RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                       File Name: 08a0300p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                     X
                             Petitioner-Appellant, -
 REGINALD JELLS,
                                                      -
                                                      -
                                                      -
                                                          No. 02-3505
          v.
                                                      ,
                                                       >
 BETTY MITCHELL, Warden,                              -
                             Respondent-Appellee. -
                                                     N
                      Appeal from the United States District Court
                     for the Northern District of Ohio at Cleveland.
                    No. 98-02453—John M. Manos, District Judge.
                                     Argued: March 19, 2008
                              Decided and Filed: August 18, 2008
                  Before: BATCHELDER, COLE, and CLAY, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Alan C. Rossman, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland,
Ohio, for Appellant. Laurence R. Snyder, OFFICE OF THE OHIO ATTORNEY GENERAL,
Cleveland, Ohio, for Appellee. ON BRIEF: Alan C. Rossman, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Cleveland, Ohio, William T. Doyle, LAW OFFICES, Cleveland, Ohio, for
Appellant. Lisa Marie Stickan, Daniel R. Ranke, OFFICE OF THE OHIO ATTORNEY
GENERAL, Cleveland, Ohio, for Appellee.
         COLE, J., delivered the opinion of the court, in which CLAY, J., joined. BATCHELDER,
J. (pp. 28-37), delivered a separate dissenting opinion.
                                       _________________
                                           OPINION
                                       _________________
        COLE, Circuit Judge. A Cuyahoga County, Ohio three-judge panel convicted Reginald Jells
for the murder of Ruby Stapleton and sentenced him to death on October 6, 1987. After exhausting
direct and post-conviction remedies in the State of Ohio, Jells timely filed a petition for a writ of
habeas corpus in the United States District Court for the Northern District of Ohio on October 27,
1998. The district court denied his petition on March 18, 2002. For the reasons below, we
REVERSE the judgment of the district court.




                                                 1
No. 02-3505                 Jells v. Mitchell                                                    Page 2


                                        I. BACKGROUND
A. Facts
        Under 28 U.S.C. § 2254(e)(1), Jells has “the burden of rebutting the presumption of
correctness [accorded to a state court’s finding of facts] by clear and convincing evidence.” Jells
has failed to rebut this presumption, and we therefore adopt the facts, but not the legal conclusions,
as detailed by the Supreme Court of Ohio:
              On April 18, 1987, at about 10:30 to 11:00 p.m., the victim Ruby Stapleton
       and her four-year-old son Devon Stapleton were kidnapped in front of several
       witnesses at the intersection of Lakeview and Euclid Avenues in Cleveland. Three
       witnesses to the kidnapping and Devon identified appellant Reginald Jells as the
       kidnapper. Also, the witnesses identified the victim as the woman the appellant
       picked up and threw into a van. Moreover, the witnesses identified the van used by
       the appellant during the kidnapping.
               Owen Banks, a witness to the abduction, testified that while he was a
       passenger in a car driven by his daughter, Camila Banks, he heard a woman’s
       screams and saw the victim and appellant “tussling.” He also noted that the van used
       to abduct the victim and her child had a sign which read “Keep on Trucking,”
       although the van which was linked to the appellant was found to display a sign which
       read “Keep on Vannin.” During the abduction, Owen jumped out of the car and told
       his daughter to write down the license plate number of the van because he “sensed
       something was wrong.” Furthermore, Owen observed appellant pick up a little boy,
       later identified as Devon, and put him into the van.
               Owen approached appellant, who told him that the victim was drunk. Owen
       stated that he had a good look at appellant, since Owen was at the driver’s side of the
       van looking straight at him. At trial, Owen identified a photograph of the victim as
       the person who was struggling with appellant, and identified appellant as the
       perpetrator.
               Camila Banks, another witness to the abduction, testified that she was driving
       her father home when she heard a woman screaming “help me.” She observed the
       appellant as he dragged a woman, whom she later identified as the victim, to the van
       and “shoved her inside.” Next, she saw appellant pick up a little boy (Devon) and
       put him inside the van. Camila testified that the woman was trying to fight off the
       man.
              Camila recorded the license number of the van, “149 MJV.” Although the
       license number was listed in the name of “Reginald Gills,” appellant later
       acknowledged ownership of the van. At trial Camila identified the van from a
       photograph, and she identified the appellant as the kidnapper.
               Edward Wright, a third witness to the abduction, testified that at about 11:00
       p.m., as he was concluding his shift as a security guard at Hough Bakery, he heard
       a woman scream. He walked to where he heard the screaming and observed a man
       with his arm around the waist of the screaming woman. He then saw the man throw
       the woman and the child into the van. Wright gave the Cleveland police a partial
       license number, “Y 169 or 165.” He was able to pick the appellant out of a lineup,
       and identify him at trial. Further, he identified Devon Stapleton and a photo of the
       victim.
No. 02-3505                 Jells v. Mitchell                                                     Page 3


                The testimony of Devon Stapleton, the son of the victim, indicates that he and
       his mother had entered appellant’s van and later they exited the van. It is not clear
       from his testimony exactly how they initially came to be in the van or how they later
       came to be out of the van at Lakeview and Euclid Avenues. He further testified that
       appellant put Devon’s mother back into the van, and that while they were in the van
       appellant hit the victim on the right side of her face with a circular object, causing
       her to bleed. Devon also stated that his mother was knocked out by the blows. As
       a result of the attack upon his mother, the hood and sleeve of Devon’s coat were wet
       with blood.
               Devon explained that appellant took his mother to a junkyard. There
       appellant removed his mother’s body from the van, carried her into the junkyard, and
       abandoned her. Then appellant drove to a gas station, purchased gas, and dropped
       off Devon at another junkyard. Later, Clyde Smith found Devon at this junkyard
       crying for his mother, so he picked him up and took him to his house and called the
       police.
               On April 26, 1987, appellant was arrested by Cleveland police. The van was
       identified by the license plate number that was given to police by Camila Banks. An
       examination of the van revealed appellant’s fingerprints. A transmission jack found
       in the van matched marks found on the victim’s body. A tennis shoe print was found
       on the inside of the van’s windshield. The shoe print was compared with the
       victim’s left tennis shoe and was believed to have been made by the shoe.
              On April 28, 1987, an off-duty Cleveland police officer found the victim’s
       body partially concealed by a barrel in a junkyard at East 84th and Grand Avenue in
       Cleveland. The body was partially nude with the pants and panties pulled down and
       the blouse in disarray.
              A piece of cardboard with a muddy shoe print was found near the body. The
       shoe print matched appellant’s right shoe.
               The coroner testified that the victim died as a result of multiple blunt impacts
       to the head, neck, trunk and extremities with multiple injuries to the brain and other
       internal organs. Altogether the victim suffered over ninety separate blows to her
       body.
State v. Jells, 

, 466-67 (Ohio 1990).
B. Procedural History
       On August 31, 1987, a three-judge panel of the Cuyahoga County, Ohio Court of Common
Pleas convicted Jells on two counts of kidnapping, in violation of Ohio Rev. Code § 2904.01, and
one count of aggravated felony murder with a kidnapping specification, in violation of Ohio Rev.
Code § 2903.01(B). On September 18, 1987, the same panel sentenced Jells to five to twenty-five
years imprisonment on each of the kidnapping charges and death on the aggravated felony murder
charge. State v. Jells, No. CR-217570 (Ohio Ct of Common Pleas, Oct. 6, 1987). On direct review,
the Ohio Court of Appeals affirmed Jells’s convictions and sentence, State v. Jells, No. 54733, 

(Ohio Ct. App. Apr. 20, 1989), as did the Ohio Supreme Court, State v. Jells, 

(Ohio 1990).
        Jells filed his initial petition for post-conviction relief in the state trial court in November
1991 and an amended petition in April 1995. The trial court reviewed and denied Jells’s amended
petition, and the Ohio Court of Appeals affirmed. State v. Jells, No. 72484, 

(Ohio
No. 02-3505                 Jells v. Mitchell                                                   Page 4


Ct. App. Apr. 30, 1998). Jells filed a motion in support of jurisdiction for review by the Ohio
Supreme Court on June 29, 1998. The Ohio Supreme Court declined to exercise jurisdiction and
dismissed the case on September 23, 1998. State v. Jells, 

(Ohio 1998). On March
11, 1999, Jells filed an application to reopen his direct appeal in the Ohio Court of Appeals. That
court denied his application, State v. Jells, No. 54733, 

(Ohio Ct. App. Apr. 26,
2000), and the Ohio Supreme Court affirmed, State v. Jells, 

(Ohio 2000).
         On September 21, 1999, Jells filed a petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254, in the United States District Court for the Northern District of Ohio, alleging
twenty-three grounds for relief. On March 18, 2002, the district court concluded that Jells’s claims
were without merit and dismissed his habeas petition. The district court issued Jells a certificate of
appealability (“COA”) on whether trial counsel rendered constitutionally ineffective assistance at
sentencing. On appeal, this Court, on October 3, 2006, granted Jells a COA on the following
additional issues: (1) whether the prosecution withheld material, exculpatory information from Jells
in violation of Brady v. Maryland, 

(1963); (2) whether trial counsel rendered ineffective
assistance of counsel by encouraging Jells to waive his right to a jury trial without properly
informing him of the consequences of the waiver; (3) whether the trial court adequately informed
Jells of the consequences of his jury trial waiver so that the waiver was knowing and voluntary; and
(4) whether a line-up shown to a prosecution witness was unduly suggestive and rendered the
witness’s in-court identification unreliable.
                                  II. STANDARD OF REVIEW
       Because Jells filed his federal habeas corpus petition after the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, became effective, the
standard of review set forth in AEDPA applies to his petition:
       AEDPA prohibits a federal court from granting a writ of habeas corpus to a person
       in custody pursuant to a state court judgment with respect to a claim that was
       adjudicated on the merits in state court unless the adjudication of that claim --
               (1) resulted in a decision that was contrary to, or involved an
               unreasonable application of, clearly established Federal law, as
               determined by the Supreme Court of the United States; or
               (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.
Morales v. Mitchell, 

, 928 (6th Cir. 2007) (quoting Moss v. Hofbauer, 

,
858 (6th Cir.) (quoting AEDPA, 28 U.S.C. § 2254 (d)), cert. denied, 

(2002)).
        With respect to the first of these bases for habeas relief, the Supreme Court has clarified that
the phrase “clearly established” federal law refers to “the holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions as of the time of the relevant state court decision.” Williams v. Taylor
(“Williams”), 

, 412 (2000). A decision is “contrary to” clearly established federal law
as determined by the Supreme Court if “the state court arrives at a conclusion opposite to that
reached by [the Supreme Court] on a question of law or if the state court decides a case differently
than [the] Court has on a set of materially indistinguishable facts.” 

        As to 28 U.S.C. § 2254(d)(2), a decision involves an “unreasonable application” of clearly
established Supreme Court law if a “state court identifies the correct governing legal rule from [the
Supreme Court’s] cases but unreasonably applies it to the facts of the particular state prisoner’s
case,” 

or if it “either unreasonably extends or unreasonably refuses to extend a legal
principle from Supreme Court precedent to a new context.” Seymour v. Walker, 

, 549
No. 02-3505                  Jells v. Mitchell                                                    Page 5


(6th Cir. 2000) (citing 

). That is, the federal habeas court “should ask
whether the state court’s application of clearly established federal law was objectively
unreasonable.” 

(emphasis added).
        “The Court has made clear that its relevant precedents include not only bright-line rules but
also the legal principles and standards flowing from precedent.” Taylor v. Withrow, 

,
852 (6th Cir. 2002). Likewise, the statute’s plain language “restricts the source of clearly
established law to [the Supreme] Court’s jurisprudence.” 

. However, this
Court “may look to lower courts of appeals' decisions, not as binding precedent, but rather to inform
the analysis of Supreme Court holdings to determine whether a legal principle had been clearly
established by the Supreme Court.” Foley v. Parker, 

, 382 (6th Cir. 2007).
        This Court applies AEDPA deference to the state courts’ determinations regarding the merits
of a claim, but we review de novo all issues not reached by the state courts. Williams v. Anderson,

, 804 (6th Cir. 2006).
                                  III. PROCEDURAL MATTERS
        A petitioner seeking a writ of habeas corpus “must meet certain procedural requirements to
permit review of his habeas claims by a federal court.” Smith v. Ohio Dep’t of Rehab. & Corr., 

, 430 (6th Cir. 2006). “The petitioner must first exhaust the remedies available in state
court by fairly presenting his federal claims to the state courts; unexhausted claims will not be
reviewed by the federal court.” 

v. Money, 

, 808 (6th Cir. 2004); Lott
v. Coyle, 

, 601 (6th Cir. 2001)). The exhaustion requirement “is satisfied when the
highest court in the state in which the petitioner was convicted has been given a full and fair
opportunity to rule on the petitioner’s claims.” 

(quotations and citations
omitted). If a state court did not entertain a claim, a federal court will not review it where the state
court’s omission is due either to the petitioner’s failure to raise those claims in the state courts while
state remedies were available or to the petitioner’s failure to comply with a state procedural rule that
prevented the state courts from reaching the merits of the claims. Lundgren v. Mitchell, 

, 763 (6th Cir. 2006).
        In addition, this Court “may not consider a claim for habeas corpus relief if the claim was
procedurally defaulted in state court - i.e., if the last state court to render a judgment in the case
rejected the claim because it was not presented in accordance with the state’s procedural rules.”
Girts v. Yanni, 

, 753 (6th Cir. 2007) (quoting Hargrave-Thomas v. Yukins, 

, 387 (6th Cir. 2004)). However, noncompliance with a state procedure will bar habeas review
only if the state procedure satisfies the standards set forth in Maupin v. Smith, 

, 138
(6th Cir. 1986). First, there must be a state procedure in place that the petitioner failed to follow.

. Second, the state court must have denied consideration of the petitioner’s
claim on the ground of the state procedural default. 

preclude habeas review, the state
procedural rule must be an “adequate and independent state ground,” 

“firmly established
and regularly followed.” 

(quoting Ford v. Georgia, 

, 423-24
(1991)). A state procedural rule is an independent ground when it does not rely on federal law.
Coleman v. Thompson, 

, 732 (1991). Further, this inquiry “generally will involve an
examination of the legitimate state interests behind the procedural rule in light of the federal interest
in considering federal claims.” 

.
        If these three factors are satisfied, a petitioner can overcome the procedural default by either
“demonstrat[ing] cause for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrat[ing] that failure to consider the claims will result in a fundamental
miscarriage of justice.” 

. “Cause” for default requires a showing that
“some objective factor external to the defense impeded counsel’s efforts to comply with the State’s
No. 02-3505                 Jells v. Mitchell                                                     Page 6


procedural rule.” Murray v. Carrier, 

, 488 (1986). Ineffective assistance of counsel
can constitute cause, so long as the ineffective assistance of counsel claim is not itself procedurally
defaulted. 

