Johnson v. Mitchell ( 2009 )


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  •                       RECOMMENDED FOR FULL-TEXT PUBLICATION
    Pursuant to Sixth Circuit Rule 206
    File Name: 09a0384p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    _________________
    X
    -
    GARY VAN JOHNSON,
    -
    Petitioner-Appellant,
    -
    -
    No. 00-3350
    v.
    ,
    >
    -
    Respondent-Appellee. -
    BETTY MITCHELL, Warden,
    N
    Appeal from the United States District Court
    for the Northern District of Ohio at Cleveland.
    No. 97-00858—Donald C. Nugent, District Judge.
    Argued: December 6, 2007
    Decided and Filed: November 4, 2009
    Before: DAUGHTREY, MOORE, and GILMAN, Circuit Judges.
    _________________
    COUNSEL
    ARGUED: Timothy F. Sweeney, LAW OFFICE OF TIMOTHY FARRELL SWEENEY,
    Cleveland, Ohio, for Appellant. Charles L. Wille, OFFICE OF THE OHIO ATTORNEY
    GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Timothy F. Sweeney, LAW
    OFFICE OF TIMOTHY FARRELL SWEENEY, Cleveland, Ohio, Michael J. Benza, LAW
    OFFICE OF MICHAEL J. BENZA, Chagrin Falls, Ohio, for Appellant. Charles L. Wille,
    OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
    _________________
    OPINION
    _________________
    MARTHA CRAIG DAUGHTREY, Circuit Judge. Following his convictions in
    Ohio state court for aggravated robbery and aggravated murder, with specifications, Gary
    Van Johnson was sentenced to death. After exhausting his direct appeals, as well as avenues
    for state collateral relief, Johnson petitioned for habeas relief in federal court under the
    provisions of 28 U.S.C. § 2254. Denied the relief he desired, the petitioner now appeals to
    this court and raises numerous claims of constitutional error, including arguments involving
    1
    No. 00-3350          Johnson v. Mitchell                                                  Page 2
    alleged (1) insufficiency of the convicting evidence, (2) improper withholding of
    impeachment evidence by the prosecution, (3) prosecutorial misconduct, (4) failure of the
    trial judge to declare a mistrial, (5) ineffective assistance of counsel at the guilt phase of the
    trial and (6) at the penalty phase of the trial, and (7) improper failure of the district judge
    to recuse himself from the habeas proceedings. Although we find no merit to the other issues
    raised on appeal for the reasons expressed below, we conclude that Johnson’s trial attorney
    did not provide his client with effective assistance of counsel during the penalty phase of the
    trial. As a result, we find it necessary to reverse the district court’s judgment and remand
    the case for further proceedings.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    In addressing the petitioner’s conviction in Ohio state court, the Supreme Court of
    the State of Ohio summarized the relevant facts and the initial procedural history of the case
    as follows:
    The appellant, Gary Johnson, was indicted on May 4, 1983, for aggravated
    murder and aggravated robbery. The aggravated murder charge included
    specifications that the appellant was committing or attempting to commit or
    fleeing immediately after committing or attempting to commit aggravated
    robbery, and that the defendant had a firearm on or about his person or under
    his control while committing the offenses charged within the indictment.
    The case went to trial for the first time on October 3, 1983. Appellant was
    convicted of both charges and at the conclusion of the penalty phase the jury
    recommended the death penalty. The trial court adopted the jury's
    recommendation and imposed the death sentence.
    However, the majority of this court held that the appellant was denied his
    constitutional right to effective assistance of counsel because of defense
    counsel's failure to investigate appellant's background for the purpose of
    presenting evidence in mitigation at the penalty phase of the trial, and
    counsel's failure to object to the inclusion in the indictment of the firearm
    specification and its submission to the jury at both the guilt and penalty
    phases of the proceedings. Also, we found that the trial court erred in
    denying the appellant's request for a continuance, based on newly discovered
    evidence at the guilt phase of the proceedings. Therefore, appellant's
    convictions were reversed, his sentence was vacated and the cause was
    remanded for a new trial. State v. Johnson [(Johnson I), 
    494 N.E.2d 1061
            (Ohio 1986)].
    The case was retried beginning November 12, 1986, and the following
    evidence was adduced.
    No. 00-3350       Johnson v. Mitchell                                                   Page 3
    Steven Graster testified that his wife, Eunice Graster (the victim) had been
    employed as a desk clerk at the Reno Hotel in Cleveland since the end of
    1982. The Reno Hotel, where the victim was murdered, was primarily used
    for prostitution and other sexual liaisons. On Tuesday, April 26, 1983,
    Eunice was working the 7:00 a.m. to 3:30 p.m. shift as the clerk at the Reno
    Hotel. There were five couples in the hotel during her shift; however,
    registration records showed that four couples had checked out, leaving only
    one of these five couples, Mr. and Mrs. Sid Arnold, in Room 23. Eunice's
    husband, Steven, testified that he arrived at the hotel with their two children
    at approximately 9:25 to 9:30 to pick up a W.I.C. coupon book from Eunice.
    (W.I.C., Women, Infants and Children, is a federally subsidized basic
    nutrition program.) He had a 10:00 a.m. appointment to take their two
    children to the W.I.C. clinic at Miles and Broadway to participate in the
    nutrition program. Apparently, Eunice had the program booklet at work and
    Steven's purpose in visiting her was to obtain the booklet from his wife.
    Steven remained at the hotel for approximately ten or fifteen minutes.
    While Steven was talking to his wife, he noticed the appellant come into the
    north doorway to the main entrance of the hotel. In order to allow entry into
    the hotel, Eunice had to “buzz in” the appellant through a second and a third
    set of doors. Appellant proceeded to a room used as an employees'
    lunchroom. Shortly after this, Steven left to keep his 10:00 appointment at
    the W.I.C. clinic. The records of the W.I.C. clinic show that Steven was on
    time for his appointment.
    Upon arriving at the W.I.C. clinic with his two children, Steven believed he
    needed his wife's welfare card, so he called the hotel twice but received no
    answer. He then left the clinic at 10:38 a.m. When Steven got home he
    phoned the hotel for the third time and reached Ganelle Johnson, the hotel
    manager, who notified Steven that she did not know where Eunice was.
    Steven then gathered up his two children and drove back to the Reno Hotel.
    When he arrived he learned that his wife was dead. Sergeant William
    Manocchio observed Steven become hysterical and punch a hole in the wall
    upon finding out about his wife.
    Appellant's aunt, Vera Lundy, was a maid at the Reno Hotel. On April 26,
    her shift began at 10:00 a.m. Upon arriving early, she went to a nearby
    restaurant for coffee. Lundy testified that a couple of minutes before 10:00
    she left the restaurant and headed for the hotel. At the north entrance to the
    hotel she encountered a couple who told her that they had been trying to get
    into the hotel for fifteen minutes. Lundy rang the doorbell and pounded on
    the door, but received no response. She went to the back of the hotel and
    looked through a window, but observed nothing. When she returned to the
    front of the hotel she saw that one of the double doors was open and
    appellant was walking down the front steps. Lundy testified that she noticed
    that appellant had a brown envelope resembling those used by the hotel for
    cash receipts. However, during cross-examination, she admitted that she had
    No. 00-3350       Johnson v. Mitchell                                                    Page 4
    not remembered, when asked prior to trial, whether appellant had anything
    in his possession.
    According to Lundy, she asked the appellant to go into the hotel with her to
    find Eunice, and the appellant replied that “he wasn't going back into the
    hotel, Dee [appellant's father, Robert Johnson, owner of the hotel] wasn't
    going to blame him for anything that happened in the hotel.”
    Two Cleveland vice officers, Detectives William Reiber and Edward Kelley,
    who had been watching the hotel, corroborated Lundy's story by testifying
    that they saw the appellant converse with Lundy and also noticed a yellow
    envelope in his possession.
    Detective Sergeant John McKibben testified that appellant told him that he
    had not been on the front porch at all and had no conversation with Lundy.
    However, later appellant testified that he responded to Lundy's request to
    come inside by saying, “No, you just told me yesterday Ganelle [appellant's
    sister and the hotel manager] said not to hang around Eunice's shift. You
    want me to get in some trouble.” John Williams, who was blacktopping the
    hotel's parking lot that day, overheard the conversation between Lundy and
    the appellant, and corroborated the appellant's version.
