William H. Smith v. BETTY MITCHELL, Warden

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0381P (6th Cir.)
File Name: 03a0381p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
WILLIAM H. SMITH,
Petitioner-Appellant,
v.
BETTY MITCHELL, Warden,
Respondent-Appellee.
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No. 00-4030
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 95-00320—S. Arthur Spiegel, Senior District Judge.
Argued: September 18, 2002
Decided and Filed: October 28, 2003
Before: SUHRHEINRICH, BATCHELDER, and COLE,
Circuit Judges.
_________________
COUNSEL
ARGUED: Laurence E. Komp, Baldwin, Missouri, for
Appellant. Henry G. Appel, ATTORNEY GENERAL’S
OFFICE OF OHIO, CAPITAL CRIMES SECTION,
Columbus, Ohio, for Appellee. ON BRIEF: Laurence E.
Komp, Baldwin, Missouri, H. Louis Sirkin, Laura A. Abrams,
Jennifer M. Kinsley, SIRKIN, PINALES, MEZIBOV &
2 Smith v. Mitchell No. 00-4030
SCHWARTZ, Cincinnati, Ohio, for Appellant. Henry G.
Appel, Charles L. Wille, ATTORNEY GENERAL’S
OFFICE OF OHIO, CAPITAL CRIMES SECTION,
Columbus, Ohio, for Appellee.
SUHRHEINRICH, J., delivered the opinion of the court, in
which BATCHELDER, J., joined. COLE, J. (pp. 62-68),
delivered a separate opinion concurring in part and dissenting
in part.
_________________
OPINION
_________________
SUHRHEINRICH, Circuit Judge. In April 1988, a
unanimous three-judge panel of the Court of Common Pleas,
Hamilton County, sentenced William H. Smith (“Smith” or
“Petitioner”) to death for the aggravated murder of Mary
Bradford. The Ohio state courts denied all of Smith’s claims
for relief, as did the federal district court on habeas. Smith
now appeals from the judgment of the district court denying
his application for writ of habeas corpus under 28 U.S.C.
§ 2254, challenging both his conviction and sentence. The
principal issue on appeal is whether trial counsel were
ineffective for failing to present mitigating evidence at
sentencing. For the following reasons, we AFFIRM the
judgment of the district court.
I. Background
A. Facts
The following facts are taken from the Ohio Supreme
Court’s opinion on direct appeal.
On Saturday afternoon, September 26, 1987, Mary
Virginia Bradford, age forty-seven, visited the Race Inn,
a neighborhood bar in Cincinnati, Ohio. While at the
Race Inn, she had several beers and met, talked, and

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No. 00-4030 Smith v. Mitchell 3
danced with William H. Smith, appellant, a regular bar
patron. She left the Race Inn around 11:45 p.m.
Around 4:00 p.m., on September 27, Marvin Rhodes,
Bradford’s boyfriend, stopped by her apartment because
he had not seen her since Friday, September 25. No one
answered the doorbell, but Rhodes saw blood near the
front door and found Bradford in the bedroom. Feeling
her face, he found no life in her body and called the
police.
Responding police officers found Bradford lying
stabbed to death on her bed, nude from the waist down.
On the floor, near her bed, police found a woman’s pants
and panties, bloodstained and turned inside out, and, on
the bed, an oxygen machine used by asthmatics.
Forensic examination disclosed a .13 blood-alcohol level
and revealed sperm in her vagina and on her abdomen.
Near the front door of the apartment, police found a
chair, with a pool of blood on it, and, on the floor, blood
smears including a bare bloody footprint leading to the
bedroom. The apartment was otherwise exceptionally
neat and clean, with no signs of disorder, disarray, or a
struggle, and police found no murder weapon in the
apartment. One color television, one black and white
television, and a stack stereo with two speakers were
missing from Bradford’s apartment.
Dr. Harry J. Bonnell, Chief Deputy Coroner, testified
that Bradford died as a result of ten stab wounds to her
upper body and consequent loss of blood. She was five
feet, three inches tall, weighed one hundred sixteen
pounds, and a portion of her lungs was missing, which
explained her asthmatic condition. Bonnell numbered
the wounds from one to ten for descriptive purposes (but
not indicative of the order in which inflicted). The most
lethal wounds, causing incapacitation within five
minutes, were wound eight, a four-inch wound into
4 Smith v. Mitchell No. 00-4030
Bradford’s right lung and heart, and wound nine, a four-
inch wound into the sternum and the heart’s right
ventricle. Wound seven, a five-inch puncture into the rib
and liver, and wounds eight and nine all fractured bony
structures. Wound two, four inches in depth, crossed her
neck from left to right. Wound ten punctured the liver
and was no more than four inches in depth. Two
wounds, one and five, showed no signs of hemorrhage
and thus were inflicted after death or when the heart was
not pumping sufficient blood. Wounds one, three, four,
and six were superficial. Bradford’s body exhibited no
other evidence of injury or trauma such as bruises or
defense wounds that would indicate a violent struggle.
All the wounds could have been inflicted by the same,
single edged knife.
On September 28, 1987 homicide detectives went to
where Smith lived, the home of Bertha Reid, Smith’s
mother, which was about four blocks from Bradford’s
house. When police arrived, Smith was not at home, and
Reid let the officers in. While at Reid’s home, police
noticed a television set matching the description of one
of the two sets missing from Bradford’s home.
Thereafter, police secured a warrant, found the missing
two televisions in Reid’s home, and seized them.
Reid testified that when her son came home around
2:00 a.m. on September 27, he did not act unusual, nor
did he appear to be drunk, high, or upset. However,
Smith did carry into Reid’s home the two television sets
in question along with a large stereo system and two
speakers. Reid asked where he got the televisions and
stereo, and Smith replied that his girlfriend Carolyn gave
them to him. Reid did not accept her son’s explanation,
telling him he would “have to explain to me a little more
about what’s going on.” Later that morning, Smith and
his cousin, Greg took the stereo and two speakers away
but left the televisions.

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No. 00-4030 Smith v. Mitchell 5
Reid also showed police clothing that her son had
worn and September 26 and 27, which police seized.
Subsequent forensic analysis revealed that Smith’s shirt
and shoes bore traces of human blood.
On September 28, 1987, police apprehended and took
Smith to police headquarters for questioning. After
being advised of his rights, Smith agreed to talk to
police. Smith initially asserted that he had driven
Bradford home that night but had just dropped her off.
He later admitted that he had been in her apartment but
had left when her boyfriend arrived.
Smith told police that he met Bradford at the Race Inn,
later drove her and her girlfriend to another bar, and then
drove Bradford home. While at her house, Smith
claimed that someone he thought to be Bradford’s
boyfriend arrived, and Smith decided to leave quickly.
After Smith left, he realized that he had left a packet of
cocaine, worth $2,500, at Bradford’s house. After he
returned, Bradford’s boyfriend and the cocaine were both
gone. Smith then talked with Bradford.
“ * * * [W]e talked about restitution, you know. She said
she’d give me some of that body. I said okay, it’s good
enough for me, you know, but then after I got that [had
sex with her] it wasn’t good enough, you know, so I
asked her like you got any money and stuff, you know.
She said she ain’t have no money. So we start arguing
and next thing you know she slid over to the kitchen and
got [a] little blade--[small carving knife].”
According to Smith, Bradford was stabbed in the
stomach during the ensuing struggle and fell onto a chair.
He removed the knife from her stomach, and she dragged
or walked by herself to the bedroom. He recalled
stabbing her in the neck in the bedroom after she called
him a motherfucker, but he did not admit inflicting the
other stab wounds. When she was lying on the bed, he
6 Smith v. Mitchell No. 00-4030
took her clothes off and got back on top of her and had
sex again. Police asked:
“Q. * * * [A]fter you had sex with her the second time,
after she was stabbed, then what’d you do?
“A. I gathered up my things together and started taking
her stuff downstairs.
“Q. What’d you take out of there?
“A. Her two TVs and her stereo.”
Smith said he made four trips carrying her things down
to his car and that he took her things in order to sell
them. Although Smith initially claimed that he did not
know whether Bradford had stopped breathing, he later
admitted he decided to have sex with her again because
“she was still breathing then.” He said that he pulled his
penis out as he started to climax and finished ejaculating
on her stomach. He did this because he was thinking
about getting out of the apartment. Smith claimed he
threw the knife into the Ohio River and sold Bradford’s
stereo in Dayton. However, police recovered her stereo
in Cincinnati. When police interviewed Smith, they also
seized a pair of undershorts from him stained with blood
of the same type as Bradford’s.
State v. Smith, 574 N.E.2d 510, 512-14 (Ohio 1991).
B. Trial Proceedings
Smith was indicted on October 21, 1987, on two counts of
aggravated murder, pursuant to Ohio Rev. Code § 2903.01(B)
(Counts I & II), and one count of rape (Count III), and one
count of aggravated robbery (Count IV). Counts I and II each
contained two death penalty specifications, one alleging
aggravated murder during rape and the other alleging murder
during aggravated robbery. Smith initially entered a plea of

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No. 00-4030 Smith v. Mitchell 7
1Smith was represented by attorneys Dale G. Schmidt and Robert J.
Ranz d uring his trial proceedings.
2Dr. Schmidtgoessling prepared her “Not Guilty by Reason of
Insanity Rep ort” (“N GR I”) in D ecem ber 1 987 , four months p rior to the
mitigation phase. In it she indicated that several members of Smith’s
family were interviewed, and that she reviewed the following record s:
Available for review were a social history and psychological
evaluation performed by the H amilton County Department of
Human Services in 1965 ; a statement of juvenile arrests
provided by the Hamilton Co unty Juvenile Court; school records
from Cincinnati Public Schools; and one prior evaluation by the
Court Psychiatric Center completed in 1976. Records were
requested from Longview State Hospital for Mr. Smith’s stay
there during his childhood years but we were informed that those
records were destroyed in 1981. Lastly, records were requested,
but never received, from the Ad ult Parole Authority.
Based on her review of those records, Dr. Schmidtgoessling reported
Smith’s family and social history as follows:
By way of background, Mr. Smith is the product of an
unhappy, rather b izarre family. He had little contac t with his
biological father, until Mr. Smith was about twelve years old,
only becoming close when Mr. Smith was about nineteen. There
was a stepfather present, who had been hospitalized for
psychiatric problems and incarcerated for Rape. It is unclear at
this time what impact these men had on M r. Smith during these
not guilty by reason of insanity as to all charges.1 As a result,
the trial court ordered that Smith be evaluated with respect to
his mental state at the time of the alleged offense. Smith was
evaluated by three experts, Nancy Schmidtgoessling, Ph.D, a
clinical psychologist of the Court Psychiatric Center, Roger
H. Fisher, Ph.D, a clinical psychologist, and Glenn Weaver,
M.D., a psychiatrist. Dr. Schmidtgoessling evaluated Smith
on November 27, 1987, and on December 12, 1987. On
December 14, 1987, Dr. Schmidtgoessling filed a report with
the court, in which she concluded that Smith currently
showed no sign of major psychological disorder and that he
was sane at the time of the alleged offense.2
8 Smith v. Mitchell No. 00-4030
early years. The mother, according to records and collateral
reports, has a history of mental illness and was hospitalized at
times, bearing a diagnosis of “simple schizophrenia.” She was
abusive and bizarre in her behavior toward the children , for
example, hiding food from them and beating them
unpredictably. Mr. Smith has five siblings; two of these are
known to have had legal contact besides the defendant. In
summ ary, the family of origin was a rather chaotic,
unpredictable environment for the defendant.
Mr. Smith was placed in foster homes and at Longview
State Hospital for a number o f years during his developmental
period. The Juvenile Court record s indicate that M r. Smith was
placed at Longview State Hospital as a dependent child,
although there are some indications of behavior problems
preceding that placement, including firesetting and
incorrigibility. He apparently remained there from February,
1996 to August, 19 71 with a diagnosis of emotionally unstable
perso nality and b orderline intellectual functioning. Mr. Smith
does not seem particularly unhappy about many of his
experiences at Longview, describing playing basketball and
watching TV . Also, it seems that the adults in his environment
were nicer to him there than in any other environment where he
had lived. H e describes having been prescribed antipsychotic
medications and having been given shock treatment while at
Longview.
In his juvenile years, Mr. Smith had several court contacts.
Usually, these were property crimes such as Burglary, Robb ery,
and Unauthorized U se of a Motor V ehicle although he also had
a cou ple of charges reflecting unruliness.
Academ ically, Mr. Smith has advanced to appro ximately the
tenth grade.
. . . .
In terms o f substance ab use, M r. Smith repo rts beginning to
experiment with wine when he was only about fifteen years old.
. . . He believes he has been drinking daily since around age
seventeen, averaging a case of beer per day. H e does drink in
the morning. He reports he has had some blackouts and it
appears that he has an increased tolerance with his extensive use.
Mr. Smith recalls beginning to use marijuana when he was about

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No. 00-4030 Smith v. Mitchell 9
eleven years old, having been given a joint by a friend’s mother.
It seems that he uses marijuana on a fairly regular basis. He
began using coca ine a co uple of years ago. H e reports using this
app roxim ately every other day during this time period . . . .
Psychological testing was administered as part of the current
evaluation. On the Wechsler Adult Intelligence Scale-Revised,
Mr. Smith obtained a Verbal IQ of 78, a Performance IQ of 84,
and a Full Scale IQ of 78. These scores place M r. Smith in the
borderline to low average range of functioning. These scores are
consistent with an IQ established during his stay at Longview
State Hospital between 1966 and 1971 . However, records from
the Hamilton County Department of Hum an Services shows an
IQ established in December, 1965 using the Stanford Benet [sic].
This score of 101 placed him in the average range of
functioning. . . . The psychological evaluation conducted in
1965 by the W elfare Department showed that Mr. Smith was
unab le to concentrate and organize himself, and thus was unable
to sustain his functioning in an unstructured situation. It was felt
at that time that his reality contact was precarious. He had such
serious feelings of insecurity that he was unable to relate
satisfactorily despite his need for human relationships, according
to that psychological evaluation. A strong tendency towards
depression and attempts to repress hostile impulses were noted
at that time. The psychologist felt that Mr. Smith’s thinking at
times bordered on autistic. When evaluated by the Court
Psychiatric Center in 1976, M r. Smith showed no signs of
impaired reality testing. He was felt to relate in an appropriate
manner and showed app ropriate modulation of his emotions
during the interview. He was described at that time as suffering
from an adjustment reaction of adolescence and dyssocial
behavior.
In conc lusion, M r. Smith currently shows no sign of major
psychological disorder. The available records also suggest an
absence of substantial psychological disorder such as
hallucinations, delusions, gross paranoia, mental retardation, or
the like. However, history does suggest that this is a person who
has had substantial beha vioral prob lems throughout his life. . . .
Personality wise, we would suggest that Mr. Smith has a number
of deficits including interpersonal insecurity and sensitivity,
impaired empathy, inad equate conscience de velopment desp ite
the ability to verbalize social rules, chronic underlying
depression secondary to a history of neglect and abuse, and
10 Smith v. Mitchell No. 00-4030
strong underlying hostility second ary to life experiences. It
seems that in part he attempts to resolve many of his underlying
tensions and feelings by using substances. Despite that, he still
conveys being a person without significant direction or social
attachm ents.
W ith respect to the legal question, it is my opinion that Mr.
Smith was sane at the time of the alleged offense. He did not
suffer any substantial psychological disorder that would have
grossly impaired his ability to determine right from wrong or to
restrain his behavior.
In his profile of Smith’s psychological status, Dr. Fisher
stated that Smith was “fully oriented, rational and alert. . . .
There was no evidence whatsoever of any form of mental
impairment.” Dr. Fisher also stated that “[d]espite his history
of hospitalizations, I have no reason to believe this man has
ever had an emotional illness. I think instead he has had
long-standing characterological problems from early
childhood . . . . ” Regarding criminal responsibility, Dr.
Fisher concluded that “Smith was free of any mental or
emotional disease or defect. I feel he had sufficient judgment
to have been able to differentiate legal right from wrong and
was psychologically sound enough to have been able to
refrain from illicit actions if he had chosen to do so.” Dr.
Fisher added that, by his own description, Smith’s behavior
“was purposeful and goal-directed. He was provoked to anger
by the loss of his cocaine and acted on that anger by trying to
make the victim pay him back for what he thought her
boyfriend had stolen.”
Dr. Weaver performed a psychiatric exam. Dr. Weaver
concluded that although Smith had extremely limited impulse
controls in past years, he did not possess a mental disease or
defect, and that he did know the wrongfulness of his conduct.
Smith thereafter withdrew his insanity defense.
Trial counsel made initial contact with Jane Core of the
Office of Public Defender (“OPD”), a mitigation specialist,
in January 1988. In a letter dated January 21, 1988, Core