“Prejudice” requires a showing that the errors at trial “worked to [petitioner’s]
actual and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” United States v. Frady, 

, 170 (1982). Additionally, under the
miscarriage-of-justice exception, the Court may consider an otherwise defaulted claim if it concludes
that the petitioner has shown that the “constitutional violation has probably resulted in the
conviction of one who is actually innocent.” Schlup v. Delo, 

, 327 (1995) (quoting

).
           IV. INEFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING
A. The Ohio Court of Appeals Decision
        The Ohio Court of Appeals rejected Jells’s claim that counsel were ineffective in preparing
for the sentencing phase of his trial:
                Petitioner next asserts that his trial counsel were ineffective in failing to
       introduce evidence regarding his troubled family and early life and in failing to
       utilize expert assistance.
               As an initial matter, we “must recognize that trial counsel is afforded broad
       authority in determining what evidence will be offered in mitigation.” State v.
       Frazier (1991), 

, 255, 

. We also reiterate that
       post-conviction proceedings were designed to redress denials or infringements of
       basic constitutional rights and were not intended as an avenue for simply retrying the
       case. Laugensen v. State, supra; State v. 

. Further, the failure to present
       evidence which is merely cumulative to that which was presented at trial is, generally
       speaking, not indicative of ineffective assistance of trial counsel. State v. Combs
       (1994), 

, 105, 

.
               In this matter, the mitigation presented at trial tended to focus upon
       petitioner’s loving behavior to his family, his good behavior at school, his obedience
       to authority and his teachers, his strong work ethic, and his tendency to walk away
       from an argument. In addition, trial counsel indicated that petitioner’s family had
       moved many times, and also presented expert opinion evidence that petitioner was
       of borderline intelligence and over-controlled his hostility. Finally, petitioner
       presented an unsworn statement in which he emphasized his work ethic, his empathy
       for Devon, his sadness at the tragic manner in which Stapleton must have met her
       death, and his disagreement with the verdict reached by the panel. Further, in its
       written opinion, the three judge panel observed that petitioner had presented
       evidence of, inter alia, character, family relationships, employment history, and
       emotional stability.
              Examining the evidence now offered de hors the record, we find that a certain
       measure of the evidence which petitioner now claims should have been admitted to
       be cumulative of what was presented at trial, i.e., the frequent moves, change of
       caregivers, borderline intelligence, superficial personality style. We are therefore
       unable to conclude that there is a reasonable probability that, but for this alleged
       omission of counsel, the result of his trial would have been different, and petitioner’s
       challenge to the effectiveness of counsel in this respect fails. See 

, 

.
No. 02-3505                        Jells v. Mitchell                                                                 Page 7


                 As to the remaining items concerning the other more tragic circumstances
         which petitioner now claims should have been admitted, i.e., his mother’s alcoholism
         and the abuse which he often witnessed, this information would appear to be
         completely inconsistent with the favorable portrait of petitioner which counsel
         presented at trial. That is, trial counsel emphasized the favorable aspects of
         petitioner’s life and chose to present him as someone who over controlled his
         negative feelings and had “no pathological difference” or “condition requiring
         treatment or *** thought disorder.” (Tr. 584) Considered in light of the nature of
         petitioner’s defense at trial, we are compelled to conclude that the more negative
         information produced in connection with the amended petition for post-conviction
         relief is inconsistent with the essential trial strategy of working to establish
         reasonable doubt and in turn residual doubt that petitioner committed these offenses.
         We are therefore unable to conclude that counsel was ineffective in failing to present
         this information. Accord State v. Combs (1994), 

, 103, 

wherein the court stated:
                           A post conviction petition does not show ineffective
                   assistance merely because it presents a new expert opinion that is
                   different from the theory used at trial. State v. Jamison (Nov. 10,
                   1992), Hamilton App. No. C-910736, 

. The
                   affidavits of Keefe and Smith presented mitigation theories that were
                   no more than alternative or cumulative to the theories used by Fisher.
                   Therefore, they do not support substantive relief under either prong
                   of the Strickland-Lockhart-Bradley test.
                 Accord State v. 

; State v. Williams (1991), 

,
         695, 

(rejecting the argument that trial counsel was ineffective by
         failing to put forth mitigation evidence on that defendant’s troubled childhood).
         Indeed, social worker Linda Pudvan’s averment that even negative family history is
         relevant to provide an “explanation of Mr. Jells life and behavior during his offense”
         and attorney Ken Murray’s averment that unfavorable information “further serves
         to explain the stresses and traumatic events that culminated the night of the offense”
         seem odd in light of the complete denial presented at trial.
Jells, 

, at *5-6. Because the Ohio Court of Appeals found that counsel’s
performance was not deficient, it did not reach the prejudice prong of the Strickland analysis.1


         1
             The dissent claims that the Ohio Court of Appeals found Jells’s counsel’s performance to be deficient but not
prejudicial, Dissenting Op. at 36, but quotes selectively from the Ohio Court of Appeals’ decision when reaching this
conclusion. Above, we include the entirety of the Ohio court’s decision on this issue. Read in context, the dissent’s
assertion that the Ohio court “largely accepted Jells’ assertion that his counsel’s investigation was deficient and decided
the case instead on the question of prejudice,” see Dissenting Op. at 36, is clearly erroneous, as time and again in this
section the Ohio Court of Appeals focuses on the standard for deficiency, not the standard for prejudice. In fact, its only
explicit mention of the prejudice prong from Strickland is a quotation from another case, which the Ohio Court of
Appeals cites as support for the deficiency prong and not the prejudice prong. Jells, 

, *6. The complete
excerpt from the Ohio opinion demonstrates that the court was determining whether Jells’s counsel’s performance was
deficient, not whether Jells was prejudiced. See, e.g., 

5 (stating that the court was “unable to conclude that
counsel was ineffective in failing to present this information”); 

6 (stating that “[a] post conviction petition does
not show ineffective assistance merely because it presents a new expert opinion that is different from the theory used
at trial”); 

v. Williams, 

(Ohio Ct. App. 1991) for the proposition that “trial counsel was
[not] ineffective by failing to put forth mitigation evidence on that defendant’s troubled childhood”). In contrast to the
repeated references to counsel’s performance in this section, there is only one comment in this section that might be
interpreted as a reference to the prejudice prong: “but for this alleged omission of counsel, the result of his trial would
have been different.” 

here, the remainder of the sentence makes it clear that the court is, yet again, reaching
the issue of ineffectiveness and not prejudice: “Jells’s challenge to the effectiveness of his counsel in this respect fails.”
No. 02-3505                     Jells v. Mitchell                                                           Page 8


B. The Legal Standard
        Jells claims that his counsel was ineffective during sentencing because counsel failed to
investigate relevant evidence that could have been presented. We engage in a two-part inquiry when
reviewing ineffective-assistance-of-counsel claims:
                 A convicted defendant’s claim that counsel’s assistance was so defective as
        to require reversal of a conviction or death sentence has two components. 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. Unless a defendant makes both showings, it
        cannot be said that the conviction or death sentence resulted from a breakdown in the
        adversary process that renders the result unreliable.
Strickland v. Washington, 

, 687 (1984).
        The Strickland standard applies to Jells’s claim:
        [S]trategic choices made after thorough investigation of law and facts relevant to
        plausible options are virtually unchallengeable; and strategic choices made after less
        than complete investigation are reasonable precisely to the extent that reasonable
        professional judgments support the limitations on investigation. In other words,
        counsel has a duty to make reasonable investigations or to make a reasonable
        decision that makes particular investigations unnecessary. In any ineffectiveness
        case, a particular decision not to investigate must be directly assessed for
        reasonableness in all the circumstances, applying a heavy measure of deference to
        counsel’s judgments.

We do not decide “whether counsel should have presented a mitigation case,” but
rather “whether the investigation supporting counsel’s decision not to introduce mitigating evidence
of [Jells’s] background2 was itself reasonable.” Wiggins v. Smith, 

, 523 (2003)
(emphasis in original). A Strickland violation is established where the scope of an attorney’s
investigation into mitigating evidence prior to trial was “unreasonable in light of what” counsel
knew about their client. 

C. Analysis
        The Ohio Court of Appeals correctly identified the Strickland standard as the governing
federal rule. State v. Jells, No. 72484, 

, at *2 (Ohio Ct. App. Apr. 30, 1998); see
also 

(2000) (“It is past question that the rule set forth in Strickland
qualifies as ‘clearly established Federal law, as determined by the Supreme Court of the United
States.’”) (quoting 28 U.S.C. § 2254(d)(1)); Bell v. Cone, 

, 697-98 (2002) (clarifying
that Strickland is the rule that courts must apply to claims challenging the effectiveness of trial
counsel during a capital sentencing hearing). However, we conclude that the Ohio court applied this
standard to the facts of Jells’s case in an objectively unreasonable manner.


        2
          Subsequent Supreme Court decisions in Rompilla v. Beard, 

(2005), Wiggins, 

, and
Williams, 

, merely explained the standard set out in Strickland and do not establish new law. Therefore,
we may rely on those decisions when analyzing Jells’s ineffective assistance of counsel claim even though those cases
were decided after his convictions became final. See Hamblin v. Mitchell, 

, 487 (6th Cir. 2003).
No. 02-3505                 Jells v. Mitchell                                                  Page 9


       1. Deficient Performance
        In addition to the general Strickland standard regarding deficient performance, the Supreme
Court has provided specific guidance with respect to reasonable professional assistance during the
sentencing phase of a capital case. See 

; 

;

. In particular, the Court has recognized that counsel in a capital case
has an “obligation to conduct a thorough investigation of the defendant’s background” to determine
the availability of mitigating evidence. 

(citing ABA Standard for
Criminal Justice 4-4.1 (2d ed. 1980)); see also 

(“Defense counsel’s
complete failure to investigate before deciding not to present mitigating evidence is deficient
performance as a matter of law under Strickland.”); Harries v. Bell, 

, 637 (6th Cir.
2005) (“Counsel’s constitutional duty to investigate a defendant’s background in preparation for the
sentencing phase of a capital trial is ‘well-established.’”) (quoting Coleman v. Mitchell, 

, 449 (6th Cir. 2001)). Counsel’s “investigations into mitigating evidence ‘should comprise
efforts to discover all reasonably available mitigating evidence and evidence to rebut any
aggravating evidence that may be introduced by the prosecutor.’” 

(quoting
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C)
(1989)); accord 

(finding Wiggins to “stand[] for the proposition that the
ABA standards for counsel in death penalty cases provide the guiding rules and standards to be used
in defining the ‘prevailing professional norms’ in ineffective assistance cases”).
        This constitutionally required background investigation is necessary to enable counsel to
make strategic choices about presenting a mitigation defense. See 

.
Indeed, the deference owed to counsel’s strategic judgments about mitigation is directly proportional
to the adequacy of the investigations supporting such judgments. See 

.
Accordingly, when evaluating the reasonableness of counsel’s mitigation strategy in a capital case,
“a reviewing court must consider the reasonableness of the investigation said to support that
strategy.” 

. “In assessing the reasonableness of an attorney’s investigation,
however, a court must consider not only the quantum of evidence already known to counsel, but also
whether the known evidence would lead a reasonable attorney to investigate further.” 

to forego mitigation evidence is unreasonable if not made after a reasonable determination
to cease further investigation.” Spisak v. Mitchell, 

, 704 (6th Cir. 2006).
        In the instant case, Jells claims that his trial counsel were ineffective by: (1) failing to
prepare for the mitigation phase of the case until after he was convicted; (2) failing to utilize a
mitigation specialist to gather information about his background, including his educational, medical,
psychological, and social history; (3) failing to request a continuance so that a proper mitigation
defense could be prepared; and (4) failing to develop a mitigation strategy. For the reasons below,
we conclude that the state courts’ failure to grant relief on the first two grounds was an unreasonable
application of Strickland.
               (a) Failure to Timely Prepare
        Dr. James Eisenberg, Jells’s mitigation phase expert, testified at the habeas evidentiary
hearing that he was not contacted by Jells’s trial counsel until September 2, 1987, two days after
Jells had been convicted and only sixteen days prior to the mitigation hearing. Prior to that, counsel
had failed to employ a mitigation specialist or expert who would have gathered evidence of Jells’s
personal history and any available records. When Jells’s trial counsel contacted Dr. Eisenberg, they
asked him to perform a psychological evaluation of Jells, but failed to provide him with Jells’s
personal history records—records that would have been collected had they used a mitigation
specialist—that were necessary for the evaluation. Without the history and records, Dr. Eisenberg
was unable to perform the requested psychological evaluation. Thus, his testimony at the mitigation
No. 02-3505                  Jells v. Mitchell                                                  Page 10


hearing was not supported by a complete evaluation of Jells, but was supported by the limited
psychological test he had time to administer.
        In addition, Jells’s counsel “failed to conduct an investigation that would have uncovered
extensive records” describing Jells’s difficult youth. 

. Jells’s counsel
interviewed only three family members, neglecting to speak with many other family members who
had lived with Jells and were available. When speaking with the family members they did contact,
their inquiry was brief and they failed to ask sufficiently probing questions; as a result they failed
to discover the abuse that Jells received from his mother’s live-in boyfriend and his stepfather. Jells
counsel did not obtain a psychological report prior to trial, and failed to obtain accessible school
records—reports and records that would demonstrate that Jells had mental impairments, including
learning difficulties that led to disruptions in the classroom and an extremely low reading level.
Further, even if counsel could have claimed ignorance of Jells’s difficulties as a result of their
abdication of responsibility to inquire into Jells’s background, information that would have
“prodded” them into action was readily available to them in the Competency Report. This
Competency Report provided the same sort of “prodding” information as the Department of Social
Services records or the Presentence Investigation Report described in Wiggins, and, given such
information, any “reasonably competent” attorney would have expanded the search for mitigating
evidence beyond the three witnesses and would have questioned Jells and the three witnesses in
further detail. See Wiggins, 

.
        The failure of Jells’s trial counsel to begin mitigation preparations prior to the end of the
culpability phase of Jells’s trial was objectively unreasonable under Strickland. See Glenn v. Tate,

, 1207 (6th Cir. 1995) (concluding that counsel’s “fail[ure] to make any significant
preparations for the sentencing phase until after the conclusion of the guilt phase . . . was objectively
unreasonable”); see also 

(finding it significant that “counsel did not begin
to prepare for [the mitigation] phase of the proceeding until a week before the trial”); 

n.2 (noting that, under the professional norms established by the ABA, a “mitigation
investigation should begin as quickly as possible”); Greer v. Mitchell, 

, 676-678 (6th
Cir. 2000) (“Under circumstances where a finding of guilty cannot come as a surprise, failure to
anticipate such a finding so as to adequately prepare for the sentencing phase is constitutionally
impermissible.”). Accordingly, the Ohio Court of Appeals unreasonably applied Strickland when
it neglected to find that Jells’s trial counsel’s failure prepare for the mitigation hearing in a timely
fashion constituted deficient performance.
                (b) Failure to Use a Mitigation Specialist
         We also conclude that Jells’s counsel were ineffective in failing to use a mitigation specialist
who would have gathered information about Jells’s educational, medical, psychological, and social
background necessary to prepare a proper mitigation defense. In a post-conviction affidavit, Dr.
Susan Shorr, a mitigation specialist for the Cuyahoga County Public Defender’s Office, stated that
Jells’s trial counsel initially requested her assistance but “never followed through on their request
by formally involving [her] in the case.” Had her assistance—which she was willing to give—been
obtained, she would have gathered evidence pertaining to Jells’s “developmental experiences,”
“family dynamics and functioning,” “academic capacities and concomitant academic success or
failure,” “interpersonal relationships and social adjustments,” “history of drug and alcohol abuse,”
and general “psychological functioning.”
        Similarly, Dr. Eisenberg testified that Jells’s trial counsel did not appear to have consulted
with any mitigation specialist or to have gathered the evidence that such a specialist would typically
collect. In fact, Dr. Eisenberg testified that he could not recall ever having been involved in a
mitigation case where he was provided absolutely no school records, medical records, psychological
test results, or any social history to evaluate. Dr. Eisenberg stated that he not only never met with
No. 02-3505                      Jells v. Mitchell                                                      Page 11


a mitigation specialist, but that the necessary information that is generally gathered by such a
specialist was never presented to him. Jells confirms that no mitigation specialist was used in his
case. In his affidavit, Jells states that he was never visited by anyone “who could assist [his]
attorneys in preparing for mitigation. There were no mitigation specialists or investigators who
visited or talked with [him] concerning [his] case or mitigation.” Due to the absence of a mitigation
specialist, Jells “was unable to provide [his attorneys] with any background concerning [himself]
or to assist in the mitigation phase of [his] trial.”
        In the context of Jells’s case, his counsel’s failure to employ a mitigation expert who would
have fully investigated Jells’s educational, social, and psychological background was objectively
unreasonable. In Williams v. Taylor, the Supreme Court found counsel ineffective where they failed
to interview all available witnesses and failed to present evidence of “mistreatment, abuse, and
neglect during [the defendant’s] early childhood, as well as testimony that he was ‘borderline
mentally retarded,’ had suffered repeated head injuries, and might have mental impairments organic
in 

. The Supreme Court held that defendants have “a right—indeed a
constitutionally protected right—to provide the jury with the mitigating evidence that his trial
counsel either failed to discover or failed to offer.” 

