Jay D. Scott v. BETTY MITCHELL, Warden

52 Scott v. Mitchell Nos. 98-4272/4321
III. CONCLUSION
Because we conclude that there was no manifest
miscarriage of justice in Scott’s trial or sentencing that would
authorize us to issue a federal writ of habeas corpus
countermanding the judgment of the Ohio courts, we
REVERSE the order of the district court granting Scott’s
petition for a writ of habeas corpus; we AFFIRM the
judgment of the district court in all other respects.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0138P (6th Cir.)
File Name: 00a0138p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
J AY D. S COTT ,
Petitioner-Appellee/
Cross-Appellant,
v.
BETTY M ITCHELL, Warden,
Respondent-Appellant/
Cross-Appellee.
;>

1
Nos. 98-4272/4321
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 95-02037—Kathleen McDonald O’Malley, District
Judge.
Argued: January 24, 2000
Decided and Filed: April 19, 2000
Before: BOGGS, SILER, and BATCHELDER, Circuit
Judges.
_________________
COUNSEL
ARGUED: Stuart A. Cole, OFFICE OF THE ATTORNEY
GENERAL OF OHIO, CAPITAL CRIMES SECTION,
Columbus, Ohio, for Appellant. Timothy F. Sweeney, LAW

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2 Scott v. Mitchell Nos. 98-4272/4321
OFFICE OF TIMOTHY FARRELL SWEENEY, Cleveland,
Ohio, for Appellee. ON BRIEF: Stuart A. Cole, Jonathan R.
Fulkerson, OFFICE OF THE ATTORNEY GENERAL OF
OHIO, CAPITAL CRIMES SECTION, Columbus, Ohio, for
Appellant. Timothy F. Sweeney, LAW OFFICE OF
TIMOTHY FARRELL SWEENEY, Cleveland, Ohio, John S.
Pyle, GOLD, SCHWARTZ & CO., Cleveland, Ohio, for
Appellee.
_________________
OPINION
_________________
ALICE M. BATCHELDER, Circuit Judge. Respondent
Betty Mitchell (“the Warden”) appeals the district court’s
grant of a writ of habeas corpus under 28 U.S.C. § 2254 to
Ohio death row inmate Jay D. Scott. The district court
granted the writ on the basis of only one of the grounds raised
in his petition, finding all of the other grounds either defaulted
or meritless. Scott cross-appeals the court’s rejection of his
remaining arguments. After having the benefit of lengthy oral
argument, and having given the careful consideration to the
record and the parties’ arguments that the gravity of the
question before us demands, we are convinced that the district
court erred in holding that the ground on which it granted the
writ was not procedurally barred. Because we conclude that
the district court correctly held that the other grounds raised
by Scott’s petition were either defaulted or without merit, we
will reverse the issuance of the writ.
I. FACTUAL AND PROCEDURAL B ACKGROUND
A. Factual History
The facts of the underlying crime are not in significant
dispute, except to the extent that Scott challenges the
sufficiency of the evidence presented at trial to prove these
facts. The following summary is largely taken from the
district court’s Order, which in turn quoted it from the
opinion of the Ohio Supreme Court.
Nos. 98-4272/4321 Scott v. Mitchell 51
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
This familiar standard [views evidence] in the light most
favorable to the prosecution[, and] thus impinges upon jury
discretion only to the extent necessary to guarantee the
fundamental protection of due process of law.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (internal quotations,
citations and footnotes omitted). This claim is not
procedurally defaulted.
Scott argues that the evidence adduced at trial was
insufficient to prove that he committed or attempted to
commit aggravated robbery. If true, this would invalidate his
death sentence, as the only specification that made him death-
eligible was “caus[ing] the death of another . . . while
committing or attempting to commit, or while fleeing
immediately after committing or attempting to commit
Aggravated Robbery.” To support his argument, Scott notes
that nothing was taken from the V&E Delicatessen, that he
entered the store with money, and that O’Neal testified that
there had been no discussion of robbery before arriving at the
store.
We agree with the district court and Ohio Supreme Court
that ample evidence was presented to allow a rational jury to
find Scott guilty of the specification:
[U]nder R.C. § 2911.01, [...] an attempt to commit armed
theft constitutes aggravated robbery. [...] This felonious
objective is evidenced by the secretive manner in which
Jones parked his car around the corner after dropping off
[Scott] and O’Neal. Of further relevance is the fact that
[Scott] was aware of a pending robbery charge against
him upon his apprehension.
State v. Scott, 497 N.E.2d at 64. There is no ground here for
habeas relief.

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50 Scott v. Mitchell Nos. 98-4272/4321
10In Ohio, the “principal offender” is the one who actually caused the
death. See Byrd, No. 96-3209, slip op. at 5 n.2 (citing State v. Penix, 513
N.E.2d 744, 746 (Ohio 1987)).
constitutionally required narrowing process, and so the fact
that the aggravating circumstance duplicated one of the
elements of the crime does not make this sentence
constitutionally infirm.” Id. at 246. Similarly, the Ohio
Legislature “narrow[ed] the class of felony murders subject to
the death penalty by excluding those who commit [murder in
the course of an] arson, robbery, burglary or escape, unless
they are charged with a different aggravating circumstance.”
State v. Buell, 489 N.E.2d 795, 807 (Ohio 1986); see also
Ohio Rev. Code § 2929.04(A) (1996) (“Imposition of the
death penalty for aggravated murder is precluded, unless one
or more of the following is specified in the indictment . . . and
proved beyond a reasonable doubt:”). Scott fell within the
narrowed category of death-eligible felony murderers because
he committed or attempted to commit aggravated robbery.
See Ohio Rev. Code § 2929.04(A)(7) (1996).
Moreover, even if an overlap were problematic, there is
none here. Pursuant to Ohio Rev. Code § 2929.04(A)(7),
Scott’s indictment for aggravated murder added that “either
[he] was the principal offender in the commission of the
Aggravated Murder or, if not the principal offender,
committed the Aggravated Murder with prior calculation or
design.” The Ohio Supreme Court has held that this language
is distinct from the definition of felony murder, because in
addition to causing a death during a felony, the defendant
must also be proved to have caused the death personally and
directly10 or in a premeditated manner. See State v. Jenkins,
473 N.E.2d 264, 280 n.17 (Ohio 1984); State v. Barnes, 495
N.E.2d 922, 925 (Ohio 1986) (per curiam).
F. Sufficiency of the Evidence Used to Convict Scott
An habeas court reviews claims that the evidence at trial
was insufficient for a conviction by asking “whether, after
viewing the evidence in the light most favorable to the
Nos. 98-4272/4321 Scott v. Mitchell 3
On May 6, 1983, Vinnie Prince, owner and operator of the
V&E Delicatessen at East 86th Street and Quincy Avenue in
Cleveland, was shot and killed during an attempted robbery
of her shop. An autopsy revealed that Prince died from a
gunshot wound to the chest.
Octavia Hickman, who lived near the delicatessen, testified
that on the day of the shooting, while walking back to her
home after shopping at the nearby Sav-More Market, she
noticed a greenish-blue Cadillac without a rear license plate
pull up across from her house. She observed two black males
inside the car, one behind the wheel and the other in the back
seat. She later observed another black male come over a
nearby fence and dive through the open window of the
Cadillac. The car then drove away.
Another witness near the deli when the incident occurred
was Clifford Roberson. Roberson was heading toward the
store with a female companion when they heard a shot fired
inside the store. He immediately grabbed his friend and
pushed her up against the wall of the building, in an effort to
protect her. When he heard a screen door slam, he turned
around and saw two black males running from the store.
Roberson testified that the taller man was about 5’11” tall,
wearing “some type of rag around his head,” and holding a
long-barreled pistol. Upon opening the store’s door,
Roberson observed Prince lying “almost to the door as if she
was trying to chase them or something.” Roberson flagged
down a nearby police car and informed the officers of the
situation.
Solomon Smith, another witness to this incident, testified
that he saw “two men run across the street, and run down to
the corner of Mr. Cooper’s house, and turn through the alley,
and jump the fence.” He described the assailants as two black
males, one 5’10 ½” tall, the other “a little shorter.” Smith did
not observe anything in the fleeing men’s hands.
Sometime after this incident, Detective Robert Moore
received a telephone call from Ricky Tramble, and arranged
to meet with him. Tramble testified that, at this meeting, he

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4 Scott v. Mitchell Nos. 98-4272/4321
informed Officer Moore that on the day Prince was killed,
Tramble was with Edward O’Neal, Michael Streeter, Danny
Jones, and Scott; they were all at O’Neal’s girlfriend’s house
“to get high.” Tramble said he overheard Scott say, “Well I
did what I had to do. She shouldn’t have made me move like
that. F__k it. It’s over with.” Tramble testified that, later
that day, Scott told Tramble, “[t]hese niggers don’t know
what they’re doing. [T]hey get to crying about this and crying
about that. This is what I do.” Scott professed to Tramble
that he was “a stick-up man.” Tramble related further that the
next day O’Neal informed him that Scott and O’Neal were
involved in the V&E Deli incident, including the shooting of
Prince.
On the basis of this information, the police apprehended
and arrested Danny Jones and confiscated Jones’s automobile,
an older model, blue, turquoise-bottom Cadillac with a white
top, bearing a thirty-day tag but no license plate. Jones signed
a typewritten statement stating that he and O’Neal, Streeter,
and Scott had been driving around looking for a place to rob.
After selecting the V&E Deli as a target, Scott requested
“front money” in order to fabricate a purchase, and asked for
someone to go into the store with him. O’Neal finally agreed
to accompany Scott into the store. At this time, Jones
observed that Scott was armed with a .38-caliber pistol that
looked like a police revolver, and O’Neal was carrying a .25-
caliber automatic handgun. Jones pulled his car around the
corner from the V&E Deli, and O’Neal and Scott got out of
the car while Jones and Streeter waited for them. Shortly
thereafter, Scott and O’Neal came running through a yard and
climbed over a fence. O’Neal ran to the car and got in and
Scott dived into the car through a window. Jones was told to
“pull off.” Later, Jones asked O’Neal what happened and
O’Neal replied “that J.D. [Scott] shot her [...] cause she went
for her [gun].” When Jones asked Scott if he had killed her,
Scott replied, “naw she was still standing up when we ran out
the door.” At trial, Jones repudiated the part of his
typewritten statement in which he acknowledged their intent
to rob the V&E Deli, contending instead that Scott and
O’Neal had gone into the store to get cold beer.
Nos. 98-4272/4321 Scott v. Mitchell 49
definition to not violate due process. We recently did the
same in Byrd, No. 96-3209, slip op. at 65-66. Scott provides
no reason to ignore this precedent.
E. Alleged Unconstitutionality of Ohio’s Death-Penalty
Scheme Facially and As Applied
Scott raised before the district court a number of reasons
why the death penalty in general and in Ohio is
unconstitutional. He focuses his argument on appeal only on
two: that the fact that felony murder is used both as an
element of the offense and a ground for capital sentencing
fails to narrow the class of persons eligible for the death
penalty, and that electrocution is cruel and unusual
punishment. The rest are incorporated by reference in a
footnote. The great majority of these incorporated issues, and
the electrocution issue, were mentioned and rejected
summarily in Byrd. See No. 96-3209, slip op. at 66-67. We
will do the same, for substantially the same reasons expressed
in the district court’s Order. Although Byrd also rejected the
claim that Ohio fails to narrow the class of death-eligible
convicts, it did not explicitly address Scott’s ground for this
argument. Hence, it merits brief discussion here.
The Warden has not argued that Scott’s argument on the
overlap of felony murder between the underlying crime and
aggravating circumstance is procedurally defaulted, and the
district court dismissed it on the merits. Even if Scott were
right that the same act was the basis of his conviction and
aggravating circumstance, this alone would not justify habeas
relief. See Lowenfield v. Phelps, 484 U.S. 231, 244-46
(1988). There, the Supreme Court instructed that aggravating
circumstances are not ends unto themselves, but simply one
means by which a state may perform the narrowing function.
See id. at 244. Lowenfield upheld the Texas death-penalty
scheme, in which the narrowing function was performed by
the legislature when it circumscribed the range of offenses
eligible for the death penalty. See id. at 245-46. “The fact
that the sentencing jury is also required to find the existence
of an aggravating circumstance in addition is no part of the

