Willie Williams, Jr. v. MARGARET BAGLEY, Warden

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0268P (6th Cir.)
File Name: 04a0268p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
WILLIE WILLIAMS, JR.,
Petitioner-Appellant,
v.
MARGARET BAGLEY, Warden,
Respondent-Appellee.
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No. 02-3461
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 00-02103—James Gwin, District Judge.
Argued: January 29, 2004
Decided and Filed: August 13, 2004
Before: MERRITT, ROGERS, and SUTTON, Circuit
Judges.
_________________
COUNSEL
ARGUED: John B. Gibbons, Cleveland, Ohio, for
Appellant. Carol Ann Ellensohn, ATTORNEY GENERAL’S
OFFICE OF OHIO, Columbus, Ohio, for Appellee.
ON BRIEF: John B. Gibbons, Cleveland, Ohio, John F.
McCaffrey, McLAUGHLIN & McCAFFREY, Cleveland,
Ohio, for Appellant. Carol Ann Ellensohn, ATTORNEY
2 Williams v. Bagley No. 02-3461
GENERAL’S OFFICE OF OHIO, Columbus, Ohio, Michael
L. Collyer, ATTORNEY GENERAL’S OFFICE OF OHIO,
Cleveland, Ohio, for Appellee.
ROGERS, J., delivered the opinion of the court, in which
SUTTON, J., joined. MERRITT, J. (pp. 79-88), delivered a
separate dissenting opinion.
_________________
OPINION
_________________
ROGERS, Circuit Judge. An Ohio jury convicted the
petitioner, William J. Williams, Jr., of four counts of
aggravated murder, and, on the jury’s recommendation, the
trial court sentenced Williams to death. After unsuccessfully
challenging his convictions and sentence on direct appeal and
in state post-conviction proceedings, Williams filed a petition
for a writ of habeas corpus, which set forth twenty-four
claims for relief, in the United States District Court for the
Northern District of Ohio. The district court denied
Williams’s petition, finding that Williams had procedurally
defaulted the majority of his claims and rejecting the balance
of his claims on the merits. However, it issued Williams a
certificate of appealability for all claims, and Williams’s
appeal is now before the court. For the following reasons, we
affirm the judgment of the district court.
BACKGROUND
I. THE MURDERS.
The Ohio Supreme Court made the following factual
findings on direct review:
Williams controlled the drug trafficking at the
Kimmelbrooks housing project in east Youngstown,
Ohio. After an extended absence from the area, Williams
returned to find that Alfonda R. Madison, Sr., William L.

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No. 02-3461 Williams v. Bagley 3
Dent, Eric Howard, and others had taken over the drug
trade at the Kimmelbrooks project. Williams wanted to
regain control of the drug business, so he decided to rob
and kill Madison and others.
Williams had three juvenile accomplices: his sixteen-
year-old girlfriend Jessica M. Cherry; her sixteen- or
seventeen-year-old brother, Dominic M. Cherry; and
Dominic Cherry’s seventeen-year-old “cousin” (i.e., best
friend), Broderick Boone. On August 27, 1991,
Williams bought walkie-talkies at a Radio Shack store.
The devices had a combined microphone-earphone
earpiece that left the user’s hands free. Williams also
bought batteries and duct tape. Williams, Dominic, and
Broderick later tested the walkie-talkies.
Before the murders, Williams outlined his plan to his
three accomplices. During this meeting, Williams drew
interior and exterior diagrams of Madison’s house.
Williams later ordered Dominic to burn these, but
Dominic burned only one diagram. In addition, Williams
supplied each accomplice with a gun. Williams
purchased Jessica’s gun from a neighbor.
On September 1, 1991, Jessica met with Madison and
discussed a drug deal. Later that night, Williams and his
three accomplices arrived at Madison’s home by car.
Williams armed the three juvenile accomplices with guns
and a walkie-talkie and sent them inside, while he waited
outside with a walkie-talkie. Once inside, the three
accomplices drew their guns on Madison. Then, after
receiving word via walkie-talkie that the situation was
secure, Williams, armed with a semiautomatic, entered
the house carrying a duffel bag containing handcuffs,
duct tape, and gloves. Inside, Williams handcuffed and
bound Madison and put tape over his mouth.
Thirty to forty-five minutes later, Theodore Wynn, Jr., a
recently discharged Air Force sergeant, came to the door,
4 Williams v. Bagley No. 02-3461
looking for Madison and Howard, who were roommates.
Jessica answered the door and told Wynn that Madison
was not home and Howard was asleep. As Wynn walked
back towards his car, Williams told Jessica to call Wynn
back into the house because Wynn could identify them.
Inside the house, Williams held Wynn at gunpoint and
handcuffed him.
Upon William’s orders, Jessica walked to a pay phone
and called and asked for Dent for the purpose of luring
him to the house. When Dent arrived with Howard,
Williams and his accomplices ambushed them and forced
them to lie down in the bathroom. Williams strangled
Madison and Wynn, and then instructed Jessica to turn
up the stereo. Going from room to room, Williams shot
each of the four victims in the head with Madison’s gun.
The group left Madison’s house, but Williams, according
to Jessica, went back in “to make sure they were all
dead.” Later, back at Williams’s apartment, he embraced
his juvenile accomplices and rewarded them with drugs.
Williams warned them not to tell anyone what they had
done or he would kill them.
The next day, September 2, 1991, Williams and Jessica
were driving to pick up Williams’s son in Youngstown
when another car rammed theirs and the people in the
other car shot at them. Jessica and Williams fled the
scene. When Jessica and Williams returned to the
vicinity of the accident, officers transported them to the
Youngstown Police Department and later released them
after questioning them about the traffic accident. Later
that night, Williams, Jessica, Dominic, and Broderick
fled to Pennsylvania. Williams and the three juveniles
returned to the Youngstown area and parted company.
On September 24, 1991, Dominic turned himself in, and
gave a statement about the murders. Later, officers
arrested Jessica and Broderick, and the latter also gave

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No. 02-3461 Williams v. Bagley 5
1“Williams” has been substituted for “the appellant” in this excerpt.
statements. Following their arrests, Jessica, Dominic,
and Broderick were held at the Mahoning County
Juvenile Justice Center (“JJC”).
Williams was arrested in connection with the murders.
Shortly after being arrested, he escaped from jail on
October 15, 1991. While Williams remained a fugitive
from justice, a Mahoning County Grand Jury indicted
him on four counts of aggravated murder, four counts of
kidnapping, and one count of aggravated burglary.
On January 12, 1992, the armed Williams and two other
accomplices, Paul R. Keiper, Jr., and a juvenile named
Eric Fields, appeared at the JJC. The three deceived a
receptionist and were permitted to enter. Once inside,
Williams held the receptionist and a deputy sheriff
hostage, demanding to see Jessica, Dominic, and
Broderick. After lengthy negotiations, Williams
surrendered to authorities. At trial, Keiper testified that
Williams planned to kill the three juveniles because he
knew they had made statements to the police regarding
the murders.
* * *
Jessica, Dominic, and Broderick all entered into plea
agreements with the Mahoning County Prosecutor’s
Office. All three pled guilty to delinquency by reason of
complicity to aggravated murder, complicity to
aggravated burglary, and complicity to kidnapping. All
three testified against Williams.
State v. Williams, 679 N.E.2d 646, 650-51 (Ohio 1997).1
6 Williams v. Bagley No. 02-3461
2Under Ohio’s capital punishment scheme, a jury must recommend
a sentence of death if it finds, by proof beyond a reasonable doubt, that
the aggravating circumstances the offender was found guilty of
committing outweigh the mitigating factors. Ohio Rev. Code A nn.
§ 2929.03(D)(2) (Anderson 2003). If the jury recommends a sentence of
death, the trial court must independently review the evidence. If it finds,
beyo nd a reasonable doubt, that the aggravating circumstances outweigh
any mitigating factors, the trial court must impo se a sentence of death. Id.
§ 2929.03(D)(3)
II. PROCEDUR AL HISTORY.
While Williams was a fugitive, a Mahoning County Grand
Jury returned a nine count indictment against Williams. After
his capture, a Mahoning County Grand Jury returned a
superseding indictment charging Williams with twelve counts
of aggravated murder, four counts of kidnapping, and one
count of aggravated burglary. Each of the aggravated murder
counts included a pair of felony-murder specifications and a
multiple-murder specification, which rendered Williams
eligible for the death penalty. See Ohio Rev. Code Ann.
§ 2929.04(A) (Anderson 2003).
Williams entered a plea of not guilty to all charges and
specifications. On Williams’s motion, the trial court
transferred venue from Mahoning County to Summit County.
At the guilt phase of his trial, the jury found Williams guilty
of all charges and specifications. On Williams’s motion, the
trial court merged the twelve aggravated murder counts into
four counts and the three specifications per count into a single
multiple-murder specification per count. At the penalty phase
of his trial, the jury recommended a sentence of death for each
count of aggravated murder, and the trial court adopted this
recommendation.2 Additionally, the trial court sentenced
Williams for the kidnapping and aggravated burglary
convictions.

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No. 02-3461 Williams v. Bagley 7
3Specifically, he raised the following issues: (1) juro r misco nduc t;
(2) denial of challenges for cause to “automatic death penalty” jurors;
(3) sufficiency of the evidence; (4) admission of “other acts” evidence;
(5) prosecutorial misconduct; (6) denial of motion to suppress the results
of an “atomic ab sorption” test; (7) limitations on cross-examination of
Do minic Cherry; (8) constitutionality of Ohio’s capital punishment
scheme; and (9) denial of motion to qua sh the ind ictment due to
irregularities in the selection of the gra nd jury.
4Under Ohio’s capital punishment scheme, the Ohio Court of
Appeals and the Ohio Supreme C ourt each must ind ependently review the
record and “determine whether the aggravating circumstances the
offender was found guilty of committing outweigh the mitigating factors
in the case, and whether the sentence of death is appropriate.” Ohio Rev.
Code Ann. § 2929.05(A) (Anderson 2003 ). In determining whether a
sentence of death is appropriate, the courts must consider “whether the
sentence is excessive or disp roportionate to the penalty imposed in similar
cases.” Id.
Williams appealed, raising nine assignments of error.3 On
November 1, 1995, the Ohio Court of Appeals affirmed the
judgment and sentence of the trial court. In addition to
overruling Williams’s assignments of error, the court
concluded that the aggravating circumstances outweighed the
mitigating factors and that Williams’s sentence was not
disproportionate to the death sentences imposed in similar
cases.4 On June 11, 1997, the Ohio Supreme Court affirmed
the judgment of the Ohio Court of Appeals. In addition to
rejecting Williams’s propositions of law, the court concluded
that the aggravating circumstances outweighed the mitigating
factors and that Williams’s sentence was neither excessive
nor disproportionate when compared to the sentences imposed
in similar cases. On January 12, 1998, the United States
Supreme Court denied Williams’s petition for writ of
certiorari.
Williams fared no better in state post-conviction
proceedings. On September 20, 1996, Williams filed his
Petition to Vacate or Set Aside Sentence, which set forth a
single cause of action challenging the constitutionality of
8 Williams v. Bagley No. 02-3461
Ohio’s capital punishment scheme, in the Ohio Court of
Common Pleas. The matter sat dormant until October 20,
1998, when the state filed a motion for leave to respond to
Williams’s petition. The court granted the motion, finding
that the state had not received proper notice of the petition.
On October 29, 1998, the state moved for summary judgment,
arguing that Williams’s sole claim was barred by the doctrine
of res judicata. In his response, which was filed on November
19, 1998, Williams ignored the constitutional issue raised in
his petition and instead requested leave to amend his petition.
He claimed that he was attempting to interview his
accomplices, who had testified against him at trial, and that he
expected Jessica Cherry to recant her original testimony.
On December 15, 1998, the court denied Williams’s
petition. It held that the doctrine of res judicata barred
Williams’s constitutional challenge to Ohio’s capital
punishment scheme. Further, it denied Williams a hearing on
his actual innocence claim on the ground that he had not
presented any affidavits or other evidence supporting his
contention that his accomplices intended to recant their
testimony.
On December 24, 1998, Williams filed a motion requesting
permission to interview Broderick Boone, one of his
accomplices, who was then incarcerated. On the same day,
Williams filed a motion requesting that the court reconsider
and vacate its order denying his petition, arguing that he
needed time to interview his accomplices. On January 5,
1999, the court denied both motions.
Williams appealed to the Ohio Court of Appeals,
contending that the Court of Common Pleas had abused its
discretion by denying his request for a court order permitting
an interview of Broderick Boone and by refusing to permit
him to amend his petition. On November 17, 1999, the court
affirmed the judgment of the Court of Common Pleas. On
February 16, 2000, the Ohio Supreme Court declined
jurisdiction over Williams’s appeal, finding that it did not

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No. 02-3461 Williams v. Bagley 9
5W illiams raised the following issues in his petition: (1) juror bias;
(2) retention of “automatic death penalty” jurors; (3) improper dismissal
of jurors; (4) Batson claim; (5) ineffective assistance of counsel at the
guilt phase of trial; (6) prosecutorial misconduct; (7) Brady violations;
(8) denial of right to experts; (9) various errors b y trial court;
(10) admission of crime-scene photographs; (1 1) lack of a comp lete
transcript of pro ceed ings; (12 ) cumulative error; (13) ineffective
assistance at the penalty phase of trial; (14) ineffective assistance of
app ellate counsel; (15) improper aggravating circumstances; (16)
omission of mitigation evidence at the penalty phase of trial; (17)
improper jury instruction on sympathy at the p enalty phase; (18) lack of
meaningful proportionality review; (19) improper standards of review
employed by the O hio appellate courts; (20) lack of adeq uate state post-
conviction procedures; (21) constitutionality of Ohio’s capital
punishment scheme; (22) aggravating factors did not outweigh mitigating
factors; (23 ) allocation to the defendant of the burden of production for
mitigating evidence during the penalty phase; and (2 4) failure of Ohio’s
capital punishment scheme to narrow the class of persons eligible for the
death penalty.
involve any substantial constitutional questions. On
October 2, 2000, the United States Supreme Court denied
Williams’s petition for writ of certiorari.
On August 18, 2000, Williams filed a Notice of Intent to
File Habeas Corpus Petition in the United States District
Court for the Northern District of Ohio. Counsel was
appointed, and, on January 31, 2001, Williams filed his
Petition for a Writ of Habeas Corpus, which raised 24 claims
for relief.5 On February 20, 2001, Williams filed a motion to
conduct discovery pursuant to Rule 6 of the Rules Governing
Section 2254 Cases. On June 22, 2001, the district court
denied Williams’s motion, holding that Williams had not
demonstrated “good cause” entitling him to discovery. On
April 12, 2002, the district court denied Williams’s petition.
It held that Williams had procedurally defaulted the majority
of his claims and that the balance of his claims lacked merit.
The district court also denied Williams’s request for an
evidentiary hearing, finding that no material factual dispute
made such a hearing necessary. On the same day, the district
court denied Williams a certificate of appealability.
10 Williams v. Bagley No. 02-3461
6W illiams’s argument that AE DP A wo uld have an im perm issible
retroactive effect if applied to his petition is discussed infra in Section
I(B).
However, on April 15, 2002, the district court amended its
April 12 order and issued Williams a certificate of
appealability. Williams filed a timely notice of appeal.
ANALYSIS
I. STANDARDS OF REVIEW
A. Standard of Review and AEDPA
In a habeas proceeding, this court reviews a district court’s
legal conclusions de novo and its factual findings for clear
error. Wickline v. Mitchell, 319 F.3d 813, 817 (6th Cir.
2003). However, when a district court bases its decision on
a transcript from the petitioner’s state trial, and thus makes no
credibility determinations or other apparent findings of fact,
the district court’s factual findings are reviewed de novo.
Miller v. Francis, 269 F.3d 609, 613 (6th Cir. 2001).
The standards set forth in the Antiterrorism and Effective
Death Penalty Assistance Act (“AEDPA”) govern our review
of the state court decisions because Williams filed his petition
on January 31, 2001, well after AEDPA’s effective date of
April 24, 1996.6 See Woodford v. Garceau, 538 U.S. 202,
210 (2003); Macias v. Makowski, 291 F.3d 447, 450 (6th Cir.
2002). Pursuant to AEDPA, a writ of habeas corpus will not
issue unless the state court’s adjudication of the claim
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or

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No. 02-3461 Williams v. Bagley 11
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d) (2001). Under the “contrary to” clause,
a court may grant a writ of habeas corpus “if the state court
arrives at a conclusion opposite to that reached by [the
Supreme Court] on a question of law or if the state court
decides a case differently than [the Supreme Court] has on a
set of materially indistinguishable facts.” Williams v. Taylor,
529 U.S. 362, 412-13 (2000). Under the “unreasonable
application” clause, a court may grant a writ of habeas corpus
“if the state court identifies the correct governing legal
principle from [the Supreme Court’s] decisions but
unreasonably applies that principle to the facts of the
prisoner’s case.” Id. at 413.
“[C]learly established Federal law, as determined by the
Supreme Court of the United States,” refers to “the holdings,
as opposed to the dicta, of [the Supreme] Court’s decisions as
of the time of the relevant state-court decision.” Id. at 412.
The state court decision need not cite Supreme Court cases,
or even evince an awareness of Supreme Court cases, “so
long as neither the reasoning nor the result of the state-court
decision contradicts them.” Early v. Packer, 537 U.S. 3, 8
(2002) (per curiam).
Moreover, the findings of fact made by a state court are
presumed correct, and the petitioner has the burden of
rebutting the presumption of correctness by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). The
presumption of correctness also applies to factual findings
made by a state appellate court based on the state trial record.
Brumley v. Wingard, 269 F.3d 629, 637 (6th Cir. 2001)
(citing Sumner v. Mata, 449 U.S. 539, 546-47 (1981)).
Finally, under long-standing law, claims which have been
procedurally defaulted generally are not subject to review. In
particular,
12 Williams v. Bagley No. 02-3461
In all cases in which a state prisoner has defaulted his
federal claims in state court pursuant to an independent
and adequate state procedural rule, federal habeas review
of the claims is barred unless the prisoner can
demonstrate cause for the default and actual prejudice as
a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
B. Applicability of AEDPA Where Conviction
Predated AEDPA
In this case, Williams’s petition was filed after the effective
date of AEDPA, but he was convicted before that date.
Williams contends that the application of AEDPA is therefore
“impermissibly retroactive” pursuant to Landgraf v. USI Film
Products, 511 U.S. 244 (1994). Without elaboration, he
recites that the application of AEDPA to his petition “attaches
new legal consequences to pre-enactment conduct” by
“affecting [his] substantive rights,” by “changing the legal
consequences of pre-enactment conduct,” by “giving a quality
or effect to acts which they lacked or failed to contemplate
prior [to] their performance,” and by “changing the relief that
is available by restricting [his] right to such relief.” This
argument is unavailing.
Landgraf establishes a two-part inquiry to assess whether
to apply “a federal statute enacted after the events in suit.” Id.
at 280; see also Singleton v. Smith, 241 F.3d 534, 541 (6th
Cir. 2001). First, the court must “determine whether
Congress has expressly prescribed the statute’s proper reach.
If Congress has done so, there is no need to resort to judicial
default rules.” Landgraf, 511 U.S. at 280. Second, if “the
statute contains no such express command, the court must
determine whether the new statute would have retroactive
effect, i.e., whether it would impair rights a party possessed
when he acted, increase a party’s liability for past conduct, or