    Around 10:00 a.m., Lundy called Ganelle. According to Ganelle, Lundy was
    nervous, upset, and close to tears. Lundy told Ganelle she could not get into
    the hotel and could not find Eunice. Ganelle instructed Lundy to go back and
    ring the doorbell again and she would phone the hotel switchboard. Ganelle
    then phoned the hotel, hoping to reach Eunice, but received no answer.
    Meanwhile, Lundy summoned the Cleveland police, and called Ganelle
    again. Ganelle characterized Lundy as “hysterical” at this point. During the
    second conversation, according to Ganelle, Lundy said: “I saw Gary [the
    appellant] coming out of the hotel.” On cross-examination, however, Lundy
    conceded that she had testified in the first trial in 1983 that she had not told
    Ganelle about seeing appellant coming out of the hotel.
    When Ganelle arrived at the hotel, she discovered that the door to the office
    which was usually locked had been forced open, splintering the door jamb.
    Upon entering the room, she found that all the receipts she had put on a desk
    the day before, including those from the weekend, were gone. She estimated
    the amount of money missing from the cash box was between $500 and
    $900. She also discovered that the .38 caliber Smith & Wesson revolver,
    usually kept in a top drawer of the desk where the money was kept, was
    missing.
    Cleveland police officer Fabian Henderson arrived at the hotel at
    approximately 10:48 a.m. Officer Henderson and his partner searched for
    Eunice and eventually found her body in the basement.
    While the police were conducting their search, the two customers who had
    been occupying a room at this time left the premises. Ganelle testified that
    No. 00-3350       Johnson v. Mitchell                                                  Page 5
    they were regular customers, identified by their registration card with the
    fictitious names of “Mr. and Mrs. Sid Arnold.”
    An autopsy performed on Eunice showed she had been shot five times and
    internally bled to death. It was also determined that she was shot with either
    a .38 or .357 caliber revolver.
    At approximately 10:15 a.m. that day, appellant went to the apartment of
    Bobby and Joyce Carter, which was located above Scotty's Mid-Town City
    Tavern. He stayed until 8:00 p.m., drinking with the Carters. Joyce testified
    that appellant had a roll of money an inch thick although he had borrowed
    money on the previous two days to pay for his room at the Lancer Inn. Joyce
    went down to the tavern several times to buy drinks, with appellant paying
    for some or all of them, until Bobby suggested that it would be cheaper to
    buy a bottle at the liquor store. Appellant gave Joyce $20 to buy liquor and
    to pick up appellant's suit at a nearby dry-cleaning establishment.
    After returning from the errand, Joyce went downstairs to the tavern to make
    a call on the tavern's pay phone. The owner told her that there had been a
    killing at the Reno Hotel, whereupon Joyce called Ganelle to find out who
    had been killed. During the conversation, Joyce mentioned that appellant
    was in her apartment. Upon returning to her apartment, Joyce told appellant
    that she had told Ganelle where appellant was, and appellant responded that
    he “wished I [Joyce] hadn't did it.”
    Appellant testified on his own behalf at trial. He admitted going through the
    north door when he entered the hotel, but denied that Eunice buzzed him in
    any farther than the first set of doors. He claimed his reason for coming to
    the hotel was to borrow his sister's, Robin Johnson's, car. Further, he
    testified that he saw Steven assaulting Eunice, “pushing her head back and
    forth * * * up against the corner of the office door.” Appellant asked where
    his sister Robin was; upon being told that she was not there, he left.
    He then testified that he walked to the Playland Bar at 55th and Euclid, then
    to 65th Street, then turned back and went to King's Bar at 55th and Cedar,
    and from there walked along Cedar Avenue and turned onto 40th Street,
    going past the Reno Hotel. At this point, appellant claimed, Lundy called to
    him and asked him to come into the hotel. From the hotel, he went to the
    Carters' apartment at 77th and Cedar.
    Appellant had given a similar account of his movements to Cleveland police
    detectives, except that he claimed to have gone from the Reno to the Sterling
    Hotel at East 40th and Prospect Streets before going to the Carters’
    residence; he did not mention going to 65th Street.
    Finally, appellant denied any part in the murder or robbery of Eunice
    Graster.
    No. 00-3350         Johnson v. Mitchell                                                  Page 6
    On rebuttal, Ganelle testified about an incident in 1978 when her parents
    went on vacation and left her in charge of the hotel. Eight hours after her
    parents left for vacation, appellant threatened and then assaulted Ganelle in
    order to get the keys to the hotel's cash box. Thereafter, when her parents
    returned and were informed of the incident, the appellant was told he could
    not have anything to do with the business end of the hotel. Also, Ganelle
    testified that, during the investigation of the crime, appellant wanted her to
    “get close” to Detective Moore to find out what progress the police were
    making in the case.
    After this second trial appellant was once again convicted and sentenced to
    death. The court of appeals, having performed its statutory independent
    analysis of the record and the proportionality of the sentence, affirmed the
    sentence in all particulars.
    State v. Johnson (Johnson II), 
    545 N.E.2d 636
    , 637-40 (Ohio 1989).
    The Ohio Supreme Court affirmed Johnson’s conviction and his death sentence, see
    
    id. at 640,
    and the United States Supreme Court denied his petition for certiorari. See
    Johnson v. Ohio, 
    494 U.S. 1039
    (1990). After collateral proceedings in state court also
    proved unsuccessful, Johnson filed a petition for a writ of habeas corpus in federal district
    court, raising 22 claims and also requesting that the district judge recuse himself from the
    matter because he had previously served in the Cleveland prosecutor’s office. The court
    denied relief and concluded that Johnson was not entitled to a certificate of appealability
    because he had failed to make a substantial showing of the denial of a constitutional right.
    See 28 U.S.C. § 2253(c)(2). However, we subsequently entered an order authorizing an
    appeal on the following issues:
    Whether Johnson’s counsel was ineffective in not timely objecting when the
    prosecutor, in his guilt-phase closing, argued that the crime had been
    committed by a left-handed person and that Johnson was left-handed;
    Whether the prosecutor, in his guilt-phase closing, committed misconduct
    when he argued that the crime had been committed by a left-handed person
    and that Johnson was left-handed;
    Whether Johnson’s trial counsel was ineffective in the penalty phase by
    conducting an inadequate investigation and failing to present certain
    mitigating evidence;
    Whether the prosecutor committed misconduct by withholding the police
    statement of Vera Lundy, in violation of Brady v. Maryland, 
    373 U.S. 83
            (1963), and its progeny;
    No. 00-3350         Johnson v. Mitchell                                                    Page 7
    Whether counsel was ineffective at the penalty phase of trial in presenting
    a wholly inadequate closing argument;
    Whether the trial court erred in denying a mistrial after the prosecutor, in his
    guilt-phase closing, argued that the crime had been committed by a left-
    handed person and that Johnson was left-handed;
    Whether there was sufficient evidence to support the convictions;
    Whether the aggravating circumstance was supported by constitutionally
    sufficient evidence; and
    Whether the district court judge erred in denying the motion to recuse
    himself.
    II. DISCUSSION
    Johnson’s petition is subject to review under the Antiterrorism and Effective Death
    Penalty Act of 1996 (AEDPA), Pub.L.No. 104-132, 110 Stat. 1214 (1996), under which a
    federal court may not grant the writ unless the state court adjudication on the merits either:
    (1) resulted in a decision that was contrary to, or involved an unreasonable
    application of, clearly established Federal law, as determined by the
    Supreme Court of the United States; or
    (2) resulted in a decision that was based upon an unreasonable determination
    of the facts in light of the evidence presented in the State court proceeding.
    28 U.S.C. § 2254(d). As explained by the United States Supreme Court in Williams v.
    Taylor, 
    529 U.S. 362
    , 412-13 (2000):
    Under the “contrary to” clause, a federal habeas court may grant the writ if
    the state court arrives at a conclusion opposite to that reached by this Court
    on a question of law or if the state court decides a case differently than this
    Court has on a set of materially indistinguishable facts. Under the
    “unreasonable application” clause, a federal habeas court may grant the writ
    if the state court identifies the correct governing legal principle from this
    Court’s decisions but unreasonably applies that principle to the facts of the
    prisoner’s case.
