Cleveland Jackson v. Marc Houk

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0227p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Petitioner-Appellant, -
CLEVELAND R. JACKSON,
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No. 08-3677
v.
,
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Respondent-Appellee. -
MARC C. HOUK, Warden,
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Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 07-00400—Donald C. Nugent, District Judge.
Argued: April 20, 2011
Decided and Filed: July 24, 2012
Before: MERRITT, MARTIN, and ROGERS, Circuit Judges
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COUNSEL
ARGUED: James A. Jenkins, Cleveland, Ohio, for Appellant. Thomas E. Madden,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
ON BRIEF: James A. Jenkins, John B. Gibbons, Cleveland, Ohio, for Appellant.
Thomas E. Madden, Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee.
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OPINION
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MERRITT, Circuit Judge. Cleveland R. Jackson was convicted by an Ohio jury
of two murders committed in 2002. The court sentenced him to two separate death
sentences, one for each murder. The Supreme Court of Ohio on direct appeal reversed
and vacated the death sentence for one of the murders based on the trial judge’s errors
in limiting the voir dire, but it affirmed the other death sentence. Jackson later filed a
federal habeas corpus petition, claiming a number of grounds of relief, all of which the
1
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district court denied. We granted a certificate of appealability as to nine of those claims,
the most difficult of which concerns the claim that the trial court violated Jackson’s right
to due process of law when, after denying his counsel the right to question the jury
concerning pretrial publicity, it then denied his motion for a change of venue premised
on the extraordinary pretrial publicity present in Lima, Ohio, the small community in
which he was tried. Based on Supreme Court precedent, we are required to affirm.
I. Factual and Procedural History
On the evening of January 3, 2002, Petitioner Jackson and his half-brother,
Jeronique Cunningham, went to the apartment of Shane Liles in Lima, Ohio, to rob him
of money and drugs. Liles had sold Cunningham crack cocaine earlier that day. Shortly
after the two arrived, Liles and Jackson discussed a drug transaction on the apartment’s
staircase while, nearby, Cunningham sat in the living room and watched television with
three teenagers who happened to be in the apartment. One of those teenagers was
Leneshia Williams.
The robbery was set into motion when Cunningham stood up and ordered the
three teenagers into the kitchen. It quickly turned violent when Cunningham produced
a gun and struck one of the teenagers in the jaw with it after he did not immediately
comply with Cunningham’s order. Jackson then brandished a gun of his own, aimed it
at Liles, and forced him upstairs where he robbed him of money and drugs. Jackson then
tied Liles’s hands behind his back and took him downstairs to the kitchen, where
Cunningham was holding captive the original three teenagers and four other individuals,
including one three-year-old girl named Jayla Grant.1 Jackson ordered Liles to give him
the rest of the money. When Liles responded that he had given Jackson all that he had,
Jackson shot him in the back.
Jackson and Cunningham then opened fire on everyone in the kitchen. After
shooting until both of their guns were emptied of ammunition, the two men fled the
1
In the record, Jayla Grant’s first name is spelled “Jala.” However, we will follow the district
court and spell her name “Jayla.”
No. 08-3677 Jackson v. Houk Page 3
scene. Though all in the kitchen were shot at least once, two were killed: Leneshia
Williams and Jayla Grant.
Jackson was indicted for both murders and for aggravated robbery and attempted
aggravated murder as to the surviving shooting victims. In a trial completed
immediately prior to Jackson’s trial, Cunningham was also charged with, convicted of,
and sentenced to death for the same two murders. His habeas appeal is separately
pending before this court. The murder counts each contained two death-penalty
specifications, one alleging that the murder was committed as part of a course of conduct
to kill or attempt to kill two or more persons, and one alleging that the murder was
committed during an aggravated robbery and with prior calculation and design. At trial,
Jackson denied committing the murders. He took the stand in his own defense, appeared
to attribute the robbery principally to Cunningham, and denied all of the shootings save
for that of Liles, which, Jackson maintained, only occurred when his gun accidentally
went off. Jackson claimed that Cunningham’s gun also malfunctioned after Cunningham
attempted to shoot one of the others in the kitchen, that Cunningham then took Jackson’s
gun, and that Jackson heard one shot as he ran out of the apartment. He claimed to find
out only later that others had been shot, though he also conceded meeting with
Cunningham shortly thereafter and fleeing the scene in a car together. Unpersuaded by
this account, the jury convicted Jackson of all counts and specifications, and, after a
penalty-phase hearing, imposed a sentence of death for each murder count. The court
followed the jury’s verdict and separately sentenced Jackson to death for each murder.
The preceding factual account is drawn from Jackson’s direct appeal to the
Supreme Court of Ohio. State v. Jackson, 836 N.E.2d 1173, 1183-85 (Ohio 2005). That
court rejected all of Jackson’s claims of error as to his guilt, but accepted one claim of
error challenging one of his two death sentences: as to the murder count pertaining to
three-year-old Jayla Grant, the court determined that the trial court abused its discretion
in handling the jury voir dire by denying Jackson’s request to inform potential jury
members — some of whom had expressed tendencies toward automatic imposition of
the death penalty for child killers — that one of the victims was a young child. Id. at
No. 08-3677 Jackson v. Houk Page 4
1187-92. It found that this error did not affect the validity of the other death sentence.
Id. at 1192. Though it remanded the Grant count for resentencing, the result of the direct
appeal was that Jackson’s death sentence, if only for the murder of Leneshia Williams,
became final.
After unsuccessfully pursuing post-conviction relief in the Ohio state courts,
Jackson filed a petition for a writ of habeas corpus in federal district court, pursuant to
28 U.S.C. § 2254. His petition raised twenty claims. The district court denied them all
and declined to grant a certificate of appealability on any of them. Jackson v. Houk,
No. 3:07CV0400, 2008 WL 1946790 (N.D. Ohio May 1, 2008).
We then certified nine of Jackson’s habeas claims for appellate review: (1) the
trial court improperly limited Jackson’s ability to uncover juror bias against him in
connection with pretrial publicity which led it to deny his motion for a change of
venue; (2) the trial court improperly prohibited trial counsel from examining prospective
jurors about potential bias against someone accused of killing a young child; (3) the trial
court improperly prohibited trial counsel from conducting a careful and searching
examination of prospective jurors about potential bias against someone accused of
killing a young child; (4) the trial court improperly prohibited trial counsel from
examining prospective jurors about whether they could consider a life sentence for the
killing of a young child; (5) the trial court improperly prohibited trial counsel from
examining prospective jurors who expressed reservations about imposing the death
penalty; (6) the trial court improperly excused prospective jurors who expressed
reservations about imposing the death penalty; (7) the cumulative effect of the trial
court’s errors in voir dire amounted to a denial of a fundamentally fair trial; (8) trial
counsel rendered ineffective assistance of counsel throughout trial; and (9) trial counsel
rendered ineffective assistance of counsel by failing to investigate and introduce helpful
and explanatory mitigating evidence at trial. We will address each in turn, beginning
with Jackson’s venue claim.