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No. 02-3461 Williams v. Bagley 13
impose new duties with respect to transactions already
completed,” in which case the traditional presumption against
retroactive legislation applies. Id. In determining whether a
statute would have a retroactive effect, “familiar
considerations of fair notice, reasonable reliance, and settled
expectations offer sound guidance.” Id. at 270. “A statute
does not operate ‘retrospectively’ merely because it is applied
in a case arising from conduct antedating the statute’s
enactment.” Id. at 269.
This court, in line with other circuits, has held that the
application of AEDPA to an application filed after AEDPA’s
effective date, but which involves a crime and a conviction
predating AEDPA, does not have a “retroactive effect.” Lott
v. Coyle, 261 F.3d 594, 604 n.3 (6th Cir. 2001) (deeming
petitioner’s argument that the application of AEDPA to a
petition challenging a pre-AEDPA conviction “would be
unconstitutionally retroactive under Landgraf . . . wholly
without merit”); Caldwell v. Bell, Nos. 99-6219 & 99-6307,
2001 WL 549419, at **2 (6th Cir. May 17, 2001) (“Other
than making the general assertion that his ‘legal expectations
and entitlements were abruptly altered on April 24, 1996’
when the AEDPA was enacted, Appellant advances no reason
why this case constitutes an exception to the general rule
which requires the amendments to apply to petitions filed
after April 24, 1996.”); Coe v. Bell, 209 F.3d 815, 823 (6th
Cir. 2000); Trice v. Ward, 196 F.3d 1151, 1158-59 (10th Cir.
1999); Mueller v. Angelone, 181 F.3d 557, 571 (4th Cir.
1999). Williams has not demonstrated that his case merits a
different result, given his failure to identify “any new legal
consequences that, had he known of them in advance, might
have in any way affected his conduct before filing his habeas
petition,” Mueller, 181 F.3d at 572, and his failure to show
that he had acquired any vested rights in pre-AEDPA
standards of review. Compare In re Hanserd, 123 F.3d 922,
931 (6th Cir. 1997) (holding that the application of revised §
2255, which would have barred the petitioner, who had filed
his first § 2255 motion prior to AEDPA’s enactment, from
filing a second § 2255 motion, would have had retroactive
14 Williams v. Bagley No. 02-3461
effect because the petitioner “might well have waited to file
that initial motion” had he foreseen AEDPA’s revision of
§ 2255).
II. THE TRIAL COURT’S REFUSAL TO INVESTIGATE
ALLEGED JUROR BIAS
Each of Williams’s challenges to the trial court’s conduct
of voir dire is, in the end, without merit.
A. Background
Williams argues that the trial court committed
constitutional error by refusing to reexamine a venireman
(Juror Eddleman) after the testimony of another venireman
indicated that Eddleman may have concealed prior knowledge
of the case on voir dire, by failing to dismiss Eddleman for
cause because of alleged bias, and by failing to dismiss for
cause another venireman (Juror Rohwedder) who testified to
overhearing conversations about “fear” of Williams. We note
at the outset that Williams has not cited—either in his brief or
at oral argument—any Supreme Court precedent in support of
his claims. We therefore have been left to find for ourselves
the clearly established Federal law, as determined by the
Supreme Court, underlying his argument.
The Sixth Amendment, made applicable to the States
through the Fourteenth Amendment, guarantees a criminal
defendant a trial by an impartial jury. Morgan v. Illinois, 504
U.S. 719, 726-27 (1992). “In essence, the right to jury trial
guarantees to the criminally accused a fair trial by a panel of
impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717,
722 (1961). The presence of even a single biased juror
deprives a defendant of his right to an impartial jury. See
Morgan, 504 U.S. at 729. “Qualified jurors need not,
however, be totally ignorant of the facts and issues involved.”
Murphy v. Florida, 421 U.S. 794, 799-800 (1975).

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No. 02-3461 Williams v. Bagley 15
To hold that the mere existence of any preconceived
notion as to the guilt or innocence of the accused,
without more, is sufficient to rebut the presumption of a
prospective juror’s impartiality would be to establish an
impossible standard. It is sufficient if the juror can lay
aside his impression or opinion and render a verdict
based on the evidence presented in court.
Irvin, 366 U.S. at 723. When faced with an allegation of bias,
then, the question becomes “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.” Patton v. Yount, 467 U.S. 1025, 1036
(1984). A trial court’s finding of impartiality is a factual
determination entitled to 28 U.S.C. § 2254(e)’s presumption
of correctness, Dennis v. Mitchell, 354 F.3d 511, 520 (6th Cir.
2003), and may “be overturned only for ‘manifest error.’”
Hill v. Brigano, 199 F.3d 833, 843 (6th Cir. 1999) (quoting
Patton, 467 U.S. at 1031).
“[P]art of the guarantee of a defendant’s right to an
impartial jury is an adequate voir dire to identify unqualified
jurors.” Morgan, 504 U.S. at 729. “Without an adequate voir
dire the trial judge’s responsibility to remove prospective
jurors who will not be able impartially to follow the court’s
instructions and evaluate the evidence cannot be fulfilled.”
Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981).
However, “[t]he adequacy of voir dire is not easily the subject
of appellate review,” Morgan, 504 U.S. at 730, and “the trial
court retains great latitude in deciding what questions should
be asked on voir dire.” Mu’min v. Virginia, 500 U.S. 415,
424 (1991). Of course, when reviewing a state court’s
conduct of voir dire, a federal habeas court’s “authority is
limited to enforcing the commands of the United States
Constitution.” Id. at 422. A state court’s refusal to pose
“constitutionally compelled” questions merits habeas relief.
Id. at 424-26. Questions are “constitutionally compelled”
only if “the trial court’s failure to ask these questions
16 Williams v. Bagley No. 02-3461
[renders] the defendant’s trial fundamentally unfair.” Id. at
425-26.
Because the “[p]reservation of the opportunity to prove
actual bias is a guarantee of a defendant’s right to an impartial
jury.” Dennis v. United States, 339 U.S. 162, 171-72 (1950),
questions directed at potential bias may be constitutionally
compelled. For example, when faced with the prospect of
racial bias, a federal habeas court must inquire whether
“under all of the circumstances presented there was a
constitutionally significant likelihood that, absent questioning
about racial prejudice, the jurors would not be as ‘indifferent
as (they stand) unsworne.’” Ristaino v. Ross, 424 U.S. 589,
596 (1976) (quoting Coke on Littleton 155b (19th ed. 1832));
see also Turner v. Murray, 476 U.S. 28, 36-37 (1986)
(holding that a capital defendant accused of an interracial
crime is entitled to have prospective jurors informed of the
race of the victim and questioned on the issue of racial bias).
However, the Supreme Court has “stressed the wide
discretion granted to the trial court in conducting voir dire in
the area of pretrial publicity and in other areas of inquiry that
might tend to show juror bias.” Mu’Min, 500 U.S. at 427.
Clearly established Supreme Court precedent dictates that
“[w]hen a trial court is presented with evidence that an
extrinsic influence has reached the jury which has a
reasonable potential for tainting that jury, due process
requires that the trial court take steps to determine what the
effect of such extraneous information actually was on that
jury.” Nevers v. Killinger, 169 F.3d 352, 373 (6th Cir. 1999),
overruled on other grounds by Harris v. Stovall, 212 F.3d 940
(6th Cir. 2000); cf. United States v. Rigsby, 45 F.3d 120, 124-
25 (6th Cir. 1995) (“When there is a credible allegation of
extraneous influences, the court must investigate sufficiently
to assure itself that constitutional rights of the criminal
defendant have not been violated.”); United States v.
Shackelford, 777 F.2d 1141, 1145 (6th Cir. 1985) (“A trial
court’s refusal to permit an evidentiary hearing may constitute
abuse of discretion when the alleged jury misconduct involves

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No. 02-3461 Williams v. Bagley 17
7Examples of “internal” influences, in contrast, include the behavior
of jurors during deliberations, the jurors’ ability to hear and comp rehend
trial testimony, and the physical and mental incompetence of a juror.
United States v. Herndon, 156 F.3d 629 , 634 -35 (6 th Cir. 1998 ).
extrinsic influences.”). Extrinsic influences include, for
example, an attempt to bribe a juror, a juror’s application for
a job in the district attorney’s office, and newspaper articles
and media attention.7 United States v. Herndon, 156 F.3d
629, 635 (6th Cir. 1998).
As indicated above, “[t]here is no per se rule that mere
exposure to media reports about a case merits exclusion of a
juror.” McQueen v. Scroggy, 99 F.3d 1302, 1319 (6th Cir.
1996); see also DeLisle v. Rivers, 161 F.3d 370, 382 (6th Cir.
1998) (en banc) (“[M]ere prior knowledge of the existence of
the case, or familiarity with the issues involved, or even some
preexisting opinion as to the merits, does not in and of itself
raise a presumption of jury taint.”). “To the contrary, in order
to merit disqualification of a juror, the media reports must
engender a predisposition or bias that cannot be put aside,
requiring the jury to decide a case one way or the other.”
McQueen, 99 F.3d at 1319. Generally, a defendant’s right to
an impartial jury is secured if a juror attests that he can set
aside any information he has obtained and render a verdict
based on the evidence presented in court. Irvin, 366 U.S. at
722-23; DeLisle, 161 F.3d at 382. However, in
“extraordinary” cases, DeLisle, 161 F.3d at 382, where the
trial atmosphere has been “utterly corrupted by press
coverage,” Murphy, 421 U.S. at 798, a court must presume
that pre-trial publicity has engendered prejudice in the
members of the venire. See, e.g., Sheppard v. Maxwell, 384
U.S. 333, 358, 363 (1966) (finding that “inherently prejudicial
publicity [] saturated the community” and that a “carnival
atmosphere” reigned at trial); Irvin, 366 U.S. at 726
(“[C]ontinued adverse publicity caused a sustained
excitement and fostered a strong prejudice” among the people
of the county.).
18 Williams v. Bagley No. 02-3461
Finally, in McDonough Power Equipment, Inc. v.
Greenwood, 464 U.S. 548 (1984), the Supreme Court devised
a test for determining whether a juror’s non-disclosure during
voir dire necessitates a new trial. To obtain a new trial, a
party “must first demonstrate that a juror failed to answer
honestly a material question on voir dire, and then further
show that a correct response would have provided a valid
basis for a challenge for cause.” Id. at 556. “The motives for
concealing information,” the court explained, “may vary, but
only those reasons that affect a juror’s impartiality can truly
be said to affect the fairness of a trial.” Id. Thus,
McDonough teaches that the deliberate concealment of
information on voir dire does not automatically give rise to a
presumption of bias. Zerka v. Green, 49 F.3d 1181, 1186 (6th
Cir. 1995). “If a juror is found to have deliberately concealed
material information, bias may be inferred. If, however,
information is not concealed deliberately, the movant must
show actual bias.” Id. (internal quotation marks omitted)
(emphasis in original).
B. Trial Court’s Refusal to Reexamine Juror
Eddleman
Williams argues that the trial court imperiled his right to an
impartial jury by failing to dismiss Juror Eddleman for bias
after evidence arose which arguably indicated that she
concealed prior knowledge of the case during voir dire and by
refusing to reexamine Eddleman in light of that evidence. We
conclude that the Ohio Supreme Court did not unreasonably
determine that Eddleman was not biased and did not
unreasonably apply clearly established federal law in holding
that the trial court had not abused its discretion by refusing to
reexamine Eddleman.

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No. 02-3461 Williams v. Bagley 19
8Specifically, the following colloquy transpired :
THE COURT: . . . Do you know any of the perso ns in this
room , any parties?
JURO R EDD LEMAN : No, I don’t.
THE COURT : Do you know anything about this case?
JUROR ED DLEM AN: No.
THE CO URT: Except what I said?
JURO R EDD LEMAN : Just what I’ve heard thro ugh you.
J.A. at 2 715 .
During voir dire, Eddleman denied having any prior
knowledge of the case.8 Later in voir dire, another
venireman, Juror Parsons, claimed that Eddleman had told her
that Eddleman “heard [the case] was from Youngstown and
it had something to do with drugs,” but that Eddleman “didn’t
know if that was true.” J.A. at 2765. Under further
questioning, Parsons elucidated,
To tell you the truth, I was only half listening because I
don’t know if she had her information correct. She said
that she had spoken to someone who lived in
Youngstown and was familiar with the case and that it
involved drugs and that’s all she knew and that’s all she
told me, who read it in the newspaper, I believe. And
that’s basically all she knew. I don’t even know, like I
said, if that’s correct. She didn’t know if that’s correct.
J.A. at 2782. She further explained,
I don’t know whether she herself had the conversation.
She said—like I said, I was only half listening because I
didn’t know if it was true or not and really didn’t care.
I don’t know whether it was someone in her family had
spoken to someone in Youngstown or she had spoken to
20 Williams v. Bagley No. 02-3461
this person or whatever. But the gist of what I got was
just what I told the Judge, that someone had told her, and
I don’t know if it was her husband talked to someone or
whatever, just that there was a case in Youngstown and
it involved drugs.
Oh, there was something else. I said, “This case is two
years old, who can remember what you read two years
ago?” And she said—I said, “Why would it take two
years for the case to come to court?” And she said they
were unable to find the gentleman. I forgot about that.
And that was all that was said.
J.A. at 2784-85.
Later, defense counsel requested that the court reexamine
Eddleman in light of Parsons’s testimony. J.A. at 3026-27.
The court tentatively denied the request, but agreed to give
the matter further consideration. J.A. at 3032-33. However,
at this time, the court did give a general instruction to the
venire admonishing the members not to discuss the case
among themselves or with others and to avoid media reports
about the case. J.A. at 3033-35. Additionally, in its
preliminary instruction to the jury, the court ordered the jurors
to disregard any information about the case from an outside
source and not to repeat any such information to other jurors.
J.A. at 3617. The court never called Eddleman back for
further questioning.
At the start of trial, Williams moved for a mistrial, arguing,
inter alia, that the court had jeopardized Williams’s right to
a fair trial by refusing to reexamine Eddleman, who was
seated on the jury, in order to determine whether Eddleman
had deliberately concealed prior knowledge of the case and
whether any prior knowledge of the case had prejudiced
Eddleman. J.A. at 617-18. The court denied Williams’s
motion, reasoning that “[a]ll of the jurors selected testified
that they would be fair, impartial and base their verdict solely
upon the evidence presented at trial.” J.A. at 892.

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No. 02-3461 Williams v. Bagley 21
Both the Ohio Court of Appeals and the Ohio Supreme
Court held that the trial court had not abused its discretion by
refusing to examine Eddleman further. The Ohio Court of
Appeals found that Eddleman had not deliberately concealed
her knowledge of the case, as Eddleman’s responses to the
court’s questions “were not necessarily inconsistent” with the
remarks later attributed to her by Parson because “at best,
[Eddleman] seemed to have heard some gossip, the truth of
which was uncertain.” State v. Williams, No. 16418, 1995
WL 641137, at *7 (Ohio. Ct. App. 1995). The court further
determined that, even if Eddleman had deliberately concealed
information, “this fact would not inescapably lead to a
presumption of bias” because “[t]he information that
Eddleman purportedly knew and concealed—that the case
was from Youngstown, it involved drugs, and that the state
was unable to locate Williams for a period of time—consisted
of elemental facts concerning the case.” Id.
Because Williams had not challenged Eddleman for cause
on the ground of deliberate concealment, the Ohio Supreme
Court reviewed his claim under Ohio’s plain error rule. State
v. Williams, 679 N.E.2d 646, 652 (Ohio 1997). The court
found that Eddleman had not “deliberately concealed the
conversation because she did not know whether those rumors
were true. Thus, her voir dire response was truthful—she did
not know anything about the case.” Id. The court also held
that the trial court sufficiently inquired into the alleged
misconduct. Id. at 652-53. The chief justice, joined by
another justice, dissented, stating that the majority’s “strained
and unlikely interpretation of Eddleman’s response” neither
eliminated “legitimate concerns of concealment” nor absolved
the trial court of “the obligation to investigate further in
defense of Williams’s constitutional rights.” Id. at 665
(Moyer, C.J., dissenting).
In his federal habeas petition, Williams asserted that the
trial court “abused its discretion” by failing to reexamine
Eddleman to determine whether she “had improperly
answered or evaded inquiries concerning [her] knowledge of
22 Williams v. Bagley No. 02-3461
9In evaluating Williams’s claim, we assume that Parsons accurately
identified Eddleman as the woman she spoke with.
10The Ohio Supreme Court found that because Williams did not
challenge Eddleman on this ground, Williams waived this claim.
Williams, 679 N.E.2d at 652. Ho wever, because the State has not relied
on W illiams’s procedural default in this regard, we p roceed to the merits
of W illiams’s claim . See Trest v. C ain, 522 U.S. 87, 89 (1 997).
the defendant or the case.” J.A. at 31. The district court
rejected Williams’s argument, concluding that the state
courts’ findings that Eddleman was not biased and had not
deliberately concealed material information were not
unreasonable. J.A. at 143. It stated, “accepting the testimony
that Eddleman was not aware of the accuracy of her
statements, the court’s determination that Eddleman’s
responses on voir dire were truthful is not unreasonable in
light of the facts presented.” J.A. at 144.
On appeal, Williams contends that Eddleman was biased
against him and that the trial court “abused its discretion”
when it refused to recall Eddleman for further questioning.
Though Williams’s argument is somewhat muddy, there are
three distinct circumstances possibly underpinning his claim
of bias. First, Eddleman may have lied about her prior
knowledge of the case on voir dire.9 Second, Eddleman knew
that Williams’s case “involved drugs,” that the case originated
in Youngstown, and that Williams had eluded the authorities.
Third, Eddleman learned of this information through a
conversation with a third party, most likely an acquaintance
in Youngstown or a member of her family (who in turn had
learned of the information from someone in Youngstown).
In light of the record as it exists, the Ohio courts did not
unreasonably determine that Eddleman was not biased.
Williams insists that bias should be attributed to Eddleman
because she lied about her prior knowledge of the case on voir
dire.10 However, the record does not establish that Eddleman
deliberately concealed information on voir dire because there