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No. 00-4030 Smith v. Mitchell 11
informed counsel that he would need to request Smith’s
background records. Core also indicated that she had made
arrangements for OPD investigator Maggie Liverani to
provide assistance, but that Maggie would not be available
until late February. Core stated she planned to meet with
counsel on February 26.
In a letter dated February 8, 1988, Core thanked Ranz “for
the materials regarding Mr. Smith,” especially Dr.
Schmidtgoessling’s report, “which certainly indicated a lot of
possible things to work with.” Core told Ranz that he should
file a motion asking the court to cover the expenses of
Liverani’s investigation, since OPD did not have the funds,
and that he would “need to make sure the Court has approved
funds before she begins her investigation at the end of this
month.” Finally, Core asked Ranz to forward a list of places
he had requested records from as well as copies of those
records as he received them.
On February 29, 1988, Core sent a letter to counsel
chastising Ranz for not providing the requested materials,
which she stated were needed for Liverani to begin her
investigation. In that letter Core stated: “Because of these
factors I do not feel it is possible to conduct an adequate
investigation on behalf of your client . . . and regret to inform
you that neither Ms. Liverani or I will be available to provide
assistance in this matter.”
Counsel responded on March 1, 1988, enclosing copies of
letters sent to which no replies had yet been received, and
referencing Core’s letters of January 21 and February 8,
acknowledging receipt of the reports already sent. Ranz also
stated that the court had approved payment to Liverani. Ranz
stated that Smith was quite difficult to deal with and was
counsel’s only source of information. Finally, Ranz asked
Core to reconsider her position. On March 11, 1988, Core
reiterated her refusal to assist. Core apparently changed her
mind, however, on March 24, 1988, after being apprised that
Smith had waived his right to a jury trial. Nonetheless, on
12 Smith v. Mitchell No. 00-4030
March 31, 1988, counsel informed Core by letter that they
would not be needing Liverani, because they had made other
arrangements.
Trial counsel elected instead to request the “friend of the
court” appointment of Dr. Schmidtgoessling. See Ohio Rev.
Code § 2929.03(D)(1). Counsel met with Dr.
Schmidtgoessling on March 28, 1988, two weeks prior to the
sentencing hearing. Dr. Schmidtgoessling recalled that
counsel “could offer no direction to the mitigation,” and that
counsel seemed unfamiliar with any of the records from the
past evaluation of mental competency, juvenile records, or
Human Services Department records. Rather, Dr.
Schmidtgoessling felt that counsel were more focused on
winning at the trial level. She agreed to make a copy of all
the records for counsel, and to prepare a mitigation report
detailing Smith’s past developmental history and describing
his current functioning.
Trial began on April 4, 1988. On April 6, 1988, he was
convicted in the Court of Common Pleas of Hamilton County,
Ohio, by a unanimous three-judge panel of two counts of
aggravated murder under Ohio Rev. Code § 2903.01(B) and
two death specifications for each count under Ohio Rev. Code
§ 2929.04(A)(7). He was also convicted of one count of rape
under Ohio Rev. Code § 2907.02, and one count of
aggravated robbery under Ohio Rev. Code § 2911.01. The
sentencing hearing began on April 11, 1988, and concluded
on April 14, 1988.
Dr. Schmidtgoessling was officially appointed as a friend
of the court on April 6, 1988, following a finding of guilty by
the trial court. Dr. Schmidtgoessling also testified that she
called Ranz at home on April 10, 1988, because she did not
know if she was supposed to testify at the sentencing hearing.
According to Dr. Schmidtgoessling, Ranz did not seem to
know what role Dr. Schmidtgoessling would play at the
hearing. She filed her mitigation report on April 11, 1988,
and testified at the mitigation hearing the same day. Given

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No. 00-4030 Smith v. Mitchell 13
the short period of time, Dr. Schmidtgoessling relied
primarily on the records she received when preparing the
NGRI report.
Five witnesses testified at Smith’s mitigation hearing. Two
of Smith’s uncles testified briefly. Each characterized Smith
as a nice person. Smith’s mother, Bertha Dean Reid, read a
prepared statement to the court. In her statement Reid told
the court that Smith grew up in various foster homes from the
time he was 11 months until ten years old, and that during
that time he was abused. She repeatedly stated that she
thought Smith was mentally disturbed. She reported that
Smith stole from her, and that once, when she punished him
for breaking a window, Smith set fire to the kitchen curtains.
She later had him probated to Longview State Hospital. In
Reid’s view, “there is something wrong with William,
mentally.”
Reverend Timothy McDonald, Smith’s former pastor,
testified via deposition that Smith sought counseling to try to
find a way to deal with his drug and alcohol dependency. On
cross-examination, McDonald acknowledged that Smith’s
wife came for marriage counseling because there was
violence in the marriage.
Counsel also read a brief, unsworn statement prepared by
Smith:
“Sirs, I have been very truthful in my telling of the facts
of what happened.
“I did not go to her apartment for any reason other
than to get my stuff, and I was invited.
“We did go to bed together.
“She got the knife, and I don’t know what happened
to me. It is a big blur, and I guess I sort of went
mad.
“I didn’t want to hurt her, but what am I to do when
faced with something like this?
14 Smith v. Mitchell No. 00-4030
“I am very sorry for what did happen to her, and I
am very sorry she is dead; but it was beyond my
control.
“I have asked for help before, and did not get it. So
it is too late now.
“But again, I ask for help and the mercy of the court.
“Thank you, members of the panel.”
As noted, Dr. Schmidtgoessling also testified, and her
mitigation report was admitted into evidence. The doctor
indicated that she administered the Wechsler Adult
Intelligence Test, and the MMPI. Regarding his family
background, Dr. Schmidtgoessling told the sentencing panel
that:
This is a man who came from a background, where his
family members were incapable of caring for him,
particularly his mother, who has a history of mental
illness, as well as herself of physically abusing the
children.
His biological father, as far as I can determine, is
unknown.
There was a stepfather, who actually lived with the
family, who was very abusive, intimidating, a very
frightening man, according to the reports that we have,
and that he grew up largely for a number of years in
either foster homes for three or four years--three years, I
think in the Longview Children’s Unit. So essentially,
his background is one that behaviorally is marked by
hyper-activity, some learning problems secondary to
distractability, poor achievement in school, a lot of
behavior problems, stealing, fighting in school.
He was early on described by one psychologist as
emotionally disturbed; and after another evaluation by a
different psychologist was actually placed in the
Children’s Unit at Longview, where he in fact did much

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No. 00-4030 Smith v. Mitchell 15
better, I think because of the structure there of the school.
The note shows that he got along there fairly well.
I think the most important thing from a psychological
point about those early developmental years is the lack of
structure in the home, the lack of close nurturing by
parent figure, or any adult figures, the affect [sic] of . . .
physical abuse and emotional abuse in the family.
Dr. Schmidtgoessling noted that she found a history of
mental illness in the family; both Smith’s mother and Reid,
the stepfather, had been hospitalized at Longview. Dr.
Schmidtgoessling next described the testing performed on
Smith. She noted that he had been tested several times. In
1965, he was found to have an IQ of 101, which is in the
average range. At Longview, however, his IQ test showed
him to be functioning in the borderline range of intelligence.
Dr. Schmidtgoessling characterized this as “a drastic and
significant drop,” attributable “only to the behavior problems
or emotional problems he was experiencing at that time.” Her
testing of him revealed a verbal IQ in the 70s, and a
performance IQ in the low 80s. She described him “as
functioning near average in terms of everyday activities.”
She summarized his intelligence as “low, average to
borderline range of intellectual funct ioni ng.”
Schmidtgoessling stated that she did not reach any conclusion
on his character based on the MMPI.
Dr. Schmidtgoessling also reported some substance abuse.
She stated that, although she had very little information other
than Smith’s self-report, it appeared that he had a long-
standing history of alcohol and marijuana use, and some
cocaine use. Dr. Schmidtgoessling indicated that Smith did
not have paranoia, but was very sensitive to being exploited.
She stated he “ha[d] personality flaws and defects,” but that
she “d[idn’t] think he [was] organically impaired and
defective in that way.” She added that he “lacks empathy,”
and “is inclined to do things to other people that the rest of us
16 Smith v. Mitchell No. 00-4030
find very cold and unacceptable, because of his personality
style . . . .”
Dr. Schmidtgoessling reported from a one-page summary
from Longview Hospital. The hospital diagnosed Smith as
“physically and essentially a normal, black youngster,
psychologically,” but characterized him as having a “a
personality-trait disturbance and an emotional, unstable
personality.” Dr. Schmidtgoessling stated that this diagnosis
coincided with her own, and was consistent with other records
at that time. She concluded that Smith “certainly did not
impress us as mentally ill in any gross fashion.”
On cross-examination, Dr. Schmidtgoessling stated that,
despite Smith’s developmental background and his mother’s
history of mental illness, she found no evidence that Smith
had ever suffered from a substantial mental illness. In Dr.
Schmidtgoessling’s view, Smith was capable of appreciating
the criminality of his acts. She also stated that Smith never
showed any remorse for the victim. Lastly, when asked on
cross-examination whether she thought the crime was a
conscious choice, or maybe a psychological deficit, she
stated:
I certainly think his psychological deficits played into
the situation. He told me that he was defending himself
against someone who came at him with a knife. In that
sense it was a choice. I think that he told me that this
woman had agreed to the sexual activities and that he had
only had sex with her once, and so that was a choice.
But in terms of like his coldness, and stuff, that is part of
him. That is the way he always is.
As noted, Dr. Schmidtgoessling’s mitigation report was
admitted. At the outset, Dr. Schmidtgoessling stated that
“[n]umerous sources of information were used in constructing
this report.” She detailed the following:

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No. 00-4030 Smith v. Mitchell 17
Mr. Smith was evaluated by the undersigned, Nancy
Schmidtgoessling, Ph.D., Clinical Psychologist, on
November 27, 1987 and December 12, 1987 at the
Hamilton County Criminal Justice Center, and on
April 8, 1988 at the Hamilton County Jail Annex. This
included an interview as well as administration of the
Wechsler Adult Intelligence Scale–Revised (WAIS-R)
and the Minnesota Multiphasic Personality Inventory
(MMPI). Also, the defendant was interviewed by Shirley
W. Leahy, MSW, ACSW, Clinical Social Worker, on
November 9 and 12, 1987 at the Hamilton County
Criminal Justice Center. Prior to these interviews, Mr.
Smith was made aware of the non-confidential nature of
the evaluation and signed an information sheet permitting
us to use information gathered from these sessions in a
mitigation report. Additionally, Ms. Leahy made
collateral contact with the prosecuting attorney, Mark
Piepmeier; the investigating officer, Detective Joe
Hoffman of the Homicide Squad; Lt. Fletcher of the
Homicide Squad, the arresting officer; the defendant’s
grandmother, Elizabeth Carter; the defendant’s aunt, Pam
Carter; the defendant’s uncle, Gary Carter; and the
Hamilton County Criminal Justice Center Psychiatric
Unit. Attempts were made to reach the defendant’s
mother; Mrs. Bertha Smith; Mrs. Smith has no phone
number but we attempted to reach her both at a
neighbor’s and . . . her mother’s, although Mrs. Smith
never returned our phone calls. Additionally, following
Mr. Smith’s conviction, this examiner had collateral
contact with the defense attorneys, Robert Ranz and Dale
Schmidt, and the prosecutors, Mark Piepmeier and Pat
Dinkelacker. Records were also available for review
including social histories and psychological evaluations
performed by the Hamilton County Department of
Human Services; some records from Hamilton County
Juvenile Court; a one page summary of the defendant’s
treatment at Longview State Hospital; one prior
psychiatric evaluation performed by the Court
Psychiatric Center; records from the Ohio Department of
18 Smith v. Mitchell No. 00-4030
3Dr. Schmidtgoessling summarized Smith’s developmental
backgro und as follows:
Mr. Smith’s developmental background is a rather confused,
difficult one. It is unclear exactly who is his biological father,
since the mother reportedly had relationships with numerous
men. Therefore, the information available does not pe rmit us to
app reciate what role if any his biological father may have played
in his development. The defendant’s mothe r is known to have
had several psychiatric hospitalizations. She was diagnosed as
a simple schizo phrenic . . . .The reco rds established that the
mother was unable to provide either appropriate structure,
discipline or nurturance for the children in the family. She is
described as both abusive and neglecting towards the children.
Even relatives report that Mrs. Smith would beat the children
with chains and belts and make them go to bed without dinner.
. . .
The man who seemed most active in the family during Mr.
Smith’s deve lopm ental years was a Mr. Ludie Reid. This man
was described as having a history of alcoholism, numerous and
frequent court contacts and a history of inappropriate sexual
behavior. Apparently, the children were severely intimidated by
Mr. Reid because of his violent acting out when using alcohol.
For example, he was described as having pulled knives on the
children and once attempting to choke the defendant’s brother.
Mr. Reid was also described as having had a history of two
known sexual offenses . . . . Further, he is known to have been
hospitalized at Longview State H ospital and it seems that that is
where he met Mrs. Smith. . . . During the defendant’s
developmental period, it seems that Mr. Reid was present in the
home for a short time when Mr. Smith was approximately eight
Rehabilitation and Correction; some limited parole and
probation records; very limited school records from the
Cincinnati Public Schools, a copy of the disposition of
Reverend Timothy McDonald; part of the defendant’s
preliminary hearing; and a copy of the defendant’s
statement at the Motion to Suppress.
Dr. Schmidtgoessling’s report provided further details
of Smith’s background, particularly in the areas of
his developmental history3, his stay at