    In deciding whether a state court ruling involved an “unreasonable application” of federal
    law, a habeas court does not focus merely upon whether the state court decision was
    erroneous or incorrect; rather, a federal court may issue a writ of habeas corpus only if the
    state court’s application of clearly-established federal law was objectively unreasonable. See
    
    id. at 409-11.
    Furthermore, “[t]his court reviews a district court’s legal conclusions in a
    No. 00-3350          Johnson v. Mitchell                                               Page 8
    habeas proceeding de novo and its factual findings for clear error.” Greer v. Mitchell, 
    264 F.3d 663
    , 671 (6th Cir. 2001) (citing Lucas v. O’Dea, 
    179 F.3d 412
    , 416 (6th Cir. 1999)).
    1. Sufficiency of the Convicting Evidence
    In analyzing a challenge to the sufficiency of the convicting evidence, we must
    determine whether, viewing the trial testimony and exhibits in the light most favorable to the
    prosecution, any rational trier of fact could have found the essential elements of the crime
    beyond a reasonable doubt. See Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979). In doing so,
    moreover, we do not reweigh the evidence, re-evaluate the credibility of witnesses, or
    substitute our judgment for that of the jury. See United States v. Hilliard, 
    11 F.3d 618
    , 620
    (6th Cir. 1993).
    Nevertheless, Johnson urges us to do exactly what is prohibited: to reweigh the
    evidence adduced at trial; to determine that certain witnesses should not be deemed credible;
    and to substitute our judgment for that of the trial court. For example, the petitioner
    contends that the circumstantial evidence offered at trial should have been accorded less
    weight by the jury than the absence of certain “hard” evidence. Johnson emphasizes that the
    prosecution offered no physical evidence connecting him to the crime: no fingerprints or
    footprints that belonged to Johnson in the dusty basement where the victim was murdered,
    nor any dust, dirt, blood, or gunshot residue on the petitioner’s clothing or on the petitioner
    himself, again, despite the fact that the murder occurred in a dusty environment and involved
    multiple discharges of a firearm in close quarters. Additionally, the prosecution produced
    at trial no eyewitness to the shooting, no confession by the petitioner, no murder weapon,
    and no testimony that Johnson had ever previously robbed or shot someone. Although,
    individually and collectively, those arguments might be persuasive if made to a jury, we are
    now held to a higher standard, i.e., not whether we would find the evidence sufficient to
    convict the petitioner of the charged offenses, but whether the state court was unreasonable
    in concluding that a rational trier of fact could so find.
    A conviction for aggravated murder under section 2903.01(B) of the Ohio Revised
    Code requires, in relevant part, that the jury find that the defendant purposely caused the
    death of another individual “while committing or attempting to commit . . . aggravated
    robbery.” In turn, “aggravated robbery” is, in part, defined by Ohio statutes as the
    No. 00-3350           Johnson v. Mitchell                                              Page 9
    commission of a theft offense while possessing or using a deadly weapon. See Ohio Rev.
    Code § 2911.01(A)(1). Because a theft occurs under Ohio’s criminal laws when one person
    deprives another of property or services without consent, or by threat or intimidation, see
    Ohio Rev. Code §§ 2913.02(A)(1), (4), or (5), Johnson could have been convicted of the
    aggravated murder of Eunice Graster if the jury determined, beyond a reasonable doubt, that
    he shot her in the basement of the Reno Hotel in furtherance of the theft of the receipts from
    the hotel’s office.
    In support of such a theory, the testimony of the victim’s husband put Johnson inside
    the hotel’s locked doors shortly before the time Graster was murdered, despite the
    petitioner’s denial that he had entered through the second set of locked doors on the morning
    of the murder. Furthermore, shortly thereafter, the petitioner was observed on steps leading
    from a hotel door not used by the general public and able to be opened only from inside the
    building. At that time, Johnson was carrying a brown envelope similar to the envelopes that
    the hotel clerks routinely used to hold business receipts. Johnson was also heard to say to
    his aunt that he did not wish to re-enter the hotel because he didn’t want to be blamed for
    anything that might have happened in the hotel. Finally, even though the petitioner had
    borrowed money the previous days just to pay for cheap lodging, he was seen after the
    murder and robbery with a roll of paper money estimated to be at least one-inch thick.
    Despite Johnson’s contention that the testimony concerning his possession of a
    brown envelope like that in which the stolen receipts were kept was “too convenient to be
    credible,” that only one witness saw him on the front steps of the hotel, and that the
    statement that he did not want to re-enter the hotel or be blamed for anything that happened
    in the business was ambiguous, that evidence, combined with other testimony and inferences
    viewed in the light most favorable to the prosecution, would indeed justify a rational trier
    of fact in finding Johnson guilty of aggravated robbery and aggravated murder. Again, the
    fact that we might not have reached such a conclusion is not determinative of the issue.
    Rather, as long as the Ohio Supreme Court’s ruling that substantial evidence introduced at
    trial proved Johnson’s guilt of aggravated robbery and aggravated murder beyond a
    reasonable doubt was neither contrary to, nor an unreasonable application of, settled
    Supreme Court jurisprudence, the petitioner is not entitled to a grant of relief on this issue.
    No. 00-3350            Johnson v. Mitchell                                                         Page 10
    2. Withholding of Evidence
    Citing Brady v. Maryland, 
    373 U.S. 83
    (1963), the petitioner nevertheless argues
    that the prosecution’s case would have been effectively undermined had the state not
    withheld evidence that would have tended to exonerate him or at least cast doubt on the
    1
    credibility of one of the chief witnesses against him, Vera Lundy. In Brady, the United
    States Supreme Court imposed upon the prosecutorial arm of the government the
    “obligation to turn over material that is both favorable to the defendant and material to
    guilt or punishment.” United States v. Bencs, 
    28 F.3d 555
    , 560 (6th Cir. 1994).
    “Moreover, it is well-settled that this disclosure obligation includes evidence that could
    be used to impeach the credibility of a witness.” Schledwitz v. United States, 
    169 F.3d 1003
    , 1011 (6th Cir. 1999) (citing Giglio v. United States, 
    405 U.S. 150
    , 154-55 (1972)).
    Nevertheless, a Brady violation will not result in a grant of relief unless the court
    concludes that the improperly-withheld evidence “could reasonably be taken to put the
    whole case in such a different light as to undermine confidence in the verdict.” Kyles
    v. Whitley, 
    514 U.S. 419
    , 435 (1995).
    Focusing solely upon the allegedly contradictory statements offered by Vera
    Lundy, the petitioner notes Lundy’s testimony at Johnson’s trial that he was carrying a
    brown envelope when she saw him outside the Reno Hotel. Johnson emphasizes,
    however, that he later obtained documents showing that Lundy told police immediately
    after the murder in 1983, “I can’t remember if he had anything in his hands.” Without
    question, revelation of such an inconsistency could serve to undermine the credibility
    of a strategic witness to the state’s effort to tie Johnson to the aggravated robbery at the
    Reno Hotel. Even so, earlier “discovery” of Lundy’s statement to the police would not
    have “put the whole case in such a different light as to undermine confidence in the
    verdict.”
    1
    The petitioner alleges that various other items of information were also withheld by the
    prosecution, but the certificate of appealability covers only Lundy’s statements made to police. As a result,
    the others are not subject to review on appeal. 28 U.S.C. §§ 2253(c)(1), (2), and (3).
    No. 00-3350          Johnson v. Mitchell                                           Page 11
    In fact, in his brief on appeal, Johnson readily admits “that Lundy was impeached
    by the inconsistencies between her testimony in the two trials.” Yet he insists that
    additional impeachment of Lundy with her police statement should have been allowed,
    given the importance of the witness in the prosecution’s case. But the record shows that,
    in addition to defense counsel’s cross-examination of Lundy regarding the
    inconsistencies in her testimony about the petitioner’s possession of a brown envelope,
    police officers William Reiber and Edward Kelley both testified at trial that on the
    morning in question, they too had observed Gary Johnson leaving the Reno Hotel
    carrying a “yellow” envelope similar to the kind they later learned were used by the
    hotel staff. Thus, even if defense counsel had been provided earlier with Lundy’s
    statement to the police in which she could not recall whether Johnson was carrying
    anything with him when she saw him outside the Reno Hotel shortly after the time
    Eunice Graster was killed, the prosecution’s case would not have been undermined,
    given the testimony of the two police officers who corroborated Lundy’s version of
    events.