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No. 02-3461 Williams v. Bagley 23
11Bo th the Ohio Court of Appeals and the Ohio Suprem e Court
found that Eddleman responded truthfully to the trial court’s question
because she did not know whether the “gossip” she heard was accurate.
Given the state of the record, this is a reasonable factual determination.
Nonetheless, however probab le the O hio ap pellate court’s explanation for
Eddleman’s answer, it is possible that Eddleman lied to the trial court.
Thus, the Ohio Supreme Court’s finding that Eddleman’s response was
truthful does not by itself entirely dispose of Williams’s argument that the
trial court should have reexamined Eddleman in light of Parsons’s
testimony.
are eminently reasonable explanations for her negative answer
to the trial court’s question, “Do you know anything about
this case?” See Jones v. Cooper, 311 F.3d 306, 311-12 (4th
Cir. 2002) (“Given these eminently reasonable explanations
for the supposed discrepancies between the juror’s voir dire
answers and the statements to the investigator, there is simply
no basis upon which to conclude that the juror lied . . . .”).
Eddleman may have misunderstood the court’s question or
her “knowledge” of the case may have temporarily slipped
her mind. Or, as the Ohio Court of Appeals and the Ohio
Supreme Court recognized, Eddleman may have responded
truthfully as her “knowledge” consisted of “gossip” of
questionable veracity.11 Moreover, as discussed infra, even
if Eddleman deliberately concealed information, that fact
alone does not give rise to a presumption of bias. Thus,
Williams cannot use Eddleman’s alleged lie to show that the
Ohio Supreme Court unreasonably determined that Eddleman
was not biased.
Nor do the substance or the source of Eddleman’s prior
knowledge of the case demonstrate that the Ohio courts
unreasonably determined that Eddleman was not biased. “[I]n
order to merit disqualification of a juror, the media reports
must engender a predisposition or bias that cannot be put
aside,” McQueen, 99 F.3d at 1319, and, as the Ohio Court of
Appeals observed, the information that Eddleman purportedly
concealed consisted of “elemental facts,” Williams, 1995 WL
641137, at *7, which Eddleman learned anyway in the course
24 Williams v. Bagley No. 02-3461
of the trial. Finally, there is no indication that the source of
Eddleman’s information attempted to influence Eddleman in
any manner.
The rub, then, is whether the Ohio Supreme Court
unreasonably applied Ristaino, Mu-Min, or other Supreme
Court precedent on jury bias and the conduct of voir dire
when it denied Williams’s request to reexamine Eddleman.
Ideally, of course, the trial court would have called Eddleman
back for further questioning in order to determine whether in
fact Eddleman had prior knowledge of the case, whether any
prior knowledge left her with any impressions or opinions
concerning the case, whether she could set aside any such
impressions or opinions, and whether she deliberately
concealed any prior knowledge. Upon final analysis, though,
we cannot say that the trial court’s failure to recall Eddleman
rendered Williams’s trial fundamentally unfair. Mu’Min, 500
U.S. at 425-26. The Sixth Amendment does not obligate state
trial courts to investigate every allegation of bias or juror
misconduct. See id. at 427 (noting the “wide discretion
granted to the trial court in conducting voir dire in the area of
pretrial publicity and in other areas of inquiry that might tend
to show juror bias”); Szuchon v. Lehman, 273 F.3d 299, 313
(3d Cir. 2001); cf. United States v. Rigsby, 45 F.3d 120, 125
(6th Cir. 1995). Rather, a constitutional duty of inquiry arises
only when “under the circumstances presented there was a
constitutionally significant likelihood that, absent questioning
about [the potential bias], the jurors would not be as
indifferent as (they stand) unsworne,” Ristaino, 424 U.S. at
596 (internal quotation marks omitted), or when “a trial court
is presented with evidence that an extrinsic influence has
reached the jury which has a reasonable potential for tainting
that jury.” Nevers, 169 F.3d at 373. Here, Williams has not
shown that the Ohio appellate courts unreasonably concluded
that there was no constitutionally significant likelihood that,
absent questioning of Eddleman about her prior knowledge of
the case, a biased juror (Eddleman) would sit on Williams’s
jury.

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No. 02-3461 Williams v. Bagley 25
12In fact, the transcript of Ed dleman’s voir dire belies any argument
that Eddleman intentionally lied abou t her “knowledge” of the case in
order to stay on the jury. H ad E ddleman been intent upon sitting on the
jury, she presumably wo uld have stated forthrightly that she co uld set
aside any partiality for the death penalty and follow the court’s sentencing
instructions, instead of vacillating in her answers as she did. See Section
III(B ), infra.
Williams’s primary argument, as far as we can tell, is that
further inquiry would have disclosed that Eddleman lied in
response to the trial court’s question about her “knowledge”
of the case and that this act of dishonesty would have enabled
Williams to challenge Eddleman for cause on the ground of
bias. The Ohio Supreme Court’s finding on a limited record
that Eddleman responded truthfully to the court’s question
does not logically foreclose Williams’s argument that further
questioning should have been allowed so that Williams could
demonstrate the contrary, but the Ohio Supreme Court’s
opinion can fairly be read as an explanation for why further
inquiry was not constitutionally required. Overall, it was
unlikely, at best, that Eddleman deliberately concealed her
“knowledge” of the case. Williams offers no rationale for
Eddleman’s alleged prevarication,12 and it appears most
probable that Eddleman either deemed the “gossip”
unresponsive to the court’s question, as the Ohio appellate
courts supposed, or misapprehended the question. The Ohio
Supreme Court’s opinion thus reasonably supports the trial
court’s determination not to have Eddleman questioned
further.
Moreover, even if Eddleman had deliberately concealed
prior knowledge of the case, this conduct would not have
given rise to a presumption of bias on her part. As discussed
earlier, a court may, but need not, presume bias if a juror
deliberately conceals material information on voir dire.
Zerka, 49 F.3d at 1186; see also Fuller v. Bowersox, 202 F.3d
1053, 1056 (8th Cir. 2000) (holding that “a juror’s apparent
dishonesty is not a sufficient predicate to obtaining a new
trial” (internal quotation marks and punctuation omitted));
26 Williams v. Bagley No. 02-3461
United States v. Langford, 990 F.2d 65, 69 (2d Cir. 1993)
(refusing to recognize “a per se rule based simply on whether
a prospective juror had lied, without respect to whether the
dishonesty had a bearing on her impartiality”); cf. United
States v. Boney, 977 F.2d 624, 634 (D.C. Cir. 1992) (refusing
to hold that “any false statement or deliberate concealment by
a juror necessitates an evidentiary hearing”). As the Supreme
Court has held, “[t]he motives for concealing information
may vary, but only those reasons that affect a juror’s
impartiality can truly be said to affect the fairness of a trial.”
McDonough, 464 U.S. at 556. Thus, courts have presumed
bias in cases where a juror has engaged in a pattern of deceit
or has concealed information that bears on his impartiality.
For instance, Williams v. Taylor, 529 U.S. 420, 441-42
(2000), held that an evidentiary hearing was merited where a
juror had concealed that she had been represented by the
prosecutor in her divorce and that she had been married to a
state witness, a deputy sheriff. And in Fields v. Woodford,
309 F.3d 1095, 1105-06 (9th Cir. 2002), the court held that an
evidentiary hearing was necessary because a juror in a rape
case concealed the fact that his wife had been raped. See also
Green v. White, 232 F.3d 671, 677-78 (9th Cir. 2000) (a juror
repeatedly concealed his prior conviction in order to get on
the jury and stated during jury deliberations that he knew the
defendant was guilty the minute he saw him and he wished he
could get a gun and shoot the defendant himself); Dyer v.
Calderon, 151 F.3d 970, 982-83 (9th Cir. 1998) (en banc) (a
juror in a murder trial lied repeatedly about her brother’s
murder and refused to admit that certain of her relatives had
been accused of crimes and that she herself had been a crime
victim). Conversely, courts have refused to presume bias
where the juror’s dishonesty does not suggest partiality. The
court in Solis v. Cockrell, 342 F.3d 392, 393, 399 (5th Cir.
2003), refused to presume bias where a juror failed to reveal
the fact that he lived near the defendant and had “known of”
the defendant for more than 20 years. The court in Jones held
that a juror’s failure to disclose that she had relatives who had
been arrested or subject to trials did not create an implication
of bias. 311 F.3d at 311, 313. And in Langford, the court

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No. 02-3461 Williams v. Bagley 27
13The cases cited by Williams provide an instructive comparison. In
United States v. Herndon, 156 F.3d 629, 636-37 (6th Cir. 1998), a hearing
was required b ecause the juro r may have ha d unsucce ssful business
dealings with defendant. In United States v. Walker, 1 F.3d 423 , 429 (6th
Cir. 1993), a hearing was required b ecause jurors were given transcripts
containing highlighted material which had been redacted from copies of
video tapes shown to the jury at trial. Finally, in United States v. Herring,
568 F.2d 1099, 11 03-04 (5th Cir. 1978), a hearing was required b ecause
jurors were potentially exposed during a trial to a newspap er article
reporting death threats against a prosecution witness.
found no bias because the juror gave false answers to avoid
embarrassment. 990 F.2d at 69-70. In the case at bar,
Williams offers no explanation as to how a finding that
Eddleman deliberately concealed her “knowledge” of the case
might lead to a finding that Eddleman was biased, and we
have identified none.
Further, as the Ohio Court of Appeals concluded, the
substance of the purportedly concealed information would not
have enabled Williams to challenge Eddleman for cause.
Neither knowledge of “elemental facts,” which were disclosed
at trial, nor a conversation with a family member or a friend
about the case, prior to impanelment, would disable
Eddleman from serving as an impartial juror.13 As we said in
Scott v. Mitchell, 209 F.3d 854, 879 (6th Cir. 2000),
“[a]llegations of jury bias must be viewed with skepticism
when the challenged influence occurred before the jurors took
their oath to be impartial.” In summary, Williams has not
explained how further questioning of Eddleman might have
yielded a finding that Eddleman was biased. Therefore, we
cannot conclude that the Ohio courts unreasonably applied
clearly established federal law in refusing to reexamine
Eddleman.
C. Juror Rohwedder’s “Fear”
Williams’s contention that Juror Rohwedder was biased
because she overheard conversations among other veniremen
about “fear” of Williams is without merit. During voir dire,
28 Williams v. Bagley No. 02-3461
Rohwedder reported that she overheard “chatting” and
“gossip” among other members of the venire about the case.
J.A. at 3080. When asked whether she heard anyone say
“anything about being afraid of Mr. Williams or his family,”
she responded, “Maybe in a general sense, that because of the
nature of the case there’s fear.” J.A. at 3080-81. She
elaborated,
I think there’s a very high emotional level right now and
with all, like you said, the waiting, the speculation, the
not knowing, the anxiety part of it, and it’s very
unnecessary. I feel that a lot of it has just mushroomed
and it’s too bad because you don’t have to be talking 24
hours a day, you don’t have to be worrying about things
that you shouldn’t have to worry about. I find fault with
that part of the process.
J.A. at 3081. However, she volunteered, “I don’t think
anything that has been said in my presence has affected my
opinion of anything. I’m just here to do what you ask me to
do.” J.A. at 3081-82.
Also during voir dire, Rohwedder opined that “[i]t’s not
just an ordinary day at the courthouse” because people
entering the courthouse were required to pass through
security, and she admitted “[i]t’s a little unnerving.” J.A. at
3082. However, the judge clarified that the security system
had not been put in place for Williams’s trial but instead had
been implemented earlier in the year. J.A. at 3083-84.
Specifically, he advised that “since this case started I think all
the employees go through it, or basically. I think that’s the
only change. We’ve had the security for months. And it had
nothing to do with this case at all. It had to do with the
judges wanting more security in the building.” J.A. at 3084.
When asked whether “there is an impression in your mind
then that Mr. Williams probably did this and that’s why there
has to be extra security,” Rohwedder replied, “Not
necessarily. I think everybody has to be guarded. There’s a
problem. You know, here we are.” J.A. at 3085.

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No. 02-3461 Williams v. Bagley 29
Williams did not challenge Rohwedder for cause and
mentioned Rohwedder only in passing in his motion for a
mistrial. Nevertheless, neither of the Ohio appellate courts
invoked the plain error rule in reviewing Williams’s claim.
The Ohio Court of Appeals held that the trial court had not
abused its discretion by failing to conduct further inquiry as
to Rohwedder, noting that “Rohwedder stated that the venire
members talked about the trial, but that no specifics were
discussed.” Williams, 1995 WL 641137, at *7. The Ohio
Supreme Court held that the trial court had not abused its
discretion by permitting Rohwedder to sit on the jury,
explaining that, although Williams claimed that Rohwedder
“was biased because she allegedly overheard discussion about
security and possible retaliation . . . Rohwedder indicated that
she had heard no such discussion.” Williams, 679 N.E.2d at
652.
In his federal habeas petition, Williams referred to
Rohwedder’s testimony regarding “juror discussion about fear
of the defendant” and her “observation of heightened
security,” in the course of arguing that the trial court failed to
examine potential jurors “to assure [Williams] that an
impartial jury was impaneled.” J.A. at 30, 32. Interpreting
the mention of Rohwedder as a challenge to Rohwedder’s
impartiality, the district court held that “the state court was
reasonable in determining that Rohwedder was not biased.”
J.A. at 144. On appeal, Williams adopts the district court’s
construction of his claim, arguing that Rohwedder “was
clearly biased as she testified to juror discussion about fear of
[Williams] and that the observation of heightened security
increased the emotional level of jurors.”
Whatever the particulars of his claim, Williams has not
shown that the trial court acted unreasonably with regard to
Rohwedder. Williams has not explained what further
questioning of Rohwedder was, in his estimation,
constitutionally required. Likewise, the charge of bias is
without merit. Rohwedder testified that she had heard
“[n]othing specific” concerning juror fear of Williams, and
30 Williams v. Bagley No. 02-3461
that she did not think that “anything that has been said in my
presence has affected my opinion of anything.” J.A. at 3080-
81. Similarly, after the court clarified that security at the
courthouse had not been heightened due to Williams’s trial
but rather had been improved months earlier, Rohwedder
indicated that this would not affect her impartiality. J.A. at
3083-85. In light of Rohwedder’s declarations of
impartiality, the Ohio courts’ finding of impartiality was a
reasonable determination of the facts in light of the evidence
presented, and Williams has not succeeded in rebutting the
presumption of correctness afforded this finding. Simply put,
Williams has not identified any constitutional error possibly
meriting habeas relief in the trial court’s treatment of
Rohwedder.
D. Trial Court’s Failure to Conduct Additional Voir
Dire
In the course of challenging the seating of Eddleman and
Rohwedder on the jury, Williams asserts that the trial judge
failed “to properly discharge his duty to guarantee, to a
reasonable degree of certainty, that Petitioner received a fair
trial from twelve jurors. In the face of actual juror
misconduct and bias, the trial judge limited the voir dire
examination of suspect jurors and abdicated his
responsibilities altogether to make further inquiry.” To the
extent that this statement represents a challenge to the trial
court’s failure to conduct additional voir dire of jurors other
than Eddleman and Rohwedder, Williams’s claim falls short.
Williams has not shown that pre-trial publicity rose to a level
which infringed his right to a fair trial. See Hill, 199 F.3d at
844. Nor has he identified any particular juror who sat on his
case, other than Eddleman and Rohwedder, who he believes
was prejudiced against him. The Ohio Supreme Court held
that the trial judge had not acted “unreasonably or arbitrarily
restricted examination or investigation into the
preconceptions of prospective jurors.” Williams, 679 N.E.2d
at 653. As Williams offers only the above-quoted passage in

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No. 02-3461 Williams v. Bagley 31
14In his brief, W illiams comm ents that he “was forced to use
numerous peremptory challenges to remove [auto matic d eath penalty]
jurors for the court’s failure to excuse them for cause.” However, if a
defendant remo ves a challenged juror by using a p eremptory challenge,
he forgoes a later challenge to the trial court’s decision not to excuse the
juror for cause. Bowling v. Parker, 344 F.3d 48 7, 521 (6th Cir. 2003);
Wolfe v. Brigano, 232 F.3d 49 9, 502 (6th Cir. 2000).
support of any claim, we cannot say that the Ohio Supreme
Court unreasonably applied clearly established federal law.
III. CHALLENGES FOR CAUSE TO “AUTOMATIC DEATH
PENALTY” JURORS
The Ohio courts did not unreasonably apply the Supreme
Court’s decision in Morgan v. Illinois, 504 U.S. 719 (1992),
in denying Williams’s challenges for cause to a pair of
alleged “automatic death penalty” jurors.
A. Legal Standard
A capital defendant may challenge for cause any
“automatic death penalty” juror—i.e., any juror who would
“vote to impose death automatically if the jury found the
defendant guilty.” Morgan, 504 U.S. at 728. As a general
rule, a defendant may excuse a juror for cause if “the juror’s
views would prevent or substantially impair the performance
of his duties as a juror in accordance with his instructions and
his oath.” Id. (quoting Wainwright v. Witt, 469 U.S. 412, 424
(1985)). Applying this rule in the capital context, “[a] juror
who will automatically vote for the death penalty in every
case will fail in good faith to consider the evidence of
aggravating and mitigating circumstances as the instructions
require him to do.” Id. at 729. “Therefore, based on the
requirement of impartiality embodied in the Due Process
Clause of the Fourteenth Amendment, a juror may challenge
for cause any prospective juror who maintains such views.”
Id.14
32 Williams v. Bagley No. 02-3461
15At the time o f Williams’s trial, the possible penalties for an
offender found guilty of an aggravated murd er charge and a death-penalty
specification were death, life imprisonment with parole eligibility after
serving twenty full years of imprisonment, or life imprisonment with
paro le eligibility after serving thirty full years of imprisonm ent. Ohio
Rev. Cod e Ann. § 2929 .03(C)(2 ) (And erson 199 3).
A trial court’s finding as to a juror’s impartiality is a factual
determination entitled to a presumption of correctness under
28 U.S.C. § 2254(e)(1). See Bowling v. Parker, 344 F.3d
487, 519 (6th Cir. 2003); Miniel v. Cockrell, 339 F.3d 331,
338-39 (5th Cir. 2003). “[O]ur review is deferential,
respecting the trial judge’s proximity to the venire and the
determinations of credibility and demeanor that voir dire
involves.” Wolfe v. Brigano, 232 F.3d 499, 502 (6th Cir.
2000). “The question is not whether the trial judge was
wrong or right in his determination of impartiality, but merely
whether his decision was ‘fairly supported by the record.’”
Bowling, 344 F.3d at 519 (quoting Witt, 469 U.S. at 433).
B. Challenge for Cause to Juror Eddleman
The state courts did not make an unreasonable
determination of fact in denying Williams’s challenge for
cause to Juror Eddleman. Initially, when questioned by the
court, Eddleman expressed her reluctance to impose the death
penalty. Later, when pressed by defense counsel, Eddleman
did testify that she would “probably” sentence a capital
defendant to death, given that any life sentence would carry
with it parole eligibility.15 However, she professed a
“dislike” of all the sentencing options, and described a vote
for a sentence of death as a “difficult decision.” More
importantly, later, in response to specific questioning by the
trial court and defense counsel, she stated that she could
follow the court’s instructions and recommend a sentence of
life imprisonment with parole eligibility if the aggravating
circumstances did not outweigh the mitigating factors. Thus,
the trial court’s conclusion that Eddleman could serve
impartially is fairly supported by the record.

