on Jackson’s motion for a new trial until after a
mandamus action was filed against him, this claim is
74a
denied Jackson’s motion for a new sentencing hearing
after stating in an affidavit that he was prepared to
grant the motion; and (4) the 2012 resentencing
opinion did not discuss Petitioner’s 2012 allocution. 194
The U.S. Supreme Court has not clearly
established that any of Petitioner’s factual bases pose
an unconstitutionally high risk of judicial bias. The
clearly established federal law of judicial bias is:
“Due process requires a fair trial before a judge
without actual bias against the defendant or an
interest in the outcome of his particular case.” 195
Because of the difficulty in determining “whether a
judge harbors an actual, subjective bias,” the courts
look to “whether, as an objective matter, the average
judge in [that judge’s] position is likely to be neutral,
or whether there is an unconstitutional potential for
bias.” 196
The
Supreme
Court
has
recognized
constitutionally impermissible, objective indicia of
bias in limited circumstances. The Sixth Circuit has
construed the Supreme Court judicial bias case law
narrowly and has held that the Supreme Court
procedurally defaulted. The Ohio Supreme Court rejected this
argument as res judicata. Jackson III, 73 N.E.3d at 423.
194 Doc. 65 at 96; Doc. 73 at 40.
195 United States v. Armstrong, 517 U.S. 456, 468 (1996)
(emphasis added); see also In re Murchison, 349 U.S. 133, 136
(1955) (“A fair trial in a fair tribunal is a basic requirement of
due process. Fairness requires an absence of actual bias in the
trial of cases.”) (emphasis added)).
196 Williams v. Pennsylvania, 136 S. Ct. 1899, 1905 (2016)
(emphasis added) (internal quotations omitted); see also
Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 883 (2009).
75a
recognizes unconstitutional potential for bias in only
four types of circumstances 197:
(1) “when the judge has a financial interest in the
outcome of the case”; 198
(2) “when the judge is trying a defendant for
certain criminal contempts”; 199
(3) “when a person with a personal stake in a
particular
case
had
a
significant
and
disproportionate influence in placing the judge on
the case by raising funds or directing the judge’s
election campaign when the case was pending or
imminent”; 200 and
(4) “where a judge has had an earlier significant,
personal involvement as a prosecutor in a critical
decision in the defendant’s case.” 201
The Sixth Circuit characterizes these four
situations as “extreme” and instructs that the judicial
bias precedents must be framed “narrowly.” 202
Petitioner’s allegations, though troubling, do not
fall within the four recognized categories of
constitutionally impermissible, objective indicia of
bias. Therefore, the Court cannot conclude that the
Ohio Supreme Court’s rejection of Petitioner’s judicial
bias claims was contrary to or an unreasonable
application of clearly established federal law.
197 Johnson, 946 F.3d at 918 n.3.
198 Caperton, 556 U.S.at 890 (Roberts, C.J., dissenting).
199 Id. (Roberts, C.J., dissenting).
200 Id. at 884 (majority opinion).
201 Williams, 136 S. Ct. at 1910.
202 Williams, 136 S. Ct. at 1910.
76a
2. The Ohio Supreme Court’s Affirmance of
Jackson’s 2012 Resentencing Was Not
Based upon an Unreasonable
Determination of the Facts in Light of the
Evidence Presented in the State-Court
Proceeding.
Having established the Ohio Supreme Court’s
rejection of Petitioner’s judicial bias claims was not
contrary to or an unreasonable application of clearly
established federal law, the Court now turns to the
second AEDPA argument that Petitioner could have
made. Properly asserted, Petitioner’s Grounds 19, 20,
22, 25, 26, 28, and 32 would argue that the Ohio
Supreme Court’s finding that Judge Stuard’s
continued participation in the 2012 resentencing
presented an unconstitutional risk of bias given the
evidence presented.