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48 Scott v. Mitchell Nos. 98-4272/4321
accomplice instruction that required the jury to look for
additional corroboration, just not in the language he proposed.
There is no error here, much less one justifying a writ.
2. Definition of Reasonable Doubt
The trial judge read Ohio’s statutory definition of
reasonable doubt to the jury, which included the phrase
“firmly convinced,” and added some concluding remarks that
essentially repeated the same language:
Now, the Legislature of Ohio has specifically
established the legal meaning of the term “reasonable
doubt,” and I will read that definition to you:
“Reasonable doubt is present when, the jurors, after they
have carefully considered and compared all evidence,
cannot say they are firmly convinced of the truth of the
charge. It is a doubt based upon reason and common
sense. Reasonable doubt is not mere possible doubt,
because everything relating to human affairs or
dependent upon moral evidence is open to some possible
or imaginary doubt.
“Proof beyond a reasonable doubt is proof of such
character that an ordinary person would be willing to rely
and act upon it in the most important of his affairs.”
All of the evidence should be examined carefully and
conscientiously by you, and, if after a full and impartial
consideration of all the evidence, you are firmly
convinced beyond a reasonable doubt of the truth of the
charge or charges, then the State has proved its case and
you must find the defendant guilty.
If you are not firmly convinced of the truth of the
charge, then the State has not proved its case and you
must find the defendant not guilty.
Scott claims that this definition unconstitutionally conflates
the reasonable doubt standard with the less demanding “clear
and convincing” standard.
The district court correctly relied on Thomas v. Arn, 704
F.2d 865, 867-69 (6th Cir. 1983), which held this precise
Nos. 98-4272/4321 Scott v. Mitchell 5
The police also apprehended O’Neal, who also gave them
a typewritten statement. O’Neal stated that he, Jones, Streeter
and Scott were driving around in Jones’s Cadillac. They
stopped in front of the V&E Deli because Scott told them he
wanted to get some bologna and crackers. O’Neal followed
Scott into the store. Scott asked for bologna and crackers and,
when the old woman minding the store turned to obtain them,
Scott pulled out a pistol. Scott told the woman to “freeze”
and when the woman began to “holler” and “yell,” Scott fired
a single shot at the woman, striking her. O’Neal related that
he was momentarily stunned by this occurrence and it was not
until Scott grabbed him and pulled him out of the store that he
began to run. They jumped the fence and ran to the car.
O’Neal stated that he did not see the old woman in the store
reach for a weapon.
At trial, O’Neal’s testimony differed somewhat from this
written statement in that he testified it was he—rather than
Scott—who ordered the bologna and crackers in the store.
O’Neal further testified that he was unarmed throughout this
ordeal and that it was Michael Streeter who had the .25-
caliber weapon in his possession while waiting in the car.
O’Neal confirmed that he had talked with Tramble about what
happened at the V&E Deli.
Barbara Campbell, a trace-evidence analyst with the
Cuyahoga County Coroner’s Office, testified that the results
of a “Walker Nitrate Test” revealed that the muzzle of the gun
which killed Prince was approximately 12 inches from her
body when it was fired. Campbell further testified that a trace
metal test conducted on the victim’s hands indicated that
Prince did not handle or fire a weapon prior to her death.
Detective David Hicks, however, testified that Prince had a
fully loaded .38-caliber revolver on her person when she was
found.
On May 17, 1983, the grand jury returned its indictments.
Scott was apprehended six months later in Philadelphia by
Detective James Svekric of the Cleveland Police Department.
During the trip back to Cleveland, Scott inquired who was

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6 Scott v. Mitchell Nos. 98-4272/4321
1O’Neal, Jones, and Streeter each pled guilty to robbery offenses and
received shock probation and/or suspended sentences.
2This section provides a death-penalty-qualifying specification if
The offense was committed while the offender was committing,
attempting to commit, or fleeing immediately after committing
or attempting to commit kidnapping, rape, aggravated arson,
aggravated robbery, or aggravated burglary, and either the
offender was the principal offender in the commission of the
aggravated murder or, if not the principal offender, committed
the aggravated murder with prior calculation and design.
Ohio Rev. Code § 2929.04(A)(7) (1996).
using his name in connection with a homicide and robbery.
Up to that point, the arresting officers had informed Scott
only that he was wanted in connection with a homicide; they
had made no mention that Scott was also charged with
aggravated robbery. Scott maintained that he had been in
Reading, Pennsylvania, when the incident occurred.
B. Procedural History
Scott and his three accomplices1 were indicted by the
Cuyahoga County Grand Jury on two counts: (1) aggravated
robbery in violation of Ohio Rev. Code § 2911.01, and (2)
aggravated murder in violation of Ohio Rev. Code § 2903.01.
The grand jury added two specifications to the murder count:
(1) a death-penalty specification for violation of Ohio Rev.
Code § 2929.04(A)(7),2 and (2) a firearm specification for
violating Ohio Rev. Code § 2941.141.
Scott pled not guilty, proceeded to trial, and was convicted.
The trial court then held a sentencing hearing as prescribed by
Ohio Rev. Code §§ 2929.022(A) and 2929.03, and the jury
recommended the death penalty. The trial judge adopted the
recommendation and sentenced Scott to death for his murder
conviction. Scott was also sentenced to 7-25 years of
imprisonment for his aggravated robbery conviction and 3
years of imprisonment for the firearm specification.
Nos. 98-4272/4321 Scott v. Mitchell 47
defense significant enough to be cognizable on post-
conviction review.
Nor did the court err in refusing Scott’s accomplice
instruction. In United States v. Carr, 5 F.3d 986 (6th Cir.
1993), an appellant challenged the trial court’s refusal to give
anything more than a general instruction on judging witness
credibility. In dismissing the argument, we said
The court's instruction adequately informed the jury
regarding the credibility of witness testimony, and so we
are not troubled simply because the court chose not to
explicitly highlight the credibility problems inhering in
accomplice testimony. The instructions alerted the jury
to the various considerations that it should take into
account in weighing testimony, and it had an ample basis
for rejecting the testimony of the accomplice witnesses if
it had chosen to do so. In short, because the instructions
given by the court substantially covered the same
material as the instruction requested by the defendant,
there was no reversible error.
Id. at 992. We have since followed Carr in not requiring
accomplice instructions as a general matter, a rule that is
significantly less favorable to defendants than the approaches
of some of our sister circuits. See, e.g., United States v. Hill,
627 F.2d 1052 (10th Cir.1980) (finding reversible plain error
when no accomplice instruction was given and no other
evidence corroborated the accomplice testimony); United
States v. Davis, 439 F.2d 1105 (9th Cir.1971) (same); Tillery
v. United States, 411 F.2d 644 (5th Cir.1969) (same); United
States v. McCabe, 720 F.2d 951, 956 (7th Cir. 1983) (holding
lack of accomplice instruction to be error when corroborating
evidence was insufficient “to overcome the inherent
unreliability of accomplice testimony”); United States v. Lee,
506 F.2d 111, 120 (D.C. Cir.1974) (holding failure to give
instruction harmless because accomplice's testimony was
"materially corroborated"); United States v. Williams, 463
F.2d 393, 396 (10th Cir.1972) ("considerable evidence"
corroborated the accomplice's testimony). Scott received an

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46 Scott v. Mitchell Nos. 98-4272/4321
an abnormal fear of imprisonment since he was already
incarcerated at the time. The Ohio Supreme Court also relied
on Howard in rejecting Scott’s appeal. See State v. Scott, 497
N.E.2d 55, 63 (Ohio 1986). We have never directly followed
or contradicted Howard, although we have acted consistently
with it by dismissing a claim of error for failure to produce
any evidence that the witnesses were addicted at trial. See
United States v. Freeman, Nos. 91-1011, 91-1012, 1991 WL
203088, at **3 (6th Cir. Oct. 4, 1991) (unpublished). Instead,
in an unpublished opinion, when an appellant challenged the
refusal to give a similar instruction for a witness who was an
addict-informer but not addicted at trial, we relied on our
authority governing addict-informer instructions. See United
States v. Anderson, Nos. 97-5352, 97-5382, 1998 WL
833701, at **4 (6th Cir. Nov. 20, 1998). "This court has long
recognized the importance of an addict-informant instruction
in appropriate cases." United States v. Brown, 946 F.2d 1191,
1195 (6th Cir.1991). However, there is no per se rule
requiring such instructions to be given in all cases involving
addict testimony; instead, "the need for such an instruction
depends on the circumstances of each case." Id. (internal
quotation omitted). The district court errs by failing to give
a requested instruction only when the requested instruction is
correct, not substantially covered by the actual jury charge,
and when not giving the instruction would substantially
impair defendant's defense. See United States v. Sassak, 881
F.2d 276, 279 (6th Cir.1989).
We agree with the district court, and adopt the reasoning of
Howard. It is certainly consistent with our handful of
unpublished decisions on the issue, none of which has been
receptive to requiring the addict instruction, and it is sensible;
there is no reason to believe that Tramble’s former drug use
impaired his testimony at trial. But Scott’s argument is
lacking even under our prior case law. The requested
instruction is correct, as it is remarkably similar to the Sixth
Circuit pattern instruction for addict-informers. But the trial
court’s instruction to consider the witnesses’ motives should
have been sufficient, and there was no impairment to Scott’s
Nos. 98-4272/4321 Scott v. Mitchell 7
Scott timely appealed his convictions and death sentence.
Both were affirmed by the Ohio Court of Appeals and the
Ohio Supreme Court. The United States Supreme Court
denied Scott a writ of certiorari, though Justices Marshall and
Brennan filed a dissenting opinion. See Scott v. Ohio, 480
U.S. 923, 923 (1987).
Scott then secured a stay of execution and petitioned the
Cuyahoga County Common Pleas Court for post-conviction
relief pursuant to Ohio Rev. Code § 2953.21. The Warden
successfully moved to dismiss, but the Ohio Court of Appeals
reversed the dismissal in part and remanded for a hearing on
the issue of whether Scott was denied effective assistance of
counsel at the mitigation phase of the sentencing hearing.
Both parties unsuccessfully appealed this ruling to the Ohio
Supreme Court, and the case was returned to the common
pleas court for the hearing. At the conclusion of the hearing,
at which Scott’s family members and trial counsel testified,
the trial court issued findings of fact and conclusions of law
to the effect that Scott had not been denied effective
assistance in the mitigation phase of his sentencing.
Specifically, the court found that trial counsel’s testimony
was more credible than that of Scott’s family members, that
Scott and his family were primarily to blame for their failure
to provide mitigating evidence, and that the “residual doubt”
strategy pursued in the mitigation hearing was in Scott’s best
interest. Scott unsuccessfully appealed, and was denied a writ
of certiorari on the ineffective assistance of counsel issue by
the United States Supreme Court.
In addition to these post-conviction proceedings, Scott also
pursued post-conviction relief pursuant to State v. Murnahan,
584 N.E.2d 1204, 1209 (Ohio 1992), which allows appellants
claiming denial of effective assistance of appellate counsel to
seek relief by applying for delayed reconsideration in the
Court of Appeals, or by filing a delayed appeal directly with
the Ohio Supreme Court. Scott first filed a motion to reopen
his appeal in the Ohio Court of Appeals, which was denied.
The Ohio Supreme Court affirmed, denied rehearing, and the
United States Supreme Court denied certiorari. Scott also

