RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Lordi v. Ishee, et al. No. 02-4273 ELECTRONIC CITATION: 2004 FED App. 0310P (6th Cir.) File Name: 04a0310p.06 THE ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, for Appellee. ON BRIEF: Kort W. Gatterdam, Max Kravitz, KRAVITZ UNITED STATES COURT OF APPEALS & KRAVITZ, Columbus, Ohio, for Appellant. Stuart A. Cole, OFFICE OF THE ATTORNEY GENERAL, FOR THE SIXTH CIRCUIT CORRECTIONS LITIGATION SECTION, Columbus, Ohio, _________________ for Appellee.

FRANK LORDI, X SILER, J., delivered the opinion of the court, in which Petitioner-Appellant, - BALDOCK, J., joined. MOORE, J. (pp. 11-17), delivered a - separate opinion dissenting in part. - No. 02-4273 v. - _________________ > , OPINION TODD ISHEE, Warden, - Respondent-Appellee. - _________________ N SILER, Circuit Judge. Frank Lordi appeals the district Appeal from the United States District Court court’s denial of his petition for a writ of habeas corpus from for the Northern District of Ohio at Cleveland. his convictions in state court under 28 U.S.C. § 2254. In the No. 01-01725—Donald C. Nugent, District Judge. district court, Lordi claimed various constitutional deficiencies in his convictions. However, this court granted Argued: June 10, 2004 Lordi a certificate of appealability solely on the issues of whether his trial counsel was constitutionally ineffective due Decided and Filed: September 10, 2004 to a conflict of interest, and whether Lordi was constitutionally deprived of an impartial jury due to the trial Before: SILER, MOORE, and BALDOCK, Circuit court’s decision not to investigate an allegation of a juror’s Judges.* bias. For the reasons stated hereafter, the district court is AFFIRMED. _________________ BACKGROUND COUNSEL In April 1998, Lordi was indicted on eighteen criminal ARGUED: Kort W. Gatterdam, KRAVITZ & KRAVITZ, counts, variously stemming from his position as a county Columbus, Ohio, for Appellant. Stuart A. Cole, OFFICE OF commissioner in Mahoning County, Ohio. Lordi hired attorney Lou D’Apolito (D’Apolito) to defend against the charges. D’Apolito’s law partner, David D’Apolito, had previously represented one of the government’s material * The Ho norable B obb y R. B aldock, Circuit Judge of the United States witnesses against Lordi, Joseph Veneroso. This Court of Appeals for the Tenth Circuit, sitting by designation.

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representation had been in a previous unrelated criminal case counts on which Lordi was convicted either did not rely on involving a felony charge of bribery. Veneroso had worked Veneroso’s testimony, or had other witnesses who in the county’s building inspection office and had offered to corroborated Veneroso’s testimony. pay his supervisor $6,000 for the answers to a required certification test. In 1996, in exchange for Veneroso’s guilty Additionally, after jury selection but before trial, D’Apolito plea, the charge was reduced to a misdemeanor of received an anonymous telephone call from a female who falsification. At Lordi’s trial, the government intended to claimed to have been a member of the venire. The caller have Veneroso testify in regard to how Lordi would direct alleged that she overheard an impaneled juror make the Veneroso to engage in personal (e.g., maintenance on Lordi’s statement “that guy is guilty” while looking over at Lordi. rental houses) and political (e.g., gathering petitions) chores The caller refused to identify herself, but claimed that another while he was being paid by the county. member of the venire, whom she named, had also overheard the comment as they had discussed it between themselves. D’Apolito initially questioned his ability to defend Lordi D’Apolito brought this to the immediate attention of the trial due to his partner’s prior representation of Veneroso, and court and requested that the court inquire into the truth or informed Lordi that he had a potential conflict of interest. falsity of the allegation. The state opposed this inquiry on the However, after conducting some research into the conflict basis that there was no indicia of reliability as to the issue, D’Apolito concluded that he would be able to defend accusation and it had the potential of tilting the accused juror Lordi. D’Apolito shared this research and his conclusion with into a pro-defense mode to compensate against