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No. 02-3461 Williams v. Bagley 33
The court asked Eddleman several questions at the outset
concerning her willingness to recommend a death sentence to
the court.
COURT: . . . If you find yourself in that situation, could
you make such a recommendation to the Court, that is,
the defendant receive the death sentence?
JUROR EDDLEMAN: I believe in the death sentence
but I think I would have a hard time deciding that’s
what—
THE COURT: It is a difficult decision to make.
JUROR EDDLEMAN: It is.
THE COURT: There is no question about it.
JUROR EDDLEMAN: The way I look at it is if you
were going to say the death sentence, that you should be
willing to be one of the ones that would be there and
push the button or pull the lever, whatever they do. And
I just don’t think I could do that.
THE COURT: Nor would you ever be asked to.
JUROR EDDLEMAN: I know that.
THE COURT: However, the Court will give you
instructions of law, both at the end of the first phase and
also at the end of the second phase.
JUROR EDDLEMAN: Uh-huh.
THE COURT: And you and the balance of the jury
would weigh in the second phase the aggravating
circumstances against the mitigation—mitigating factors.
JUROR EDDLEMAN: Right.
34 Williams v. Bagley No. 02-3461
THE COURT: And if you unanimously find the
aggravating circumstances outweigh the mitigating
factors, then you would be required to make a
recommendation of death sentence.
The converse is true if you don’t find that. That is, if
the State fails to prove the aggravating circumstances
outweigh the mitigating factors, then you have to
recommend a life sentence and then decide which life
sentence: 20 to life or 30 to life.
JUROR EDDLEMAN: I understand. Okay.
THE COURT: Now, I know it’s not easy. Could you
follow the instructions of the Court?
JUROR EDDLEMAN: Yes, I could.
J.A. at 2718-19.
Later during voir dire, defense counsel questioned
Eddleman at length about her ability to impose a life sentence
with parole eligibility.
[DEFENSE COUNSEL]: The flip side of the sentencing
issue, which I’m interested in, is whether or not you
would fairly consider the two life imprisonment
sentencing alternatives if you were ever called upon to
determine the sentence. Do you know what those two
alternative are? The judge discussed them with you.
JUROR EDDLEMAN: Life.
[DEFENSE COUNSEL]: With parole eligibility after
serving 20 full years is one alternative. The other is life
with parole eligibility after serving 30 full years.
JUROR EDDLEMAN: No, I wouldn’t.
[DEFENSE COUNSEL]: I’m sorry, you wouldn’t?

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No. 02-3461 Williams v. Bagley 35
JUROR EDDLEMAN: If he was convicted of the
murders I would say no, I would not consider that with
parole.
[DEFENSE COUNSEL]: Okay. Do you want to tell me
why not?
JUROR EDDLEMAN: Because if the murders were
committed I don’t—I don’t believe that they should ever
be released.
* * *
[DEFENSE COUNSEL]: I will candidly tell you that I
am now a little concerned that you cannot fairly consider
the two life sentencing options. My concern is based
upon what you just told me about being unable to
consider them if the defendant was eligible for parole at
some point in time.
JUROR EDDLEMAN: I wouldn’t—I do not believe that
there should even be parole considered if somebody
would have committed the murder. That’s what I mean.
[DEFENSE COUNSEL]: I understand. I understand
that that’s how you feel and there are whole segments of
society that feel the same way you do. I may feel the
same way you do. But how I feel doesn’t account for
anything in this case. And how you feel about eligibility
for parole only bears upon this case if you cannot set
your feelings aside and follow the instructions of the
Court. Am I making sense so far?
JUROR EDDLEMAN: Just a minute. So I
would—well, what I’m saying, I would not believe in the
parole so therefore I would not be able to, if it was not
the death sentence, I would not feel comfortable with the
20 year and the parole or the 30 year and the parole.
36 Williams v. Bagley No. 02-3461
[DEFENSE COUNSEL]: I understand that’s what you
are saying. Are you telling me that if the defendant were
convicted, that because there’s a possibility of parole
after 20 years or after 30 years that you would
automatically vote for the death penalty?
JUROR EDDLEMAN: Oh—
[DEFENSE COUNSEL]: Would you?
JUROR EDDLEMAN: No. I couldn’t say that. I guess
I don’t like any three of the choices, is what I’m saying.
* * *
[DEFENSE COUNSEL]: So that may make the rest of
this easy since you don’t like either of the three. Do you
dislike them equally or do you dislike one more than the
others?
JUROR EDDLEMAN: Let’s see. I would say I dislike
all of them.
[DEFENSE COUNSEL]: Okay.
JUROR EDDLEMAN: I mean, you know.
[DEFENSE COUNSEL]: What are we going to do about
that? You dislike all that.
JUROR EDDLEMAN: Change the rules.
[DEFENSE COUNSEL]: Call our legislators, see if we
can get a quick—
JUROR EDDLEMAN: Yes.
[DEFENSE COUNSEL]: You understand that you only
have those three options if you get to the point—

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No. 02-3461 Williams v. Bagley 37
JUROR EDDLEMAN: Those three options, if it came
right down to it, it would probably be the death penalty
then. If there was any remote chance of them being
paroled, I would probably go with the death penalty.
[DEFENSE COUNSEL]: Automatically, just because of
the possibility of parole?
JUROR EDDLEMAN: Yes.
[DEFENSE COUNSEL]: And you are saying that even
though you know that these three alternatives should start
out even in your mind? You are being honest with me.
JUROR EDDLEMAN: Yes.
[DEFENSE COUNSEL]: And because of what you are
saying about the death penalty being automatic, because
of the eligibility of parole, you would be unable to fairly
consider life imprisonment, am I right?
JUROR EDDLEMAN: If it was without ever a chance
of parole, yes.
[DEFENSE COUNSEL]: That’s not the way it is.
JUROR EDDLEMAN: Since we don’t have a choice I
would say the death penalty.
[DEFENSE COUNSEL]: And you say that knowing that
there are these life sentencing options that you should
consider?
JUROR EDDLEMAN: Because whenever I think about
it I would think well, maybe 30 years down the line
somebody may be getting out of prison and might meet
up with one of my children or something. That’s what
I’m thinking of whenever I think of it.
* * *
38 Williams v. Bagley No. 02-3461
[DEFENSE COUNSEL]: Is your bottom line, if I have
to determine the sentence I’ll vote death because there’s
eligibility for parole?
JUROR EDDLEMAN: Yes.
J.A. at 2728-35.
Following this exchange, the trial judge questioned
Eddleman about her ability to follow the court’s instructions
at sentencing.
THE COURT: If you find that the State did not do its
job and you find the State did not prove that the
aggravating circumstances outweighed the mitigating
factors, then you must recommend a life sentence. There
are two options.
JUROR EDDLEMAN: Two options.
THE COURT: You the jury would then decide, if that
were the case, whether it would be 20 years to life or 30
years to life. As pointed out by counsel there’s no
eligibility for parole until that minimum time is served,
be it 20 or 30. And not you or me determine after that if
he has been rehabilitated, if he should be let out in
society, the parole authority does that.
But knowing that’s your choice, first finding whether
the State proved aggravating circumstances outweighed
the mitigating factors then you must give the death
penalty, or if you find they didn’t prove [this] then you
must vote for a life sentence. Can you follow the
instructions of law?
JUROR EDDLEMAN: Yes.
THE COURT: You see your choice basically is in the
finding of aggravating circumstances, whether they
outweigh the mitigating factors. If you find the State

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No. 02-3461 Williams v. Bagley 39
didn’t do their job and didn’t prove it then you must
recommend life.
JUROR EDDLEMAN: Life.
THE COURT: If you find the State did it then you—that
is beyond a reasonable doubt—then you must find for the
death penalty. Do you understand that?
JUROR EDDLEMAN: Yes.
J.A. at 2736-37.
Finally, defense counsel again questioned Eddleman about
her ability to follow the court’s instructions given her
opposition to parole.
[DEFENSE COUNSEL]: Right now you have taken an
oath to tell us the truth and obviously that’s what you are
telling us. Your feelings regarding parole eligibility, will
that affect the balancing that the Judge described for
you?
JUROR EDDLEMAN: No, I don’t believe so.
[DEFENSE COUNSEL]: Do you think you could set
these feelings aside or do you think you cannot set these
feelings aside?
JUROR EDDLEMAN: Well, depending upon the
evidence and everything I probably could.
[DEFENSE COUNSEL]: Okay. I’m a little confused.
You understand why I’m confused or not?
JUROR EDDLEMAN: Okay.
[DEFENSE COUNSEL]: Okay.
40 Williams v. Bagley No. 02-3461
JUROR EDDLEMAN: Let me explain this. Depending
on the evidence, I don’t know how to explain it.
[DEFENSE COUNSEL]: Take a deep breath and just
tell us how you feel.
JUROR EDDLEMAN: Depending on the evidence, I
don’t know. I don’t know.
[DEFENSE COUNSEL]: Let me ask you one final
question.
JUROR EDDLEMAN: Rephrase it, please.
[DEFENSE COUNSEL]: If you had to go into a second
phase here would these three possible penalties start out
equally in your mind?
JUROR EDDLEMAN: Yes, equally.
J.A. at 2737-39.
The trial court denied Williams’s challenge for cause to
Eddleman without comment (J.A. at 2740), and the Ohio
appellate courts affirmed this ruling. The Ohio Court of
Appeals held that the trial court did not abuse its discretion by
denying Williams’s challenge for cause. It noted that, after
Eddleman gave “conflicting statements” concerning her
ability to consider a life sentence given the parole eligibility,
“the trial court voir dired her and determined that she would
follow the instructions on the law.” State v. Williams, No.
16418, 1995 WL 641137, at *9 (Ohio Ct. App. Nov. 1, 1995).
It concluded that “Eddleman’s answers, on the whole, did not
indicate that her views would impair her performance as a
juror.” Id.
The Ohio Supreme Court also held that the trial court did
not abuse its discretion in denying Williams’s challenge for
cause. It conceded that Eddleman “vacillated in her responses
to questions concerning the death penalty.” State v. Williams,

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No. 02-3461 Williams v. Bagley 41
679 N.E.2d 646, 654 (Ohio 1997). However, it noted that, in
response to the trial court’s questioning, Eddleman “indicated
that she understood the balancing process for aggravating
circumstances and mitigating factors and agreed that she
could participate in that process, weigh the evidence fairly,
and make the appropriate recommendation.” Id. “Finding no
abuse of discretion,” the court concluded, “we therefore defer
to the trial judge’s discretion to determine whether Eddleman
could indeed follow the law and be fair and impartial.” Id. at
654-55. The chief justice, joined by another justice,
dissented. He concluded, “Where statements suggesting bias
predominate in quantity, specificity, and certainty, countered
by a relatively few general statements that the juror believes
he or she can follow the law and be fair, deference to the trial
court defies the constitutional requirements.” Id. at 669
(Moyer, C.J., dissenting).
The district court held that the state courts’ determination
that Juror Eddleman could be fair and impartial “was not in
any way unreasonable.” J.A. at 149. It noted that the trial
court “explained the applicable law to Eddleman, noting that
in some circumstances the jury would be required to
recommend a life sentence even though they found the
defendant guilty of murder,” and then “asked Eddleman
whether she could follow the instructions of law regarding the
proper imposition of the death penalty.” J.A. at 148. This
interrogation, the court determined, was more than “general
questions regarding Eddleman’s impartiality and fairness.”
Id.
As the district court concluded, Williams has not shown
that the state courts acted unreasonably in denying Williams’s
challenge for cause. Williams does not argue that the state
courts incorrectly interpreted Morgan, but instead challenges
the state courts’ findings that Eddleman could set aside her
aversion to a life sentence with parole eligibility and follow
the trial court’s sentencing instructions. This finding is a
reasonable determination of the facts in light of the evidence
42 Williams v. Bagley No. 02-3461
16In Morgan, the Court held that “general questions of fairness and
impartiality” are not sufficient to estab lish a juro r’s impartiality, as a juror
“could in all truth and candor respond affirmatively, personally confident
that such dogmatic views are fair and impartial, while leaving the sp ecific
concern unpro bed .” 504 U.S. 719 , 735 (1992). However, in the case at
bar, the trial court inquired specifically about Eddleman’s ability to follow
the court’s sentenc ing instructions. Com pare id. at 723 (jurors had been
asked “whether each could be fair and impartial” and whether they could
presented, and Williams has failed to rebut the presumption
of correctness properly afforded such a finding.
Eddleman did not stake a firm “pro-death-penalty” stance,
but rather expressed ambivalence about the death penalty. In
response to initial questioning by the court, she admitted that
a death sentence would be “a difficult decision.” J.A. at 2718.
She explained, “The way that I look at it is if you were going
to say the death sentence, that you should be willing to be one
of the ones that would be there and push the button or pull the
lever, whatever they do. And I just don’t think I could do
that.” Id. She responded to the prosecutor that she “probably
could” sign the verdict form for a death sentence. J.A. at
2725. Similarly, in response to defense counsel’s initial
questioning, she revealed that, though she would not “feel
comfortable” giving a life sentence with parole eligibility, she
did not like any of the sentencing options. J.A. at 2731-32;
see also J.A. at 2733 (“Juror Eddleman: Change the rules.”).
Only when pressed by defense counsel did she state that,
given the three options, she “would probably go with the
death penalty” and that her “bottom line” was that she would
“vote for the death penalty because there’s eligibility for
parole.” J.A. at 2732-33.
In the end, however, in response to further questioning by
the court and defense counsel, Eddleman indicated that she
could set aside her personal beliefs concerning parole and
follow the court’s instructions. The court explained the
sentencing process in detail, and, in response to specific
questions,16 Eddleman affirmed that she could follow the

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No. 02-3461 Williams v. Bagley 43
follow the court’s “instructions on the law even though you may not
agree”).
court’s instructions. J.A. at 2736-37. Then, in response to
further inquiries by defense counsel, Eddleman testified that
she did not “believe” that her feelings regarding parole
eligibility would affect the balancing process just described
by the court, that she “probably could” set aside these
feelings, and that the three sentencing options would “start
out equally” in her mind. J.A. at 2738-39.
The Supreme Court has observed that “it is not unusual on
voir dire examination” for prospective jurors to give
“ambiguous and at times contradictory” testimony, Patton v.
Yount, 467 U.S. 1025, 1039 (1984), as has happened here.
Prospective jurors vary widely in education and experience,
and have had no briefing by lawyers prior to taking the stand.
They
thus cannot be expected invariably to express themselves
carefully or even consistently. Every trial judge
understands this, and under our system it is that judge
who is best situated to determine competency to serve
impartially. The trial judge properly may choose to
believe those statements that were the most fully
articulated or that appeared to have been least influenced
by leading.
Id. As the Court has instructed, “[i]t is here that the federal
court’s deference must operate, for while the cold record
[may] arouse[] some concern, only the trial judge [can] tell
which of [the] answers was said with the greatest
comprehension and certainty.” Id. at 1040.
These principles inform our conclusion that the trial court,
and the Ohio appellate courts, reasonably determined that
Eddleman could serve impartially. Eddleman evinced a lack
of bloodthirst, professed a dislike for all the sentencing
44 Williams v. Bagley No. 02-3461
options, and attested to her ability to follow the court’s
instructions despite her aversion to parole. In sum, the trial
court’s finding of impartiality was “fairly supported by the
record.” Bowling, 344 F.3d at 519.
C. Challenge for Cause to Juror Camp
The state courts did not make an unreasonable
determination of the facts in denying Williams’s challenge for
cause to Juror Camp. Although, when first questioned by
defense counsel, Camp expressed “concern” about sentencing
a capital defendant to a term of life with parole eligibility,
Camp later stated forthrightly that she would not
automatically vote for the death penalty and that she could
abide by Ohio’s sentencing procedures. Thus, the state
courts’ finding of impartiality is fairly supported by the
record.
Like Eddleman, Camp was questioned at length about her
ability to impose a life sentence with parole eligibility during
voir dire.
[DEFENSE COUNSEL]: Would you ever hesitate when
you are considering these three options, would you ever
hesitate to vote for one of the life sentences out of a
concern that the defendant might be placed back out on
the street through the parole process?
JUROR CAMP: That’s something to think about.
[DEFENSE COUNSEL]: Okay. Would that concern
cause you to simply reject out of hand those life
sentences?
JUROR CAMP: It would be a concern.
[DEFENSE COUNSEL]: Would it be—again I have to
ask you to look inside yourself. Would it be a concern to
such an extent that even though Judge would say to you,
Mrs. Camp, you and the other jurors are to look at these

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No. 02-3461 Williams v. Bagley 45
three options equally, do you think it would be such a
concern that even though you would want to follow
Judge Winter’s instruction you would say I just don’t
know if I can because I’m concerned about this parole
thing?
JUROR CAMP: It would be one thing to be concerned
about, along with everything else we would have to
consider.
[DEFENSE COUNSEL]: Okay. Do you think that your
concern about that would substantially impair or alter
your ability to do that weighing process that we talked
about a minute ago?
JUROR CAMP: No. It would have to be weighed
together.
* * *
[DEFENSE COUNSEL]: [D]o you have an opinion or
can you tell me how you feel about those life sentences
as alternatives to the death penalty.
JUROR CAMP: I think if someone’s sentenced to life
then it should be life.
[DEFENSE COUNSEL]: Is your feeling about that so
strong that it would cause you, if you are in the jury room
in a second phase, to say well, there’s a chance this guy
might get out, I just can’t vote for life, I don’t care what
the Judge said about weighing them, my feelings are so
strong that I’m worried about this guy getting out?
JUROR CAMP: It could be.
* * *
[DEFENSE COUNSEL]: Are you saying that everybody
who is found guilty beyond a reasonable doubt at that
46 Williams v. Bagley No. 02-3461
first phase should automatically get the death penalty at
the second phase?
JUROR CAMP: No.
* * *
JUROR CAMP: Your question back to me was if
[everybody found guilty] beyond a reasonable doubt
should be killed, I said no.
* * *
[DEFENSE COUNSEL]: That’s what I want to know.
If we get to that second phase, you heard the Judge say
the prosecutor has to prove to you beyond a reasonable
doubt that the aggravating circumstances outweigh the
mitigating factors in order for you to vote for the death
penalty, do you recall that?
JUROR CAMP: We as a jury would have to feel that
there was beyond a reasonable doubt.
[DEFENSE COUNSEL]: That’s right.
JUROR CAMP: Right.
[DEFENSE COUNSEL]: That’s right. And if you have
a reasonable doubt as to whether those aggravating
circumstances outweigh the mitigating factors, then you
as a juror have to pick one of those life sentences.
JUROR CAMP: Right.
[DEFENSE COUNSEL]: Do you think you could do
that? It’s a difficult decision, I know. Do you think you
could do it?
JUROR CAMP: It would have to be proved to me that
it was—that actually the person is guilty.