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8 Scott v. Mitchell Nos. 98-4272/4321
3In its Order, the district court felt “compelled to mention” that
Cleveland attorneys Timothy F. Sweeney and John S. Pyle, serving
pursuant to the Criminal Justice Act, have done an exceptional job
defending Scott. They have also performed commendably on appeal.
filed a delayed direct appeal with the Ohio Supreme Court,
which was refused.
The Ohio Supreme Court, on the Warden’s motion, set
October 25, 1995, as the date for Scott’s execution. On
September 20, 1995, Scott filed a notice of intent to file a
habeas petition with the federal district court. The district
court granted an indefinite stay of execution while Scott
pursued his federal habeas relief, and appointed Scott’s
current counsel.
Scott’s petition presented twenty-one grounds for relief,
divided into three categories: (1) constitutional violations
tainting the entire course of the state court proceedings
(Grounds 1-6); (2) constitutional violations prejudicing Scott
during specific stages of the proceedings (Grounds 7-19); and
(3) constitutional violations relating generally to the Ohio
death-penalty scheme (Grounds 20-21). Scott requested leave
to conduct discovery and an evidentiary hearing, but both
were denied for failure to show good cause. The court also
made clear that because Scott filed his petition before the
effective date of the Anti-Terrorism and Effective Death
Penalty Act of 1996 (AEDPA), it would not apply the
demanding standards of review mandated by that statute.
The court heard lengthy oral arguments from both parties
and received post-hearing briefs on certain issues. On
September 30, 1998, the court issued its opinion denying
habeas relief on all grounds except one: Ground 18, which
challenged the trial court’s penalty-phase jury instruction
regarding unanimity of the sentencing recommendation.3
Scott was granted a certificate of appealability to cross-appeal
the denial of the remaining grounds, and both sides filed
timely notices of appeal.
Nos. 98-4272/4321 Scott v. Mitchell 45
9Scott cites an Eighth Circuit case for the proposition that Brecht’s
harmless-error test does not apply if the state courts did not conduct a
Chapman harmless error test, but Gilliam squarely rejects this contention.
substantial and injurious effect or influence on the verdict,
and are subject to harmless-error analysis.9 See Gilliam v.
Mitchell, 179 F.3d 990, 994-95 (6th Cir. 1999) (citing Brecht
v. Abrahamson, 507 U.S. 619, 638 (1993)).
Also as with the challenge to the unanimity instruction, the
State claims that both of these claims are defaulted because
they were not objected to contemporaneously. Scott has made
no response. The district court reached the merits of the first
instruction challenged here, relating to witness credibility,
without discussing its potential default. Regardless of
whether this claim was defaulted, it is easily disposed of on
the merits. The court also correctly held the second ground,
regarding the definition of reasonable doubt, not to be waived,
because the Ohio Supreme Court itself said so in a later
opinion that discussed Scott’s case. See State v. Van Gundy,
594 N.E.2d 604, 607 (Ohio 1992).
1. Instruction on Credibility of Addicts and Accomplices
Tramble admitted being an addict when he gave his
information to the police, and Jones and O’Neal also testified
against Scott as accomplices. Scott proposed specific
instructions on the particular unreliability of accomplices, and
that the testimony of drug addicts should be “considered with
great care” because of their constant need of drug money and
abnormal fear of imprisonment. Instead, the court gave
general instructions on the jury’s duty to determine witness
motivation and credibility, and instructed that accomplice
testimony must be corroborated “by other credible, believable
evidence.”
The district court, relying on United States v. Howard, 590
F.2d 564, 570 (4th Cir. 1979), found no error in rejecting the
addict instruction because there was no evidence that Tramble
was still addicted at the time of trial, and could not have had

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44 Scott v. Mitchell Nos. 98-4272/4321
appropriate case could be . . . the result of a tactical, informed
decision by counsel, completely consonant with his duties to
represent the accused effectively”). Without effective
research into the available mitigating testimony, of course, it
would be impossible for the lawyers to have made an
informed decision either way, even if residual doubt was a
viable option in retrospect. If we were to hold Scott’s lawyers
to be ineffective, then, it would have to be on the grounds of
their failure to research mitigating evidence, not their failure
to present it. Otherwise, there would be merit to the district
court’s concern in this case that to condone the lawyers’
performance would be to create a post-hoc exception for
faulty lawyering. Regardless, the Constitution guarantees
competent counsel and a fair trial, not perfection. In light of
the finding of the state common pleas court’s evidentiary
hearing that the lawyers’ testimony is more credible than that
of Scott’s family, and that Scott’s criminal history would have
been known to the attorneys even without further research, we
believe that the decision of Scott’s attorneys to pursue a
residual-doubt strategy in this case was not objectively
unreasonable, because it was adequately (if not ideally)
informed and was quite arguably the best course of action
available.
D. Cumulative Error From Two Allegedly Erroneous
Guilt-Phase Jury Instructions
As noted above, to warrant habeas relief, jury instructions
must not only have been erroneous, but also, taken as a whole,
so infirm that they rendered the entire trial fundamentally
unfair. See Coe, 161 F.3d at 329. This burden is even greater
than that required to demonstrate plain error on direct appeal.
See Frady, 456 U.S. at 166; Henderson, 431 U.S. at 154
(“The question in such a collateral proceeding is whether the
ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process, not merely whether
the instruction by itself is undesirable, erroneous, or even
universally condemned” (citations and internal quotations
omitted)). Allegations of “trial error” raised in challenges to
jury instructions are reviewed for whether they had a
Nos. 98-4272/4321 Scott v. Mitchell 9
Before this court, Scott defends the district court’s
reasoning that the unanimity instruction could have had the
impermissible effect of causing one or more jurors to believe
that unanimity was required not only as to the net weight of
the mitigating factors versus the aggravating factors, but also
as to the existence of each mitigating factor. The Warden, on
the other hand, maintains that Scott’s challenge to this
instruction is procedurally barred from habeas review for
failure to lodge a contemporaneous objection to the
instruction in the trial court, and that, in any case, the
instruction had no such effect on the finding of mitigating
factors. Scott’s cross-appeal further argues that (1) two other
penalty-phase instructions, namely those telling the jury to
ignore considerations of mercy in reaching its decision and
advising that its recommendation of death would not be
binding on the court, were unconstitutional; (2) Scott was
prejudiced by comments made by the trial judge to the jury
venire regarding media coverage of Prince’s shooting and
Scott’s involvement in it; (3) Scott’s trial counsel were
ineffective in the penalty phase for failing to interview or
present witnesses in mitigation and instead pursuing a
residual doubt strategy; (4) the cumulative effect of two
allegedly erroneous jury instructions violated Scott’s due
process rights; and (5) Ohio’s death penalty is
unconstitutional on its face and as applied to Scott for a
variety of reasons. We will address each of these issues in
turn.
II. ANALYSIS
When reviewing a district court’s disposition of a petition
for a writ of habeas corpus filed before AEDPA’s effective
date, we presume primary, or historical, factual findings by
the state courts to be correct, rebuttable only by clear and
convincing evidence under one of the eight conditions listed
in the pre-AEDPA version of 28 U.S.C. § 2254(d)(1-8). See
Byrd v. Collins, No. 96-3209, slip op. at 35 (6th Cir. Apr. 6,
2000) (citing McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th
Cir. 1996)). We review de novo determinations involving
matters of law or mixed questions of law and fact. See Mapes

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10 Scott v. Mitchell Nos. 98-4272/4321
4The Maupin test is essentially a group of enumerated factors that is
identical to the approach subsequently endorsed by Coleman: that the
cause and prejudice/actual innocence test is to be applied in all federal
habeas cases where the state court decision is based on an independent
and adequate state ground. See Coleman, 501 U.S. at 750. Although we
have remained faithful to the analysis endorsed by Maupin, our more
recent decisions have not always employed a “Maupin test” per se. See,
e.g., Byrd, No. 96-3209, slip. op. at 53-54 (articulating the factors from
Maupin and related cases differently but analogously); Jones v. Toombs,
125 F.3d 945, 946 (6th Cir. 1997) (applying the Coleman formulation
without mentioning Maupin, although reaching the same result). In this
case, however, we find it useful to follow Maupin’s enumerated factors.
v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999). We afford
“complete deference to evidence-supported state court
findings of fact. [...] But the more substantive standard by
which our de novo review is conducted is the determination
whether the trial errors asserted by the petitioner resulted in
a trial so devoid of fairness as to have amounted to a denial of
the due process guaranteed by the fourteenth amendment.”
Lundy v. Campbell, 888 F.2d 467, 469 (6th Cir. 1989) (citing
Sumner v. Mata, 455 U.S. 591 (1982) (per curiam)).
A. The Trial Court’s Penalty-Phase Jury Instructions
Because the state claimed that nearly half of Scott’s claims,
including his challenges to the penalty-phase jury instructions,
had been procedurally defaulted, the district court began its
legal analysis with a discussion of the law of procedural
default, including a discussion of Wainwright v. Sykes, 433
U.S. 72 (1977), Coleman v. Thompson, 501 U.S. 722 (1991),
and Maupin v. Smith, 785 F.2d 135 (6th Cir.1986), this
circuit’s seminal case applying the law of procedural default
in federal habeas cases in which the state argues that an
habeas claim is barred by the petitioner’s failure to observe a
state procedural rule. Maupin laid out a 4-part test that, as the
district court correctly noted, we have consistently applied4
since its issuance:
When a state argues that a habeas claim is precluded by
the petitioner’s failure to observe a state procedural rule,
Nos. 98-4272/4321 Scott v. Mitchell 43
It was their responsibility to present Scott’s defense, not
Scott’s family’s or even Scott’s. In Glenn v. Tate, 71 F.3d
1204, 1207-08 (6th Cir. 1995), we held lawyers’ conduct to
be objectively unreasonable when they waited until after the
verdict to prepare for the sentencing phase, failed to interview
any family members or friends, and conducted no research at
all into mitigation except to prepare one inadmissible
videotape. We followed Glenn in Austin v. Bell, 126 F.3d
843, 848-49 (6th Cir. 1997), to find a lawyer ineffective when
he failed to investigate or present any mitigating evidence
despite the availability and willingness of several relatives
and friends. We characterized counsel’s performance there as
not a “strategic decision, but rather an abdication of
advocacy.” Id. at 849; see also Byrd, No. 96-3209, slip op. at
63 (following Austin and Glenn)); O’Guinn v. Dutton, 88
F.3d 1409, 1424 (en banc) (Merritt, C.J., concurring) (finding
attorneys’ near-complete failure to investigate or present
mitigating evidence, because each attorney thought the other
was preparing it, to go beyond ineffectiveness into total
incompetence). In Mapes, we remanded for a hearing on the
effectiveness of appellate counsel, in part because he failed to
raise the fact that the sentencing phase counsel conducted no
research into mitigating factors.
Scott’s penalty-phase attorneys would certainly have been
well-advised to conduct more research into mitigating factors
than they did. Unlike in Austin and O’Guinn, however, these
lawyers had a credible reason for not presenting testimony:
a desire to keep Scott’s extensive criminal history from the
jury. See also Byrd, No. 96-3209, slip op. at 63-64 (same).
The state trial and appeals courts found this strategy to be in
Scott’s best interest, given his claim of actual innocence
throughout trial and sentencing and the magnitude of his
criminal past. Moreover, both the Ohio and United States
Supreme Courts have endorsed a residual doubt strategy when
warranted by the circumstances. See Lockhart v. McCree,
476 U.S. 162, 181 (1986) (recognizing the strategy as “an
extremely effective argument for defendants in capital cases”
(citation omitted)); State v. Johnson, 494 N.E.2d 1061, 1065
(Ohio 1986) (“omission of [mitigating] evidence in an