the accusation both the original prosecutor and the replacement prosecutor, that he was biased against Lordi. The trial court refused to who initially warned D’Apolito that he thought it was conduct additional inquiry, citing the fact that the call was necessary to seek his removal from the case due to the anonymous and that the court had no reason to suspect that potential conflict until D’Apolito shared his research with anyone sitting in the venire would have heard it. him. Off the record before trial, D’Apolito and the Additionally, the court speculated that the comment could prosecutor, without Lordi present, brought the prior have been made in jest, and agreed with the prosecution that representation of Veneroso to the attention of the trial court, an inquiry would potentially tilt the juror into a pro-defense which was dismissive of the entire issue. The parties and mode. court intended to put the issue on the record when a court reporter was available, but never did. On May 26, 1999, Lordi filed a motion for a new trial on the basis of newly discovered evidence, citing his “discovery” During cross-examination of Veneroso at trial, D’Apolito of a conflict of interest in his trial counsel. After an brought out Veneroso’s conviction for falsification, but evidentiary hearing, the motion was denied. The appeal of otherwise did not go into any details of the offense. The the motion’s denial and Lordi’s direct appeal were cross-examination was relatively friendly with D’Apolito consolidated by the Ohio Court of Appeals, which affirmed accepting several re-characterizations of his questions by the denial and Lordi’s conviction in 2000. The Ohio Veneroso. Ultimately, on February 24, 1999, Lordi was appellate court ruled as to the conflict issue that “[t]here [was] convicted on four counts, including theft in office (O.R.C. nothing in the record to demonstrate that [Lordi’s] counsel § 2921.42(A)(2)), unlawful interest in a public contract had an actual conflict of interest which prevented him from (O.R.C. § 2921.42(A)(1)), and two misdemeanor counts of effectively representing” Lordi. Ohio v. Lordi, 748 N.E.2d having a conflict of interest (O.R.C. § 102.03(E)). All the 566, 573 (Ohio Ct. App. 2000). On May 23, 2001, the Ohio No. 02-4273 Lordi v. Ishee, et al. 5 6 Lordi v. Ishee, et al. No. 02-4273

Supreme Court denied Lordi leave to appeal. A subsequent ANALYSIS motion for reconsideration was denied. While pursuing the appeal to the Ohio Supreme Court, Lordi filed other Standard of Review. applications for relief in the Ohio courts, which were variously denied and for which he was ultimately denied A district court’s denial of a habeas corpus writ is reviewed leave to appeal by the Ohio Supreme Court on May 23, 2001. de novo. Gonzales v. Elo, 233 F.3d 348, 352 (6th Cir. 2000). Because Lordi’s convictions occurred in 1999, the On January 4, 2001, Lordi filed a motion to reopen his Antiterrorism and Effective Death Penalty Act of 1996 appeal with the Court of Appeals, alleging various claims that (AEDPA) applies. Lindh v. Murphy, 521 U.S. 320, 336 his appellate counsel was ineffective, including the failure of (1997). Under AEDPA, factual findings made by a state his appellant counsel to raise the issue of the trial court’s court are presumed correct unless the petitioner rebuts the failure to inquire into the juror bias issue. In February 2001, presumption with clear and convincing evidence. 28 U.S.C. the motion was denied with the appellate court ruling in § 2254(e)(1). For Lordi to receive relief, this court must find regard to the juror misconduct issue that “[t]he only evidence that the Ohio court decision “was contrary to, or involved an of such misconduct before the court was an anonymous call. unreasonable application of, clearly established Federal law, As the record does not support a claim of juror misconduct as determined by the Supreme Court,” or was based on “an other than this anonymous phone call, appellant has not unreasonable determination of the facts in light of the demonstrated a reasonable likelihood that had appellate evidence presented in the State court proceeding.” 