Phillip L. Jones v. TIM SHOOP, Warden

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 26a0118p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PHILLIP L. JONES,
Petitioner-Appellant,
v.
TIM SHOOP, Warden,
Respondent-Appellee.
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No. 24-3356
Appeal from the United States District Court for the Northern District of Ohio at Akron.
No. 5:19-cv-02063—Solomon Oliver, Jr., District Judge.
Argued: August 21, 2025
Decided and Filed: April 22, 2026
Before: GIBBONS, GRIFFIN, and THAPAR, Circuit Judges.
_________________
COUNSEL
ARGUED: Joseph E. Wilhelm, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Cleveland, Ohio, for Appellant. Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Joseph E. Wilhelm, Matthew Gay,
Jillian S. Davis, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for
Appellant. Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellee.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Petitioner Phillip L. Jones, an Ohio prisoner
sentenced to death, appeals the district court’s denial of his petition for writ of habeas corpus.
>

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Jones makes three arguments on appeal: first, that the trial court violated his Confrontation
Clause rights by allowing two witnesses to testify to out-of-court statements made by his wife;
second, that his trial counsel were ineffective by not presenting testimony from a forensic expert
to counter the state’s expert during the guilt phase; and third, that his counsel were ineffective
during the penalty phase of trial. For the foregoing reasons, we affirm the judgment of the
district court and deny Jones’s petition for writ of habeas corpus.
I. Factual History
A. Pre-Trial Proceedings
Around 6:00 AM on April 23, 2007, Susan Yates’s body was discovered at Mount Peace
Cemetery in Akron, Ohio.1 Yates’s skirt and bra were torn, with her bra “ripped at the
connecting fabric between the cups and . . . turned around on her torso.” State v. Jones, 984
N.E.2d 948, 954 (Ohio 2012). A small, plastic, glow-in-the-dark cross was placed over her right
eye, and her face and neck had many bruises. Police also located Yates’s shoes, a hat, and a
pocketknife on the ground near the body.
A day later, Akron police arrested Jones in connection with Yates’s death. When
interviewed at the police station that night, Jones stated that all he would “say about this is that it
was an accident.” Id. at 955. Soon after, Jones was charged with one count of aggravated
murder, one count of murder, and two counts of rape. Jones pled not guilty to all charges. On
October 22, the grand jury supplemented the indictment against Jones to include a death penalty
and repeat offender specification. Four days later, the court authorized Jones’s lawyers to retain
Dr. James Siddall, a forensic psychologist, for mitigation purposes. The court also granted the
defense’s motion to hire Thomas Hrdy as a defense mitigation expert. The case then proceeded
to trial.
1Because this case does not turn on factual disputes, we rely at times on the account of the facts from the
Ohio Supreme Court decision in Jones’s direct appeal and the Ohio Court of Appeals decision from Jones’s state
post-conviction petition. See Mammone v. Jenkins, 49 F.4th 1026, 1035 (6th Cir. 2022) (relying on the Ohio
Supreme Court’s decision to supply facts not in dispute). These factual findings are “presumed to be correct,” and
Jones has the “burden of rebutting the presumption of correctness by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1).

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B. Trial
i. The State’s Evidence
Jones’s wife, Delores, testified that Jones was not home when she arrived home at around
10:30 PM on April 22. Upset by Jones’s absence, Delores spent the night with her mother.
When Delores returned the next morning, she found Jones sleeping in bed and noticed that he
had a scratch on his shoulder and lip. Delores spent the rest of the day with Jones, and noted that
he was “quiet, very quiet,” which was “unusual” for him. DE 19-1, Trial Tr., Page ID 5961.
Around 4:00 PM on April 24, after Jones watched television and read the newspaper,
Delores spoke to Jones “about something that was on the news.” Id. at 5964. However, because
Jones invoked his spousal privilege, Delores could not testify about the details of their
conversation. After that privileged conversation, Delores ran an errand with Jones and then
drove herself to the home of her close friend, Charlette Jeffries.
Delores arrived at Jeffries’s home between 4:30 PM and 5:00 PM, feeling “[h]ysterical,
upset, [and] hyperventilating.” Id. at 5941–42, 5966. She was “scared to death.” Id. at 5966.
Once there, she told Jeffries “what [Jones] had told [her]” and called police, asking “to speak to
somebody in charge” because she had information about Yates’s case. Id. at 5967. After
Detective Richard Morrison arrived to take a statement, Delores shared with him the same
information she told Jeffries.
The trial court allowed Jeffries and Morrison to testify about their conversations with
Delores under the excited utterance hearsay exception. Jeffries stated that, at around 4:45 PM,
Jones arrived at her home “upset” and “screaming.” Id. at 5941–43. Jones immediately told
Jeffries “[h]e did it, he did it.” Id. at 5941. When Jeffries asked Delores to clarify who did what,
Delores stated “[m]y husband, Phil,” “[m]urdered the woman,” “[t]he woman that they found in
the cemetery.” Id. at 5943–44. Jeffries said that she was not present when Delores later spoke to
Morrison at her home. On cross-examination, Jeffries denied that Delores said Jones described
the woman’s death as accidental.

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Morrison also testified about his conversation with Delores. Morrison noted that Delores
“was hyperventilating and basically hysterical.” Id. at 5894. After she calmed down, Delores
told Morrison that her “husband is the one that killed that girl in the cemetery.” Id. Morrison
said that Delores told him that she knew the victim’s name was Susan, which Morrison
considered important because Yates’s name had not been disclosed to the public.
Delores went to the police station for further questioning later that night. While there,
Morrison showed Delores the glow-in-the-dark cross found over Yates’s eye, which she did not
initially recognize. Delores contacted police the next day, however, to explain that Jones had
given her a similar glow-in-the-dark cross earlier that year, and that she knew that Jones kept
another one in his wallet.
The county’s chief deputy medical examiner, George Sterbenz, testified for the state at
trial. Sterbenz conducted an autopsy of Yates and concluded that she died from asphyxia by
strangulation and that the manner of death was homicide. Sterbenz testified that the autopsy
revealed abrasions on the upper chest, collar bones, neck, and jaw line. Yates also had bruising
around her right eye and scalp, and smaller abrasions over her arms, leg, feet, and back, which
Sterbenz said resulted from “blows” to those areas. Jones, 984 N.E.2d at 955; DE 19-1, Trial
Tr., Page ID 6107. Moreover, Yates had “‘gouging’ or ‘fingerprint type abrasions’ on her neck,
right thumb, and elbow.” Jones, 984 N.E.2d at 955. There were likewise “[p]etechiae, or
‘pinpoint type hemorrhages,’” found “on her face and in her eyes” that Sterbenz concluded was
“indicative of strangulation.” Id.; DE 19-1, Trial Tr., Page ID 6096. Yates’s larynx was also
fractured in two places.
Sterbenz further concluded that Yates had been sexually assaulted vaginally and anally.
Sterbenz testified that Yates had “extensive vaginal injuries.” Jones, 984 N.E.2d at 955. Yates’s
anus and rectum also had significant “internal, deep bruising.” Id. Because of the depth of
Yates’s bruising, Sterbenz speculated that Yates’s injuries could have been caused by a “foreign
object” like “a fist,” a “very large rigid foreign object,” “tools,” or a tool handle. DE 19-1, Trial
Tr., Page ID 6143–44, 6170–71. He also noted that, during the autopsy, investigators found a
twig “in the fecal material inside [Yates’s] rectum about four to six inches from the anal
opening.” Jones, 984 N.E.2d at 955.

