Archie Dixon v. Marc Houk ( 2013 )


Menu:
  •                     RECOMMENDED FOR FULL-TEXT PUBLICATION
    Pursuant to Sixth Circuit I.O.P. 32.1(b)
    File Name: 13a0269p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    _________________
    X
    -
    ARCHIE DIXON,
    -
    Petitioner-Appellant,
    -
    -
    No. 08-4019
    v.
    ,
    >
    -
    Respondent-Appellee. -
    MARC C. HOUK, Warden,
    -
    N
    Appeal from the United States District Court
    for the Northern District of Ohio at Toledo.
    No. 05-01290—James S. Gwin, District Judge.
    Argued: January 17, 2013
    Decided and Filed: September 10, 2013
    Before: MERRITT, SILER, and COLE, Circuit Judges.
    _________________
    COUNSEL
    ARGUED: Michael J. Benza, LAW OFFICE OF MICHAEL J. BENZA, Chagrin Falls,
    Ohio, for Appellant. Thomas E. Madden, OFFICE OF THE OHIO ATTORNEY
    GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Michael J. Benza, LAW
    OFFICE OF MICHAEL J. BENZA, Chagrin Falls, Ohio, Lawrence J. Whitney, Akron,
    Ohio, for Appellant. Thomas E. Madden, Alexandra T. Schimmer, David M. Lieberman,
    OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
    SILER, J., delivered the opinion of the court, in which COLE, J., joined.
    MERRITT, J. (pp. 14–19), delivered a separate dissenting opinion.
    1
    No. 08-4019         Dixon v. Houk                                                    Page 2
    _________________
    OPINION
    _________________
    SILER, Circuit Judge. Twenty years ago, Archie Dixon and his accomplice
    brutally attacked Christopher Hammer and buried him alive. Dixon was convicted of
    aggravated murder, robbery, kidnaping, and forgery, and the state trial court sentenced
    him to death. He sought to vacate his conviction and sentence, asserting that his
    confession was obtained in violation of his Miranda rights and alleging numerous errors
    in his trial. We ruled that his confession was coerced, deeming his remaining claims
    regarding effectiveness of trial counsel, the instructions to the jury, and the exclusion of
    certain mitigating evidence pretermitted. On review, the Supreme Court reversed our
    ruling, see Bobby v. Dixon, 
    132 S. Ct. 26
     (2011), and we must now review his remaining
    claims for ineffective assistance of counsel, improper jury instruction, and the exclusion
    of certain mitigating evidence at his penalty hearing. For the following reasons, we
    AFFIRM the district court’s ruling and DENY Dixon’s petition for a writ of habeas
    corpus.
    I.
    Dixon and his accomplice, Timothy Hoffner, were friends with Hammer. In
    1993, Dixon and Hoffner beat Hammer, tied him to a bed, stole the contents of his wallet
    and his automobile, and then drove him into a remote area and buried him alive. One
    month into the ensuing investigation, Hoffner led police to Hammer’s body and Dixon
    provided a tape-recorded account of the kidnaping, robbery, and murder.
    Dixon was indicted for aggravated murder, kidnaping, and aggravated robbery.
    At trial, the defense presented no evidence and cross-examined only three of the
    prosecution’s 15 witnesses. The jury convicted Dixon on all charges and recommended
    the death penalty, which the court imposed. Dixon appealed his conviction to the Ohio
    Court of Appeals and, while that appeal was pending, he filed a post-conviction petition
    with the trial court, arguing ineffective assistance of counsel. The latter was denied, and
    No. 08-4019            Dixon v. Houk                                                              Page 3
    Dixon appealed that decision to the Ohio Court of Appeals. The Ohio Court of Appeals
    consolidated Dixon’s direct appeal and post-conviction appeal and affirmed his
    conviction. He then appealed to the Ohio Supreme Court, which also affirmed. State
    v. Dixon, 
    805 N.E.2d 1042
    , 1063 (Ohio 2004).
    Dixon proceeded to file a federal habeas petition alleging ineffective assistance
    of counsel, improper jury instructions, improper exclusion of mitigating evidence at
    sentencing, and a violation of his Miranda rights.1 The district court denied the petition,
    and Dixon appeals.
    II.
    Under 
    28 U.S.C. § 2254
    (d), as amended by the Antiterrorism and Effective Death
    Penalty Act of 1996 (“AEDPA”), a habeas corpus application which includes a claim
    that was previously adjudicated on the merits in state court proceedings will be denied
    unless the state court decision was contrary to, or involved an unreasonable application
    of, clearly established federal law as determined by the Supreme Court, or based on an
    unreasonable determination of the facts in light of the evidence presented to the state
    courts. Cullen v. Pinholster, 
    131 S. Ct. 1388
    , 1398 (2011). This standard is “difficult
    to meet,” “highly deferential,” and “demands that state-court decisions be given the
    benefit of the doubt.” 