    There is even less reason to ascribe significant weight to the second variance
    between Lundy’s trial testimony and information in her statement to the police proffered
    by the petitioner. Lundy testified at trial that, upon seeing Gary Johnson coming down
    the steps of the Reno Hotel, she asked him to go into the hotel with her to find the
    victim, to which Johnson responded that he wasn’t going back into the hotel, raising the
    implication that he had previously been inside the premises that morning. Yet, in her
    statement to the police the morning after the crime, Lundy related that when she saw her
    nephew “coming down the steps” and asked him to accompany her into the hotel, “[h]e
    told me that he wasn’t going into the hotel,” not that he wasn’t going back into the hotel.
    The value of this evidence as impeachment is obviously destroyed by the fact that
    regardless of the slight discrepancy involved, both statements indicate that Lundy saw
    Johnson “coming out of the hotel.” Moreover, testimony from another prosecution
    witness placed Johnson inside the hotel’s locked doors shortly before the time of Eunice
    Graster’s murder. The state court’s conclusion that there was no merit to the Brady
    No. 00-3350        Johnson v. Mitchell                                            Page 12
    claim is thus neither contrary to nor an unreasonable application of clearly established
    federal law as interpreted by the United States Supreme Court.
    The petitioner also asserts that the district court erred in not permitting him to
    engage in further discovery to determine whether the prosecution withheld other crucial
    exculpatory or impeachment evidence and in not granting him an evidentiary hearing on
    the matter. We review both a district court’s limitation on the scope of discovery and
    a decision on whether to hold an evidentiary hearing for an abuse of discretion. See Lott
    v. Coyle, 
    261 F.3d 594
    , 602 (6th Cir. 2001).
    “Habeas petitioners have no right to automatic discovery.” Stanford v. Parker,
    
    266 F.3d 442
    , 460 (6th Cir. 2001). A district court may, however, permit discovery in
    a habeas proceeding if the “petitioner presents specific allegations showing reason to
    believe that the facts, if fully developed, may lead the district court to believe that
    federal habeas relief is appropriate.” 
    Lott, 261 F.3d at 602
    (citing Rule 6(a) of the Rules
    Governing Section 2254 Proceedings for the United States District Courts; Lynott v.
    Story, 
    929 F.2d 228
    , 232 (6th Cir. 1991)). Because Johnson has not satisfied this burden,
    the district judge did not abuse his discretion in denying the discovery request.
    Similarly, “[u]nder AEDPA, evidentiary hearings are not mandatory.” Vroman
    v. Brigano, 
    346 F.3d 598
    , 606 (6th Cir. 2003). In fact, in determining whether to grant
    an evidentiary hearing to a habeas corpus petitioner, the district court must decide
    whether such a hearing would enable the petitioner to prove allegations that, if true,
    would entitle the applicant to federal habeas relief. See Hartman v. Bagley, 
    492 F.3d 347
    , 361 (6th Cir. 2007), cert. denied, 
    128 S. Ct. 2971
    (2008) (citing Schriro v.
    Landrigan, 
    550 U.S. 465
    , 474 (2007)). In this case, Johnson has advanced no specific
    allegations relating to his Brady claim that would entitle him to habeas relief. The
    district court, therefore, also did not abuse its discretion in denying the petitioner’s
    request for an evidentiary hearing in that court.
    No. 00-3350        Johnson v. Mitchell                                           Page 13
    3. Prosecutorial Misconduct
    In his next assignment of error, the petitioner focuses on the prosecution’s
    argument to the jury that the victim was murdered by a left-handed person and that
    Johnson was himself left-handed. He first contends that the argument amounted to
    prosecutorial misconduct because no testimony was offered at the second trial to
    establish either proposition.
    During the state’s rebuttal argument during the guilt/innocence phase of the
    proceedings, a member of the prosecution team stated to the jurors:
    Eunice Graster was shot by a left-handed person. She was shot in the
    back of the head on the left side. The two gunshot wounds to the back
    are to the left side of the back, and you examine those pants. And there
    he stood behind her, taller than she, that morning down in that dark
    basement, and the first shot through her head drove her to her knees, to
    the back of her, and that’s where the dirt came from on the knees.
    (Emphasis added.)
    The next two shots took her right in the back, and she fell over onto the
    hose, and he leaned over her there and put the final shot into her left
    breast, and that’s where that one bullet was found in that hose. The left-
    handed Gary Johnson, the defendant in this case, ladies and gentlemen.
    (Emphasis added.)
    Defense counsel offered no immediate objection but, after the conclusion of the
    argument and after the trial judge’s instructions to the jury, he did move for a mistrial
    on the following basis:
    [T]his is the first available opportunity I have had to address the Court
    since the prosecutor made his final argument. I’m unaware of any
    testimony in this record that the defendant was left-handed. Now, I could
    very well be wrong. There was testimony in the previous trial that the
    defendant was left-handed. I’m unaware of any testimony in this trial,
    and that I think is critical because the prosecutor called the defendant
    left-handed and testified, what I regard as testimony by the prosecutor,
    that the defendant was left-handed. That became a critical part of his
    theory in the demonstration he gave the jury, and certainly he has a right
    to comment on the testimony and path of the bullets and all of that other
    that is into evidence. But I don’t think he has a right to inform the jury
    that the defendant is left-handed . . . .
    No. 00-3350        Johnson v. Mitchell                                            Page 14
    The Ohio Supreme Court reviewed this allegation of error on direct appeal only
    for plain error, reasoning that Johnson “failed to timely object to the prosecutor’s
    comment that [the petitioner] was left-handed,” Johnson II, 
    545 N.E.2d 642
    . However,
    the district court determined that defense counsel was not, in fact, untimely in noting his
    objection. As the district judge explained:
    According to defense counsel, he raised the issue regarding the
    prosecutor’s comment at the first available opportunity he had to address
    the court since the argument was made. At that time, counsel moved for
    a mistrial and preserved for appeal the issue raised herein. From the
    discussion among counsel and the trial court during the conference in
    chambers, it is apparent that there was some confusion as to whether or
    not evidence was adduced at trial which supported a finding that
    Petitioner was left-handed. It is likely that because trial counsel was
    unsure of whether such evidence existed at the second trial, he waited
    until after closing arguments; this is hardly unreasonable. Also, counsel
    regularly fail to raise objections during argument for tactical reasons in
    trying not to antagonize the jury. This is true especially when as is the
    case here, the statement objected to is an isolated one. In any event,
    defense counsel did argue this issue on behalf of his client and preserved
    it for appeal.
    We have consistently “held that a state court’s plain error analysis does not save
    a petitioner from procedural default.” Lundgren v. Mitchell, 
    440 F.3d 754
    , 765 (6th Cir.
    2006). Nevertheless, the warden does not now contend that this claim has been
    procedurally defaulted. Indeed, in her brief, she addresses the issue on the merits
    without arguing for the application of any procedural shortcuts. Thus, we opt to address
    the allegation of error on the merits. See White v. Mitchell, 
    431 F.3d 517
    , 524 (6th Cir.
    2005) (“procedural default is a defense that may be waived if not asserted; it is not a
    jurisdictional matter and, therefore, we are not obligated to raise the issue sua sponte”).
    Because the state court did not reach the merits of the claim, however, we must
    conduct our own de novo review of the matter. See, e.g., Maples v. Stegall, 
    340 F.3d 433
    , 436 (6th Cir. 2003). When examining claims of prosecutorial misconduct, the
    critical inquiry for this court “is the fairness of the trial, not the culpability of the
    prosecutor.” Slagle v. Bagley, 
    457 F.3d 501
    , 516 (6th Cir. 2006) (citing Smith v.
    Phillips, 
    455 U.S. 209
    , 219 (1982)). As a result, we must determine “whether the
    No. 00-3350         Johnson v. Mitchell                                            Page 15
    improper comments or actions ‘so infected the trial with unfairness as to make the
    resulting conviction a denial of due process.’”         
    Id. at 515
    (quoting Darden v.