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On cross-examination, Jones asked Sterbenz questions about chain of custody, the state’s
investigation, and autopsy procedures. Additionally, Jones asked Sterbenz whether he thought
Yates may have swallowed and digested the twig that was discovered in her rectum. Sterbenz
responded that he did not think that was possible because the twig could not have maintained its
integrity through the digestive process. Jones did not present his own expert to rebut Sterbenz’s
testimony.
DNA evidence also connected Jones to Yates’s death. Jones’s semen was found on
Yates’s skirt and on vaginal swabs. No semen was detected, however, on the rectal swabs or on
tissue paper found near Yates’s body.
The state additionally presented evidence that Jones had pled guilty to two counts of
attempted rape in 1990. The victim in that case, who was 16 years old at the time of the assault,
testified at Jones’s trial. She explained that Jones, a friend of her older sister, had driven her to a
secluded area near a park and “put his hands around her neck and started choking her.” Jones,
984 N.E.2d at 956. After the victim tried to fight back, Jones twice tried to rape her anally and
then choked and raped her vaginally. During that period, Jones hit and bruised the victim’s back
and threatened to kill her several times. And before he left, Jones told the victim that “he would
kill her if she told anyone what he had done.” Id.
ii. Jones’s Defense
Jones testified on his own behalf. He admitted that he killed Yates but said he did so
accidently. According to Jones, he and Yates had a prior relationship that began in February or
March 2007. Jones testified that he was driving around 8:45 PM on April 22, the night of
Yates’s death, when he saw a man attacking a female victim who was defending herself with a
knife. Jones pulled over to confront the attacker and, only at this point, recognized Yates as the
victim. The man assaulted Jones before fleeing. After Jones and Yates returned to his car, Yates
smoked crack cocaine. The pair later bought more crack from a man on the street and alcohol
from a nearby market.
Sometime between 9:00 PM and 9:30 PM, Jones and Yates went to Mount Peace
Cemetery. Yates smoked three more crack-laced cigarettes. After she was done, Jones and

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Yates began making out and had vaginal sex with a condom. Jones testified that they did not
have anal intercourse and that he did not do anything to her anal area.
According to Jones, “Yates told him she wanted to have ‘rough’ sex.” Id. at 958. She
specifically wanted Jones “to put his hands around her throat and restrain her breathing as she
neared orgasm.” Id. But “[a]t some point” after they started having intercourse, he heard “‘a
crack, cracking sound or popping sound.’” Id. After Jones realized Yates was not moving, he
stopped and noticed that the condom had broken. He tried CPR—to no avail—and then
“panicked because ‘he had a rape case.’” Id. Jones fled without contacting police. He also
denied intentionally killing Yates, stating that he “guess[ed] it . . . went too far,” and that he
“applied too much pressure” to her throat. DE 19-2, Trial Tr., Page ID 6562.
Jones said that he arrived home between 10:30 PM and 10:45 PM and that Delores was
there when he arrived. When asked where he was coming from, Jones “told [Delores] that he
had been out and had broken up a fight.” Jones, 984 N.E.2d at 958.
Jones also denied raping his friend’s sister in 1990. Jones said that “he never choked”
her and indeed “could not have done so because he has limited mobility in his right arm, which
he asserted had been shattered in late 1989 and had led to the surgical removal of the radius
bone.” Id. at 957. He said that their encounter was consensual and that they had previously had
sex “‘[a]t least several, maybe four times,’ before the rape.” Id.
On cross-examination, Jones could not explain, or explicitly denied, several aspects of
the state’s evidence. First, Jones stated that he had no explanation for the stick in Yates’s rectum
and speculated that the injuries to her rectum were “[p]ossibly” from “some other guy, not me.”
DE 19-2, Trial Tr., Page ID 6657. Second, Jones did not know how a piece of tissue paper ended
up in Yates’s vagina. Third, Jones could not explain why his broken condom was not found at
the scene. Fourth, Jones denied causing any injuries to Yates’s face and neck. Fifth, Jones
denied leaving the cross found over Yates’s eye or seeing the cross that Delores found in her
jewelry box. And sixth, on cross-examination, the state presented a life-sized doll and asked
Jones to demonstrate how he strangled Yates. Jones did so but “used two hands” (rather than

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one as described in his direct testimony) to demonstrate how he choked Yates. Jones, 984
N.E.2d at 964.
iii. The State’s Rebuttal
On rebuttal, the state recalled Sterbenz. Sterbenz testified that that “it was physically
impossible for Jones to have killed Yates in the manner that he had demonstrated.” Id. The
doctor identified numerous discrepancies that, in his professional opinion, illustrated that Jones’s
version of events was impossible. We list some highlights here.
First, “Sterbenz explained that Jones’s [claimed manner of] placing of his hands on
Yates’s neck and squeezing would not produce the complex pattern of abrasions that were
present on Yates’s neck.” Id. Sterbenz testified that “the severity of the bruising on Yates’s
neck was not consistent with simply squeezing but rather ‘shows a violent act, level of force, []
that is commonly conceived as or interpreted as violent.’” Id. at 965. Second, Sterbenz testified
that the “‘gouging’” or “‘fingernail type’” injuries on Yates’s neck suggested that she
“‘grasp[ed] at [her] neck and also claw[ed] to try to move’” and “‘remove . . . the strangulation
force around her neck.’” Id. at 965. Third, although Jones claimed that he applied “steady
pressure” with “no other movement” to Yates’s neck when they had intercourse, “the autopsy
revealed large bruises on the back of the head that indicated that Yates’s head had been subjected
to a ‘pounding action.’” Id. at 962, 965. Fourth, Sterbenz found unlikely Jones’s story that
Yates went “limp and died immediately.” Id. at 965. According to Sterbenz, “asphyxiation
takes quite a number of minutes to occur, and after unconsciousness occurs, the pressure then
needs to be maintained until death is accomplished.” DE 19-2, Trial Tr., Page ID 6691.
iv. Penalty Phase
On December 17, 2007, the jury convicted Jones on all charges and specifications. The
penalty phase of the trial began on January 10, 2008. Jones called ten mitigating witnesses and
made an unsworn statement.
Siddall testified about Jones’s background, noting his family’s “history of psychiatric,
substance-abuse, and criminal-justice problems.” Jones, 984 N.E.2d at 986. Siddall diagnosed

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Jones with a mood disorder that resulted from a “‘serious history of depression and mood
instability,’” which was “‘associated with repeated suicidal behaviors,’” as well as alcohol and
cannabis abuse and an antisocial personality disorder. Id. at 987. Jones also demonstrated
psychotic behavior and reported hallucinations. Siddall further explained:
Jones has ‘a chronic history of mental illness which has required very expansive
psychiatric treatment while he was incarcerated and in the community.’ Jones has
been repeatedly hospitalized and been treated with antidepressants, mood-
stabilizing drugs, and antipsychotic medications. Jones was also raised in a
family with a long history of psychiatric problems, alcohol and drug abuse,
domestic violence, and involvement with the criminal-justice system. [T]hese
severe problems affect most members of Jones’s family and represent ‘a rather
unusual cluster of very serious problems in a given family.’
Id. at 987–88 (citation modified). Siddall acknowledged, however, that a psychiatrist at
Oakwood Forensic Hospital who treated Jones while he was in prison reported that Jones
malingered his symptoms and that he admitted he falsely reported hearing voices. But Siddall
explained that “malingering in itself does not negate some form of mental disorder.” DE 19-2,
Mitig. Hr. Tr., Page ID 6996. And Siddall countered the Oakwood psychiatrist’s testimony by
noting that he did not “recall in the record discussions of malingering around the other
psychiatric issues that [Jones] experiences,” including “depress[ion], mood swings, . . . [and a]
history of drug abuse.” Id. at 7018. Siddall did concede, however, that the records indicated “a
discussion of malingering or exaggeration or distortion around the psychotic symptoms.” Id.
And, based in part on the Oakwood records, Siddall wrote in his mitigation report that “the
consensus of professional opinion contained . . . in [Jones’s] records suggest[s] that [his]
psychotic symptoms were consciously exaggerated.” DE 19-2, Mitig. Hr. Tr., Page ID 7005–06,
7215.
Nine other witnesses testified on Jones’s behalf, including his mother, Henrietta; Jones’s
sister, Yolanda White; the mother of Jones’s children, Christy Coffe;2 Jones’s two children; the
regional administrator of the Akron parole board; and three pastors close to Jones. Henrietta
testified that Jones suffered from serious mental health problems from a young age, resulting in
2Although Coffe testified during the penalty phase as “Christine Harmel,” she is referred to by her married
name “Coffe” during post-conviction proceedings. DE 19-2, Evid. Hr. Tr., Page ID 7924, 7907.

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multiple suicide attempts. This included one attempt at eight years old where he drank gasoline,
which required his stomach to be pumped, and another attempt where he tried to hang himself.
Yolanda also testified that she remembered, even as a teenager, that Jones reported he was
hearing voices. Other witnesses testified to Jones’s positive influence as a father and
commitment to his Christian faith. Henrietta stated, moreover, that she provided a stable home
for her children, provided for their needs, and that Jones had a close relationship with her and her
deceased husband, Theodorus.
Jones also issued an unsworn statement. He stated that he had abusive childhood,
witnessed domestic violence numerous times, his family abused drugs and alcohol, and was
given marijuana by his brother when he was seven years old. After witnessing this abuse, Jones
started acting out in his teens, resulting in his about three years in juvenile facilities. He tried to
hang himself and was sent to a psychiatric hospital. Jones further recounted how he spent almost
fifteen years in prison as an adult, an experience he described as “hell.” Jones, 984 N.E.2d at
990. Jones also apologized to Yates’s family, although later stated that he accidently killed
Yates and denied “responsibility for . . . beating [Yates], raping her and aggravated murder.” Id.
at 990–91.
C. Procedural History and Post-Conviction Proceedings
The jury recommended that Jones be sentenced to death the day after the mitigation
hearing ended. The trial court accepted the jury’s recommendation and sentenced Jones to death.
On direct appeal, the Ohio Supreme Court affirmed Jones’s conviction and death sentence.
Jones then filed an application to reopen his direct appeal alleging ineffective assistance of
counsel, which the Ohio Supreme Court summarily denied.
Jones filed a petition for post-conviction relief in the trial court while his direct appeal
was pending. The trial court denied Jones’s petition without an evidentiary hearing. On appeal,
the Ohio Court of Appeals affirmed in part, including the trial court’s denial of Jones’s claims
that he received ineffective assistance of counsel during the guilt phase. It reversed and
remanded, however, for the trial court to hold a hearing on Jones’s claim that his counsel had
been ineffective during the penalty phase.