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42 Scott v. Mitchell Nos. 98-4272/4321
could not come close to rebutting with clear and convincing
evidence. Moreover, while acknowledging the questionable
amount of research done by counsel, the court decided that
the second Strickland prong could not be met because Scott
could not show a “reasonable probability” that the sentence
would have been different otherwise. Strickland, 466 U.S. at
694. The court ended its discussion, however, with a
footnote, noting that this too was a close call since one juror
might always have been persuaded, and that the question was
ultimately mooted by the court’s grant of the writ on another
ground.
The district court was correct to focus on the second
Strickland prong. It is clear that, in its words, the “mitigating
circumstances Scott wishes his counsel had presented . . . are
largely, even overwhelmingly, negated by evidence that his
background includes commission of robbery, assault,
kidnaping, and other violent acts upon innocent citizens,” and
that prosecutors would have elicited such information from
any family members who testified for Scott. The mitigating
evidence would have revealed Scott’s personal loyalty to his
siblings, girlfriend, and children, and an exceedingly violent
environment throughout his upbringing. As the district court
said, it is impossible to say for certain that one juror would
not have been swayed by this evidence, but certainty is not
required here; we must ask only whether Scott has met his
burden of demonstrating a reasonable probability that this
would happen. None of the proffered mitigating evidence
reduces Scott’s culpability for the Prince murder or the string
of violence that preceded it. Scott can only offer a
hypothetical juror, not a reasonable probability, and hence
cannot show prejudice.
As to the first Strickland prong, were we to reach it, it is not
clear that the lawyers’ performances fell below the objective
standard. The state court fact findings that we are bound by
indicate that neither Scott nor any proposed witness made any
attempt to assist the attorneys in finding mitigating evidence,
and that this made the job more difficult. This difficulty, of
course, does not excuse a lack of attempt on the lawyers’ part.
Nos. 98-4272/4321 Scott v. Mitchell 11
the federal court must go through a complicated analysis.
First, the court must determine that there is a state
procedural rule that is applicable to the petitioner’s claim
and that the petitioner failed to comply with the rule. [...]
Second, the court must decide whether the state courts
actually enforced the state procedural sanction. [...]
Third, the court must decide whether the state procedural
forfeiture is an “adequate and independent” state ground
on which the state can rely to foreclose review of a
federal constitutional claim. [...] This question generally
will involve an examination of the legitimate state
interests behind the procedural rule in light of the federal
interest in considering federal claims. [Fourth], the
petitioner must demonstrate under Sykes that there was
“cause” for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional
error.
Id. at 138 (citations omitted). For purposes of the procedural-
default analysis, the district court grouped Scott’s eighteenth
ground for relief—the claim that the penalty-phase jury
instruction on unanimity is unconstitutional—with his
challenges to two other penalty-phase jury instructions—that
the jury’s recommendation of death was not binding on the
trial court (Ground 14) and that the jury was to disregard
emotions of mercy or sympathy (Ground 16)—because no
contemporaneous objection to any of the three instructions
had been raised. The district court noted that Scott had raised
these three arguments for the first time on direct appeal. The
Ohio Court of Appeals noted the default and plain error
standard of review, but went on to address the merits of the
claims. See Scott, 1985 WL 9047 at *8. The Ohio Supreme
Court more explicitly relied on the procedural default, but
nonetheless allowed for the possibility that Scott could prove
plain error. The Ohio Supreme Court conducted a lengthy
review of the record for plain error as to Ground 14, and a
shorter review as to Ground 16. As to the unanimity
instruction claim, however, the Ohio Supreme Court said only
this:

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12 Scott v. Mitchell Nos. 98-4272/4321
Appellant next argues that the requirement of
unanimity in recommending a life sentence denies a
capital defendant his right to a fair trial and freedom from
cruel and unusual punishment.
Again, appellant neglected to object to the trial court’s
instruction in this regard and has accordingly waived any
objections with regard to this alleged error. State v.
Fanning, supra. More importantly, in State v. Jenkins,
[...], this court ruled that a jury’s recommendation of a
life sentence under R.C. 2929.03(D)(2) must be
unanimous.
State v. Scott, 497 N.E.2d 55, 69 (Ohio 1986).
The district court concluded that none of these three claims
had been procedurally defaulted. The court first noted that in
examining Scott’s fourteenth and sixteenth grounds and
“arguably in examining Scott’s eighteenth ground, as well,”
the Ohio Supreme Court had not simply relied on Ohio’s
contemporaneous-objection rule, but had conducted a plain-
error analysis; hence, the Ohio Supreme Court “did not
wholly overlook Scott’s procedural default.” Relying on an
unpublished decision of this circuit, Knuckles v. Rogers, No.
92-3208, 1993 WL 11874 (6th Cir. Jan 21, 1993) (per
curiam), the district court further concluded that in any event,
Ohio’s contemporaneous-objection rule is not an adequate
and independent state ground on which the state could rely to
foreclose review of these claims because that rule is not
independent of federal law.
1. The Trial Court’s Penalty-Phase Instruction on Jury
Unanimity
With regard to Scott’s challenge to the penalty-phase
unanimity instruction—the only ground on which the district
court granted the writ—we hold that the district court erred.
It is undisputed here that the first Maupin prong has been
established; Scott does not question the applicability of
Ohio’s contemporaneous-objection rule and he does not claim
to have made such an objection. Scott does not address in
this appeal the fourth Maupin prong, the cause and prejudice
Nos. 98-4272/4321 Scott v. Mitchell 41
8Scott had the right under Ohio law to testify under oath or make an
unsworn statement to the jury, and he chose the latter. Scott used this
opportunity to continue to deny his guilt (“I feel insulted, and that’s what
I wanted to reflect to you. Insult when you charged me.”), and explicitly
told the jury that he was not going to tell them any reasons that they
should show him mercy since he was not guilty and that was all they
needed to know (“I don’t have to sit here and say ‘Give me mercy.’ What
I mean, I don’t want no mercy . . . I don’t care what they say out of they
[sic] mouths, and I’m telling you, it is me now talking for me . . . . I
didn’t care that you found me guilty, but it was up to you. I felt you
couldn’t because the truth has got to rise, but . . . you did, and it don’t
scare me when they say you are going to give me the death penalty.”).
The district court found all but one of the several grounds
for ineffectiveness of his trial counsel that Scott raised before
it to be procedurally barred, and Scott does not pursue those
defaulted allegations on appeal. The sole remaining argument
is that Scott’s sentencing-phase counsel were ineffective
because they failed to research possible mitigating factors,
and also failed to interview Scott’s several family members
who often attended the trial. Scott’s attorneys did not present
any mitigating evidence other than Scott’s own unsworn
statement to the jury.8 They pursued a “residual doubt”
strategy, in which the defendant appeals to the jury’s lingering
doubt regarding the conviction in an attempt to dissuade them
from imposing the death penalty. The state trial court held a
post-conviction evidentiary hearing on this issue, and
determined that: (1) trial counsel’s testimony was more
reliable than that of the family members; (2) the intransigence
of Scott and his family was responsible for his counsel’s
failure to identify and obtain mitigating evidence from the
family members; (3) the family members made no attempt to
offer assistance until after Scott’s conviction; and (4) had
Scott chosen to have a pre-sentence investigation report
prepared or had the family members testified, the jury would
have learned of Scott’s extensive criminal history. The court
also made two other mixed findings of law and fact, namely
that the family’s testimony was unreliable and unhelpful and
that Scott’s lawyers acted in his best interest. The district
court appropriately acknowledged its deference to the
hearing’s findings on the primary, historical facts, which Scott

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40 Scott v. Mitchell Nos. 98-4272/4321
unless there is an “overwhelming probability” that they were
ignored. Richardson v. Marsh, 481 U.S. 200, 208 (1987).
Scott’s scenario of jury bias is not nearly tenable enough to
overcome these presumptions. Scott and Justice Marshall
cited Quercia v. United States, 289 U.S. 466 (1933), for the
proposition that the judge’s comments warped the jury’s
perception beyond all hope of repair. The extremity of that
case’s facts, however, provide a perfect foil to demonstrate
the mildness of the instant case. In Quercia, the trial judge
instructed the jury that he believed every word the defendant
said to be a lie because the defendant had wiped his hands
while on the stand. See id. at 468-69. Here, we have only
Scott’s inference that the court’s facially innocuous statement
may have been understood as a “frank, unguarded admission”
of the judge’s opinion, which would then have a prejudicial
effect on a juror’s verdict. All we know for certain is that the
court communicated the existence of pretrial publicity, which
Patton held not to be an indelible influence on a juror’s mind.
See also United States v. Peters, 754 F.2d 753, 762-63 (7th
Cir. 1985) (recounting several studies demonstrating capital
jurors’ ability to put media reports out of their minds and vote
exclusively on the evidence). This alone does not destroy
fundamental fairness.
C. Ineffective Assistance of Trial Counsel During the
Penalty Phase
We apply to this claim the same de novo standard listed
above. For Scott’s counsel to have deprived him of his Sixth
Amendment right to effective assistance, the counsel’s
performance must have “so undermined the proper
functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.” Strickland v.
Washington, 466 U.S. 668, 686 (1984). It is Scott’s burden
to show his attorneys’ performance fell below an objective
standard of reasonableness and that Scott was thereby
prejudiced. See id. at 687-88. Counsel’s performance is
strongly presumed to be effective. See id. at 690; Kimmelman
v. Morrison, 477 U.S. 365, 381 (1986).
Nos. 98-4272/4321 Scott v. Mitchell 13
test, although the district court did address that issue. Rather,
Scott focuses on the second and third Maupin prongs, arguing
that the Ohio courts did not actually enforce the state
contemporaneous-objection rule and that the rule is neither an
adequate nor an independent state ground.
(a). The Second Maupin Prong – Application of the Rule
The determination of whether a state court decision was
based on a state procedural rule is a legal question that we
review de novo. See Couch v. Jabe, 951 F.2d 94, 96 (6th Cir.
1991) (per curiam). Scott argued to the district court that by
conducting a plain-error review, the Ohio Supreme Court had
excused the procedural default and hence had not enforced the
state procedural sanction. The district court did not entirely
agree: “It is questionable whether the Ohio Supreme Court
truly overlooked Scott’s procedural defaults and examined the
merits of Scott’s three grounds regarding jury instructions.
[...] A plain error analysis is not tantamount to a review on
the merits, so the Ohio Supreme Court did not wholly
overlook Scott’s procedural default.”
On appeal, Scott cites the Supreme Court’s holding in
Harris v. Reed, 489 U.S. 255, 257 (1989), that federal habeas
courts are to apply the “plain statement rule” of Michigan v.
Long to determine whether a state court decision was based
on a state law ground, and that any ambiguity as to whether
the holding was based on or intertwined with federal law
requires the application of the Long rule. Scott urges us to
find that the Ohio Supreme Court decided his challenge to the
jury unanimity instruction on its merits, not on the basis of the
procedural bar, citing as evidence the fact that in its three-
sentence disposition of this claim, the Ohio Supreme Court
began the last sentence with the words “More importantly.”
Scott’s argument is meritless. The issued addressed in
Harris, as we explain below in relation to the third Maupin
factor, is whether the state court decision actually relies on a
state procedural ground that is both adequate and independent
from federal law; Harris does not preclude a finding that the
state procedural rule was actually enforced where the state