    Wainwright, 
    477 U.S. 168
    , 181 (1986)). In doing so:
    [T]his circuit employs a two-prong test. See United States v. Carter, 
    236 F.3d 777
    , 783 (6th Cir. 2001). First, this court determines whether the
    prosecution’s conduct or remarks were improper. If the answer is
    affirmative, then the court considers four factors to decide whether the
    improper acts were sufficiently flagrant to warrant reversal: (1) whether
    the evidence against the defendant was strong[;] (2) whether the conduct
    of the prosecution tended to mislead the jury or prejudice the defendant;
    (3) whether the conduct or remarks were isolated or extensive; and
    (4) whether the remarks were made deliberately or accidentally.
    
    Id. at 515
    -16.
    The prosecution’s supposition that the murderer must have been left-handed was
    not an improper comment upon the evidence admitted at trial, amounting, as it did, to
    nothing more than the state’s interpretation of the evidence that had been admitted at
    trial. Indeed, defense counsel candidly admitted on the record that the prosecutor
    “certainly . . . ha[d] a right to comment on the testimony and path of the bullets and all
    of that other that is into evidence.” Nevertheless, the prosecutor’s description of
    Johnson as left-handed must be considered improper because evidence that Johnson was
    left-handed, which had been introduced at the first trial, was not reintroduced at the
    second. However, an analysis of the four factors discussed in Slagle leads us to the
    conclusion that the comment, although improper, was not sufficiently flagrant to
    constitute a violation of due process.
    First, the state’s case against Johnson consisted largely of circumstantial
    evidence. But that evidence, as we have held, was sufficiently strong to justify a rational
    trier of fact in finding Johnson guilty of aggravated robbery and aggravated murder.
    Second, we recognize that, having argued that Eunice Graster was killed by a left-
    handed individual, the prosecutor’s contention that Gary Johnson was, in fact, left-
    handed was certainly less than helpful to the defense. But, third, the trial judge carefully
    instructed the jurors that “[t]he evidence does not include the indictment, the opening
    statements, or the closing arguments of counsel. Opening statements and the closing
    No. 00-3350         Johnson v. Mitchell                                             Page 16
    arguments of counsel are designed to assist you, but they were not evidence.” Because
    we must presume that the jurors adhered to the instructions given them, see, e.g., Zafiro
    v. United States, 
    506 U.S. 534
    , 540-41 (1993), the possibility that the jurors were misled
    or that the petitioner was unduly prejudiced by the single, isolated remark made during
    rebuttal argument is exceedingly slim, especially in light of the other evidence
    introduced against him. Fourth and finally, in response to the petitioner’s motion for a
    mistrial based upon the improper argument, the prosecutor said that his “recollection of
    the testimony [in the second trial] is that there is [evidence that Johnson is left-handed].”
    Although that recollection was proven faulty, the circumstances presented here do not
    justify a conclusion that the prosecutor intended to inject improper considerations into
    the proceedings deliberately.
    Under these circumstances, we cannot conclude that the prosecutor’s single,
    isolated statement, apparently made unintentionally and not to mislead the jury, was
    “sufficiently flagrant to warrant reversal.” 
    Slagle, 457 F.3d at 516
    .
    4. Failure to Declare a Mistrial
    For the same reasons that lead us to conclude that the prosecutor’s “left-handed”
    comments did not deprive the petitioner of a fair trial, we also conclude that the trial
    judge did not commit an abuse of discretion in failing to grant a mistrial because of those
    statements. See Zuern v. Tate, 
    336 F.3d 478
    , 485 (6th Cir. 2003) (review of a state
    court’s denial of a mistrial requires application of a high standard: “reversal is not
    warranted unless the comment ‘was potentially so misleading and prejudicial that it
    deprived [the defendant] of a constitutionally fair trial’”) (quoting Donnelly v.
    DeChristoforo, 
    416 U.S. 637
    , 641-42 (1974)).
    5. Ineffective Assistance of Counsel – Guilt Phase
    Likewise, the petitioner’s allegation that he was denied the effective assistance
    of counsel during the guilt phase of the trial is based on his contention that defense
    counsel failed to object to the “left-handed” arguments that the prosecutor made to the
    jury. But, because we have treated the petitioner’s claims regarding prosecutorial
    No. 00-3350         Johnson v. Mitchell                                             Page 17
    misconduct during final argument as having been properly preserved for review, we have
    implicitly held that trial counsel did not fail to object to the challenged comments in a
    timely fashion. Thus, there is no basis on which to make a finding of ineffective
    assistance of counsel at the guilt phase of Johnson’s trial.
    6. Ineffective Assistance of Counsel – Sentencing Phase
    Johnson alleges that his trial counsel failed to investigate the state’s case
    adequately, failed to present mitigating evidence to the jury, and failed to articulate an
    effective argument that the mitigating factors outweighed the aggravating factors. In
    addressing these claims of ineffective assistance of counsel, we are guided by the now-
    familiar two-part test of Strickland v. Washington, 
    466 U.S. 668
    (1984). As required by
    that analytical framework:
    First, the defendant must show that counsel’s performance was deficient.
    This requires showing that counsel made errors so serious that counsel
    was not functioning as the “counsel” guaranteed the defendant by the
    Sixth Amendment. Second, the defendant must show that the deficient
    performance prejudiced the defense. This requires showing that
    counsel’s errors were so serious as to deprive the defendant of a fair trial,
    a trial whose result is reliable.
    
    Id. at 687.
    In Groseclose v. Bell, 
    130 F.3d 1161
    , 1167 (6th Cir. 1997), discussing the first
    prong of the Strickland analysis, we recognized that:
    The [Supreme] Court cautioned that in undertaking an ineffective-
    assistance review, “[j]udicial scrutiny of counsel’s performance must be
    highly deferential,” and must avoid the “second-guess[ing of] counsel’s
    assistance . . ., [as] it is all too easy for a court, examining counsel’s
    defense after it has proved unsuccessful, to conclude that a particular act
    or omission of counsel was unreasonable.” 
    Strickland, 466 U.S. at 689
            . . . . In order to avoid “the distorting effects of hindsight,” a reviewing
    “court must indulge a strong presumption that counsel’s conduct falls
    within the wide range of reasonable professional assistance; that is, the
    defendant must overcome the presumption that . . . the challenged action
    ‘might be considered sound trial strategy.’” 
    Id. (citation omitted).
    No. 00-3350         Johnson v. Mitchell                                             Page 18
    Furthermore, in evaluating the prejudice suffered by a petitioner as a result of alleged
    ineffective assistance of counsel, “[i]t is not enough for the defendant to show that the
    errors had some conceivable effect on the outcome of the proceeding.” 
    Strickland, 466 U.S. at 693
    . Indeed, “[v]irtually every act or omission of counsel would meet that test,
    and not every error that conceivably could have influenced the outcome undermines the
    reliability of the result of the proceeding.” 
    Id. (citation omitted).
    Rather, the petitioner
    “must show that there is a reasonable probability that, but for counsel’s unprofessional
    errors, the result of the proceeding would have been different. A reasonable probability
    is a probability sufficient to undermine confidence in the outcome.” 
    Id. at 694.
    As recounted in the factual and procedural background of this case, the Ohio
    Supreme Court reversed Johnson’s original conviction and death sentence after the
    court’s examination of the trial transcript led it to the following findings and
    conclusions:
    [C]ounsel for the defense openly stated to the court that he had not even
    discussed with his client the penalty aspect of the case. Counsel then
    asked for, and was given, a ten-minute recess. Following this recess, the
    trial court, with the acquiescence of defense counsel, set the hearing for
    the very next day. At the hearing, the defense presented only the
    unsworn statement of appellant. No mitigating evidence of any kind was
    offered.
    This scenario, depicting as it does the complete lack of preparation and
    zeal on the part of defense counsel regarding the question of whether
    their client should live or die, compels the conclusion that appellant was
    deprived of any effective, meaningful assistance from his counsel at this
    obviously critical stage of the proceedings.
    *****
    It is quite clear . . . that the duty of defense counsel to investigate his
    client’s background for mitigating factors is an indispensable component
    of the constitutional requirement that a criminal defendant – and
    particularly one on trial for his life – be afforded effective representation
    and assistance from his lawyer. The maladroit presentation offered by
    appellant’s attorneys in the sentencing phase did not, by any standard,
    meet that requirement. No mitigating evidence of any kind was offered.