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At the evidentiary hearing, Jones called 12 witnesses, including five experts. Jones did
not testify. Jones introduced affidavits and witness testimony to show that two of Jones’s
brothers performed oral sex on him and forced him to perform it on them, starting as early as
when he was seven years old. Additionally, witnesses testified to the larger atmosphere of sex
abuse within Jones’s family, including that Jones’s father, cousin, and multiple siblings had
sexually abused or attempted to sexually abuse several of his family members.
Jones’s witnesses also testified that his trial counsel failed to uncover additional evidence
of Jones’s family dysfunction. Jones’s sister, Yolanda, stated that Jones was not “shown love
and affection as a child,” that Henrietta would tell him that “she wished she would have aborted”
him, and that Henrietta called them derogatory names, such as “you stupid bitches.” DE 19-2,
Evid. Hr. Tr., Page ID 7834–35. Another sister, Rhonda, noted that Henrietta “beat[] or
whipped” her about four to five days a week, and Jones received similar physical and mental
abuse. Id. at 7737. Other witnesses recounted similar stories about Jones’s parents’ serious drug
and alcohol problems, which resulted in their neglecting Jones and his siblings.
Jones further highlighted that his mitigation investigator, Hrdy, was appointed on
December 5, two days after trial began. During the month or so between being appointed and
the mitigation hearing, Hrdy spent a total of 38 hours investigating, with approximately five
hours interviewing Jones and ten additional hours with others, including family members and
ministers. Jones also noted that Hrdy met with his family members for a limited amount of time,
including during a four-and-a-half-hour group interview with many family members and friends
at Henrietta’s home. Dorian Hall, Jones’s mitigation investigation expert, “opined that an
investigator must begin at least 90 days before jury selection in order to conduct a proper
investigation and was critical of [] Hrdy’s acceptance of the engagement to do work on Jones's
case after jury selection had already begun.” Jones, 2019 WL 385467, at *11. She also
criticized the amount of time Hrdy spent on the mitigation investigation, Hrdy’s method of group
interviewing, Hrdy’s note keeping, and Jones’s attorneys’ portrayal of his father as a positive
role model during the penalty phase. Yolanda and Coffe both, however, indicated that Hrdy had
asked them generally about sex abuse, but neither told him anything. But Coffe explained that
she felt her conversation with Hrdy was “too quick” and “rushed,” and therefore did not think

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she was “given the opportunity to explain correctly” Jones’s and Jones’s family’s sexual abuse
history. DE 19-2, Evid. Hr. Tr., Page ID 7905–06.
Jones also proffered three experts—Bob Stinson, Jeffrey Madden, and Gary Beven—to
challenge his attorneys’ reliance on Siddall. Stinson asserted that Siddall did not spend enough
time—only 4.75 hours—reviewing Jones’s medical records. He testified that “absolutely no way
you can get through [the records] in any meaningful way under five hours,” let alone “under
fifteen hours.” DE 19-2, Evid. Hr. Tr., Page ID 8048. The experts also argued that Jones’s
illness was better categorized as schizoaffective disorder, bipolar type. Stinson noted, however,
that he and Siddall were “actually perhaps not as far off as it may seem” and would not “say[]
[that Siddall] was wrong with the diagnosis of mood disorder.” Id. at 8036. But he did argue
that Siddall “didn’t have enough information to give a complete picture” of Jones’s mental
illness. Id. The experts also challenged Siddall’s concession during the penalty phase that Jones
may have malingered some of his psychotic symptoms. And Beven, Jones’s primary treating
psychiatrist in prison between 1995 and 2003, testified that it “would be a mischaracterization of
eight years of intensive treatment” that Jones “consciously exaggerate[ed] his symptoms,” and
that he did “not believe that [] Jones was predominantly malingering during [his] eight years of
treatment [with] him.” Id. at 7609, 7694, 7719.
All four members of Jones’s mitigation team testified for the state at the evidentiary
hearing. Although Hrdy admitted that he was engaged to work on Jones’s case “late in the
game,” he testified that he felt he had enough time to gather records, interview witnesses, and
prepare for the mitigation hearing. Id. at 8327, 8289–90. And while he conceded there could be
disadvantages to his group interview of Jones’s family members, Hrdy noted that the family
indicated they preferred to be interviewed as a group and that he thought the communal process
was more dynamic and could help trigger memories to facilitate conversation.
Siddall also testified about his process, including his review of Jones’s records, his
interviews with Jones, and his coordination with the rest of the mitigation team. Siddall stated
that he was aware that Jones had previously received different diagnoses but felt it would have
been inappropriate to rely on those diagnoses without doing his own testing. And Siddall
testified that, regardless of Jones’s ultimate diagnosis, the most important thing to note about

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Jones’s condition was that “the core of [his] psychological problems included a depressive
disorder, psychotic like features, and the history of antisocial behavior.” Id. at 8377. Moreover,
although Siddall noted that, “as a rule,” he would generally get records and complete his
mitigation report before trial began, he felt that he had enough time to complete his tasks and
understood that he could have asked for more time if necessary. Id. at 8387–88, 8394–95.
Additionally, each member of the mitigation team stated that they asked either Jones or
his family members about abuse. O’Brien, Hicks, and Siddall all stated that when they asked
Jones whether he was molested or if his family had a history of sexual abuse, he always denied
it. And both O’Brien and Hicks testified that none of Jones’s family members indicated that
Jones or any other members of his family had been sexually abused.
The trial court ultimately rejected each of Jones’s claims and dismissed Jones’s
postconviction petition. It rejected Jones’s claim that his attorneys were ineffective because they
failed to discover the alleged sexual abuse and additional physical and emotional abuse in
Jones’s family. In doing so, it also found several of Jones’s witnesses were not credible and
concluded that much of the credible witness testimony was cumulative to that which was
presented during the penalty phase. The court also rejected Jones’s claim that his counsel were
ineffective because they failed to discover the full extent of Jones’s mental illness. The Ohio
Court of Appeals affirmed, and the Ohio Supreme Court declined jurisdiction to hear the case.
Jones timely filed a federal habeas petition in June 2020, and then a first amended habeas
petition in October 2021. Jones filed his second amended habeas petition in April 2022, which
raised 11 claims. The district court denied Jones’s petition in March 2024 but granted him a
certificate of appealability (“COA”) on five claims and subclaims. Jones moved to expand the
COA, which we denied. Jones then timely appealed the district court’s denial of his writ of
habeas corpus.
II.
Because Jones filed his petition in 2020, it is subject to the standards of the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”). Smith v. Mitchell, 567 F.3d 246, 255 (6th
Cir. 2009). Under AEDPA, habeas relief is unavailable to “any claim that was adjudicated on

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the merits” in a state court proceeding unless the state court’s decision was either “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States”; or “based on an unreasonable determination of the facts in
light of the evidence presented” to the state court. 28 U.S.C. § 2254(d)(1)–(2). To determine
whether the state court decided an issue on the merits, we look to “the opinion of the last state
court to issue a reasoned opinion on the issue.” Moss v. Miniard, 62 F.4th 1002, 1011 (6th Cir.
2023) (citation modified).
A state court decision is contrary to clearly established law where “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 Supreme Court] has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000). “A state court
decision unreasonably applies clearly established federal law if it ‘correctly identifies the
governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.’”
Davis v. Jenkins, 115 F.4th 545, 553 (6th Cir. 2024) (en banc) (quoting id. at 407–08). We
presume that the state court’s factual findings are correct unless the petitioner rebuts them by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Stojetz v. Ishee, 892 F.3d 175, 192 (6th
Cir. 2018).
This standard is difficult to meet. Davis, 115 F.4th at 553. When a state court decided an
issue on the merits, “[f]ederal habeas relief is available only if the state court’s decision was
objectively unreasonable.” Mammone v. Jenkins, 49 F.4th 1026, 1041 (6th Cir. 2022). Thus, to
overcome AEDPA deference, a petitioner must show that the state court’s decision was “so
lacking in justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” White v. Woodall, 572 U.S. 415, 419–20
(2014) (citation modified).
III.
Jones appeals three issues that the district court certified: (1) whether the trial court
violated his Sixth Amendment right to confront witnesses against him when it admitted
Delores’s out-of-court statements through Jeffries’s and Morrison’s testimony; (2) whether trial