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14 Scott v. Mitchell Nos. 98-4272/4321
court decision also relies on an alternative ground. Scott’s
only arguable basis for asserting that the Ohio Supreme Court
did not enforce the contemporaneous-objection rule is its
“More importantly” sentence. The district court viewed this
sentence as only “arguably”amounting to a plain error review,
and did not accept Scott’s argument that this was the primary
holding. We conclude that the Ohio Supreme Court’s
adversion to Ohio’s substantive law regarding jury unanimity
with regard to the recommendation of a life sentence was not
even arguably a plain error review, but was simply a
supplement to its holding that Scott had waived any objection
to the jury instruction by failing to object at the time the
instruction was given.
(b). The Third Maupin Prong – Adequate and
Independent State Ground
Scott claims not only that the Ohio Supreme Court did not
enforce the contemporaneous-objection rule and hold his
challenge to the unanimity instruction barred; he claims that
because the contemporaneous-objection rule does not
preclude the state appellate courts from performing a plain-
error review, the rule itself is dependent on federal law and is
therefore not an “independent and adequate state ground”
under Maupin. Here the district court agreed. For support, it
turned to our unpublished decision in Knuckles v. Rogers, No.
92-3208, 1993 WL 11874, at **2-3 (6th Cir. Jan. 21, 1993)
(per curiam):
[I]t is clear that Ohio has a contemporaneous objection
rule, and that the Ohio courts treat the failure to object to
a claimed error as a procedural default. Ohio R. Crim. P.
52; State v. Williams, 304 N.E.2d 1364 (Ohio 1977).
Since Knuckles failed to object contemporaneously to the
allegedly improper remarks, he violated Ohio's
contemporaneous objection rule and committed a
procedural default. However, the procedural default did
not foreclose all consideration by the Ohio appellate
court; the Ohio court examined the record to determine
if the allegedly improper remarks were "plain error."
Nos. 98-4272/4321 Scott v. Mitchell 39
in response to evidence presented at trial. In this context, we
have said
It is the duty of the trial judge to conduct an orderly trial
with the goal of eliciting the truth and attaining justice
between the parties. In charging the jury, the trial judge
is not limited to instructions of an abstract sort. It is
within his province, whenever he thinks it necessary, to
assist the jury in arriving at a just conclusion by
explaining and commenting upon the evidence, by
drawing their attention to the parts of it which he thinks
important; and he may express his opinion upon the
facts, provided he makes it clear to the jury that all
matters of fact are submitted to their determination. The
district judge may not assume the role of a witness. He
or she may, however, analyze and dissect the evidence,
as long as the district judge does not distort or add to it.
When commenting on the evidence, the trial judge must
take great care to avoid undue prejudice of the jury.
United States v. Blakeney, 942 F.2d 1001, 1013 (6th Cir.
1991) (citations, quotations and alterations omitted). Hence,
the judge did not exceed his authority merely by pointing out
the existence of the article and discussing its contents as a
basis to judge juror impartiality.
Allegations of jury bias must be viewed with skepticism
when the challenged influence occurred before the jurors took
their oath to be impartial. Holding that pretrial publicity did
not bias a juror in Patton v. Yount, 467 U.S. 1025, 1036
(1984), the Court said that the partiality of a juror “is plainly
a question of historical fact: did a juror swear that he could set
aside any opinion he might hold and decide the case on the
evidence, and should the juror's protestation of impartiality
have been believed.” Accordingly, the Court held that such
a determination by a state court was entitled to a presumption
of correctness on habeas review under 28 U.S.C. § 2254(d).
This is especially so in light of the two curative instructions
the court gave, which we must presume to have been effective

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38 Scott v. Mitchell Nos. 98-4272/4321
B. The Trial Judge’s Comments to the Jury Venire
We examine this claim de novo, with deference to facts
found in state court, for denial of fundamental fairness. It is
not procedurally barred.
Scott challenges a remark made by the trial judge which he
claims communicated to the jury the court’s belief that Scott
participated in the crime. During voir dire, the judge
explained to the jury that the court knew there was notoriety
surrounding the case because he had seen a newspaper article
on it. The judge mentioned some details of the crime, then
continued, “Not only was Mr. Scott – at least from the
newspaper reports that I think I had read – was involved in
this, there were three other--. . . .” At that point, the defense
objected, and received a sidebar. The Court gave a curative
instruction explaining the court’s lack of knowledge on the
case beyond the article. Scott moved for a mistrial, which the
prosecution reluctantly joined. Denying the motion, the Court
gave another instruction reiterating its neutrality and the
jury’s duty to decide based solely on the evidence.
Dissenting from Scott’s denial of certiorari, Justices
Marshall and Brennan lambasted the Ohio courts for
upholding such an “extraordinary error” that “overwhelmed
the presumption of innocence.” Scott v. Ohio, 480 U.S. at
925. They also pointed out that empaneling another jury
would have been easy at the voir dire stage. For this reason
and because the prosecutor joined the mistrial motion, the
district court found this issue a “close call.” Nonetheless, the
court found no fundamental unfairness. It viewed the
comments as reporting to the jury the media’s conclusion, and
the fact that even the judge had seen the coverage, in an
attempt to determine the jury’s ability to be impartial. It
concluded by noting that the verdict would likely have been
upheld under Supreme Court precedent even if the jury
themselves had read the article.
We find no error in the district court’s conclusion. The
threat of prejudicial comments from the court usually arises
Nos. 98-4272/4321 Scott v. Mitchell 15
The basic inquiry in the plain error analysis in Ohio is
whether the defendant has been denied a "fair trial."
Whether a person is denied a fair trial is a question to be
resolved by applying principles of federal constitutional
law. Therefore, we conclude that the Ohio appellate
court's decision was not independent of federal law.
(footnote omitted). The district court concluded that “[g]iven
the reasoning in Knuckles, this court must conclude that
Ohio’s application of its contemporaneous objection rule in
this case was not independent of federal law.” For the reasons
that follow, we hold that the district court erred in holding
that the Ohio Supreme Court’s dismissal of this claim does
not rest on an adequate and independent state ground.
In the recent published opinion in Coe v. Bell, 161 F.3d 320
(6th Cir. 1998), this circuit addressed the issue of whether a
federal habeas court is required to disregard a state court’s
finding of procedural bar because the state court also issued
an alternative holding. We explained in Coe that, in contrast
to the state court’s statements in Harris that the state had a
“well-settled” principle of law that issues which could have
been raised on direct appeal but were not are considered
waived, and that petitioner’s claim “could have been raised in
[his] direct appeal,” id. at 330 (quoting Harris, 489 U.S. at
258 (alteration in original)), the state court in Coe “took
things one step further, . . . and explicitly and clearly said that
Coe had no cognizable claim. There was, therefore, a
sufficiently clear and express statement here.” Id. at 330-31.
It is Coe that governs our analysis here.
Knuckles, on the other hand, is an unpublished opinion, and
therefore is not binding upon subsequent panels of the court.
See 6 Cir. R. 206 (1998). And, in any event, in Knuckles we
did not hold that Ohio’s contemporaneous-objection rule or
the Ohio court’s application of that rule was not independent
of federal law; rather, we held that in that case the Ohio
court’s decision that there was no plain error was not
independent of federal law.

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16 Scott v. Mitchell Nos. 98-4272/4321
5The court alleviated this concern by finding that the Warden also
failed the fourth Maupin prong, the cause and prejudice test. That
conclusion was also erroneous, as we will address below.
Here, the district court itself acknowledged that its
“adequate and independent state ground” analysis was “more
tenuous” with regard to the unanimity instruction than the
other two claims, because “the Ohio Supreme Court did not
clearly apply a plain error analysis to Scott’s eighteenth
ground . . .”5 As we have indicated, however, the concluding
sentence in the relevant Ohio Supreme Court passage simply
did not amount to any type of review, much less one
dependent on or intertwined with federal law.
More importantly—and we use that term advisedly—Harris
specifically instructed state courts that they
need not fear reaching the merits of a federal claim in an
alternative holding. By its very definition, the adequate
and independent state ground doctrine requires the
federal court to honor a state holding that is a sufficient
basis for the state court's judgment, even when the state
court also relies on federal law. Thus, by applying this
doctrine to habeas cases, Sykes curtails reconsideration of
the federal issue on federal habeas as long as the state
court explicitly invokes a state procedural bar rule as a
separate basis for decision. In this way, a state court may
reach a federal question without sacrificing its interests
in finality, federalism, and comity.
Harris, 489 U.S. at 264 n. 10 (citations omitted). Further, the
Supreme Court instructed in Coleman that “[a] predicate to
the application of the Harris presumption is that the decision
of the last state court to which the petitioner presented his
federal claims must fairly appear to rest primarily on federal
law or to be interwoven with federal law.” Coleman, 501
U.S. at 735. As Coleman makes very clear, to apply Harris
any more broadly would eviscerate the very foundations of
the adequate and independent state ground doctrine, which are
Nos. 98-4272/4321 Scott v. Mitchell 37
duty, your efforts must be to arrive at a just verdict.
Consider all the evidence and make your finding with
intelligence and impartiality, without bias, sympathy or
prejudice, so that the State of Ohio and the defendant will
feel that their case was fairly and impartially tried.
We rejected a challenge to the substance of this instruction in
Mapes as well:
Third, an instruction to a death-sentence jury that it may
disregard the statutory criteria for imposing a death
sentence may be constitutionally impermissible in light
of the probability that such an instruction would result in
arbitrary and unpredictable results. See California v.
Brown, 479 U.S. 538, 541, 107 S.Ct. 837, 93 L.Ed.2d
934 (1987). According to the Court, "sentencers may not
be given unbridled discretion in determining the fates of
those charged with capital offenses." Id. Thus, an
instruction that the jury should not be swayed by "mere
sentiment, conjecture, sympathy, passion, prejudice,
public opinion or public feeling" was not only
unobjectionable in Brown, it "serve[d] the useful purpose
of confining the jury's imposition of the death sentence
by cautioning it against reliance on [irrelevant,]
extraneous emotional factors." Id. at 542, 543, 107 S.Ct.
837. Thus, there is no merit whatsoever to Mapes's
claimed entitlement to a "merciful discretion" instruction,
in light of the likely tendency of such an instruction to
lead to arbitrary differences in whom is selected to be
sentenced to death.
171 F.3d at 415-16 (emphasis omitted, alterations in original).
The district court also correctly relied on Brown, reasoning
that the instruction followed that decision by warning against
all emotional responses, both in favor of and against Scott.
There was no error as to this instruction either.