    No continuance was requested for purposes of investigating appellant’s
    background for mitigating factors. The only “evidence” for the defense
    No. 00-3350         Johnson v. Mitchell                                               Page 19
    heard by the jury was a lengthy unsworn statement by appellant
    protesting his innocence, followed by a closing argument by defense
    counsel in a similar vein, actually berating the jurors for their guilty
    verdict and repeatedly urging them to “reconsider the evidence.”
    Johnson 
    I, 494 N.E.2d at 1063-64
    (footnotes omitted).
    The same attorney who secured that favorable decision from the Ohio Supreme
    Court, James Willis, also represented Johnson at the retrial.             But, after arguing
    successfully that Johnson’s original attorney had been constitutionally ineffective in
    failing to present available mitigating evidence at the penalty phase of the proceedings,
    Willis himself committed the same grievous error. He introduced no mitigating evidence
    at the penalty phase of the second trial, instead relying solely upon Johnson’s unsworn
    statement to the jury, a statement in which the petitioner chastised the finders-of-fact at
    length for failing to find a reasonable doubt as to his guilt despite what he alleged were
    numerous weaknesses in the prosecution’s case.
    In a series of affidavits submitted to the Ohio state courts in post-conviction
    proceedings, Willis admitted that his sole preparation for Johnson’s capital murder trial
    consisted of reading the transcript of the petitioner’s first trial – a trial that had resulted
    in convictions for aggravated murder and aggravated robbery, as well as a sentence of
    death – and speaking with Johnson himself. According to Willis, “[b]ecause [he] had
    the testimony of the witnesses’ [sic] from the first trial, [he] did not interview them prior
    to the second trial.” Willis also did not request the assistance of an investigator for the
    trial because he did not “[feel a] need for any new investigation into Gary Johnson’s
    case.” But without the aid of pre-trial investigation that would have permitted effective
    cross-examination of the state’s witnesses, Johnson’s original counsel had been unable
    to persuade the jury that his client should not be executed, and there is little – really
    nothing at all – in the record to suggest that Willis could have succeeded where the first
    lawyer had failed. As for the possibility of calling witnesses in Johnson’s behalf, an
    affidavit from Willis described the entirety of his preparation for the all-important
    sentencing phase as follows:
    No. 00-3350        Johnson v. Mitchell                                            Page 20
    7) Prior to the mitigation phase of Gary Johnson’s second trial, I
    requested that Gary Johnson give me the name of an individual that could
    say something good on his behalf.
    8) Gary Johnson could think of no one that could say anything good on
    his behalf.
    9) Because Gary Johnson did not feel that there was anyone who could
    say something good on his behalf, there was no mitigation presented in
    Gary Johnson’s case.
    Such inaction on the part of defense counsel in this case amounted to a complete
    abdication of the attorney’s duty to investigate and present evidence in mitigation. The
    United States Supreme Court, this court, and other courts of appeals have consistently
    recognized the need for meaningful investigation by defense counsel prior to the making
    a decision not to present mitigation testimony during the penalty phase of a capital trial.
    After such investigation, strategic choices made by counsel “are virtually
    unchallengeable.” 
    Strickland, 466 U.S. at 690
    . However, “strategic choices made after
    less than complete investigation are reasonable precisely to the extent that reasonable
    professional judgments support the limitations on investigation.” 
    Id. at 691.
    “In other
    words, counsel has a duty to make reasonable investigations or to make a reasonable
    decision that makes particular investigations unnecessary.” Wiggins v. Smith, 
    539 U.S. 510
    , 521 (2003). Thus, the question is “not whether counsel should have presented a
    mitigation case. Rather, we focus on whether the investigation supporting counsel’s
    decision not to introduce mitigating evidence [of the defendant’s] background was itself
    reasonable.” 
    Id. at 523.
    Moreover, as the Supreme Court has noted, “[N]o decision to
    forgo the presentation of mitigation evidence is reasonable trial strategy under Strickland
    unless the decision is made after a reasonable investigation into mitigation evidence.”
    Williams v. Anderson, 
    460 F.3d 789
    , 804 (6th Cir. 2006) (citing 
    Wiggins, 539 U.S. at 533-34
    ).
    No. 00-3350        Johnson v. Mitchell                                            Page 21
    Even so, as explained by the United States Court of Appeals for the Third
    Circuit:
    [T]he preparation and investigation for the penalty phase are different
    from the guilt phase. The penalty phase focuses not on absolving the
    defendant from guilt, but rather on the production of evidence to make
    a case for life. The purpose of investigation is to find witnesses to help
    humanize the defendant, given that a jury has found him guilty of a
    capital offense.
    Marshall v. Hendricks, 
    307 F.3d 36
    , 103 (3d Cir. 2002). Likewise, we have recognized
    that, under Ohio’s death penalty statute, “a capital defendant found guilty of a death
    specification has to present some mitigating evidence in order to avoid the death
    penalty.” Mapes v. Coyle, 
    171 F.3d 408
    , 426 (6th Cir. 1999). Consequently, “when a
    client faces the prospect of being put to death unless counsel obtains and presents
    something in mitigation, minimal standards require some investigation.” 
    Id. (emphasis in
    original).
    Significantly, however, “[t]he sole source of mitigating factors cannot properly
    be that information which defendant may volunteer; counsel must make some effort at
    independent investigation in order to make a reasoned, informed decision as to their
    utility.” Carter v. Bell, 
    218 F.3d 581
    , 596 (6th Cir. 2000). In determining what degree
    of investigation is “reasonable,” the Supreme Court and this court have long looked to
    “the standards for capital defense work articulated by the American Bar Association
    (ABA).” 
    Wiggins, 539 U.S. at 524
    (citing 
    Strickland, 466 U.S. at 688
    ). Pursuant to
    those standards:
    The lawyer . . . has a substantial and important role to perform in raising
    mitigating factors both to the prosecutor initially and to the court at
    sentencing. This cannot effectively be done on the basis of broad general
    emotional appeals or on the strength of statements made to the lawyer by
    the defendant. Information concerning the defendant’s background,
    education, employment record, mental and emotional stability, family
    relationships, and the like, will be relevant, as will mitigating
    circumstances surrounding the commission of the offense itself.
    Investigation is essential to the fulfillment of these functions.
    No. 00-3350        Johnson v. Mitchell                                            Page 22
    1 ABA Standards for Criminal Justice 4-4.1 (1982 Supp.) (emphasis added) (quoted in
    
    Hartman, 492 F.3d at 373
    (Clay, J., concurring in part and dissenting in part).
    The failure of capital defense attorneys to abide by these standards has, on
    numerous occasions, led both the Supreme Court and this court to conclude that the
    constitutional guarantee of effective assistance of counsel has been breached. Indeed,
    in Poindexter v. Mitchell, 
    454 F.3d 564
    , 577-78 (6th Cir. 2006), we catalogued a number
    of instances in which insufficient investigation by defense counsel necessitated a
    conclusion that capital defendants did not receive the legal assistance to which they were
    constitutionally entitled, including:
    
    Wiggins, 539 U.S. at 523-28
    , 
    123 S. Ct. 2527
    (finding ineffective
    assistance based on counsel’s failure to follow leads that would have lead
    them to discover evidence of severe privation and abuse as a child from
    his alcoholic mother, and sexual torment and rape in foster care, as well
    as diminished mental capacities); Williams v. Taylor, 
    529 U.S. 362
    , 395,
    
    120 S. Ct. 1495
    , 
    146 L. Ed. 2d 389
    (2000) (finding counsel’s performance
    deficient where counsel failed to investigate or otherwise prepare for
    mitigation until a week before trial and failed to “conduct an
    investigation that would have uncovered extensive records graphically
    describing Williams’ [sic] nightmarish childhood”); Harries v. Bell, 
    417 F.3d 631
    , 638 (6th Cir. 2005) (finding that counsel failed to conduct an
    adequate investigation where counsel limited their investigation to
    contacting by telephone the petitioner’s mother and brother, sent requests
    for information to some institutions in which the petitioner had been
    confined, interviewed only four witnesses – the petitioner, his co-
    defendant, and two state witnesses, and declined to seek the assistance
    of a mental health expert or to conduct a thorough investigation into the
    petitioner’s history of mental health or family background); Hamblin v.