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No. 02-3461 Williams v. Bagley 47
[DEFENSE COUNSEL]: Okay. And then at the second
phase—that would be the first phase, where they have to
prove it.
JUROR CAMP: If I had doubts then I wouldn’t vote for
the death penalty.
[DEFENSE COUNSEL]: Okay when you say doubts—
JUROR CAMP: If I had doubts.
[DEFENSE COUNSEL]: You are talking about the
weighing process that I described to you?
JUROR CAMP: Yes.
J.A. at 2493-2500.
The trial court denied Williams’s challenge for cause to
Camp. It concluded that “the testimony would indicate that
[Camp] could perform her duties as a juror in accordance with
the Court’s instruction and the evidence.” J.A. at 2502.
The Ohio appellate courts affirmed the trial court’s ruling.
The Ohio Court of Appeals held that the trial court had not
abused its discretion in denying Williams’s challenge for
cause. It acknowledged that Camp stated that the possibility
of parole “would be a concern,” but it noted that Camp “also
indicated that she would not automatically vote for the death
penalty and that she would be able to consider equally all
three of the sentencing alternatives.” Williams, 1995 WL
641137, at *9. The Ohio Supreme Court also held that the
trial court had not abused its discretion in denying Williams’s
challenge for cause, noting that Camp “did not automatically
favor the death penalty” and “stated that she could consider
all of the possible penalties and return the appropriate
verdict.” Williams, 679 N.E.2d at 654.
The district court held that the trial court’s conclusion that
Camp could be fair and impartial “was not unreasonable.”
48 Williams v. Bagley No. 02-3461
J.A. at 149. It concluded that, “When the death penalty
process and the applicable laws were explained to her during
voir dire, Camp indicated that she could follow the law and
the court’s instructions to return an appropriate verdict.” Id.
The state courts reasonably determined that Camp could set
aside any disinclination to vote for a life sentence and follow
the trial court’s instructions. At worst, when initially
questioned by defense counsel, Camp stated that parole was
a “concern” and that her feelings about parole “could” cause
her to disregard the judge’s instructions. J.A. at 2493
(“[Parole] would be a concern.”); J.A. at 2496-97 (stating that
her feeling that “if someone’s sentenced to life then it should
be life” “could be” strong enough to prevent her from voting
for a life sentence). However, in response to further
questioning by defense counsel, Camp indicated that she
would not automatically vote for the death penalty and that
she could apply the weighing process prescribed by Ohio law.
She responded “no” to defense counsel’s question, “Are you
saying everybody who is found guilty beyond a reasonable
doubt at [the] first phase should automatically get the death
penalty at the second phase?” J.A. at 2498. She stated,
“Your question back to me was if they are finding everybody
beyond a reasonable doubt should be killed, I said no.” J.A.
at 2499. She agreed that “if you have a reasonable doubt as
to whether those aggravating circumstances outweigh the
mitigating factors, then you as a juror have to pick one of
those life sentences.” J.A. at 2499-2500. She stated that, “If
I had doubts then I wouldn’t vote for the death penalty.” J.A.
at 2500. Additionally, prior to defense counsel’s questioning,
Camp told the prosecutor, “I wouldn’t say kill everybody”
(J.A. at 2475-76), and that none of the sentencing alternatives
“would have a leg up.” J.A. at 2490. Simply put, Williams
has not adduced sufficient evidence to overcome the state
courts’ finding that Camp could set aside any bias toward the
death penalty and follow the trial judge’s instructions.

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No. 02-3461 Williams v. Bagley 49
IV. CONSTITUTIONAL CHALLENGES TO OHIO’S CAPITAL
PUNISHMENT SCHEME
Williams has preserved a number of constitutional
challenges to Ohio’s capital punishment scheme. However,
this court has recently rejected each of these challenges and
has upheld the constitutionality of Ohio’s capital punishment
scheme as a general matter. Smith v. Mitchell, 348 F.3d 177,
214 (6th Cir. 2003). Williams has not directed the court to
any authority—in particular, any Supreme Court
decision—compelling reconsideration of these decisions.
Thus, we conclude that the Ohio courts did not act contrary
to, or unreasonably apply, clearly established federal law in
rejecting Williams’s constitutional challenges to Ohio’s
capital punishment scheme.
A. Ohio’s System of Proportionality Review
Williams challenges Ohio’s system of proportionality
review, whereby the Ohio Court of Appeals and the Ohio
Supreme Court “determine whether the penalty of death is
unacceptable in the case under review because it is
disproportionate to the punishment imposed on others
convicted of the same crime.” State v. Steffen, 509 N.E.2d
383, 394 (Ohio 1987). He contends that, in establishing
proportionality review, Ohio has created a constitutionally
protected liberty interest, and that Ohio has “reduced”
proportionality review to “a meaningless, capricious
procedure in violation of the Due Process Clause.” Fatal to
Williams’s argument, this court has repeatedly rejected due
process challenges to Ohio’s system of proportionality
review.
50 Williams v. Bagley No. 02-3461
17Subsequent to Williams’s conviction, Ohio’s capital punishment
scheme was amended to provide for direct appeal from the trial co urt to
the Ohio Suprem e Co urt. See Ohio Rev. Co de Ann. § 292 9.05(A)
(And erson 200 3).
Under Ohio’s capital punishment scheme, the appellate
courts17 are obligated to determine, among other things,
“whether the sentence of death is appropriate.” Ohio Rev.
Code Ann. § 2929.05(A) (Anderson 2003). “In determining
whether the sentence of death is appropriate, the court of
appeals . . . and the supreme court shall consider whether the
sentence is excessive or disproportionate to the penalty
imposed in similar cases.” Id. The appellate court “shall
affirm a sentence of death only if the particular court is
persuaded from the record . . . that the sentence of death is the
appropriate sentence in the case.” Id.
The Ohio Supreme Court has held that the proportionality
review mandated by § 2929.05(A) “is satisfied by a review of
those cases already decided by the reviewing court in which
the death penalty has been imposed.” Steffen, 509 N.E.2d at
395. The appellate court “need only compare the case before
it with other cases actually passed on by that court to
determine whether the death sentence is excessive or
disproportionate”; it need not “consider any case where the
death penalty was sought but not obtained or where the death
sentence could have been sought but was not.” Id.
Williams argues that, by interpreting § 2929.05(A) in this
fashion, Ohio has reduced its system of proportionality
review “to a meaningless, capricious procedure in violation of
the Due Process Clause.” He concedes that in Pulley v.
Harris, 465 U.S. 37 (1984), the Supreme Court held that
proportionality review is not constitutionally mandated, but
maintains that the Ohio legislature created a constitutionally
protected liberty interest when it established a system of
proportionality review. Thus, he insists that the Ohio
Supreme Court’s decision as to what cases are “similar” for

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No. 02-3461 Williams v. Bagley 51
purposes of § 2929.05(A) “must be made in an environs of
some ‘reasonable and non-capricious’ guiding principles, lest
those decisions be completely arbitrary” in violation of the
Due Process Clause. (emphasis in original) And he concludes
that, given Ohio Revised Code § 2929.021(A)’s requirement
that all capital indictments be reported to the Ohio Supreme
Court, and given Ohio Revised Code § 2929.03(F)’s
requirement that the trial court file an opinion with the
appellate courts explaining its sentencing decision in any
capital case, the only reasonable interpretation of “similar
cases” for purposes of § 2929.05(A) is all capitally indicted
cases, regardless of whether a sentence of death was imposed.
Williams pressed this argument without success in his
direct appeal and before the district court. The Ohio Court of
Appeals noted that the Ohio Supreme Court had rejected
Williams’s very argument in Steffen, State v. Williams, No.
16418, 1995 WL 641137, at *19 (Ohio Ct. App. Nov. 1,
1995), and the Ohio Supreme Court dismissed the entirety of
Williams’s constitutional challenge to Ohio’s capital
punishment scheme in a single sentence. State v. Williams,
679 N.E.2d 646, 660 (Ohio 1997). The district court held
that, since the Constitution does not require proportionality
review, “any inadequacy in a state-provided proportionality
review, even if proven, does not entitle a petitioner to federal
habeas relief.” J.A. at 151.
This court has held repeatedly that Ohio’s system of
proportionality review complies with the dictates of the Due
Process Clause. See Smith v. Mitchell, 348 F.3d 177, 214 (6th
Cir. 2003); Wickline v. Mitchell, 319 F.3d 813, 824 (6th Cir.
2003); Cooey v. Coyle, 289 F.3d 882, 928 (6th Cir. 2002);
Buell v. Mitchell, 274 F.3d 337, 368-69 (6th Cir. 2001);
Coleman v. Mitchell, 268 F.3d 417, 453 (6th Cir. 2001);
Greer v. Mitchell, 264 F.3d 663, 691 (6th Cir. 2001); Byrd v.
Collins, 209 F.3d 486, 539 (6th Cir. 2000). “Since
proportionality review is not required by the Constitution,
states have great latitude in defining the pool of cases used for
comparison.” Buell, 274 F.3d at 369. And this court has held
52 Williams v. Bagley No. 02-3461
consistently that, in “limiting proportionality review to other
cases already decided by the reviewing court in which the
death penalty has been imposed, Ohio has properly acted
within the wide latitude it is allowed.” Id.; see also Wickline,
319 F.3d at 824-25; Coleman, 268 F.3d at 453. Williams has
not mustered any authority compelling this court to revisit
these decisions, and we must conclude that the state courts
did not unreasonably apply clearly established federal law in
rejecting Williams’s claim.
B. Prosecutorial Discretion
Williams argues that Ohio’s capital punishment scheme
violates the Eighth and Fourteenth Amendments in that “[t]he
virtually uncontrolled discretion of prosecutors in indictment
decisions allows for arbitrary and discriminatory imposition
of the death penalty.” However, as this court recognized in
Wickline, such a challenge to Ohio’s capital punishment
scheme is foreclosed by Gregg v. Georgia, 428 U.S. 153
(1976). 319 F.3d at 824. In Gregg, the defendant argued that
Georgia imposed its death penalty in “an arbitrary and
capricious manner” in that “the state prosecutor has unfettered
authority to select those persons whom he wishes to prosecute
for a capital offense and to plea bargain with them.” Id. at
199. In two opinions, six justices squarely rejected the
argument. Id. at 199 (opinion of Justices Stewart, Powell, and
Stevens), 255 (White, J., concurring). Plainly, the Ohio
courts did not act contrary to clearly established law in
dismissing Williams’s claim.
C. Mandatory Submission to the Jury of Pre-Sentence
Investigation and Mental Examination Reports
Requested by the Defendant
Williams challenges a provision in Ohio’s death penalty
statutes stating that, if a defendant requests a pre-sentence
investigation or a mental evaluation, the resulting report must
be submitted to the jury. This provision, he argues, impairs
a defendant’s right to effective assistance of counsel and right

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No. 02-3461 Williams v. Bagley 53
to control the presentation of evidence in violation of the
Sixth and Fourteenth Amendments. Again, this court has
previously rejected Williams’s argument.
Under Ohio law, a capital defendant is entitled to a pre-
sentence investigation and a mental examination. Ohio Rev.
Code Ann. § 2929.03(D)(1) (Anderson 2003). However, a
pre-sentence investigation and a mental examination are not
permitted unless requested by the defendant. Id. If a
defendant requests an investigation or an examination, the
resulting reports must be provided to the court, the jury, and
the prosecutor. Id. Additionally, the jury and the court must
“consider” the report when sentencing the defendant. Id.
This court has rejected constitutional challenges to this
provision. Cooley, 289 F.3d at 925-26 (unpublished
appendix) (dismissing petitioner’s argument that the
submission requirement “prevents defense counsel from
giving effective assistance and prevents the defendant from
effectively presenting his case”); Byrd, 209 F.3d at 539
(rejecting the argument that Ohio’s capital punishment
scheme “violates defendants’ rights to due process and
effective assistance of counsel by allowing presentence
investigation reports or mental examinations requested by
defendants to be provided to the jury”); see also Dennis v.
Mitchell, 68 F. Supp. 2d 863, 904 (N.D. Ohio 1999) (same).
Moreover, it is difficult to see how the submission
requirement impaired Williams’s right to effective assistance
of counsel and right to control the presentation of evidence.
Williams was not required to, and did not, request the reports.
Moreover, under Ohio Revised Code § 2929.024, indigent
capital defendants may obtain, at the state’s expense, an
expert (and other services) reasonably necessary for
presenting a defense at the guilt phase or the penalty phase.
See Glenn v. Tate, 71 F.3d 1204, 1209 n.2 (6th Cir. 1995)
(“When an expert is retained under § 2929.024, the defendant
can decide for himself whether he wants to put the expert’s
findings before the jury.”). Finally, because Williams has not
cited any relevant authority, other than the Sixth and
54 Williams v. Bagley No. 02-3461
18Under Ohio’s capital punishment scheme, “[i]f the trial jury
unanimously finds, by proof beyond a reasonable do ubt, that the
aggravating circum stances 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.” Ohio Rev.
Code. Ann. § 292 9.03 (D)(2) (A nderson 2 003 ). If, after rece ipt of a
recommendation of death, and after an indep endent review of the
evidence, the trial court finds, by proof beyond a reasonable doubt, that
the aggravating circumstances outwe igh the m itigating facto rs, “it shall
impose sentence of death on the offender.” Id. § 29 29.0 3(D )(3).
Fourteenth Amendments, in support of his argument, we
cannot conclude that the Ohio courts acted contrary to clearly
established federal law in rejecting Williams’s claim.
D. The “Mandatory” Nature of Ohio’s Death Penalty
Williams argues that Ohio’s capital punishment scheme
creates a “mandatory death penalty” by requiring a sentence
of death when the aggravating circumstances outweigh the
mitigating factors.18 This absence of discretion, he contends,
denies a defendant an individualized determination of the
appropriateness of the punishment in violation of the Eighth
and Fourteenth Amendments.
Yet again, this court has squarely rejected Williams’s
argument. In Buell, the court concluded
Buell’s arguments are unavailing. In Proffitt v. Florida,
428 U.S. 242, 258, 96 S.Ct. 2960, 49 L.Ed.2d 913
(1976), the Supreme Court upheld a statutory scheme for
weighing aggravating circumstances and mitigating
factors that is similar to Ohio’s, which lays out specific
aggravating circumstances and mitigating factors that are
to be considered at sentencing. Ohio Rev. Code
§ 2929.04. The Court also has approved of a statute that
did not enunciate specific factors to consider or a specific
method of balancing the competing considerations. See
Franklin v. Lynaugh, 487 U.S. 164, 172-73, 108 S.Ct.
2320, 101 L.Ed.2d 155 (1988); Zant v. Stephens, 462

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No. 02-3461 Williams v. Bagley 55
U.S. 862, 875, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).
The Court has held that “it is constitutionally required
that the sentencing authority have information sufficient
to enable it to consider the character and individual
circumstances of a defendant prior to imposition of a
death sentence.” Sumner v. Shuman, 483 U.S. 66, 72,
107 S.Ct. 2716, 97 L.Ed.2d 56 (1987) (quoting
Gregg,428 U.S. at 189-90 n.38, 96 S.Ct. 2909). The
sentence imposed on Buell complies with Sumner as well
as the Supreme Court’s holding in Blystone, 494 U.S. at
305, 110 S.Ct. 1078, that a death penalty is constitutional
if it “is imposed only after a determination that the
aggravating circumstances outweigh the mitigating
circumstances present in the particular crime committed
by the particular defendant, or that there are no such
mitigating circumstances.” In Buell’s case, both the jury
at the penalty phase of trial and the reviewing courts
specifically considered the aggravating circumstances
and mitigating factors presented and determined that
capital punishment was appropriate. By weighing these
specific considerations, it cannot be said that a
mandatory death penalty was imposed on Buell.
274 F.3d at 368; see also Coleman, 268 F.3d at 442 (“[T]he
Ohio scheme does not mandate the death penalty for any
particular crime, and under § 2929.03(D) the death penalty
decision making process is not shielded from judicial
review.”); Byrd, 209 F.3d at 539 (dismissing petitioner’s
argument that Ohio’s capital punishment scheme
unconstitutionally “fails to provide the sentencing authority
with the option to choose a life sentence even if the
aggravating circumstances outweigh the mitigating factors”).
Williams has not cited any authority that compels
reconsideration of this conclusion. The Supreme Court in
Spaziano v. Florida, 468 U.S. 447 (1984), merely stated that
a state “must administer [the death penalty] in a way that can
rationally distinguish between those individuals for whom
death is an appropriate sanction and those for whom it is not.”
56 Williams v. Bagley No. 02-3461
Id. at 460. This court, applying Supreme Court precedent,
has determined that Ohio’s scheme ensures such an
individualized determination of the appropriateness of the
penalty. Justice Stevens’ dissent from the Court’s denial of
a petition for writ of certiorari in Smith v. North Carolina,
459 U.S. 1056 (1982) (Stevens, J., dissenting denial cert.),
noted that a potential ambiguity in a North Carolina jury
instruction might prevent a jury from determining “that death
is the appropriate punishment in a specific case.” Id. at 1057
(internal quotation marks omitted). It does not follow that a
statute requiring a sentence of death when the aggravating
circumstances outweigh the mitigating factors is
unconstitutional, and in any event the opinion of a single
justice is not “clearly established Federal law” for purposes of
federal habeas review. See Williams v. Taylor, 529 U.S. 362,
412 (2000) (“That statutory phrase refers to the holdings . . .
of this Court’s decisions as of the time of the relevant state-
court decision.”). The Ohio courts did not act contrary to, or
unreasonably apply, clearly established federal law in
rejecting Williams’s “mandatory death penalty” argument.
E. Electrocution as a Method of Execution
Williams argues that Ohio’s “reliance on electrocution as
the statutorily-defined method of execution violates [the
Eighth Amendment’s] proscription against cruel and unusual
punishment.” However, this court has upheld the
constitutionality of electrocution as a method of execution.
Smith, 348 F.3d at 214; Buell, 274 F.3d at 370 (observing that
“[e]lectrocution has yet to be found cruel and unusual
punishment by any American court” and stating that “[w]e
decline to be the first”); Greer v. Mitchell, 264 F.3d 663, 691
(6th Cir. 2001); Byrd, 209 F.3d at 539. Moreover, Ohio law
now designates lethal injection as the sole means of
execution, rendering his argument moot. Ohio Rev. Code
Ann. § 2949.22 (Anderson 2003) (“[A] death sentence shall
be executed by causing the application to the person, upon
whom the sentence was imposed, of a lethal injection of a
drug or a combination of drugs of sufficient dosage to quickly