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counsel were ineffective during the guilt phase for failing to employ a medical expert to
challenge the state’s expert on the issue of rape; and (3) whether trial counsel rendered
ineffective assistance at the penalty phase for failing to: (a) hire a mitigation specialist until after
voir dire began, (b) properly investigate mitigation evidence of sexual abuse and family
dysfunction, (c) ask questions about specific mitigating factors during jury selection, and (d)
properly investigate or retain experts to present evidence of Jones’s serious mental illness at the
penalty phase. We discuss each issue in turn.
A.
Jones first argues that the trial court violated his Sixth Amendment right to confront the
witnesses against him. Specifically, he alleges that the trial court unconstitutionally allowed
Jeffries and Morrison to testify to out-of-court statements that Delores made to them regarding
what Jones told her about Yates’s death. In 2012, the Ohio Supreme Court denied this claim on
the merits. The court first held that Jeffries’s testimony about what Delores told her did not
violate the Confrontation Clause because her statements were non-testimonial. Second, it
concluded that the admission of Morrison’s testimony violated Jones’s confrontation rights, but
any such error was harmless. Because the Ohio Supreme Court decided this claim on the merits,
it is subject to AEDPA deference. Mammone, 49 F.4th at 1041. The district court rejected
Jones’s claim that the Ohio Supreme Court’s findings were legally and factually unreasonable
under 28 U.S.C. §§ 2254(d)(1) and (d)(2). We agree.
1.
In all criminal prosecutions, the Confrontation Clause guarantees “the accused . . . the
right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. The
Confrontation Clause bars the “admission of testimonial statements of a witness who did not
appear at trial unless [they were] unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53–54 (2004). This
right is not implicated, however, by the admission of non-testimonial hearsay statements. See
Whorton v. Bockting, 549 U.S. 406, 420 (2007). A statement is “testimonial” when its “primary
purpose” is to “create[e] an out-of-court substitute for trial testimony.” Michigan v. Bryant, 562

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U.S. 344, 358 (2011). Thus, a party’s statements “to someone who is not principally charged
with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial
than statements given to law enforcement officers.” Ohio v. Clark, 576 U.S. 237, 249 (2015).3
At trial, Jones asserted his marital privilege to prevent Delores from testifying about their
conversation about the circumstances leading to Yates’s death. The court, however, allowed
Jeffries to testify about her conversation with Delores under the excited utterance hearsay
exception. Jeffries testified that Jeffries entered her home “upset” and “screaming” and
immediately told her that Jones had confessed to murdering Yates. DE 19-1, Trial Tr., Page ID
5941–44. On cross-examination, Jeffries clarified that Delores said Jones had not described
Yates’s death as an accident.
The Ohio Supreme Court determined that Delores’s statements to Jeffries were non-
testimonial. It emphasized that “Delores was crying and hysterical when she told Jeffries that
her husband had told her he killed the woman found in the cemetery.” Jones, 984 N.E.2d at 977.
The court also noted that Delores did not call police until after she spoke to Jeffries about Jones’s
statements. It therefore concluded that “[a]n objective witness would not reasonably believe that
Delores’s statements to her friend while in an emotional state, repeating what her husband had
told her, would be available for later use at trial.” Id.
We agree there is a reasonable argument that Delores’s statements to Jeffries were
nontestimonial and, thus, Jones’s confrontation rights were not violated. Delores spoke to
Jeffries in a panic after frantically entering Jeffries’s home. While Delores conferred with
Jeffries before she called police to report Jones, their conversation was not a “formal police
interrogation intended to establish the facts of a crime committed well in the past” or “create a
record for trial.” United States v. Lundy, 83 F.4th 615, 620–21 (6th Cir. 2023) (quoting Bryant,
562 U.S. at 358). Instead, Jeffries appears to have been motivated by her friendship with
Delores, which is a concern “entirely devoid of an underlying prosecutorial motive.” United
3Although “AEDPA constrains the court to look to the law as clearly established at the time the state
conviction became final,” we “may rely on any later decisions analyzing or explaining the law (as opposed to
creating new law).” West v. Bell, 550 F.3d 542, 552 n.3 (6th Cir. 2008) (internal citations omitted). Thus, to the
extent we rely on cases that postdate the state court opinions adjudicating Jones’s claims, we do so for that reason.

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States v. Ayoub, 701 F. App’x 427, 438 (6th Cir. 2017). What is more, Jeffries was neither
associated with police nor present when Morrison interviewed Delores. And “[s]tatements made
to someone who is not principally charged with uncovering and prosecuting criminal behavior
are significantly less likely to be testimonial than statements given to law enforcement officers.”
Clark, 576 U.S. at 249. We therefore find that the Ohio Supreme Court reasonably concluded
that Delores’s statements to Jeffries were non-testimonial and that Jones’s confrontation rights
were not violated by the admission of Jeffries’s statements.
2.
Jones and the government agree that Morrison’s testimony about Delores’s out-of-court
statements violated Jones’s confrontation rights. The only question on appeal is whether the
Ohio Supreme Court’s conclusion that Morrison’s introduction of Delores’s statements was
harmless beyond a reasonable doubt was reasonable under § 2254(d).
When a state court finds that a constitutional error at trial is harmless beyond a
reasonable doubt, we apply the test from Brecht v. Abrahamson, 507 U.S. 619 (1993), as well as
AEDPA’s deferential standard of review. Brown v. Davenport, 596 U.S. 118, 133–34 (2022).
Under Brecht, a state prisoner challenging his conviction must show that the error caused “actual
prejudice,” such that it had a “substantial and injurious effect or influence” on the outcome of his
trial. 507 U.S. at 637–38 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). We
then “apply the AEDPA standard to a state court’s ‘harmless beyond a reasonable doubt’
assessment of constitutional errors pursuant to [Chapman v. California, 386 U.S. 18, 24
(1967)].” Chandler v. Brown, 137 F.4th 525, 547 (6th Cir. 2025). We must therefore “deny
relief to a state habeas petitioner who fails to satisfy either [Brecht] or AEDPA,” and may only
grant relief if we “find that the petitioner has cleared both tests.” See Davenport, 596 U.S. at 134
(emphasis omitted).
On direct appeal, the Ohio Supreme Court concluded that Delores’s statements to
Morrison violated Jones’s confrontation rights but were harmless beyond a reasonable doubt.
The court emphasized that there was significant other evidence establishing Jones’s guilt,
including that Jones’s DNA was found on vaginal swabs taken from Yates, that police

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discovered a cross on Yates’s face similar to one found in Jones’s home, that Delores’s properly
admitted statements to Jeffries also implicated Jones, and that Jones had previously threatened,
choked, and raped another woman under similar circumstances. The court also noted that Jones
testified himself that he knew Yates and had killed her accidently. Finally, it emphasized that
Sterbenz testified that Yates had been strangled for a long period of time, that Yates had
extensive bruising on her face and neck, that Yates had vaginal injuries that may have been
caused by a fist or large rigid foreign object, and that a twig was found four to six inches inside
Yates’s rectum.
Under Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986), we consider whether a
Confrontation Clause violation was harmless under several factors, “includ[ing] the importance
of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the
presence or absence of evidence corroborating or contradicting the testimony of the witness on
material points, the extent of cross-examination otherwise permitted, and, of course, the overall
strength of the prosecution’s case.” For instance, “[w]e have found inadequately confronted
testimony harmful when the State refers to it in opening and closing statements, and otherwise
indicates its importance to the State’s case; when the witness weighs in on a factual point that
State and defense witnesses dispute; when it bolsters other witnesses’ testimony; and when there
is limited other evidence (and especially no physical evidence).” Miller v. Genovese, 994 F.3d
734, 744 (6th Cir. 2021). This inquiry is ultimately a holistic one. Id. Here, Jones cannot show
that the Ohio Supreme Court’s finding of harmless error was unreasonable under § 2254(d)(1)
for several reasons.
First, there was significant other evidence (including physical evidence) connecting Jones
to Yates’s death. The “overall strength of the prosecution’s case” is the “most critical factor in
[the] harmless error analysis.” England v. Hart, 970 F.3d 698, 715 (6th Cir. 2020). For
example, in McCarley v. Kelly, we emphasized that without the erroneously admitted statements,
“the State’s case would have been almost entirely circumstantial,” “[t]he only physical evidence,
the DNA gathered at the scene, was inconclusive,” and “none of the testimony at trial,” except
for the wrongfully admitted testimony, “included a conclusive identification of” the defendant.
801 F.3d 652, 667 (6th Cir. 2015). Thus, we compared the wrongly admitted testimony “to a