        Similarly, in Wiggins v. Smith, the defendant was found to have been deprived of competent
counsel when his “counsel abandoned their investigation of [his] background after having acquired
only rudimentary knowledge of his history from a narrow set of 

. In
Wiggins, counsel obtained the Presentence Investigation Report and records kept by the department
of social services and procured a psychological investigation prior to trial. The Supreme Court held
that “[c]ounsel’s decision not to expand their investigation beyond the [Presentence Investigation
Report] and the [Department of Social Services] records fell short of the professional standards” that
prevailed at that time, which required the preparation of a social history report, and below the
standards promulgated by the American Bar Association, “standards to which we have long referred
as ‘guides to determining what is reasonable.’” 

; 

). There, “[t]he scope of their investigation was also unreasonable in light of what
counsel actually discovered in the [Department of Social Services] records,” which revealed
evidence of alcoholism and neglect on the part of Wiggins’ mother. 

The Court held that
“any reasonably competent attorney would have realized that pursuing these leads was necessary.”

(holding that counsel had a duty to examine Rompilla’s
school records and incarceration records and to look for evidence of a history of dependence, as
discovered information could have an “extenuating significance”).
        While Jells’s counsel did not have a specific obligation to employ a mitigation specialist,
they did have an obligation to fully investigate the possible mitigation evidence available. See, e.g.,

. Under Ohio law, the range of potential mitigation evidence is quite
broad. To determine whether a sentence of death is appropriate, the Ohio death penalty statute
provides that a three-judge panel must weigh against the aggravating factors, “the nature and
circumstances of3 the offense, the history, character, and background of the offender” and other
relevant factors. Ohio Rev. Code § 2929.04(B) (emphasis added). Ohio law also give defendants

       3
           These other relevant factors include:
       (1)        Whether the victim of the offense induced or facilitated it;
       (2)        Whether it is unlikely that the offense would have been committed, but for the fact
                  that the offender was under durress, coercion, or strong provocation;
       (3)        Whether, at the time of committing the offense, the offender, because of a mental
                  disease or defect, lacked substantial capacity to appreciate the criminality of the
                  offender’s conduct or to conform the offender’s conduct to the requirements of the
                  law;
       (4)        The youth of the offender;
No. 02-3505                    Jells v. Mitchell                                                         Page 12


“great latitude in the presentation of evidence of [mitigation] factors.” Ohio Rev. Code
§ 2929.04(C). Thus, to provide professionally competent assistance in Ohio capital cases, defense
counsel must conduct a reasonably thorough investigation into all possible mitigation evidence that
would present a sympathetic picture of the defendant’s family, social, and psychological
background. See 

(noting that, according to ABA standards, “among the
topics counsel should consider presenting are medical history, educational history, employment and
training history, family and social history, prior adult and juvenile correctional experience, and
religious and cultural influences”); Carter v. Bell, 

, 596-97 (6th Cir. 2000) (concluding
that defense counsel’s failure to investigate the defendant’s “family, social or psychological
background . . . constituted representation at a level below an objective standard of reasonableness”).

        Jells’s counsel failed to fulfill their duty to investigate Jells’s background prior to the
mitigation hearing. That Jells’s counsel conducted some investigation of Jells’s background is
evident from their limited presentation of Jells’s unstable childhood and academic difficulties during
the mitigation hearing. However, while counsel generally has the discretion to determine that
further investigation into available mitigating evidence is unnecessary, see 

, counsel’s awareness of Jells’s unstable home environment and academic difficulties should
have alerted them that further investigation by a mitigation specialist might proved fruitful. See

-25 (finding counsel ineffective for having “abandoned their investigation
of petitioner’s background after having acquired only rudimentary knowledge of his history from
a narrow set of sources” and critiquing counsel for not pursuing leads discovered during his minimal
investigation); 

(critiquing counsel for “declin[ing] to seek the assistance
of a mental health expert or conduct a thorough investigation of [petitioner’s] mental health, even
after [petitioner’s] mother alerted them that [petitioner] suffered from mental illness”).
                (c) Failure to Request a Continuance
         We find Jells’s third argument, that his counsel were ineffective in failing to request a
continuance to gather mitigation evidence, to be unpersuasive. Dr. Eisenberg testified that, when
initially contacted by Jells’s counsel, he informed them that he did not have sufficient time to
prepare a psychological evaluation because he needed more time “to collect records, to interview
family members, [and] to work with the social worker to prepare a complete and thorough social
history of [Jells].” Jells’s counsel did not request a continuance from the Ohio trial court.
        While the Court should not generally second guess trial strategy decisions such as requests
for a continuance, see 

, counsel’s choice in this case not to seek more
time to prepare adequately for the mitigation phase violated their obligation to “conduct a thorough
investigation” of potential mitigating evidence. 

. Because Jells’s counsel
were under an obligation to investigate fully any potential mitigation evidence and were aware that
gathering records of Jells’s social history would have assisted in presenting a psychological
evaluation of Jells during the mitigation hearing, counsel’s failure to request more time to gather
such evidence was objectively unreasonable. See Tucker v. Prelesnik, 

, 756 (6th Cir.
1999) (finding that counsel was ineffective in failing to request a continuance when “he was


        (5)     The offender’s lack of a significant history of prior criminal convictions and
                delinquency adjudications;
        (6)     If the offender was a participant in the offense but not the principal offender, the
                degree of the offender’s participation in the offense and the degree of the offender’s
                participation in the acts that led to the death of the victim;
        (7)     Any other factors that are relevant to the issue of whether the offender should be
                sentenced to death.
Ohio Rev. Code § 2929.04(B) (emphasis added).
No. 02-3505                  Jells v. Mitchell                                                   Page 13


unprepared for trial and had not obtained critical evidence of which he was aware”). Nonetheless,
it was not an unreasonable application of Strickland for the Ohio Court of Appeals to conclude that
counsel’s failure to request a continuance did not constitute ineffective assistance. As noted above,
this Court has generally afforded counsel great deference with regard to requesting continuances.
See, e.g., Poindexter v. Mitchell, 

, 575 (6th Cir. 2006). It was not unreasonable for the
Ohio court to afford counsel the same deference in this case.
                (d) Failure to Employ Any Mitigation Strategy
        Finally, we reject Jells’s argument that his counsel erred by failing to develop a mitigation
strategy. In support of this contention, Jells points to Dr. Eisenberg’s testimony that Jells’s counsel
never discussed a mitigation strategy with him nor indicated that they even had a strategy.
Similarly, Jells states in his own affidavit that he does not recall his attorneys ever “discussing with
[him] the purpose of mitigation, what the judges would be looking for as mitigating, or what
qualifies for mitigation.” However, the fact that trial counsel did not share their mitigation strategy
with Jells or with Dr. Eisenberg does not necessarily demonstrate that his trial counsel did not have
a mitigation strategy. On the contrary, the Ohio Court of Appeals found that Jells’s counsel were
operating “with the essential trial strategy of working to establish reasonable doubt and in turn
residual doubt that petitioner committed these offenses.” State v. Jells, No. 72484, 

, at *5 (Ohio Ct. App. Apr. 30, 1998). Jells contests this finding as an “unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d)(2). Yet, Jells fails to offer any evidence, let alone the “clear and convincing
evidence” needed, to rebut this factual determination of the Ohio Court of Appeals. 28 U.S.C.
§ 2254(e)(1). Moreover, even if the Ohio Court of Appeals’ characterization of counsel’s trial
strategy can be viewed as unreasonable, the record clearly demonstrates that defense counsel, at a
minimum, employed the “strategy” of presenting Jells as an appropriate candidate for life
imprisonment rather than for the death sentence.
        This conclusion does not negate our earlier conclusion that the Ohio courts unreasonably
applied Strickland when they rejected Jells’s ineffective assistance of counsel claim, as “defense
counsel’s decision to focus on residual doubt alone could not constitute a reasonable trial strategy
because defense counsel never conducted an investigation into mitigation before deciding to pursue
residual doubt.” 

. In this case, Jells’s counsel failed to conduct an
adequate investigation into potential mitigation evidence. This failure to investigate was objectively
unreasonable, see 

decision to pursue a residual doubt strategy based upon that
ineffective investigation was also unreasonable. See 

(“[S]trategic
choices made after less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation.”).
                (e) Conclusion Regarding Deficiency Prong
        Jells has demonstrated that his counsel provided ineffective assistance when they: (1) failed
to timely prepare for the mitigation phase of Jells’s trial; and (2) failed to use a mitigation specialist
to gather information about Jells’s background in preparation for mitigation. The Ohio Court of
Appeals’ refusal to recognize that these omissions by Jells’s counsel fell outside the bounds of
professionally competent assistance constituted an unreasonable application of federal law as
determined by the Supreme Court in Strickland.
No. 02-3505                        Jells v. Mitchell                                                                 Page 14


         2. Prejudice
        In addition to unreasonably determining that Jells’s trial counsel were not ineffective during
the mitigation hearing, to the extent that it actually addressed prejudice,4 the Ohio Court of Appeals
unreasonably determined that the alleged errors of Jells’s trial counsel did not prejudice Jells’s case.
          “An error by counsel, even if professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the judgment.” 

. Prejudice exists where the petitioner shows that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.” 

In capital cases, “the question is whether there is a reasonable probability that, absent the
errors, the sentencer—including an appellate court, to the extent it independently reweighs the
evidence—would have concluded that the balance of aggravating and mitigating factors did not
warrant death.” 

In Williams, the Supreme Court instructed that a prejudice determination
must be made by “evaluat[ing] the totality of the available mitigation evidence—both that adduced
at trial, and the evidence adduced in the habeas proceeding—in reweighing it against the evidence
in 

. Further, “[m]itigating evidence unrelated to dangerousness
may alter the [sentencer’s] selection of penalty, even if it does not undermine or rebut the
prosecution’s death-eligibility case.” 

Prejudice is established where, taken as a whole,
the available mitigating evidence “might well have influenced the [sentencer’s] appraisal of [the
petitioner’s] moral culpability.” 

See also 

(concluding that “had
the jury been confronted with [the] considerable mitigating evidence, there is a reasonable
probability that it would have returned with a different sentence”).
                   (a) Evidence Presented at Mitigation Hearing
        In the instant case, the Ohio Court of Appeals reached the following conclusion concerning
the evidence introduced at Jells’s trial:
         [T]he mitigation presented at trial tended to focus upon petitioner's loving behavior
         to his family, his good behavior at school, his obedience to authority and his
         teachers, his strong work ethic, and his tendency to walk away from an argument.
         In addition, trial counsel indicated that petitioner's family had moved many times,
         and also presented expert opinion evidence that petitioner was of borderline
         intelligence and over-controlled his hostility. Finally, petitioner presented an
         unsworn statement in which he emphasized his work ethic, his empathy for Devon,
         his sadness at the tragic manner in which Stapleton must have met her death, and his
         disagreement with the verdict reached by the panel. Further, in its written opinion,
         the three judge panel observed that petitioner had presented evidence of, inter alia,
         character, family relationships, employment history, and emotional stability.
Jells, 

, at *5.
        At the mitigation hearing, Jells’s counsel produced four witnesses—(1) Dora Jells Michael,
Jells’s mother; (2) Barabaray Lee Jones, Jells’s uncle; (3) Anna Bee Jells, Jells’s maternal
grandmother; and (4) Dr. Eisenberg—as well as unsworn testimony from Jells himself. Jells’s


         4
           Referencing the “cumulative” presentation of information, the Ohio Court of Appeals noted that it was “unable
to conclude that there is a reasonable probability that, but for this alleged omission of counsel, the result of his trial would
have been different, and [Jells’s] challenge to the effectiveness of his counsel in this respect fails.” Jells, 

, *5. This reference at most addresses how Jells’s counsel’s failure to present certain pieces of evidence was not
deficient—it certainly makes no determination as to whether the failure to present this evidence caused him prejudice.
See Jells, 

, *5-6.
No. 02-3505                      Jells v. Mitchell                                                            Page 15


mother testified that Jells moved frequently as a child, from Mississippi to New York to Cleveland,
and that he was raised by multiple family members. She further stated that Jells was “quiet,” “liked
to work,” and “never gave [her] any problems, except what normal kids would do with parents.”
Jones testified that he had helped raise Jells. Jones described Jells as a “happy-go-lucky” and non-
violent person, and, as far as Jones was aware, someone who did not have any disciplinary problems
in school. Jells’s grandmother likewise testified that she assisted in raising Jells and was a strong
influence in his life. She indicated that Jells did not have any problems at school, worked several
jobs, and had an even temperament. Finally, Dr. Eisenberg provided expert testimony concerning
the results of various psychological tests that he had administered to Jells. According to Dr.
Eisenberg, an intelligence test showed that Jells has an IQ of 77, which “place[d] him in a borderline
area of intelligence.” Other tests showed that Jells “has trouble in the area of dealing with feelings,”
“tends to deny unpleasantness and hold things in,” has “a need for a strong nurturing figure,” and
“doesn’t have the ability to cope well in unstructured situations.” In short, the tests showed that Jells
has “a tendency to brush things under the rug . . . minimize some of the unhappy experiences in his
life, and . . . prevent emotions such as sadness [from] coming to the surface.” Based on these tests,
Dr. Eisenberg concluded that Jells did not suffer from any antisocial personality disorder or any
other mental illness.
         Jells also offered his own unsworn testimony detailing his social and educational
background. Jells described that he had moved frequently as a child, and that the moving had
frightened him. He explained that he had difficulty with some subjects in school, and that he had
been “beaten up” by bullies and occasionally got into fights at school. Jells further indicated that
as a teenager he regularly did odd jobs for neighbors until he was sent to a juvenile detention camp
for a year for stealing a purse. At the camp, Jells obtained a General Educational Development
(“GED”) and, following his release, was consistently employed until the time of his arrest. Besides
this testimony and that of the four witnesses, Jells offered no other mitigation evidence.
                  (b) Withheld Evidence
       In contrast to the evidence produced during the mitigation hearing, the withheld evidence,
which Jells’s counsel could have produced at Jells’s sentencing hearing if they had conducted an
adequate mitigation  investigation, paints a significantly more detailed picture of Jells’s troubled
background.5
         Jells’s school records reveal a history of serious cognitive learning and socialization
impairment. These records detail Jells’s inability to function academically and his evolving
behavioral response—from verbally acting out as the class clown to more openly aggressive
tactics—to this frustration. In particular, Jells suffered from a learning disability which led to
feelings of inadequacy and insecurity. Jells’s below-average intelligence affected his classroom
performance. Jells also suffered “serious maladjustment” resulting from his frequent moves. Jells
expressed these problems by angrily acting out at school. While school officials recommended that
Jells receive counseling on a regular basis and suggested that a referral to a psychiatric clinic should
be considered, such actions were never taken. Likewise, the school records reveal several missed
opportunities to deal with Jells’s cognitive difficulties through special education and remedial
classes.