One final point, before turning to the merits of these claims. Jackson filed his
habeas petition subsequent to the effective date of the Antiterrorism and Effective Death
No. 08-3677 Jackson v. Houk Page 5
Penalty Act (AEDPA). This fact significantly constrains our review of most of
Jackson’s claims. Where a claim was not overlooked but was adjudicated on the merits
in a state court proceeding, we may grant the writ only if the state court adjudication
“(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 on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). In the recent case of Greene v. Fisher, 565 U.S. ____, 132 S. Ct. 38, 43-44
(2011), a unanimous Supreme Court observed that the AEDPA standard “is difficult to
meet, because the purpose of AEDPA is to ensure that federal habeas relief functions as
a guard against extreme malfunctions in the state criminal justice systems, and not as a
means of error correction.” (internal quotation marks and citations omitted.)
II. The Denial of Jackson’s Motion for a Change of Venue
We address first Jackson’s claim that the trial court constitutionally erred when
it denied his motion for a change of venue premised on the extensive pretrial publicity
surrounding the murders, while at the same time denying him the right to question the
jury about any specific details concerning a juror’s knowledge of the publicity. Jackson
presented this claim on direct appeal, but the Supreme Court of Ohio did not address it
at all. Because de novo review leads to affirmance, we need not decide whether AEDPA
deference applies under the rule of Harrington v. Richter, 131 S. Ct. at 784-85.
Accordingly, we review it de novo. We take into account the unusually detailed and
extensive publicity about the murders in this case, and about the trial and death sentence
of Cunningham immediately before Jackson’s trial. We also take into account for
purposes of due process the limitations placed on defense counsel during voir dire, and
the small size of the community in which these events took place. We are governed by
the strict principles limiting federal review of jury voir dires and motions for change of
venue imposed by the Supreme Court in Mu’Min v. Virginia, 500 U.S. 415 (1991) and
Skilling v. United States, 130 S. Ct. 2896 (2010). Constrained by the language of these
two Supreme Court opinions, we conclude that no due process violation occurred.
No. 08-3677 Jackson v. Houk Page 6
A. Factual Background
We turn first to the details of the pretrial publicity that surrounded this case.
Newspapers and television in the community of Lima, Ohio, consistently identified
Jackson and his accomplice, Cunningham, as the sole suspects in the case from the
moment of their apprehension some three days after the murders. [J.A. 7470.] Nearly
every step of the legal proceedings against them was chronicled, beginning with their
first appearance in court, which the Lima News covered with photographs of the two men
in bullet proof vests and an article relating that “[e]xtra officers were brought in for
added security due to the publicity surrounding the crime” and quoting a victim’s family
member as saying, “I can’t wait to see what they’re going to get.” [J.A. 7473-74.]
Two days later, a newspaper account mentioned that security problems caused by “the
high running emotions surrounding the case” were forcing court and state officials to
avoid preliminary hearings. [J.A. 7477.] Accounts spoke of a “mountain of evidence,
including two lengthy statements” from both defendants. [J.A. 7483.] The pretrial
motions in Jackson’s case — including the venue motion at the heart of the present
appeal — received considerable media attention. [J.A. 7485-91.] Newspaper accounts
even covered the litigation surrounding the contents of proposed jury questionnaires to
be used in selecting Jackson’s jury. [J.A. 7492.]
Meanwhile, the pre-trial rulings and trial of Cunningham, which occurred just
prior to that of Jackson, were covered in detail by the press. [See, e.g., J.A. 7493-7522.]
Opening arguments in the Cunningham trial were described under the headline “‘New
Year’s Massacre’ on Eureka Street.” [J.A. 7513.] Media accounts relayed the testimony
of James Grant, the father of the child victim, in which he described “begg[ing] for his
young daughter’s life as a gun was pointed at her head and fired.” [J.A. 7509.] Later
accounts repeating this scene further dramatized the testimony in Cunningham’s trial:
“[T]he remaining soon-to-be victims huddled together on the kitchen floor, crying as
James Grant pleaded with the men to spare the life of his 3-year-old daughter,
[Jayla] Grant. But the men didn’t listen.” [J.A. 7515.] Television accounts described
testimony in Cunningham’s trial specifically accusing Jackson of shooting Jayla Grant.
No. 08-3677 Jackson v. Houk Page 7
[J.A. 7586.] As soon as the verdict came in, local television stations broke into daytime
programming such as The Oprah Winfrey Show in order to report that Cunningham had
been found guilty. [J.A. 7796.] A news account summarizing the jury’s death verdict
against Cunningham quotes an assistant prosecutor as promising of Jackson’s trial: “It’s
going to be a rewind and play it again.” [J.A. 7521.]
Cunningham was formally sentenced to death on June 26, 2002. [J.A. 7522.]
Two weeks later, jury selection in Jackson’s case began. The jury pool was aware of the
extensive media coverage of the murders and Cunningham’s trial and conviction. Our
examination of individual questioning in the voir dire indicates that of the twelve jurors
actually seated, all but one reported knowing about the case through the media, and the
one who said he did not apparently knew one of the victims personally. [J.A. 11843-44.]
Some seated jurors reported hearing it generally and others remembered specifics such
as that a young child was involved. [See, e.g., J.A. 11886.]
B. Procedural History and Standard of Review
Prior to his trial’s commencement, Jackson filed a motion for change of venue,
contending that the detailed and inflammatory media coverage required the court to
presume prejudice in advance of voir dire. He asked to move the trial away from Allen
County, where the town of Lima is located. [J.A. 857-63.] The prosecution, for its part,
sought to prevent any questioning during individual voir dire concerning the contents
of pretrial publicity encountered by potential jurors and moved in limine specifically to
foreclose any inquiry as to potential jurors’ knowledge of the facts or outcome of
Cunningham’s trial. The trial court granted the state’s motion and precluded all inquiry
into the contents of pretrial publicity [J.A. 1684-85, 11437-41], but it withheld a ruling
on Jackson’s venue motion until the conclusion of voir dire. After voir dire and with the
jury seated, the trial court denied Jackson’s venue motion, finding that the “impartiality
of the members of the jury selected and seated was not compromised by any pretrial
publicity.” [J.A. 1693.]
Following his conviction and death sentence, Jackson renewed his venue claim
in his brief on direct appeal before the Supreme Court of Ohio. Under his Proposition
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of Law I — framed, at a somewhat high level of generality, as an argument that Jackson
“was entitled to a trial by a fair and impartial jury free from bias or preconceived
opinions about guilt or punishment” under various state and federal constitutional
provisions — his brief argued specifically: “Jackson was entitled to a change of venue.
Changes in venue help to protect fair trial rights. A trial court can change venue when
it appears that a fair and impartial trial cannot be held in that court.” [J.A. 1937 (internal
quotation marks and citations omitted).] Jackson’s brief then went on to cite State v.