28 U.S.C. counsel raised this assignment of error, it would have been § 2254(d)(1) & (2). Lordi has not raised issues in regard to sustained.” Lordi appealed this decision to the Ohio Supreme the factual determinations of the Ohio courts, but focuses his Court, which also denied this claim in its consolidated denial arguments upon whether the Ohio courts made a of Lordi’s petition on May 23, 2001. determination that was contrary to federal law, or was an unreasonable application of that law. On July 17, 2001, Lordi filed for a writ of habeas corpus under 28 U.S.C. § 2254 in federal district court. The district A. Conflict of Interest. Lordi’s conflict of interest claim court dismissed the petition and denied a certificate of relates to a successive (previous unrelated representation of a appealability (COA). This court later granted a certificate of co-defendant and/or trial witness) rather than a joint appealability on two issues: first, whether Lordi received (simultaneous trial of co-defendants) or a multiple (co- constitutionally ineffective assistance of counsel due to a defendants at severed trials) representation. The presumed conflict of interest by his trial counsel; and second, whether prejudice standard for ineffectiveness claims based on a he was denied his Sixth Amendment right to an impartial conflict of interest detailed in Cuyler v. Sullivan, 446 U.S. jury. 335 (1980), is inapplicable to cases of successive representations. See McFarland v. Yukins, 356 F.3d 688, 701(6th Cir. 2004); Moss v. Kohn, 323 F.3d 445, 460-61 (6th Cir. 2003). Therefore, Lordi’s argument that the Ohio courts acted contrary to federal law by dismissing the ineffectiveness claim due to his failure to demonstrate any prejudice is not correct. Strickland v. Washington, 466 U.S. 668, 692 (1984), is the controlling authority for an ineffectiveness claim based No. 02-4273 Lordi v. Ishee, et al. 7 8 Lordi v. Ishee, et al. No. 02-4273

on a conflict of interest for a successive representation, which appropriate matter to be addressed under a COA. See Slack was the legal standard the Ohio courts identified. v. McDaniel, 529 U.S. 473, 484 (2000). Not only did the Ohio courts identify the appropriate For procedural default to occur, the state must show that standard, but they did not make an unreasonable application 1) Lordi failed to comply with a state procedural rule; 2) the of the ineffectiveness rule from Strickland. After holding an state courts actually enforced the state procedural rule; 3) the evidentiary hearing, the Ohio courts found that “[t]here was state procedural bar must be an adequate and independent nothing in the record to suggest that David D’Apolito’s prior state ground to foreclose federal review; and 4) Lordi must representation of Veneroso required Lou D’Apolito to not have cause and actual prejudice to excuse his default. disregard his duties to [Lordi].” More specifically, this record Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). Lordi’s does not show that either Lou or David D’Apolito was in own habeas petition concedes that his appellate counsel did possession of any confidential information that may have not properly raise the juror bias issue on direct appeal. He is implicated a conflict. Lordi’s case before this court is based therefore barred from raising it in the Ohio courts because he upon pure speculation that D’Apolito may have known had the previous opportunity to present it during his direct something by implication from his law partner which may appeal, and failed to do so, thus waiving the issue under state have influenced his decision-making at trial, although he can procedural law, Rust v. Zent, 17 F.3d 155, 160 (6th Cir. point to no evidence that a conflict existed or that any 1994), which is an adequate and independent state ground. decision was influenced. The only pertinent facts that Lordi Id. at 161. Furthermore, since Lordi is required to present this has presented to the courts are that D’Apolito’s law firm claim to the Ohio courts first to satisfy the exhaustion represented a government witness in a prior unrelated matter requirement, but is now effectively barred from doing so due and then cross-examined that witness at trial. Without more, to Ohio’s procedural rule, the second requirement that the this presents a case of a potential conflict of interest due to a state courts actually enforced the procedural rule is fulfilled. successive representation that never ripened into an actual Coleman v. Thompson, 501 U.S. 722, 735 (1991). conflict. As such, the Ohio courts were not in error when they ruled on this