    Id.
     (quoting Harrington v. Richter, 
    131 S. Ct. 770
    , 786 (2011);
    Woodford v. Visciotti, 
    537 U.S. 19
    , 24 (2002) (per curiam)). Dixon carries the burden
    of meeting this high bar.
    The parties initially dispute whether Dixon’s claims were adjudicated on the
    merits and, accordingly, whether AEDPA’s standard of review applies and whether our
    review is limited to the record before the state court. “By its terms § 2254(d) bars
    relitigation of any claim ‘adjudicated on the merits’ in state court, subject only to the
    exceptions in §§ 2254(d)(1) and (d)(2). Harrington, 
    131 S. Ct. at 784
    . Although the
    Supreme Court has not defined “adjudication on the merits,” we are guided by its
    1
    The Miranda issue has been adjudicated, leaving only the first three claims to be addressed. See
    Dixon v. Houk, 
    627 F.3d 553
     (6th Cir. 2010), rev’d, Bobby v. Dixon 
    132 S. Ct. at 27
    .
    No. 08-4019         Dixon v. Houk                                                   Page 4
    observation that “no text in the statute requir[es] a statement of reasons.” 
    Id.
     Rather,
    the “statute refers only to a ‘decision,’ which resulted from an ‘adjudication.’” 
    Id.
     Thus,
    “[w]hen a federal claim has been presented to a state court and the state court has denied
    relief, it may be presumed that the state court adjudicated the claim on the merits in the
    absence of any indication or state-law procedural principles to the contrary.” 
    Id.
     at 784-
    85.
    Each of Dixon’s claims on appeal was adjudicated on the merits in state court.
    First, he argued that defense counsel was ineffective by cross-examining only three of
    the state’s 15 witnesses at trial. The Supreme Court of Ohio found that “[c]ounsel’s
    tactical decisions reflected reasonable representation.” Dixon, 805 N.E.2d at 1054.
    Second, Dixon argued he was denied the effective assistance of counsel during his
    mitigation hearing because counsel failed to present available mitigating evidence. The
    Supreme Court of Ohio found that, based upon the evidence before the trial court, it was
    impossible to determine that sufficient mitigating evidence existed to “call[] for a
    sentence less than death.” Id. at 1056. Third, Dixon argued that the trial court erred in
    excluding certain evidence at mitigation. Specifically, Dixon had previously been
    wrongfully incarcerated on a rape charge that was subsequently dismissed. The Supreme
    Court of Ohio found that although the trial court should have permitted the evidence,
    excluding it was harmless error. Id at 1057. Fourth, Dixon argued that the trial court
    erred in its penalty-phase instructions regarding aggravating circumstances in Dixon’s
    actions. The Supreme Court of Ohio adjudicated this argument in detail and found the
    instructional error did not constitute grounds for reversal. Id. at 1059. Finally, Dixon
    argued that the trial court erroneously instructed the jury to assume his guilt. Here, as
    well, the Supreme Court of Ohio found no plain error, concluding that “the jury was
    properly charged on the presumption of innocence, reasonable doubt, and the burden of
    proof.” Id. at 1053. Because all of Dixon’s arguments on appeal were adjudicated on
    their merits by the Supreme Court of Ohio, our highly-deferential review under AEDPA
    is limited to the record before that court.
    No. 08-4019        Dixon v. Houk                                                   Page 5
    A.
    In order to prevail on a claim of ineffective assistance of counsel, Dixon “must
    show both that his counsel’s performance was deficient and that the deficient
    performance prejudiced the defense.” Hodges v. Colson, 
    711 F.3d 589
    , 613 (6th Cir.
    2013) (citing Strickland v. Washington, 
    466 U.S. 668
    , 687-88 (1984)). To show
    deficiency, Dixon must establish that “counsel made errors so serious that [he] was not
    functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” Strickland,
    
    466 U.S. at 687
    . To show prejudice, Dixon must establish that “there is a reasonable
    probability that, but for counsel’s unprofessional errors, the result of the proceeding
    would have been different.” 
    Id. at 694
    . We need not address both components if we find
    that Dixon has failed to meet one of them. 
    Id. at 697
    .
    Dixon first argues that his due process right to a fair trial was prejudiced by
    defense counsel’s failure to cross-examine several of the prosecution’s witnesses.