Lundgren, a Supreme Court of Ohio case interpreting the federal constitutional standard
for a defendant’s right to a change of venue where prejudice should be presumed. See
653 N.E.2d 304, 313-14 (Ohio 1995) (citing, in the portion of the opinion cited in
Jackson’s brief, Sheppard v. Maxwell, 384 U.S. 333 (1966), and Rideau v. Louisiana,
373 U.S. 723 (1963)). Despite having this argument before it, the Supreme Court of
Ohio failed entirely to address the legal question of whether Jackson was entitled to a
change of venue. The word “venue” appears once in the court’s opinion, in a factual
statement recounting the trial court’s denial of Jackson’s motion. See Jackson,
836 N.E.2d at 1186. Overlooking the unmistakable presence of a discrete legal
argument in Jackson’s brief contending that he was entitled to a change of venue, the
Ohio court construed his argument as challenging only the manner in which voir dire
was undertaken, and never reached the distinct question of venue.
This procedural landscape has a significant effect on our standard of review of
Jackson’s venue claim, which he has renewed before this court in his habeas appeal.
AEDPA ordinarily limits our grant of habeas relief to cases where the state court has
acted “contrary to” or has “unreasonabl[y] appli[ed] . . . clearly established Federal law,
as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
But that stricture is limited to claims that were “adjudicated on the merits in State court
proceedings.” 28 U.S.C. § 2254(d). In cases such as this, “when a claim has not been
adjudicated on the merits in State court proceedings, and has not been procedurally
defaulted, we look at the claim de novo rather than through the deferential lens of
AEDPA.” Hill v. Mitchell, 400 F.3d 308, 313 (6th Cir. 2005) (internal quotation marks
and citations omitted).
No. 08-3677 Jackson v. Houk Page 9
The State has advised us in a supplemental brief on October 11, 2011, that this
venue issue is not properly before us for decision because it “was not raised in the
habeas petition,” “was not reviewed by the District Court,” and “Jackson never sought
nor received a COA on this claim.” We have gone back over the record and find that the
record does not support these statements and that counsel for the State is in error that we
“lack jurisdiction to grant relief on this claim.” The record demonstrates that Grounds
II, III and VII of the habeas petition describe due process claims going to the strict
limitations placed on Jackson’s counsel in questioning the jurors regarding their
exposure to the extensive pretrial publicity that prompted his request for a change of
venue. Item 3 of the Certificate of Appealability lists as an issue the fact that the trial
court limited Jackson’s ability to uncover juror bias against him and denied his motion
for a change of venue. The district court denied the claim on the merits by citing
Supreme Court cases, particularly stating that in “Mu’Min, 500 U.S. at 422, the Court
determined that, while a trial court may question potential jurors about their exposure
to pre-trial publicity, the court need not inquire about what media coverage each had
viewed.” Jackson, 2008 WL 1946790, at *41 (internal citations omitted). We do not
lack jurisdiction to review the issue.
C. Merits of the Venue/Voir Dire Issue
Early in the 1960's the Supreme Court recognized that some instances of
pervasive pretrial publicity may render the defendant’s trial fundamentally unfair
regardless of professions of impartiality on the part of jurors seated during voir dire.
In Rideau, a case where the defendant’s televised confession was broadcast to the
community shortly before his trial, the Court held that “it was a denial of due process of
law to refuse the [defendant’s] request for a change of venue.” 373 U.S. at 726 (1962).
In Estes v. Texas, the Court again reversed a conviction where “there had been a
bombardment of the community with the sights and sounds,” 381 U.S. 532, 538 (1965),
of media coverage of an initial pretrial hearing involving the defendant. The Court noted
that a showing of actual prejudice “is not a prerequisite to reversal” where “the
circumstances [are] held to be inherently suspect.” Id. at 542, 544. And in Sheppard,
No. 08-3677 Jackson v. Houk Page 10
faced with what it called a “carnival atmosphere” wrought by extensive media coverage
both before and throughout the trial, the Court held that “where there is a reasonable
likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should
continue the case until the threat abates, or transfer it to another county not so permeated
with publicity.” 384 U.S. at 363. The Court held that “appellate tribunals have the duty
to make an independent evaluation of the circumstances,” and not defer to the state trial
court. Id. at 362. The Court said: “Given the pervasiveness of modern communications
and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial
courts must take strong measures to ensure that the balance is never weighed against the
accused.” Id.This presumption of prejudice based on pervasive publicity continued into the
1980's. In Patton v. Yount, 467 U.S. 1025, 1031 (1984), the Court acknowledged a
presumption of prejudice: the “jurors’ claims that they can be impartial should not be
believed.” These views concerning pretrial publicity and voir dire arose from a concern
that human nature is such that a juror may want to conceal his own bias or may not be
aware of it.
In Mu’Min, 500 U.S. at 433, and Skilling, 130 S. Ct. at 2918 (2010), the Court
replaced the presumption of prejudice based on pervasive publicity and the need for
extensive voir dire in such circumstances with a constitutional rule of deference to the
trial judge with regard to voir dire and change of venue. Mu’Min, a death penalty case
decided 5-4 on this issue, rejected as a constitutional standard the Standards for Criminal
Justice of the American Bar Association § 8-3.5 (2d ed. 1980), which called for
interrogation of each juror concerning “what the prospective juror has read and heard
about the case.” 500 U.S. at 430 (internal quotation marks omitted). Rather, the Court
“stressed the wide discretion granted to the trial court in conducting voir dire in the area
of pretrial publicity and in other areas of inquiry that might tend to show juror bias.” Id.
at 427. The trial court in Mu’Min had conducted the voir dire with four prospective
jurors in each group and did not allow counsel to ask about the “content” of the publicity
No. 08-3677 Jackson v. Houk Page 11
a juror had heard or read about the case. The Supreme Court specifically approved this
procedure.
The state trial judge in the instant case closely followed the language of the
Mu’Min case and conducted the voir dire based on it. Although all of the jurors knew
something about the case, the trial judge did not allow questions about the “content” of
what they knew or the source of their knowledge. All of the jurors who were accepted
on the jury by the trial court did state, however, that they could render a fair and
unbiased verdict without regard to their knowledge of the case arising from the extensive
pretrial publicity. The Supreme Court of Ohio recognized that the trial judge had
conducted the voir dire in accordance with the pattern approved in the Mu’Min case.
Jackson, 836 N.E.2d at 1186-87.
In Skilling, a 2010 case, the Supreme Court revisited and reaffirmed Mu’Min in
a 5-4 opinion. See 130 S. Ct. at 2918, 2923. The Court had before it massive, intense,
persistent pretrial publicity in Houston, Texas, about the Enron scandal and the
culpability of Enron’s officials. The defendant was the chief operating officer who
became the chief executive of Enron. In denying a change of venue, the Court
repeatedly cited and quoted Mu’Min with approval:
Jury selection, we have repeatedly emphasized, is “particularly within the
province of the trial judge.”. . . see, e.g., Mu’Min, 500 U.S. at 424.
....
When pretrial publicity is at issue, “primary reliance on the judgment of
the trial court makes [especially] good sense” because the judge “sits in
the locale where the publicity is said to have had its effect” and may base
her evaluation on her “own perception of the depth and extent of news
stories that might influence a juror.” Mu’Min, 500 U.S. at 427.
Appellate courts making after-the-fact assessments of the media’s impact
on jurors should be mindful that their judgments lack the on-the-spot
comprehension of the situation possessed by trial judges.