The Ohio Supreme Court affirmance found that
Jackson had not shown that Judge Stuard harbored
an actual bias against him during the 2012
resentencing: “Despite his bias claims, Jackson fails to
show that Judge Stuard displayed ‘a hostile feeling or
spirit of ill will’ toward him.” 203 The Ohio Supreme
Court rejected each of Jackson’s actual bias
arguments, stating that (1) “Judge Stuard’s failure to
provide the relief that Jackson believes was
warranted does not establish actual bias;” 204 (2)
“Judge Stuard’s rulings in Jackson’s case [such as his
rejection of new mitigation evidence at the
resentencing hearing] were not inconsistent with the
203 Jackson III, 73 N.E.3d at 424 (quoting State ex rel. Pratt v.
Weygandt, 132 N.E.2d 191, 192 (Ohio 1956)).
204 Id.
77a
court of appeals’ directive and did not display bias;” 205
and (3) Judge Stuard’s failure to consider Jackson’s
allocution “does not prove that Judge Stuard harbored
a hostile feeling or a spirit of ill will against Jackson
or his attorneys during the proceedings.” 206
Whether an individual harbors actual bias is a
question of fact. 207 State-court findings of fact are
“presumed to be correct.” 208 The petitioner can rebut
that presumption, but only upon a showing of error by
clear and convincing evidence. 209 And a habeas court
will not overturn a state-court adjudication unless it
“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.” 210
“[A] state-court factual determination is not
unreasonable merely because the federal habeas court
would have reached a different conclusion in the first
instance.” 211
Here, Jackson, who merely repeats his state-court
arguments, offers no clear and convincing evidence
why the state-court finding that Judge Stuard was not
actually biased is incorrect. Without such argument or
evidence, the Court cannot now find that Ohio
Supreme Court’s rejection of the bias argument
205 Jackson III, 73 N.E.3d at 425.
206 Id.
207 Patton v. Yount, 467
U.S. 1025, 1036-38, 1037 n. 12 (1984)
(trial court’s determination of juror bias during voir dire is
question of fact); U.S. v. Powell, 226 F.3d 1181, 1188 (10th Cir.
2000) (stating that actual bias is a question of fact).
208 28 U.S.C. § 2254(e)(1).
209 Id.
210 28 U.S.C. § 2254(d)(2).
211 Wood v. Allen, 558 U.S. 290, 301 (2010).
78a
related to the trial court’s 2012 resentencing was
based upon an unreasonable determination of the
facts in light of the evidence presented in the statecourt proceeding.
In sum, even if properly asserted, Petitioner
Jackson’s judicial bias Grounds fail on the merits.
L. Ground 21 and 31 Argue that the Trial
Court Violated the Constitution When It
Failed to Refer to His Allocution in the
2012 Sentencing Opinion, But Clearly
Established Federal Law Does Not
Provide a Constitutional Right to
Allocution.
With Ground 21 and 31, Petitioner argues that, in
his 2012 resentencing, the “trial court denied the
[P]etitioner a meaningful opportunity for allocution
before imposing a death sentence in violation of the
Fifth, Sixth, Eighth and Fourteenth Amendments of
the federal Constitution.” 212 Petitioner says that he
was able to allocute, but the 2012 opinion did not
reference his allocution. 213
Ground 21 and 31 fail because the Supreme Court
has not recognized a constitutional right to
allocution, 214 let alone a right to have the allocution
referenced in sentencing opinions.
212 Doc. 65 at 65, 102-04.
213 See id.
214 United States v. Lawrence, 735 F.3d 385, 407 (6th Cir. 2013).
79a
M. Ground 23 Argues that Jackson’s
Execution Would Violate Atkins v.
Virginia, Because Jackson Has Had Low
IQ Scores, But Jackson’s Argument Is
Underdeveloped and He Failed to
Exhaust this Claim.
With Ground 23, Petitioner argues he is not
eligible for the death penalty under Atkins v.
