Rule 206 ELECTRONIC CITATION: 2004 FED App. 0310P (6th Cir.) File Name: 04a0310p.06… v. TODD ISHEE, Warden

*The Honorable B obb y R. B aldock, Circuit Judge of the United States
Court of Appeals for the Tenth Circuit, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0310P (6th Cir.)
File Name: 04a0310p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
FRANK LORDI,
Petitioner-Appellant,
v.
TODD ISHEE, Warden,
Respondent-Appellee.
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No. 02-4273
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 01-01725—Donald C. Nugent, District Judge.
Argued: June 10, 2004
Decided and Filed: September 10, 2004
Before: SILER, MOORE, and BALDOCK, Circuit
Judges.*
_________________
COUNSEL
ARGUED: Kort W. Gatterdam, KRAVITZ & KRAVITZ,
Columbus, Ohio, for Appellant. Stuart A. Cole, OFFICE OF
2 Lordi v. Ishee, et al. No. 02-4273
THE ATTORNEY GENERAL, CORRECTIONS
LITIGATION SECTION, Columbus, Ohio, for Appellee.
ON BRIEF: Kort W. Gatterdam, Max Kravitz, KRAVITZ
& KRAVITZ, Columbus, Ohio, for Appellant. Stuart A.
Cole, OFFICE OF THE ATTORNEY GENERAL,
CORRECTIONS LITIGATION SECTION, Columbus, Ohio,
for Appellee.
SILER, J., delivered the opinion of the court, in which
BALDOCK, J., joined. MOORE, J. (pp. 11-17), delivered a
separate opinion dissenting in part.
_________________
OPINION
_________________
SILER, Circuit Judge. Frank Lordi appeals the district
court’s denial of his petition for a writ of habeas corpus from
his convictions in state court under 28 U.S.C. § 2254. In the
district court, Lordi claimed various constitutional
deficiencies in his convictions. However, this court granted
Lordi a certificate of appealability solely on the issues of
whether his trial counsel was constitutionally ineffective due
to a conflict of interest, and whether Lordi was
constitutionally deprived of an impartial jury due to the trial
court’s decision not to investigate an allegation of a juror’s
bias. For the reasons stated hereafter, the district court is
AFFIRMED.
BACKGROUND
In April 1998, Lordi was indicted on eighteen criminal
counts, variously stemming from his position as a county
commissioner in Mahoning County, Ohio. Lordi hired
attorney Lou D’Apolito (D’Apolito) to defend against the
charges. D’Apolito’s law partner, David D’Apolito, had
previously represented one of the government’s material
witnesses against Lordi, Joseph Veneroso. This

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No. 02-4273 Lordi v. Ishee, et al. 3
representation had been in a previous unrelated criminal case
involving a felony charge of bribery. Veneroso had worked
in the county’s building inspection office and had offered to
pay his supervisor $6,000 for the answers to a required
certification test. In 1996, in exchange for Veneroso’s guilty
plea, the charge was reduced to a misdemeanor of
falsification. At Lordi’s trial, the government intended to
have Veneroso testify in regard to how Lordi would direct
Veneroso to engage in personal (e.g., maintenance on Lordi’s
rental houses) and political (e.g., gathering petitions) chores
while he was being paid by the county.
D’Apolito initially questioned his ability to defend Lordi
due to his partner’s prior representation of Veneroso, and
informed Lordi that he had a potential conflict of interest.
However, after conducting some research into the conflict
issue, D’Apolito concluded that he would be able to defend
Lordi. D’Apolito shared this research and his conclusion with
both the original prosecutor and the replacement prosecutor,
who initially warned D’Apolito that he thought it was
necessary to seek his removal from the case due to the
potential conflict until D’Apolito shared his research with
him. Off the record before trial, D’Apolito and the
prosecutor, without Lordi present, brought the prior
representation of Veneroso to the attention of the trial court,
which was dismissive of the entire issue. The parties and
court intended to put the issue on the record when a court
reporter was available, but never did.