         5
           Jells has primarily presented this newly available evidence through Dr. Eisenberg’s testimony at the habeas
evidentiary hearing in the district court. Dr. Eisenberg’s testimony reviews the documentary evidence that was
uncovered by a search of Jells’s educational, medical, and psychological records and provides the psychological analysis
of Jells that he was unable to present at the mitigation hearing. Dr. Eisenberg provided an affidavit to the same effect
for the Ohio Court of Appeals when it considered Jells’s post-conviction relief petition.
No. 02-3505                 Jells v. Mitchell                                                 Page 16


        Jells’s educational troubles were compounded by his family situation. Jells’s mother had
seven children with different men and she constantly moved in and out of relationships while Jells
was living with her. Many of these relationships were abusive and Jells was a witness to the
violence and cruelty that were inflicted upon his mother by her partners. The only two men who
were somewhat permanent in Jells’s childhood home, Henry Delts and Ted Michaels, according to
various affidavits, were aggressive and abusive to both Jells and his mother. Jells’s mother attested
in her affidavit: “Whenever Henry would beat me, [Jells] would usually stand back and watch.
[Jells] would then comfort me after the beating.” According to the affidavit Jells’s aunt submitted,
Jells’s mother “was very frightened of Henry because of the physical and verbal abuse. Henry had
been in the Army and he acted like he had been tortured in a concentration camp. He acted like he
was torturing Dora the way he had been tortured. I believe [Jells] saw Henry beating Dora. Henry
would also beat [Jells].” Another aunt attested: “I believe that [Jells] witnessed verbal abuse by Ted
towards Dora. I believe that [Jells] does not like Ted. . . . [Jells] would rather not see the abuse.”
Likewise, the abuse inflicted on Jells’s mother by Michaels was so upsetting that Jells would
occasionally flee from his mother’s home to his grandmother’s house. Dr. Eisenberg and Dr. Nancy
Schmidtgoessling, a psychologist who reviewed Jells and submitted a post-conviction affidavit, both
concluded that this abusive home environment had a profound impact on Jells’s psychological
development and lead to feelings of victimization that added to the frustrations he experienced in
school.
               (c) Conclusion Regarding Prejudice Prong
        In light of the significantly greater detail about Jells’s psychological background provided
by the evidence that Jells’s attorneys would have discovered if they had conducted a timely and
complete mitigation investigation, there is a reasonable probability that at least one of the judges
may have reached a different conclusion regarding the imposition of the death penalty. As opposed
to the evidence presented at the hearing, the additional evidence shows that Jells experienced
significant learning disabilities which caused him great frustration and led to increasingly aggressive
behavioral responses. This additional evidence further demonstrates that Jells experienced a
profound sense of victimization due to his mother’s abusive relationships. In short, rather than being
cumulative, this evidence provides a more nuanced understanding of Jells’s psychological
background and presents a more sympathetic picture of Jells.
        This Court’s recent decision in Morales confirms that Jells has made the required showing
of prejudice. There, “the available information that Morales’s trial counsel failed to discover and
present to the jury included many specific details about his tumultuous life, continued and
uncontrolled alcohol and drug abuse, dysfunctional family history, potential mental health problems,
and detailed cultural background. In light of the volume and compelling nature of this evidence,
there is a reasonable probability that effective counsel could have achieved a different outcome.”

(quotation and citations omitted). See also Dickerson v. Bagley, 

, 698-99 (6th Cir. 2006) (holding that petitioner satisfied the prejudice requirement by showing
that his counsel failed to discover evidence that he was nearly mentally retarded, did not have an
active biological father, and grew up in an unstable environment surrounded by “pimps, prostitutes,
and drug dealers”); 

(holding that a petitioner satisfied the prejudice
requirement by showing that his trial counsel neglected to discover that he “grew up in extreme
poverty and neglect, surrounded by family violence and instability, had a poor education and likely
suffers from mental disability or disorder”).
        The undiscovered and omitted evidence detailed above could have shifted the balance
between aggravating circumstances and mitigating evidence for at least one judge on the panel,
leading him to find that a sentence of life rather than death was appropriate. See State v. Ruppert,

, 1254 (Ohio 1978) (noting that Ohio Rev. Code Ann. §2929.03(E), now codified
at § 2929.03(D)(3), required unanimity of the panel of three judges in imposing the death sentence).
No. 02-3505                 Jells v. Mitchell                                                  Page 17


That is all that is required for a showing of prejudice in a capital case during habeas review, and for
the reasons above Jells has made this showing. See 

; 

.
          V. WITHHOLDING OF INFORMATION IN VIOLATION OF BRADY
A. Legal Standard
         Under Brady v. Maryland, 

, 87 (1963), the prosecution must disclose all material,
exculpatory evidence to a defendant, irrespective of whether the failure to disclose was done in good
or bad faith. To assert a successful Brady claim, a habeas petitioner must show that (1) the withheld
evidence was favorable to the petitioner, (2) the evidence was suppressed by the government, and
(3) the petitioner suffered prejudice. Strickler v. Greene, 

, 281-82 (1999). The Brady
rule encompasses both exculpatory and impeachment evidence when such evidence is material.
United States v. Bagley, 

, 676 (1985). This Court explained in United States v. Bencs
that “[m]ateriality pertains to the issue of guilt or innocence, and not to the defendant’s ability to
prepare for trial.” 

, 560 (6th Cir. 1994) (citing United States v. Agurs, 

, 112
n.20 (1976)). Evidence is material under Brady if a reasonable probability exists that, had the
evidence been disclosed to the defense, the result of the proceeding would have been different.

. A reasonable probability is one that sufficiently undermines confidence
in the outcome of the trial. 

is not whether the defendant would more likely than
not have received a different verdict with the evidence, but whether in its absence he received a fair
trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 

, 434 (1995). When determining whether the withheld information was material and therefore
prejudicial, we consider it in light of the evidence available for trial that supports the petitioner’s
conviction. See Towns v. Smith, 

, 260 (6th Cir. 2005); Clinkscale v. Carter, 

, 445 (6th Cir. 2004).
B. Procedural Concerns
        It is undisputed that the prosecution withheld from Jells during his trial the thirteen items of
evidence that Jells presents in his petition. In fact, the City failed to provide much of this
information despite Jells’s filing of a Freedom of Information Act request. In response to the City’s
failure to disclose fully the requested information, the trial court granted Jells’s mandamus action
to compel production and both the Ohio Court of Appeals and the Ohio Supreme Court affirmed.
See State ex rel. Jells v. City of Cleveland, No. 62678, 

(Ohio Ct. App. Dec. 3,
1992); State ex rel. Jells v. City of Cleveland, 

(Ohio 1993). The City of Cleveland
finally provided the remaining withheld documents in April 1994, and, with a complete record
available to him, Jells was able to file an amended petition for post-conviction relief.
        Ohio provides two avenues for state prisoners to present newly discovered evidence that
challenges their convictions. First, an Ohio prisoner can present newly available evidence in a
petition for post-conviction relief under Ohio Rev. Code § 2953.21(A). If this evidence is not
presented in the first petition, new grounds for relief presented in subsequent petitions generally are
considered to be waived unless the prisoner can show that he could not have discovered the evidence
prior to the first petition or that there is new law that should be considered. Ohio Rev. Code
§§ 2953.21(A)(1)(a) and (A)(4). In the latter case, the petitioner must also show by “clear and
convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have
found the petitioner guilty of the offense of which the petitioner was convicted. . . .” Ohio Rev.
Code § 2953.23(A)(1)(b).
       In Jells’s case, he obtained the withheld information by April 1994. Jells had possession of
this material prior to the filing of his Amended Petition to Vacate or Set Aside Sentence pursuant
No. 02-3505                        Jells v. Mitchell                                                                  Page 18


to Ohio Rev. Code § 2953.21 on April 26, 1995.6 Thus, under Ohio law, res judicata bars Jells
from raising those claims that were not presented in this Amended Petition because they could have
been raised at that time. State ex rel. Rash v. Jackson, 

, 346 (Ohio 2004); 

.
       Second, Ohio also provides an avenue by which state prisoners can present newly discovered
evidence to the trial court. Ohio R. Crim. P. 33(A). Jells could have petitioned the trial court for
permission to file a Rule 33 motion in light of the fact that he was unavoidably prevented from
obtaining the evidence prior to trial. Ohio R. Crim. P. 33(B). Jells did not petition for such
permission, and at this point the state courts presumably would deny requests for relief pursuant to
Ohio R. Crim. P. 33(A) because Jells has waited an excessive period of time since he obtained the
evidence before seeking to raise it. See State v. Newell, No. 84525, 

, at *3 (Ohio
App. Dec. 16, 2004) (unpublished opinion).
       Therefore, as Jells has no state court remedies remaining, he procedurally defaulted those
portions of this claim that were not presented to the Ohio courts. See Roberts v. Carter, 

, 613 (6th Cir. 2003); see also Lancaster v. Adams, 

, 436 (6th Cir. 2003) (when a
habeas petitioner fails to obtain consideration of a claim by the state courts, the issue is procedurally
defaulted). Further, Jells is not able to demonstrate cause for not filing for relief under Ohio Rev.
Code § 2953.23(A) or Ohio R. Crim. P. 33(A) after obtaining the withheld information. See
Coleman v. Thompson, 

, 750 (1991); 

.
         Because Jells has procedurally defaulted on those items not presented in his amended petition
for post-conviction relief in the State of Ohio, we need only consider those items that were
preserved. We conclude that the four items presented in Jells’s Brady claim in his Amended Petition
for Post-Conviction relief are preserved. In his Twenty-Seventh Cause of Action in that petition,
Jells requested general relief for due process violations that occurred during his trial and specific
relief for the Brady violations. Jells’s legal argument in this Cause of Action, in full, states:
         Petitioner Jells’ right to due process was violated because the States withheld
         material impeachment and exculpatory evidence from him during his 1987 capital
         trial.
         Petitioner’s trial counsel filed a pretrial request for discovery. [ ] Pursuant to the due
         process clause of the Fourteenth Amendment, the prosecutor had a duty to disclose
         all material exculpatory and impeachment evidence in accordance with Petitioner’s
         request for discovery. See Brady v. Maryland, 

(1963). See also Ohio
         R. Crim. P. 16.
In addition, Jells’s petition explicitly references the withheld documents that are before this Court
in this cause of action and states that the documents were not provided to counsel until well after the
trial had ended:
         Petitioner made a public records request on post-conviction. Exhibit AAA [which
         includes requests for the disputed Brady documents]. Only then did the State fulfill
         its constitutional duty to provide material impeachment and exculpatory evidence.
         See Brady, 

. During post-conviction, Petitioner obtained documents that



         6
            The dissent notes that Jells failed to include a request for Brady relief in his initial petition for post-conviction
relief. See Dissenting Op. at 32. This is irrelevant, as the Ohio courts granted Jells’ motion to amend his petition, and
it is this amended petition that was before the Ohio Court of Appeals and the Supreme Court of Ohio when they
conducted their review of his claim.
No. 02-3505                       Jells v. Mitchell                                                               Page 19


         should have been provided at the time of Petitioner’s discovery request. See Exhibit
         CCC, Exhibit AAA, Series 1-25 [which includes the disputed Brady documents].
Four of the withheld items presented in this cause of action are included in the attached exhibits.
Because these items were included in his claim for Brady relief that was presented     to the Ohio
Court of Appeals, these withheld documents have not been procedurally defaulted.7
         Jells includes two more pieces of withheld information that were referenced in his Amended
Petition for Post-Conviction Relief. However, these items were not presented as part of his Brady
claim at that time, and were instead presented as part of a sufficiency-of-the-evidence claim. These
claims were defaulted because they cannot be considered to have been fairly presented. Baldwin
v. Reese, 

, 29 (2004); Picard v. Connor, 

, 275 (1971). To present a claim
fairly, it is sufficient if the substance of the claim was presented to the state courts, such that the
ultimate question would have been the same despite variations in the legal theory or factual
allegations urged in its support. 

; Whiting v. Burt, 

, 612-13
(6th Cir. 2005). Here, the state courts would not have been alerted that the alleged information
supported his Brady claim through Jells’s presentation of the information in the sufficiency-of-the-
evidence context.
C. Analysis
         1. The Withheld Information
         The four withheld documents that were included as a part of Jells’s Brady claim in his
Amended Petition for Post-Conviction Relief include: (1) A statement by Willie Smith, a long-time
friend of Stapleton, in which he says that Stapleton visited him for a while on the night of the
murder, that Stapleton had a drink while there and appeared “tipsy” when she left, that she said
Devon was out in the van, and that he thought that Stapleton would get into a car with a stranger
because she was very friendly. Smith stated that when he walked Stapleton to the door, he saw the
van and could see Devon sitting in the van but could not see who was driving. Smith explained that
he saw the same van days later, recorded the license number and reported it to the police, but that
he had not received any response. Smith also selected the van from a photographic array that the
officers presented to him; (2) A signed statement from Stapelton’s sister, which averred that
Stapleton would not take a ride from a stranger and that Stapleton had been drinking when she last
saw her at 6:30 p.m. on the night of the murder; (3) An interview and statement from the victim’s
boyfriend, Anthony Massingill, indicating that he was certain that Stapelton had arrived at the bar
to visit him at 11:00 p.m. “or a little after,” that her stated purpose was to retrieve the keys to the
apartment, and that during her visit, she appeared to have been drinking and “was high.” Stapleton
told him that she “was with a friend” who would give her a ride home; and (4) A police report noting
that an anonymous person, later determined to be Camilla Banks, called twice within a thirty-minute

         7
            The dissent argues that Jells’s presentation in his Amended Petition resulted in fairly apprising the Ohio courts
only that he was making a general due process claim. However, Jells explicitly references Brady, the prosecution’s
failure to disclose information until well after the trial had ended, and the documents that Jells believed should have been
disclosed. This is sufficient to protect his Brady claim from procedural default.
          No other court has concluded that this material is procedurally defaulted, and no party argues as much before
this court. The parties seem to recognize, as the dissent chooses not to, that the record establishes that Jells has
adequately preserved his Brady argument. In addition to Jells’s explicit reference to the withheld information in his
petition, there can be no doubt that the Ohio courts were aware that this material existed. The Ohio courts actively
intervened on Jells’s behalf regarding this material, granting or affirming a court order that compelled production of the
material. At the federal level, the Honorable John M. Manos of the Northern District of Ohio conducted an evidentiary
hearing on the issue of withheld Brady information, concluding that the record should be expanded to include even more
withheld information. While we conclude that any withheld information not presented to the state courts has been
procedurally defaulted, we reference this hearing simply to reiterate that the nature of this disputed withheld information
has always been fairly presented and apparent in Jells’s petitions for post-conviction relief.
No. 02-3505                      Jells v. Mitchell                                                           Page 20


period to state that she and her father observed a man grabbing a female and young boy at
approximately 11:00 p.m, and that she could not see the male well but that her father could. The
caller reported that the license plate number was 941 MJV, although she stated that she was not sure
of the first three numbers.
         2. Ohio Court of Appeals Decision
         The Ohio Court of Appeals misconstrued Jells’s Brady claim, stating simply that Jells’s
assignment of error was based on his contention that “the trial court erred in rejecting his claim that
evidence for impeachment of the state’s witnesses had to be provided prior to trial, . . . and not
following the testimony of the witness on direct examination.” 