constitutional issue. Lordi attempts to avoid procedural default by characterizing the Ohio appellate court’s disposition of his post-conviction B. Juror Bias. Lordi claims that he was deprived of an ineffectiveness claim on the prejudice prong as being a ruling impartial jury in violation of the Sixth Amendment due to the on the merits of the juror bias issue, which would permit this trial court’s refusal to inquire into a statement by a juror court to review it. This is not correct. By addressing the which potentially demonstrated a pre-conceived notion of prejudice of an ineffectiveness claim a court does not bind Lordi’s guilt. The district court found this claim to have been itself into ruling on the claim’s underlying merits. See Lott v. procedurally defaulted. The COA that was issued is Coyle, 261 F.3d 594, 612 (6th Cir. 2001). Therefore, to reach addressed to the merits of the juror bias claim rather than the the underlying issue of juror bias, Lordi must first establish an procedural default issue, which Lordi also raised in the equivalent constitutional deprivation that excuses his default district court in the guise of an ineffectiveness of appellate by the ineffective assistance of his appellate defense counsel. counsel claim. Although it is a statutory requirement that a See Edwards v. Carpenter, 529 U.S. 446, 450-51 (2000). COA reference the specific issue to be addressed on its face, However, this issue cannot be addressed in a vacuum since 28 U.S.C. § 2253(c)(3), a procedural issue that possibly bars Ohio’s courts have already rendered a ruling on the merits of addressing an underlying constitutional claim is an No. 02-4273 Lordi v. Ishee, et al. 9 10 Lordi v. Ishee, et al. No. 02-4273

the ineffective assistance of counsel claim upon which Lordi court’s determination of this ineffectiveness of counsel claim is relying to excuse his procedural default. was unreasonable. “Without more” than the possibility of a preconceived notion of guilt, our confidence in the outcome Therefore, based on the standard of review from the has not been undermined. AEDPA, this claim is procedurally defaulted. The Ohio appellate court that addressed the issue concluded that since AFFIRMED. the only evidence presented to the trial judge was an anonymous phone allegation, Lordi could not demonstrate a “reasonable likelihood” that he would have received relief had his appellate counsel raised the issue. Furthermore, the allegation related to a statement by a juror that, standing alone, only indicated the possibility of a pre-conceived notion of guilt. The Supreme Court has stated that the idea “that the mere existence of [a] preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard.” Irvin v. Dowd, 366 U.S. 717, 723 (1961) (internal citations omitted). Since the federal constitutional standard for the prejudice necessary to demonstrate the ineffectiveness of counsel, and thus to excuse a procedural default, is “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” where “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome,” Strickland, 466 U.S. at 694, the Ohio appellate court identified the correct legal standard. As for the Ohio court’s decision being an unreasonable application of this legal standard, the Supreme Court has found it necessary within the past year to reiterate that when a state court’s application of governing federal law is challenged in a habeas petition, the decision must not only be shown to be erroneous, but objectively unreasonable. See Middleton v. McNeil, 124 S. Ct. 1830 (2004); Yarborough v. Gentry, 540 U.S. 1 (2003) (per curiam opinions reversing appellate court panels which granted habeas corpus writs due to findings that state courts made unreasonable applications of federal ineffective assistance of counsel law). We do not find that the Ohio No. 02-4273 Lordi v. Ishee, et al. 11 12 Lordi v. Ishee, et al. No. 02-4273