During cross-examination of Veneroso at trial, D’Apolito
brought out Veneroso’s conviction for falsification, but
otherwise did not go into any details of the offense. The
cross-examination was relatively friendly with D’Apolito
accepting several re-characterizations of his questions by
Veneroso. Ultimately, on February 24, 1999, Lordi was
convicted on four counts, including theft in office (O.R.C.
§ 2921.42(A)(2)), unlawful interest in a public contract
(O.R.C. § 2921.42(A)(1)), and two misdemeanor counts of
having a conflict of interest (O.R.C. § 102.03(E)). All the
4 Lordi v. Ishee, et al. No. 02-4273
counts on which Lordi was convicted either did not rely on
Veneroso’s testimony, or had other witnesses who
corroborated Veneroso’s testimony.
Additionally, after jury selection but before trial, D’Apolito
received an anonymous telephone call from a female who
claimed to have been a member of the venire. The caller
alleged that she overheard an impaneled juror make the
statement “that guy is guilty” while looking over at Lordi.
The caller refused to identify herself, but claimed that another
member of the venire, whom she named, had also overheard
the comment as they had discussed it between themselves.
D’Apolito brought this to the immediate attention of the trial
court and requested that the court inquire into the truth or
falsity of the allegation. The state opposed this inquiry on the
basis that there was no indicia of reliability as to the
accusation and it had the potential of tilting the accused juror
into a pro-defense mode to compensate against the accusation
that he was biased against Lordi. The trial court refused to
conduct additional inquiry, citing the fact that the call was
anonymous and that the court had no reason to suspect that
anyone sitting in the venire would have heard it.
Additionally, the court speculated that the comment could
have been made in jest, and agreed with the prosecution that
an inquiry would potentially tilt the juror into a pro-defense
mode.
On May 26, 1999, Lordi filed a motion for a new trial on
the basis of newly discovered evidence, citing his “discovery”
of a conflict of interest in his trial counsel. After an
evidentiary hearing, the motion was denied. The appeal of
the motion’s denial and Lordi’s direct appeal were
consolidated by the Ohio Court of Appeals, which affirmed
the denial and Lordi’s conviction in 2000. The Ohio
appellate court ruled as to the conflict issue that “[t]here [was]
nothing in the record to demonstrate that [Lordi’s] counsel
had an actual conflict of interest which prevented him from
effectively representing” Lordi. Ohio v. Lordi, 748 N.E.2d
566, 573 (Ohio Ct. App. 2000). On May 23, 2001, the Ohio

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No. 02-4273 Lordi v. Ishee, et al. 5
Supreme Court denied Lordi leave to appeal. A subsequent
motion for reconsideration was denied. While pursuing the
appeal to the Ohio Supreme Court, Lordi filed other
applications for relief in the Ohio courts, which were
variously denied and for which he was ultimately denied
leave to appeal by the Ohio Supreme Court on May 23, 2001.
On January 4, 2001, Lordi filed a motion to reopen his
appeal with the Court of Appeals, alleging various claims that
his appellate counsel was ineffective, including the failure of
his appellant counsel to raise the issue of the trial court’s
failure to inquire into the juror bias issue. In February 2001,
the motion was denied with the appellate court ruling in
regard to the juror misconduct issue that “[t]he only evidence
of such misconduct before the court was an anonymous call.
As the record does not support a claim of juror misconduct
other than this anonymous phone call, appellant has not
demonstrated a reasonable likelihood that had appellate
counsel raised this assignment of error, it would have been
sustained.” Lordi appealed this decision to the Ohio Supreme
Court, which also denied this claim in its consolidated denial
of Lordi’s petition on May 23, 2001.
On July 17, 2001, Lordi filed for a writ of habeas corpus
under 28 U.S.C. § 2254 in federal district court. The district
court dismissed the petition and denied a certificate of
appealability (COA). This court later granted a certificate of
appealability on two issues: first, whether Lordi received
constitutionally ineffective assistance of counsel due to a
conflict of interest by his trial counsel; and second, whether
he was denied his Sixth Amendment right to an impartial
jury.
6 Lordi v. Ishee, et al. No. 02-4273
ANALYSIS
Standard of Review.