    Moreover, Dixon argues that the cross-examination which was conducted was
    insufficient and ineffective. Defense counsel cross-examined three witnesses at trial:
    Jennifer Wodarski, Hammer’s former girlfriend; Barbara Hammer, Hammer’s mother;
    and Detective Phil Kulakoski, who questioned Dixon at the Toledo Police Department
    two weeks after the murder. Counsel challenged the state’s portrayal of Hammer as an
    innocent young man by asking Wodarski and Barbara Hammer about Hammer’s
    involvement with drugs and misuse of a credit card, and questioned Kulakoski about the
    discovery of Hammer’s body near the Michigan state border, a state without the death
    penalty, in an attempt to suggest the arbitrariness of Ohio’s death penalty. The Supreme
    Court of Ohio found that “[c]ounsel’s tactical decisions reflected reasonable
    representation,” and noted that courts “must indulge a strong presumption that counsel’s
    conduct falls within the wide range of reasonable professional assistance.” Dixon,
    805 N.E.2d at 1054 (quoting Strickland, 
    466 U.S. at 689
    ). Furthermore, the court found
    that counsel’s decision not to cross-examine other witnesses resulted from his realization
    “that any attempt to cross-examine [them] would have merely reemphasized their
    damaging testimony.” Id. at 1055.
    No. 08-4019         Dixon v. Houk                                                     Page 6
    On appeal, Dixon argues that his counsel’s brief and his decision to otherwise not
    cross-examine or call additional witnesses amounted to “defense counsel put[ting] their
    hands up and surrender[ing].”       And, although Dixon admits that cross-examination
    techniques, like other matters of trial strategy, are entrusted to the professional discretion
    of counsel, he questions how any strategy can be “based upon asking absolutely no
    questions.” He specifically argues that counsel should have cross-examined Kirsten
    Wilkerson, Dixon’s girlfriend, who offered a first-hand account of the murder, since she
    was present during Hammer’s beating.            Dixon argues that Wilkerson provided
    inconsistent accounts of the incident during multiple statements to police, which counsel
    should have investigated. Furthermore, he argues that counsel should have performed
    a more thorough cross-examination of Kulakoski about the conditions under which
    Dixon’s confession was obtained.
    Despite any shortcomings in counsel’s performance or the quality of his strategy,
    Dixon must show that the performance was unreasonable and that it prejudiced the case
    in order to succeed on his claim. That he cannot do. Beyond questioning Wodarski and
    Barbara Hammer about the victim’s drug use and financial indiscretions, any further
    badgering by defense counsel could have easily offended a rational juror and backfired
    on the defense.     Moreover, prodding Wilkerson on cross-examination about the
    inconsistencies in her testimony would bring to light Dixon’s taped confession to the
    murder and, quite possibly, the history of domestic violence in Dixon and Wilkerson’s
    relationship, which might explain her fear in testifying against Dixon truthfully. As the
    Ohio Court of Appeals recognized in Dixon’s first appeal, “the overwhelmingly
    incriminating nature of the evidence against appellant as well as by the certainty with
    which each witness offered his or her testimony” made cross-examination imprudent as
    it would have only further emphasized the credible, incriminating evidence against him.
    State v. Dixon, no. L-96-004, 
    2000 WL 1713794
    , at *5 (Ohio. Ct. App. 6 Dist. Nov. 17,
    2000). The Supreme Court of Ohio agreed with this reasoning, finding that even if
    counsel’s performance was unreasonable, Dixon could not show that it prejudiced his
    case.
    No. 08-4019         Dixon v. Houk                                                    Page 7
    We agree that Dixon cannot show prejudice in light of the amount and quality
    of incriminating evidence presented against him at trial. Dixon must demonstrate that
    “counsel’s errors were so serious as to deprive [him] of a fair trial, a trial whose result
    is reliable.” Strickland, 
    466 U.S. at 687
    . He “must show that there is a reasonable
    probability that, but for counsel’s unprofessional errors, the result of the proceeding
    would have been different.” 
    Id. at 694
    . The overwhelming evidence presented against
    Dixon revealed that Dixon brutally attacked Hammer, buried him alive, and then
    attempted to steal Hammer’s identification (by making a false identification card
    containing his photo and Hammer’s personal information), obtained new title to
    Hammer’s car, and sold the vehicle for $2,800. Cross-examining Wilkerson and
    Kulakoski in more detail, or questioning other witnesses for that matter, would have had
    virtually no effect on Dixon’s convictions in light of the evidence that was presented.
    The state courts’ denial of Dixon’s ineffective-assistance-of-counsel claim neither
    contradicted nor unreasonably applied Supreme Court precedent as required by 
    28 U.S.C. § 2254
    (d).
    B.
    Dixon argues that the district court erroneously instructed the jury on the proper
    burden of proof required to sustain his conviction. The jury was charged:
    Thus, assuming a finding of the defendant is guilty beyond a reasonable
    doubt of the aggravated murder with prior calculation and design of
    Christopher Hammer as charged in Count 1 of the indictment, and further
    assuming a finding as to Specification 1 that the aggravated murder of
    Christopher Hammer was committed during the course of a kidnapping,
    and further finding beyond a reasonable doubt that the defendant, Archie
    J. Dixon, was either a principal offender in that murder or that the
    aggravated murder was committed with prior calculation and design, will
    mandate a finding of guilty as to Specification 1.