    Mitchell, 
    354 F.3d 482
    , 488 (6th Cir. 2003) (adopting the 1989 and 2003
    standard for attorneys representing death penalty prisoners in 1982 and
    holding that counsel’s failure to adhere to those guidelines constituted
    ineffective assistance of counsel; finding that had counsel investigated
    the case, counsel would have found a large body of mitigating evidence
    including fact that the petitioner grew up in a poor and unstable
    environment and likely suffered from a mental disability or disorder);
    Powell v. Collins, 
    332 F.3d 376
    , 399 (6th Cir. 2003) (holding that trial
    counsel’s failure to construct the defendant’s social history through
    access to background records and interviews with family and friends
    constituted deficient performance); Coleman v. Mitchell, 
    268 F.3d 417
    ,
    452 (6th Cir. 2001) (holding that trial counsel were ineffective for failing
    No. 00-3350         Johnson v. Mitchell                                             Page 23
    to investigate and present the petitioner’s highly traumatic childhood,
    two head injuries, psychological history showing a borderline retarded
    range IQ and mixed personality disorder); Carter v. Bell, 
    218 F.3d 581
    ,
    597, 599 (6th Cir. 2000) (finding deficient performance because counsel
    failed to investigate and present at mitigation evidence of the defendant’s
    illegitimacy, family history, limited education, low IQ, mental condition
    and positive relationships with children); Austin v. Bell, 
    126 F.3d 843
    ,
    849 (6th Cir. 1997) (holding that counsel’s failure to investigate and
    present mitigation “because he didn’t think it would do any good”
    rendered death sentence unreliable); Glenn v. Tate, 
    71 F.3d 1204
    , 1208-
    11 (6th Cir. 1995) (holding that counsel’s investigation was deficient
    where the attorneys presented some, but failed to uncover more
    convincing mitigating evidence, including evidence of the petitioner’s
    mental retardation, his neurological impairment, and his need for
    attention and susceptibility to the influence of his brother).
    See also Haliym v. Mitchell, 
    492 F.3d 680
    , 712 (6th Cir. 2007) (finding ineffective
    assistance of counsel when counsel failed to investigate evidence of the defendant’s
    abusive and violent childhood, evidence that the defendant suffered intense grief over
    the loss of his family, and evidence that the defendant suffered from a mental defect).
    The performance of the petitioner’s counsel at his second trial in this matter is,
    in many respects, more egregiously deficient than any of the examples listed in our
    Poindexter opinion. The petitioner’s counsel at his second trial reviewed the transcript
    of the first trial, noted the ineffective assistance provided by Johnson’s original attorney,
    and convinced the Ohio state courts that it violated constitutional standards of
    representation. Nevertheless, prior to and during Johnson’s second trial, attorney Willis
    admittedly interviewed no new or old witnesses, did not request or hire an investigator
    for the second trial, “felt there was no need for any new investigation into Gary
    Johnson’s case,” did not seek any discovery prior to the second trial, and presented no
    evidence in mitigation at the second trial. Thus, in effect, Willis merely replayed the
    disastrous initial trial a second time. Not surprisingly, the same result followed, and
    Johnson was once again sentenced to die at the hands of the state for his crimes.
    Willis’s justification for the lack of any investigation into his client’s background
    and circumstances, beyond the mere reading of the transcript of the first trial, was that
    Johnson “could think of no one that could say anything good on his behalf.” Obviously,
    No. 00-3350         Johnson v. Mitchell                                            Page 24
    confining investigation in the defense of a capital case to only the “good” things that
    could be said about the client cannot be considered a reasonable investigation. In this
    case, moreover, there were witnesses available to speak in the petitioner’s favor. For
    instance, his daughter, sister, brother, and former mother-in-law all filed affidavits with
    the state court during post-conviction proceedings stating that they had not been
    contacted by Willis to testify on his behalf at the mitigation stage of the proceedings.
    Without their testimony, the jury was left with no alternative but to believe that
    Johnson’s own relatives were not supportive enough of him to plead for his life during
    the proceedings. Had they testified, however, each of the affiants claimed that they
    “would have asked the jury to extend [Johnson] mercy and . . . to spare his life” by
    imposing a life sentence rather than the death penalty. In addition, the petitioner’s sister
    and brother “could have detailed for his sentencing jury, specifics of his childhood,
    character and life, based upon [their] familiarity with him as a child and [their] first
    hand-knowledge [sic] of [their] family and home-life.” Johnson’s former mother-in-law
    could have further humanized the petitioner in the eyes of the jury by giving “details
    about the marriage of [her] daughter and Gary Johnson, based upon [her] first-hand
    knowledge of that marriage.”
    Without question, the utter lack of meaningful mitigation investigation by Willis
    in this case compels the conclusion that the representation offered to Johnson by his
    second trial attorney was deficient and failed to meet minimum standards of competency.
    Accordingly, because Willis’s failure to conduct any investigation was plainly
    ineffective under the precedents of both this court and the Supreme Court, see
    
    Poindexter, 454 F.3d at 577-78
    , we conclude that the Ohio Court of Appeals applied
    Strickland unreasonably in reaching the opposite conclusion.
    Before Johnson can succeed on his claim for habeas relief based upon the
    ineffective assistance of counsel, however, he must also demonstrate prejudice from that
    deficient performance. “[I]n order to establish prejudice, the new evidence that a habeas
    petitioner presents must differ in a substantial way – in strength and subject matter –
    from the evidence actually presented at sentencing.” Hill v. Mitchell, 
    400 F.3d 308
    , 319
    No. 00-3350         Johnson v. Mitchell                                          Page 25
    (6th Cir. 2005). Further, because the Ohio Court of Appeals failed to reach the prejudice
    prong in its analysis, we review this issue de novo. See 
    Wiggins, 539 U.S. at 534
    (“[O]ur
    review is not circumscribed by a state court conclusion with respect to prejudice, as
    neither of the state courts below reached this prong of the Strickland analysis.”).
    Given the fact that the only evidence placed before the jury by the petitioner
    during the sentencing phase of the trial was Johnson’s own unsworn statement, a
    statement in which he chastised the jurors for their guilty verdict, almost any other
    mitigation testimony offered would be considered both stronger and more substantial
    than what Willis proffered. In addition to the testimony of numerous family members
    – individuals whose identity was known to, or easily ascertained by, defense counsel and
    who could have provided a more compassionate tint to the portrait of the petitioner –
    even the most basic of investigations would have revealed other important mitigation
    evidence as well.
    For example, Dr. James Eisenberg, a licensed psychologist, stated by affidavit
    in the post-conviction proceedings in state court that normal investigation and
    psychological evaluation would have revealed many facts about the petitioner that could
    have been presented to the jury. In his examinations and investigations, Eisenberg
    found, for instance, that Johnson’s father frequently beat the petitioner as a child with
    an iron cord or coffee pot cord until Johnson would bleed. On one occasion, the father
    even threatened then-young Johnson “with a German Luger stating, ‘I should have killed
    you when you were a baby.’” Johnson was further exposed to violence both in
    elementary school where he often engaged in fights, and in his predominately white
    neighborhood where the African-American petitioner was forced to defend himself in
    numerous skirmishes.
    Additional items of potential mitigation discovered by Eisenberg included the
    following findings:
    As an adult Gary’s interests remained adolescent and unrealistic. . . . He
    used various drugs including cocaine. Though he denies an underlying
    drug problem, some of his friends believed that he was indeed a frequent
    user of rock cocaine.
    No. 00-3350      Johnson v. Mitchell                                            Page 26
    *****
    He has some difficulty . . . with inductive reasoning. He is likely to take
    things literally and respond directly to a crisis. Mr. Johnson shows low
    scores on several performance subtests. The results indicate inadequate
    visual organization and the inability to perceive the “whole in relation to
    the parts.”
    *****
    Individuals with similar [Minnesota Multiphasic Personality Inventory -
    2] profiles experience repeated failures in interpersonal relationships.
    Although dependent and having strong needs for affection, they are
    anxious much of the time, feel easily threatened, and are overly
    suspicious of others. They have difficulty expressing emotions in a
    modulated fashion. . . . Individuals with [a profile like Johnson’s] are
    usually unable to express emotions in an adapted, modulated way and
    they may alternate between overcontrol and direct, undercontrolled
    emotional outbursts.