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No. 00-4030 Smith v. Mitchell 19
years old and then again during M r. Smith’s mid-teen years.
The Smith family was known to public assistance since
1955 and had an active case with Children’s Services since
October, 1958. In November, 1958, Mrs. Smith was sent to
Longview State Hospital for treatment. The defendant at that
time was approximately one year old. Also, so metime within his
first year of life, Mr. Smith was hospitalized at the Convalescent
W ard at Cincinnati General Hospital for a variety of physical
symptoms including pneumonia, measles, tonsillitis, a skin
condition and a vitamin deficiency. The origin of these
disorders is not recorded in available reco rds. When the mother
was hospitalized, Mr. Smith and his brother, Norman, were
placed in the first of two foster ho mes. M r. Smith spent his
years one through seven (1958 to 1964) at the home of Mr. and
Mrs. Julian Davis. Apparently, Mr. Smith did well there in the
first few years of life but around 1962, the foster parents noted
some behavior problems both at home and at school . . . . In
1964, while enrolled at South Avondale School, both of the
Smith brothers were reported to be creating disturbances in the
classroom s, fighting on the playground, and stealing lunches and
personal property from other children. Additionally, the
brothers were stealing from the foster parents although the foster
parents repo rted (in records) that they gave ade quate money to
the children. It seems that the boys would often use the money
to buy food. In 1964, when the brothers were involved with
destroying some neighbor’s property and the police were called,
the foster parents felt that they co uld no longer cope with the two
brothers and they were transferred to their second foster home.
However, records show that the foster mother described the
defendant as an affectionate person who related relatively better
to adults than to children. . . .
Mr. Smith was then transferred to the home o f Mr. and Mrs.
Lewis Harrison where he stayed from S eptembe r, 196 4 to
March, 196 5. Records show, however, that there were problems
in that home from the beginning. The brothers were stealing
from the foster parents, typically to buy food and toys. The
foster parents reported that the boys would laugh in their (the
foster parents) faces when disciplined. The foster parents also
reported that the boys would visit the maternal grandmother and
the mother (who had been released from the psychiatric hospital
around 1961) and that following those visits, the bo ys would be
quite upset afterwards. At those times, the foster parents
20 Smith v. Mitchell No. 00-4030
described that the boys would wet the bed, tear up their clothes,
and similar behaviors. At this time, the children were enrolled
at Millvale School and comp laints of their beha vior co ntinued in
school.
Mr. Smith was referred to the school psychologist at this
point in his history and although he was described as
“emotio nally disturbed” the psychologist was unable to get
sufficient rapp ort with him to com plete the testing and come to
a fuller diagnosis. In October, 19 64, the defendant was sent to
the Twelfth Street Clinic and apparently put on medica tions to
calm his hyperactivity. T he de fendant was described by their
worker at the time as hyperactive yet amiable. T hat clinic
recommended that the children be placed either at a structured
psychiatric facility such as Longview State Hospital or at
Glenview School. When the second foster home terminated, the
boys were p laced at Allen House.
In July, 1965, the children were placed with their biological
mother and with M r. Reid despite the earlier recommendation
from the psychologist. However, the defendant soon began
having school problems and was referred for psychological
testing in December, 1965. At that evaluation, he was described
as functioning in the average range intellectually but as being
very distractible and having a short attention span. The report
noted that he was unable to concentrate and organize and that his
reality contact was “precarious.” The psychologist noted that
Mr. Smith was so insecure that he was unable to relate
satisfactorily to other people and that he attemp ted to repre ss his
hostility. It stated that he had a trend toward depression and that
his emotional expression was often inappropriate. It was felt that
his thinking “sometimes borders on autistic.” The thrust of the
report was to point out that the extent of Mr. Smith’s deprivation
and the instability of his home life had prevented the
gratification of his basic psychological needs so that his behavior
problems were really not surprising. The report recommended
that he would function best in a one-on-one situation in school
and that he needed a warm, structured living placement. A rural
placement was suggested so that he would have no compe titive
peers but if that were not availab le, psychiatric hospitalization
was suggested.

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No. 00-4030 Smith v. Mitchell 21
4Dr. Schmidtgoessling discussed Smith’s stay at Longview:
Soon thereafter, Mr. Smith was placed at the Longview
State Hospital. W e have been informed by that center that their
records from that time period are destroyed . A one page
summ ary of his stay at Longview State Hospital was forwarded
to our Center in 1976 when we performed our prior evaluation.
Tho se records described him as suffering borderline intellectual
functioning, as having a slight speech impediment, as restless
and distractible with poor insight, but having no evidence of
psychosis. His hospital course was described as “uneventful”
although he was discharged in August, 1971 (after being
admitted in February, 1966), on AWOL status. Other records as
well as Mr. Smith’s self-report and the report of collateral
sources, suggest that he was initially placed at Longview
because of behavior problems such as “running around, tearing
things up and se tting a fire.”
5Dr. Schm idtgoessling reported that there we re few records
documenting his later functioning. He left home at about fifteen years of
age. His educational background was also poorly documented. She noted
that his scho ol records had been sent to Longview when he tra nsferred
there, and were later destroyed by Longview. The Cincinnati Public
Scho ols provided records from the ninth and tenth grades, showing
numero us absence s and po or grade s.
Longview4, and his later functioning.5
In the mitigation report Dr. Schmidtgoessling also noted
that Smith had reported a rather extensive history of alcohol
and substance abuse. She also reported that Smith described
being in prison twice previously, but that his entire legal
history was unknown, because she could not get the court
records.
Dr. Schmidtgoessling reported that Smith’s current
psychological functioning showed him in the low average to
borderline range of intellectual functioning. Dr.
Schmidtgoessling concluded:
In summary, Mr. Smith is the product of a rather
chaotic family life in which his basic needs for structure,
22 Smith v. Mitchell No. 00-4030
discipline, and nurturance were not met. This is because
he [sic] family of origin was incapable of caring for him
because of his mother’s mental illness and inadequate
parenting skills as well as the lack of an effective male
model. Other family members were apparently
disengaged or unable to overcome the family of origin’s
deficits. Mr. Smith spent his earliest years in foster
homes that seemed to provide the structure and discipline
that he needed, but nevertheless were incapable of
meeting his extensive needs. He shows an early history
of behavior problems (stealing, fighting), bedwetting,
hyperactivity and strong dependency needs. As he got
older and moved back into the family of origin, he was
apparently subjected to abuse, neglect, and intimidation.
The parent figures available (Mrs. Smith and Mr. Reid)
were inadequate in teaching him appropriate and
effective adaptive skills. He moved out of his family of
origin some place in his mid to later teens and became
apparently highly influenced by “street life.” This
reinforced his antisocial tendencies, and even further
failed to induce a socially appropriate and age
appropriate set of adaptive skills (appropriate educational
attitude, stable interpersonal relationships, a substance
free lifestyle). He apparently became more involved in
the use of substances which he initially seemed to use to
soothe his feelings of being abandoned and lonely, but
which eventually became habitual to him. . . . At the
time of the offense for which he was convicted, Mr.
Smith reportedly was using alcohol and cocaine on a
frequent basis, was involved in no significant
relationships, and was working part-time.
This man’s long-term psychological functioning is
marked by a very high need for dependence which was
manifest not only in his excessive interest in food as a
youngster but in his ongoing substance abuse as an
adult. However, his psychological capacity for intimate
relationships is poor largely because he has had no
significant intimate relationships himself during the

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No. 00-4030 Smith v. Mitchell 23
6Under Ohio law, once the prosecution has proven one or more
statutory aggravating circumstances beyond a reasonable doub t, the jury
or sentencing panel must weigh the aggravating circumstances against the
mitigating evidence b efore impo sing a death sentence. Ohio Rev. Code
critical developmental period of the first few years of
life. . . . He has never achieved a stable sense of
direction, never having experienced this in his earlier
years.
There are no indications that this man ever suffered a
substantial mental illness such as schizophrenia, manic
depression, mental retardation or other psychological
disorder that would grossly impair his ability to test
reality. He did suffer hyperactivity of unknown origin
when younger[.] Now, he does suffer a personality
disorder which impairs his ability to think towards and
plan for the future, utilize judgment in a socially
appropriate and effective manner, relate intimately to
others and use guilt and anxiety to inhibit acting out
behavior. Lastly, this man does report some
symptomatology that may be the effect of chronic
cocaine use, specifically some restlessness and
hyperactivity.
It is my opinion that Mr. Smith did not suffer from a
gross impairment of reality testing or restraint at the time
of the offenses for which he as been convicted. It is my
opinion that both his personality style and his substance
abuse would have impaired his ability to appreciate the
situation of the victim and to apply his judgment in a
socially appropriate fashion at the time of the offenses
for which he was convicted.
C. Trial Court Weighing
Pursuant to Ohio Rev. Code § 2929.03(D)(3), the trial court
weighed the aggravating factors against the mitigating
factors.6 The court noted that by its verdict, the three-judge
24 Smith v. Mitchell No. 00-4030
Ann. § 292 9.04(B ) (Anderson 2002). T he panel may consider as
mitigating evidence:
the nature and circumstances o f the offense, the history,
character, and background of the offender, and all of the
following factors:
(1) W hether the victim of the offense induced or facilitated it;
(2) W hether it is unlikely that the offense would have been
committed, but for the fact that offender was under dure ss,
coercion, or strong provocation;
(3) W hether, at the time of committing the offense, the offender,
because of a me ntal disease or defect, lacked substantial capacity
to appreciate the criminality of the offender’s conduc t or to
conform the offender’s conduct to the requirements of the law;
(4) T he youth of the o ffender;
(5) If the offender’s lack of a significant history of prior criminal
convictions and delinquenc y adjudications;
(6) If the offender was a participant in the offense but not the
principal offender, the degree of the offender’s participation in
the offense and the degree o f the offend er’s participatio n in the
acts that led to the death of the victim;
(7) Any other factors that are relevant to the issue of whether the
defendant should be sentenced to death.
Ohio Rev. Co de Ann. §292 9.04(B) (And erson 2002).
panel unanimously found Smith guilty of specifications I and
II as to Count One and specifications I and II as to Count
Two. The court then assessed the mitigating factors.
Regarding the nature and circumstances of the offense, the
court found that “[t]here is absolutely no question that the
defendant purposely, coldly and brutally killed Mary
Bradford while committing the offenses of rape and
aggravated robbery. He stabbed the victim ten times and then
raped her as the life drained from her body. This is not a
mitigating factor and certainly does not militate for mercy.”
As to the character and background of the offender, the court
stated:
The history, character, and background of the
offender.–As discussed earlier the defendant had a
difficult childhood. As a result, he developed personality
disorders which adversely affected his ability to relate to

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No. 00-4030 Smith v. Mitchell 25
others. He is unable to appreciate the needs of others and
has little regard for human life. This panel recognizes
Smith’s personality disorders and difficult childhood as
a mitigating factor.
The sentencing panel rejected Smith’s argument that the
victim provoked him because she came at him with a knife.
The court observed that Bradford was a slight woman who
suffered from a lung ailment that required her to keep a
breathing device. The sentencing panel also found no
evidence of duress, coercion or strong provocation. The court
found that even if the cocaine was stolen, this was not “strong
provocation.” As for the third mitigating factor under
§ 2929.04(B), the trial court held that Smith did not suffer
from a mental disease or defect at the time of the crime, and
specifically noted that Smith did not claim insanity at trial.
Smith’s youth was not a factor, nor his lack of significant
history of criminal convictions. Further, since he was the
principal and only offender, his degree of participation in the
crime was not a mitigating factor. Finally, as to the catchall
factors, the sentencing panel noted that although Smith
claimed to be drunk and high on the night of the offense, there
was no evidence presented to indicate that Smith was not in
complete control of his faculties at the time.
In weighing the mitigating factors against the aggravating
factors, the sentencing panel concluded:
A careful and meticulous review of the mitigating
factors discloses that the defendant had a difficult
childhood. He had no real family to take care of
him–nurture him. There is a history of mental illness in
his family. As a result, Smith grew up with a personality
disorder that affected his ability to form personal
relationships or to appreciate the needs and feelings of
others. He became cold and unfeeling with a lack of
regard for human life. He developed a specific
discomfort and anger toward women.
26 Smith v. Mitchell No. 00-4030
It is the opinion of this three-judge panel that the
mitigating factors present pale before the fact that the
defendant’s actions were plotted, vicious, persistent and
utterly callous. Mary Bradford was not stabbed once but
ten times. She then had to suffer the final indignities of
being raped by Smith while she lay dying and then
having her property stolen. It is clear that the defendant
went to her apartment to obtain “restitution”. He
obtained it in a violent and ruthless manner, with
absolutely no regard for the life of Mary Bradford. We
find no conduct or provocation on the part of Mary
Bradford which would warrant the defendant’s lethal
response.
The panel unanimously concluded that the aggravating
circumstances outweighed all the mitigating factors Smith
advanced, and imposed the death penalty on each murder
count. The panel also sentenced Smith to a minimum term of
ten years and a maximum term of twenty-five years, with ten
years actual incarceration to run consecutively, as to Count III
(rape) and Count IV (aggravated robbery).
D. Direct Appeals
As required by statute, see Ohio Rev. Code Ann. § 2929.05,
the Ohio Court of Appeals and Ohio Supreme Court
conducted an independent weighing analysis. Both concluded
that the aggravating factors outweighed the mitigating factors.
The Ohio Court of Appeals held as follows:
We have considered Smith’s confession, in which he
said that Bradford threatened him with a kitchen knife,
his difficult childhood, and the personality defect that
affected his ability to relate to others. We cannot accept
Smith’s claim that Bradford induced or provoked
Smith’s response in light of the uncontradicted physical
evidence relative to her slight stature, her severe
respiratory disability, the absence of defensive wounds
and marks on her body as noted by the coroner, the ten