A district court’s denial of a habeas corpus writ is reviewed
de novo. Gonzales v. Elo, 233 F.3d 348, 352 (6th Cir. 2000).
Because Lordi’s convictions occurred in 1999, the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) applies. Lindh v. Murphy, 521 U.S. 320, 336
(1997). Under AEDPA, factual findings made by a state
court are presumed correct unless the petitioner rebuts the
presumption with clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1). For Lordi to receive relief, this court must find
that the Ohio court decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court,” or 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)(1) & (2). Lordi has not raised issues in regard to
the factual determinations of the Ohio courts, but focuses his
arguments upon whether the Ohio courts made a
determination that was contrary to federal law, or was an
unreasonable application of that law.
A. Conflict of Interest. Lordi’s conflict of interest claim
relates to a successive (previous unrelated representation of a
co-defendant and/or trial witness) rather than a joint
(simultaneous trial of co-defendants) or a multiple (co-
defendants at severed trials) representation. The presumed
prejudice standard for ineffectiveness claims based on a
conflict of interest detailed in Cuyler v. Sullivan, 446 U.S.
335 (1980), is inapplicable to cases of successive
representations. See McFarland v. Yukins, 356 F.3d 688,
701(6th Cir. 2004); Moss v. Kohn, 323 F.3d 445, 460-61 (6th
Cir. 2003). Therefore, Lordi’s argument that the Ohio courts
acted contrary to federal law by dismissing the ineffectiveness
claim due to his failure to demonstrate any prejudice is not
correct. Strickland v. Washington, 466 U.S. 668, 692 (1984),
is the controlling authority for an ineffectiveness claim based

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No. 02-4273 Lordi v. Ishee, et al. 7
on a conflict of interest for a successive representation, which
was the legal standard the Ohio courts identified.
Not only did the Ohio courts identify the appropriate
standard, but they did not make an unreasonable application
of the ineffectiveness rule from Strickland. After holding an
evidentiary hearing, the Ohio courts found that “[t]here was
nothing in the record to suggest that David D’Apolito’s prior
representation of Veneroso required Lou D’Apolito to
disregard his duties to [Lordi].” More specifically, this record
does not show that either Lou or David D’Apolito was in
possession of any confidential information that may have
implicated a conflict. Lordi’s case before this court is based
upon pure speculation that D’Apolito may have known
something by implication from his law partner which may
have influenced his decision-making at trial, although he can
point to no evidence that a conflict existed or that any
decision was influenced. The only pertinent facts that Lordi
has presented to the courts are that D’Apolito’s law firm
represented a government witness in a prior unrelated matter
and then cross-examined that witness at trial. Without more,
this presents a case of a potential conflict of interest due to a
successive representation that never ripened into an actual
conflict. As such, the Ohio courts were not in error when
they ruled on this constitutional issue.
B. Juror Bias. Lordi claims that he was deprived of an
impartial jury in violation of the Sixth Amendment due to the
trial court’s refusal to inquire into a statement by a juror
which potentially demonstrated a pre-conceived notion of
Lordi’s guilt. The district court found this claim to have been
procedurally defaulted. The COA that was issued is
addressed to the merits of the juror bias claim rather than the
procedural default issue, which Lordi also raised in the
district court in the guise of an ineffectiveness of appellate
counsel claim. Although it is a statutory requirement that a
COA reference the specific issue to be addressed on its face,
28 U.S.C. § 2253(c)(3), a procedural issue that possibly bars
addressing an underlying constitutional claim is an
8 Lordi v. Ishee, et al. No. 02-4273
appropriate matter to be addressed under a COA. See Slack
v. McDaniel, 529 U.S. 473, 484 (2000).
For procedural default to occur, the state must show that
1) Lordi failed to comply with a state procedural rule; 2) the
state courts actually enforced the state procedural rule; 3) the
state procedural bar must be an adequate and independent
state ground to foreclose federal review; and 4) Lordi must
not have cause and actual prejudice to excuse his default.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). Lordi’s
own habeas petition concedes that his appellate counsel did
not properly raise the juror bias issue on direct appeal. He is
therefore barred from raising it in the Ohio courts because he
had the previous opportunity to present it during his direct
appeal, and failed to do so, thus waiving the issue under state
procedural law, Rust v. Zent, 17 F.3d 155, 160 (6th Cir.