, at * 10. However,
as we have noted, Jells’s petition for post-conviction relief properly stated a Brady claim, included
a clear statement that Jells was not able to receive the complained of information until post-
conviction, and explicitly stated that the withheld information was attached to the petition. Because
Jells fairly presented this claim to the state courts, Jells has preserved this claim. Further, as there
is no state court decision regarding the merits of the claim, we review the claim de novo. See

.
         3. Application of Brady
        At trial, the prosecution sought to demonstrate that Jells had randomly kidnapped Stapelton
from the streets of Cleveland.8 The prosecution supported this theory by presenting witnesses at
trial who testified that they saw Jells grab Stapleton from a street intersection and force her and
Devon into his van sometime between 10:30 p.m. and 11:00 p.m, while Stapleton struggled and
screamed.
        Instead, the withheld statement by Massingill, if credited, demonstrates that Stapelton was
still voluntarily getting into and out of the van after the time of the altercation at the street
intersection, as he was “certain” that Stapelton visited him at 11:00 p.m. “or a little after.” This
statement obviously weakens any conclusion that the kidnapping occurred when Stapelton was
forced into the van at the intersection, because it demonstrates that Stapelton was still voluntarily
getting into and out of the van after the time of that incident. The withheld statements by Massingill
and Smith also refute the prosecution’s theory of a random kidnapping, as the statements support
a conclusion that Stapelton had been voluntarily riding with Jells the night of the murder—and was
freely getting in and out of the van—both before and after the time of the incident at the intersection.
        Other withheld evidence impeaches the credibility of a witness who believed that the
altercation was an abduction. At trial, Camilla Banks testified that she and her father witnessed
Stapleton’s abduction, and she positively identified Jells as the abductor. However, a withheld
document reveals that an anonymous caller, later identified as Camilla Banks, told police that she
had witnessed the incident but that “she couldn’t see the male well.”



         8
         The State disputes that its theory at trial was that Jells had participated in a random kidnapping and murder.
However, the prosecutor, Carmen Marino, detailed in his deposition the State’s theory of the case:
         A. There was no ransom note, there wasn’t a kidnapping for hire by some third party. It was a street
         assault on a woman for sex and she resisted. . . .
         Q. So the State’s theory was that this was about a man who the State alleged to be Reginald Jells who
         had kidnapped some woman off the street for the purpose of some improper purpose, is that correct?
         A. Right.
The Ohio Supreme Court also seems to have credited this theory, stating that Jells “killed Ruby Stapleton after first
kidnapping her and her child off the streets of Cleveland Ohio.” 

.
No. 02-3505                        Jells v. Mitchell                                                               Page 21


        Second, not all of the testifying witnesses believed that Jells was abducting Stapelton when
he forced her into the car. The impeachment of Camilla Banks combined with the information from
Smith and Massingill that Stapelton voluntarily accompanied the driver of the van much of the
evening would have bolstered the credibility of Wright, a trained security guard who was working
in the area when he witnessed the incident at the intersection. At trial, Wright testified that he did
not notify the police because, based upon his observations, he thought Stapleton and the man knew
each other. Wright reasoned that the incident was something like a “lover’s quarrel” and “nothing
serious.” Wright further testified that while he heard the lady yell three times, she never yelled for
anyone to help her, even though there were a few people around at the time. Wright testified that
Stapleton was placed into the van on the driver’s side by the man, but that the door was not closed.
Wright was uncertain how the victim moved over to the passenger side, but he observed her
thereafter sitting straight up in the passenger’s seat “like a normal passenger” and she had stopped
yelling. At the time of the trial, Wright’s testimony was in conflict with that of Owen and Camilla
Banks, and the judges apparently found their testimony more credible. However, this balance could
have shifted had Wright’s testimony been presented along with the information indicating that
Stapleton was with Jells of her own volition earlier in the night, that Camilla Banks did not clearly
see Jells on the night in question, that Stapleton’s boyfriend saw Stapleton around the time of or
after the altercation, and that Stapleton was not under duress at that time.
       Finally, the evidence that Stapleton was intoxicated on the night of her murder undercuts the
aggravating factors listed by the three-judge panel when it found it appropriate to impose the death
penalty. Specifically, the court listed as an aggravating factor the “methodical manner in which the
defendant deprived the victim of her freedom,” referencing Jells’s statement to Owen Banks that
Stapleton was drunk and implying that the court did not believe Jells’s statement to be true. The
withheld information indicates that the victim had been drinking and “was high,” providing a
plausible non-methodical explanation for the statement made to Owen Banks.
         Lastly, at trial, Jells’s defense included a theory that there had been no kidnapping.9 Taken
together, the withheld evidence is sufficient to undermine confidence in the trial court’s rejection
of this theory. The “kidnapping” and the circumstances surrounding the “kidnapping” were weighed
by the trial court when they determined that the aggravating factors outweighed the mitigating
factors in sentencing Jells to death. Because of this, the withheld evidence that weakens the strength
of the State’s kidnapping case is material for the purpose of Brady, as there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding would
have been different. 

. Under Ohio Revised Code § 2905.01, kidnapping
requires more than just “restraining” someone. Instead, any restraining must be done for a specific
purpose, such as “to terrorize, or to inflict serious physical harm on the victim or another.” O.R.C.
§ 2905.01. The withheld information suggests that Stapelton was voluntarily with Jells for much
of the night, weakening an inference that any “restraint” of liberty at the intersection was done for
the “purpose” of causing Stapleton harm. The withheld “favorable evidence could reasonably be
taken to put the whole case in such a different light as to undermine confidence in the verdict.”

         9
           The dissent argues that Jells presented only a theory of misidentification at trial. Dissenting Op. at 31, n.2.
However, the record shows that Jells’s attorney argued that “there could be no kidnapping insofar as the parties had been
riding around together for an hour to an hour and a half [following the alleged abduction.]” (Joint Appendix (“JA”) 624-
25.) In closing arguments, Jells’s attorney argued that “the reason no one called the police [at the time of the altercation
in the intersection] is because they all believed it was a lover’s quarrel. . . . If it was, in fact a kidnapping, [Stapleton]
had every opportunity to get out of the passenger side door. With the number of people standing around, if this was a
kidnapping, you know she would say to someone, ‘I’m being kidnapped. Help me . . . I suggest the reason is because
she wasn’t kidnapped.” (JA 615-16.) Jells’s attorney argued that the presence of Stapelton’s footprint in the van was
further evidence that no kidnapping occurred, as it indicated that she was “riding along in this van” and had put her feet
“up on the dash,” which was indicative of “being very comfortable with her surroundings.” (JA 617.) Lastly, Jells’s
attorneys specifically “ask[ed] the Court to focus in on the kidnapping statute 2905.01 under which this defendant is
charged, that the State has not met its burden as to the kidnapping.” (JA 624.)
No. 02-3505                      Jells v. Mitchell                                                            Page 22


Kyles v. Whitley, 

, 435 (1995).10 “[T]he question is not whether the State would have
had a case to go to the jury if it had disclosed the favorable evidence, but whether we can be
confident that the jury's verdict would have been the same.” 

Here, there can be no
confidence that all three judges would have determined that the aggravating factors listed in Ohio
Rev. Code §2929.04(B) outweighed the mitigating factors had they been presented with the withheld
information, and therefore there can be no confidence that the sentence would have been the same.
See 

.
         The dissent cites the Ohio Court of Appeals’ decision on direct appeal as support for her
determination that there was overwhelming evidence of the aggravated circumstance of kidnapping
at trial. Dissenting Op. at 30. However, this determination was made without consideration of the
information withheld by the prosecution in violation of Brady. Further, in that court’s findings as
quoted by the dissent, each of the references to kidnapping are either ambiguous or directly impacted
by the information withheld in violation of Brady. First is the summary of Devon’s testimony that
“he and his mother were either forced into [Jells]’ van by [Jells] or that they entered it voluntarily.”
Dissenting Op. at 28 (quoting from Jells, 

*2) (emphasis added). Next are the
statements by the same court that there was an “abduction witnessed by Owen and Camilla Banks
and Edward Wright,” 

five witnesses testified that the abduction was “intentional” or
“deliberate and forceful.” 

discount Wright’s trial testimony that the dispute
appeared to be a “lover’s quarrel”—i.e. not an abduction—and credit Camilla’s statement at trial that
she could clearly see the abduction. However, the withheld statement by Stapelton’s boyfriend, if
believed, means that whatever happened at the intersection, Stapelton was not abducted because she
was still voluntarily getting into and out of the van after the time of the alleged abduction. Further,
the withheld call-log from the night of Stapelton’s murder directly impeaches Camilla’s statement
regarding her view of the alleged abduction. Lastly, the withheld statements of Massingill and
Smith bolster Wright’s testimony at trial—completely ignored in the Ohio Court of Appeals
decision—that no abduction occurred, given that evidence demonstrating that Jells and Stapelton
knew each other would have bolstered his conclusion that the incident was “nothing serious” and
like a “lover’s quarrel.”
        The remainder of the dissent’s challenge to the effect of the Brady violation goes to whether
the evidence of Stapelton’s murder was undermined by the violation. However, because Jells was
charged with felony murder based upon a kidnapping, we need not, and do not, find that the trial
court might have reached a different conclusion as to Jells’s culpability as to the murder of
Stapleton. Instead, it is sufficient for us to find, as we do, that the withheld Brady information
refutes the prosecution’s weak presentation of evidence regarding whether a kidnapping occurred.
 VI. INEFFECTIVE ASSISTANCE OF COUNSEL PRIOR TO THE PENALTY PHASE
A. State Court Decision
        On collateral review, the Ohio Court of Appeals rejected Jells’s claim that he was denied
effective assistance of counsel prior to and during his trial:
                Petitioner asserts that his counsel informed him that a three judge panel
         would be best for him because of the pretrial publicity surrounding Stapleton’s death
         and because of Devon’s testimony. He further asserts that his counsel never


         10
           Jells also argues that the Brady evidence demonstrates that he is actually innocent of the aggravating
circumstance of kidnapping. In order to demonstrate actual innocence, Jells must show that, more likely than not, a
reasonable juror would not have found him guilty beyond a reasonable doubt. Schlup v. Delo, 

, 327 (1995).
Jells’s new evidence does not rise to the standard of establishing his actual innocence because a reasonable juror still
could have found him guilty even after considering this new evidence.
No. 02-3505                  Jells v. Mitchell                                                  Page 23


        informed him that, inter alia, the three judge panel would also hear the mitigation
        phase, that if the matter were tried to a jury, all twelve members of the jury would
        have to agree to convict and sentence him, that a reviewing court would apply a
        presumption of correctness when reviewing certain errors. He avers, however, that
        his attorneys “felt that a three judge panel would be best in my case because they felt
        that a three judge panel would not give me a sentence of death.” Amended Petition
        for Post-Conviction Relief, Exhibit S.
              We find that this decision was a strategic choice. Accord State v. Woods
        (March 5, 1997), Medina App. No. 2589-M, unreported. Moreover, the court
        examined a similar argument in State v. Sowell (1991), 

, 683,
        

, and stated:
                        In his twenty-ninth cause of action, the only cause of action
                not heretofore addressed, Sowell challenges the knowing and
                intelligent nature of his waiver of a jury trial. Sowell offered in
                support of this contention his own affidavit, in which he averred that
                he executed the waiver upon trial counsel’s representation that a trial
                before a three-judge panel would not result in the imposition of the
                death penalty. Sowell’s “self-serving” affidavit is not, however,
                sufficient to rebut the record before us, which contains Sowell’s
                written waiver in which he stated that he “knowingly, intelligently
                and voluntarily waive[d] and relinquish[ed] his right to a trial by Jury
                ***.” See 

. Sowell was, therefore, not entitled to an
                evidentiary hearing on the challenge advanced in his twenty-ninth
                cause of action when he failed to sustain his initial burden of
                demonstrating substantive grounds for relief.
        See State v. Kapper (1983), 

, 

. Upon our
        determination that Sowell’s petition was subject to dismissal without an evidentiary
        hearing, we overrule the first assignment of error.
                In any event, petitioner has not demonstrated how this decision resulted in
        prejudice to him. He does not show, and we cannot say, that had this case been tried
        to a jury, the result would have been different. Accord State v. Woods, supra.
Jells, 

, at *3.
        While Jells argued before the state courts that his counsel made several errors prior to and
during trial that constituted ineffective assistance of counsel, this Court granted a certificate of
appealability only as to whether Jells was denied the right to effective assistance of counsel in
making his decision to waive his right to a jury trial. On this issue, Jells argues that his counsel were
ineffective because they failed to advise him properly of the consequences of his waiver. He argues
that counsel failed to determine and inform the trial court that Jells was borderline mentally retarded,
and that they did not fully advise Jells of his right to present to twelve jurors or any other jury-
related implications. Jells additionally argues that his counsel were ineffective when they allowed
him to sign the waiver prior to the completion of the Competency Report, which subsequently
indicated that Jells understood his possible sentence to be at most one of life.
B. Analysis
        As explained above, this Court makes a two-part inquiry when reviewing ineffective
assistance of counsel claims. See, e.g., 

. First, Jells must demonstrate
that his counsel’s performance was deficient. 

must demonstrate that any such
No. 02-3505                 Jells v. Mitchell                                                  Page 24


deficiency caused him prejudice. 

defendant makes both showings, it cannot be said
that the conviction or death sentence resulted from a breakdown in the adversary process that
renders the result unreliable.” 

the state courts reached the merits of this issue,
AEDPA review applies to this claim.
       1. Deficient Performance
        Jells correctly notes that his counsel had a professional duty to inform him of the nature of
his right to a jury trial and the consequences of waiving it so that he could make an intelligent and
informed waiver decision. See MODEL RULES OF PROF’L CONDUCT R. 1.4(b) (1983). However, Jells
has not presented sufficient evidence to demonstrate that counsel failed in this duty.
        In United States v. Martin, the Court explained what level of knowledge of the jury trial right
is required for a defendant to intelligently waive it:
       A defendant, therefore, should have both the mental ability and some knowledge of
       the jury trial right before he is allowed to waive it. A technical knowledge of the
       jury trial right, however, is not what is required. A defendant is sufficiently informed
       to make an intelligent waiver if he was aware that a jury is composed of 12 members
       of the community, he may participate in the selection of the jurors, the verdict of the
       jury must be unanimous, and that a judge alone will decide guilt or innocence should
       he waive his jury trial right.