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No. 00-4030 Smith v. Mitchell 27
stab wounds, and the location of Bradford’s blood and
bloody clothing in her apartment. Nor can we find that
Smith’s childhood and personality defect, when
compared to the nature and circumstances of the offenses
herein, are of a quality to mitigate his sentence to the
extent that the aggravating circumstances of rape and
aggravated robbery do not outweigh the mitigating
factors beyond a reasonable doubt.
State v. Smith, No. C-880287, 1990 WL 73974, at *9 (Ohio
Ct. App. June 6, 1990) (per curiam).
In its independent reweighing, the Ohio Supreme Court
concluded that:
When weighing the aggravating circumstances against
mitigating factors, we find that the aggravating
circumstances do outweigh the mitigating factors beyond
a reasonable doubt. The aggravating circumstances are
substantial–the rape and robbery of a helpless woman in
her own home by someone she invited in. In contrast,
the mitigation case appears inconsequential. While
unfortunate, Smith’s upbringing did not result in a
mental disease or defect, as opposed to a character defect.
Smith vacillates between accepting responsibility for
what occurred and trying to shift the blame onto others.
His claims lack authenticity, and he has not solidly
demonstrated any remorse, sorrow, repentance, or desire
for rehabilitation.
State v. Smith, 574 N.E.2d 510, 521 (Ohio 1991).
E. State Post-Conviction Proceedings
The OPD represented Smith in his state post-conviction
proceedings. The OPD investigated Smith’s background and
produced Hamilton County Social Services Records. Post-
conviction counsel also contacted several clinical
psychologists to evaluate Smith for organic brain dysfunction,
28 Smith v. Mitchell No. 00-4030
7Dr. D obbins stated that he reviewed the following materials:
Cincinnati Public School Records
Hamilton County Psychiatric Court Clinic Records
Affidavits of friend s and family membe rs of W illiam H. Smith
Transcript of Mitigation Hearing
Transcript of statement to Cincinnati Police
Case conferences with staff from the Ohio Public Defender
Commission
apparently because he had been hospitalized at Longview as
a child, and was administered both shock therapy and anti-
psychotic drugs.
Dr. Robert Smith, a clinical psychologist who specializes
in substance abuse and treatment, administered a series of
tests designed to detect the extent of Smith’s chemical
dependence. Dr. Smith diagnosed Smith with cocaine
dependence, cannabis dependence, and alcohol dependence.
Dr. Smith opined that “the court ordered evaluations were
remiss in adequately assessing the extent and impact of
[Smith’s] alcohol and substance abuse.” Dr. Smith also stated
that it was “plausible” that Smith had consumed alcohol,
marijuana, and cocaine on the evening of the offense, and
that, “[g]iven the data reported, it is likely that Mr. Smith’s
ability to adequately judge the consequences of his behavior
and to act in his own best interest may have been impaired.”
Dr. James Dobbins, a clinical psychologist, also evaluated
Smith. Dr. Dobbins stated that he reviewed materials
provided by counsel7, conducted two clinical interviews with
Smith and administered the MMPI, the Shipley Institute
Living Scale, Defense Scale of Jackson Personality Research
Scale, and the Thematic Apperception Test. Dr. Dobbins
determined that Smith “has many background and
developmental problems which would contribute to a poor
psychological adjustment in adult life.” Like Dr.
Schmidtgoessling, Dr. Dobbins noted that Smith suffered
from malnutrition and resulting vitamin deficiencies as a
neonate, as well as pneumonia. Dr. Dobbins stated that Smith

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No. 00-4030 Smith v. Mitchell 29
8Dr. B urch stated that she administered the following tests:
W echsler Adult Intelligence Scale-Revised; W echsler Memory
Scale-Revised; Category Test; Speech Sounds Perception T est;
Seashore Rhythm Test; Finger Oscillation T est; Aphasia
Screening Test; Frontal Lob e Battery; T rail M aking T est;
Complex Figure Test; California Verbal Learning Test;
Developmental Test of Visual-Motor Integration; Tactual
Performance Test; Hoope r Visual Organiza tion T est.
Dr. Burch also stated that she re viewed the following materials
provided by counsel:
Police Report
Reports of Previous Psychological Evaluations
Treatment Summaries
Affidavits of Friends and Family Members of W illiam H. Smith
Case conferences with staff from the Ohio Public Defender
Commission
was raised in a severely disturbed family. Dr. Dobbins noted
that Smith was placed in foster care, and then Longview State
Hospital. Dr. Dobbins further noted that while at Longview,
Smith was administered a psychotropic drug. Dr. Dobbins
confirmed that Smith experienced a great deal of physical
abuse from his parents and other caregivers.
Dr. Dobbins concluded that Smith’s “school and social
problems are more likely due to his chaotic family structure
and the likelihood of neurological impairment from perinatal
and postnatal infections, vitamin deficiencies, and long term
alcohol abuse.” He diagnosed Smith as DSM III-R Axis I
305.00 Alcohol Abuse, 304.30 Cannabis Abuse, 304.20
Cocaine Dependence; and Axis II 300.90 Unspecified Mental
Disorder (nonpsychotic) with antisocial features.
Dr. Kathleen Burch, a clinical psychologist, also evaluated
Smith to determine whether Smith showed signs of “cerebral
dysfunction” that might have contributed to “adaptive
deficits.” Dr. Burch administered a battery of
neuropsychological tests.8 Like Drs. Schmidtgoessling and
Dobbins, Dr. Burch noted that Smith was hospitalized as an
infant with pneumonia and vitamin deficiency. Dr. Burch
30 Smith v. Mitchell No. 00-4030
reported that Smith denied any history of seizures or head
injuries resulting in unconsciousness. She noted that Smith’s
mother was frequently under psychiatric care, that he was in
various foster placements, and that at age eight, Smith was
probated to Longview and was medicated with Thorazine
during hospitalization. Dr. Burch observed that “[h]istory of
alcohol and substance abuse has also been inconsistent.”
Dr. Burch concluded that Smith had a “mild, diffuse
cerebral dysfunction.” Dr. Burch noted that Smith “earned a
Halstead-Reitan Impairment Index of 0.7, which would
suggest a moderate level of impairment.” She added:
“However, his performance was no more than mildly
impaired on any of the measures--evidence against the
presence of a discrete lesion. While the results are not
strongly lateralizing, there does appear to be more left
hemisphere impairment.”
Dr. Burch further observed that Smith’s “dysfunction
appears static--that is, nonprogressive. There is no evidence
of an acute lesion, or ongoing toxic, metabolic, or infectious
process.” She noted that Smith’s deficits appeared on tasks
involving functions associated with frontal lobe activity such
as difficulties in maintaining a cognitive set, and decreased
flexibility in thinking. She further noted that his
concentration and attention skills are impaired. She observed
that:
The pattern of results suggests either the sequelae of
diffuse traumatic brain damage or of chronic alcohol
abuse. He has marked difficulty with attention and
concentration may be more long-standing, and the result
of developmental deficit. If the deficits do, indeed result
from alcoholism, they would be expected to reflect some
improvement resulting from extended sobriety. In other
words, if he had been tested shortly after his arrest, the
test results would have most likely indicated more severe
dysfunction. It is unlikely that continued abstinence
would result in an further improvement of his cognitive

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No. 00-4030 Smith v. Mitchell 31
status. . . . Overall, the results suggest mild attentional
problems, difficulty with concentration and mental
tracking, mild problems with nonverbal and verbal
reasoning, and a tendency to show low initiative and
respond to the obvious. The results are consistent with
a pattern of diffuse, mild cerebral impairment.
Dr. Burch’s tests results were similar to those of earlier
reports. On the WAIS-R, Smith scored a verbal IQ of 85, a
performance IQ of 89, and a full scale IQ of 85.
In her conclusions, Burch reiterated that
[t]he results, again, are more suggestive of the sequelae
of chronic alcohol abuse or, possibly of repeated head
trauma. . . . The deficits observed characteristically are
associated with poor impulse control and deficient
planning and problem solving.
The state post-conviction trial court denied Smith’s motion
without an evidentiary hearing. The Ohio Court of Appeals
rejected Smith’s claim of ineffective assistance of counsel in
the mitigation phase. The court reasoned that:
The affidavits [of family members and psychologists]
share a common theme, i.e., that Smith’s early years
were fraught with instability, abuse, neglect and a total
lack of parental love and support. During the mitigation
hearing, Smith’s mother, two uncles, his minister and a
psychologist testified concerning their opinions that
Smith had an unstable and difficult childhood, that he
had a history of substance-abuse problems, that he was a
follower and could be easily manipulated and that he had
personality disorders which prevented him from relating
to others.
The trial court, in its opinion, stated that it
“recognize[d] Smith’s personality disorders and difficult
childhood as a mitigating factor.” We conclude that the
32 Smith v. Mitchell No. 00-4030
evidence of Smith’s unfortunate upbringing, substance-
abuse history and personality disorders, as set forth in the
supporting affidavits, was merely cumulative to that
presented at the mitigation hearing. Consequently, we
uphold the trial court’s conclusion that Smith has
presented no documentary evidence demonstrating
prejudice[.]
State v. Smith, No. C-930404, 1994 WL 273267, at *4 (Ohio
Ct. App. June 22, 1994) (per curiam). The Ohio Supreme
Court summarily dismissed Smith’s appeal from that
decision.
F. Federal Habeas
The district court held that trial counsel’s investigation and
preparation for mitigation were not ineffective. The district
court noted in particular that trial counsel called as its expert
witness Dr. Schmidtgoessling, who presented information that
tended to establish several mitigating factors. Smith v.
Anderson, 104 F. Supp.2d 773, 809 (S.D. Ohio 2000). The
court held that Smith “fail[ed] to establish that counsel were
ineffective and that Petitioner suffered prejudice from any
alleged deficiency, in light of the overwhelming evidence that
affirms the reliability of both the finding of guilt and the
imposition of sentences.” Id.
II. Standard of Review
Petitioner’s habeas application was filed in 1995, prior to
the enactment of the Antiterrorism and Effective Death
Penalty Act (“AEDPA”); the pre-AEDPA standard of review
therefore applies. Coleman v. Mitchell, 268 F.3d 417, 427
(6th Cir. 2001); Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir.
1999). Under that standard, we presume the correctness of
the state court factual findings, unless rebutted by clear and
convincing evidence, and we review determinations of law, or
mixed questions of fact and law, de novo. Coleman, 268 F.3d
at 427; Mapes, 171 F.3d at 413. We may not issue a writ of

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No. 00-4030 Smith v. Mitchell 33
habeas corpus unless the state court proceedings were
fundamentally unfair as a result of a violation of the
Constitution or laws or treaties of the United States. Powell
v. Collins, 328 F.3d. 268, 280 (6th Cir., 2003).
III. Analysis
A. Ineffective Assistance of Trial Counsel
1. Mitigation
Smith argues that the district court erred in concluding that
Smith was not denied constitutionally effective assistance of
counsel in the penalty phase of his trial. The Sixth
Amendment to the United States Constitution provides, inter
alia, that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his
defence.” U.S. Const. amend. VI. As the Supreme Court
stated in Strickland, “the Sixth Amendment right to counsel
exists,” and is necessary “to protect the fundamental right to
a fair trial.” See Strickland v. Washington, 466 U.S. 668, 684
(1984). A fair trial “is one in which evidence subject to
adversarial testing is presented to an impartial tribunal for
resolution of issues defined in advance of the proceeding.”
Id. at 685. Counsel plays a critical role in the adversarial
system embodied in the Sixth Amendment because counsel’s
skill is needed to accord a defendant the “‘ample opportunity
to meet the case of the prosecution.’” Id. (quoting Adams v.
United States ex rel. McCann, 317 U.S. 269, 275 (1942)).
Thus, “‘the right to counsel is the right to the effective
assistance of counsel.’” Id. (quoting McMann v. Richardson,
397 U.S. 759, 771, n.14 (1970)). In defining the
constitutional requirement of effective assistance, the
Strickland court stated:
In giving meaning to the requirement, however, we must
take its purpose–to ensure a fair trial–as the guide. The
benchmark for judging any claim of ineffectiveness must
be whether counsel’s conduct so undermined the proper
34 Smith v. Mitchell No. 00-4030
functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.
Id. at 686. This principle applies equally to a capital
sentencing proceeding. Id. at 686-87.
In Strickland, the Supreme Court set forth a two-part test
for evaluating ineffective assistance of counsel claims. First,
the defendant must demonstrate that counsel’s performance
was deficient in that counsel’s errors were so serious that
counsel was not functioning as constitutionally guaranteed.
Id. at 687. Second, the defendant must establish that the
inadequate assistance prejudiced the defense. To establish
prejudice, the defendant must show that “counsel’s errors
were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” Id.
The proper standard for attorney performance is reasonably
effective assistance. Id. Thus, to establish cause, the
defendant must show that counsel’s performance “fell below
an objective standard of reasonableness.” Id. at 688.
Reasonableness is determined by considering all the
circumstances. Id.
To show prejudice, the defendant must demonstrate to a
reasonable probability that, but for counsel’s errors, the result
would have been different. Id. at 694. In the context of a
challenge to a death sentence, the prejudice question is
“whether there is a reasonable probability that, absent the
errors, the sentencer–including an appellate court, to the
extent it independently reweighs the evidence–would have
concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Id. at 695.
These principles are not mechanical rules, rather principles
to guide the process of deciding whether the challenged
proceeding was fundamentally fair. Id. at 696. Thus, the
court deciding an ineffective assistance claim need not

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No. 00-4030 Smith v. Mitchell 35
approach the inquiry in the same order or even address both
prongs if the defendant fails to establish one. Id. at 697.
Smith characterizes his ineffectiveness claims as sins of
omission and affirmative mistakes. As for omissions, Smith
claims that counsel were ineffective in investigating and
preparing for mitigation for failing to (1) communicate and
follow through with mitigation experts at the OPD, namely
Core, (2) communicate and follow through with
Schmidtgoessling once she was appointed as a “friend of the
court” expert, (3) investigate Smith’s background, (4) develop
an effective strategy for the mitigation hearing, and
(5) request a full psychiatric examination, given Smith’s
history at Longview State Hospital. Smith claims that, as a
result, the trial counsel failed to present a full picture of
Smith’s tragic life. As for affirmative mistakes, Smith claims
deficient performance in counsel’s decision to allow his
mother, who is schizophrenic, to read a statement that
contained damaging information. He also faults counsel for
introducing the testimony of his former pastor, who revealed
that Smith beat his wife.
Smith alleges that all of the foregoing omissions resulted in
less than full and accurate mitigation evidence. Smith argues
that post-trial evidence shows that he was born to a single
mother, one of six children, with many different fathers.
Further, his family was poor and uneducated, and involved
with social services even before his birth. Smith points out
that the records reveal that he had a traumatic infancy,
including that his mother was schizophrenic and that his
biological father was uninvolved. Smith notes further that he
lived in foster homes, was abused by his stepfather, and that
he himself was committed to Longview for five and one-half
years, where he received shock therapy, and antipsychotic
drugs. Smith adds that his I.Q. is in the borderline mentally
retarded range, and that he has been diagnosed with diffuse
organic brain impairment which was present at the time of the
crime.
36 Smith v. Mitchell No. 00-4030
9In the dissent’s view, “the facts of this case lead [it] to the same
conclusion” as held in Powell, “that the testimony of a defense expert may
have provided facts and information to consider at mitigation which may
have led to a different sentence.” Sp ecifically, the dissent points out that
“Smith endured an exceedingly difficult childhood,” that he “spent time
living with abusive foster parents,” that he “was diagno sed with diffuse
cerebral dysfunction,” and that he “spent time in a juvenile psychiatric
facility where, among other things, he received electric shock therap y.”
The dissent igno res the fac t that, as the m ajority opinio n documents, all
of this evidence was presented at mitigation, in Dr. Schmidtgoessling’s
testimony and in her mitigation report. The three-judge sentencing panel
reviewed all of this evidence, as did the Ohio appellate co urts in their
independent reweighing of the aggravating circumstances against the
mitigating factors.
We find no cause or prejudice under Strickland because all
of this evidence was presented at mitigation.9 As
exhaustively detailed above, virtually all of the mitigating
elements that Smith complains of were presented via Dr.
Schmidtgoessling’s testimony and her mitigation report. In
her testimony, Dr. Schmidtogessling explained that Smith’s
mother had a history of mental illness, that his biological
father was uninvolved, that he was placed in a number of
foster homes and at Longview. She described the lack of
structure, nurturing, and the physical and emotional abuse.
Dr. Schmidtgoessling also stated that his IQ was in the
borderline mentally retarded range, and that he abused
alcohol, marijuana, and cocaine. Dr. Schmidtgoessling’s
mitigation report describes in greater detail Smith’s family
background, developmental history, his commitment to
Longview, and his later functioning as a young adult. In fact,
we are at somewhat of a loss in trying to discern what
evidence Smith believes was not presented at mitigation.
Smith himself fails to identify which documents were
available and reviewed by OPD at the post-conviction phase,
but not reviewed by Dr. Schmidtgoessling.
The foregoing facts were obviously part of the record
because both the Ohio Court of Appeals and the Ohio