1994), which is an adequate and independent state ground.
Id. at 161. Furthermore, since Lordi is required to present this
claim to the Ohio courts first to satisfy the exhaustion
requirement, but is now effectively barred from doing so due
to Ohio’s procedural rule, the second requirement that the
state courts actually enforced the procedural rule is fulfilled.
Coleman v. Thompson, 501 U.S. 722, 735 (1991).
Lordi attempts to avoid procedural default by characterizing
the Ohio appellate court’s disposition of his post-conviction
ineffectiveness claim on the prejudice prong as being a ruling
on the merits of the juror bias issue, which would permit this
court to review it. This is not correct. By addressing the
prejudice of an ineffectiveness claim a court does not bind
itself into ruling on the claim’s underlying merits. See Lott v.
Coyle, 261 F.3d 594, 612 (6th Cir. 2001). Therefore, to reach
the underlying issue of juror bias, Lordi must first establish an
equivalent constitutional deprivation that excuses his default
by the ineffective assistance of his appellate defense counsel.
See Edwards v. Carpenter, 529 U.S. 446, 450-51 (2000).
However, this issue cannot be addressed in a vacuum since
Ohio’s courts have already rendered a ruling on the merits of

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No. 02-4273 Lordi v. Ishee, et al. 9
the ineffective assistance of counsel claim upon which Lordi
is relying to excuse his procedural default.
Therefore, based on the standard of review from the
AEDPA, this claim is procedurally defaulted. The Ohio
appellate court that addressed the issue concluded that since
the only evidence presented to the trial judge was an
anonymous phone allegation, Lordi could not demonstrate a
“reasonable likelihood” that he would have received relief had
his appellate counsel raised the issue. Furthermore, the
allegation related to a statement by a juror that, standing
alone, only indicated the possibility of a pre-conceived notion
of guilt. The Supreme Court has stated that the idea “that the
mere existence of [a] preconceived notion as to the guilt or
innocence of an accused, without more, is sufficient to rebut
the presumption of a prospective juror’s impartiality would be
to establish an impossible standard.” Irvin v. Dowd, 366 U.S.
717, 723 (1961) (internal citations omitted).
Since the federal constitutional standard for the prejudice
necessary to demonstrate the ineffectiveness of counsel, and
thus to excuse a procedural default, is “that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different,” where “[a] reasonable probability is a probability
sufficient to undermine confidence in the outcome,”
Strickland, 466 U.S. at 694, the Ohio appellate court
identified the correct legal standard. As for the Ohio court’s
decision being an unreasonable application of this legal
standard, the Supreme Court has found it necessary within the
past year to reiterate that when a state court’s application of
governing federal law is challenged in a habeas petition, the
decision must not only be shown to be erroneous, but
objectively unreasonable. See Middleton v. McNeil, 124 S.
Ct. 1830 (2004); Yarborough v. Gentry, 540 U.S. 1 (2003)
(per curiam opinions reversing appellate court panels which
granted habeas corpus writs due to findings that state courts
made unreasonable applications of federal ineffective
assistance of counsel law). We do not find that the Ohio
10 Lordi v. Ishee, et al. No. 02-4273
court’s determination of this ineffectiveness of counsel claim
was unreasonable. “Without more” than the possibility of a
preconceived notion of guilt, our confidence in the outcome
has not been undermined.
AFFIRMED.

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No. 02-4273 Lordi v. Ishee, et al. 11
_______________________
DISSENTING IN PART
_______________________
MOORE, Circuit Judge, dissenting in part. Because I
believe that Lordi has demonstrated cause and prejudice to
excuse the procedural default on his juror-bias claim, I
respectfully dissent from the corresponding portion of the
majority’s opinion.
I.