, 273 (6th Cir. 1983) (citations omitted); accord Sowell v. Bradshaw, 

, 832
(6th Cir. 2004); Spytma v. Howes, 

, 370 (6th Cir. 2002). The Court has explained that,
while “[k]nowledge of these essential attributes is generally sufficient to enable a defendant to make
a knowing and intelligent decision,” 

, a defendant’s knowledge of these
elements is not “constitutionally required.” United States v. Sammons, 

, 597 (6th Cir.
1990). Rather, the dispositive inquiry is whether the defendant “‘understood that the choice
confronting him was, on the one hand, to be judged by a group of people from the community, and
on the other hand, to have his guilt or innocence determined by a judge.’” 

(quoting 

).
         Despite Jells’s broad allegations, he has not produced any evidence to establish that counsel
failed to inform him of the fundamental nature of the choice confronting him. While Jells’s
affidavit indicates that he “does not recall” having been informed of the rights that go along with
the right to a jury trial, the affidavit also indicates that he met with two of his attorneys to discuss
whether the case should be tried to a jury or a three-judge panel. Jells further recalls that the
attorneys told him that, in their opinion, a three-judge panel would be best because of the publicity
surrounding the case, the potentially damaging testimony by Devon, and because they felt that a
three-judge panel would not give Jells a sentence of death. Jells also submits the affidavit of one
of his attorneys at the time, David Doughton, in support of his claim. However, this affidavit simply
indicates that Doughten was not personally aware of whether Jells was informed of certain aspects
of his right to a jury trial because he was out of town when the waiver was entered. Further, the
affidavit confirms that the attorneys discussed with Jells which evidence would be presented to that
particular three-judge panel and why the counsel thought it would be effective given that particular
panel.
       The submitted affidavits show that Jells was advised that a three-judge panel would likely
be a better decision-maker for both phases of his trial. Providing such advice does not constitute
unreasonable performance by counsel. See 

(“Counsel necessarily had
to make a choice between the two modes of trial, and it was impossible to say at the time which
would be better for his client. We find no professional norms that dictate how a lawyer and his
No. 02-3505                 Jells v. Mitchell                                                 Page 25


client should go about making this choice.”). Accordingly, Jells has not presented sufficient
evidence to overcome the “strong presumption that counsel’s conduct [fell] within the wide range
of reasonable professional assistance.” 

.
       2. Prejudice
        Even if Jells could show that his counsel’s performance was deficient, he would still need
to demonstrate that he suffered prejudice as a result. To demonstrate prejudice, Jells “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.” 

. Jells has not made such a
showing. Jells merely argues that if counsel had adequately informed him of his right to a jury trial,
he might not have waived the right and at least one member of the jury might not have sentenced
him to death. Jells provides no evidence to support this claim, and thus fails to demonstrate
prejudice under Strickland.
                       VII. KNOWING AND INTELLIGENT WAIVER
       Jells did not present this claim to the Ohio Court of Appeals, and the Ohio Supreme Court
reviewed the claim for plain error and concluded that no error occurred. 

.
The court’s plain-error review is not considered a review on the merits, and therefore Jells has
procedurally defaulted on this claim if no exception is applicable. See Keith v. Mitchell, 

, 673-74 (6th Cir. 2006), cert. denied, 

(2007); Lundgren v. Mitchell, 

, 765 (6th Cir. 2006).
        Jells acknowledges that this claim was not presented to the Ohio Court of Appeals. He
argues that, because his counsel had advised him to waive the right to the jury trial, there is no
procedural bar as a result of his failure to question this waiver while he still retained the same
counsel. In support of this argument, Jells relies on decisions addressing ineffective-assistance-of-
counsel claims. These cases conclude that, in Ohio, “it is the well-settled rule that a party will not
be permitted to take advantage of an error which he himself invited or induced the trial court to
make.” Lester v. Leuck, 

, 146 (Ohio 1943); State ex rel. Johnson v. Ohio Adult Parole
Auth.,768 N.E.2d 1176 (Ohio 2002). Jells argues that at the time of his appeal, this rule would have
barred any claim that the waiver was not valid because the same trial counsel represented him at trial
and on appeal, that this counsel invited or induced the error, and that he therefore could not raise an
objection. Jells argues that the Ohio Supreme Court would not treat any such omitted claim as
procedurally barred, but would instead allow the claim to be presented at such time where the
conflict was no longer present. Jells provides no support for his assertion. The cases he cites refer
only to ineffective-assistance-of-counsel claims, and a similar exception to the procedural bar has
never been applied by the Ohio courts in this situation. Therefore, we conclude that the Ohio court
did not erroneously apply its default rule.
         Further, Jells fails in his attempt at showing cause. He argues that the same counsel who
obtained the waiver were counsel on appeal, and that for this reason he could not have been expected
to raise the claim earlier. However, the ineffective-assistance-of-counsel claim regarding the jury
waiver also involved the same counsel both at trial and on appeal, and Jells nevertheless raised that
claim on appeal. Because he was able to bring the ineffective-assistance claim on appeal, he has not
demonstrated any cause for why he could not also bring the ineffective-waiver claim at that time.
Jells likewise has not made any showing that a fundamental miscarriage of justice occurred by the
trial court’s acceptance of his jury trial waiver, nor has he established that he is actually innocent
as required by Schlup, 

. We conclude that Jells has defaulted on this claim.
No. 02-3505                 Jells v. Mitchell                                                 Page 26


                             VIII. PRETRIAL IDENTIFICATION
        Jells complains that the line-up shown to Wright was unduly suggestive. At this line-up,
there were five participants, and Jells was by far the youngest. Jells was placed in the middle of the
line-up, dressed in an ill-fitting City of Cleveland jail jumpsuit made of gray or blue paper-like
material and jail slippers or socks while the other participants wore street clothes and shoes. Jells’s
counsel filed a motion to suppress this identification before the trial court; the motion was denied
without explanation.
A. State Court Decision
        On direct appeal, the Ohio Supreme Court addressed this claim on the merits and determined
that the identification was properly admitted:
              Appellant in his fifth proposition of law alleges that the lineup shown to
       witness Edward Wright was unduly suggestive and inherently unreliable. Appellant
       bases this proposition on the fact that, while the other men in the lineup were
       wearing street clothes, appellant was wearing prison garb, i.e., a jumpsuit.
              In State v. Sheardon (1972), 

, 

11, 

, paragraph two of the syllabus, this court held with respect to police lineups that:
               “The due process clause of the Fifth and Fourteenth Amendments
               forbids any pre- or post-indictment lineup that is unnecessarily
               suggestive and conducive to irreparable mistaken identification. * *
               *”
       See, also, Kirby v. Illinois (1972), 

. A reviewing court should examine
       the factors surrounding the actual eyewitness incident to determine whether the
       witness is susceptible to suggestion which would lead to an irreparable, mistaken
       identification. See Neil v. 

.
       In the case sub judice Wright was able to describe the clothes that Devon and the
       victim wore. Wright was able to recognize that appellant's hair in court was shorter
       than it had been at the scene of the kidnapping. In applying the Biggers factors . .
       ., we find that Wright had ample opportunity to independently observe and identify
       appellant. Furthermore, he unequivocally displayed his ability to identify the
       defendant based on his recollection of the defendant's conduct. Accordingly, this
       proposition of law is not well-taken.

.
B. Legal Standard
        Pretrial identification procedures violate due process where the procedures are
“unnecessarily suggestive and conducive” such that they risk “irreparable mistaken identification.”
Stovall v. Denno, 

, 301-02 (1967). In Neil v. Biggers, 

(1972), the
Supreme Court held that identifications obtained through suggestive means may still be admissible
if they are reliable. 

In determining whether they are reliable, “the central question”
is “whether under the ‘totality of the circumstances’ the identification was reliable even though the
confrontation procedure was suggestive.” 

       [T]he factors to be considered in evaluating the likelihood of misidentification
       include the opportunity of the witness to view the criminal at the time of the crime,
No. 02-3505                 Jells v. Mitchell                                                  Page 27


       the witness’ degree of attention, the accuracy of the witness’ prior description of the
       criminal, the level of certainty demonstrated by the witness at the confrontation, and
       the length of time between the crime and confrontation.

C. Analysis
        Although it is clear that the pretrial identification procedure was unduly suggestive, the Ohio
Supreme Court did not unreasonably determine that the identification was nonetheless reliable. The
five factors to be weighed in determining reliability are: (1) the opportunity of the witness to view
the perpetrator during the crime; (2) the witness’s degree of attention to the perpetrator; (3) the
accuracy of the witness’s prior descriptions of the perpetrator; (4) the level of certainty demonstrated
by the witness when identifying the suspect; and (5) the length of time between the crime and the
identification. 

. We weigh these factors against the corrupting effect of
the suggestive identification itself. Manson v. Brathwaite, 

, 114 (1977).
        Despite the impermissibly suggestive procedure, Wright’s identification of Jells was still
sufficiently reliable. At trial, Wright testified that he was working as a security guard near the
intersection where Jells allegedly abducted Stapleton. Wright heard a woman screaming and saw
a man pick her up and throw her into the back of a van, and Wright testified that Jells was that man.
During the incident, Wright was able to see Jells from 40 to 150 feet away, and he was focused
closely on the event as it occurred.
        Considering the evidence, the Ohio Supreme Court’s determination that the identification
was reliable was not unreasonable. Wright had a clear view of Jells during the incident, the area
was generally well-lit, and Wright and Jells were as close as forty feet. Wright stated that he was
closely focused on Jells and Stapleton as the incident occurred. At trial, he testified that Jells was
wearing a black shirt with blue jeans, and was able to describe the appearance of his hair. Wright’s
prior physical descriptions of the perpetrator largely matched Jells. Wright demonstrated a high
level of certainty in identifying Jells; indeed, he testified that he did not notice significant details
about the other members of the line-up because he immediately recognized Jells as the perpetrator.
Lastly, only eleven days elapsed between the incident and the line-up, which is not a significant
period of time. See Haliym v. Mitchell, 

, 706 (6th Cir. 2007) (concluding that a length
of several days between observation and identification is not excessive); Howard v. Bouchard, 

, 473 (6th Cir. 2005) (finding that three months is not an excessive length of time).
                                        IX. CONCLUSION
        For the reasons above, we REVERSE the judgment of the district court but GRANT Jells
a conditional writ of habeas corpus, vacating his death sentence unless the State of Ohio commences
a new penalty-phase trail against him within 180 days from the date that this judgment becomes
final, and REMAND the case for further proceedings consistent with this opinion.
No. 02-3505                     Jells v. Mitchell                                            Page 28


                                            _________________
                                                DISSENT
                                            _________________
         ALICE M. BATCHELDER, Circuit Judge, dissenting. Today, a panel majority overturns
an Ohio judgment, which sentenced petitioner Reginald Jells to death, by re-characterizing a
defaulted Brady claim, reviewing it de novo, and finding that the State’s withholding of evidence
unconstitutionally prejudiced Jells; and also by finding that Jells’s counsel were unconstitutionally
inadequate because they failed to discover — and present to the trial court during the sentencing
phase — mitigation evidence that would have provided a more “nuanced” and sympathetic picture
of Jells. Because the record does not support either the majority’s re-characterization of the Brady
claim or the majority’s finding of prejudice resulting from that claim; because the law does not
permit us to overturn the state court’s Strickland judgment on the basis of subjective interpretations
of the facts, no matter how nuanced; and because the facts of this case do not permit a finding of
prejudice on either the Brady claim or the Strickland claim, I must respectfully dissent.
                                                        I.
         When Devon Stapleton was four years old, he watched helplessly as a man beat his mother
senseless with a transmission jack. So close was Devon to the onslaught that his mother’s blood
splattered onto him. His last image of his mother was of her lifeless body being dragged by this
savage man into a cold, dark junkyard in the middle of the night. When he was found by Clyde
Smith, alone outside a different junkyard in the wee hours of the morning, “Devon kept telling Smith
that his mother was over a fence and that he could not get to her because of the wire.” Ohio v. Jells,

, *2 (Ohio App. 1989). A police report from a few days after the crime recounts:
       Conversed with victim, Devon Stapleton. Devon was shown several photos of black
       males, and three photos of the suspect’s van. Devon pointed immediately to the
       second photo which was the arrested male [Reginald Jells] and said, ‘This is the man
       that hit my mommy,’ ‘Ask that man where is my mommy.’ Devon also stated that
       [the picture of Jells’s van] was the [assailant’s] van. The child was adamant in
       positively identifying the photos of the suspect Reginald Jells and the [v]an, with the
       license plates 149MJV. Devon requested of me to take [him] to see the man
       [Reginald Jells] so he could ask him where is his mother. (Emphasis added.)
More to the point, Devon testified against Jells at trial. See Jells, 

at *2.
       The Ohio Eighth District Court of Appeals’ opinion from Jells’s direct appeal of his
conviction provides a reasonably vivid account of four-year-old Devon’s testimony:
               Devon Stapleton took the stand and testified that on the night in question he
       and his mother were en route from his father’s bar.[1] Devon stated that as he and his
       mother were trying to go to Coventry Road, [Jells] asked his mother if they wanted
       a ride. Devon’s testimony indicated that he and his mother were either forced into
       [Jells]’s van by [Jells] or that they entered it voluntarily. At about 10:30 p.m.[,]
       Ruby Stapleton escaped from the van causing [Jells] to stop and physically force her
       and Devon back in. This is the abduction witnessed by Owen and Camilla Banks
       and Edward Wright. Devon testified that they drove around for a long time. Devon
       stated that he saw [Jells] hit his mother twice with a ‘silver thing.’ After his mother