    Dixon argues that the “assumption of guilt” deprived him of his due process right to a
    fair trial because it required the jury to infer a certain fact if the state proved specific
    predicate facts, relieving the state from proving every element of the offense.
    No. 08-4019          Dixon v. Houk                                                  Page 8
    Dixon’s argument fails for two reasons. First, Dixon disingenuously isolates one
    portion of the jury instructions and asks us to interpret them without reference to
    additional instructions provided to the jury. Prior to reading the instructions above, the
    trial court first described each step of the deliberation process, carefully explaining the
    requirement that jurors be convinced beyond a reasonable doubt in order to return a
    guilty verdict. The instructions cited by Dixon came after the court discussed the first
    aggravated murder count and the first capital specification. Only then did the court
    instruct jurors that if they found Dixon guilty of (1) aggravated murder with prior
    calculation and design; (2) which was committed during the course of a kidnaping; and
    (3) in which he was a principal offender, then they should return a guilty verdict as to
    Specification 1. Thus, at no time did the district court erroneously mandate that the jury
    assume Dixon’s guilt.
    Even if the court’s instruction could be understood as an assumption of guilt, we
    review jury instructions “as a whole, in order to determine whether they adequately
    informed the jury of the relevant considerations and provided a basis in law for aiding
    the jury in reaching its decision.” United States v. Frederick, 
    406 F.3d 754
    , 761 (6th Cir.
    2005). Here, the trial court meticulously and repeatedly instructed the jury as to the
    proper burden of proof. (“The defendant is presumed innocent until his guilt is
    established beyond a reasonable doubt. The defendant must be acquitted unless the State
    produced evidence which convinces you beyond a reasonable doubt of every essential
    element of the offense charged in the indictment.”). We grant habeas relief where an
    “ailing instruction by itself so infected the entire trial that the resulting conviction
    violates due process,” Cupp v. Naughten, 
    414 U.S. 141
    , 147 (1973), and such is clearly
    not the case here.
    C.
    Dixon argues that the trial court wrongfully excluded mitigating evidence at his
    penalty hearing. Prior to the hearing, his counsel informed the court that he intended to
    introduce evidence of the following: (1) two unrelated capital murder cases in Lucas
    County where the state had not sought the death penalty in exchange for defendants’
    No. 08-4019        Dixon v. Houk                                                    Page 9
    guilty pleas to aggravated murder charges; (2) Dixon’s acceptance of responsibility for
    his crimes as evidenced by his offering to plead guilty to the charges in exchange for
    dismissal of the death penalty specifications; and (3) Dixon’s prior, unrelated
    incarceration on a rape charge, which was based on false allegations and was
    subsequently dismissed. The trial court excluded each of these, and Dixon now argues
    that their exclusion violates his due process rights.
    In Lockett v. Ohio, 
    438 U.S. 586
    , 604 (1978), the Supreme Court held:
    the Eighth and Fourteenth Amendments require that [a] sentencer, in all
    but the rarest kind of capital case, not be precluded from considering, as
    a mitigating factor, any aspect of a defendant’s character or record and
    any of the circumstances of the offense that the defendant proffers as a
    basis for a sentence less than death.
    Despite the inclusive language of this rule, the Supreme Court consistently illustrates
    that mitigating evidence offered by a defendant must still fall within the spectrum of
    relevance in order to be admissible. Eddings v. Oklahoma, 
    455 U.S. 104
    , 114 (1982)
    (the sentencer may not “refuse to consider . . . any relevant mitigating evidence.”). In
    fact, the Supreme Court in Lockett expressly reserved this limitation, noting that
    “nothing in [its] opinion limits the traditional authority of a court to exclude, as
    irrelevant, evidence not bearing on the defendant’s character, prior record, or the
    circumstances of his offense.” Lockett, 
    438 U.S. at
    604 n.12. Thus, we must ask
    whether the evidence presented by Dixon was relevant, and therefore automatically
    admissible, as he insists.
    The Ohio Supreme Court determined that the trial court’s decision to exclude the
    information was erroneous because “it fits within the ‘history, character, and background
    of the offender.’” Dixon, 805 N.E.2d at 1057 (citing State v. Stumpf, 
    512 N.E.2d 598
    ,
    604 (Ohio 1987)). Nevertheless, it considered the error to be harmless as “our
    independent reassessment of the sentence will minimize any prejudicial impact.” 
    Id.
    (citations omitted). In its independent sentence evaluation, it went on to “conclude that
    this factor has little, if any, relevance to whether Dixon should be sentenced to death.”
    
    Id. at 1062
    . Because the Ohio Supreme Court reviewed this claim as a matter of state
    No. 08-4019        Dixon v. Houk                                                  Page 10
    law only, rather than as an Eighth Amendment claim, the district court conducted de
    novo review. It agreed that the trial court’s decision constituted harmless error,
    explaining that “given the overwhelming aggravating evidence, and the lack of
    mitigating evidence, the exclusion of the false imprisonment does not undermine the
    Court’s confidence in the outcome of the sentencing phase of trial.”