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No. 00-4030 Smith v. Mitchell 37
Supreme Court referred to them upon direct review. The
Ohio Court of Appeals found that
Smith’s psychiatric history reflected that he was abused
as a child by his mother and stepfather. At ten years of
age he spent three years in Longview Hospital’s
children’s unit. He dropped out of school–according to
Schmidtgoessling, in the tenth grade–with a history of
hyperactivity, learning deficiency, poor achievement, and
disciplinary problems. Dr. Schmidtgoessling found that
Smith’s IQ fluctuated, but that he was not retarded.
Smith told her that he had a long-standing history of
alcohol and marijuana use and a two-year history of
cocaine use, which she described as “moderate.” Dr.
Schmidtgoessling concluded that Smith did not have a
mental illness or defect, but suffered from a nonorganic
personality defect that made him impulsive and
“sensitive to being ripped off.”
State v. Smith, 1990 WL 73974, at *9. The Ohio Supreme
Court, as part of its independent reweighing of aggravating
and mitigating factors on direct appeal, characterized the
psychological evidence presented during mitigation in the
following manner:
Smith, born in October 1957, came from a chaotic home
environment, with a schizophrenic, abusive, neglectful
mother, and an unknown father. Early psychological
reports on Smith showed problems. A psychologist in
1964 termed him “emotionally disturbed.” In 1965, a
psychologist said his “reality contact was ‘precarious’”
and his “thinking sometimes borders on autistic.” In
1965, after acting destructively and setting a fire, he was
committed to Longview, a state mental hospital. In
childhood, he displayed “hyperactivity, some learning
problems secondary to distractibility, poor achievement
in school, a lot of behavior problems, stealing, fighting
in school.”
38 Smith v. Mitchell No. 00-4030
State v. Smith, 574 N.E.2d at 519. The Ohio Supreme Court
also noted Smith’s IQ scores, his reported alcohol and
substance abuse, his ongoing anti-social behavior as an adult,
his hypersensitivity, and the lack of schizophrenia,
retardation, or any major psychological disorder. Id. at 519-
20. Like the trial court, the Ohio Supreme Court weighed
these mitigating factors:
Smith’s history, character, and background do offer
mitigating features. Smith clearly had an arduous
childhood, and his early life shaped a personality with
serious character defects. His limited mental capacity,
childhood deprivation, and alcohol and drug dependency
all reflect mitigating features. We find his history and
background to be a mitigating factor, as did the trial
court.
Id. at 520; see also id. at 521 (“As to significant ‘other
factors,’ we recognize Smith’s deprived childhood, flawed
upbringing, character defects, and drug and alcohol
dependency as mitigating.”). In other words, trial counsel
was not ineffective because all the information of which
Smith complains was presented to the sentencing panel, and
was part of the record before the Ohio Court of Appeals and
the Ohio Supreme Court.
From what we can tell, the only allegedly new mitigating
evidence that Smith presents is that he suffers from organic
brain damage. That evidence is not compelling, however,
because it is not conclusive. Dr. Smith never states that
Smith suffers from organic brain damage. The closest thing
to organic brain damage in Dr. Smith’s statement is that
Smith was dependent on alcohol, marijuana, and cocaine, and
that each of these chemicals affects the central nervous
system. But Dr. Schmidtgoessling herself also documented
Smith’s substance abuse. And Dr. Smith merely opined that
it was “plausible” that Smith had abused substances on the
night of the offense, and that if he did, it was “likely” that
Smith’s judgment was impaired.

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No. 00-4030 Smith v. Mitchell 39
Dr. Dobbins likewise did not diagnose Smith with organic
brain damage, concluding only that there is a “likelihood of
neurological impairment.” Nor did Dr. Dobbins ever explain
whether this likelihood of neurological impairment would
have impacted Smith’s criminal act. Dr. Burch diagnosed
Smith with “mild diffuse cerebral dysfunction.” She further
stated that Smith’s “performance was no more than mildly
impaired on any of the measures[.]” More telling, Dr. Burch
identified only one deficit that was relevant to Smith’s actions
on the night of the murder--poor impulse control. Dr. Burch
did not opine that Smith’s impairment constituted either
diminished capacity or insanity under Ohio law.
Although he faults trial counsel for failing to obtain a
neuropsychological examination that would reveal evidence
of organic brain damage, post-conviction counsel’s efforts on
that score were equally unavailing. In essence, then, the only
evidence the sentencing panel did not hear was that Smith
suffered from a lack of impulse control. Yet, this was not
new evidence, because as the Ohio Court of Appeals noted on
direct appeal, Schmidtgoessling concluded that Smith
suffered from a nonorganic personality defect that made him
“impulsive.” See State v. Smith, 1990 WL 73974, at *9.
Thus, as the Ohio Court of Appeals stated on post-conviction
review, the evidence presented “was merely cumulative to
that presented at the mitigation hearing.” State v. Smith, 1994
WL 273267, at *4. Furthermore, as the Warden points out,
the fact that Smith forcefully stabbed the victim ten times,
then had sex with her a second time, and made four separate
trips to take her property to his car, and then left her to die,
belies any plausible claim of lack of impulse control.
Other than the slim evidence of a “mild diffuse cerebral
dysfunction,” which manifested primarily as poor impulse
control, Smith has failed to point to any mitigating evidence
that was not actually presented. Absent the existence of some
actual medical proof of an organic brain disorder, there can be
no cause in the failure to find and present it, and obviously no
prejudice either. See Thompson v. Bell, 315 F.3d 566, 590
40 Smith v. Mitchell No. 00-4030
(6th Cir. 2003); Lorraine v. Coyle, 291 F.3d 416, 436 (6th
Cir. 2002), cert. denied, 123 S. Ct. 1621 (2003). In short, trial
counsel’s performance was not unreasonable.
The remaining alleged omissions are of minor magnitude,
and do not reflect objectively unreasonable performance, let
alone prejudice. Smith criticizes trial counsel for failing to
consult with Core. The record shows that Smith’s trial
counsel made initial contact with Core in January 1988, and
that counsel actually sent her some materials regarding Smith,
including Schmidtgoessling’s NGRI report, which was quite
comprehensive. Thus, Smith is incorrect to the extent he
suggests that counsel did not provide any materials to Core.
It also appears that trial counsel were stymied in their efforts
because Core refused to proceed further without funding, and
trial court did not order funds until late February 1988. It is
not clear why counsel ultimately switched to Dr.
Schmidtgoessling. Core is probably a qualified mitigation
expert, but the record reflects that Dr. Schmidtgoessling is
too. Dr. Schmidtgoessling has been involved with death
penalty cases since Ohio’s modern death penalty statute went
into effect in 1981, and her NGRI and mitigation reports as
well as her testimony demonstrate that she was very thorough
in her investigation of Smith’s background in the quest for
mitigating evidence. In fact, Dr. Schmidtgoessling testified
that she usually became involved in mitigation at the
instruction of the OPD or from a private defense attorney.
Furthermore, counsel had Dr. Schmidtgoessling’s NGRI
report, so at the time they decided to use her instead of
Liverani, they had a good idea of what mitigation evidence
she would present. A comparison of the NGRI report and
mitigation report confirm this. Thus, it simply cannot be said
that counsel’s choice of Dr. Schmidtgoessling as their
mitigation expert was deficient. Cf. Wickline v. Mitchell, 319
F.3d 813, 820-22 (6th Cir. 2003) (holding that trial counsel
were not ineffective for failing to perform a separate
mitigation investigation; counsel testified that their pretrial
investigation was conducted for both guilt phase and
mitigation phase purposes and the mental health evidence

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No. 00-4030 Smith v. Mitchell 41
submitted with the petitioner’s petition for post-conviction
relief indicated that the petitioner did not suffer from any
mental condition relevant to the murders; even if deficient
performance, the petitioner failed to show prejudice).
Smith criticizes counsel for failing to investigate on their
own. He also claims that counsel failed to request records
from the Hamilton County Juvenile Court or the Hamilton
County Department of Human Services. However, Dr.
Schmidtgoessling testified that trial counsel requested and
received from her the documents that formed the basis of her
NGRI report. Thus, even if trial counsel’s performance was
deficient, there is no prejudice. In any event, prior to
mitigation counsel interviewed several witnesses, including
Smith’s wife, grandmother, and other relatives. Smith faults
counsel for not meeting with his mother prior to the
mitigation hearing. Again, even if Smith could somehow
demonstrate cause on this front, Smith has shown no
prejudice.
Smith also faults trial counsel for failing to communicate
with Dr. Schmidtgoessling once she was appointed as the
friend of the court expert, after conviction and just prior to
mitigation. From Dr. Schmidtgoessling’s deposition
testimony it appears that counsel may not have been up to
speed on mitigation evidence at certain points during pretrial
preparation. Yet again, even if we were to conclude that trial
counsel’s purported ill-preparedness prior to the mitigation
hearing somehow constituted cause, Smith fails to show any
prejudice whatsoever. Indeed, Dr. Schmidtgoessling herself
presented a comprehensive portrait of Smith to the sentencing
panel, and did not indicate that she was ill-prepared. Cf.
Powell, 328 F.3d at 276 (noting that Dr. Schmidtgoessling
testified at petitioner Powell’s sentencing hearing that “she
was not given sufficient time to conduct an appropriate
investigation into Petitioner’s mental makeup, to interview
necessary family members and acquaintances, or to run
needed diagnostic tests”). As we have stated and restated, the
sentencing panel had ample mitigating evidence before it, and
42 Smith v. Mitchell No. 00-4030
Smith has not identified any evidence that counsel
overlooked.
For this reason, Smith’s reliance on Williams v. Taylor, 529
U.S. 362 (2000), and Glenn v. Tate, 71 F.3d 1204 (6th Cir.
1995), is misplaced. In both of those cases, the courts
identified mitigation evidence that existed but was not
presented. See Williams, 529 U.S. at 395-98 (finding
ineffective assistance of counsel because counsel failed to
investigate and introduce evidence of the petitioner’s
nightmarish childhood, including severe and repeated
beatings by his father, and available evidence showing that
the petitioner was borderline mentally retarded; also finding
prejudice in that the evidence “might well have influenced the
jury’s appraisal of his moral culpability”); Glenn, 71 F.3d at
1207-11 (finding trial counsel ineffective at mitigation due to
their failure to develop and present mitigating evidence
regarding the petitioner’s background, including the fact that
in school he had been classified as mentally retarded, and that
he suffered organic brain damage, despite its availability).
Rather, Smith’s situation is more akin to the petitioners in
Thompson, 315 F.3d 566, and Lorraine, 291 F.3d 416, In
both cases we found no ineffective assistance of counsel
based on the failure to present mitigating evidence of organic
brain damage, because the petitioners never established that
organic brain damage was present. See Thompson, 315 F.3d
at 590-92 (and cases cited therein); Lorraine, 291 F.3d at 436-
39 (and cases cited therein). As we stated in Lorraine, “if
habeas counsel could not find evidence of organic brain
damage, then trial counsel cannot be deemed ineffective” for
failing to find it either. Id. at 436. Cf. Mason v. Mitchell, 320
F.3d 604, 619-27 (6th Cir. 2003) (holding that the petitioner
was entitled to an evidentiary hearing on the adequacy of trial
counsel’s investigation and presentation of mitigation
evidence; noting that readily available mitigation evidence
which did not enter the record until the post-conviction stage
offered an arguably reasonable probability of humanizing the
petitioner before the jury such that he might not have been
sentenced to death).