After jury selection, defense counsel Lou D’Apolito
received a telephone call from an anonymous woman
claiming to be on the jury venire. The woman said that she
and another female venire member, whom she identified,
overheard a male colleague who was later seated on the jury
(“Juror A”) comment before the trial began that Lordi “was
guilty.” She also expressed concerns that Juror A had lied
during voir dire, and stated that she felt compelled to report
the matter.
D’Apolito requested that the trial court conduct an in-
camera hearing to examine Juror A for bias. The prosecution
opposed the request, arguing that the accusation was not
credible and could potentially taint the jury pool. Denying
the request without a hearing, the trial court (1) noted that the
call was anonymous; (2) suggested that the anonymous venire
member would not have been within hearing range of Juror A
when the alleged comment was made; and (3) speculated that
Juror A’s comment may have been in jest. D’Apolito entered
his objection to the denial.
Appellate counsel failed to raise a juror-bias claim on direct
appeal. Lordi first presented the claim in his delayed motion
for reconsideration before the Ohio Court of Appeals, seeking
to excuse his procedural default due to ineffective assistance
12 Lordi v. Ishee, et al. No. 02-4273
1Ohio law requires defendants to raise a claim of ineffective
assistance of appellate counsel on an application for reconsideration in the
court of appeals or on direct appeal to the state suprem e cou rt. See State
v. Murnahan, 584 N.E .2d 1 204 , 120 8 (O hio 1992); Ohio App. R. 26(B).
of appellate counsel.1 Noting the scant evidence in the record
of juror bias, the state appellate court denied the claim,
holding that Lordi “has not demonstrated a reasonable
likelihood that had appellate counsel raised this assignment of
error [on direct appeal], it would have been sustained.” Ohio
v. Lordi, Nos. 99CA62; 99CA247, slip op. at 1 (Ohio Ct.
App. Feb. 23, 2001), appeal dismissed, 747 N.E.2d 251 (Ohio
2001).
II.
To excuse the procedural default, Lordi contends that his
counsel on direct appeal was constitutionally ineffective for
failing to raise the juror-bias claim. See, e.g., Seymour v.
Walker, 224 F.3d 542, 550 (6th Cir. 2000) (“If [petitioner]
could show that she received ineffective assistance of
appellate counsel that rose to the level of a violation of her
Sixth Amendment rights, it would excuse her procedural
default.”). The applicable standard, enunciated in Strickland
v. Washington, 466 U.S. 668, 690, 694 (1984), requires a
showing that (1) counsel’s performance was so deficient as to
be “outside the wide range of professionally competent
assistance”; and (2) there is “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.” The failure of
appellate counsel “to raise an issue on appeal could only be
ineffective assistance if there is a reasonable probability that
inclusion of the issue would have changed the result of the
appeal.” McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir.
2004).
Because of the procedural arguments in this case, we must
first decide whether there was a reasonable probability that
the claim of juror bias would have prevailed on its merits at

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No. 02-4273 Lordi v. Ishee, et al. 13
the time Lordi’s appellate counsel failed to raise it. Id. If so,
“we can then consider whether the claim’s merit was so
compelling that appellate counsel’s failure to raise it
amounted to ineffective assistance of appellate counsel that
would excuse [Lordi’s] procedural default.” Id. at 700.
A.
“Under clearly established Supreme Court precedent, a
defendant who alleges implied juror bias is entitled to a
hearing in which he has ‘the opportunity to prove actual
bias.’” Mason v. Mitchell, 320 F.3d 604, 636 (6th Cir. 2003)
(quoting Smith v. Phillips, 455 U.S. 209, 215 (1982)). “A
hearing permits counsel to probe the juror’s memory, his
reasons for acting as he did, and his understanding of the
consequences of his actions.” Phillips, 455 U.S. at 222
(O’Connor, J., concurring).
The Supreme Court has not dictated the type or breadth of
opportunity that state trial courts must provide under Phillips
to defendants raising allegations of juror bias. However, we
have granted habeas relief where a state trial court
categorically refused a defendant’s request for any post-
conviction hearing on the claim. See, e.g., Nevers v.