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keystone holding the arch of the State’s case together,” which, when removed, caused the state’s
case to “collapse[] into disjointed pieces.” Id. Here, in contrast, all—including Jones—agree
that he killed Yates. And Morrison merely testified that Delores told him that Jones “killed”
Yates and never opined on whether he did so intentionally. DE 19-1, Trial Tr., Page ID 5884,
5894–5918. Moreover, the state’s case was supported by significant competent evidence,
including Sterbenz’s testimony, Delores’s properly admitted testimony, and probative physical
evidence. Morrison’s testimony about Delores’s unrebutted statements was hardly “the linchpin
of the government’s case, connecting the defendant to the fruits of the crime in a way no other
evidence, testimonial or physical, could.” England, 970 F.3d at 715–16 (citation modified).
Second, Morrison’s testimony was cumulative of and corroborated by other evidence in
the record. “Evidence that is merely cumulative of that already presented does not establish
prejudice.” Id. at 714 (citation modified). “The mere fact,” however, “that one other witness . . .
has testified to a particular fact . . . does not render other testimony on that point ‘cumulative.’”
Vasquez v. Jones, 496 F.3d 564, 576 (6th Cir. 2007) (quotation omitted). While “determining
what constitutes cumulative evidence can be difficult,” “our most frequent formulation of the
standard is that new evidence is not cumulative if it differs both in strength and subject matter
from the evidence actually presented at trial.” England, 970 F.3d at 715 (citation modified).
At trial, Morrison stated that Delores told him that her “husband is the one that killed in
the girl in the cemetery” and that Yates’s name was “Susan.” DE 19-1, Trial Tr., Page ID 5894–
96. This testimony is unrebutted. Indeed, Jones admits that he killed Yates. And Morrison did
not testify that Delores said Jones intentionally killed Yates. Morrison’s testimony thus does not
appear to differ in “strength and subject matter” from the other evidence presented at trial,
England, 970 F.3d at 715 (quotation omitted), which differs from other cases where we found
erroneously admitted testimony to be non-cumulative, see, e.g., Reiner v. Woods, 955 F.3d 549,
559 (6th Cir. 2020) (finding evidence non-cumulative where the two pieces “evidence identified
by the state [were] circumstantial” and “le[ft] inferential gaps in ways that the [the improper]
statements d[id] not”). For the same reason, the third Van Arsdall factor—whether there is
evidence corroborating or contradicting the witness’s testimony on material points—also favors
the state. See id. at 559–60 (noting that this element “largely overlaps” with the cumulativeness

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question). Both parties presented significant evidence corroborating Morrison’s testimony about
Delores’s out-of-court statements, and Jones presented no evidence contradicting them.
Third, Morrison’s improperly admitted testimony was not particularly important to the
state’s case. As Jones admits, “[h]is identity as the person who caused Yates’s death was
undisputed.” CA6 R. 16, Appellant’s Br., at 38. And here, Morrison never explicitly stated that
Delores said Jones intentionally killed Yates. It is true that the state relied on Morrison’s
testimony in both its opening statement and closing argument to suggest that Jones murdered
Yates, which could favor Jones on this point. See Reiner, 955 F.3d at 557 (“A prosecutor’s
heavy reliance on testimony during closing argument evidences its importance in the case.”).
But unlike other cases where we have found the offending testimony important, Morrisons’s
statements were accompanied by Jones’s own admission and significant physical evidence,
suggesting the statements had limited probative value. See Blackston v. Rapelje, 780 F.3d 340,
360 (6th Cir. 2015) (offending testimony important where it “was the linchpin of the state’s
case”); McCarley, 801 F.3d at 666 (offending testimony important where it was referred to
significantly in closing argument and “statements provided crucial narrative details and the only
eyewitness identification of the perpetrator”).
Because Jones admitting killing Yates and there was significant other evidence to support
the verdict, Morrison’s erroneously admitted testimony seemingly had little effect. Thus, we do
not have “grave doubt as to the effect or influence” Morrison’s testimony “might have had on the
jury’s verdict.” England, 970 F.3d at 716. For that same reason, Jones cannot overcome
AEDPA’s significant hurdles, which would require Jones to show that “every fairminded jurist
would agree that [the] error was prejudicial.” Davenport, 596 U.S. at 136 (emphasis in
original).4
4Jones also argues that the Ohio Supreme Court made unreasonable factual determinations under
§ 2254(d)(2) when it (1) considered Jones’s admission that he killed Jones as relevant to the harmless error analysis
and (2) relied on his prior rape conviction because it has little probative value. “But the ‘determinations’ [Jones]
takes issue with are not factual determinations as the Supreme Court has defined them but instead are complaints
about the court's legal analysis.” Hughbanks v. Hudson, 2 F.4th 527, 543 n.1 (6th Cir. 2021) (citing Thompson v.
Keohane, 516 U.S. 99, 109–10 (1995)). We therefore reject Jones’s argument under § 2254(d)(2).

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B.
Jones next argues that his counsel provided ineffective assistance for failing to use an
expert to rebut the state’s finding of rape. Specifically, he contends that that the Ohio Court of
Appeals’ finding that he failed to show prejudice was contrary to clearly established federal law
and an unreasonable application of federal law.
1.
The Sixth Amendment guarantees a criminal defendant the right to the effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 688 (1984). To prevail on a
claim of ineffective assistance, a petitioner “must show both that his counsel’s performance was
deficient and that the deficient performance prejudiced his defense.” Mammone, 49 F.4th at
1049.
We measure counsel’s performance against “an objective standard of reasonableness” as
defined by “prevailing professional norms.” Strickland, 466 U.S. at 688. While Restatements
and ABA Guidelines “can be useful as ‘guides’ to what reasonableness entails,” they are useful
“only to the extent they describe the professional norms prevailing when the representation took
place.” Bobby v. Van Hook, 558 U.S. 4, 7 (2009) (per curiam) (quoting id.). When considering
an ineffective assistance claim, we “must apply a ‘strong presumption’ that counsel’s
representation was within the ‘wide range’ of reasonable professional assistance.” Harrington v.
Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689). And when AEDPA
applies, we are “doubly” deferential to the state court’s decision. Id. at 105. In such cases, “our
task is not to determine whether trial counsel’s performance was deficient.” Hodges v. Colson,
727 F.3d 517, 536 (6th Cir. 2013) (emphasis in original). We ask instead “whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington, 562
U.S. at 105.
When assessing prejudice, we must “ask[] whether it is ‘reasonably likely’ the result
would have been different.” Id. at 111 (quoting Strickland, 466 U.S. at 696). “A reasonable
probability means a ‘substantial,’ not just ‘conceivable’ likelihood of a different result.” Shinn v.
Kayer, 592 U.S. 111, 118 (2020) (per curiam) (quoting Cullen v. Pinholster, 563 U.S. 170, 189

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(2011)). When analyzing prejudice for ineffective assistance claims, we consider “the totality of
the evidence—both that adduced at trial, and the evidence adduced in the habeas proceeding.”
Towns v. Smith, 395 F.3d 251, 257 (6th Cir. 2005) (citation modified).
A state court’s decision is contrary to clearly established law if it “applies a rule that
contradicts the governing law set forth in Supreme Court cases.” Lafler v. Cooper, 566 U.S. 156,
173 (2012) (citation modified). When that occurs, we are “unconstrained by § 2254(d)(1)” and
can review the merits of the petitioner’s claim de novo. Williams, 529 U.S. at 406. The
Supreme Court has emphasized, however, that we must give state-court decisions “the benefit of
the doubt” and that a “readiness to attribute error is inconsistent with the presumption that state
courts know and follow the law.” Johnson v. Genovese, 924 F.3d 929, 935–36 (6th Cir. 2019)
(citation modified). Thus, a state court’s “occasional imprecise or incorrect articulation of
federal law does not run afoul of AEDPA if the state court otherwise properly discussed the
governing law.” Stefanski v. Douglas, 2024 WL 1956213, at *6 (6th Cir. May 3, 2024); see also
Woodford v. Visciotti, 537 U.S. 19, 23–24 (2002) (finding state court’s “imprecise” recitation of
prejudice prong not contrary to federal law where state court decision had otherwise
“painstakingly describe[d] the Strickland standard”); Genovese, 924 F.3d at 934–38 (holding
state court’s decision was not contrary to federal law where it articulated Strickland standard
correctly multiple times and articulated an incorrect prejudice standard—requiring clear and
convincing evidence—only once).
2.
Jones argues that we should not apply AEDPA deference here because the Ohio Court of
Appeals misapplied Strickland’s prejudice prong by incorrectly applying a higher burden of
proof to his claim. Jones focuses on a single sentence from the state court decision: “We
conclude that [] Jones has failed to demonstrate that the outcome of his trial would have been
different if [] Spitz had testified.” Jones, 2011 WL 5869752, at *5. We agree that this could be
construed as requiring Jones to meet a higher burden than Strickland requires. But “when a state
court has already properly recited the Strickland standard, if at all possible, we should not read
language later in its opinion to ‘supplant[] Strickland’ and thus ‘needlessly create internal
inconsistency in the opinion.’” White v. Plappert, 131 F.4th 465, 483 (6th Cir. 2025) (quoting