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No. 00-4030 Smith v. Mitchell 43
Smith’s case is also not like a recent decision of this Court,
Powell. In Powell, a panel of this Court found that the
petitioner had been deprived of his right to expert
psychological assistance at the sentencing phase of his trial.
In reaching this conclusion, the Powell court emphasized
defense counsel’s failure to make reasonable investigative
efforts, Powell, 328 F.3d at 292, and to research and collect
necessary information in order to present effective mitigation
at the penalty phase. In particular, the Powell court noted that
defense counsel were ineffective because they failed to
investigate the petitioner’ background, spent less than two full
business days preparing for the penalty phase of the trial, and
failed to interview and present numerous mitigating witnesses
who were available and willing to testify on the petitioner’s
behalf. Instead, trial counsel presented only one witness at
mitigation, Dr. Nancy Schmidtgoessling, the same expert
witness used by trial counsel in this case.
Here, by contrast, trial counsel presented five witnesses at
mitigation, and its principal witness, Dr. Schmidtgoessling,
presented a comprehensive picture of Smith’s family, social,
psychological background, based upon extensive review of
“[n]umerous sources of information,” which included not
only psychological tests, but also interviews, hospital records,
school reports, and social services records. Furthermore, in
this case, Dr. Schmidtgoessling did not testify at mitigation
that she “was not given sufficient time to conduct an
appropriate investigation into Petitioner’s mental makeup, to
interview necessary family members and acquaintances, or to
run needed diagnostic tests.” See id. at 276. In this case, Dr.
Schmidtgoessling also did not indicate here, as she did in the
Powell case, “that Petitioner likely suffered from some
organic brain dysfunction and that such a defect could be
detected only with tests that had not yet been performed on
Petitioner.” See id. Unlike the petitioner in Powell, Smith
did not present any “affidavits from friends and family
members” who could have offered the jurors “first hand-
accounts from those who knew Petitioner best.” See id. at
292. In short, unlike Powell, Smith has not demonstrated that
44 Smith v. Mitchell No. 00-4030
counsel failed to find and present available mitigating
evidence to the sentencing panel. And there is certainly no
showing of prejudice, because the sentencing panel was
presented with ample evidence of Smith’s mental makeup.
Powell is not persuasive.
The most recent decisions of the Supreme Court and this
Court further bolster our ruling here. See Wiggins v. Smith,
123 S.Ct. 2527 (2003), and Frazier v. Huffman, – F.3d –,
No. 01-3122, 2003 WL 22069661 (6th Cir. Sept. 8, 2003). In
Wiggins, trial counsel’s investigation of mitigating evidence
consisted of three sources; psychological testing, the written
presentence report, which included a one-page account of the
petitioner’s personal history, and social service records (DSS)
documenting the petitioner’s placements in foster care.
Wiggins, 123 S.Ct at 2536. The Supreme Court held that the
scope of trial counsel’s investigation was unreasonable when
counsel failed to investigate the petitioner’s social history,
despite knowledge from their client’s presentence report that
he lived in “misery as a youth,” and described his own
background as “disgusting.” The Supreme Court found that
counsel’s performance was also unreasonable in light of the
DSS records, which revealed that the petitioner’s mother was
a chronic alcoholic, and that he was sent to various foster
homes. Id. at 2537. The Wiggins Court stated that “any
reasonably competent attorney would have realized that
pursuing these leads was necessary to making an informed
choice among possible defenses. . . . Indeed, counsel
uncovered no evidence in their investigation to suggest that a
mitigation case, in its own right, would have been
counterproductive, or that further investigation would have
been fruitless.” Id. Cf. Johnson v. Bell, – F.3d –, No. 01-
5451, 2003 WL 22082176, at * 5-6 (6th Cir., Sept. 10, 2003)
(holding that, unlike Wiggins, where counsel had sufficient
information about their client’s abysmal childhood such that
their failure to pursue further investigation was objectively
unreasonable, “there is nothing to suggest that counsel in the
instant case ignored known leads that might have helped them
to prepare their case in mitigation”; and that “[t]he mitigating

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No. 00-4030 Smith v. Mitchell 45
evidence proffered by petitioner falls short of the quantum
required by Wiggins, Cone, and Williams”).
In Frazier, this Court found counsel’s performance was
objectively unreasonable for failing to investigate and present
evidence of a brain impairment resulting from a fall off a
ladder, which they would have discovered from their review
of medical records. Frazier, 2003 WL 22069661, at *11.
Further, affidavits presented during state postconviction
proceedings documented the petitioner’s head trauma and
suggested that a correlation could exist between the
petitioner’s injury and his head trauma. We held that “[w]e
can conceive of no rational trial strategy that would justify the
failure of Frazier’s counsel to investigate and present
evidence of his brain impairment.” Id.
In stark contrast with Wiggins and Frazier, “[o]ther than
the slim evidence of ‘mild diffuse cerebral dysfunction’, . . .
Smith has failed to point to any mitigation evidence that was
not actually presented.” Here, principally through the
testimony and report of Dr. Schmidtgoessling, the sentencing
panel had ample mitigating evidence to weigh against the
aggravating circumstances of the crime. To the extent that
Wiggins and Frazier reflect what constitutes ineffective
assistance in failing to investigate and develop available
mitigating evidence, they confirm that counsel’s decision to
present the mitigation report and testimony of Dr.
Schmidtgoessling detailing Smith’s social history was
objectively reasonable. See Strickland, 466 U.S. at 688
As Strickland made clear, our role on habeas review is not
to nitpick gratuitously counsel’s performance. After all, the
constitutional right at issue here is ultimately the right to a
fair trial, not to perfect representation. Strickland, 466 U.S.
at 684. Rather, we are looking to see “whether counsel’s
conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having
produced a just result.” Id. at 686. We cannot say that here,
because Smith has offered us no evidence to demonstrate that
46 Smith v. Mitchell No. 00-4030
counsel failed to present a full and accurate picture of Smith’s
background to the sentencing panel. Thus, we cannot find
cause, because Smith has not identified deficient
performance. It therefore follows that we cannot find
prejudice either.
B. Cumulative Errors
Smith also contends that his trial attorneys were ineffective
because they failed to rebut testimony that Smith lacked
remorse. Smith contends that counsel should have objected,
and rebutted this statement with Dr. Weaver’s NGRI report,
which showed that Smith displayed remorse during his
competency review with Dr. Glenn Weaver. In the report, Dr.
Weaver indicated that Smith had broken down when
describing the crime. Smith claims prejudice “because,
absent this improper argument, the balance of aggravating and
mitigating factors could have shifted in favor of sparing his
life.” Br. at 52.
Even if improper, there is no prejudice in light of the
overwhelming aggravating (as well as mitigating) evidence
presented. Furthermore, the argument was made to a three-
judge panel, so any inflammatory effect was de minimis
anyway. Cf. Harris v. Rivera, 454 U.S. 339, 346 (1981) (per
curiam) (“In bench trials, judges routinely hear inadmissible
evidence that they are presumed to ignore when making
decisions.”); Wickline, 319 F.3d at 823-24 (holding that the
three-judge panel would not likely have been misled by any
improper evidence); United States v. Joseph, 781 F.2d 549,
552-53 (6th Cir. 1986) (stating that “[i]t is well settled that in
a non-jury trial the introduction of incompetent evidence does
not require a reversal in the absence of an affirmative showing
of prejudice.”). Finally, Smith’s own confession
independently revealed his lack of remorse.
Smith further faults counsel for reading into the record
during mitigation his unsworn statement admitting guilt. This
claim is also without merit, because it is clear from the record

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No. 00-4030 Smith v. Mitchell 47
that this was Smith’s decision and not trial counsel’s. At
counsel’s request, the trial court made sure that Smith knew
of his right to testify, had created the written statement
himself, and had discussed the implications of this strategy
with his trial counsel. It was noted on the record that Smith
and his trial counsel took a 35 minute recess specifically to
discuss this issue with Smith prior to reading the document
into the record. Thus, counsel are not to be deemed deficient
because they followed Smith’s instructions. See Coleman v.
Mitchell, 244 F.3d 533, 545-46 (6th Cir. 2001) (“An
attorney’s conduct is not deficient simply for following his
client’s instructions.”). Again, there is no danger of prejudice
given the overwhelming evidence in this case.
C. Ake Violations
Smith argues that the trial court’s refusal to provide him
with independent expert assistance during mitigation violated
Ake v. Oklahoma, 470 U.S. 68 (1985), and that trial counsel’s
failure to request that an expert be provided violated
Strickland.
In Ake, the Supreme Court held that “when a defendant has
made a preliminary showing that his sanity at the time of the
offense is likely to be a significant factor at trial, the
Constitution requires that a State provide access to a
psychiatrist’s assistance on this issue, if the defendant cannot
otherwise afford one.” Ake, 470 U.S. at 74; id. at 83 (“We
therefore hold that when a defendant demonstrates to the trial
judge that his sanity at the time of the offense is to be a
significant factor at trial, the State must, at a minimum, assure
the defendant access to a competent psychiatrist who will
conduct an appropriate examination and assist in evaluation,
preparation, and presentation of the defense.”). The Ake
Court also stated that a similar conclusion was required “in
the context of a capital sentencing proceeding, when the state
presents psychiatric evidence of the defendant’s future
dangerousness.” Id. at 83. At the same time, the Ake
majority emphasized that its ruling was limited to cases in
48 Smith v. Mitchell No. 00-4030
which the defendant’s mental condition was “seriously in
question” upon the defendant’s “threshold showing.” Id. at
82. Furthermore, the Court held that the state was obliged
merely to provide one competent psychiatrist, and that it
could choose that psychiatrist. In other words, the
defendant’s right does not include the right to a psychiatrist
of his choice. Id. at 83 (“This is not to say, of course, that the
indigent defendant has a constitutional right to choose a
psychiatrist of his personal liking or to receive funds to hire
his own.”).
This Court has interpreted Ake as allowing psychiatric
assistance during the sentencing phase if 1) the defendant’s
sanity was a significant factor at trial, or 2) the state presents
at sentencing psychiatric evidence of future dangerousness.
Mason, 320 F.3d at 615-16; Thompson, 315 F.3d at 588-89;
Skaggs v. Parker, 235 F.3d 261, 272 (6th Cir. 2000); United
States v. Osaba, 213 F.3d 913, 917 (6th Cir. 2000);
Kordenbrock v. Scroggy, 919 F.2d 1091, 1120 (6th Cir. 1990)
(en banc opinion of Kennedy, J., with five Judges concurring
and one Judge concurring in the result).
Smith’s claim fails because Smith’s sanity was not a
significant issue during trial principally because Smith
withdrew his insanity defense. Smith initially raised an
insanity defense and, as a result, the trial court ordered three
psychiatric evaluations prior to trial. Each expert uniformly
concluded that Smith did not suffer from any mental illness.
Smith then withdrew his insanity defense. Thus, he does not
meet the first test under Skaggs. Smith also does not argue
that the prosecution presented evidence of future
dangerousness. He therefore did not have a right to any
psychiatric assistance at sentencing. Mason, 320 F.3d at 616
(holding that the petitioner did not have a clearly established
right to any psychiatric assistance at sentencing because the
State of Ohio did not present any psychiatric evidence of the
defendant’s future dangerousness).

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No. 00-4030 Smith v. Mitchell 49
10W e recognize that a panel of this Court recently held that “an
indigent criminal defendant’s constitutional right to psychiatric assistance
in preparing an insanity defense is not satisfied by court appointment of
a ‘neutral’ psychiatrist–i.e., one whose report is available to both the
defense and the prosecution.” Powell v. Collins, 328 F.3d 268 , 284 (6th
Cir. 2003). Ho wever, this “holding” is contrary to Ake and our own
precedent. See Ake, 470 U .S. at 83 (“That is not to say, of course, that the
indigent defendant has a constitutional right to choo se a psychiatrist of his
personal liking or to receive funds to hire his own. Our concern is that the
indigent defendant have access to a competent psychiatrist for the purpo se
we have discussed . . . . ”); Thompson, 315 F.3d at 588.
Furthermore, the panel’s “holding” ap pears to be dicta, because it
does not appear that the Powell petitioner’s sanity was actually at issue
during trial. Rather, it appears that only Po well’s competency to stand
trial and his mental condition were at issue. See Powell, 328 F.3d at 275
(“Defense counsel then filed a sugge stion of incom petency.”); id.
(“Finally, [Dr. Schmidtgoessling] testified that, although Petitioner has a
mild mental defect, his condition did not meet the legal definition of
insanity because that defect is not “of sufficient severity to cause him to
be incapable of knowing right from wrong or to restrain himself from
doing a certain act.”); id. (“The trial judge again denied the motion and
found Petitioner co mpe tent to stand trial.”); id. at 286 (“Dr. Tanley’s
after-the-fact post-conviction testimony does nothing to change the
harmlessness of the trial court’s error because the fact that one has
difficulty conforming his conduct to the requirements of the law ‘is not
enough to prove insanity;’ one must demonstrate the lack of capacity to
do so .”).
In any event, although relevant here (because this case is also pre-
AED PA), the Powell panel’s “holding” is of limited precedential value
because the habeas petition in that case was filed prior to the AED PA .
Under the AEDPA, the federal constitutional right must have be en clea rly
established at the time of the state court decision. As the panel’s opinion
acknowledges, Ake did no t hold that due process requires the State to
provide an independent psychiatrist, mere ly a competent one. T he pa nel’s
“holding” is an extension of Ake. See Powell, 328 F.3d at 284 (“T oda y,
Even so, the trial court appointed Schmidtgoessling during
the mitigation phase. Smith complains that he was entitled to
an independent psychiatrist, rather than a “friend of the court”
appointment. Ake does not entitle him to the psychiatrist of
his choosing, only a competent psychiatrist. Ake, 470 U.S. at
83; Mason, 320 F.3d at 616; Thompson, 315 F.3d at 588.10
50 Smith v. Mitchell No. 00-4030
we join those circuits that have held that an indigent criminal defendant’s
constitutional right to psychiatric assistance in prep aring an insanity
defense is not satisfied by court appointment of a “neutral” psychiatrist[.]”
(Em phasis added.)). State courts obviously cannot, therefore, violate the
AEDPA by holding that Ake merely requires a competent psychiatrist, and
not an indep endent one.
Smith’s ineffective assistance of counsel claim must be
rejected because, as he himself admits in his brief, his
attorneys requested an independent psychiatrist for the
mitigation phase, but the trial court denied the motion.
“Months prior to trial, the trial court denied a defense request
for an independent mental health professional at the penalty
phase.” Brief at 53. Thus, Smith’s trial counsel cannot be
ineffective for failing to request an independent psychiatrist.
Furthermore, “[w]e have never found counsel to be
ineffective solely because the expert used was on the State
payroll.” Martin v. Mitchell, 280 F.3d 594, 614 (6th Cir.),
cert. denied, 123 S. Ct. 515 (2002).
Smith also argues that the trial court erred in denying him
a drug and alcohol expert at the culpability phase. This
argument must likewise be rejected. Dr. Schmidtgoessling
testified to Smith’s long history of substance abuse and its
effects on him. Dr. Schmidtgoessling’s testimony was
sufficient for the Ohio Supreme Court to conclude that
Smith’s drug and alcohol abuse constituted a mitigation
factor. See State v. Smith, 574 N.E.2d at 520.
For all the reasons discussed in the preceding section,
Smith has not shown that he was prejudiced by counsel’s use
of Dr. Schmidtgoessling rather than some other hypothetical
expert. Trial counsel is frequently faulted for failing to obtain
the “right” expert. Unless habeas counsel can locate and
produce this mythic expert, there can be no cause or
prejudice. Such is the case here. As Dr. Schmidtgoessling
stated, Smith has a “personality disorder,” most certainly
caused by his unfortunate upbringing. But there is no proof
that he has organic brain damage or any other diagnosed