Killinger, 169 F.3d 352, 373-74 (6th Cir.), cert. denied, 527
U.S. 1004 (1999). In Nevers, the defendant appended several
jurors’ affidavits to his motion for a new trial, stating that
jurors were exposed to extraneous and potentially prejudicial
information. We concluded that the trial court’s denial of the
defendant’s request for a hearing and factual determination on
the claim “prevented [him] from demonstrating with
specificity that the extraneous information the jury possessed
did in fact impair the ability of the jury to decide the case
solely on the evidence properly presented to them”—a
violation of the defendant’s right to an impartial jury under
the Sixth and Fourteenth Amendments. Id. at 374.
The Seventh Circuit recently reached a similar conclusion
when juror bias allegations first arose at the start of trial in
14 Lordi v. Ishee, et al. No. 02-4273
Oswald v. Bertrand, 374 F.3d 475 (7th Cir. 2004). Despite
considerable publicity of the murder in the small Wisconsin
community, evidence that jurors were discussing the case
before trial, and suggestions that at least one juror was willing
to convict in order to expedite deliberations, the state trial
court refused defendant’s request to investigate juror bias and
simply readmonished the jury. Id. at 479-80. Granting
habeas relief, the Seventh Circuit held that a state trial court’s
inquiry into juror-bias allegations must be “reasonably
calculated to resolve the doubts raised about the juror’s
impartiality” (internal quotation omitted), and should be
increasingly more searching as the probability of bias
increases. Id. at 480-81. The pretrial atmosphere and
reported jury conduct “created a sufficiently high probability
of jury bias to require on the part of the trial judge a diligent
inquiry” to ensure the protection of the defendant’s Sixth
Amendment rights. Id. at 481.
While it is unnecessary for us to define the precise nature
of the hearing required to be afforded to defendants raising
juror-bias claims, the anonymous venire member’s allegations
were clearly sufficient to warrant some “diligent inquiry” by
the trial court. Oswald, 374 F.3d at 481. First, the
anonymous venire member levied a troubling allegation that
Juror A lied during voir dire and that Juror A expressed his
belief in Lordi’s guilt. Second, she provided the name of a
second woman on the venire who could substantiate her
allegations, triggering a concern among reasonable jurists that
Juror A’s comments may have influenced other members of
the jury pool. Third, the indictment and trial of a Mahoning
County commissioner would naturally generate local
publicity, placing the trial judge on notice about the
potentiality for such prejudice.
The state trial court’s response was constitutionally
inadequate to protect Lordi’s Sixth Amendment rights. No
factual support is cited for its conclusions that (1) the
allegation was not credible due to the source’s anonymity;
(2) the anonymous venire member could not have overheard

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No. 02-4273 Lordi v. Ishee, et al. 15
2The full analysis of the Ohio Court of Appe als is as follows:
Appellant first alleges that counsel should have raised the
issue of the co urt’s failure to cond uct an inquiry into an
allegation of juror misconduct. The only evidence of such
misconduct before the court was an anonymous call. As the
record does not support a claim of juror misconduct other than
this anonymous call, appellant has not demonstrated a
reaso nable likelihood that had appellate co unsel raised this
assignment of error, it would have been sustained.
Lordi, slip op. at 1. While the opinion failed to cite to Strickland or
conduct a meaningful constitutional analysis, our inquiry still proceeds
under the deferential lens of 28 U .S.C. § 225 4(d) because the state
app ellate court included some language that vaguely mirrors Strickland’s
prejudice prong.
Juror A’s comments; and (3) Juror A probably offered his
comments in jest. These are just speculations of the state trial
court. The state trial court further failed to recognize that the
credibility of the allegation could be quickly ascertained by
questioning the second venire member identified by the caller,
and without necessarily interrogating—and potentially
tainting—Juror A.