    Dixon asserts that this alleged error is not subject to harmless error review,
    because it is a structural error. However, the error here was not structural as the issue
    involves the trial court’s decision to exclude certain mitigating evidence and is therefore
    subject to harmless error review. See Hitchcock v. Dugger, 
    481 U.S. 393
    , 399 (1987)
    (finding that exclusion of mitigating evidence renders death sentence invalid in the
    absence of a showing of harmless error). Given the specific facts of Dixon’s crime and
    the compelling aggravating evidence in this case, evidence of Dixon’s prior wrongful
    incarceration due to unrelated rape allegations would, at best, have been negligibly
    mitigating. We do not believe that its exclusion had any substantial effect on Dixon’s
    sentencing. See Brecht v. Abrahamson, 
    507 U.S. 619
    , 639 (1993). The Ohio Supreme
    Court’s conclusion that the exclusion of Dixon’s wrongful incarceration was harmless
    is therefore not contrary to clearly established federal law.
    D.
    Dixon next claims that his counsel was ineffective for failing to present
    mitigating evidence at the penalty phase of trial. He focuses almost entirely on two
    reports prepared for the mitigation phase of trial. Defense counsel hired Dr. Christopher
    Layne, a board-certified clinical psychologist, to examine Dixon for neurological
    impairments and review his medical records. In his report supplied to defense counsel,
    Layne found no evidence of brain damage and diagnosed Dixon with “antisocial
    personality disorder” and a criminal personality. Counsel also hired Gary Ericson, a
    defense mitigation specialist, to research Dixon’s social history. After interviewing
    Dixon’s mother, brother, foster parents, family pastor, and parole officer, Ericson also
    submitted a report to counsel showing that Dixon’s family history included domestic
    violence, sexual abuse, physical aggression, possible incest, and alcoholism. Although
    No. 08-4019             Dixon v. Houk                                                               Page 11
    both of these reports were available to counsel before sentencing, they were not
    introduced into evidence.
    The state courts adjudicated Dixon’s ineffective-assistance-of-counsel claim on
    the merits and without the benefit of either Layne’s or Ericson’s reports. In the federal
    district court below, an evidentiary hearing was held, which revealed the contents of
    these reports, but our review is limited by AEDPA to the record before the state courts.2
    Pinholster, 131 S. Ct. at 1398. “In assessing whether a defendant’s counsel was
    ineffective at the mitigation hearing for failing to introduce certain evidence, the focus
    must be on whether the investigation supporting counsel’s decision . . . was itself
    reasonable.” Clark v. Mitchell, 
    425 F.3d 270
    , 284 (6th Cir. 2005). This rule takes root
    in the longstanding and sound principle that matters of trial strategy are left to counsel’s
    discretion. Thus, where a defendant focuses on counsel’s “strategic choices made after
    thorough investigation of law and facts,” the Supreme Court guides us that such choices
    “are virtually unchallengeable.” Strickland, 
    466 U.S. at 690
     (emphasis added).
    In the state trial court, Dixon challenged his counsel’s performance at the
    mitigation stage, but offered minimal support for his claim. He presented no evidence
    of what his mitigation witnesses might have testified to and offered minimally helpful
    affidavits in support thereof. He submitted an affidavit from his mother which vaguely
    referenced problems he had with his father and another sparse affidavit from his brother
    that described their family environment as disruptive and dysfunctional. Neither affiant
    detailed violence, abuse, emotional hardships, or substance abuse from Dixon’s
    childhood. On the other hand, mounds of aggravating evidence were presented at trial,
    which easily outweighed the value of Dixon’s scant mitigating factors. He brutally beat
    Hammer, attempted to break his neck, bound him to a ladder, drove him into a wooded
    area, allowed him to smoke a cigarette and say a prayer, and then buried him alive. The
    2
    Dixon attempts to circumvent the proper standard of review in this case by relying on Martinez
    v. Ryan, 
    132 S. Ct. 1309
     (2012), and Trevino v. Thaler, 
    133 S. Ct. 1911
     (2013). These cases stand for the
    proposition that the failure of counsel to properly litigate post-conviction ineffective-assistance-of-counsel
    claims in state court may excuse a defendant’s procedural default and allow him to file a petition for a writ
    of habeas corpus in federal court. These cases do not assist Dixon since he alleges no procedural error and
    in fact presented his ineffective-assistance-of-counsel claim below.