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No. 00-4030 Smith v. Mitchell 51
mental disease or defect. Indeed, at pretrial, three mental
health experts failed to detect any indicators of possible
organic brain damage. At post-conviction, three mental
health experts, hand-picked by habeas counsel, failed to come
up with a diagnosis of organic brain damage. It is therefore
not possible to fault trial counsel for accepting the conclusion
of three court-appointed mental health experts, and
strategically deciding to rely on Dr. Schmidtgoessling to
present an exhaustive presentation of the evidence she did
have after an extensive review of numerous records. In short,
Smith has not demonstrated that any of the alleged failings by
trial counsel prejudiced his right to a fundamentally fair
mitigation proceeding. Indeed, as every court that has
reviewed the issue has determined, although there was
certainly abundant mitigation evidence presented, it could not
outweigh the aggravating circumstances found in this brutal
crime.
We now turn to the remainder of Smith’s arguments.
Respondent argues that many of them have been procedurally
defaulted. Because all are without merit, we will briefly
dispose of them on those grounds, assuming without
deciding, solely for purposes of expediting somewhat the
analysis, that they have not been procedurally defaulted.
D. Ineffective Assistance of Appellate Counsel
Smith maintains that he received ineffective assistance of
appellate counsel. He alleges that Supreme Court counsel
was ineffective for filing the wrong pleading, failing to
consult with him regarding his case prior to the filing of his
appellate brief, and failing to raise meritorious issues.
This claim is without merit. Smith demonstrated absolutely
no prejudice from counsel’s misnaming of a pleading in the
Supreme Court, or its alleged failure to consult with him. As
to counsel’s purported failure to raise meritorious issues, we
agree with the district court’s analysis and incorporate it by
52 Smith v. Mitchell No. 00-4030
reference here. See Smith v. Anderson, 104 F. Supp.2d at
839-40.
E. Consideration of Nonstatutory Aggravating
Circumstances
Smith argues that the trial court erred by including
nonstatutory aggravating factors in their sentencing decisions.
Specifically, Smith contends that the trial court used the
nature and circumstances of the offense as a nonstatutory
aggravating circumstance although the Ohio statute requires
the nature and circumstances be considered as mitigating
factors. See Ohio Rev. Code § 2929.04(B). As the Ohio
Supreme Court concluded:
Smith’s argument lacks merit because the panel’s
opinion listed only the nature and circumstances of the
offense as a possible, but not relevant, mitigating factor.
Their opinion did not list any nonstatutory aggravating
circumstances. Their reference to the nature and
circumstances of the offense was proper, since “[u]nder
R.C. 2929.03(F), a trial court or three-judge panel may
rely upon and cite the nature and circumstances of the
offense as reasons supporting its finding that the
aggravating circumstances were sufficient to outweigh
the mitigating factors.” State v. Stumpf, (1987) . . . 512
N.E.2d 598, paragraph one of the syllabus.
State v. Smith, 574 N.E.2d at 518.
Upon review, we agree with the district court that the Ohio
Supreme Court “reasonably and correctly determined that the
trial court followed the dictates of state law in performing its
penalty-phase deliberations at trial.” Smith v. Anderson, 104
F.Supp.2d at 820. The states have wide latitude to structure
sentencing procedures. See Boyde v. California, 494 U.S.
370, 376 (1990). Thus, as the district court held, to the extent
that Smith states a constitutional claim cognizable on habeas,

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No. 00-4030 Smith v. Mitchell 53
it is foreclosed by well established Supreme Court precedent.
See Smith v. Anderson, 104 F. Supp.2d at 820.
Even if the Ohio Supreme Court’s analysis of Ohio law was
incorrect there is no constitutional violation. The United
States Supreme Court has held that once a defendant is found
eligible for death based on a constitutionally sufficient
narrowing circumstance, the sentencer’s discretion is virtually
unlimited. See Zant v. Stephens, 462 U.S. 862, 878-79
(1983). Furthermore, the Supreme Court has also held that
consideration of a non-statutory aggravating circumstance,
even if contrary to state law, does not violate the Constitution.
Barclay v. Florida, 463 U.S. 939 (1983). This claim is
without merit.
F. Imposition of Multiple Death Sentences
Smith contends that he has two aggravated murder
convictions and two death sentences for a single homicide, in
violation of double jeopardy. The trial court’s entry of
sentence imposes the death penalty as to Count 1 and as to
Count 2, and further provides that “[t]he sentences for Counts
1 and 2 will run concurrent." Among other guarantees, the
Double Jeopardy Clause seeks to protect against multiple
punishments for the same offense imposed in a single
proceeding, see North Carolina v. Pearce, 395 U.S. 711, 717
(1969); Jones v. Thomas, 491 U.S. 376, 386-87 (1989) (same;
citing Pearce). Even if there were error here, it cannot be
said that the error a “substantial and injurious effect” resulting
in “actual prejudice.” Brecht v. Abrahamson, 507 U.S. 619,
637 (1993); Lorraine, 291 F.3d at 444 (and cases cited
therein). “[T]he fact is that Smith will not be executed twice
for a single murder.” Warden’s Br. at 68-69.
G. Prosecutorial Misconduct
Smith presents four categories of prosecutorial misconduct:
1) racism pervading the charging decision, 2) prosecutorial
misconduct during the culpability phase, 3) prosecutorial
54 Smith v. Mitchell No. 00-4030
misconduct during the mitigation phase, including improper
introduction of lack of remorse, insanity standard, and
improper remarks, and 4) cumulative effect of prosecutorial
misconduct.
In Darden v. Wainwright, 477 U.S. 168, 181 (1986), the
Supreme Court noted that on habeas review, “the relevant
question is whether the prosecutor’s comments ‘so infected
the trial with unfairness as to make the conviction a denial of
due process.’” In addition this Court has stated that “[w]hen
a petitioner makes a claim of prosecutorial misconduct, ‘the
touchstone of due process analysis . . . is the fairness of the
trial, not the culpability of the prosecutor.” Hutchison, 303
F.3d at 750 (internal quotation omitted). In other words,
habeas relief is warranted if the prosecutor’s conduct was “‘so
egregious so as to render the entire trial fundamentally
unfair.” Id. (internal quotation omitted).
1. Racism Pervading the Charging Decision
Smith, who is African-American, argues that the ad hoc
policies adopted by the Hamilton County Prosecutor’s Office
reflect a racial bias in charging and prosecuting capital
offenses. According to Smith, based upon the 1980 census
data prepared by the U.S. Bureau of Census, the population of
Hamilton County was nineteen percent African-American in
1980. Further, since Ohio’s current death penalty law became
effective on October 29, 1981, roughly 62% of the death
sentences in Hamilton County have been imposed upon
African-Americans even though they consist of only 20% of
the county’s population. Smith contends that because the
administration of capital punishment in Ohio is infected with
racism, Ohio’s administration of capital punishment, as
applied to him, violates the Eighth and Fourteenth
Amendments.
The thrust of Smith’s argument is that the death penalty is
disproportionately applied to blacks, an argument we rejected
in McQueen v. Scroggy, 99 F.3d 1302, 1333 (6th Cir. 1996)

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No. 00-4030 Smith v. Mitchell 55
(holding that “the evidence offered by McQueen amounts to
the same kind of statistical studies that the Supreme Court
found insufficient in McClesky v. Kemp, 481 U.S. 279, 297
(1987)). Moreover, in Coleman v. Mitchell, 268 F.3d 417,
441-42 (6th Cir. 2001), we rejected a challenge to Ohio’s
capital sentencing based on statistics similar to those Smith
presents. In Coleman, the petitioner relied on a study finding
a discrepancy between the Ohio representation in the Ohio
population generally (9%), and on death row (49%). We held
that “[a]lthough the racial imbalance in the State of Ohio’s
capital sentencing system is glaringly extreme, it is no more
so than the statistical disparities considered and rejected by
the Supreme Court in McClesky as insufficient to
‘demonstrate a constitutionally significant risk of racial bias
affecting the . . . capital sentencing process.’” Coleman, 268
F.3d at 441-42 (quoting McClesky, 481 U.S. at 313).
Smith also argues prosecutorial intent. “[T]o prevail under
the Equal Protection Clause, [a defendant] must prove that the
decisionmakers in his case acted with discriminatory
purpose.” McClesky, 481 U.S. at 292. The district court
permitted discovery on this issue. In his deposition, the
former Hamilton County Prosecutor, Judge Ney, stated that
he met with supervisors in making the capital indictments and
that the voting group consisted of six to eight persons.
However, his former-first assistant indicated in a sworn
statement that only Ney and himself would make the decision.
Smith also points out that the Hamilton County Prosecutor’s
office has no written policies or procedures regarding the
indictment of death cases. Regarding Smith’s case in
particular, they had “no independent recollection of the
defendant, the facts or anything surrounding this case.” Ney
also stated that no records would be kept of the decision to
indict. Thus, according to Smith, Ney could not provide a
race-neutral explanation.
Smith’s claim must fail. Ney was not obliged to provide a
race- neutral explanation. Further, his inability to provide an
explanation supports the logic in McClesky that “[r]equiring
56 Smith v. Mitchell No. 00-4030
a prosecutor to rebut a study that analyzes the past conduct of
scores of prosecutors is quite different from requiring a
prosecutor to rebut a contemporaneous challenge to his own
acts.” McClesky, 481 U.S. at 296 n.17. Smith has not met his
burden of establishing a prima facie case of unconstitutional
conduct in his case. See id. at n.18. Indeed, the only
evidence he provides is Ney’s inability to remember his case
at all. This is not evidence of discriminatory intent.
2. Culpability Phase
Smith contends that during the guilt phase, the prosecutor
introduced victim-impact evidence, engaged in improper
argument, failed to disclose favorable impeachment evidence,
and failed to disclose that a police officer saw a blue car with
the back window missing.
a. Victim-Impact and Improper Argument
During his opening statement, the prosecutor introduced
testimony regarding the size of the victim’s family. The
victim’s daughter also testified to the extent of the victim’s
remaining family members. We refuse to hold that these two
comments, made to a three-judge panel, so infected the trial
as to render it fundamentally unfair.
Smith further objects to the prosecutor’s comment
describing the crime as “cold and calculating,” his statement
that Smith robbed the victim while blood spurted out her
neck, and his statement that Smith got up the next morning
and celebrated. We believe that these statements are
reasonable inferences drawn from the evidence presented at
trial. See Byrd v. Collins, 209 F.3d 486, 536 (6th Cir. 2000).
In any event, these statements, like the preceding ones, were
not so egregious as to render the trial fundamentally unfair.
See id.

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No. 00-4030 Smith v. Mitchell 57
b. Brady Claim
Smith contends that the prosecutor failed to disclose
favorable impeachment evidence as required by Brady v.
Maryland, 373 U.S. 83 (1963). Specifically, Smith claims
that the prosecutor failed to reveal that Brenda Henson, who
tended bar at the Race Inn, testified that she knew Smith as a
customer at the bar. Smith also claims that the prosecutor
failed to disclose an eyewitness Jane Echols, who had been
with Mary Bradford at the bar. Echols purportedly could not
identify Smith as the man who left the bar with the victim.
Smith also asserts that the prosecutor failed to disclose that a
police officer saw a blue car with the back window missing,
which was not Smith’s car, outside the victim’s residence.
Materiality is an essential element of a Brady claim. Brady,
373 U.S. at 87. We agree with the district court that:
Without deciding whether the State actually withheld
the evidence, this Court finds that the witness statements
alleged to have been withheld by the State are neither
exculpatory nor material. . . . First, with respect to the
identification of Petitioner by Ms. Henson, the fact that
she identified Petitioner as a patron of the bar, as well as
a possible perfume salesman are neither contradictory to
her testimony, nor material. There were no
inconsistencies in the identification of Petitioner and no
showing has been made by Petitioner that the standards
for materiality have been met. Second, the testimony of
Janice Echols was not material, as she could neither
include nor exclude Petitioner as the person who left the
bar with the victim. In sum, the allegedly withheld
“exculpatory” evidence is simply not compelling.
58 Smith v. Mitchell No. 00-4030
11Although the district court did not discuss the car, Smith offers no
argum ent as to why this evidence is material.
Smith v. Anderson, 104 F. Supp.2d at 824-25. This claim is
without merit.11
3. Mitigation Phase
Smith objects to the prosecutor’s statements during
mitigation that Smith lacked remorse and that he could not
meet the insanity standard and therefore no mitigating factors
were present. Finally, Smith complains that the prosecutor
urged the sentencer to consider non-statutory aggravating
circumstances. Again, these statements were made to a three-
judge panel, who are presumed to base their judgment on
relevant evidence. This argument lacks serious merit.
4. Cumulative Effect
Smith claims that the cumulative effect of prosecutorial
misconduct rendered his trial fundamentally unfair. Because
we find no prosecutorial misconduct as to any of the
individual claims, there can be no cumulative effect of
prosecutorial misconduct.
H. Jury Waiver
Smith waived his right to a jury trial, subsequently
withdrew the waiver, entered another waiver of a jury trial,
and finally requested to be tried by a three-judge panel
instead. Smith argues that the district court erred in
determining that his jury waiver was proper. His claim is
three-faceted. First, he claims that his waiver is not valid
because his attorney and the court represented that he could
not withdraw the waiver. Second, Smith contends that the
court did not adequately inform him of the consequences.
Third, Smith asserts that his attorneys did not adequately
research potential consequences of waiver.