In light of the unambiguous command of the Supreme
Court in Phillips, I believe it reasonably probable that a
reviewing court on direct appeal, after recognizing the trial
court’s categorical failure to permit Lordi an opportunity to
demonstrate the presence of actual juror bias, would have
reversed the case and ordered relief. The Ohio Court of
Appeals’ contrary conclusion rested on an “unreasonable
application” of Strickland because it incorrectly limited its
prejudice inquiry to the merits of Lordi’s juror-bias
allegation. It found that even if a juror-bias claim had been
offered on direct appeal, there was not “a reasonable
likelihood that . . . it would have been sustained” because the
claim was unsupported by evidence in the record. Lordi, slip
op. at 1.2 Of course, the reason for this lack of support can be
attributed to the state trial judge’s complete abrogation of his
16 Lordi v. Ishee, et al. No. 02-4273
constitutional duty to permit further inquiry or a hearing to
develop the evidence. Hence, by omitting any mention of the
trial court’s inexplicable failure to conduct a hearing, the state
appellate court did not consider the reasonable probability of
reversal on direct appeal due to procedural error, and thus
conducted an incomplete and unreasonable application of
Strickland’s prejudice prong. See Smith v. Robbins, 528 U.S.
259, 285 (2000); see also McFarland, 356 F.3d at 699;
Lattimore v. Dubois, 311 F.3d 46, 56 (1st Cir. 2002), cert.
denied, 538 U.S. 966 (2003).
B.
Not only did the Ohio Court of Appeals unreasonably apply
Strickland’s prejudice prong, but also that court failed to
analyze Strickland’s deficient-performance prong.
Consequently, our analysis of whether appellate counsel’s
omission of Lordi’s juror-bias claim on direct appeal rises to
the level of deficient performance under Strickland is
conducted de novo. Wiggins v. Smith, 539 U.S. 510, 534
(2003); see also Maples v. Stegall, 340 F.3d 433, 437 (6th
Cir. 2003).
Lordi’s juror-bias claim was so “significant and obvious”
that appellate counsel’s failure to raise it constitutes a
deficiency under Strickland. Mapes v. Coyle, 171 F.3d 408,
427 (6th Cir.), cert. denied, 528 U.S. 946 (1999). As noted
above, the Supreme Court, without qualification, “has long
held that the remedy for allegations of juror partiality is a
hearing in which the defendant has the opportunity to prove
actual bias.” Phillips, 455 U.S. at 215. It naturally follows
that the juror-bias issue was clearly stronger than the issues
presented on direct appeal, mainly the forty-four alleged
instances of prosecutorial misconduct—many of which were
utterly frivolous or unsupported by the record. Robbins, 528
U.S. at 288 (requiring a habeas petitioner claiming ineffective
assistance of counsel to demonstrate that “a particular
nonfrivolous issue was clearly stronger than issues that
counsel did present”). Moreover, D’Apolito’s prompt

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No. 02-4273 Lordi v. Ishee, et al. 17
objection to the trial court’s refusal to conduct any inquiry
into juror bias should have alerted appellate counsel of this
claim, the Supreme Court’s decisive language in Phillips
forecloses any discretion of trial courts on whether or not to
conduct an investigation into allegations of juror bias, and the
record is totally devoid of any explanation of why appellate
counsel would strategically fail to include the juror-bias
claim. Mapes, 171 F.3d at 427.
Under these circumstances, the deficient-performance
prong of Strickland has been satisfied. Given the clear Sixth
Amendment violation, the decision of Lordi’s appellate
counsel to omit this issue on direct appeal was “an
unreasonable one which only an incompetent attorney would
adopt” and is appropriately cited as the cause for Lordi’s
failure to raise the issue on appeal. Id. at 428.
III.
Because the Ohio Court of Appeals unreasonably applied
clearly established Supreme Court precedent when it held in
effect that Lordi could not satisfy the prejudice prong of
Strickland and because Lordi has shown deficient
performance of appellate counsel, Lordi has overcome the
procedural default. Because Phillips mandates that Lordi be
provided with some meaningful opportunity to demonstrate
actual juror bias after his allegations were presented to the
state trial court, I would further hold that the state trial judge’s
failure to conduct any inquiry clearly violated Lordi’s Sixth
Amendment rights. Therefore, I would reverse the district
court’s decision to deny habeas relief, and I would remand
with instructions to grant the writ unless the State of Ohio
opts to retry Lordi within a reasonable period of time. I
respectfully dissent.

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