    No. 08-4019        Dixon v. Houk                                                 Page 12
    details of the kidnaping, robbery, and murder easily outweigh any effect that the
    evidence offered by Dixon would have had on the jury. Faced with such condemning
    evidence against his client, Dixon’s counsel nevertheless did offer mitigating evidence,
    as we discussed above, which the trial court excluded. For this reason, counsel’s
    performance at the mitigating hearing cannot be considered unreasonable.
    E.
    Dixon finally argues that the district court erred in its instructions to the jury
    regarding aggravating circumstances. In its penalty-phase instructions, the trial court
    identified three aggravating circumstances for the jury’s consideration: “(1) That the
    defendant . . . caused the death of Christopher Hammer with prior calculation and design
    and was the principal offender in the aggravated murder; (2) That the defendant
    . . . caused the death of Christopher A. Hammer while the defendant was committing
    kidnapping and that the defendant was the principal offender; and (3) That the defendant
    . . . caused the death of Christopher A. Hammer while the defendant was committing
    aggravated robbery, and the defendant was the principal offender.” Under Ohio Revised
    Code § 2929.04(A)(7), “prior calculation and design” is a relevant factor only if the
    defendant is not a principal offender. Thus, the instruction erroneously presented the
    first factor in conjunction with the second and third factors. The Supreme Court of Ohio
    recognized this fault and proceeded to “cure” the error by performing an independent
    reassessment of the sentencing.
    A state appellate court may uphold a death sentence that is based in part on
    invalid instructions regarding aggravating circumstances by reweighing the aggravating
    and mitigating factors. Clemons v. Mississippi, 
    494 U.S. 738
    , 748 (1990). Dixon agrees
    that this is permissible, but he challenges whether the Supreme Court of Ohio adequately
    reweighed the factors on review. We conclude that it did. After identifying the
    instructional error, the Supreme Court of Ohio reviewed relevant precedent and
    concluded that the error “did not irrevocably taint the jury’s deliberative process.”
    Dixon, 805 N.E.2d at 1059. It observed that there was a “dearth of mitigating evidence
    in this case . . . . During the sentencing phase, the only evidence offered in mitigation
    No. 08-4019        Dixon v. Houk                                                 Page 13
    was Dixon’s age at the time of the offense and testimony computing the amount of jail
    time Dixon would serve if given a life sentence.” Id. (citations omitted). “In contrast,”
    it noted that “the evidence . . . overwhelmingly proved the aggravating circumstances,”
    and that the jury convicted Dixon of aggravated murder. Id. It is evident that the
    Supreme Court of Ohio thoroughly and thoughtfully reviewed the instructional error, and
    it therefore comported with Clemons and cured any error that may have occurred.
    The district court’s ruling is AFFIRMED and Dixon’s petition for a writ of
    habeas corpus is DENIED.
    No. 08-4019            Dixon v. Houk                                                              Page 14
    __________________
    DISSENT
    __________________
    MERRITT, Circuit Judge, dissenting. Dixon has a long-established, unalloyed
    federal right under the Eighth Amendment to offer and have the jury receive and
    consider all mitigating evidence. That did not happen in this case. Dixon was sentenced
    to death after the trial judge excluded as irrelevant certain important mitigating evidence;
    and the Ohio Supreme Court thereafter held that the trial court’s ruling was error under
    Ohio statutory law, but harmless error. In my view, the error was clear and harmful.
    The Supreme Court has repeated in unqualified language for more than 30 years
    the foundational rule that the Eighth Amendment requires in death penalty cases the
    admission of any mitigating evidence “that might serve ‘as a basis for a sentence less
    than death.’” Skipper v. South Carolina, 
    476 U.S. 1
    , 5 (1986) (quoting Lockett v. Ohio,
    
    438 U.S. 586
    , 604 (1978)). Over that period, the Supreme Court has never invoked
    harmless error or suggested that this relatively simple Eighth Amendment mitigation
    rule, stated in many cases,1 should be subject to “harmless error” analysis. The reason
    for this rule is that a mandatory death penalty that leaves out consideration of mitigation
    is unconstitutional. Each juror at the mitigation phase of the proceeding must have the
    discretion to spare the defendant’s life. Woodson v. North Carolina, 
    428 U.S. 280
    (1976).2 The Lockett line of cases insists that the jurors should make that judgment
    based on considering all mitigating factors weighed against the aggravating factors.
    1
    Abdul-Kabir v. Quarterman, 
    550 U.S. 233
    , 264-65 (2007); Smith v. Texas, 
    543 U.S. 37
    , 45-48
    (2004); Tennard v. Dretke, 
    542 U.S. 274
    , 286-88 (2004); Penry v. Johnson, 
    532 U.S. 782
    , 804 (2001);
    Penry v. Lynaugh, 
    492 U.S. 302
    , 317 (1989); Hitchcock v. Dugger, 
    481 U.S. 393
    , 398-99 (1987); Skipper
    v. South Carolina, 
    476 U.S. 1
    , 4 (1986); Eddings v. Oklahoma, 
    455 U.S. 104
    , 110-12 (1982); Bell v. Ohio,
    
    438 U.S. 637
    , 642 (1978).