....
In reviewing claims of this type, the deference due to district courts is at
its pinnacle: “A trial court’s findings of juror impartiality may be
No. 08-3677 Jackson v. Houk Page 12
overturned only for manifest error.” Mu’Min, 500 U.S. at 428 (internal
citations and quotation marks omitted).
Id. at 2917-18, 2923.
Based on Skilling, there seems to be no doubt that the Mu’Min constitutional
standard represents the current Supreme Court law of due process that must be applied
by lower courts to problems related to change of venue and the questioning of jurors.
The older standards articulated in the 1960's and repeated in the 1984 Patton v. Yount
case no longer represent the current state of the law, and we are constrained to apply the
new standards of Mu’Min. That standard and our uncertainty as to the scope and content
of the jurors’ knowledge leads us to defer to the state trial judge’s rejection of a change
of venue from the small town where the case was tried to another county of the state.
Absent more detailed knowledge of what the jurors knew from the press, we are unable
to say what effect the publicity had. Mu’Min’s deferential voir dire rule eliminates the
factual basis for an appellate finding of “manifest error” by the trial judge.
III. Jackson’s Other Voir Dire Claims
1. Whether the Trial Court Improperly Prohibited Trial Counsel From Examining
Prospective Jurors About Potential Bias Against Someone Accused of Killing a
Young Child
Jackson claims that the trial court unduly restricted voir dire when it refused to
allow inquiry by defense counsel of prospective jurors concerning their views about
imposing the death penalty on a person who is convicted of killing a three-year-old
child. Counsel wanted to discover bias or a tendency toward automatic imposition of
the death penalty for this class of defendants. The Warden concedes that this claim is
properly preserved. As noted above, the Supreme Court of Ohio accepted this claim and
ruled that the trial court abused its discretion in this respect. Jackson’s argument on
appeal primarily pertains to that court’s remedy: the Ohio court vacated only the death
sentence imposed for the murder of Jayla Grant, the three-year-old child, but Jackson
contends that his improper death sentence (or even his conviction) for the other murder,
of Leneisha Williams, should have been vacated as well. Jackson contends that the child
No. 08-3677 Jackson v. Houk Page 13
murder washes over the whole case. The constraint of AEDPA precludes our issuing the
writ on this basis.
The Ohio Supreme Court’s description of the relevant facts, its reasoning, and
its disposition of the issue, are excerpted in part below:
During individual voir dire, after six prospective jurors had been
questioned, including four who eventually were seated as jurors, defense
counsel requested that the trial court inform prospective jurors that one
murder victim was three years old and allow the defense to question
prospective jurors about that fact to reveal any bias toward imposing the
death penalty. At the time this issue was raised, the trial court had not
informed the venire that one murder victim was three years old. Nor did
the court inform any of the remaining prospective jurors of this fact.
The trial court rejected defense counsel's request and would not
permit counsel to discuss the ages of the murder victims with the venire.
[. . .]
After another 15 prospective jurors had been individually
questioned, including three who eventually became jurors, defense
counsel again asked to examine prospective jurors about their views on
imposing the death penalty on child murderers.
The trial court denied defense counsel's second request, ruling
that a defendant is not entitled to question prospective jurors on the
specifics of the case. [. . .]
We conclude that the trial court's limitation on voir dire in this
case was an abuse of discretion. The trial court erred when it held that
appellant was not entitled to have prospective jurors informed that one
of the murder victims was three years old. While fairness requires that
jurors be impartial, prospective jurors need not be totally ignorant of the
facts and issues involved to be qualified as jurors. State v. Gross, 97 Ohio
St. 3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, at ¶ 38, citing State v.
Sheppard (1998), 84 Ohio St. 3d 230, 235, 703 N.E.2d 286; Murphy v.
Florida (1975), 421 U.S. 794, 799-800, 95 S. Ct. 2031, 44 L. Ed. 2d 589.
[. . .]
In this case, the trial judge misconstrued defense counsel's request
to inform the prospective jurors of Jayla's age as an attempt “‘to
predispose jurors to react a certain way to anticipated evidence,’” quoting
Missouri v. Clark, 981 S.W.2d 143, 147. Counsel were merely
attempting to discover whether prospective jurors could fairly consider
imposition of a life sentence in a case involving a three-year-old murder
victim. While it is improper for counsel to seek a commitment from
prospective jurors on whether they would find specific evidence
mitigating, State v. Bedford, 39 Ohio St. 3d at 129, 529 N.E.2d 913,
counsel should be permitted to present uncontested facts to the venire
No. 08-3677 Jackson v. Houk Page 14
directed at revealing prospective jurors’ biases. Turner v. Murray (1986),
476 U.S. 28, 36-37, 106 S. Ct. 1683, 90 L. Ed. 2d 27.
[. . .]
“The Constitution . . . does not dictate a catechism for voir dire,
but only that the defendant be afforded a fair and impartial jury. Even so,
part of the guarantee of a defendant's right to an impartial jury is an
adequate voir dire to identify unqualified jurors.” Morgan v. Illinois
(1992), 504 U.S. 719, 729, 112 S. Ct. 2222, 119 L. Ed. 2d 492; State v.
Wilson, 74 Ohio St. 3d at 386, 659 N.E.2d 292. “Without an adequate
voir dire the trial judge's responsibility to remove prospective jurors who
will not be able impartially to follow the court's instructions and evaluate
the evidence cannot be fulfilled.” Rosales-Lopez v. United States (1981),
451 U.S. 182, 188, 101 S. Ct. 1629, 68 L. Ed. 2d 22. Accordingly, the
exercise of the trial court's discretion to restrict inquiry by counsel is
subject to the essential demands of fairness. Morgan, 504 U.S. at 730,
112 S. Ct. 2222, 119 L. Ed. 2d 492, citing Aldridge v. United States
(1931), 283 U.S. 308, 310, 51 S. Ct. 470, 75 L. Ed. 1054.
Questions on voir dire must be sufficient to identify prospective
jurors who hold views that would prevent or substantially impair them
from performing the duties required of jurors. Morgan, 504 U.S. at
734-735, 112 S. Ct. 2222, 119 L. Ed. 2d 492. Moreover, the fact that
defendant bears the burden of establishing juror partiality, see
Wainwright v. Witt, 469 U.S. at 423, 105 S.Ct. 844, 83 L. Ed. 2d 841,
makes it all the more imperative that a defendant be entitled to
meaningful examination at voir dire in order to elicit potential biases held
by prospective jurors. Mu'Min v. Virginia, 500 U.S. at 441, 111 S. Ct.
1899, 114 L. Ed. 2d 493 (Marshall, J., dissenting).
The trial court here was on notice that some prospective jurors
harbored a strong bias in favor of imposing death for murderers of
children. If an issue of bias surfaces before trial, it is the trial court's
responsibility to conduct an adequate inquiry. Oswald v. Bertrand
(C.A.7, 2004), 374 F.3d 475, 484. See, also, United States v. Barber
(C.A.4, 1996), 80 F.3d 964, 968 (an inquiry is required during voir dire
to eliminate prejudice that threatens the fairness of the process or the
result). The greater the probability of bias, “the more searching the
inquiry needed to make reasonably sure that an unbiased jury is
impaneled.” Oswald v. Bertrand, 374 F.3d at 480.