       1
           Devon’s father is Anthony Massingill. See Maj. Op. § V(C).
No. 02-3505                Jells v. Mitchell                                                 Page 29


       was hit, Devon stated she ‘got knocked out.’ Blood was splattered on Devon’s
       clothes.
               Devon testified that at some point [Jells] carried his mother from the van.
       Devon recalled seeing a junkyard and that [Jells] opened a big fence. Devon could
       not see where [Jells] took his mother. [Jells] returned to the van, drove around some
       more, and eventually stopped at a gas station. Devon testified that he was later
       abandoned near a junkyard. Devon stated that he just stood there until some man
       [Clyde Smith] picked him up.
               Clyde Smith testified that in the early morning hours of April 19, 1987[,] he
       came upon a child who had been abandoned on the street. Smith testified that the
       child was crying. Smith picked up the child and took him to his (Smith’s) home.
       Devon kept telling Smith that his mother was over a fence and that he could not get
       to her because of the wire. Smith called the police. Smith’s wife, Anita, noticed a
       shiny substance on Devon’s coat which she thought to be blood. Devon stated that
       the blood was his mother’s and that a man had thrown him out of a van.
Jells, 

at *2; see also Ohio v. Jells, 

, 466-67 (Ohio 1990). Elsewhere
in the court of appeals’ opinion, the court elaborated on its appraisal of Devon’s testimony:
               It is clear that Devon got a good view of the assailant. Devon was in [Jells]’s
       van and able to observe [Jells] for an extended period. He saw [Jells] hit his mother
       with a silver object and saw her blood splatter. He saw [Jells] knock his mother
       unconscious, carry her into a junkyard and return to the van. Devon stated he was
       eventually dropped off by [Jells]. Devon’s ability to relay accurately these events
       indicated he paid a good deal of attention the night his mother and h[e] were
       kidnapped and his mother murdered. Further, the information relayed by Devon was
       substantiated by scientific and physical evidence. Devon described [Jells] as ‘real
       big’ and ‘black black.’ Given the child’s age and that he was able to recall the
       night’s events in detail, we conclude that his description of [Jells] was not
       indeterminatively vague. Further, Devon identified [Jells] with great certainty the
       day after [Jells]’s arrest. We find nothing unreliable in Devon’s out of court
       identification.

see also 

. The court acknowledged the corroborating evidence:
               In this case four witnesses, Camilla Banks, Owen Banks, Edward Wright[,]
       and Devon Stapleton testified that the kidnapping was intentional and forceful. All
       four identified [Jells] as the perpetrator. Patricia Green’s testimony also indicates
       that the abduction was deliberate and forceful. Camilla and Owen Banks, Edward
       Wright[,] and Devon Stapleton all identified [Jells]’s van as the one used the night
       of the abduction. Owen and Camilla Banks, Devon[,] and Wright identified the
       victim, Ruby Stapleton, as the woman [Jells] picked up and threw into the van. It is
       clear from the evidence presented by the State that Ruby Stapleton was forced,
       against her will, into the van and that Devon was also placed into the van.
                As discussed in the facts, the evidence showed that Ruby Stapleton while in
       the van was beaten with some sort of silver object and that she was ‘knocked out’ as
       a result and dragged into a junk yard. The evidence further showed that Ruby
       Stapleton’s blood was found in the van along with a shoe print which matched the
       left tennis shoe recovered on her body. A transmission jack was also found in
       [Jells]’s van which matched the marks found on the victim’s body. [Jells]
No. 02-3505                 Jells v. Mitchell                                                 Page 30


       unequivocally stated that the van, which four witnesses had identified as belonging
       to the perpetrator of the kidnapping, belonged to him.

see also 

18 (“This evidence overwhelmingly supported the trial court’s finding
that [Jells] was guilty of the aggravated circumstance of kidnapping.”). A coroner testified that
Ruby Stapleton was beaten to death with a blunt instrument, and the wounds — evidencing over 90
blows — matched a transmission jack recovered from Jells’s van. 

.
       On appeal to the Ohio Supreme Court, that court affirmed the court of appeals decision, and
concluded its opinion with an independent assessment of the death sentence, stating:
       [Jells] killed Ruby Stapleton after first kidnapping her and her child off the streets
       of Cleveland, Ohio. We find that the aggravating circumstance is proved beyond a
       reasonable doubt. [Jells] introduced in mitigation that [1] he had no significant
       history of prior criminal conduct, [2] he could possibly adapt well to imprisonment,
       [3] his youth (21 years old), and [4] his low intelligence. Weighing the mitigating
       factors against the aggravating circumstance, we conclude that the aggravating
       circumstance outweighs the mitigating factors beyond a reasonable doubt.

(paragraph breaks omitted).
       Based on the forgoing recitation of incontrovertible facts — which the majority has also
expressly adopted as its own, Maj. Op. § I(A) — I cannot conclude that Reginald Jells suffered any
undue prejudice from either the alleged Brady violation or the alleged ineffective assistance of
counsel. Indeed, I find it remarkable that anyone could. Simply put, Devon’s testimony is so
powerful that, even standing alone, it proves that Jells kidnapped and murdered Ruby Stapleton:
       It is clear that Devon got a good view of the assailant. Devon was in [Jells]’s van
       and able to observe [Jells] for an extended period. He saw [Jells] hit his mother with
       a silver object and saw her blood splatter. He saw [Jells] knock his mother
       unconscious, carry her into a junkyard and return to the van. . . . Devon’s ability to
       relay[] these events [accurately] indicated [that] he paid a good deal of attention the
       night his mother and h[e] were kidnapped and his mother murdered. Further, the
       information relayed by Devon was substantiated by scientific and physical evidence.
Jells, 

at *2; see also 

.
       The [physical] evidence [] showed that Ruby Stapleton’s blood was found in the van
       along with a shoe print which matched the left tennis shoe recovered on her body.
       A transmission jack was also found in [Jells]’s van which matched the marks found
       on the victim’s body. [Jells] unequivocally stated that the van . . . belonged to him.

Jells was fully aware of Devon’s testimony and this physical evidence before trial and
yet he pursued a defense of misidentification — he argued that he was not the perpetrator, that he
did not abduct Ruby and Devon Stapleton, and that he and his van had been misidentified. At
sentencing, Jells argued “residual doubt” — i.e., the court should spare his life if it found (that is,
because it should find) some residual doubt as to whether he actually committed the crime.
No. 02-3505                       Jells v. Mitchell                                                              Page 31


         Even if the alleged Brady materials would have aided Jells’s defense — which they would
not, as they fit only an entirely different theory of defense; i.e., that Ruby was with Jells voluntarily2
— Jells is still left with Devon’s testimony, which is overwhelming. And the currently alleged
Brady materials do not diminish Devon’s testimony in any way. Furthermore, the after-acquired
mitigation evidence (i.e., that Jells is learning disabled and socially maladjusted, and that, as a child,
he was the victim of and witness to extensive physical abuse) does little to lessen Jells’s culpability
for this particular act, considering the totality of the evidence — i.e., Jells was sufficiently intelligent
to become a successful auto mechanic, had no prior criminal history other than one purse snatching,
and this was an especially gruesome murder, committed over the course of an entire evening, for
purposes of sexual gratification, and in the presence of the victim’s four-year-old son.
        Therefore, even if the withheld evidence had been provided as the majority says it should
have been and even if Jells’s counsel had performed exactly as the majority says they should have,
there is no legitimate possibility that the trial, the conviction, or the sentence would have been any
different. Jells kidnapped, assaulted, and brutally murdered Ruby Stapleton in front of her four-
year-old son, and no rational finder of fact could reasonably consider the total evidence and
conclude otherwise. Consequently, I cannot join the majority’s opinion and must respectfully
dissent.
       I also disagree with the majority’s legal analysis of both the Brady claim and the sentencing-
phase ineffective-assistance claim, and feel compelled to explain my disagreement, albeit briefly.
Even though I also disagree with the majority’s analysis of Jells’s other claims, I am not compelled
to comment specifically on the majority’s treatment of those claims because the majority ultimately
reaches the correct conclusion — finding no merit to any of those other claims.
                                                            II.
         In analyzing Jells’s Brady claim, the majority — conducting a de novo review — contends
that if the State had properly provided the withheld evidence to Jells’s counsel, then that counsel
might reasonably have prevented the State from convincing all three members of the three-judge
panel that Jells kidnapped Ruby Stapleton. The majority says that, taken together, this evidence is
sufficient to undermine confidence in the trial court’s finding that a kidnapping occurred. See Maj.
Op. § V(C)(3). The four pieces of evidence at issue are: (1) a statement by one Willie Smith
relating his impression of Ruby on the night of the murder; (2) a statement from Cynthia Yawn,
Ruby’s sister, relating her impressions of Ruby on the night of the murder; (3) a statement from
Anthony Massingill, Devon’s father, relating his impressions of Ruby on the night of the murder;
and (4) a Crimestoppers intake sheet, attributable to Camilla Banks, stating that she had not gotten
a good look at the perpetrator. The majority surmises that if Jells’s counsel had been armed with
this evidence, then that counsel would have: (1) been more persuasive in showing that Ruby was

         2
           Jells’s theory of defense was “misidentification” (i.e., someone else abducted and murdered Ruby Stapleton),
and though he produced only one witness for his defense, that witness testified to Jells’s alibi (that Jells was at home),
which was consistent with the misidentification theory. Of the Brady materials at issue, only the anonymous statement
to Crimestoppers (which was later determined to have been Camilla Banks) would have furthered this defense, in that
it would have cast doubt on Camilla Banks’s ability to identify Jells, but even that would have had little force against
her in-court identification. The remaining evidence would actually have bolstered the identification of Jells.
          Presumably, if Jells’s counsel had received the withheld evidence before trial, counsel would have pursued a
different theory of defense, namely, the one now endorsed by the majority: that it was Jells, but that Ruby was with him
voluntarily, and hence, had not been kidnapped. But, even assuming that counsel could have discredited Camilla’s
testimony, diminished her father’s testimony, and bolstered the favorable portions of Edward Wright’s testimony, the
prosecution still produced overwhelming evidence of Jells’s guilt, most notably, Devon’s testimony and the presence
of Ruby’s blood in Jells’s van. Furthermore, Patricia Green’s testimony also indicated that the abduction was deliberate
and forceful, and there was a stipulation at the beginning of trial, from which the prosecution agreed not to call all of
the witnesses to the incident. In a subsequent deposition, the prosecutor testified that “we had a ton of people that
watched that kidnapping and I believe I told the defense that either they stipulate to it or I was going to call every one.”
No. 02-3505                       Jells v. Mitchell                                                            Page 32


with Jells voluntarily “after the time of the altercation at the street intersection”; (2) been more
effective in impeaching Camilla Banks’s identification of Jells; (3) bolstered Edward Wright’s
testimony that Ruby appeared to be with Jells voluntarily and correspondingly impugned the
contradictory testimony that Ruby appeared to have been abducted; and (4) nullified suspicion that
Jells had been lying when he told Owen Banks that Ruby was drunk. Maj. Op. § V(C)(3).
        As I have indicated, I am confident — particularly in light of Devon’s testimony — that the
absence of this allegedly withheld Brady evidence had so little effect on the determination that Jells
kidnapped Ruby that Jells cannot show any prejudice, even if there was error. Thus, I disagree with
the majority’s contention that the allegedly withheld evidence undermines confidence in the trial
court’s finding that a kidnapping occurred. In fact, I find this contention inconceivable. But, the
Brady issue itself — and the majority’s treatment of it — warrants some further discussion.
        Jells first filed a petition for post-conviction relief with the state trial court on November 8,
1991. He filed an amended petition on April 26, 1995. During the intervening four years, Jells had
obtained copies of the witness statements to the police that comprise his Brady claim. Thus, Jells
did not raise a Brady claim in his original (Nov. 8, 1991) petition, but added it as the 27th cause of
action in his amended (Apr. 26, 1995) petition, claiming that his “right to due process was violated
because the State withheld material impeachment and exculpatory evidence from him during his
1987 capital trial.” Specifically, Jells complained that: (1) witness Edward Wright had mistakenly
described Jells as having a light skin complexion and a chubby face; and (2) Devon Stapleton had
mistakenly described Jells’s van as white, Jells’s murder weapon as brown, and Jells’s jacket as light
blue. Jells did not identify or describe any other Brady materials in that petition, and notably,3 those
are not the Brady materials (or arguments) to which either Jells or the majority now points.
        The state trial court eventually ruled on (and dismissed) Jells’s petition on April 9, 1997.
In its opinion, the state trial court addressed Jells’s Brady claim succinctly, stating: “Cause of
Action 27: No exculpatory evidence was withheld from [Jells]. All witness statements were subject
to in-camera inspection and disclosure to defense. Conflicting or disagreeing statements are matters
for the trier of fact to resolve.” The court concluded: “The evidence in the record established . . .
that no exculpatory evidence was withheld from [Jells]. This court overrules Cause[] of Action . .
. 27.” The court denied his petition and Jells appealed the denial to the state appellate court.
         On appeal, Jells asserted that his Brady claim was based on the two aforementioned pieces
of evidence — (1) the police reports suggesting that Edward Wright had mistakenly described Jells
as having light skin and a chubby face, and (2) the report suggesting that Devon had mistakenly
described the van as white, the murder weapon as brown, and Jells’s jacket as light blue. Jells did
not discuss, or even refer to, any other withheld materials. Furthermore, he framed the trial court’s
error as a misapplication of Brady, not as a misstatement of what had occurred at trial: “[The State]
asserted, and the trial court agreed, that because the statements of these witnesses were all available
for in-camera inspection by defense counsel, then no exculpatory evidence was withheld from
[Jells]. This analysis is incorrect.” So, Jells did not argue that the factual premise was incorrect —
he did not argue that the witness statements had not been available for in-camera inspection by his
defense counsel. Jells argued that “[t]his analysis is incorrect,” and, specifically, that the court’s in-
camera inspection during trial was not enough, but that “[t]he prosecutor had a duty to disclose all



         3
          Recall that the four Brady materials at issue here are statements from (1) Willie Smith, (2) Cynthia Yawn, and
(3) Anthony Massingill; and (4) a Crimestoppers intake sheet, containing a statement attributable to Camilla Banks. The
majority contends that Jells has preserved his Brady claims with respect to these four withheld items of information, see
Maj. Op. § V(B)(1), based on Jells’s attachment of these materials as exhibits to his state post-conviction petition, even
though he did not argue about them, discuss them, or even mention them in the text of the petition.
No. 02-3505                     Jells v. Mitchell                                                           Page 33


material exculpatory and impeachment evidence in accordance with [Jells]’s request for discovery.”
That is, Jells argued that the State was obligated to disclose the witness statements before trial.4
         In resolving his appeal, the Ohio court of appeals framed Jells’s Brady claim as follows:
“[Jells] claim[s] that evidence for impeachment of the state’s witnesses had to be provided prior to
trial, pursuant to Brady[], and not [in camera] following the testimony of the witness on direct
examination.” Ohio v. Jells, 

, *10 (Ohio App. 1998). The court then rejected this
claim, finding that: (1) the government’s disclosure was sufficient under Ohio’s discovery laws (i.e.,
“while [Jells] complains that the statements should have been provided prior to trial, we are satisfied
that compliance with the procedure outlined in [Ohio] Crim. R. 16(B)(1)(g) is sufficient to meet the
requirements of Brady”); and (2) there was no prejudice anyway (i.e., “Moreover, no evidence has
been offered to indicate that there is a reasonable probability that an earlier disclosure of this
information would have resulted in a different outcome of the proceedings.”).
        The majority rejects both the Ohio trial court’s findings of fact and the Ohio appellate court’s
findings of law, and instead conducts a de novo review based on its assertion that the Ohio courts
“misconstrued Jells’s Brady claim,” so “there is no state court decision regarding the merits of th[at]
claim.” Maj. Op. § V(C)(2). The majority contends: “Jells’s petition for post-conviction relief
properly stated the Brady claim [and] included a clear statement that Jells was not able to receive
the complained of information until post-conviction.” Maj. Op. § V(C)(2). But, this “complained
of information” — i.e., the information described in Jells’s post-conviction-relief motion and
subsequent appellate brief — is not the information presently at issue. The only information for
which there is “a clear statement” in either Jells’s post-conviction-relief motion or ensuing appellate
brief are the two witness statements (of Edward Wright and Devon Stapleton) suggesting that
Wright had mistakenly described Jells as having light skin and a chubby face and Devon had
mistakenly described the van as white, the murder weapon as brown, and Jells’s jacket as light blue.
The Ohio trial court decided this case on a purely factual basis and flatly rejected Jells’s assertion
that these documents had been withheld, stating unequivocally: “All witness statements were subject
to in-camera inspection and disclosure to defense.” (emphasis added).
         Furthermore, when Jells appealed the denial of his post-conviction petition, he did not argue
that the statements were not available to his defense counsel for in-camera inspection. He conceded
that they were and argued (incorrectly) that Brady required pre-trial discovery. More importantly,
Jells did not complain at all about the four documents now at issue. Those were not in dispute.
        For all of these reasons, I disagree with the majority’s contention that Jells preserved his
Brady claim as to these four documents, and I disagree with the majority’s statement that the Ohio
court did not render a decision on the merits. But, even if Jells properly preserved his claim (by
appending the documents), it is beyond dispute that prejudice is a substantive component of a Brady
claim, see Strickler v. Greene, 

, 281-82 (1999) (citing 

), and the
Ohio court of appeals clearly rendered a finding that Jells suffered no prejudice. Therefore, I must
also disagree that this decision does not warrant deference under AEDPA. Inasmuch as the Ohio
court of appeals considered the question of prejudice, decided it, and relied upon its determination
that Jells had shown none, I cannot conclude that it unreasonably applied Brady in this case.