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No. 00-4030 Smith v. Mitchell 59
As the district court held, this claim is utterly without merit.
The district court thoroughly and exhaustively addressed the
issue, and we incorporate by reference its holding at pages
795-96. See Smith, 104 F. Supp.2d at 795-96. See also Lott
v. Coyle, 261 F.3d 594,613-15 (6th Cir. 2001) (holding that
the petitioner’s waiver of right to jury trial was knowing,
intelligent and voluntary although the trial court conducted no
independent inquiry into the extent of the alleged discussions
between the petitioner and his counsel; finding no error on
facts of case).
I. Constitutionality of Ohio’s Death Penalty
Smith attacks the constitutionality of Ohio’s death penalty
on various grounds. First, he alleges that the Ohio scheme is
unconstitutional because “there is no legitimate, compelling
state interest in killing a person.” This global attack on the
death penalty as a violation of the Eighth Amendment is
foreclosed by Gregg v. Georgia, 428 U.S. 153, 168-87
(1976).
Next, Smith claims that Ohio’s sentencing procedures are
unreliable. He contends that the Ohio scheme gives the jury
too much discretion in determining the aggravating
circumstances. Specifically, he claims that the statute fails to
require the state to prove the absence of mitigating factors, as
opposed to requiring the defendant to prove the existence of
mitigating circumstances by a preponderance of the evidence,
and fails to define relevant terms such as “weighing” and
“mitigating.” The Constitution contains no such
requirements. See Buchanan v. Angelone, 522 U.S. 269, 275-
76 (1998) (holding that the Eighth Amendment does not
require the jury be instructed on the concept of mitigating
evidence or on particular statutory mitigating factors, and that
states are free to structure the jury’s consideration of
mitigation so long as it does not preclude the jury from giving
effect to it). Furthermore, this Court has upheld Ohio’s
statutory scheme for weighing aggravating circumstances
60 Smith v. Mitchell No. 00-4030
against mitigating factors. See Buell v. Mitchell, 274 F.3d
337, 367-68 (6th Cir. 2001).
Smith argues that the Ohio death penalty statutes are
unconstitutional “because they require proof of aggravating
circumstances in the trial phase of a bifurcated proceeding.”
We rejected this argument in Coleman, 268 F.3d at 443
(holding that the Ohio scheme, by requiring proof of
aggravating circumstances at the guilt, rather than penalty
phase, is consistent with Lowenfield v. Phelps, 484 U.S. 231
(1988)). See Lowenfield, 484 U.S. at 241-46; Buell, 274 F.3d
at 269-70. Smith’s next argument is that the Ohio statute is
unconstitutional because it permits duplication between the
aggravating circumstances and an element of the underlying
crime. This argument is also inconsistent with Lowenfield
and has been rejected by this Court in Buell. See Lowenfield,
484 U.S. at 246; Buell, 274 F.3d at 269-70.
Smith contends that the Ohio statute fails to provide for an
adequate proportionality review by the appellate courts.
However, comparative proportionality review is not
constitutionally required, see Pulley v. Harris, 465 U.S. 37,
50 (1984), and this argument has already been rejected by this
Court. Buell, 274 F.3d at 368-69; Byrd, 209 F.3d at 539; Coe
v. Bell, 161 F.3d 320, 351-52 (6th Cir. 1998). Smith also
alleges that the electric chair violates the Eighth Amendment.
We rejected this argument too in Buell. See Buell, 274 F.3d
at 370.
Finally, as a general matter, this Court has upheld the
constitutionality of the Ohio death penalty scheme. See Buell,
274 F.3d at 367-70; Byrd, 209 F.3d at 539.
J. Grand Jury Discrimination
Smith alleged that his constitutional rights were violated
because African-Americans were under represented in the
pool from which his grand jury was selected. The district
court held that this claim was procedurally defaulted, because

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No. 00-4030 Smith v. Mitchell 61
Smith failed to present this claim in any state court
proceeding. The district court ruled in that alternative that
Smith had failed to substantiate his claim under the test set
forth in Jefferson v. Morgan, 962 F.2d 1185 (6th Cir. 1992).
See Smith, 104 F. Supp.2d at 849.
Smith did allege in a motion to alter or amend judgment
that the grand jury foreman in his case was selected in a
discriminatory fashion. In support, he offered the results of
a statistical study, which he claimed demonstrated racial
discrimination in the selection of grand jury forepersons in
Hamilton County. He also alleged that he had actually raised
his twenty-fourth ground in his State post-conviction petition
as his thirtieth claim. The district court rejected Smith’s new
allegation, holding that it was never presented in state court,
and was procedurally defaulted. The court also rejected the
claim on the merits. We agree with the district court that this
claim is procedurally defaulted under Ohio’s doctrine of res
judicata as stated by the court at 104 F. Supp.2d at 849-50,
and its amended order denying Smith’s motion to alter or
amend judgment, dated July 27, 2000. Furthermore, we will
not overlook the default here, because as the district court
held, the State has never been afforded an opportunity to rebut
the claim and belated proof.
IV. Conclusion
Having completed our responsibility “to ensure that
Petitioner’s conviction and death sentence comport with the
requirements of our Constitution,” Byrd, 209 F.3d at 540, we
hereby AFFIRM the judgment of the district court denying
the petition for writ of habeas corpus.
62 Smith v. Mitchell No. 00-4030
_____________________________________________
CONCURRING IN PART, DISSENTING IN PART
_____________________________________________
R. GUY COLE, JR., Circuit Judge, concurring in part and
dissenting in part. I concur only in the result reached by the
majority denying each of the asserted grounds for habeas
relief, with the exception of Smith’s claim that the trial
court’s refusal to provide him with a defense psychiatric
expert, as opposed to a neutral psychiatric expert, violated
Ake v. Oklahoma, 470 U.S. 68 (1985). Because I believe that
the trial court failed to provide Smith with a mental health
expert for the defense as required by Ake, and as interpreted
by this Court in Powell v. Collins, 328 F.3d 268 (6th Cir.
2003), I respectfully dissent on this issue.
I believe that there are three critical considerations in
assessing Smith’s argument that he should be granted a writ
of habeas corpus because the state trial court violated Ake, by
failing to provide him with a psychiatrist to function as a
defense expert. First, we must assess whether Smith was
entitled to expert psychiatric assistance under Ake, given that
he withdrew his insanity plea prior to trial. Second, if Ake
guarantees Smith expert psychiatric assistance, we must
consider whether his right to psychiatric assistance is satisfied
by the appointment of a neutral “friend-of-the-court”
psychiatrist. Third, if the neutral psychiatrist does not satisfy
Ake’s command, we must determine whether the failure to
provide Smith with a defense expert psychiatrist was harmless
error.
I.
In Ake, the Supreme Court held that “when a defendant has
made a preliminary showing that his sanity at the time of the
offense is likely to be a significant factor at trial, the
Constitution requires that a state provide access to a
psychiatrist’s assistance on this issue, if the defendant cannot

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No. 00-4030 Smith v. Mitchell 63
otherwise afford one.” 470 U.S. at 74. The Court went on to
state that “when a defendant demonstrates to the trial judge
that his sanity at the time of the offense is to be a significant
factor at trial, the State must, at a minimum, assure the
defendant access to a competent psychiatrist who will conduct
an appropriate examination and assist in evaluation,
preparation, and presentation of the defense.” Id. at 83.
Prior to our opinion in Powell, we noted that Ake requires
that a defendant be provided with psychiatric assistance
during the sentencing phase if the defendant’s sanity is a
significant factor at trial, or if the state presents psychiatric
evidence of future dangerousness. Mason v. Mitchell, 320
F.3d 604, 615-16 (6th Cir. 2003); Skaggs v. Parker, 235 F.3d
261, 272 (6th Cir. 2000); United States v. Osaba, 213 F.3d
913, 917 (6th Cir. 2000). We had also recognized, however,
the possibility that Ake suggests that a defendant is entitled to
a competent defense expert. Skaggs, 235 F.3d at 272-73.
We must first address whether Ake’s protections apply to
Smith, given that he withdrew his insanity plea prior to trial.
I believe that Ake still applies. A number of Circuits,
including our own, have interpreted Ake to require expert
assistance beyond psychiatric assistance in conjunction with
an insanity plea. In Terry v. Rees, 985 F.2d 283 (6th Cir.
1993), this Court noted that Ake stands for the proposition
that criminal trials are fundamentally unfair “if a state
proceeds against an indigent defendant without making
certain that he has access to the raw materials integral to
building a defense.” Terry, 985 F.2d at 284. Accordingly, we
held that the trial court violated Ake in denying the
defendant’s request for an independent pathologist in order to
challenge the government’s position as to the victim’s cause
of death. Id. Similarly, the Eighth Circuit has held that the
rule of Ake applies when the expert in question is not a
psychiatrist, finding “no principled way to distinguish
between psychiatric and nonpsychiatric experts.” Little v.
Armontrout, 835 F.2d 1240, 1243 (8th Cir. 1987) (en banc).
The Eighth Circuit has also held that Ake required the
64 Smith v. Mitchell No. 00-4030
appointment of a psychiatrist when the defendant had not
pleaded insanity, but where his mental retardation was his
strongest argument in mitigation for sentencing purposes.
Starr v. Lockhart, 23 F.3d 1280, 1288 (8th Cir. 1994).
Many courts have interpreted Ake’s command – to provide
expert psychiatric assistance when a defendant’s sanity is a
significant factor – to mean more than strictly whether or not
the defendant has pleaded not guilty by reason of insanity.
Rather, Ake has regularly been interpreted to require expert
psychiatric assistance any time the defendant’s “mental
condition” is shown to be a significant factor at trial. In other
words, the Supreme Court’s use of the term “sanity” in Ake
was not restricted to occasions when defendants have chosen
to plead insanity, but rather, encompassed all significant
issues concerning a defendant’s mental condition. Indeed, in
Ake itself, the Supreme Court stated that, “when the State has
made the defendant’s mental condition relevant to his
criminal culpability and to the punishment he might suffer,
the assistance of a psychiatrist may well be crucial to the
defendant’s ability to marshal his defense.” 470 U.S. at 80
(emphasis added). Many other courts have recognized this
reading of Ake as well. See Pizzuto v. Arave, 280 F.3d 949,
963 (9th Cir. 2002) (noting that in Ake, the Supreme Court
recognized an indigent defendant’s right to an independent
expert when the state makes mental condition relevant);
Walker v. Attorney Gen. of Okla., 167 F.3d 1339, 1348 (10th
Cir. 1999) (stating that the Ake inquiry is whether evidence is
presented to the trial court suggesting that the defendant’s
mental condition is likely to be a significant factor); Chaney
v. Stewart, 156 F.3d 921, 925 (9th Cir. 1999) (“Ake held that
a state must provide indigent criminal defendants with expert
psychiatric assistance if the defendant’s mental condition is
a significant factor at trial.”); United States v. Roman, 121
F.3d 136, 144 (3d Cir. 1997) (“In Ake, the Supreme Court
held that, when a capital defendant demonstrates that his
mental condition is a significant factor at his sentencing
phase, he is ‘entitled to the assistance of a psychiatrist.’”).

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No. 00-4030 Smith v. Mitchell 65
1It is noteworthy that the district court’s tho rough and articulate
opinion in this case was issued before this Court issued its decision in
Powell. Thus, the district co urt did not have the b enefit of considering the
precedential value of Powell when ruling on Smith’s petition.
Thus, it was apparent, even before our decision in Powell,
that Ake’s protection extended beyond expert psychiatric
assistance for insanity pleas. However, if any doubt existed
prior to Powell, such confusion has now been addressed.1 As
the majority notes, our decision in Powell gives no indication
that the petitioner’s sanity was actually at issue during the
trial. Rather, it appears that the petitioner only raised issues
concerning his competence to stand trial and his “mental
condition.” Nevertheless, we held that the failure to provide
the petitioner with a psychiatric expert to aid in his defense
was a violation of Ake. Powell, 328 F.3d at 283-84.
Accordingly, it is clear that Smith did not remove himself
from the scope of Ake’s protections by withdrawing his
insanity plea. Because Smith’s mental condition was indeed
a significant factor in the state court proceedings, he was
entitled to expert psychiatric assistance.
II.
Because I believe that Smith’s mental condition entitled
him to expert psychiatric assistance under Ake, the next
question is whether Smith’s right to psychiatric assistance
was satisfied by the appointment of a neutral psychiatrist.
Prior to Powell, a number of our sister circuits had held that
court appointment of a neutral psychiatrist does not satisfy
Ake. See Starr, 23 F.3d at 1289-91; Smith v. McCormick,
914 F.2d 1153, 1157 (9th Cir. 1990) (holding that the right to
psychiatric assistance recognized by Ake “does not mean the
right to place the report of a ‘neutral’ psychiatrist before the
court; rather it means the right to use the services of a
psychiatrist in whatever capacity defense counsel deems
appropriate”); United States v. Sloan, 776 F.2d 926, 929 (10th
Cir. 1985) (“The essential benefit of having an expert in the
66 Smith v. Mitchell No. 00-4030
first place is denied the defendant when the services of the
doctor must be shared with the prosecution.”) In Powell, we
explicitly adopted this position. 328 F.3d at 284. Thus,
because Smith was only provided with a court-appointed
neutral expert, Powell requires that we find the state court to
have violated Ake in the present case as well.
I am not persuaded by the argument that we may ignore
Powell because its holding is contrary to Ake and Sixth
Circuit precedent. Ake did, indeed, state that an indigent
defendant does not possess a constitutional right to “choose
a psychiatrist of his personal liking.” 470 U.S. at 83.
However, I do not read this passage from Ake to imply that a
defendant is not entitled to a “defense expert,” as opposed to
a neutral expert. This passage from Ake, I believe, is properly
read to state that, of the experts available to testify as a
defense expert, a defendant is not free to choose the expert “of
his personal liking,” just as an indigent defendant is not
entitled to the services of the defense attorney of his choice.
In fact, the Ake Court itself stated that the right to psychiatric
assistance must assure the defendant “access to a competent
psychiatrist who will . . . assist in evaluation, preparation, and
presentation of the defense.” Id. I do not believe that the role
of a court-appointed neutral psychiatrist properly meets this
criterion. While Ake does not require that a defendant have
access to the psychiatrist of his choice, it does require access
to a psychiatrist who will assist in the defense. A court-
appointed neutral expert is not a defense expert.
Thus, I believe that the holding of Powell is not in conflict
with Ake, nor is it in conflict with any of the cases in our
circuit that cite Ake for the proposition that a defendant is not
entitled to the assistance of the psychiatrist of his choice.
Because I would find that the denial of a defense psychiatric
expert violated Smith’s rights under Ake and Powell, I now
turn to the question of whether this was harmless error.

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No. 00-4030 Smith v. Mitchell 67
III.
In Powell, we found that the trial court’s denial of an Ake
expert was not harmless error because “Dr. Schmidtgoessling
was not equipped to conduct the appropriate examination
required for her to set forth all of the facts or information the
jury should have considered at mitigation.” 328 F.3d at 287.
Similarly, in the present case, Dr. Schmidtgoessling
acknowledged that she functioned in the case as a friend of
the court, rather than as an advocate for Smith. She testified
that, as a member of the defense side, in mitigation, her role
would be to look for factors to try to explain Smith’s behavior
and save his life. In contrast, however, as a friend of the
court, her role was simply “to perform psychological or
psychiatric evaluations that the attorneys would then decide
how does that fit into their defense strategy. We don’t start
out looking for things that are mitigating . . . .” The majority
opinion correctly notes that Dr. Schmidtgoessling’s testimony
was presented at mitigation; it, however, fails to take note of
the legal consequence of Dr. Schmidtgloessing’s appearance
as a neutral expert, rather than a defense expert. See ante, at
n.9 From her own admission it is clear that Dr.
Schmidtgloessing saw her role as a “friend of the court.”
This, I contend, fails to meet the requirement established in
Ake.
We found in Powell that the testimony of a defense expert
may have provided facts and information to consider at
mitigation that may have led to a different sentence for the
defendant. Id. The facts of this case lead me to the same
conclusion. Smith endured an exceedingly difficult
childhood. He spent time living with abusive foster parents,
was diagnosed with diffuse cerebral dysfunction, and spent
time in a juvenile psychiatric facility where, among other
things, he received electric shock therapy. Given this history,
the lack of expert assistance to which Smith was entitled
under Ake “had such a substantial and injurious effect or
influence in determining” the sentencing decision, Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993), that I have “grave
68 Smith v. Mitchell No. 00-4030
doubt” about the harmlessness of the error, O’Neal v.
McAninch, 513 U.S. 432, 437 (1995). The defense
appropriately concluded that Smith’s best argument at
mitigation would be to focus on his mental condition.
However, without the aid of an expert to testify on Smith’s
behalf, the defense was unable to properly put this argument
before the sentencing court. Accordingly, I would grant
Smith’s request for a writ of habeas corpus based on the
state’s failure to provide him with a defense psychiatric expert
in mitigation.

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