    2
    The Court in Woodson explained the mitigation requirement as follows: “In Furman, members
    of the Court acknowledge what cannot fairly be denied that death is a punishment different from all other
    sanctions in kind rather than degree. A process that accords no significance to relevant facets of the
    character and record of the individual offender or the circumstances of the particular offense excludes from
    consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating
    factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated
    offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to
    be subjected to the blind infliction of the penalty of death.” Woodson, 
    428 U.S. at 303-04
     (internal
    citations omitted).
    No. 08-4019             Dixon v. Houk                                                      Page 15
    Nevertheless, a recent case in this circuit has assumed without discussion that harmless
    error analysis applies. Campbell v. Bradshaw, 
    674 F.3d 578
    , 596-97 (6th Cir. 2012) (no
    discussion of whether harmless error analysis applies in cases of failure to allow
    mitigating evidence in capital cases and no consideration of the “death is different”
    principle that requires mitigating evidence, as explained in Woodson, 
    supra).
     I will
    therefore assume that the federal harmless error doctrine is applicable to the Lockett line
    of cases even though the Supreme Court has never so ruled but rather has treated Lockett
    as a reversible per se rule.
    The mitigating evidence here was the fact that Dixon at age 19 spent 234 nights
    in jail for crimes he never committed. Dixon faced perhaps the rest of his life in prison
    after he was charged with rape and aggravated burglary in the fall of 1992. However,
    it wasn’t until nearly 8 months later, when DNA and fingerprint evidence conclusively
    proved his innocence, that he walked out of jail. Before this incident, Dixon did not
    have an adult record and had never spent time in an adult facility. Just three months into
    this wrongful imprisonment term, a psychological evaluation revealed that he suffered
    from “anxiety and depression,” was experiencing “personal family problems,”and had
    “doubts about his emotional stability.” (Pet. for Postconviction Relief, Ex. D, Ericson
    Report, Oct. 21, 1996). He told the psychologist that “he had anger which built up.” 
    Id.
    Just four months later, without having undergone any treatment or rehabilitation
    for this wrongful incarceration, Dixon committed the brutal murder for which Ohio has
    now condemned him to die. The jury never heard evidence of the psychological trauma
    of his time in jail. The jury had no context for his statements to detectives when he told
    them that he had “no faith in the system anymore.” Dixon Apx. Vol. 2. Pg. 1237. The
    judge simply determined that this evidence was irrelevant, despite his counsel’s
    argument that this information might give the jury some understanding of his mental
    state “because he had suffered a pretty outrageous injustice himself, and he was an angry
    young man.” Jt. Apx. Pg. 291.3
    3
    At the trial Dixon’s lawyer argued to the trial judge:
    MR. GEUDTNER: We believe it’s a (B)(7) [statutory] factor, and, quite frankly, we’re
    No. 08-4019          Dixon v. Houk                                                            Page 16
    The Ohio Supreme Court found that the exclusion of this mitigating evidence
    was error under state law for the same reasons that the Woodson case found that its
    admission was necessary to avoid an unconstitutional, mandatory death penalty law. But
    the Ohio Supreme Court, without any further explanation, concluded that the error was
    harmless under state law:
    Finally, the trial court’s exclusion of proposed evidence regarding
    Dixon’s prior incarceration on rape charges was harmless. Defense
    counsel had intended to introduce evidence that, prior to the murder,
    Dixon was exonerated after spending several months in jail on rape
    charges. The trial court should have permitted this evidence to be
    submitted for the jury’s consideration as a mitigating factor pursuant to
    R.C. 2929.04(B) because it fits within the “history, character, and
    background of the offender.” See State v. Stumpf (1987), 
    32 Ohio St.3d 95
    , 100-101, 
    512 N.E.2d 598
    . See, also, State v. White (1999), 
    85 Ohio St.3d 433
    , 448, 
    709 N.E.2d 140
    . Nevertheless, our independent
    reassessment of the sentence will minimize any prejudicial impact. State
    v. Lundgren (1995), 
    73 Ohio St.3d 474
    , 486, 
    653 N.E.2d 304
    , citing State
    v. Landrum (1990), 
    53 Ohio St.3d 107
    , 115, 
    559 N.E.2d 710
    .
    State v. Dixon, 
    805 N.E.2d 1042
    , 1057 (2004). The Ohio Supreme Court did not offer
    any explanation for its harmless error ruling, but there is a body of psychological and
    psychiatric literature that makes clear that such exoneration evidence is mitigating and
    neither “irrelevant” nor weak and insignificant.