At a minimum, the trial court should have granted defense
counsel's request to inform the venire that one murder victim was a
three-year-old child. If the prospective jurors had been aware of this fact
when they were asked general questions of fairness and impartiality, they
may well have been prompted to admit to a predisposition to recommend
the death penalty for those who murder children. However, without
knowledge of this fact, prospective jurors could respond truthfully to
No. 08-3677 Jackson v. Houk Page 15
general questions of fairness and impartiality while the specific concern
was left unprobed.
In this case, appellant was charged with killing a three-year-old
child. “[I]t is in just these circumstances, when the crime itself is likely
to inflame the passions of jurors, that courts must be vigilant in ensuring
that the demands of due process are met.” McKenzie v. Smith (C.A.6,
2003), 326 F.3d 721, 727-728 (case involving brutal assault on
three-year-old child). Protecting children from harm is a common human
characteristic, and many people harbor strong feelings and emotions
whenever a child is a victim of a violent crime. Some prospective jurors,
when presented with this fact, may have been unable to remain
dispassionate and impartial when deciding whether the death sentence
should be imposed. The possibility that one juror might not have fairly
considered sentencing options and may have voted for the death penalty
solely because appellant murdered a three-year-old child is a risk too
great to ignore. “If even one such juror is empaneled and the death
sentence is imposed, the State is disentitled to execute the sentence.”
Morgan, 504 U.S. at 729, 112 S. Ct. 2222, 119 L. Ed. 2d 492. Therefore,
we find that due process required that defense counsel be allowed to
determine whether any members of the venire harbored prejudices
regarding this fact in order to exercise their challenges intelligently.
We hold that in a death-penalty case involving the murder of a
young child the defendant is entitled, upon request, to have the
prospective jurors informed of that fact and to ask questions that seek to
reveal bias. The trial court retains its discretion as to the form and
number of questions on the subject, including whether to question the
prospective jurors individually or collectively. See State v. Wilson,
74 Ohio St. 3d at 386, 659 N.E.2d 292; Ham v. South Carolina, 409 U.S.
at 527, 93 S. Ct. 848, 35 L. Ed. 2d 46.
The trial court abused its discretion by refusing defense counsel's
requests to advise prospective jurors that one of the murdered victims
was a three-year-old child and by refusing to allow voir dire on that fact.
Therefore, the death sentence imposed on appellant in Count I for the
aggravated murder of Jayla Grant is vacated. The matter is remanded to
the trial court for resentencing consistent with R.C. 2929.06. Our
disposition of this issue does not affect the separate death sentence
imposed on Jackson for the death of Leneshia Williams. (Emphasis
added.)
Jackson, 836 N.E.2d at 1189-92. Now in this habeas appeal, it is the final sentence of
the above-quoted excerpt with which Jackson takes issue: he maintains — as he must
for this case to qualify for habeas relief under 28 U.S.C. § 2254(d)(1) — that the Ohio
Supreme Court either acted contrary to or unreasonably applied clearly established
Supreme Court precedent in vacating only one, but not the other, of Jackson’s two death
No. 08-3677 Jackson v. Houk Page 16
sentences, where defense counsel was forbidden to inquire about bias on the part of
potential jurors against accused child killers.
We do not agree for the simple reason that there was no “clearly established law”
governing this issue for the Ohio court to contravene or unreasonably apply in disposing
of Jackson’s claim. We are limited in determining what counts as clearly established law
to the “holdings,” as opposed to the dicta, of Supreme Court cases in effect at the time
of the state court’s decision. Williams v. Taylor, 529 U.S. 362, 412 (2000). The
holdings of the Supreme Court governing questions a defendant’s counsel is
constitutionally entitled to ask of potentially biased jurors are narrow, as our previous
discussion indicates, and cluster primarily around the topic of racial bias. Jackson
appears in his brief on appeal principally to rely on Turner v. Murray as the case the
Ohio court unreasonably applied, but the holding of that case is explicitly limited to race.
See 476 U.S. 28, 36-37 (1986) (“We hold that a capital defendant accused of an
interracial crime is entitled to have prospective jurors informed of the race of the victim
and questioned on the issue of racial bias.”). Other cases cited by Jackson similarly fall
short of establishing whether the Ohio Supreme Court violated clearly established
constitutional law when it vacated one, but not both, of Jackson’s death sentences. In
Ham v. South Carolina, the Supreme Court reversed a conviction where a trial court
“refus[ed] to make any inquiry as to racial bias of the prospective jurors,” but
conspicuously rejected — over a vigorous dissent — an argument contending that it was
error not to allow defense counsel to question the jury pool about non-racial bias, which
in that case consisted of a bias against “men with beards.” 409 U.S. 524, 527-28 (1973);
see also id. at 531-34 (Marshall, J., concurring in part and dissenting in part). Notably,
even in the sphere of racial bias, the Supreme Court has retreated from a conception of
Ham as a “per se” or “universal[ly] applicab[le]” rule entitling counsel to ask certain
questions during voir dire. Ristiano v. Ross, 424 U.S. 589, 596 & n.8 (1976).
This is not to endorse the reasoning of the Supreme Court of Ohio as legally
correct. See Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (distinguishing AEDPA-
reasonableness from legal correctness). In Greene, the Supreme Court has told us we
No. 08-3677 Jackson v. Houk Page 17
may not engage in “error correction.” 132 S. Ct. at 143. Indeed, the Supreme Court of
Ohio’s analysis leading to its vacating of the death sentence related to the Jayla Grant
murder may be persuasive as an extension of constitutional principles. Nevertheless, the
Ohio court’s holding on the murder of Leneisha Williams does not violate clearly
established Supreme Court precedent. The two murders were tried together to the same
jury, and one of the death penalty specifications — a so-called “mass murder”
specification applying to defendants who killed or attempted to kill two or more people
— could very plausibly be thought explicitly to invite, if not require, jurors to consider
the two murders together when making their sentencing determination. Why the
Supreme Court of Ohio concluded that bias against child killers may have infected one
but not the other of these two simultaneously imposed death sentences is not stated. But
the Supreme Court has declared that even this form of summary adjudication merits so-
called AEDPA deference. Richter, 131 S. Ct. at 784-85 (stating that “[w]hen a federal
claim has been presented to a state court and the state court has denied relief, it may be
presumed that the state court adjudicated the claim on the merits,” even where the state
court fails to give reasons supporting its conclusions). Likewise, here we do not believe
that the failure of the Ohio court to explain its reasoning meets the AEDPA standard of
an “extreme malfunction[] in the state criminal justice system[],” Greene, 132 S. Ct. at
43 (internal citations and quotation marks omitted). Such failures appear with some
frequency in our legal system in courts from the lowest to the highest.
In sum, we hold only that there was no clearly established law governing the
issue of what questions defense counsel is entitled to ask in order to examine jurors
concerning non-racial bias against defendants accused of murdering a child. On that
basis alone, against the backdrop of AEDPA as interpreted by the Supreme Court, we
must deny Jackson’s claim.