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36 Scott v. Mitchell Nos. 98-4272/4321
1982), any error was waived. As was the case in Coe, the
state court’s statement could have been clearer and more
express, but the test is not whether the state court could have
said it better. It is enough that the court specifically held that
the claims were waived; the court’s alternative holding that
there was no plain error “does not require us to disregard the
state court’s finding of procedural bar.” Coe, 161 F.3d at 330.
We further conclude, however, that the district court
correctly determined that neither of these claims had merit.
The trial judge instructed the jury that its recommendation of
death would be “just that – a recommendation,” while a
recommendation of life imprisonment “is binding upon the
Court, and I, the Judge, must impose the specific life sentence
which you recommend.” Scott claims that this violates the
principle established in Caldwell v. Mississippi, 472 U.S. 320
(1985), that courts must not mislead the jury into believing it
has less responsibility than it actually does for choosing the
death sentence.
We recently rejected this precise claim in Mapes v. Coyle,
171 F.3d 408, 414-15 (6th Cir. 1999). Moreover, as the
district court correctly held, Caldwell is limited to situations
in which the jury is misled as to its role “in a way that allows
[it] to feel less responsible than it should for the sentencing
decision. Thus, to establish a Caldwell violation, a defendant
necessarily must show that the remarks to the jury improperly
described the role assigned to the jury by local law.” Romano
v. Oklahoma, 512 U.S. 1, 9 (1994) (citations and alterations
omitted); see also Dugger, 489 U.S. at 407; Kordenbrock,
919 F.2d at 1101. As Mapes points out, this instruction
accurately describes Ohio law. There is no error with regard
to this instruction.
The trial court also instructed the jury:
You must not be influenced by any consideration of
sympathy or prejudice. It is your duty to carefully weigh
the evidence to decide all disputed questions of fact, to
apply the instructions of the Court to your findings, and
to render your verdict accordingly. In fulfilling your
Nos. 98-4272/4321 Scott v. Mitchell 17
federalism, finality and comity. See id. at 730-32, 738-39,
749.
The state court decision in the case before us here relied
more obviously on adequate and independent state procedural
grounds than did the state court decision in Coleman itself.
There, the Virginia Supreme Court granted the state’s motion
that requested summary dismissal purely on state procedural
grounds, although the court’s use of the phrase “[u]pon
consideration whereof [referring to the parties’ briefs]”
suggested that the court may have considered the merits of the
filings as well. Coleman, 501 U.S. at 728. The Supreme
Court refused to read this ambiguity as “overriding the court’s
explicit grant of a dismissal motion based solely on
procedural grounds. Those grounds are independent of
federal law.” Id. at 744.
Nothing in the Ohio Supreme Court’s analysis with regard
to the unanimity instruction suggests that the court relied on
federal law. That court explicitly said that Scott had waived
the error by failing to object at trial, and that it had previously
interpreted a state statute to require unanimity anyway. There
is no mention of a plain-error analysis, and not even a hint
that federal law played a role in dismissing this claim. And
the Ohio Supreme Court’s concluding sentence in ruling on
the unanimity instruction, even if it could be viewed as related
to federal law, was in addition to and separate from its
explicit holding on state procedural grounds.
Finally, in Engle v. Isaac, 456 U.S. 107, 124-29 (1982), the
Supreme Court specifically found that default imposed for
failure to object contemporaneously as required by Ohio’s
Rule 30 is an adequate and independent state ground to bar
federal habeas review absent a showing of cause and
prejudice. In so holding, the Court specifically rejected
Scott’s argument:
Relying upon State v. Long, [...] respondents argue that
the Ohio Supreme Court has recognized its power, under
Ohio's plain-error rule, to excuse Rule 30 defaults. Long,
however, does not persuade us that the Ohio courts

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18 Scott v. Mitchell Nos. 98-4272/4321
would have excused respondents' defaults. First, the
Long court stressed that the plain-error rule applies only
in "exceptional circumstances," such as where, "but for
the error, the outcome of the trial clearly would have
been otherwise." [...] Second, the Long decision itself
refused to invoke the plain-error rule for a defendant who
presented a constitutional claim identical to the one
pressed by respondents.
See id. at 125 n. 27. In Coleman, the Court also very strongly
implied its continued disapproval of the rule the district court
here ascribes to Knuckles. As a preamble to its discussion of
independent state grounds, the Court acknowledged that it had
previously held that Oklahoma’s review for “fundamental
trial error” before applying state procedural defaults “was not
independent of federal law so as to bar direct review because
the State had made application of the procedural bar depend
on an antecedent ruling on federal law.” Coleman, 501 U.S.
at 741 (citing Ake v. Oklahoma, 470 U.S. 68 (1985))
(quotations and alterations omitted). The Coleman Court then
distinguished that holding by observing simply that “Ake was
a direct review case. We have never applied its rule regarding
independent state grounds in federal habeas. But even if Ake
applies here, it does Coleman no good because the Virginia
Supreme Court relied on an independent state procedural
rule.” Id. The Supreme Court, then, does not find the mere
reservation of discretion to review for plain error in
exceptional circumstances sufficient to constitute an
application of federal law. Neither Scott nor Knuckles points
to any change in Ohio law that could distinguish Engle or
Coleman from the present case, and as in Ohio’s Long case
that Engle cites, the Ohio Court here did not invoke its plain-
error review for this claim.
We issued a similar ruling in Paprocki v. Foltz, 869 F.2d
281, 284-85 (6th Cir. 1989). There we enforced a default for
failure to object contemporaneously in a Michigan court,
although the state courts reserved the right to excuse the
default for “manifest injustice.” We noted that
Nos. 98-4272/4321 Scott v. Mitchell 35
on that jury, id. at 1040, its requirement of an explicit
instruction that “a solitary juror may prevent a death penalty
recommendation” was prospective only; Brooks did not hold
that all instructions requiring unanimous recommendations of
life or death in previously decided Ohio death-penalty cases
were unconstitutional. See id. at 1042. There is nothing in
the Brooks opinion to cast doubt on the Ohio Supreme
Court’s previous approval of Scott’s sentence (or, for that
matter, Mapes’s). As we have explained, our Coe decision,
which well preceded Mapes, explicitly held that unanimity
instructions like those in this case do not violate Mills. The
Mapes dicta cannot preclude us from following Coe in this
case.
We further note that the district court was clearly incorrect
in finding error in the trial court’s failure to advise the jury in
its unanimity instruction as to the consequences of deadlock.
The Supreme Court has chastised such instructions as
encouraging deadlock and undermining the strong
governmental interest in unanimous verdicts. See Jones v.
United States, 119 S.Ct. 2090, 2099-2100 (1999). We did the
same in Coe, 161 F.3d at 339-40.
2. The Trial Court’s Penalty-Phase Instructions
Regarding Considerations of Mercy and Effect of
Recommendation of Death
As with the challenge to the unanimity instruction, the State
claims that Scott’s challenges to these two jury instructions
are defaulted because Scott made no contemporaneous
objection. The district court held that these claims had not
been procedurally defaulted because the Ohio Supreme Court
had performed a plain-error review of each of them. The
district court determined, however, that the claims were
without merit.
We think that the district court erred in holding that these
claims were not procedurally defaulted. As to each of them,
the Ohio Supreme Court explicitly stated that Scott had failed
to raise any contemporaneous objection, and under its
precedent of State v. Fanning, 437 N.E.2d 583, 585 (Ohio

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34 Scott v. Mitchell Nos. 98-4272/4321
mitigating factors.” This instruction pertains only to the
weighing process, and not to the existence of individual
mitigating or aggravating factors. Indeed, the instruction
references these factors in the past tense, which suggests that
the jurors were to have formed their opinions on the factors’
existence before attempting to reach unanimity on their net
weight. As in Coe, “[n]othing in this language could
reasonably be taken to require unanimity as to the presence of
a mitigating factor.” 161 F.3d at 338. Whether or not the
district court was correct that the instruction violated Ohio
law by not conforming with the Ohio Supreme Court’s
subsequent decision in Brooks (which we find doubtful, given
that court’s approval of Scott’s sentence), it does not violate
Scott’s federal constitutional rights under Mills and therefore
cannot justify habeas relief.
Our conclusion is not altered by the portion of the opinion
in Mapes v. Coyle, 171 F.3d 408 (6th Cir. 1999), which
suggests that such unanimity instructions are erroneous. In
that Ohio capital case, we reviewed a similar challenge to a
virtually identical unanimity instruction. See Mapes, 171
F.3d at 416 (“[Y]ou must unanimously find that the State has
failed to prove beyond a reasonable doubt that the aggravating
circumstances of which the defendant was found guilty of
committing outweigh the mitigating factors.”). We stated in
dicta that this instruction was erroneous because Brooks had
found such instructions to violate the Eighth and Fourteenth
Amendments, but we declined to issue a writ on this ground
because the petitioner had procedurally defaulted that claim.
See id. at 416-17, 419. The only reliance on federal
constitutional law in Brooks, however, is its citation to Mills
in explaining why it would thenceforth require that Ohio
jurors be explicitly instructed that “a solitary juror may
prevent a death penalty recommendation by finding that the
aggravating circumstances in the case do not outweigh the
mitigating factors.” Brooks, 661 N.E.2d at 1042. Although
the Brooks case was remanded for resentencing because the
Ohio Supreme Court could not be sure of the effect that the
instruction to “determine unanimously that the death penalty
is inappropriate before you can consider a life sentence” had
Nos. 98-4272/4321 Scott v. Mitchell 19
[w]e would be loath to adopt an exception to the "cause
and prejudice" rule that would discourage state appellate
courts from undertaking the sort of inquiry conducted by
the Michigan court, and we do not believe that the state
court's explanation of why the jury instructions resulted
in no manifest injustice can fairly be said to have
constituted a waiver of the procedural default.
Id. at 285. Although this statement appears addressed more
towards the determination of whether the state courts actually
enforced the bar (Maupin’s second prong) instead of its
independence from federal law, the reasoning is equally
applicable to this discussion.
All in all, we think it is clear that Knuckles, an unpublished
decision of this court, cannot provide persuasive authority to
support a finding that the Ohio Supreme Court did not rely on
an independent state procedural ground in disposing of
Scott’s challenge to the trial court’s penalty-phase instruction
on jury unanimity.
In addition to his claim that Ohio’s contemporaneous-
objection rule is not independent of federal law, Scott also
argues that it is not “adequate” because it is not consistently
enforced. The Supreme Court has held that an independent
state rule must be firmly established and regularly followed in
order to be adequate. See Ford v. Georgia, 498 U.S. 411,
423-24 (1991); Byrd v. Collins, No. 96-3209, slip op. at 53
(6th Cir. Apr. 6, 2000) (following Ford). Scott claims that
the Ohio Supreme Court has retained “unfettered discretion”
to waive the rule and has been “remarkably inconsistent” in
applying it. He points to cases where the court ignored
potential defaults and dismissed on the merits. In State v.
Zuern, 512 N.E.2d 585, 592 (Ohio 1987), the capital
defendant raised his nine constitutional challenges to the
state’s death penalty statute by a general oral objection rather
than by a specific motion. The Ohio Supreme Court held that
although this technically constituted waiver under Ohio law,
“because of the nature of the case and the exacting review
necessary where the death penalty is involved, [it] reserve[d]

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20 Scott v. Mitchell Nos. 98-4272/4321
the right to consider the constitutional challenges in particular
cases.” Id. This somewhat relaxed approach to reviewing a
claim that was raised, but in an incorrect manner, is a separate
matter entirely from Scott’s complete failure to object
contemporaneously. In State v. Hamblin, 524 N.E.2d 476,
479 (Ohio 1988), the capital defendant raised in the appellate
court two grounds for ineffective assistance of counsel, and
added three new grounds in the Supreme Court. Although the
new grounds were technically waived, the court said that
“[b]ecause this is a capital case, we will review all five
arguments relating to the claim of ineffective assistance of
counsel.” Id. As was the case in Zuern, Hamblin did not
involve a completely forfeited issue. In State v. Williams, 528
N.E.2d 910, 914 (Ohio 1988), the Court observed that
“[b]ecause of the gravity of the sentence that has been
imposed on appellant, we have reviewed the record with care
for any errors that may not have been brought to our attention.
In addition, we have considered any pertinent legal arguments
which were not briefed or argued by the parties.” Despite this
observation, the court affirmed the sentence and did not
discuss any specific error that the parties had not raised.
None of these cases involved the contemporaneous-objection
rule. Finally, in State v. Coleman, 544 N.E.2d 622, 627 (Ohio
1989), the court did apparently waive the default resulting
from the defendant’s failure to object contemporaneously to
a jury instruction: “However, since this is a capital case we
have reviewed the jury instructions and find not only that
there was a correct statement of the law but also that the trial
court additionally instructed the jury it could not convict the
defendant of aggravated murder unless it found [specific
intent to kill].”
These cases do indicate that the Ohio Supreme Court
employs an abundance of caution in capital cases, and, on
occasion, has relaxed its enforcement of default. They do not,
however, indicate that Ohio reserves so much leeway in
capital cases that we are justified here in ignoring its
sovereign decision founded upon its own procedural rule. In
cases where state procedural grounds have not been enforced
by federal courts because they were not firmly established and
Nos. 98-4272/4321 Scott v. Mitchell 33
or more mitigating circumstances, the sentence shall
be life imprisonment.
For both the death verdict and the life imprisonment
verdict, the jury was told that its verdict must be
unanimous.
Id. at 337 (alterations in original). As in this case, the district
court in Coe found this instruction to be unacceptable under,
inter alia, Mills, “because there was a reasonable probability
that the jurors believed that they could consider only those
mitigating circumstances that they unanimously agreed were
present.” Id. Coe upheld the instruction because requiring
unanimity only as to the results of the weighing process “is a
far different matter than requiring unanimity as to the
presence of a mitigating factor . . . . The instructions say
clearly and correctly that in order to obtain a unanimous
verdict, each juror must conclude that the mitigators do not
outweigh the aggravators.” Id. at 338 (emphasis in original).
In this regard, Coe specifically distinguished that instruction
from those at issue in Mills, 486 U.S. at 387 (reviewing a
verdict form that read “Based upon the evidence we
unanimously find that each of the following mitigating
circumstances which is marked 'yes' has been proven to exist
by a preponderance of the evidence and each mitigating
circumstance marked 'no' has not been proven by a
preponderance of the evidence” (emphasis omitted)), and
Kubat, 867 F.2d at 369 (“If . . . you unanimously conclude
that there is a sufficiently mitigating factor or factors to
preclude imposition of the death sentence, you should sign the
verdict form which so indicates.”), which much more clearly
required unanimity in the finding of mitigating factors.
Similarly, Scott’s jury was instructed to recommend death
if it unanimously found “that the aggravating circumstances
which Jay Scott was found guilty of committing outweigh the
mitigating factors,” and to choose an appropriate life sentence
if it was unanimous in finding “that the State of Ohio failed
to prove that the aggravating circumstances which the
defendant . . . was found guilty of committing, outweigh the