_______________________ of appellate counsel.1 Noting the scant evidence in the record of juror bias, the state appellate court denied the claim, DISSENTING IN PART holding that Lordi “has not demonstrated a reasonable _______________________ likelihood that had appellate counsel raised this assignment of error [on direct appeal], it would have been sustained.” Ohio MOORE, Circuit Judge, dissenting in part. Because I v. Lordi, Nos. 99CA62; 99CA247, slip op. at 1 (Ohio Ct. believe that Lordi has demonstrated cause and prejudice to App. Feb. 23, 2001), appeal dismissed, 747 N.E.2d 251 (Ohio excuse the procedural default on his juror-bias claim, I 2001). respectfully dissent from the corresponding portion of the majority’s opinion. II. I. To excuse the procedural default, Lordi contends that his counsel on direct appeal was constitutionally ineffective for After jury selection, defense counsel Lou D’Apolito failing to raise the juror-bias claim. See, e.g., Seymour v. received a telephone call from an anonymous woman Walker, 224 F.3d 542, 550 (6th Cir. 2000) (“If [petitioner] claiming to be on the jury venire. The woman said that she could show that she received ineffective assistance of and another female venire member, whom she identified, appellate counsel that rose to the level of a violation of her overheard a male colleague who was later seated on the jury Sixth Amendment rights, it would excuse her procedural (“Juror A”) comment before the trial began that Lordi “was default.”). The applicable standard, enunciated in Strickland guilty.” She also expressed concerns that Juror A had lied v. Washington, 466 U.S. 668, 690, 694 (1984), requires a during voir dire, and stated that she felt compelled to report showing that (1) counsel’s performance was so deficient as to the matter. be “outside the wide range of professionally competent assistance”; and (2) there is “a reasonable probability that, but D’Apolito requested that the trial court conduct an in- for counsel’s unprofessional errors, the result of the camera hearing to examine Juror A for bias. The prosecution proceeding would have been different.” The failure of opposed the request, arguing that the accusation was not appellate counsel “to raise an issue on appeal could only be credible and could potentially taint the jury pool. Denying ineffective assistance if there is a reasonable probability that the request without a hearing, the trial court (1) noted that the inclusion of the issue would have changed the result of the call was anonymous; (2) suggested that the anonymous venire appeal.” McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. member would not have been within hearing range of Juror A 2004). when the alleged comment was made; and (3) speculated that Juror A’s comment may have been in jest. D’Apolito entered Because of the procedural arguments in this case, we must his objection to the denial. first decide whether there was a reasonable probability that the claim of juror bias would have prevailed on its merits at Appellate counsel failed to raise a juror-bias claim on direct appeal. Lordi first presented the claim in his delayed motion for reconsideration before the Ohio Court of Appeals, seeking 1 Ohio law requires defendants to raise a claim of ineffective to excuse his procedural default due to ineffective assistance assistance of appellate counsel on an application for reconsideration in the court of appeals or on direct appeal to the state suprem e cou rt. See State v. Murnahan, 584 N.E .2d 1 204 , 120 8 (O hio 1992); Ohio App. R. 26(B). No. 02-4273 Lordi v. Ishee, et al. 13 14 Lordi v. Ishee, et al. No. 02-4273

the time Lordi’s appellate counsel failed to raise it. Id. If so, Oswald v. Bertrand, 374 F.3d 475 (7th Cir. 2004). Despite “we can then consider whether the claim’s merit was so considerable publicity of the murder in the small Wisconsin compelling that appellate counsel’s failure to raise it community, evidence that jurors were discussing the case amounted to ineffective assistance of appellate counsel that before trial, and suggestions that at least one juror was willing would excuse [Lordi’s] procedural default.” Id. at 700. to convict in order to expedite deliberations, the state trial court refused defendant’s request to investigate juror bias and A. simply readmonished the jury. Id. at 479-80. Granting habeas relief, the Seventh Circuit held that a state trial court’s “Under clearly established Supreme Court precedent, a inquiry into juror-bias allegations must be “reasonably defendant who alleges implied juror bias is entitled to a calculated to resolve the doubts raised about the juror’s hearing in which he has ‘the opportunity to prove actual impartiality” (internal quotation omitted), and should be bias.’” Mason v. Mitchell, 320 F.3d 604, 636 (6th Cir. 2003) increasingly more searching as