2. Retention of Pro-Death-Penalty Jurors And Exclusion of Anti-Death-Penalty
Jurors
Jackson next argues that the trial court failed to excuse jurors in an even-handed
way when it allowed jurors who have a preference for the death penalty in murder cases
No. 08-3677 Jackson v. Houk Page 18
to remain while at the same time excusing jurors who dislike the death penalty or have
reservations about imposing the death penalty. The constitutional problem of whether
to allow states to exclude jurors who have qualms about the death penalty begins with
Witherspoon v. Illinois, 391 U.S. 510 (1968). In an opinion by Justice Stewart, the Court
said that the jury in a capital case “can do little more — and must do nothing less — than
express the conscience of the community on the ultimate question of life or death,” id.
at 519, and the state may not “cull[]” from the jury “all who harbor doubts about the
wisdom of capital punishment — of all who would be reluctant to pronounce the
extreme penalty,” id. at 520. The Court made it clear that a state may exclude jurors
who are “automatically . . . against” id. at 522 n.21, the death penalty but not those who
harbor doubt or “would be reluctant to pronounce the extreme penalty,” id. at 520.
Witherspoon is no longer the law. In 1985, Justice Rehnquist wrote an opinion for the
Court — like his opinion in Mu’Min — that holds that “deference must be paid to the
trial judge who sees and hears the juror” and must include “a presumption of
correctness” under 28 U.S.C. § 2254, a presumption that is now strengthened by AEDPA
deference. Wainwright v. Witt, 469 U.S. 412, 426 (1985). Here, Ohio’s highest court
upheld the trial judge’s rulings on the acceptance or rejection of jurors. The U.S.
Supreme Court has now made it completely clear that the interest of the state in
imposing the death penalty must be honored under AEDPA by deferring to the state
court concerning the exclusion of jurors who are reluctant to impose the death penalty.
See Uttecht v. Brown, 551 U.S. 1 (2007). Scholars now argue that this new deference
to the state’s interest in imposing the death penalty has tilted the scales heavily in favor
of a system that prefers jurors who favor the death penalty, instead of those who are
reluctant to impose it. See, e.g., G. Ben Cohen, “The Death of Death-Qualification,” 59
CASE W. RES. L. REV. 87 (2008); Adam M. Clark, “An Investigation of Death
Qualification As A Violation of the Rights of Jurors,” 24 BUFF. PUB. INT. L.J. 1 (2006).
Jackson’s challenge focuses on four jurors questioned during voir dire, none of
whom were excused for cause. Concerning Juror No. 230, Jackson focuses his argument
on a single exchange between defense counsel and this juror during voir dire, where the
juror answered “I think so” when asked if there were circumstances in which he would
No. 08-3677 Jackson v. Houk Page 19
“automatically” impose the death penalty. [J.A. 11743.] However, at multiple other
times during this juror’s examination — including directly after this response — the
juror indicated a willingness to follow the judge’s instructions, and that he did not think
the death penalty was “right for every case.” [J.A. 11721-22, 11745.] Jackson maintains
that Juror No. 291 would only return a verdict other than death if the defendant proved
it was done in self-defense, but the record demonstrates that she in fact acknowledged
other circumstances in which she might not impose the death penalty [J.A. 12230], and
in any case consistently denied that she would automatically impose the death penalty
in every case [J.A. 12228-29]. Jackson makes a similar allegation as to Juror No. 299,
and, while the record at times provides more support than it does for No. 291
[J.A. 12277-78], No. 299 at other times expressed a willingness to weigh mitigating
evidence consistent with the court’s instructions and denied that she would automatically
impose the death penalty upon conviction [J.A. 12289-90]. In light of the record, the
Ohio court’s determination that these responses satisfied Witt was not unreasonable.
Finally, Jackson complains that the trial court did not excuse for cause Juror No. 263.
The Ohio Supreme Court found that he waived this objection by not raising it during voir
dire itself, where trial counsel explicitly passed the juror for cause. Jackson, 836 N.E.2d
at 1188; [J.A. 12047]. Even were we to overlook the procedural implications of defense
counsel’s failure to challenge this juror for cause (which are unraised by the Warden in
this appeal), our review of the record suggests that this juror’s responses during voir dire
complied with the dictates of Witt as he expressed an ability to consider fairly all
sentencing options. [See J.A. 12042.]
Jackson also contests the trial court’s refusal to allow him to rehabilitate anti-
death-penalty jurors excused for cause as unqualified to sit on a capital jury during voir
dire. This core claim was rejected by the Supreme Court of Ohio on direct appeal,
Jackson, 836 N.E.2d at 1187, and the district court sitting in habeas, Jackson, 2008 WL
1946790, at *45.
Jackson identifies four jurors who were excused for cause as biased against the
death penalty without his having a chance to rehabilitate them. Juror No. 222 during
No. 08-3677 Jackson v. Houk Page 20
initial questioning by the trial court repeatedly and clearly indicated that he would be
unable to follow the court’s instructions in considering the penalty of death, and was
then excused for cause. [J.A. 11632.] Juror No. 228 during questioning by the trial
court unequivocally stated his opposition to the death penalty and his inability to follow
the court’s instructions, and — after a sidebar in which the trial court agreed to defense
counsel’s request for a further line of inquiry — was excused. [J.A. 11671-76.] Juror
No. 300 also repeatedly indicated an unwillingness to follow the court’s instructions in
considering the death penalty. [J.A. 12297-99.] In light of the limited scope of our
review in this habeas appeal, as explained above, we cannot say the Ohio Supreme
Court’s resolution of Jackson’s claims as to these jurors was unreasonable.
Juror No. 301, out of all jurors Jackson identifies, was perhaps most equivocal
in her responses. Under initial questioning by the trial court, she first indicated that she
would have no choice and would be “required” to consider the death penalty
[J.A. 12316]; she then responded that she “d[id]n’t know” whether she could or not, but
that she “would try” [id.]. Later, under questioning by the prosecution, she indicated she
“would fairly consider” the death penalty despite her scruples about it. [J.A. 12324.]
Under further questioning, she then answered that she could not give the death penalty
“equal weight” compared to other sentences, and then said, “I would try my best to
consider it, but already I know in my head that there is that bias there that if I were given
a choice I would not treat the death penalty as much as an option.” [J.A. 12328-29.]
The trial court then granted the prosecution’s challenge for cause, and refused defense
counsel’s request to attempt to rehabilitate her. We agree with the Ohio Supreme
Court’s precatory observation that it would “have been preferable for the trial court to
permit defense counsel to question th[is] juror[].” Jackson, 836 N.E.2d at 1187. But,
again, under the limited scope of our review, we cannot grant habeas relief on Jackson’s
claim. We are not permitted to return to the 1968 Witherspoon relaxed standard that
allows all but death penalty abolitionists to serve.