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No. 24-3356 Jones v. Shoop Page 22
Holland v. Jackson, 542 U.S. 649, 654 (2004) (per curiam)). And, in the context of resolving
this claim, the state court twice properly articulated Strickland’s prejudice prong before omitting
the “reasonable probability” language. Moreover, in reviewing the Ohio Court of Appeals
decision as a whole, it appears to have correctly articulated the prejudice prong in two other
instances and omitted the reasonable probability language in just this case.
Consistent with the Supreme Court’s guidance that we give state courts decisions “the
benefit of the doubt” and presume that “state courts know and follow the law,” we find that the
Ohio Court of Appeals did not misapply Strickland’s prejudice prong. See Holland, 542 U.S. at
654–55 (quotation omitted). Our conclusion follows several of our recent holdings where we
found a state court’s imprecise recitation of Strickland’s prejudice test was not contrary to clearly
established Supreme Court law. For example, in White v. Plappert, we concluded that the state
court’s application of Strickland’s prejudice prong was not contrary to Supreme Court law even
where it concluded that there was no “possible or reasonable chance that the omitted testimony
would have had such an unquestionably favorable impact that it would have changed the impact
of the jury.” 131 F.4th at 483 (emphasis added) (quotation omitted). We reasoned that the “state
court’s usage of an ‘imprecise’ adverb” was not grounds to “upend[] its decision” where another
possible interpretation was reasonable, the state court had already properly recited the Strickland
standard, and taken as a whole, the opinion’s incorrect phrasing “did not put its decision at odds
with Strickland.” Id. at 483–84 (quotation omitted).
Moreover, in Rogers v. Mays, we concluded that a state court’s decision was not contrary
to clearly established Supreme Court law when it found the petitioner could not show prejudice
because he “could not ‘eliminate or completely discredit the State’s’” evidence. 69 F.4th 381,
391–92 (6th Cir. 2023) (en banc) (quotation omitted). We emphasized that “the state court’s
decision closely track[ed] the legal standard prescribed by the Supreme Court” and that the
petitioner could not “‘undermine confidence in the jury’s sentence of death.’” Id. at 392
(quoting Pinholster, 563 U.S. at 190). Likewise, in this case, the state court repeatedly
articulated Strickland’s prejudice prong correctly, including before the contested sentence and in
other sections of the opinion. We therefore decline to “‘needlessly create internal inconsistency’

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by charging the court with applying the incorrect test based on this stray reference.” Stefanski,
2024 WL 1956213, at *6 (quoting Holland, 542 U.S. at 654).
Turning to the merits, the Ohio Court of Appeals rejected Jones’s ineffective assistance
claim because it found no prejudice. It therefore did not reach the deficient performance
question. Because the state court addressed prejudice on the merits, we may only grant Jones
relief under § 2254(d)(1) if the court unreasonably applied clearly established federal law.
Fitzpatrick v. Robinson, 723 F.3d 624, 633 (6th Cir. 2013).
During state post-conviction proceedings, Jones introduced an affidavit from a forensic
pathologist, Dr. Werner Spitz, to support his ineffective assistance claim. Spitz concluded that,
“to a reasonable degree of medical certainty,” Jones did not rape Yates and that their sexual
encounter was consensual. DE 18-2, Spitz Aff., Page ID 1155–57. Spitz argued that there was
no evidence that Jones and Yates had anal intercourse, emphasizing that Yates had not suffered a
rectal injury. Additionally, he found the state’s focus on the twig found in Jones’s rectum was
irrelevant and misleading. This was because that the twig “caus[ed] no noticeable injury,” which
suggested that the twig entered Jones when her body “may have” been “dragg[ed] . . . on the
ground.” Id. at 1156. Spitz speculated that this could have occurred “during alleged
resuscitative efforts,” “at the time the blanket was pulled from under” Yates when she and Jones
were having intercourse, or when Yates’s “body was removed to the Medical Examiner’s
office.” Id.
Spitz also provided an alternative explanation for finding wadded paper in Yates’s
vagina, emphasizing that the autopsy found “no evidence of any trauma” to the vagina or “the
external and internal genitalia.” Id. He noted that he had “seen a number of times where women
have used this technique as an effective means of contraception,” using the tissue paper “as a
‘plug’ to obstruct entry of the sperm.” Id. And he rejected the autopsy’s finding that Yates was
sexually assaulted, concluding instead that her soft tissue contusions “were due to the technique
of organ removal.” Id. Spitz also noted that removing pelvic organs “entails considerable pulling
and tugging.” Id. at 1157. “In the absence of actual organ injury and damage to the overlying
skin, including the perineum,” he concluded “that the pelvic hemorrhage described in the
autopsy report was” caused by the autopsy itself. Id.

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The state court rejected Jones’s claim for lack of prejudice, noting that Spitz’s affidavit
failed to rebut several crucial aspects of the state’s expert evidence. For instance, Spitz did not
attempt to explain how the abrasions and contusions on Yates head were consistent with
consensual sex. Spitz also failed to mention the gouging and fingerprint-type injuries apparent
on Yates’s neck, which suggested that Yates clawed at her own neck to stop Jones from
strangling her. The state court likewise noted that while it may have been possible for a small
twig to have entered Yates when Jones moved her around when allegedly trying to revive her,
“Spitz did not offer an adequate explanation for the fact that the medical examiner discovered the
twig four to six inches inside of her rectum.” Jones, 2011 WL 5869752, at *5. And finally,
Spitz failed to explain why, if something was inserted so far in her rectum to cause internal
bruising, he would expect “actual organ injury” or “damage to the overlying skin, including the
perineum.” Id.
We find that the state court’s conclusion that Jones could not show prejudice was a
reasonable application of federal law. Jones argues that an expert such as Spitz could have better
challenged the coroner’s opinion that he raped Yates. Expert testimony, he says, would allow a
reasonable juror to agree with Spitz that Yates’s injuries were caused by the autopsy procedures,
not rape. But Spitz’s testimony failed to rebut much of the evidence that Jones raped Yates,
which weighs against prejudice. Cf. Hale v. Cool, 122 F.4th 637, 650 (6th Cir. 2024) (noting
that “although we decide[d] [the] case on performance (rather than prejudice) grounds, the
district court’s prejudice-focused analysis of [the petitioner’s] proffered expert report is
nonetheless helpful” because the expert’s “report fail[ed] to rebut much of the state’s evidence”).
Indeed, Spitz did not offer a contrary explanation for the contusions on Yates’s head, the
gouging and fingerprint injuries to Yates’s neck, or why a twig was found four-to-six inches
inside of Yates’s rectum.
Thus, “[e]ven if a court could interpret the record” in Jones’s favor, his “reading of the
facts is not the only one.” Fry v. Shoop, 124 F.4th 1019, 1024 (6th Cir. 2025). In our review,
“we ask only whether a fair-minded jurist could agree with the state court’s assessment of the
record.” Id. And here, even Jones’s hand-picked expert, Spitz, could not rebut much of the
physical evidence that the state presented against him. An objectively reasonable state court