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32 Scott v. Mitchell Nos. 98-4272/4321
condemned by Mills v. Maryland, 486 U.S. 367 (1988). The
district court saw the fact that a minority of this Court had
followed Kubat, and the majority had merely distinguished it
factually, in Kordenbrock v. Scroggy, 919 F.2d 1091 (6th Cir.
1990) (en banc), as evidence that we would follow Kubat
here. Therefore, the court found a substantial possibility that
the “faulty jury instruction which created this mis-impression
violated Scott's Fourteenth Amendment right to be free from
deprivation of life without due process of law.”
We think that the court’s likening of the instruction given
here to those at issue in Mills and Kubat was incorrect. Those
instructions required the jury to be unanimous in its finding
of each mitigating factor, whereas this instruction plainly
applies only to the overall weighing of mitigating and
aggravating factors. In this regard, Scott’s argument is
indistinguishable from the one we recently rejected in Coe v.
Bell, 161 F.3d 320, 336-39 (6th Cir. 1998). In that case,
The jury was then given the form its verdict should take:
(1) We, the Jury, unanimously find the following listed
statutory aggravating circumstance or circumstances;
. . . . .
(2) We, the Jury, unanimously find that there are no
mitigating circumstances sufficiently substantial to
outweigh the [aggravating circumstances] so listed
above.
(3) Therefore, we, the Jury, unanimously find that the
punishment shall be death.
The alternate result was then provided for and explained:
If you unanimously determine that no statutory
aggravating circumstance has been proved by the
State beyond a reasonable doubt; or if the Jury
unanimously determine that [aggravating
circumstances] have been proved by the State
beyond a reasonable doubt; but that said
[aggravating circumstances] are outweighed by one
Nos. 98-4272/4321 Scott v. Mitchell 21
regularly applied, the facts have been much more extreme
than these isolated examples of discretion. See, e.g, Ford,
498 U.S. at 423-24 (finding state rule governing timing of
Batson challenges to racial makeup of jury not even remotely
close to being “firmly established and regularly followed”
because it was a novel rule applied retroactively); Barr v. City
of Columbia, 378 U.S. 146, 149 (1964) (rejecting state court’s
explanation that petition was worded too generally to have
raised an issue because that court had recently accepted an
identically worded appeal); Warner v. United States, 975 F.2d
1207, 1213-14 (6th Cir. 1992) (rejecting Ohio Supreme
Court’s reliance on failure to raise ineffective assistance on
direct appeal as reason for default because there was no such
requirement at the time). Rather, this case is more like those
in which some minor inconsistency in applying the rule has
been noted but held not to be severe enough to override the
federalism, finality and comity interests served by enforcing
the bar. See, e.g., Coleman, 501 U.S. at 758 (White, J.,
concurring) (“Petitioner argues that the Virginia court does in
fact waive the rule on occasion, but I am not now convinced
that there is a practice of waiving the rule when constitutional
issues are at stake, even fundamental ones. The evidence is
too scanty to permit a conclusion that the rule is no longer an
adequate and independent state ground”); Dugger v. Adams,
489 U.S. 401, 410 n. 6 (1989) (“respondent asserts . . . that
the Florida Supreme Court has failed to apply its procedural
rule consistently and regularly because it has addressed the
merits in several cases raising Caldwell claims on
postconviction review. In the vast majority of cases,
however, the [court] has faithfully applied its rule that claims
not raised on direct appeal cannot be raised on postconviction
review”); Byrd, No. 96-3209, slip op. at 53-54 (following
Dugger in holding that four examples of waiver of default by
Ohio courts are not enough to overcome the vast majority of
cases enforcing the default); Coe, 161 F.3d at 331 (“The few
[cases that are not adverse or too old to be relevant] are
isolated and unpublished, and so are . . . insufficient to defeat
an otherwise ‘strict and regular’ practice”); Shepard v. Foltz,
771 F.2d 962, 966 (6th Cir. 1985) (“we [recently] questioned
our prior determination whether Michigan enforces a

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22 Scott v. Mitchell Nos. 98-4272/4321
contemporaneous objection rule with respect to Sandstrom
violations, and, in any event, we held that a federal habeas
petitioner must meet the Sykes test if the Michigan courts in
fact applied such a rule”).
Application of the adequate and independent state ground
doctrine in this case also requires an assessment of the
specific state interest served by enforcing the
contemporaneous-objection rule. See Wesselman v. Seabold,
834 F.2d 99, 101 (6th Cir. 1987) (noting that resolution of this
prong “turns on the substantiality of the state interest
involved”); Maupin, 785 F.2d at 138 (same). This
consideration reinforces the need to enforce the procedural
default here, because the contemporaneous-objection rule has
been lauded as few other procedural requirements have been.
Not only did the Court expressly endorse Ohio’s Rule 30 in
Engle, but the sweeping language of cases such as United
States v. Frady, 456 U.S. 152 (1982) (raising the issue under
the Federal Rules), suggests that the Court places high
importance on the contemporaneous-objection rule regardless
of jurisdiction:
Orderly procedure requires that the respective
adversaries’ views as to how the jury should be
instructed be presented to the trial judge in time to enable
him to deliver an accurate charge and to minimize the
risk of committing reversible error. It is the rare case in
which an improper instruction will justify reversal of a
criminal conviction when no objection has been made in
the trial court.
Id. at 165-66 (quoting Henderson v. Kibbe, 431 U.S. 145, 154
(1977)). Perhaps nowhere, however, has this conviction been
stated more strongly than in Sykes:
The contemporaneous-objection rule itself is by no
means peculiar to Florida, and deserves greater respect
than Fay gives it, both for the fact that it is employed by
a coordinate jurisdiction within the federal system and
for the many interests which it serves in its own right. A
contemporaneous objection enables the record to be
Nos. 98-4272/4321 Scott v. Mitchell 31
open court.” Id. This rule was available to Scott’s trial court. Even
without this rule, moreover, the Jenkins court found that any potential
ambiguity in the unanimity instruction was resolved by the
“well-recognized [rule] that when statutes allow a jury in a criminal
proceeding to influence punishment, such as the recommendation of life
imprisonment in place of death, and the statute fails to expressly authorize
a nonunanimous vote, the jury cannot secure the lesser punishment absent
unanimity.” Id.
State v. Springer, 586 N.E.2d 96, 97 (Ohio 1992) (syllabus),
the court held that when the jury became hopelessly
deadlocked as to sentence, the court is required to impose a
life sentence. In State v. Brooks, 661 N.E.2d 1030 (Ohio
1996), the court reviewed a sentencing instruction that the
jury must unanimously agree that the death penalty is
inappropriate before recommending a life sentence. The court
found this contrary to § 2929.03(D)(2). See id. at 1040-41.
Brooks purported to “harmonize” the Jenkins and Springer
holdings by requiring an instruction to be given thenceforth
that a solitary juror could prevent the imposition of the death
penalty. See id. at 1041-42. The district court found it
“notable” that Springer and Brooks were decided after Scott’s
sentence was imposed, but decided that Brooks had simply
clarified, not altered, Ohio law on the subject. It thus found
the trial court’s instruction requiring unanimity on life to be
inconsistent with Ohio law.
Since “the fact that the instruction was allegedly incorrect
under state law is not a basis for habeas relief,” see Estelle v.
McGuire, 502 U.S. 62, 71-72 (1991), the district court went
on to observe that the “instructions left no room for the jury
to believe the court could accept anything other than a
unanimous recommendation, and gave no direction to the jury
as to the effect a jury split would have on the jury’s prior
determination of guilt, or on the sentence the trial court could
or would then impose on Scott.” The court then followed
Kubat v. Thieret, 867 F.2d 351 (7th Cir. 1989), which found
a similar instruction to create the impermissible possibility
that individual jurors would believe that unanimity was
required as to the existence of mitigating factors, the result

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30 Scott v. Mitchell Nos. 98-4272/4321
7The district court suggested in its Order that the Jenkins decision
was available to the trial court when it sentenced Scott, but we think this
is clearly wrong. Scott’s sentencing-phase jury recommended the death
penalty on March 28, 1984, and the court adopted the recommendation on
April 4, 1984, but Jenkins was not released until December 17, 1984.
Nevertheless, the Ohio Supreme Court approved of the unanimity
instruction in Jenkins with such sweeping language as to suggest that the
question was well-settled under Ohio law. See Jenkins, 473 N.E.2d at
307. The Court relied almost exclusively on Ohio Crim. R. 31(A), which
provided: “The verdict shall be unanimous. It shall be in writing, signed
by all jurors concurring therein, and returned by the jury to the judge in
After you have retired, first, select a foreman or
forelady and when all 12 of you – I repeat – all 12 of you
agree upon a verdict, you will sign the verdict in ink, and
advise the Court of this fact. You will remain in the jury
room until summoned back into the courtroom. When
you return to the courtroom, your verdict will be returned
to me, as you did before, and I will read it for you.
(emphasis added by district court). This was based on the
following provision of Ohio law:
If the trial jury unanimously finds, by proof beyond a
reasonable doubt, that the aggravating circumstances the
offender was found guilty of committing outweigh the
mitigating factors, the trial jury shall recommend to the
court that the sentence of death be imposed on the
offender. Absent such a finding, the jury shall
recommend that the offender be sentenced to [one of the
following life imprisonment terms].
Ohio Rev. Code § 2929.03(D)(2) (emphasis added by district
court). It was clear to the district court that the statute did not
require unanimity in recommending a life sentence, but rather
mandated life imprisonment if the jury reached anything but
unanimity on death. The court also reviewed three decisions
of the Ohio Supreme Court interpreting § 2929.03(D)(2). The
first, State v. Jenkins, 473 N.E.2d 264, 270 (Ohio 1984)
(syllabus ¶ 10), held that a jury’s recommendation of life
imprisonment under that section must be unanimous.7 In
Nos. 98-4272/4321 Scott v. Mitchell 23
made with respect to the constitutional claim when the
recollections of witnesses are freshest, not years later in
a federal habeas proceeding. It enables the judge who
observed the demeanor of those witnesses to make the
factual determinations necessary for properly deciding
the federal constitutional question. While the 1966
amendment to § 2254 requires deference to be given to
such determinations made by state courts, the
determinations themselves are less apt to be made in the
first instance if there is no contemporaneous objection to
the admission of the evidence on federal constitutional
grounds.
A contemporaneous-objection rule may lead to the
exclusion of the evidence objected to, thereby making a
major contribution to finality in criminal litigation.
Without the evidence claimed to be vulnerable on federal
constitutional grounds, the jury may acquit the defendant,
and that will be the end of the case; or it may nonetheless
convict the defendant, and he will have one less federal
constitutional claim to assert in his federal habeas
petition. If the state trial judge admits the evidence in
question after a full hearing, the federal habeas court
pursuant to the 1966 amendment to § 2254 will gain
significant guidance from the state ruling in this regard.
Subtler considerations as well militate in favor of
honoring a state contemporaneous-objection rule. An
objection on the spot may force the prosecution to take a
hard look at its hole card, and even if the prosecutor
thinks that the state trial judge will admit the evidence he
must contemplate the possibility of reversal by the state
appellate courts or the ultimate issuance of a federal writ
of habeas corpus based on the impropriety of the state
court's rejection of the federal constitutional claim.
We think that the rule of Fay v. Noia, broadly stated,
may encourage "sandbagging" on the part of defense
lawyers, who may take their chances on a verdict of not
guilty in a state trial court with the intent to raise their
constitutional claims in a federal habeas court if their
initial gamble does not pay off. The refusal of federal
habeas courts to honor contemporaneous-objection rules