    A few excerpts from the literature will demonstrate that excluding the evidence
    from the jury should not be labeled “harmless error.” We cannot know now how much
    jurors would have been influenced by the exoneration evidence and how the discussion
    of the death penalty in the jury room would have changed. But certainly no one can
    confidently predict that it would not have been discussed as a serious basis for sparing
    going to argue that the jury can infer from that experience the defendant in the months
    following his release was a rather embittered and enraged young man.
    THE COURT: Based upon the arguments of counsel and the review of Section
    2929.04(B) of the Ohio Revised Code, the Court finds that the proposed evidence
    suggested by the defense is not relevant to any of the mitigating factors and will not
    permit you to put that in.
    (Tr. 932-33)
    No. 08-4019         Dixon v. Houk                                                   Page 17
    Dixon’s life. It should not have been swept under the rug at the trial or on appeal, nor
    should this violation of the Lockett line of cases be swept under the rug in order to avoid
    a retrial of the mitigation phase of the case. It is our duty to see that individuals are not
    executed in the face of uncontested constitutional violations.
    Adrian T. Grounds, a British forensic psychiatrist who is senior lecturer at the
    University of Cambridge, reported his findings in “Understanding the Effect of Wrongful
    Imprisonment,” 32 Crime & Justice 1, 2, 41-43 (2005). Based on a number of studies,
    he reports:
    The clinical findings from the psychiatric assessments indicated
    prevalent and often severe mental health and adjustment problems. After
    release, most men were described by their families and others as changed
    in personality and features of post-traumatic stress disorder and
    additional depressive disorders were common. The men reported
    persisting difficulties of psychological and social adjustment, particularly
    in close relationships. They described estrangement, difficulty in
    restoring intimate and family relationships, and complex experiences of
    loss . . .
    ....
    It is now recognized that widely differing kinds of trauma can produce
    a similar set of clinical symptoms. Saporta and van der Kolk (1992)
    suggest that traumatic events have four common features. First, they
    seem incomprehensible: they threaten the individual’s basic assumptions
    about himself and his world. Second, they rupture attachments to others,
    and subsequent long-term difficulties in forming relationships are
    common.        Third, the traumatic situation is inescapable and
    overwhelming. Fourth, traumatic events cause extreme physiological
    arousal leading to a persistent hypervigilance and sense of threat. These
    features also characterized the experiences described by the wrongly
    convicted men. The war veteran literature may be particularly
    illuminating because the forms of stress experienced by combat veterans
    are also likely to be chronic and may be associated with long periods of
    separation from families.
    ....
    There did not appear to be an obvious relationship between duration of
    custody and severity of outcome. The most distressed and severely
    psychiatrically disabled men included some who had served the shortest
    periods and some who had served very long periods. Likewise, previous
    No. 08-4019        Dixon v. Houk                                                  Page 18
    experience of imprisonment did not obviously appear to protect against
    adverse outcomes.
    
    Id.
     Other studies also prove the importance of allowing jurors an opportunity to consider
    the post-traumatic-type effects of wrongful imprisonment. Delaney, Findley and
    Sullivan, Exonorees’ Hardships After Freedom, Wisconsin Lawyer, Feb. 2010, at 18:
    Imprisonment has powerful effects. Prison rules tend to create a
    dependence on institutional structures. To survive in prison, some
    inmates embrace aggression to avoid victimization. Others become
    isolated and withdrawn, exhibiting behavior resembling clinical
    depression. Some researchers think incarceration causes a form of post-
    traumatic stress disorder.
    Wrongful incarceration compounds these typical effects of
    imprisonment in ways that are only beginning to be understood.
    Anecdotal evidence suggests that wrongfully incarcerated individuals
    experience rage and institutional mistrust while imprisoned.
    Another example in the literature is Scott, Leslie, “It Never, Ever Ends”: The
    Psychological Impact of Wrongful Conviction, American University Criminal Law
    Briefs, no. 2, at 10 (2010).
    Although exonorees suffer different types of mental illness, and to
    varying degrees, after spending time in prison for crimes they did not
    commit, one thing is certain — they all suffer. According to a Michigan
    study, many exonerated individuals grapple with emotional problems
    after they have been released, many are angry, and some resort to crime.
    Therefore, because the exclusion of the exoneration evidence is clear constitutional error
    under the Lockett line of cases and because it seems likely that at least one juror may
    have found the evidence troubling enough to spare Dixon’s life, I believe the writ should
    issue and the penalty phase of the case retried. Death is different, and we have a clear
    duty to see that executions do not go forward in the face of an unexplained, unanalyzed
    “harmless error” label used as a cover to disregard a longstanding constitutional rule.
    Neither this court nor the Supreme Court should permit the taking of life by state
    execution when there is a blatant violation of the Lockett rule. Both the Ohio courts and
    this court have turned the rule into a matter of judicial discretion so that there is no
    No. 08-4019        Dixon v. Houk                                                 Page 19
    longer any pretense that there is any uniformity from state to state in the administration
    of the death penalty.