the probability of bias (quoting Smith v. Phillips, 455 U.S. 209, 215 (1982)). “A increases. Id. at 480-81. The pretrial atmosphere and hearing permits counsel to probe the juror’s memory, his reported jury conduct “created a sufficiently high probability reasons for acting as he did, and his understanding of the of jury bias to require on the part of the trial judge a diligent consequences of his actions.” Phillips, 455 U.S. at 222 inquiry” to ensure the protection of the defendant’s Sixth (O’Connor, J., concurring). Amendment rights. Id. at 481. The Supreme Court has not dictated the type or breadth of While it is unnecessary for us to define the precise nature opportunity that state trial courts must provide under Phillips of the hearing required to be afforded to defendants raising to defendants raising allegations of juror bias. However, we juror-bias claims, the anonymous venire member’s allegations have granted habeas relief where a state trial court were clearly sufficient to warrant some “diligent inquiry” by categorically refused a defendant’s request for any post- the trial court. Oswald, 374 F.3d at 481. First, the conviction hearing on the claim. See, e.g., Nevers v. anonymous venire member levied a troubling allegation that Killinger, 169 F.3d 352, 373-74 (6th Cir.), cert. denied, 527 Juror A lied during voir dire and that Juror A expressed his U.S. 1004 (1999). In Nevers, the defendant appended several belief in Lordi’s guilt. Second, she provided the name of a jurors’ affidavits to his motion for a new trial, stating that second woman on the venire who could substantiate her jurors were exposed to extraneous and potentially prejudicial allegations, triggering a concern among reasonable jurists that information. We concluded that the trial court’s denial of the Juror A’s comments may have influenced other members of defendant’s request for a hearing and factual determination on the jury pool. Third, the indictment and trial of a Mahoning the claim “prevented [him] from demonstrating with County commissioner would naturally generate local specificity that the extraneous information the jury possessed publicity, placing the trial judge on notice about the did in fact impair the ability of the jury to decide the case potentiality for such prejudice. solely on the evidence properly presented to them”—a violation of the defendant’s right to an impartial jury under The state trial court’s response was constitutionally the Sixth and Fourteenth Amendments. Id. at 374. inadequate to protect Lordi’s Sixth Amendment rights. No factual support is cited for its conclusions that (1) the The Seventh Circuit recently reached a similar conclusion allegation was not credible due to the source’s anonymity; when juror bias allegations first arose at the start of trial in (2) the anonymous venire member could not have overheard No. 02-4273 Lordi v. Ishee, et al. 15 16 Lordi v. Ishee, et al. No. 02-4273

Juror A’s comments; and (3) Juror A probably offered his constitutional duty to permit further inquiry or a hearing to comments in jest. These are just speculations of the state trial develop the evidence. Hence, by omitting any mention of the court. The state trial court further failed to recognize that the trial court’s inexplicable failure to conduct a hearing, the state credibility of the allegation could be quickly ascertained by appellate court did not consider the reasonable probability of questioning the second venire member identified by the caller, reversal on direct appeal due to procedural error, and thus and without necessarily interrogating—and potentially conducted an incomplete and unreasonable application of tainting—Juror A. Strickland’s prejudice prong. See Smith v. Robbins, 528 U.S. 259, 285 (2000); see also McFarland, 356 F.3d at 699; In light of the unambiguous command of the Supreme Lattimore v. Dubois, 311 F.3d 46, 56 (1st Cir. 2002), cert. Court in Phillips, I believe it reasonably probable that a denied, 538 U.S. 966 (2003). reviewing court on direct appeal, after recognizing the trial court’s categorical failure to permit Lordi an opportunity to B. demonstrate the presence of actual juror bias, would have reversed the case and ordered relief. The Ohio Court of Not only did the Ohio Court of Appeals unreasonably apply Appeals’ contrary conclusion rested on an “unreasonable Strickland’s prejudice