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24 Scott v. Mitchell Nos. 98-4272/4321
may also make state courts themselves less stringent in
their enforcement. Under the rule of Fay v. Noia, state
appellate courts know that a federal constitutional issue
raised for the first time in the proceeding before them
may well be decided in any event by a federal habeas
tribunal. Thus, their choice is between addressing the
issue notwithstanding the petitioner's failure to timely
object, or else face the prospect that the federal habeas
court will decide the question without the benefit of their
views.
The failure of the federal habeas courts generally to
require compliance with a contemporaneous-objection
rule tends to detract from the perception of the trial of a
criminal case in state court as a decisive and portentous
event. A defendant has been accused of a serious crime,
and this is the time and place set for him to be tried by a
jury of his peers and found either guilty or not guilty by
that jury. To the greatest extent possible all issues which
bear on this charge should be determined in this
proceeding: the accused is in the court-room, the jury is
in the box, the judge is on the bench, and the witnesses,
having been subpoenaed and duly sworn, await their turn
to testify. Society's resources have been concentrated at
that time and place in order to decide, within the limits of
human fallibility, the question of guilt or innocence of
one of its citizens. Any procedural rule which
encourages the result that those proceedings be as free
of error as possible is thoroughly desirable, and the
contemporaneous-objection rule surely falls within this
classification.
We believe the adoption of the Francis rule in this
situation will have the salutary effect of making the state
trial on the merits the "main event," so to speak, rather
than a "tryout on the road" for what will later be the
determinative federal habeas hearing. There is nothing
in the Constitution or in the language of § 2254 which
requires that the state trial on the issue of guilt or
innocence be devoted largely to the testimony of fact
witnesses directed to the elements of the state crime,
while only later will there occur in a federal habeas
Nos. 98-4272/4321 Scott v. Mitchell 29
On the other hand, if after considering all of the
relevant evidence raised at trial, the testimony, other
evidence, the statement of Jay Scott, and the arguments
of counsel, you find that the State of Ohio failed to prove
that the aggravating circumstances which the defendant,
Jay Scott, was found guilty of committing, outweigh the
mitigating factors, then you will return your verdict
reflecting your decision.
In this event, you will then proceed to determine which
of two possible life imprisonment sentences to
recommend to the Court. [...]
Now, ladies and gentlemen, let me, first of all, before
we continue, before I read to you what your verdict is,
you see it is almost identical, and when I say “It is almost
identical,” to the forms that you have received before. It
says, and I just picked them up the way they were,
“Sentencing Proceeding” on the top, and it identifies the
case, the case number, and then it says, “Verdict: We, the
jury in this case being duly empaneled and sworn, do find
beyond a reasonable doubt that the aggravating
circumstances which the defendant, Jay Scott, was found
guilty of committing, are sufficient to outweigh the
mitigating factors presented in this case.
“We, the jury, recommend that the sentence of death
be imposed upon the defendant, Jay Scott,” and, again,
signed by the foreman or forelady and all 12 of you must
sign.
The second form is: “We, the jury in this case being
duly empaneled and sworn, do find that the aggravating
circumstances which the defendant, Jay Scott, was found
guilty of committing, are not sufficient to outweigh the
mitigating factors present in this case.
“We, the jury, recommend that the defendant, Jay
Scott, be sentenced to life imprisonment with parole
eligibility after sentencing,” and then there’s a blank with
an asterisk which refers down and says, “insert years of
imprisonment,” and again, the signatures, and the first
line is reserved for the foreman or forelady, and the
remainder of the eleven of you must sign that verdict
form. It must be unanimous. [...]

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28 Scott v. Mitchell Nos. 98-4272/4321
sentencing phase of a capital trial. See id. The Court
observed that although it would not attempt to define “what
it means to be ‘actually innocent’ of a death sentence,” id., it
could not find such extraordinary injustice under the facts of
that case, where the mitigating and aggravating factors had
been found to be equal. See id. Scott has made no attempt to
demonstrate this kind of fundamental miscarriage of justice,
and we are confident that he cannot do so.
Accordingly, we hold that the district court erred in
concluding that Scott’s claim of constitutional error with
regard to the penalty-phase unanimity instruction was not
procedurally defaulted, and in further concluding that even if
the claim were defaulted, Scott demonstrated cause and
prejudice to excuse the procedural default. We further hold
that the Ohio Supreme Court relied on Ohio’s
contemporaneous-objection rule—an adequate and
independent state ground—in holding that this claim had been
defaulted; that Scott failed to demonstrate cause and prejudice
to excuse the default, and that the district court erred in
reaching the merits of this claim. We therefore REVERSE
the district court’s issuance of a writ of habeas corpus.
(d). The Merits of Scott’s Challenge to the Unanimity
Instruction
Nevertheless, out of an abundance of caution and in order
to clarify our precedents governing sentencing-phase
instructions on jury unanimity, we will consider in the
alternative the merits of Scott’s challenge. The unanimity
instruction given to Scott’s jury read:
If all 12 members of the jury find, by proof beyond a
reasonable doubt, that the aggravating circumstances
which Jay Scott was found guilty of committing
outweigh the mitigating factors, then you must return
such a finding to the Court. I instruct you as a matter of
law that if you make such a finding, then you have no
choice and must recommend to the Court that the
sentence of death be imposed upon the defendant, Jay
Scott. [...]
Nos. 98-4272/4321 Scott v. Mitchell 25
hearing a full airing of the federal constitutional claims
which were not raised in the state proceedings. If a
criminal defendant thinks that an action of the state trial
court is about to deprive him of a federal constitutional
right there is every reason for his following state
procedure in making known his objection.
Sykes, 433 U.S. at 88-90 (footnote omitted, emphasis added).
Certainly, Ohio’s rule passes the third Maupin prong in this
case.
(c). The Fourth Maupin Prong – The Cause and
Prejudice Test
The district court’s primary rationale for excusing
procedural default as to the unanimity instruction claim was
that Scott had shown cause and prejudice to excuse his failure
to object. The court’s only explanation of cause is that “Scott
reasonably believed a contemporaneous objection would be
futile” because, as demonstrated in the Ohio Supreme Court’s
three-sentence disposition of this claim, that court’s precedent
at the time required jury verdicts as to both guilt and life
sentences to be unanimous. The United States Supreme
Court, however, has explicitly rejected this idea:
the futility of presenting an objection to the state courts
cannot alone constitute cause for a failure to object at
trial. If a defendant perceives a constitutional claim and
believes it may find favor in the federal courts, he may
not bypass the state courts simply because he thinks they
will be unsympathetic to the claim. Even a state court
that has previously rejected a constitutional argument
may decide, upon reflection, that the contention is valid.
Allowing criminal defendants to deprive the state courts
of this opportunity would contradict the principles
supporting Sykes.

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26 Scott v. Mitchell Nos. 98-4272/4321
6Instead, Scott argues that even if we find procedural default, we
should at least review his claim for plain error. The Supreme Court
rejected precisely this contention in Frady, 456 U.S. at 164-65, noting that
to apply the same “plain-error” review to a habeas petition that would
apply on direct appeal destroys any respect for the finality of the state
court judgment and allows the petition to function as a second appeal.
The Court was very clear that the cause and prejudice test must be used
instead.
Engle, 456 U.S. at 130 (footnotes omitted). Scott does not
address cause and prejudice on appeal,6 and even if he did he
would be hard-pressed to distinguish this holding; it was
made in the context of Ohio’s contemporaneous-objection
rule, and the Court has said “that the standard for cause
should not vary depending on the timing of a procedural
default or on the strength of an uncertain and difficult
assessment of the relative magnitude of the benefits
attributable to the state procedural rules [involved].” Murray
v. Carrier, 477 U.S. 478, 491 (1986).
The district court’s finding of prejudice was based on the
merits of Scott’s claim, and on its conclusion that the
sentencing proceedings might reasonably have come to a
different result absent the instruction of which Scott
complains. Of course, evaluating the merits to determine the
applicability of procedural default is circular and undermines
the federalism concerns behind the doctrine. Moreover, while
Sykes left open the definition of “prejudice,” Frady
“eliminate[d] any doubt about its meaning for a defendant
who has failed to object to jury instructions at trial,” Frady,
456 U.S. at 168:
[Henderson] summarized the degree of prejudice we
have required a prisoner to show before obtaining
collateral relief for errors in the jury charge as "whether
the ailing instruction by itself so infected the entire trial
that the resulting conviction violates due process, not
merely whether the instruction is undesirable, erroneous,
or even universally condemned." We reaffirm this
formulation, which requires that the degree of prejudice
Nos. 98-4272/4321 Scott v. Mitchell 27
resulting from instruction error be evaluated in the total
context of the events at trial. As we have often
emphasized[,] a single instruction to a jury may not be
judged in artificial isolation, but must be viewed in the
context of the overall charge. Moreover, a judgment of
conviction is commonly the culmination of a trial which
includes testimony of witnesses, argument of counsel,
receipt of exhibits in evidence, and instruction of the jury
by the judge. Thus not only is the challenged instruction
but one of many such instructions, but the process of
instruction itself is but one of several components of the
trial which may result in the judgment of conviction.
Id. at 169 (internal quotations, citations, and alterations
omitted). Presumably, this same approach applies to jury
instructions in the sentencing phase as well. Our review of
the briefs and record leaves us convinced that there is no such
prejudice here. Scott offers no help in making that
assessment, however, and, in any event, we find that Scott
cannot show cause for his default.
Although neither the district court nor Scott mentions it, it
is worth noting that an exception to the requirement that a
federal habeas petitioner demonstrate cause and prejudice in
order to obtain review of his defaulted claims may be made
when the petitioner is able to demonstrate that failure to
consider those claims will result in a “fundamental
miscarriage of justice.” Coleman, 501 U.S. at 750; Engle,
456 U.S. at 135. The Court has explained that although,
ordinarily, petitioners who can show a fundamental
miscarriage of justice will also be able to meet the cause and
prejudice requirement, in extraordinary cases, “where a
constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal habeas
court may grant the writ even in the absence of a showing of
cause for the procedural default.” Carrier, 477 U.S. at 496;
Dugger, 489 U.S. at 410 n. 6. In Dugger, the Court noted that
this exception will apply to death sentences only in
extraordinary cases, given the difficulty of translating the
concept of actual innocence from the guilt phase to the

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