    *****
    His responses [on the Rorschach Inkblot Test] suggest that he is
    somewhat impulsive, oppositional, and has failed to internalize adult
    values. Mr. Johnson’s profile is much more typical of adolescents than
    adults with numerous animal but few human responses.
    *****
    [T]hough he is intellectually competent, he is quite adolescent and
    impulsive in his behavior with a lack of the ability to correctly organize
    and synthesize information. His emotional development has not matched
    his intellectual development. He has a grandiose response to the world
    in which he reacts to rather than thinks through crises.
    *****
    Gary Johnson meets the criteria for cocaine abuse and for a mixed
    personality disorder. . . . The diagnosis of cocaine abuse is based on the
    reported use by the defendant and on corroborated statements by other
    witnesses, notably Edward Williams. The facts of the crime are
    consistent with what is known about how cocaine affects mood, thinking,
    and behavior. High-dose abuse can result in extreme agitation,
    explosiveness, and paranoid ideation.
    Gary Johnson’s mixed personality disorder with histrionic, antisocial,
    and paranoid features is directly related to his home life and early
    childhood development. The features of the histrionic disorder include
    dramatic and intense behavior, problematic interpersonal relationships,
    No. 00-3350        Johnson v. Mitchell                                              Page 27
    and attention-seeking. Histrionic individuals usually develop new
    relationships with relative ease and they appear to be socially able.
    However, these relationships generally turn out to be shallow without
    substance. The main defenses of a histrionic are denial and projection of
    blame unto others. Gary’s antisocial features stem from an early
    introduction into criminal activity both within and outside the home. The
    family business encouraged prostitution, gambling, and pimping. Gary’s
    paranoid features stem from his home environment both in and around
    Hough and in a predominantly white neighborhood in which he had to
    always be on guard. When combined together, the histrionic, antisocial,
    and paranoid features result in an individual who is [sic] likes to be the
    center of attention, but is suspicious of those who are drawn to him; is in
    need of immediate gratification but trusts no one to meet those needs;
    attempts to develop interpersonal relationships, but has little
    understanding of adult, in-depth feelings. When these features are
    combined with drugs, specifically cocaine, then the need for immediate
    gratification becomes overwhelming as does the paranoid mistrust. In
    summary, Gary Johnson’s basic personality style is very much adolescent
    in quality. He has failed to develop adult values and appears to be
    fixated in a stage of development usually associated with impulsiveness
    and antisocial conduct. The use of drugs, notably cocaine, also maintains
    a high need for immediate gratification. Gary has never internalized an
    appropriate adult value system. This is directly due to the environment
    in which he was raised in which his dominant role models were engaged
    in illegal activities. Gary learned well from these role models and saw
    himself as successful in various illicit activities including prostitution and
    drug use.
    Each of these items of information about Johnson and his social and emotional
    development “differ[ed] in a substantial way . . . from the evidence actually presented
    at sentencing.” 
    Id. When combined,
    moreover, a drastically different portrait of the
    petitioner emerges. At trial, counsel’s failure to investigate left Johnson with only his
    own unsworn, antagonistic statement to the jury to counteract the evidence of
    aggravating circumstances attendant to the crime. As a result, the jurors were left with
    no choice but to view Johnson as a calculating individual, apparently a loner without
    human connection even with his family, and willing to murder anyone standing in the
    way of his acquisition of money that could be used to purchase drugs or alcohol. The
    presence of other information easily uncovered by the investigation of an effective
    advocate, however, would have allowed the jurors to see that the petitioner’s relatives
    did care about Johnson, that as a child he had endured many hardships and traumatic
    No. 00-3350            Johnson v. Mitchell                                          Page 28
    experiences, and that he suffered from a personality disorder that, although not absolving
    him of responsibility for his crimes, helped explain why certain circumstances would be
    viewed by the petitioner in certain ways and would prompt certain abnormal responses.
    The jury might also have seen Johnson as an individual struggling to act appropriately
    in the face of paranoia and a distorted world view, a struggle that was only exacerbated
    by drug abuse. To hold in this case that serious consideration of such evidence could not
    have “change[d] the calculation the jury previously made when weighing the aggravating
    and mitigating circumstances of the murder,” 
    Hill, 400 F.3d at 319
    , is – in our judgment
    – to ignore reality.
    Johnson also contends that Willis provided ineffective assistance of counsel by
    failing to deliver an adequate closing argument during the sentencing phase of the
    second trial. We find no merit to this claim for the simple reason that the petitioner
    cannot establish that he was prejudiced by that argument, even if the closing was not as
    stirring or as eloquent as it could have been. As we have noted, “In the context of a
    death sentence, the question of prejudice turns on ‘whether there is a reasonable
    probability that, absent the errors, the sentencer . . . would have concluded that the
    balance of aggravating and mitigating circumstances did not warrant death.’” 
    Id., 400 F.3d
    at 314 (quoting 
    Strickland, 466 U.S. at 695
    ). Given the grossly inadequate
    presentence investigation performed by Willis, and the complete absence of mitigation
    evidence put before the jury, there is little more that counsel could have done in terms
    of arguing the petitioner’s case to the jury.
    7. Motion to Recuse
    In a final issue certified for appeal, the petitioner contends that Judge Nugent, the
    district judge who ruled on his habeas petition, should have recused himself, an action
    required under 28 U.S.C. § 455(a) “if a reasonable, objective person, knowing all of the
    circumstances, would have questioned the judge’s impartiality.” Hughes v. United
    States, 
    899 F.3d 1495
    , 1501 (6th Cir. 1990). We review the denial of a motion to recuse
    for abuse of discretion. See Bell v. Johnson, 
    404 F.3d 997
    , 1004 (6th Cir. 2005).
    No. 00-3350          Johnson v. Mitchell                                             Page 29
    In the district court, Johnson based his allegations of bias on Judge Nugent’s past
    connections with others involved in the litigation of his case in state court. Specifically,
    he argued that a reasonable person would have questioned the judge’s impartiality
    because Judge Nugent was, during the time of Johnson’s first trial, a colleague of the
    lead prosecutor, who also participated in Johnson’s second trial; Judge Nugent was,
    during the time of that second trial, a colleague of the two state-court trial judges who
    presided over Johnson’s first and second trials, respectively; Judge Nugent was, during
    the time of Johnson’s post-conviction litigation in state court, a colleague of the appeals
    judges who reviewed his petitions; and Judge Nugent prosecuted Donald Williams, a
    potential witness in this case. However, unlike the judges in out-of-circuit cases cited
    by Johnson, see Russell v. Lane, 
    890 F.2d 947
    , 948 (7th Cir. 1989); Rice v. McKenzie,
    
    581 F.2d 1114
    , 1117 (4th Cir. 1978), Judge Nugent did not play any part in Johnson’s
    prosecution or the adjudication of his state trials, appeals, or petitions for post-conviction
    relief.
    Moreover, we have consistently held that a judge need not recuse himself on the
    basis of prior contact with a party or a witness, as long as the judge does not have a
    familial, financial, or similarly close relationship with the party or witness and as long
    as the judge has not received out-of-court information about the case at hand. See, e.g.,
    United States v. Dandy, 
    998 F.2d 1344
    , 1349-50 (6th Cir. 1993); United States v.
    Sammons, 
    918 F.2d 592
    , 598-99 (6th Cir. 1990). Because Johnson has not alleged that
    Judge Nugent had any such direct contact with Johnson’s cases or received extrajudicial
    information about them as a result of his prior connections, we conclude that the district
    court did not commit an abuse of discretion in denying the petitioner’s motion to recuse.
    III. CONCLUSION
    Although most of the issues certified for review on appeal do not entitle the
    petitioner to habeas relief, Johnson has established that the state courts unreasonably
    applied well-established law in concluding that the petitioner’s attorney at his second
    trial afforded him constitutionally effective assistance of counsel during the penalty
    phase of the proceedings. We therefore AFFIRM the denial of habeas relief regarding
    No. 00-3350        Johnson v. Mitchell                                          Page 30
    the state court’s judgment of conviction, but REVERSE the judgment of the district
    court relating to the petitioner’s sentence and REMAND this matter for issuance of a
    conditional writ of habeas corpus vacating Johnson’s death sentence, unless the State of
    Ohio conducts a new sentencing hearing within 180 days of remand.