prong, but also that court failed to application” of Strickland because it incorrectly limited its analyze Strickland’s deficient-performance prong. prejudice inquiry to the merits of Lordi’s juror-bias Consequently, our analysis of whether appellate counsel’s allegation. It found that even if a juror-bias claim had been omission of Lordi’s juror-bias claim on direct appeal rises to offered on direct appeal, there was not “a reasonable the level of deficient performance under Strickland is likelihood that . . . it would have been sustained” because the conducted de novo. Wiggins v. Smith, 539 U.S. 510, 534 claim was unsupported by evidence in the record. Lordi, slip (2003); see also Maples v. Stegall, 340 F.3d 433, 437 (6th op. at 1.2 Of course, the reason for this lack of support can be Cir. 2003). attributed to the state trial judge’s complete abrogation of his Lordi’s juror-bias claim was so “significant and obvious” that appellate counsel’s failure to raise it constitutes a deficiency under Strickland. Mapes v. Coyle, 171 F.3d 408, 2 The full analysis of the Ohio Cou rt of Appe als is as follows: 427 (6th Cir.), cert. denied, 528 U.S. 946 (1999). As noted above, the Supreme Court, without qualification, “has long Appellant first alleges that counsel should have raised the held that the remedy for allegations of juror partiality is a issue of the co urt’s failure to cond uct an inquiry into an allegation of juror misconduct. The only evidence of such hearing in which the defendant has the opportunity to prove misconduct before the court was an anonymous call. As the actual bias.” Phillips, 455 U.S. at 215. It naturally follows record does not support a claim of juror misconduct other than that the juror-bias issue was clearly stronger than the issues this anonymous call, appellant has not demonstrated a presented on direct appeal, mainly the forty-four alleged reaso nable likelihood that had appellate co unsel raised this instances of prosecutorial misconduct—many of which were assignment of error, it would have been sustained. utterly frivolous or unsupported by the record. Robbins, 528 Lordi, slip op. at 1. While the opinion failed to cite to Strickland or U.S. at 288 (requiring a habeas petitioner claiming ineffective conduct a meaningful constitutional analysis, our inquiry still proceeds assistance of counsel to demonstrate that “a particular under the deferential lens of 28 U .S.C. § 225 4(d) because the state nonfrivolous issue was clearly stronger than issues that app ellate court included some language that vaguely mirrors Strickland’s counsel did present”). Moreover, D’Apolito’s prompt prejudice prong. No. 02-4273 Lordi v. Ishee, et al. 17

objection to the trial court’s refusal to conduct any inquiry into juror bias should have alerted appellate counsel of this claim, the Supreme Court’s decisive language in Phillips forecloses any discretion of trial courts on whether or not to conduct an investigation into allegations of juror bias, and the record is totally devoid of any explanation of why appellate counsel would strategically fail to include the juror-bias claim. Mapes, 171 F.3d at 427. Under these circumstances, the deficient-performance prong of Strickland has been satisfied. Given the clear Sixth Amendment violation, the decision of Lordi’s appellate counsel to omit this issue on direct appeal was “an unreasonable one which only an incompetent attorney would adopt” and is appropriately cited as the cause for Lordi’s failure to raise the issue on appeal. Id. at 428. III. Because the Ohio Court of Appeals unreasonably applied clearly established Supreme Court precedent when it held in effect that Lordi could not satisfy the prejudice prong of Strickland and because Lordi has shown deficient performance of appellate counsel, Lordi has overcome the procedural default. Because Phillips mandates that Lordi be provided with some meaningful opportunity to demonstrate actual juror bias after his allegations were presented to the state trial court, I would further hold that the state trial judge’s failure to conduct any inquiry clearly violated Lordi’s Sixth Amendment rights. Therefore, I would reverse the district court’s decision to deny habeas relief, and I would remand with instructions to grant the writ unless the State of Ohio opts to retry Lordi within a reasonable period of time. I respectfully dissent.