Virginia 215 because of his low IQ. 216
In Atkins, the Supreme Court held that executions
of intellectually disabled criminals were “cruel and
unusual punishments” prohibited by Eighth
Amendment. 217 The Supreme Court left “to the
[s]tate[s] the task of developing appropriate ways to
enforce the constitutional restriction upon [their]
execution of sentences.” 218
In State v. Ford, the Ohio Supreme Court
mandated that trial courts consider the following
factors in determining death-penalty eligibility:
(1) intellectual-functioning deficits (indicated by
an IQ score approximately two standard deviations
below the mean—i.e., a score of roughly 70 or lower
when adjusted for the standard error of
measurement), (2) significant adaptive deficits in
any of the three adaptive-skill sets (conceptual,
215 536 U.S. 304 (2002).
216 Doc. 65 at 65-66.
536 U.S. at 320-21. This Court uses the term
“intellectual disability” in lieu of “mental retardation.”
218 Atkins, 536 U.S. at 317 (quoting Ford v. Wainwright, 477 U.S.
399, 405, 416-17 (1986)) (second and third alterations in
original).
217 Atkins,
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social, and practical), and (3) the onset of these
deficits while the defendant was a minor. 219
In Ground 23, Jackson says, without any citation,
that he had IQ test scores of 70 and 72 in high school
and has the mind of an 11-year-old child. 220 He says
that he therefore cannot be executed. 221 Jackson
acknowledges that he did not raise this claim below. 222
Ground 23 fails for at least two reasons. First,
Jackson failed to exhaust his state-court remedies by
not raising his Atkins claim until federal habeas
Second,
Jackson’s
argument
is
review. 223
underdeveloped—as evidenced by his failure to offer
any citation or support—and he therefore fails to meet
his burden. 224
Moreover, the Court observes that Jackson’s own
defense psychologist determined his IQ was 84. 225
219 State v. Ford, 140 N.E.3d 616, 655 (2019).
220 Doc. 65 at 65-66.
221 Id. at 66.
222 Id.
223 Williams, 460 F.3d at 806.
224 Visciotti, 537 U.S. at 25 (“[I]t is the habeas applicant’s burden
to show that the state court applied Strickland to the facts of his
case in an objectively unreasonable manner.”); McPherson, 125
F.3d at 995-96 (“[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived. It is not sufficient for a party to mention a
possible argument in the most skeletal way, leaving the court to
. . . put flesh on its bones.” (citation omitted)).
225 Jackson III, 73 N.E.3d at 429 (“Jackson asserts that during
his mitigation hearing, information was presented indicating
that he was a good student, had a positive upbringing, and had
average intellectual ability with an IQ score of 84.”); see also Doc.
47-16 Page ID 13007-13013 (defense psychologist Dr. McPherson
report).
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N. Ground 24 Argues that Petitioner’s Trial,
Appellate, and Postconviction Counsel
Were Ineffective for Failing to Raise the
Atkins claim in State Court, But
Petitioner Waived this Ground Because It
Is Conclusory and Undeveloped.
Ground 24 states, in its entirety, the following: “A
free standing Atkins claim has not yet been raised in
the Ohio courts in spite of substantial credible
evidence including IQ scores of 70 and 72 in high
school. Petitioner is entitled to the effective assistance
of counsel. Strickland, Evitts, Martinez.” 226
Ground 24 fails because it is not a fully developed
argument. 227
O. Ground 29 Argues that Petitioner’s
Constitutional Rights Were Violated
When He Had Only One Attorney at His
2012 Resentencing Hearing, But Clearly
Established Federal Law Does Not
Mandate Representation by Two
Attorneys at Such a Hearing.
Ground 29 says that an Ohio statue provides that
any defendant who “faces the death penalty” must be
226 Doc. 65 at 66.
227 Visciotti, 537 U.S. at 25 (“[I]t is the habeas applicant’s burden
to show that the state court applied Strickland to the facts of his
case in an objectively unreasonable manner.”); McPherson, 125
F.3d at 995-96 (“[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived. It is not sufficient for a party to mention a
possible argument in the most skeletal way, leaving the court to
. . . put flesh on its bones.” (citation omitted)).