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No. 02-3461 Williams v. Bagley 57
and painlessly cause death.”); State v. Mack, No. 62366, 2003
WL 21185786, at *11 (Ohio. Ct. App. May 19, 2003) (“[A]ll
arguments relating to electrocution are now moot because
Ohio in November 2001, amended R.C. 2949.22 to eliminate
electrocution as the means of execution.”). In short, Williams
is not entitled to relief on the basis of his Eighth Amendment
argument.
F. Other Constitutional Claims
Williams advances a number of additional constitutional
challenges to Ohio’s capital punishment scheme. Most
notably, he argues that Ohio’s scheme (1) constitutes cruel
and unusual punishment, (2) lacks a standard for determining
the existence of mitigating factors, (3) lacks a standard for
weighing aggravating factors against mitigating
circumstances, (4) permits the trier of fact to consider
aggravating circumstances at the trial phase, (5) improperly
encourages guilty pleas, (6) lacks a compelling state interest
and fails to use the least restrictive means, and (7) permits the
death penalty to be imposed in an arbitrary, capricious, and
discriminatory manner. Williams has not cited any Supreme
Court precedent supporting his claims, and this court has
squarely rejected most of Williams’s arguments. Smith, 348
F.3d at 213-14 (rejecting arguments (1)-(4)); Wickline, 319
F.3d at 824 (rejecting argument (7)); Cooey, 289 F.3d at 923-
26 (rejecting arguments (2)-(5) and (7)), Buell, 274 F.3d at
367 (rejecting argument (7)); Coleman, 268 F.3d at 443
(rejecting argument (4)); Greer, 264 F.3d at 690 (rejecting
arguments (1) and (6)); Byrd, 209 F.3d at 539 (rejecting
arguments (5) and (7)). In summary, in dismissing
Williams’s constitutional challenges to Ohio’s capital
punishment scheme, the Ohio courts did not act contrary to,
or unreasonably apply, clearly established federal law as
determined by Supreme Court.
58 Williams v. Bagley No. 02-3461
V. WILLIAMS’S PROCEDUR AL DEFAULTS
The district court concluded that most of Williams’s claims
were procedurally defaulted. We agree.
A. Legal Background
When a petitioner defaults on a federal claim in state court
pursuant to an independent and adequate state procedural rule,
federal habeas review of the claim is barred unless the
petitioner can demonstrate (1) cause for the default and actual
prejudice, or (2) that the failure to consider the claim will
result in a fundamental miscarriage of justice. Coleman v.
Thompson, 501 U.S. 722, 750 (1991). This court applies a
four-part test to determine if a claim is procedurally defaulted.
First, the court must determine whether there is a state
procedural rule applicable to the petitioner’s claim and
whether the petitioner failed to comply with the rule. Buell v.
Mitchell, 274 F.3d 337, 348 (6th Cir. 2001). Second, the
court must determine whether the state court actually
enforced the state procedural rule. Id. Third, the court must
decide whether the state procedural rule is an adequate and
independent state ground upon which the state can rely to
foreclose review of a federal constitutional claim. Id. Fourth,
if the preceding questions are answered in the affirmative, the
petitioner must demonstrate that there was cause for him to
neglect the procedural rule and that he was actually
prejudiced by the alleged constitutional error. Id.
B. Ohio’s Doctrine of Res Judicata as an Adequate and
Independent State Ground
Williams’s argument that Ohio’s doctrine of res judicata
does not constitute an adequate and independent state ground,
and hence cannot bar review of a pair of Williams’s claims,
is without merit. During voir dire, Williams objected to the
prosecutor’s challenge for cause, based on Wainwright v.
Witt, 469 U.S. 412 (1985), to a prospective juror allegedly
holding anti-death-penalty views. Williams also objected,

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No. 02-3461 Williams v. Bagley 59
based on Batson v. Kentucky, 476 U.S. 79 (1986), to the
prosecutor’s use of a peremptory challenge to remove the
only remaining African-American from the jury panel.
However, Williams did not raise either of these issues on
direct appeal or in his state post-conviction proceeding.
As the district court properly concluded, Williams
procedurally defaulted these claims. Williams did not
exhaust his claims because he did not raise the claims on
direct appeal in state court. As the Supreme Court held in
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999), “state
prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete
round of the State’s established appellate review process.”
Because the claims would be procedurally barred under Ohio
law, they are procedurally defaulted for purposes of federal
habeas review. Alley v. Bell, 307 F.3d 380, 385 (6th Cir.
2002). Specifically, as the district court found, the claims are
barred under Ohio’s doctrine of res judicata, which provides
in relevant part that a final judgment of conviction bars a
convicted defendant from raising in any proceeding, except an
appeal from that judgment, any issue that was raised, or could
have been raised, at trial or on appeal from that judgment.
State v. Perry, 226 N.E.2d 104, 105-06 (Ohio 1967).
Williams, however, contends that Ohio’s doctrine of res
judicata does not constitute an adequate and independent state
ground. First, he argues that Ohio courts do not consistently
apply this procedural rule in capital cases. Second, he argues
that Ohio’s post-conviction system does not meet the
requirements of due process in that it does not provide
adequate discovery.
Williams’s arguments are without merit. First, “this court
has rejected claims that Ohio has failed to apply [the doctrine
of res judicata] consistently.” Greer v. Mitchell, 264 F.3d
663, 673 (6th Cir. 2001); see also Monzo v. Edwards, 281
F.3d 568, 577 (6th Cir. 2002) (deeming Ohio’s doctrine of res
judicata an adequate and independent state procedural
60 Williams v. Bagley No. 02-3461
19In support of his argument, W illiams cites three d ated cases in
which this court excused a petitioner from the exhaustion requirement
because state procedures were ineffective to protect the rights of the
petitioners. See Keener v. Ridenour, 594 F.2d 581 (6th C ir. 197 9); Allen
v. Perini, 424 F.2d 134 (6th C ir. 197 0); Coley v. A lvis, 381 F.2d 870 (6th
Cir. 1967). As this court has already observed, these cases concerned
forgiveness of the exhaustion requirement, not the adeq uacy o f res
judicata as a state ground justifying foreclosure of a federal constitutional
claim. Coleman v. Mitch ell, 268 F.3d 417 , 428 -29 (6 th Cir. 20 01). This
court has directly held in other cases that res judicata is an adequate and
independent state ground, and those decisions are controlling on the issue.
Id.
ground); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001)
(holding that “Ohio’s doctrine of res judicata as a procedural
bar is regularly applied by the Ohio courts”); Mapes v. Coyle,
171 F.3d 408, 421 (6th Cir. 1999) (rejecting argument that
Ohio’s doctrine of res judicata was not firmly established and
regularly followed). Second, Williams has not explained the
relevance of his attack on the adequacy of Ohio’s system of
post-conviction review. In particular, he has not shown how
a lack of discovery, or any other alleged flaw in Ohio’s
system of post-conviction review, prevented him from raising
his Batson claim or his Wainwright claim on direct appeal.
See Smith v. Anderson, 104 F. Supp. 2d 773, 792-93 (S.D.
Ohio 2000) (“Any perceived deficiencies in Ohio’s post-
conviction system did not relieve petitioner of the obligation
to raise these waived claims on direct appeal.” (internal
quotation marks omitted)). Moreover, this court has
dismissed the contention that “res judicata was an inadequate
procedural bar . . . because he was denied a reasonable
opportunity to present his claims in state court,” and held that
res judicata is an adequate and independent state ground for
barring habeas review of constitutional claims. Coleman v.
Mitchell, 268 F.3d 417, 427, 429 (6th Cir. 2001).19

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No. 02-3461 Williams v. Bagley 61
C. Ohio’s Contemporaneous Objection Rule as an
Independent State Law Ground
One of Williams’s prosecutorial misconduct claims is
procedurally barred by Ohio’s contemporaneous objection
rule, which, contrary to Williams’s argument, is independent
of federal law. Williams charges that the prosecutor engaged
in prosecutorial misconduct by impermissibly vouching for
the credibility of Williams’s accomplices during their
testimony. However, Williams did not object to the
prosecutor’s actions at trial, and the Ohio Court of Appeals
and the Ohio Supreme Court reviewed Williams’s claim
under Ohio’s plain error standard. See State v. Smith, 731
N.E.2d 645, 655 (2000) (explaining that, under Ohio’s
“contemporaneous objection” rule, an appellant who fails to
object waives later review of the issue unless he shows plain
error). The district court held that Williams had procedurally
defaulted the claim under Ohio’s contemporaneous objection
rule. J.A. at 134-35.
Conceding that Ohio’s contemporaneous objection rule is
firmly established and that the state courts actually enforced
the rule against him, Williams argues that the rule is not
independent of federal law. He cites a single unpublished
opinion which held that a decision by an Ohio appellate
court—holding that allegedly improper conduct by the
prosecutor did not constitute plain error—did not rest on an
independent state law ground. Knuckles v. Rogers, No. 92-
3208, 1993 WL 11874, at **2-3 (6th Cir. Jan. 21, 1993).
Specifically, in Knuckles, the court reasoned,
In the case at bar, it 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. . . . Since [the petitioner] 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
62 Williams v. Bagley No. 02-3461
the Ohio appellate court; the Ohio court examined the
record to determine if the allegedly improper remarks
were “plain error.”
The basic inquiry in the plain error analysis 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 the principles of federal constitutional law.
Therefore, we conclude that the Ohio appellate court’s
decision was not independent of federal law.
Id.
However, the Knuckles decision has been subject to
criticism, and this court has repeatedly held, in published
decisions, that plain error review by an appellate court
constitutes enforcement of Ohio’s contemporaneous objection
rule. See Gulertekin v. Tinnelman-Cooper, 340 F.3d 415,
423-24 (6th Cir. 2003) (noting criticism of Knuckles and
observing that “[w]e have previously held Ohio’s
contemporaneous objection rule to constitute an adequate and
independent state ground”); Mason v. Mitchell, 320 F.3d 604,
636 (6th Cir. 2003) (“The Ohio Supreme Court reviewed for
plain error . . . thus barring federal habeas review absent a
showing of cause and prejudice.”); Hinkle v. Randle, 271 F.3d
239, 244 (6th Cir. 2001) (“We have held that Ohio’s
contemporaneous objection rule constitutes an adequate and
independent state ground. . . . Moreover, we view a state
appellate court’s review for plain error as the enforcement of
a procedural default.” (citations omitted)); Seymour v.
Walker, 224 F.3d 542, 557 (6th Cir. 2000) (“Controlling
precedent in our circuit indicates that plain error review does
not constitute a waiver of state procedural default rules.”);
Scott v. Mitchell, 209 F.3d 854, 866-68 (6th Cir. 2000)
(questioning Knuckles and holding that Ohio’s
contemporaneous objection rule was an inadequate and
independent ground). Our cases thus require the conclusion
that Williams has procedurally defaulted his improper
vouching claim by failing to abide by Ohio’s

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No. 02-3461 Williams v. Bagley 63
20In addition to the charge that the prosecutor impermissibly vouched
for the credibility of W illiams’s accom plices, see Section V (C), supra,
W illiams alleges the following instances of prosecutorial misconduct:
(1) introducing improper victim impact testimony; (2) comparing
W illiams to a wild animal during the guilt phase and the sentencing phase;
(3) mischa racterizing evidence during closing argument; (4) commenting
on W illiams’s credibility after he made an unsworn statement during the
penalty phase; (5) relying on evidence illegally obtained by the police;
(6) ignoring sustained objections by Williams to a line of questioning
concerning a test for gunshot residue on W illiams’s hands; (7) advancing
retribution as a mo tive for sentencing W illiams to d eath during closing
argument at the penalty phase; (8) violating Brady; (9) arguing improper
aggravating circumstance; and (10) referring to the victims as “four shiny
silver dollars” and to Williams as “a few rusty pennies” at the pe nalty
phase.
contemporaneous objection rule, an adequate and independent
state ground.
D. Failure to Raise Claim Under the Same Theory in
State Court
Williams has procedurally defaulted most of his theories of
prosecutorial misconduct by failing to raise these specific
theories in state court. In federal court, Williams has alleged
eleven incidents of prosecutorial misconduct.20 Williams did
present a prosecutorial misconduct claim to the Ohio Court of
Appeals and the Ohio Supreme Court; however, as discussed
supra in Section V(C), this claim was based solely on the
allegation that the prosecutor improperly vouched for the
credibility of witnesses. Hence, the district court concluded
Williams had procedurally defaulted the ten remaining
allegations as they did not “rest on the same theory asserted
in state court.” J.A. at 134.
On appeal, Williams simply asserts that he “raised
prosecutorial misconduct (claim 6) on direct appeal in state
court.” Apparently, he argues that, by raising the flag of
prosecutorial misconduct in state court, he preserved his right
64 Williams v. Bagley No. 02-3461
21In addition to the claims d iscussed in Sections V(B)-(D), Williams
procedurally defaulted a host of claims by failing to raise the claims in
state court at all. These specific claims are: ineffective assistance of
counsel at the guilt phase; Brady violations; denial of right to experts;
various trial court errors; adm ission of crime sc ene p hotos; incom plete
transcript of proceedings; cumulative error; ineffective assistance of
counsel at the mitiga tion phase; ineffective assistance of appellate
counsel; improper aggravating circumstances; mitigation not provided;
improper jury instruction on sympathy; improper standards of review used
by Ohio appellate courts; inadequacy of Ohio’s post-conviction relief
procedures; and various constitutional challenges to Ohio’s capital
punishment schem e. W illiams concedes that he procedurally defaulted
these claims, but attempts to revive them by means of the cause and
prejudice exception and the fundamental miscarriage o f justice gateway.
22W illiams’s argument here is undeveloped. Apparently, he believes
that his Direct Appeal IAAC claim serves as “cause” for his procedural
default of his claim of ineffective assistance of trial counsel (his “Trial
to press any particular allegations of misconduct in federal
court.
As the district court observed, “[t]his Circuit has held that
the doctrine of exhaustion requires that a claim be presented
to the state courts under the same theory in which it is later
presented in federal court.” Wong v. Money, 142 F.3d 313,
322 (6th Cir. 1998). As Williams’s ten allegations represent
theories which are “separate and distinct from the one
previously considered and rejected in state court,” id., he
procedurally defaulted these claims.
E. Ineffective Assistance of Appellate Counsel as
Cause and Prejudice
Williams puts forward a pair of ineffective-assistance-of-
appellate-counsel claims (“IAAC claims”) as “cause” for his
procedural defaults.21 The first IAAC claim that Williams
asserts as “cause” for these defaults, which we term his
“Direct Appeal” IAAC claim, alleges that Williams’s
appellate counsel was ineffective for failing to raise the
defaulted claims on direct appeal.22 However, Wilson

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No. 02-3461 Williams v. Bagley 65
Co unsel” claim) (as well as for his failure to raise his Wainwright and
Batson claims on direct ap peal), which in turns acts as “cause” for his
procedural default of those claims not raised at trial. H owever, it is not
clear that Williams could have raised his Tria l Counsel claim on direct
app eal. One of W illiams’s two attorneys on direct appeal also represented
him in the trial court (J.A. at 16), and the parties have not addressed
whether, under these circumstances, Ohio law would have permitted
W illiams to raise his Trial Counsel claim on direct appeal and, if so,
whether his counsel could have been expected to raise the Trial Counsel
claim on direct ap peal. Cf. Sta te v. Le ntz, 639 N.E .2d 7 84, 7 85 (Ohio
1994) (holding that res jud icata does not bar a defendant from raising a
claim of ineffective assistance of trial counsel for the first time in a post-
collateral proceed ing if the defendant was represented by the same
counsel at trial and on direct appeal or if “an actual conflict of interest
enjoined appellate counsel from raising a claim of ineffective assistance
of trial counsel on direct appeal”); State v. Cole, 443 N.E .2d 1 69, 1 71 n.1
(Ohio 1982) (“[C]ounsel cannot realistically be expected to argue his own
incompetence”). Add itionally, if W illiams’s T rial Co unsel claim would
have required resort to evidence outside the record, he could not have
raised it on direct app eal. See State v. Booker, 579 N.E .2d 2 64, 2 68 (Ohio
App. 1989). And, if W illiams could not have raised his Trial Counsel
claim on direct appeal, his counsel’s performance on direct appeal cannot
serve as “cause” for his default of the Trial Counsel claim. However,
because W illiams’s Direct Appeal IAAC claim fails on its merits, we have
no reason to ascertain, and analyze, the specifics of W illiams’s argument.
procedurally defaulted his Direct Appeal IAAC claim as well
by failing to file a timely motion to reopen his direct appeal
pursuant to Rule 26(B) of the Ohio Rules of Appellate
Procedure. Therefore, he interposes his second IAAC claim
(his “Rule 26(B)” IAAC claim), in which he argues that his
appellate counsel’s failure to advise him of his right to file a
Rule 26(B) motion and the state’s failure to appoint counsel
sua sponte to pursue a Rule 26(B) motion constituted IAAC,
as “cause” for his default of his Direct Appeal IAAC claim.
However, assuming for argument’s sake that his Rule 26(B)
IAAC claim excuses his procedural default of his Direct
Appeal IAAC claim, his Direct Appeal IAAC claim fails on
its merits and, therefore, cannot serve as “cause” for the
balance of his procedurally defaulted claims.
66 Williams v. Bagley No. 02-3461
(1) The law of IAAC with respect to Ohio criminal
cases
We state here the accepted principles of law with regard to
IAAC in the context of an Ohio criminal case. Attorney error
does not amount to “cause” unless it rises to the level of a
constitutional violation of the right to counsel under
Strickland v. Washington, 466 U.S. 668 (1984). Monzo v.
Edwards, 281 F.3d 568, 577 (6th Cir. 2002). Strickland
mandates a two-part test to determine whether a defendant
was denied effective assistance of counsel:
First, defendant must show that counsel’s performance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as
to deprive the defendant of a fair trial, a trial whose result
is reliable.
466 U.S. at 687.
To satisfy the deficiency prong of Strickland, a defendant
“must show that counsel’s representation fell below an
objective standard of reasonableness.” Id. at 688. Because
“[i]t is all too tempting for a defendant to second-guess
counsel’s assistance after conviction or adverse sentence, and
it is all too easy for a court, examining counsel’s defense after
it has proved unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable,” a court “must indulge
a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Id. at 689.
In other words, “the defendant must overcome the
presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Id. (internal
quotation marks omitted).