No. 08-3677 Jackson v. Houk Page 21
IV. Ineffective Assistance Claims
1. Whether Trial Counsel Rendered Ineffective Assistance Throughout Trial
As the basis for his claim that his trial counsel was constitutionally ineffective
— conceded to be preserved by the Warden — Jackson cites various incidents from the
guilt phase of the trial: (1) counsel’s alleged failure to demonstrate the need for
adequate investigative and expert assistance; (2) counsel’s alleged failure to investigate
and prepare evidence in support of a motion to suppress; (3) counsel’s alleged
ineffectiveness during voir dire; (4) counsel’s alleged failure to provide any guidance
during opening statements; (5) counsel’s alleged failure to object to inflammatory
portions of the prosecution’s opening statement; (6) counsel’s alleged failure to cross-
examine effectively Jackson’s half-sister, Tara Cunningham; and (7) counsel’s alleged
failure to cross-examine effectively forensic pathologist Dr. Cynthia Beisser. Jackson’s
guilt-phase ineffective assistance claim was rejected by both the Supreme Court of Ohio
on direct review, Jackson, 836 N.E.2d at 1204-06, and the district court in denying
Jackson’s habeas petition, Jackson, 2008 WL 1946790, at *57-62.
Claims of ineffective assistance of counsel are analyzed under the well
established two-pronged test announced in Strickland v. Washington, 466 U.S. 668(1984). In order to prevail on this claim, Jackson must demonstrate first that his
counsel’s performance was deficient — that is, that counsel’s performance fell below an
objective level of reasonable representation — and then that the deficient performance
prejudiced his right to a fair trial, meaning a trial the outcome of which is reliable and
worthy of confidence. Id. at 687-88, 694. The Supreme Court has recently again
underlined the difficulty of prevailing on a Strickland claim in the context of habeas and
AEDPA; it requires the petitioner not only to demonstrate the merit of his underlying
Strickland claim, but also to demonstrate that “there is no possibility fairminded jurists
could disagree that the state court’s decision [rejecting the Strickland claim] conflicts
with this Court’s precedents.” Richter, 131 S. Ct. at 786 (noting that this was “meant to
be” a difficult standard to meet). Considering that Strickland’s own standard invites
deference to the conduct of counsel, Strickland, 466 U.S. at 689, combining that standard
No. 08-3677 Jackson v. Houk Page 22
with AEDPA creates a “doubly” deferential standard, Richter, 131 S. Ct. at 788 (also
noting that “[t]he Strickland standard is a general one, so the range of reasonable
applications is substantial”). In the end, our significantly constrained review of this
claim boils down to the determination of whether “there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Id. Briefly addressing this question
in the context of each of his sub-claims below, we conclude that the Supreme Court of
Ohio did not unreasonably apply Strickland in disposing of Jackson’s ineffective
assistance claim, nor create an “extreme malfunction[] in the state criminal justice
system[].” Greene, 132 S. Ct. at 43.
Jackson’s first sub-claim contends that trial counsel failed to demonstrate the
need for expert assistance reasonably necessary to assist in his defense. However, the
Supreme Court of Ohio found and our examination of the record confirms that trial
counsel did successfully request both a clinical psychologist (specifically in preparation
for a potential mitigation phase) and a ballistics expert. Jackson, 836 N.E.2d at 1204.
Accordingly, the Ohio court’s rejection of this sub-claim was not unreasonable.
Jackson’s second sub-claim argues that trial counsel failed effectively to
investigate, prepare, and litigate a motion to suppress potentially incriminating
statements made by Jackson to the police. The Supreme Court of Ohio found that this
claim must fail because Jackson could not have suffered Strickland prejudice, as the
statements in question were never introduced at trial. Id. Jackson in his brief on appeal
does not appear to contest this proposition and fails to cite anything to contradict it from
the record, and accordingly we find that the Ohio court acted reasonably in disposing of
this claim.
Jackson’s third sub-claim alleges that his trial counsel engaged in deficient
performance during voir dire. Apart from largely repeating arguments — described
above — complaining of the trial court’s limitations on voir dire, he suggests that trial
counsel was ineffective in not zealously contesting the trial court’s limitation and in not
questioning jurors in more detail concerning their possible bias in favor of the death
penalty or racial bias. On the contrary, our review of the record indicates that counsel
No. 08-3677 Jackson v. Houk Page 23
made numerous motions and objections throughout voir dire vigorously contesting the
district court’s voir dire limitations and otherwise conducted as able and thorough a voir
dire as was possible under the circumstances. Accordingly, the Ohio court’s rejection
of this sub-claim was not unreasonable.
In his fourth sub-claim, Jackson complains of his counsel’s alleged failure to
provide the jury with guidance during his opening statement. This claim was put before
the Ohio courts, which did not address it. Accordingly, we may review it de novo.
Thompson v. Bell, 580 F.3d 423, 439 (6th Cir. 2009). Nonetheless, this sub-claim does
not merit Strickland relief. As the district court noted in disposing of this claim, we have
previously held that the decision to forgo an opening statement entirely “is ordinarily a
mere matter of trial tactics and . . . will not constitute . . . a claim of ineffective assistance
of counsel.” Millender v. Adams, 376 F.3d 520, 525 (6th Cir. 2004) (internal citations
and quotation marks omitted). Here, defense counsel did make an opening statement,
which, although relatively brief, coherently presented a theory of the case in which
Cunningham was the primary shooter and had a different “agenda” than Jackson.
[J.A. 12646-49.] We find that counsel’s opening statement was not deficient
performance.
Fifth, Jackson contends that his counsel was ineffective for not objecting to
allegedly inflammatory portions of the prosecution’s opening statement. The Supreme
Court of Ohio rejected this sub-claim by finding that the allegedly improper statements
were not sufficiently prejudicial to Jackson to merit relief. Jackson, 836 N.E.2d at 1206.
We specifically denied Jackson’s motion for a certificate of appealability as to his
allegations of prosecutorial misconduct, and so, having already found that the underlying
claim of prosecutorial misconduct was not “adequate to deserve encouragement to
proceed further,” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (internal citations and
quotation marks omitted), we cannot find that defense counsel’s failure to object to it
constituted ineffective assistance.
Sixth, Jackson complains of defense counsel’s alleged failure properly to cross-
examine Tara Cunningham, Jackson’s half-sister and a witness for the prosecution, who
No. 08-3677 Jackson v. Houk Page 24
testified that she witnessed Jackson’s and Jeronique Cunningham’s discussion of their
plan to rob Shane Liles and that, after the shootings, she heard Jackson say that he
“didn’t mean to shoot that baby.” [J.A. 12800-02.] His core contention in support of
this sub-claim is that trial counsel failed to discover or properly cross-examine Tara
Cunningham concerning an alleged deal struck between her and the prosecution in
exchange for her testimony. The Supreme Court of Ohio rejected this argument,
reasoning that “[t]here is no evidence in the record that the state offered anything to Tara
for her testimony.” Jackson, 836 N.E.2d at 1205. We agree with the Ohio court’s
evaluation of the record, and further note that defense counsel did effectively cross-
examine Tara Cunningham: trial counsel elicited that she feared losing her public
housing, [J.A. 12812], and that she smoked marijuana on the morning of the murders,
[J.A. 12813-14], and, further, confronted her with her prior testimony in the trial of
Jeronique Cunningham, her other half-brother, where she conspicuously did not mention
hearing Jackson’s post-shooting comment about not “mean[ing] to shoot that baby.”