82a
appointed two attorneys. 228 Petitioner says that, at his
2012 resentencing, only one attorney represented
him. 229 He argues that the trial court therefore
violated the Ohio statute. 230 Jackson argues, without
elaboration, that this circumstance also violated his
federal constitutional rights. 231
Ground 29 fails because “federal habeas corpus
relief does not lie for errors of state law.” 232 “[I]t is only
noncompliance with federal law that renders a State’s
criminal judgments susceptible to collateral attack in
the federal courts.” 233
Moreover, Ground 29 fails because the U.S.
Supreme Court has never held that the U.S.
Constitution mandates that defendants have two
attorneys at a sentencing hearing.
P. Ground 33 Is a Mere Rewrite of
Petitioner’s State-Court Brief and Is Not
Cognizable on Federal Habeas Review.
In Ground 33, Petitioner copies verbatim two
paragraphs from a multi-page argument Jackson
presented to the Ohio Supreme Court. 234 In the
original argument, Jackson asked the Ohio Supreme
Court to merge certain charges and specifications and
228 Doc. 65 at 98.
229 Id. at 97-99.
230 Id.
231 Id. at 99.
232 Lewis v. Jeffers, 497 U.S. 764, 780 (1990); accord Cooey v.
Coyle, 289 F.3d 882, 901-02 (6th Cir. 2002) (holding that claim
that “Ohio court did not apply Ohio law correctly . . . is not
justiciable in federal habeas proceedings”).
233 Wilson v. Corcoran, 562 U.S. 1, 16 (2010) (per curiam).
234 Cf. Doc. 65 at 105-06 with Doc. 48-7 Page ID 15423-15429.
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then “remand” the case “to permit the prosecution to
elect as to which specification and underlying felony it
wants to go forward with.” 235 Reproduced here, out of
context, Jackson’s two paragraphs make no sense. The
Court reviewing this federal habeas petition is not
sitting as a supervisory court over a lower state court
and cannot afford the relief Petitioner requests.
Ground 33 fails because it is not a cognizable
federal habeas claim. 236
Q. Grounds 34 and 37 Argue that
Cumulative Errors in Jackson’s
Prosecution Require His Conviction to Be
Reversed and His Death Penalty to Be
Vacated, But Clearly Established Federal
Law Does Not Recognize a Cumulative
Error Claim.
In Grounds 34 and 37, Petitioner argues that the
cumulative effect of the errors at his trial and during
his appeals has deprived him of his constitutional
rights. 237 Petitioner also argues that, due to the errors’
cumulative effect, his “death sentence is based on a
constitutionally flawed process.” 238
Grounds 34 and 37 fail. “[T]he law of [the Sixth]
Circuit is that cumulative error claims are not
235 Doc. 48-7 Page ID 15429.
236 Visciotti, 537 U.S. at 25 (“[I]t is the habeas applicant’s burden
to show that the state court applied Strickland to the facts of his
case in an objectively unreasonable manner.”).
237 Doc. 65 at 106, 109, 121-22.
238 Id. at 106.
84a
cognizable on habeas because the Supreme Court has
not spoken on this issue.” 239
IV. Conclusion
The Court GRANTS Jackson’s petition. The Court
ISSUES a writ of habeas corpus under 28 U.S.C.
§2254.
IT IS SO ORDERED.
s/ James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
Dated: February 23, 2021
239 Williams, 460 F.3d at 816 (citing Moore v. Parker, 425 F.3d
250, 256 (6th Cir. 2005)).
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APPENDIX C
Nos. 21-3207/3280
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NATHANIEL JACKSON,
Petitioner-Appellee/Cross-Appellant,
v.
BILL COOL, WARDEN,
Respondent-Appellant/Cross-Appellee.
ORDER
Before: MOORE, COLE, and GRIFFIN,
Circuit Judges.
The court received a petition for rehearing en banc.
The original panel has reviewed the petition for
rehearing and concludes that the issues raised in the
petition were fully considered upon the original
submission and decision of the cases. The petition
then was circulated to the full court. * No judge has
requested a vote on the suggestion for rehearing en
banc.
Therefore, the petition is denied.
ENTERED BY ORDER OF THE COURT
/s/ KELLY L. STEPHENS
Kelly L. Stephens, Clerk
* Judge Murphy recused himself from participation in this ruling.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.