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No. 02-3461 Williams v. Bagley 67
To provide effective assistance, appellate counsel need not
“raise every nonfrivolous claim on direct appeal.” Monzo,
281 F.3d at 579. In fact, the “process of winnowing out
weaker arguments on appeal and focusing on those most
likely to prevail, far from being evidence of incompetence, is
the hallmark of effective appellate advocacy.” Smith v.
Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes,
463 U.S. 745, 751-52 (1983)). “Generally, only when
ignored issues are clearly stronger than those presented, will
the presumption of effective assistance of counsel be
overcome.” Monzo, 281 F.3d at 579 (internal quotation
marks omitted)
To satisfy the prejudice prong of Strickland, a defendant
“must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. The prejudice prong
“is not satisfied if there is strong evidence of a petitioner’s
guilt and a lack of evidence to support his claim.” Rust v.
Zent, 17 F.3d 155, 162 (6th Cir. 1994). The petitioner “must
show that absent his counsel’s error, the courts of appeal
would have reasonable doubt with respect to his guilt.”
Moore v. Carlton, 74 F.3d 689, 693 (6th Cir. 1996).
A claim of ineffective assistance of counsel must be
presented to the state courts as an independent claim before it
may be used to establish cause for a procedural default.
Edwards v. Carpenter, 529 U.S. 446, 452 (2000). And, as the
Supreme Court has recently instructed, “an ineffective-
assistance-of-counsel claim asserted as cause for the
procedural default of another claim can itself be procedurally
defaulted.” Id. at 453. However, the procedural default of an
ineffective assistance claim may “itself be excused if the
prisoner can satisfy the cause-and-prejudice standard with
respect to that claim.” Id. (emphasis in original).
68 Williams v. Bagley No. 02-3461
Under Ohio law, claims of ineffective assistance of
appellate counsel must be raised in a motion for reopening
before the court of appeals pursuant to Ohio Rule of
Appellate Procedure 26(B), rather than in a post-conviction
proceeding pursuant to Ohio Revised Code § 2953.21. State
v. Murnahan, 584 N.E.2d 1204, 1208 (Ohio 1992); see also
Wickline v. Mitchell, 319 F.3d 813, 823 (6th Cir. 2003). Rule
26(B) reads
A defendant in a criminal case may apply for reopening
of the appeal from the judgment of conviction and
sentence, based on a claim of ineffective assistance of
appellate counsel. An application for reopening shall be
filed in the court of appeals where the appeal was
decided within ninety days from journalization of the
appellate judgment unless the applicant shows good
cause for filing at a later time.
Ohio R. App. P. 26(B)(1). Williams did not file a Rule 26(B)
motion nor otherwise attempt to raise any ineffective-
assistance-of-appellate-counsel claim in state court.
(2) Application of IAAC law in this case
The district court held that Williams’s Direct Appeal IAAC
claim could not serve as cause for his procedural defaults
because he had procedurally defaulted the Direct Appeal
IAAC claim as well. J.A. at 125. The court further held that
Williams’s Rule 26(B) IAAC claim could not stand as
“cause” for his default of his Direct Appeal IAAC claim
because Williams did not have a constitutional right to
counsel to pursue a Rule 26(B) motion. J.A. at 126. Finally,
the court ruled that, even if Williams had preserved his Direct
Appeal IAAC claim, this claim could not save the remaining
claims from procedural default because Williams’s appellate
counsel was not constitutionally ineffective. “Williams’s
counsel,” the district court concluded, “was not deficient for
failing to raise on appeal nonfrivolous claims that counsel

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No. 02-3461 Williams v. Bagley 69
decided as a matter of professional judgment not to press.”
J.A. at 129.
We agree that Williams’s counsel on direct appeal was not
ineffective for failing to raise the claims which are now
procedurally defaulted. Before giving our reasons for this
conclusion, though, we pause briefly to clarify a couple of
matters.
First, we note that this court continues to wrestle with the
issue of whether the Rule 26(B) procedure implicates the
Sixth Amendment’s right to counsel. In White v. Schotten,
201 F.3d 743 (6th Cir. 2000), applying pre-AEDPA law, a
panel of this court held that Ohio criminal defendants have a
federal constitutional right to effective assistance of counsel
in connection with a Rule 26(B) application and that the
failure of petitioner’s counsel to file a timely Rule 26(B)
application constituted “cause” for his procedural defaults.
Id. at 754. Later, in Lopez v. Wilson, 355 F.3d 931 (6th Cir.
2004), applying AEDPA, another panel held that the Ohio
Court of Appeals had not acted contrary to clearly established
federal law as determined by the Supreme Court in denying
the petitioner’s request for appointment of counsel to file a
Rule 26(B) motion. Id. at 933. The Lopez court
distinguished White on the ground that AEDPA requires
greater deference to state court decisions. Id. at 938.
Subsequently, the court voted to vacate Lopez and hear the
matter en banc. Lopez v. Wilson, No. 01-3875, 2004 WL
934989 (6th Cir. Apr. 20, 2004). Because we can resolve this
matter without deciding whether Williams had a
constitutional right to Rule 26(B) counsel, and because, quite
inexplicably, the parties have not addressed White, we set this
issue aside.
Second, it is not entirely clear that Williams has exhausted
his IAAC claims. Williams has not filed a Rule 26(B) claim
to date, and Rule 26(B)’s ninety day deadline has long
expired. However, Rule 26(B) recognizes an exception to the
ninety-day deadline in cases where “the applicant shows good
70 Williams v. Bagley No. 02-3461
cause for filing at a later time.” Ohio R. App. P. 26(B)
(emphasis added). Arguably, the “good cause” avenue is not
open to Williams, as the Ohio appellate courts have proved
unsympathetic to the claim that a lack of effective assistance
of counsel serves as “good cause” for purposes of Ohio Rule
of Procedure 26(B), even in the wake of White v. Schotten.
See Eads v. Morgan, 298 F. Supp. 2d 698, 705 (N.D. Ohio
2003) (collecting cases). However, the Ohio Supreme Court
recently has accepted the following certified question from
the United States District Court for the Northern District of
Ohio: “Is an application to reopen an appeal under Ohio Rule
of Appellate Procedure 26(B) part of the direct appeal from a
judgment of conviction?” Morgan v. Eads, 805 N.E.2d 542
(Ohio 2004). In any event, we need not resolve this issue
because we have the discretion to deny unexhausted claims on
their merits, which we exercise to the extent necessary.
28 U.S.C. § 2254(b)(2); see also Lott v. Coyle, 261 F.3d 594,
608 (6th Cir. 2001).
Assuming for argument’s sake that Williams’s Rule 26(B)
IAAC claim excuses his procedural default of his Direct
Appeal IAAC claim, his Direct Appeal IAAC claim fails on
its merits. Williams levels a broadside at his appellate
counsel, charging that his counsel was constitutionally
ineffective for failing to raise any claims which the court
deems procedurally defaulted. However, Williams “does not
have a constitutional right to have his counsel press
nonfrivolous points if counsel decides as a matter of
professional judgment not to press those points.” Coleman v.
Mitchell, 244 F.3d 533, 541 (6th Cir. 2001). His appellate
counsel was not deficient for failing to raise the procedurally-
defaulted claims as these claims are not clearly stronger than
the claims raised by his appellate counsel on direct appeal.
Moreover, we have reviewed the substance of Williams’s
procedurally defaulted claims and have determined that each
of them lacks merit. Thus, he suffered no prejudice from his
appellate counsel’s performance. See Buell, 274 F.3d at 352.
And because Williams has not established a constitutional
violation of his right to counsel, his counsel’s performance

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No. 02-3461 Williams v. Bagley 71
cannot serve as “cause” for his procedural defaults. Monzo,
281 F.3d at 577.
F. “Fundamental Miscarriage of Justice” Gateway
The district court properly concluded that Williams cannot
escape his procedural defaults by means of the “fundamental
miscarriage of justice” gateway. A habeas petitioner can
overcome a procedural default by demonstrating that “failure
to consider the claims will result in a fundamental miscarriage
of justice.” Coleman, 501 U.S. 722, 750 (1991). The
“fundamental miscarriage of justice” gateway is open to a
petitioner who submits new evidence showing that “a
constitutional violation has probably resulted in the
conviction of one who is actually innocent.” Schlup v. Delo,
513 U.S. 298, 327 (1995) (quoting Murray v. Carrier, 477
U.S. 478, 496 (1986)). “To establish the requisite probability,
the petitioner must show that it is more likely than not that no
reasonable juror would have convicted him in light of the new
evidence.” Id. The gateway is also available to a petitioner
who demonstrates that he is “actually innocent” of the
sentence of death that has been imposed on him. To establish
his “innocence” of the death penalty, a petitioner must “show
by clear and convincing evidence that, but for a constitutional
error, no reasonable juror would have found the petitioner
eligible for the death penalty under the applicable state law.”
Sawyer v. Whitley, 505 U.S. 333, 336 (1992). Importantly, a
claim of innocence in this context is “not itself a
constitutional claim, but instead a gateway through which a
habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits.” Schlup, 513
U.S. at 315 (quoting Herrera v. Collins, 506 U.S. 390, 404
(1993)).
As the district court concluded, Williams has not
approached the “actual innocence” standard. In support of his
claim, Williams offers only the assertion that unidentified
“evidence that should have been presented at trial and the
mitigating phase, but was not due to ineffective
72 Williams v. Bagley No. 02-3461
representation, is evidence which establishes Petitioner’s
ineligibility for the imposition of the death penalty.” Given
the strong evidence of Williams’s guilt and Williams’s failure
to identify the new “evidence,” our review of the record in
this case does not permit us to say that Williams has made a
showing of “actual innocence” permitting him to pass through
the “fundamental miscarriage of justice” gateway.
VI. WILLIAMS’S MOTION FOR DISCOVERY
The district court did not abuse its discretion in denying
Williams’s motion for discovery. See Stanford v. Parker, 266
F.3d 442, 460 (6th Cir. 2001); Byrd v. Collins 209 F.3d 486,
516 (6th Cir. 2000). “Habeas petitioners have no right to
automatic discovery.” Stanford, 266 F.3d at 460. Rule 6 of
the Rules Governing Section 2254 Cases in the United States
District Courts permits a petitioner “to invoke the processes
of discovery available under the Federal Rules of Civil
Procedure if, and to the extent that, the judge in the exercise
of his discretion and for good cause shown grants leave to do
so, but not otherwise.” R. 6 R. Gov. 2254 Cases. Rule 6
embodies the principle that a court must provide discovery in
a habeas proceeding only “where specific allegations before
the court show reason to believe that the petitioner may, if the
facts are fully developed, be able to demonstrate that he is . . .
entitled to relief.” Bracy v. Gramley, 520 U.S. 899, 908-09
(1997) (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)).
“The burden of demonstrating the materiality of the
information requested is on the moving party.” Stanford, 266
F.3d at 460.
Rule 6 does not “sanction fishing expeditions based on a
petitioner’s conclusory allegations.” Rector v. Johnson, 120
F.3d 551, 562 (5th Cir. 1997); see also Stanford, 266 F.3d at
460. “Conclusory allegations are not enough to warrant
discovery under [Rule 6]; the petitioner must set forth specific
allegations of fact.” Ward v. Whitley, 21 F.3d 1355, 1367
(5th Cir. 1994).

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No. 02-3461 Williams v. Bagley 73
23Req uest for Produc tion No. 1: Produce the atomic abso rption kit
and samples submitted for examination to the Ohio Bureau of Criminal
Identification & Investigation, all documents identifying the testing
procedures and processes conducted on the samples, and all rep orts
generated or produced in connection with the analysis and/or testing of
the sam ples. J.A . at 170 .
24Before this court, W illiams simp ly announces, “Good cause for
discovery clearly exists. Petitioner has asserted claim s in his petition for
a writ of habeas corpus which, when fully develop ed, will demo nstrate
that he is co nfined illegally and is entitled to relief.”
Williams requested leave to serve four requests for
production. The first request centered on an atomic
absorption kit used to test Williams’s hands for gunshot
residue.23 During the trial, Jeffrey Lynn, a forensic scientist
at the Ohio Bureau of Criminal Identification and
Investigation, testified that swabs from Williams’s right and
l e f t p a l ms showed levels of barium and
a n t i m o n y — s u b s t a n c e s co mm on ly f o u n d i n
ammunition—consistent with gunshot residue. J.A. at 4587-
90. However, Williams’s accomplices had testified that
Williams wore gloves during the murder; so, in order to
square this testimony with the results of the atomic absorption
test, the prosecutor attempted to elicit testimony from Lynn
that the barium and antimony found on Williams’s hands
could have been transferred from the gloves to his hands
when Williams took the gloves off. J.A. at 4590-98. Lynn
was unable to offer an opinion on the state’s “transfer” theory
to a reasonable degree of scientific certainty, and the trial
court instructed the jury to disregard Lynn’s answers. J.A. at
4592-98.
Before the district court,24 Williams indicated that he
required this discovery to pursue his ineffective assistance of
counsel claim. J.A. at 171. Specifically, he claimed that his
trial counsel “was not effective on the matters dealing with
[Lynn’s testimony]” and that he “was not afforded an expert
necessary to challenge the transfer theory.” J.A. at 171. The
74 Williams v. Bagley No. 02-3461
25Request for Production No. 2: Produce State’s Exhibit 11 and 11A
(original diagram of McGuffy Road residence and envelope), the major
fingerprint cards for co-conspirators Bro derick Boone and Jessica Cherry,
and the identification of any finge rprint(s) in the indices of state or federal
law enforcement authorities showing points of identification or
classifications similar to the latent unidentified fingerprints discovered on
State’s Exhibit 11.
Request for Produc tion N o. 3: Produce State’s Exhibit 11 and 11A
(original diagram of McG uffy Road residence and envelope), the
handwriting exem plars taken from Petitioner W illiams, and all
handwritings or exemplars of co-conspirators Jessica Cherry, Dominic
Cherry and Broderick Boone. J.A. at 173.
district court denied Williams’s request, concluding that
“[a]ny discovery related to the state’s ‘transfer theory’ is
unnecessary because the trial court excluded this theory from
the jury’s consideration.” J.A. at 2048.
The district court properly denied Williams’s first request
for production. As previously discussed, Williams has
procedurally defaulted his ineffective assistance of counsel
claims. Moreover, the trial court—on the basis of trial
counsel’s objections—instructed the jury to disregard Lynn’s
testimony concerning the transfer theory, so Williams was not
prejudiced by his trial counsel’s alleged failure to “deal with”
this testimony. As the Supreme Court held in Strickland v.
Washington, 466 U.S. 668 (1984), “any deficiencies in
counsel’s performance must be prejudicial in order to
constitute ineffective assistance under the Constitution.” Id.
at 692. Williams has not shown that the requested discovery
could “resolve any factual disputes that could entitle him to
relief.” Stanford, 266 F.3d at 460.
The second and third requests involved a diagram of Alfred
Madison’s house, the site of the murders.25 Two of
Williams’s accomplices, Broderick Boone and Dominic
Cherry, testified that Williams drew two diagrams of the
residence during a meeting attended by Broderick, Dominic,
and Jessica Cherry, and that one of the diagrams was
destroyed at Williams’s request. J.A. at 4050-51, 4199-4201,

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No. 02-3461 Williams v. Bagley 75
4267, 4274-75. The other diagram was recovered by the
police and analyzed by Sheryl Lynn Harris, a fingerprint
examiner at the Ohio Bureau of Criminal Identification and
Investigation. During the trial, Harris testified that she found
three fingerprints on the diagram and that she tested these
fingerprints against samples from Williams and Dominic.
J.A. at 4575-76. She further testified that two of the
fingerprints belonged to Dominic and that the third fingerprint
did not belong to Williams or Dominic. J.A. at 4576. On
cross-examination, she conceded that the third fingerprint was
not tested against samples from Broderick or Jessica. J.A. at
4581-82.
Before the district court, Williams stated that he required
this discovery to pursue his ineffective assistance of counsel
claim. J.A. at 173. Specifically, he contended that trial
counsel’s failure to ascertain whether the unidentified
fingerprint belonged to Broderick or Jessica, and to
commission a handwriting analysis to determine whether
Williams or one of his accomplices drew the diagram,
constituted ineffective assistance. J.A. at 173-74. Williams
maintained that Broderick’s and Dominic’s credibility would
have been seriously undermined if trial counsel had presented
evidence that the fingerprint belonged to Broderick or Jessica
or that Williams had not drawn the diagram. J.A. at 172-74.
The district court determined that the requested discovery
would not aid Williams’s ineffective assistance claim, given
that Williams’s accomplices admitted viewing the diagrams.
J.A. at 2048-49.
The district court did not abuse its discretion in denying
Williams’s second and third requests for production. Again,
Williams has procedurally defaulted his ineffective assistance
of counsel claim. Moreover, Williams has not shown that the
requested discovery could yield evidence enabling Williams
to prevail on his ineffective assistance claim. Broderick’s and
Dominic’s testimony was consistent with a finding that
Broderick and Jessica viewed and handled the diagram, so
evidence that the diagram bore Broderick’s or Jessica’s
76 Williams v. Bagley No. 02-3461
26Request for Produc tion N o. 4: Produce all information referring,
relating or pertaining to any promise or inducement offered or conferred
upon Jerome Gibson: (a) at any time preceding Petitioner’s trial, and (b)
in any way relating or resulting from his testimony at P etitioner W illiams’
trial. J.A. at 1 74.
fingerprint would not have impugned Broderick’s or
Dominic’s credibility. Regarding the handwriting samples,
Williams makes no effort to explain how evidence that one of
his accomplices—rather than Williams himself—drew the
diagram would enable him to show prejudice sufficient to
sustain an ineffective assistance of counsel claim. As the
Supreme Court said in Strickland, the defendant “must show
that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” 466 U.S. at 694.
The fourth request sought materials relating to any
inducements offered to Jerome Gibson to testify against
Williams.26 Gibson was incarcerated with Williams after
Williams’s capture during the break-in at the JJC. J.A. at
4828. He testified that Williams confessed that he had
arranged the murder of four men in connection with a dispute
over “drugs” and “territory,” though Williams would not say
whether he actually shot the men himself. J.A. at 4829-32.
He further testified that Williams confessed that he had
broken into the JJC in order to “get the guys that turned
State’s evidence, made statements against him.” J.A. at 4832.
Before the district court, Williams asserted that he “was
prejudiced by the government’s failure to disclose the
information requested as such information constitutes
favorable impeachment evidence which Petitioner’s counsel
would have used to impeach the testimony of Jerome
Gibson.” J.A. at 175. Williams did not identify the specific
claim(s) that he hoped to advance with the requested
discovery, though it appears that the discovery was directed
at his Brady and ineffective assistance of counsel claims.