[J.A. 12806.] In light of the record, we cannot grant Strickland relief as to this sub-
claim.
Finally, Jackson contends that defense counsel failed to cross-examine
effectively forensic pathologist Dr. Cynthia Beisser, who testified for the prosecution
about the gunshot injuries suffered by the victims. In this sub-claim, he argues that
counsel’s failure to interview Dr. Beisser before attempting to cross-examine her
prejudiced Jackson’s case; he specifically directs our attention to an exchange where Dr.
Beisser refused to agree to a hypothetical question concerning possible bullet
trajectories, intended to bolster the defense’s argument that Cunningham, not Jackson,
shot the bullet that killed Jayla Grant. [J.A. 13116-13120.] Jackson argues that, had
defense counsel interviewed Dr. Beisser before cross-examining her, this allegedly
damaging exchange could have been avoided. Alternatively, he argues that defense
counsel should have called his own ballistics expert to refute Dr. Beisser’s testimony
concerning the path of the bullets fired. The Supreme Court of Ohio resolved this sub-
claim by finding no prejudice; it concluded that, because Ohio law did not require
Jackson to be the shooter in any case, and because substantial other evidence linked
No. 08-3677 Jackson v. Houk Page 25
Jackson to the murders, no prejudice could have flowed from counsel’s failure to
interview Dr. Beisser before cross-examining her. Jackson, 836 N.E.2d at 1205. The
court further noted that Jackson’s counsel had prevailed on a motion for funds to hire a
ballistics expert, but, in an apparent strategic decision, never called one to the stand. Id.
at 1205 n.1. Especially in light of the substantial evidence linking Jackson, and his
automatic handgun, to the shootings, we cannot find the Ohio court’s rejection of this
sub-claim unreasonable.
2. Whether Trial Counsel Rendered Ineffective Assistance of Counsel by Failing
to Investigate and Introduce Helpful and Explanatory Mitigating Evidence at Trial
Finally, Jackson argues that he was deprived of his right to effective assistance
of counsel during the penalty phase of the trial. Claims of ineffective assistance of
counsel as to the penalty phase of a capital proceeding are analyzed under the same two-
part Strickland standard described above, and in the context of capital sentencing, the
Supreme Court has made clear that counsel’s Sixth Amendment responsibilities include
a duty to engage in a reasonable investigation concerning aspects of the defendant’s
background that would support a mitigation case. Wiggins v. Smith, 539 U.S. 510, 522-
23 (2003). This claim was rejected by both the Supreme Court of Ohio on direct review,
Jackson, 836 N.E.2d at 1206, and the district court sitting in habeas, Jackson, 2008 WL
1946790, at *62-66.
Jackson’s argument in support of this claim appears to focus primarily on three
alleged failures of counsel. He claims (1) that counsel failed to investigate thoroughly
and effectively present evidence concerning Jackson’s traumatic childhood and his
violent and abusive mother; (2) that counsel failed to investigate thoroughly and
effectively present Jackson’s juvenile history, specifically a psychological evaluation
conducted after a juvenile conviction; and (3) that counsel failed to request or
demonstrate the need for a cultural expert to explain to the jury the effects of Jackson’s
heritage and upbringing on his behavior as a young adult. We will address each of these
sub-claims in turn.
No. 08-3677 Jackson v. Houk Page 26
Jackson’s first claim, alleging an ineffective investigation and presentation of his
starkly troubled childhood, is belied by the trial record. During the penalty phase,
defense counsel introduced first-hand accounts of Jackson’s childhood by calling to the
stand two of his aunts, and his mother. As an initial matter, all three witnesses testified
that Jackson’s mother stabbed Jackson’s abusive father to death in front of Jackson,
when he was three or four years old. [J.A. 13437, 13445-46, 13454-55.] The first aunt,
Joyce McNeal, testified that Jackson’s mother drank, that there was “a lot of physical
abuse” in Jackson’s childhood home, and that his mother attempted suicide multiple
times. [J.A. 13437-40.] The second aunt, Denise Cage, confirmed these details, and
further recalled hearing that Jackson had been raped in a foster home during a period in
which he had been removed from his mother’s care. [J.A. 13448.] Finally, Jackson’s
own mother, Betty Cunningham, confirmed her drug problems and suicide attempts, and
that Jackson had been taken from her by Children’s Services. [J.A. 13452-13460.]
Against this record, Jackson in this appeal nonetheless maintains that “[c]ounsel did not
present testimony demonstrating that . . . Cunningham had sub-standard parenting skills
and Children’s Services had to assist her in raising her children.” [Br. for Pet’r.-
Appellant 58.] We do not agree. Jackson also argues that counsel was ineffective for
not introducing records from Children’s Services concerning his history, but the
Supreme Court has expressly found no Strickland prejudice in cases where similar
unintroduced records “basically substantiate the testimony of [relatives].” See Cullen
v. Pinholster, 131 S. Ct. 1388, 1409-10 (2011).
Next, Jackson argues that counsel was ineffective for not discussing a
psychological evaluation made after Jackson’s juvenile arrest and conviction for gross
sexual imposition. A review of the record strongly suggests that the failure to introduce
materials related to Jackson’s juvenile criminal history was a strategic decision made by
counsel to avoid bringing up his conviction for gross sexual imposition; as the Warden
notes in his brief, Jackson’s counsel explicitly and successfully requested that the
prosecution be forbidden from referring to his juvenile record and convictions.
[J.A. 13503-04.] Strategic decisions such as this fall well outside the scope of our
review. See Strickland, 466 U.S. at 681.
No. 08-3677 Jackson v. Houk Page 27
Finally, Jackson argues that counsel was ineffective for not employing a “cultural
expert” to explain the effect of Jackson’s upbringing on his behavior in committing the
murders. Again, this claim is belied by the record: in addition to calling the three
relatives discussed above, Jackson’s counsel called a fourth witness in the penalty phase,
Dr. Kathleen Burch, a psychologist, who discussed the effect of Jackson’s childhood on
his present mental state. In addition to summarizing records from Children’s Services
describing various troubled episodes in Jackson’s childhood, Dr. Burch testified that
aspects of Jackson’s upbringing — in particular, his lack of a positive male role model
— made him statistically more susceptible to aggressiveness and deficient moral
development. [J.A. 13482-84.] She concluded that “as a consequence” of his history
— which included witnessing his father’s killing at the hands of his mother, being
abused at the hands of both his mother and several of her boyfriends, and occasional
periods without adequate food or shelter — “he developed a certain way of looking at
the world which limit[ed] his choices later on.” [J.A. 13502-03.] It is unclear, to say the
least, what a cultural expert could have offered the jury that Dr. Burch did not provide,
and so we can find no prejudice in this alleged error of counsel. The jury had before it
Jackson’s cultural background and the pathology behind his childhood development.
Accordingly, we reject Jackson’s claim that his counsel rendered ineffective
assistance during the trial’s penalty phase.
In light of the foregoing analysis, we affirm the judgment of the District Court.