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could therefore find that, even if Jones’s counsel had employed an expert to counter Sterbenz,
there would not be a reasonable probability of a different outcome. In sum, this shows, at most,
“‘fairminded disagreement,’ not a state-court decision gone awry.” Id. (quoting Harrington, 562
U.S. at 103).
Jones further argues that he was prejudiced because the other evidence in the case
supported his claim that he accidently killed Yates. Specifically, he notes that his hands were
uninjured and that forensic testing established that his blood was not under Yates’s fingernails,
which suggests that Yates did not try to fight him off and that their encounter was consensual.
But significant facts also favor the state: Jeffries’s testimony, the prior rape conviction, the
inconsistencies between Jones’s and Delores’s stories, and Sterbenz’s largely unrebutted
scientific evidence all point in the other direction. Thus, even if a defense expert could have cast
some doubt on Sterbenz’s testimony, “the circumstantial evidence against [Jones] could have
allowed the jury to find beyond reasonable doubt that he [raped Yates].” Jackson v. McQuiggin,
553 F. App’x 575, 583 (6th Cir. 2014). And because Jones’s claim fails on the prejudice prong,
we do not consider deficient performance under de novo review. See Neuhard v. United States,
119 F.4th 1064, 1071 (6th Cir. 2024).
C.
Jones makes four arguments challenging his counsels’ performance during the penalty
phase of trial. First, Jones asserts that his trial counsel were ineffective because they waited until
after voir dire began to appoint a mitigation specialist and thus failed to leave enough time to
competently investigate Jones’s background. Second, Jones argues that his counsel failed to
conduct a reasonable investigation into his background before the mitigation hearing, resulting in
their failing to discover evidence of his sexual abuse and the full extent of his family’s
dysfunction. Third, Jones argues that his counsel could not have conducted an effective voir dire
because his mitigation specialist was appointed too late and therefore his attorneys could not
develop an adequate mitigation theme. Fourth, Jones asserts that his counsel failed to properly
investigate or retain experts to present evidence of his severe mental illness during the penalty
phase. Because Jones’s first and second arguments involve similar issues regarding his counsels’

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investigation into his mitigating circumstances, we consider them together. We address the
remaining arguments in turn.
1.
Jones argues that his trial counsel failed to conduct a reasonable investigation for the
penalty phase of trial, which resulted in their failing to discover significant evidence of sexual
abuse in his family and childhood trauma. Jones also argues that his trial counsel were
ineffective because they waited to have a mitigation specialist appointed until after voir dire
began, which meant there was not enough time to do a competent investigation. The Ohio Court
of Appeals rejected this claim on the merits, holding that Jones failed to show deficient
performance. Finding that Jones’s attorneys were not deficient, the court did not address
whether Jones was prejudiced. Jones challenges this conclusion as an unreasonable application
of law. Because the state court adjudicated the performance question on the merits, we apply
AEDPA deference to its holding. Fitzpatrick, 723 F.3d at 639. This means that we must affirm
the state court’s decision if “there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Harrington, 562 U.S. at 105.
Jones asserts that his trial counsel were ineffective because they failed to discover details
regarding “the rampant sex abuse suffered by Jones as a youth” and his family’s “history of
severe and pervasive dysfunction.” CA6 R. 16, Appellant’s Br., at 48. Jones introduced
evidence during his state post-conviction hearing that suggests he suffered from an unimaginably
traumatic childhood. Jones presented testimony and affidavits indicating that, from as early as
seven years old, his own brothers molested him; his father molested one daughter and tried to
molest two others; one brother sexually assaulted Jones’s niece; another brother raped and
impregnated his then-girlfriend; and that he witnessed one of his brothers anally rape another
brother, only after failing to molest Jones first. Moreover, Jones presented evidence that his
attorneys’ investigation failed to uncover the full extent of his family’s dysfunction. This
includes evidence that Jones was neglected from birth, in part because his parents and siblings

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suffered from serious drug and alcohol problems; that Jones was neglected and subjected to
physical and emotional abuse; and that he and his siblings had to steal in order to eat.5
We must conclude, nonetheless, that the Ohio Court of Appeals’ conclusion that Jones’s
attorneys were not deficient was not an unreasonable application of law. Counsel has “a duty to
make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Strickland, 466 U.S. at 691. A petitioner can show that his trial
counsel were ineffective because they “fail[ed] to conduct an adequate investigation of a
defendant’s family background and mental health history.” Hill v. Mitchell, 842 F.3d 910, 939
(6th Cir. 2016). But “Strickland does not require counsel to investigate every conceivable line of
mitigating evidence no matter how unlikely the effort would be to assist the defendant at
sentencing.” Wiggins v. Smith, 539 U.S. 510, 533 (2003). Crucially, under AEDPA review, our
precedent “distinguishe[s] between counsel’s complete failure to conduct a mitigation
investigation, where we are likely to find deficient performance, and counsel’s failure to conduct
an adequate investigation, where the presumption of reasonable performance is more difficult to
overcome.” Mitchell, 842 F.3d at 939 (quotation omitted) (alteration in original). Under this
highly deferential standard, “the state court ha[s] wide ‘latitude’” to hold that a petitioner’s
“lawyers performed competently.” DeBruyn v. Douglas, 168 F.4th 913, 925 (6th Cir. 2026)
(quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).
A fair-minded jurist could conclude that Jones’s trial attorneys performed a competent
investigation during the mitigation phase of Jones’s trial. Indeed, “[t]he trial court found that the
credible testimony in this case showed that all four members of the mitigation team asked about
sexual abuse and that they were all met with denials.” Jones, 2019 WL 385467, at *13. Hicks
met with Jones approximately “fifty or sixty times” during the representation. DE 19-2, Evid.
Hr. Tr., Page ID 8416–17. O’Brien met with Jones consistently as well, approximately once a
week for the almost seven months that he represented him. Both Hicks and O’Brien asked Jones
5The trial court found several of Jones’s witnesses—including some who testified about Jones’s own
sexual abuse and sexual abuse in Jones’s family—to be uncredible. The Ohio Court of Appeals affirmed these
findings on appeal. But evidence of Jones’s family’s history of sexual abuse was also introduced through other
witnesses that the trial court found credible, including Coffe, two pastors, Jones’s niece, and several of Jones’s
experts. We therefore assume that this evidence is properly before us, but still, for the reasons discussed, reject
Jones’s ineffective assistance claim on the merits.

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whether he was sexually abused, which he consistently denied. Siddall, Jones’s expert in
forensic psychiatry, likewise asked Jones about whether he was sexually abused or whether there
was sexual abuse in his family, which he similarly denied. And Hrdy, Jones’s mitigation
investigator, asked numerous members of Jones’s friends and family, including Jones’s mom,
two of his sisters, the mother of Jones’s children, and two of Jones’s children, about whether
Jones had suffered any abuse. None indicated that Jones had suffered anything more than
physical abuse. And both Henrietta and Coffe admitted that Hrdy asked them about whether
there was any family history of sexual abuse but neither shared any information with him.
Hicks and O’Brien also communicated often with members of Jones’s family while
developing Jones’s mitigation case. Hicks indicated that he spoke to Yolanda, Jones’s sister,
“probably a couple dozen times,” including “eight or ten, maybe a dozen times” in person. Id. at
8422–23. Hicks also dealt extensively with Jones’s mother, Henrietta. Moreover, Hicks,
O’Brien, and Hrdy met two or three times with members of Jones’s family at O’Brien’s office.
Hicks explained that “[t]here were times when there were probably six or eight family members
and friends who would come and . . . we would learn information from each of them.” Id. at
8429. And O’Brien testified that he asked the family about whether “there [was] any physical
abuse,” “emotional or mental retardation,” “sex abuse,” or if any relatives had “molested” Jones.
Id. at 8467–68. Coffe confirmed this, noting that the family discussed the issue of “sexual abuse
in the family” after one of their meetings. Id. at 7917. But in all these circumstances, neither
Jones nor his family or friends disclosed any of this information to the mitigation team.
Moreover, Jones’s attorneys and Hrdy obtained Jones’s available school, correctional,
and medical records. Siddall reviewed those records and met with Hrdy to learn about Jones’s
history as developed from family interviews. O’Brien testified that he reviewed all these records
as well. Siddall likewise interviewed Jones twice for seven hours total. Siddall used those
records and his interviews to diagnose Jones and testified at length during the penalty phase
about Jones’s background, mental illness, suicide attempts, and mental state. And Jones has not
identified which of Jones’s records his counsel should have reviewed to learn about his or his
family’s history of sexual abuse or the full extent of their dysfunction.