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No. 02-3461 Williams v. Bagley 77
The district court did not abuse its discretion in denying
Williams’s fourth request for production. This request
appears to be a classic “fishing expedition,” as Williams has
not identified the “inducements” he expects to uncover.
Moreover, regardless of the claim(s) underlying the request,
Gibson’s prior convictions provided ample ammunition for
attacking Gibson’s credibility, and any evidence of
inducements for his testimony would have been cumulative.
See J.A. at 4938-39 (defense counsel’s closing argument). As
the district court reasoned, “[b]ecause Gibson’s credibility
already had been seriously undercut by disclosing seven prior
felony convictions, any further impeachment of his testimony
would have been cumulative.” J.A. at 2049. As this court
stated in Byrd, “where undisclosed evidence merely furnishes
an additional basis on which to challenge a witness whose
credibility has already been shown to be questionable or who
is subject to extensive attack by reason of other evidence, the
undisclosed evidence may be cumulative, and hence not
material.” 209 F.3d at 518 (internal quotation marks
omitted). Thus, Williams has not shown that the request for
production might yield evidence enabling him to prevail on
any of his claims.
VII. WILLIAMS’S REQUEST FOR AN EVIDENTIARY
HEARING
The district court did not abuse its discretion in denying
Williams’s request for an evidentiary hearing. See Alley v.
Bell, 307 F.3d 380, 389 (6th Cir. 2002) (“We review a district
court’s decision not to conduct an evidentiary hearing for an
abuse of discretion.”). The district court denied Williams’s
request on the ground that it found no material factual dispute
requiring such a hearing. J.A. at 142. On appeal, Williams
suggests that the district court abused its discretion in denying
his motion, but he fails to identify the subject of the proposed
hearing. At his most specific, he demands a hearing in order
to show that ineffective assistance of counsel serves as
“cause” for any procedural defaults (Williams’s Br. at 44),
claims that the lack of a hearing “has also prejudiced
78 Williams v. Bagley No. 02-3461
Petitioner with regard to AEDPA’s ‘presumption of
correctness’” (id. at 69), and requests that “he be granted an
evidentiary hearing in regard to all claims which were
determined to be procedurally defaulted, or to which the
presumption of correctness applies” (id. at 70-71). “However,
even in a death penalty case, bald assertions and conclusory
allegations do not provide sufficient ground to warrant
requiring the state to respond to discovery or to require an
evidentiary hearing.” Bowling v. Parker, 344 F.3d 487, 512
(6th Cir. 2003) (internal quotation marks omitted).
Manifestly, the district court did not abuse its discretion in
denying Williams’s request, given his failure to specify which
of his claims warranted an evidentiary hearing and what could
be discovered through an evidentiary hearing. Stanford v.
Parker, 266 F.3d 442, 460 (6th Cir. 2001).
CONCLUSION
Based on our review of the record, the briefs, and the earlier
opinions in this case, and our consideration of oral argument,
we conclude that Williams has not established a claim for
habeas corpus relief. We further conclude that the district
court did not abuse its discretion in denying Williams’s
requests for discovery and an evidentiary hearing. We
therefore AFFIRM the judgment of the district court.

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No. 02-3461 Williams v. Bagley 79
_____________
DISSENT
_____________
MERRITT, Circuit Judge, dissenting. I would issue the
writ of habeas corpus because the jury selection process
violated Williams’ right to an “impartial jury” under the Sixth
Amendment, as explained by Chief Justice Moyer in his
dissenting opinion in the Ohio Supreme Court in this case.
Judge Rogers’ complex 77-page opinion for the Court
illustrates the highly complex, convoluted nature of our
federal death penalty jurisprudence which depends on
multiple layers of intersecting state and federal doctrines and,
through various door-closing devices like “procedural
default,” prevents the Court from reaching many of Williams’
claims on the merits. (See, for example, footnote 21.) Such
a system, as has been often noted by judges and scholars,
produces “randomized” executions with “no observable
differences between outcomes in the ‘standardless’ discretion
disapproved of in Furman, and the ‘guided discretion’ upheld
in Gregg.” Zimring, The Contradictions of American Capital
Punishment 9 (2003). See Kozinski, Death: The Ultimate
Run-On Sentence, 46 Case W. L. Rev. 1 (1995) (situation not
different from the time the Supreme Court “wiped the slate
clear of all death statutes” as our institutions “have gone
about recreating and expanding the death penalty”).
In such a randomized system, the capital case often is won
or lost at voir dire. The voir dire and the method of jury
selection become more important than the trial itself.
Executions depend on “the line between innocence and guilt
[which] is drawn with reference to reasonable doubt” by
individual jurors, Schlup v. Delo, 513 U.S. 298, 329 (1995),
and on the fact that just 1 of the 12 jurors is empowered to
prevent the imposition of the death penalty by finding at the
sentence stage that the mitigating factors outweigh the
aggravating factors. Mills v. Maryland, 486 U.S. 367 (1988).
80 Williams v. Bagley No. 02-3461
1The practice of excusing jurors with scruples against the death
penalty has a long history. Prior to 1968, state law controlled this process
without federal court intervention. In Withersp oon v. Illinois, 391 U.S.
510 (1968), the Sup reme Court limited strictly such juror exclusion to just
those jurors “wh o made unmistaka bly clear (1) that they would
automatically vote against the imposition of capital punishment without
regard to any evidence . . . or (2 ) that their attitude to ward the death
penalty would prevent them from making an impartial decision as to the
defendant’s guilt.” 39 1 U.S. at 52 2, n. 21 . This rule was reve rsed in
Wainwright v. Witt, 469 U.S. 412 (1985), eliminating “the requirement
that a juror may be excluded only if he would never vote for the d eath
Thus the conduct of the voir dire and the number of pro-
death-penalty jurors versus the number of jurors who disfavor
the death penalty make a big difference in the outcome of the
case. Execution may turn on the views of one juror.
The Sixth Amendment guarantees the right to an “impartial
jury” in criminal prosecutions, not one biased in favor of
automatically imposing the death penalty. In the present case,
as Chief Justice Moyer suggests, we simply create a legal
fiction when we say that Williams had an “impartial” or
neutral and unbiased jury insofar as the death penalty is
concerned. The trial court in this case administered a double
dose of lethal rulings at the voir dire — those jurors who
disfavor the death penalty were excused for cause, those who
favor the automatic imposition of the death penalty for
murder were not excused for cause.
The state prosecutor “death qualified” the jury and stacked
it in favor of proponents of the death penalty before the case
was tried. At the voir dire, the prosecutor was successful in
having the court excuse for cause those jurors predisposed to
disfavor the death penalty. Even though a quarter of the
States and all members of the European Union have abolished
the death penalty, jurors who would agree with the policy of
these States and nations are said to be biased and
unrepresentative and were eliminated from service on this
jury. As a practical matter, this left a jury made up of pro-
death-penalty jurors.1

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No. 02-3461 Williams v. Bagley 81
penalty” and “the extremely high burden of proof” which Witherspoon
had impo sed upon the State. Id. at 421. In Witt a much more general
standard was substituted (i.e., that the juror’s view “would substantially
impair the performance of his duties”), and the state trial judge was given
much bro ader discre tion in the process. Id. at 420. In the view of many
scholars and judges, the result that has emerged is a double standard
favor ing the pro secution in cap ital cases. See Holdridge, Selec ting
Capital Jurors Uncommonly Willing to Condemn A Man to Die: Lower
Court’s Contrad ictory R ead ings o f Wainwright v. Witt and Morgan v.
Illinois, 19 Miss. C .L. Rev. 283, 301 -03 (1999).
Chief Justice Moyer pointed out in his dissent for himself
and Justice Pfeifer that the state trial court went much further
than simply eliminating anti-death penalty jurors. It declined
to excuse for cause jurors who would automatically impose
the death penalty for murder. His dissenting opinion explains
the situation clearly:
I would also reverse this conviction on the ground that
Williams was not adequately protected from juror bias in
favor of the death penalty. Of the nine prospective jurors
for whom the trial court denied defense challenges for
cause based on expression of death penalty bias, five
were excused upon the exercise of peremptory challenges
by defense counsel, another was excused for personal
reasons, the number of one of the jurors was not reached,
and two, Eddleman and Camp, were seated as jurors.
Appellant argues that each of these prospective jurors
was biased in favor of the death penalty. With regard to
Eddleman, Scanlon and Subecz, I agree.
. . . .
Juror Eddleman again presents the greatest difficulties.
The majority admits that Eddleman contradicted herself
on voir dire. Despite her repeated statements that she
would prefer death and would not consider alternative
life sentences, the majority concludes that the court’s
rehabilitation of Eddleman was successful because “the
trial judge’s questions were more than general inquiries
82 Williams v. Bagley No. 02-3461
2The Chief Justice then describes the Eddleman voir dire in detail,
679 N.E.2d at 667-68:
Eddleman unambiguously affirmed that her preference for the
death penalty would be automatic. Though consistent with her
previous responses, such statements must arouse profound doubt
as to whether impartiality would ever be possible for Eddleman.
The exchange was the following:
“[Defense Counsel]. You understand that you only have those
three o ptions if you get to the po int”
“Juror Eddleman. Those three options, if it came right down
to it, it would probably be the death penalty then. If there was
any remote chance of them being paroled, I would probably go
with the death penalty.”
“[Defense C ounsel] Automatically, just because of the
possibility of parole.”
“Juror Eddleman. Yes.”
“[Defense Counsel] And are you saying that even though you
know that these three alternatives should start out even in your
mind? You are being honest with me.”
“Juror Eddleman. Yes.”
“[Defense Counsel] And because of what you are saying
about the death penalty being automatic, because of the
eligibility of paro le, you would be unable to fairly consider life
imprisonment, am I right?”
regarding a juror’s ability to be fair and impartial.” I
disagree. I believe this case represents precisely the sort
of rehabilitation the United States Supreme Court
intended to prohibit in Morgan v. Illinois when it held
that general questions to a prospective juror by the court
relating to fairness or impartiality cannot negate a
statement by the prospective juror that he or she would
automatically vote for death. 504 U.S. at 735-736, 112
S. Ct. at 2233, 119 L. Ed. 2d at 506-507.2

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No. 02-3461 Williams v. Bagley 83
“Juror Eddleman. If it was without ever a chance of parole,
yes.”
“[Defense C ounsel] T hat’s not the way it is.
“Juror Eddleman. Since we don’t have a choice[,] I would say
the death penalty.”
“[Defense Counsel] And you say that knowing that there are
these life sentencing options that you sho uld co nsider.”
“Juror Eddleman. Because whenever I think about it I would
think well, maybe 30 years down the line somebody may be
getting out of prison and might meet up with one of my children
or something. T hat’s what I’m thinking of whenever I thin of
it.”
. . . .
“[Defense Counsel] Is yo ur bo ttom line, if I have to determine
the sentence I’ll vote death because there’s eligibility for
parole?”
“Juror Eddleman. Yes.”
State v. Williams, 679 N.E.2d 646, 664 (Ohio 1997).
After quoting the exchange between defense counsel and
Eddleman in which the juror seven times said that she would
always choose the death penalty over any other options such
as life imprisonment (see footnote 1 below), the Chief Justice
pointed out that the trial court’s attempt at rehabilitation was
ineffective:
In contrast, Eddleman made very few responses
suggesting that she could set aside her bias. Following
the preceding exchange, the judge elicited a general
response.
“The Court: Mrs. Eddleman, do you agree that you can
listen to and follow the instructions of the Court?”
84 Williams v. Bagley No. 02-3461
“Juror Eddleman. Yes.”
Then, after explaining the two phases of the trial and
the sentencing options, the court asked, “Can you follow
the instructions of law?” Eddleman answered, “Yes.”
Id. at 668.
The trial judge also weighted the jury selection process in
favor of the death penalty with respect to juror Scanlon, as
Chief Justice Moyer also pointed out in his dissenting
opinion. Juror Scanlon gave the following set of answers to
defense counsel’s questions on the death penalty:
MR. INGRAM: And you have said that if you take
someone else’s life and it’s a proven fact, that the death
penalty should be imposed.
JUROR SCANLON: Yes.
MR. INGRAM: Well, what I want to know is if you
get to a second phase and there’s a murder which is a
proven fact --
JUROR SCANLON: I would vote for the death
penalty.
MR. INGRAM: Every time?
JUROR SCANLON: Yes.
MR. INGRAM: Automatically?
JUROR SCANLON: If it’s an option given, yes.
MR. INGRAM: As long as the death penalty is an
option you would vote for it every time you have a
choice where there’s been a finding of guilty for
aggravated murder?

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No. 02-3461 Williams v. Bagley 85
JUDGE SCANLON: Yes.
. . . .
MR. INGRAM: Did you say if he willfully and
intentionally did it you would not even look at life
imprisonment.
JUROR SCANLON: Right.
MR. INGRAM: If he willfully and intentionally did it
it should be death?
JUROR SCANLON: Right.
MR. INGRAM: Automatically?
JUROR SCANLON: Right.
MR. INGRAM: Regardless of what could be said
about the defendant?
JUROR SCANLON: Right.
MR. INGRAM: Because of the way you feel in a case
where a defendant willfully and intentionally murdered
someone you would want that defendant put to death?
JUROR SCANLON: Yes, sir.
MR. INGRAM: You wouldn’t even consider life
imprisonment as an option?
JUROR SCANLON: Not if he intentionally took
someone else’s life without any thought of what he did,
no.
. . . .
86 Williams v. Bagley No. 02-3461
MR. INGRAM: If you find someone guilty of willful
and intentional murder --
JUROR SCANLON: Then I believe they should be
put to death.
MR. INGRAM: All the time?
JUROR SCANLON: Yes, sir.
MR. INGRAM: Regardless of what anybody says
about anything?
JUROR SCANLON: Yes, sir.
MR. INGRAM: And you feel so strongly about it it
may be very difficult for you to put your feelings out of
your mind, correct?
JUROR SCANLON: In that sense, yes.
MR. INGRAM: In light of everything that you just
told me, your feelings about the death penalty, in cases of
willful and intentional murder, would prevent or
substantially impair you from fairly considering life
imprisonment as a sentencing option?
JUROR SCANLON: I guess so.
Instead of following the requirements of Morgan v. Illinois,
504 U.S. 719, 729 (1992) (“based on the requirement of
impartiality . . . a capital defendant may challenge for cause
any juror” who will “automatically vote for the death penalty”
without really weighing the “aggravating and mitigating
circumstances”), that such a juror be excused for cause, the
trial court overruled the defense objection. Defense counsel
then had to exercise a peremptory challenge. Surely, if those
who disfavor the death penalty may be excused for cause, the
Chief Justice is correct that the failure to excuse Juror
Scanlon for cause also violates the Sixth Amendment

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No. 02-3461 Williams v. Bagley 87
3See Holdridge, supra, note 1.
requirement of an unbiased jury. Juror Scanlon said 16 times
that she would automatically impose the death penalty for
first degree murder. There is no question about her strong
predisposition to impose the death penalty in every murder
case.
The Ohio death penalty system, as administered in this
case, not only picks its jurors from those who favor the death
penalty and eliminates those opposed. It picked jurors who
would automatically impose the death penalty for first degree
murder. That practice is inconsistent with the Sixth
Amendment requirement assuring an “impartial jury” in
criminal trials. The trial judge made fact findings and legal
conclusions about the selection of the jury that practically
assured the prosecution of a death verdict upon receiving a
verdict of guilty. These errors not only violate Morgan v.
Illinois, supra, but also the principle of Woodson v. North
Carolina, 428 U.S. 280 (1976), invalidating under the Eighth
Amendment the automatic or mandatory imposition of the
death penalty. When those who disfavor the death penalty are
excluded and strong death penalty proponents who would
automatically impose it are included, the death penalty
becomes the inevitable result. Mills v. Maryland, supra,
which allows jurors to weigh aggravators and mitigators in
favor of life also becomes a dead letter because the method of
jury selection prevents such jurors from sitting. In upholding
this system, the Court upholds the worst of double standards:
get rid of jurors with death penalty scruples, keep the jurors
who have no scruples about imposing it automatically. It is
hard to think of a more unfair system of jury selection.3
I have serious doubts about the Court’s disposition of
several other questions — particularly those involving
questions of procedural default — but I would not reach those
issues because I would grant the writ on the Sixth
88 Williams v. Bagley No. 02-3461
Amendment ground explained by Chief Justice Moyer and
Justice Pfeifer.

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