         4
          Which is — as the state court found — an inaccurate portrayal of the Brady doctrine. See United States v.
Presser, 

, 1284 (6th Cir. 1988) (“The Brady doctrine did not create a constitutional right of pre-trial
discovery in a criminal proceeding.” (citing Weatherford v. Bursey, 

, 559 (1977))); O’Hara v. Brigano, 

, 502 (6th Cir. 2007) (“Brady generally does not apply to delayed disclosure of exculpatory information, but
only to complete failure to disclose. Delay violates Brady only when the delay itself causes prejudice.”).
No. 02-3505                 Jells v. Mitchell                                                  Page 34


       Moreover, the district court reconsidered this evidence in light of Jells’s habeas petition and
reached a similar conclusion, finding no violation and no prejudice. See Jells v. Mitchell, No. 98-
CV-2453, *14-20 (N.D. Ohio Mar. 18, 2002). Specifically, the district court explained:
       The evidence that the victim [Ruby Stapleton] and her son [Devon] were with [Jells]
       willingly earlier in the evening is not relevant. Indeed, [Jells’s] defense counsel was
       aware of this fact and argued in his closing argument [in the state trial court] that the
       victim’s conduct earlier in the evening refuted the kidnapping charges. Specifically,
       counsel argued that there could be no kidnapping insofar as the parties had been
       riding around together for an hour to an hour and a half. The circumstances,
       however, became a kidnapping when, at the intersection of Lakeview and Euclid, the
       victim and her son were forced into [Jells]’s van. As described in the Ohio Supreme
       Court’s opinion, several witnesses (including the victim’s son) described what
       happened at the intersection. This testimony is sufficient to establish a kidnapping
       at that time regardless of what had occurred earlier in the evening.

(citation omitted; emphasis added). The district court also addressed the other materials:
       The Crimestoppers intake statement is only a paragraph. Its vague statement of what
       Camilla [Banks] told Crimestoppers, regarding what the victim supposedly told her
       [Camilla’s] father [Owen Banks], has virtually no impeachment value. If anything,
       the statement is highly incriminating [to Jells] because it contains that license plate
       number that subsequently was traced to [Jells].
       Camilla’s statement to the police that she could not see the male well is more
       significant. Such a statement arguably could have been used to impeach her
       description and identification of [Jells]. Its non-disclosure, however, does not
       warrant relief because the statement is not ‘material’ as that term is used in a Brady
       claim. It does not undermine the confidence in the result of the trial. The statement
       specifically indicates that although Camilla could not see the man well, her father
       could. Thus, even assuming Camilla’s testimony could be impeached, Owen’s
       testimony is bolstered by the statement. In addition, other witnesses were able to
       identify [Jells]. The statement, therefore, does not undermine confidence in the trial.

Thus, the district court concluded its Brady analysis:
       [This court] must view all the allegedly withheld evidence collectively to determine
       whether such evidence is ‘material’ in that it undermines the confidence in the
       outcome. Here, none of the evidence allegedly withheld can be characterized as
       exculpatory. In addition, only Camilla’s pretrial statement that she could not see the
       male perpetrator clearly, even arguably would have been usable for impeachment.
       In view of the testimony of other eyewitnesses to the kidnapping, that statement
       lacks sufficient significance to be material as the term is defined in the Brady
       context.

The district court, therefore, rejected Jells’s Brady claim. 

the foregoing, I cannot agree with the majority’s rendition of the facts or
application of the law in regard to this Brady issue. Consequently, I respectfully dissent.
                                                 III.
        In analyzing Jells’s sentencing-phase ineffective-assistance claim, the majority acknowledges
that “[t]he Ohio Court of Appeals correctly identified the Strickland standard as the governing
No. 02-3505                 Jells v. Mitchell                                                  Page 35


federal rule,” but asserts “that the Ohio court applied this standard to the facts of Jells’s case in an
objectively unreasonable manner.” Maj. Op. § IV(C). But, what the majority goes on to describe
is not a misapplication of Strickland — let alone “an objectively unreasonable” misapplication —
but rather, a perfect application of Strickland, albeit one in which the Ohio courts simply came to
a subjective conclusion different from that of the majority regarding the persuasiveness,
forcefulness, or weight of the after-acquired mitigating evidence. This is not a proper basis for
habeas relief.
                                                  A.
         Jells raised his ineffective-assistance claim in his Ohio state petitions for post-conviction
relief, “assert[ing] that his trial counsel were ineffective in failing to introduce evidence regarding
his troubled family and early life and in failing to utilize expert assistance.” Ohio v. Jells, 

, *5-6 (Ohio. App. 1998). Following the trial court’s denial of his petition, the Ohio court
of appeals analyzed the claim under Strickland, 

2, and found no prejudice:
               In this matter, the mitigation presented at trial tended to focus upon [Jells]’s
       loving behavior to his family, his good behavior at school, his obedience to authority
       and his teachers, his strong work ethic, and his tendency to walk away from an
       argument. In addition, trial counsel indicated that [Jells]’s family had moved many
       times, and also presented expert opinion evidence that [Jells] was of borderline
       intelligence and over-controlled his hostility. Finally, [Jells] presented an unsworn
       statement in which he emphasized his work ethic, his empathy for Devon, his
       sadness at the tragic manner in which [Ruby] Stapleton must have met her death, and
       his disagreement with the verdict reached by the panel. Further, in its written
       opinion, the three judge panel observed that [Jells] had presented evidence of, inter
       alia, character, family relationships, employment history, and emotional stability.
               Examining the evidence now offered dehors the record, we find that a certain
       measure of the evidence which [Jells] now claims should have been admitted to be
       cumulative of what was presented at trial, i.e., the frequent moves, change of care
       givers, borderline intelligence, superficial personality style. We are therefore unable
       to conclude that there is a reasonable probability that, but for this alleged omission
       of counsel, the result of his trial would have been different, and [Jells]’s challenge
       to the effectiveness of counsel in this respect fails.
                As to the remaining items concerning the other more tragic circumstances
       which [Jells] now claims should have been admitted, i.e., his mother’s alcoholism
       and the abuse which he often witnessed, this information would appear to be
       completely inconsistent with the favorable portrait of [Jells] which counsel presented
       at trial. That is, trial counsel emphasized the favorable aspects of [Jells]’s life and
       chose to present him as someone who over controlled his negative feelings and had
       no pathological difference or condition requiring treatment or thought disorder.
       Considered in light of the nature of [Jells]’s defense at trial, we are compelled to
       conclude that the more negative information produced in connection with the
       amended petition for post-conviction relief is inconsistent with the essential trial
       strategy of working to establish reasonable doubt and in turn residual doubt that
       [Jells] committed these offenses. We are therefore unable to conclude that counsel
       was ineffective in failing to present this information.
               ...
               Indeed, social worker Linda Pudvan’s averment that even negative family
       history is relevant to provide an explanation of Mr. Jells life and behavior during his
No. 02-3505                  Jells v. Mitchell                                                  Page 36


        offense and attorney Ken Murray’s averment that unfavorable information further
        serves to explain the stresses and traumatic events that culminated the night of the
        offense seem odd in light of the complete denial presented at trial.

(citations, quotation marks, and editorial marks omitted; emphasis added). So, based on
the foregoing, it appears that the Ohio court of appeals largely accepted Jells’s assertion that his
counsel’s investigation was deficient and decided the case instead on the question of prejudice.
                                                   B.
        The majority “conclude[s] that the Ohio court applied [Strickland] to the facts of Jells’s case
in an objectively unreasonable manner.” Maj. Op. § IV(C). According to the majority, Jells’s
counsels’ performance (i.e., their search for mitigating evidence) was deficient and prejudicial (i.e.,
there is a “reasonable probability” that the mitigating evidence that would have been found during
a sufficient search would have persuaded the three-judge panel that Jells was not deserving of the
death penalty). Thus, the majority reaches a different conclusion than the Ohio court reached, even
though they both applied the same law (i.e., Strickland) and considered the same evidence.
        But, more than that, the majority contends that the reason they reached different conclusions
is not merely a disagreement on the weight or effect to be given to the evidence — that would be
entirely unacceptable under AEDPA; it is because the Ohio court applied Strickland in a manner that
was objectively unreasonable. Because the majority disagrees with the two different parts of the
Strickland analysis in two different ways, the two disagreements require separate examinations.
                                                   1.
        It is, at this point in time, beyond dispute that defense counsel in a capital case must perform
a complete mitigation investigation. See, e.g., Hamblin v. Mitchell, 

, 496 (6th Cir.
2003) (Batchelder, J., dissenting). Nor is there any dispute that this requirement was “clearly
established” as of Jells’s sentencing in 1987. 

was deficient in this regard.
        After ten pages of analysis, the majority concludes similarly, stating: “Jells has demonstrated
that his counsel [performed deficiently] when they: (1) failed to timely prepare for the mitigation
phase of Jells’s trial; and (2) failed to use a mitigation specialist to gather information about Jells’s
background in preparation for mitigation.” Maj. Op. § IV(C)(1)(e). This unremarkable proposition,
however, leads immediately into the unsupported — and, indeed, unexpected — assertion that: “The
Ohio Court of Appeal’s refusal to recognize that these omissions by Jells’s counsel fell outside the
bounds of professionally competent assistance constituted an unreasonable application of federal
law as determined by the Supreme Court in Strickland.” Maj. Op. § IV(C)(1)(e) (emphasis added).
         But, far from “refus[ing]” to find the performance deficient, the Ohio court of appeals
tendered no finding whatsoever on the sufficiency/deficiency of counsel’s performance and, in fact,
appears to have assumed or accepted that the above-described performance was deficient. Because

, expressly provides for disposition solely on the prejudice prong, the
Ohio court’s application of Strickland in this manner cannot be deemed objectively unreasonable.
In fact, it is not even incorrect. Nor is it even in disagreement with the majority’s assessment.
                                                   2.
        The Ohio court’s opinion does disagree with the majority on the question of prejudice,
however, and the majority begins by saying: “the Ohio Court of Appeals unreasonably determined
that the alleged errors of Jells’s trial counsel did not prejudice Jells’s case.” Maj. Op. § IV(C)(2).
The Ohio court did indeed determine that Jells’s counsel’s alleged errors did not prejudice Jells’s
No. 02-3505                 Jells v. Mitchell                                                Page 37


case, but I cannot agree that this determination was unreasonable. More to the point, I cannot agree
that the manner by which the Ohio court made this determination was unreasonable.
        The Ohio court — just like the majority, see Maj. Op. § IV(C)(2) — “evaluate[d] the totality
of the available mitigation evidence — both that adduced at trial[] and the evidence adduced in the
[post-conviction-relief] proceeding [and] re-weigh[ed] it against the evidence in aggravation,” see
Williams v. Taylor, 

, 397-398 (2000), to determine whether there was “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different,” see Strickland v. Washington, 

, 694 (1984). The Ohio court did not
exclude, omit, or fail to consider any evidence — it fully considered all the same evidence as the
majority did. The Ohio court did not consider itself bound by an unreasonable or improper standard
of review — it fully and fairly considered all of the evidence, and re-weighed it against the
aggravating evidence. In fact, there was nothing improper about the Ohio court’s application of
Strickland.
        The majority’s disagreement with the Ohio court is not in its application, but in its
conclusion, and even that disagreement is not pronounced. The majority says that “this [after-
acquired] evidence provides a more nuanced understanding of Jells’s psychological background and
thus presents a more sympathetic picture of Jells,” Maj. Op. § IV(C)(2)(c), thereby leading to “a
reasonable probability that at least one of the judges may have reached a different conclusion
regarding the imposition of the death penalty,” 

this assessment were correct — which,
in my view, it is not — these findings of “a more nuanced understanding” and “a more sympathetic
picture” are purely (necessarily) subjective determinations. Our disagreement with a state court’s
subjective determination of the effect of the evidence is not a proper basis for habeas relief. See,
e.g., Schriro v. Landrigan, 550 U.S. --, 

, 1939 (2007) (“The question under AEDPA
is not whether a federal court believes the state court’s determination was incorrect but whether that
determination was unreasonable — a substantially higher threshold.”); Yarborough v. Alvarado, 

, 665 (2004) (“We cannot grant relief under AEDPA by conducting our own independent
inquiry into whether the state court was correct as a de novo matter.”); Lockyer v. Andrade, 

, 75 (2003) (“It is not enough that a federal habeas court, in its independent review of the legal
question, is left with a firm conviction that the state court was erroneous.” (citations and quotation
marks omitted)); Woodford v. Visciotti, 

, 24-25 (2002) (“[A] federal habeas court may
not issue the writ simply because that court concludes in its independent judgment that the
state-court decision applied [the law] incorrectly.”); Williams v. Taylor, 

, 410 (2000)
(“unreasonable application of federal law is different from an incorrect application of federal law”).
        The majority relies on Morales v. Mitchell, 

(6th Cir. 2007), and Dickerson v.
Bagley, 

(6th Cir. 2006), to support its position, but in both of those cases the state
court had rendered no opinion on the prejudice prong, so our review was de novo. In the present
case, the Ohio court did render an opinion on the prejudice prong — finding no prejudice — and our
review is (supposed to be) the deferential review dictated by AEDPA. The majority also cites
Hamblin v. Mitchell, 

(6th Cir. 2003), but that case was pre-AEDPA. Thus, the
majority’s proffered legal support for its approach to this case actually provides no support at all.
                                                 IV.
       For all of the foregoing reasons, I respectfully dissent from the majority’s opinion in the
present case. I would affirm the district court’s decision to deny habeas relief.