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Thus, we find Jones’s case analogous to those circumstances considered by the Supreme
Court in Van Hook. There, the Supreme Court rejected the petitioner’s claim—under de novo
review—that counsel’s mitigation investigation was ineffective. 558 U.S. at 11–12. During the
penalty phase, the petitioner’s attorneys presented evidence of his traumatic childhood, substance
abuse, and personality disorder. Id. at 10–11. But the petitioner challenged his counsel’s
“fail[ure] to find more” from other family members and a psychiatrist, “all of whom ‘could have
helped his counsel narrate the true story of [the petitioner’s] childhood experiences.’” Id. at 11.
The Supreme Court rejected the petitioner’s claim, reasoning that his lawyers had already found
evidence “from those closest to [the petitioner’s] upbringing and the experts who reviewed his
history” and therefore “it was not unreasonable for his counsel not to identify and interview”
every other potential source of information. Id. Same here: “It was reasonable for [Jones’s]
lawyer[s] to assume that those closest to” him—his immediate family and clergy member
friends—“would have the most detailed information about [his] life[] and would provide the
most compelling testimony as a result.” Caudill v. Conover, 881 F.3d 454, 462 (6th Cir. 2018).
This is also “not a case in which the defendant's attorneys failed to act while potentially
powerful mitigating evidence stared them in the face or would have been apparent from
documents any reasonable attorney would have obtained.” Van Hook, 558 U.S. at 11 (citations
omitted). As Jones admits, “evidence of [his] sexual abuse was not contained in easy-to-access
records.” CA6 R. 22, Reply Br., at 13. This case is therefore analogous to Strickland itself, in
which “defense counsel’s ‘decision not to seek more’ mitigating evidence from the defendant’s
background ‘than was already in hand’ fell “well within the range of professionally reasonable
judgments.’” Van Hook, 558 U.S. at 11–12 (quoting Strickland, 466 U.S. at 699).
Jones’s arguments to the contrary are unpersuasive. He first argues that counsel failed to
develop a relationship of trust with Jones’s family and friends. Jones maintains that “it is
paramount for [an] investigator to become familiar with the witnesses so that they feel
comfortable enough to disclose uncomfortable truths.” CA6 R. 16, Appellant’s Br., at 49. While
that may reflect an ideal attorney-client relationship, Jones cites no caselaw indicating that the
Sixth Amendment right to counsel requires an attorney to develop “trust” with a criminal
defendant and his family. Indeed, the Supreme Court has held that the Sixth Amendment right to

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counsel does not guarantee a criminal defendant a “meaningful attorney-client relationship.”
Morris v. Slappy, 461 U.S. 1, 14 (1983); see also McGill v. Shinn, 16 F.4th 666, 690 (9th Cir.
2021).
Jones next contends that his attorneys’ mitigation investigation was necessarily deficient
because Hrdy was not appointed as mitigation specialist until after voir dire began. But the
Supreme Court has never held that hiring a mitigation specialist in a capital case is a requirement
of effective assistance of counsel. See Jells v. Mitchell, 538 F.3d 478, 495 (6th Cir. 2008). We
instead apply a “case-by-case approach to determining whether an attorney’s performance was
unconstitutionally deficient under Strickland.” Rompilla v. Beard, 545 U.S. 374, 394 (2005)
(O’Connor, J., concurring). We merely consider whether an attorney’s mitigation investigation
reflects “reasonable professional judgment.” Strickland, 466 U.S. at 690.
The record does not show that the timing of the mitigation investigation was objectively
unreasonable. The grand jury supplemented the indictment against Jones to include a death
penalty specification a little less than a month-and-a-half before trial. Two days later, Jones’s
attorneys requested funds to obtain Siddall; two weeks later, over two months before the penalty
hearing began, they requested funds to retain a mitigation expert. True, as Hrdy himself
admitted, he was “appointed rather late in the game.” DE 19-2, Evid. Hr. Tr., Page ID 8327.
But the record shows that Hrdy, O’Brien, and Hicks all interviewed numerous members of
Jones’s family and friends before the penalty phase hearing. While Hrdy may have only spent
approximately ten hours interviewing Jones’s family, Hrdy and O’Brien also specifically
questioned Jones and his family and friends about his and the family’s history of abuse. Siddall
likewise produced a mitigation report and testified about Jones’s low-range IQ and academic
struggles, criminal history, history of depression, mood disorder, antisocial personality disorder,
reported hallucinations, multiple suicide attempts, self-harm, and psychiatric treatments. And
Jones, Henrietta, and Yolanda each testified about Jones’s mental health problems, difficult
childhood, and suicide attempts. The state court’s conclusion that the timing of counsels’
investigation did not make their performance deficient was therefore not objectively
unreasonable. See Mammone, 49 F.4th at 1041.

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The investigation was also not deficient merely because Hicks and O’Brien failed to
“talk[] to seven other witnesses who could have confirmed the abuse in Jones’s household.”
CA6 R. 16, Appellant’s Br., at 53. When AEDPA deference applies, counsel’s failure to “speak
with each and every one of [a petitioner’s] siblings and immediate family members” does not
constitute deficient performance. White, 131 F.4th at 487; see also Drummond v. Houk, 797
F.3d 400, 405 (6th Cir. 2015). Here, Jones’s counsel determined that they had enough
information after speaking with Jones’s mother, at least two of his siblings, the mother of his
children, children, and clergyman, among others. From these sources, counsel obtained evidence
about Jones’s exposure to physical abuse, suicide attempts, mental illness, struggles in school,
and substance abuse history.
Counsel, of course, “has a duty to conduct an independent investigation regarding
mitigating evidence regardless of the defendant’s reluctance to investigate and disclose such
evidence.” Black v. Bell, 664 F.3d 81, 104 (6th Cir. 2011). This means that “counsel cannot rely
solely on information provided by the defendant and his family in determining the extent of a
proper mitigation investigation.” Id. But, as we have already noted, no “evidence of Jones’s
sexual abuse was contained in easy-to-access records.” CA6 R. 22, Reply Br., at 13. After
reviewing the records and talking to Jones and Jones’s family and friends, counsel reasonably
concluded that there was “no indication that these other family members were harboring
‘potentially powerful mitigating evidence’ that counsel should have known about.” White, 131
F.4th at 487 (quoting Van Hook, 558 U.S. at 11). For this reason, it was not unreasonable for
Jones’s counsel “not to identify and interview” the seven other witnesses that Jones identifies.
Van Hook, 558 U.S. at 11.
In sum, the state court’s adjudication of the performance prong was not “so lacking in
justification that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. Because we reject
Jones’s deficient performance claim under AEDPA’s deferential review, we do not address
prejudice under de novo review. Hodges, 727 F.3d at 545.

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2.
Jones next argues that his trial counsel were ineffective because they did not complete
their mitigation investigation before jury selection began, which means that they could not
conduct a meaningful voir dire. The state court held on the merits that Jones’s attorneys were
not ineffective because their decision not to ask specific questions about Jones’s mitigating
factors “may have been a tactical decision” that was consistent with Jones’s sole defense at trial
that he accidently killed Yates. Jones, 2019 WL 385467, at *6. Because it rejected Jones’s
claim on performance grounds, the state court did not address whether he was prejudiced. The
district court concluded that the state court’s decision was not unreasonable.
We afford trial counsel’s voir dire strategy significant deference. Haight v. Jordan, 59
F.4th 817, 833 (6th Cir. 2023) (per curiam). Indeed, “[a]n attorney’s actions during voir dire are
considered to be matters of trial strategy” and “cannot be the basis for a claim of ineffective
assistance unless counsel’s decision is shown to be so ill-chosen that it permeates the entire trial
with obvious unfairness.” Hughes v. United States, 258 F.3d 453, 457 (6th Cir. 2001). To
overcome the presumption that trial counsel’s voir dire performance was based on “sound trial
strategy,” Jones must show that “[t]he trial strategy itself” was “objectively unreasonable.”
Miller v. Francis, 269 F.3d 609, 616 (6th Cir. 2001).
Jones cannot overcome this significant hurdle. The state court reasonably found that
Jones’s counsel may have limited questions to jurors about mitigating factors because Jones’s
sole defense at trial was that he accidently killed Yates. Jones consistently represented to his
attorneys and testified at trial that he accidently killed Yates during rough sex. Defense counsel
reiterated this theory during trial. Read in context, Jones’s counsel “appear[s] to have been
pursuing a consistent and reasonable strategy” that did not “permeate the entire trial with obvious
unfairness.” Keith v. Mitchell, 455 F.3d 662, 676 (6th Cir. 2006) (citation modified). What is
more, counsel did ask potential jurors their general views about mitigation and the death penalty
at voir dire. Moreover, “neither of Jones’s defense counsel testified regarding the defense’s
strategy during jury selection nor were they asked any questions regarding that strategy on direct
or cross-examination” at the post-conviction evidentiary hearing. Jones, 2019 WL 385467, at
*6. Jones ultimately has the burden to rebut the presumption that his attorneys’ performance

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amounted to objectively unreasonable trial strategy. Stojetz, 892 F.3d at 194. And “where a
defendant presents no evidence to counteract this presumption and the record is silent as to the
rationale behind his counsel’s performance, an ineffective-assistance-of-counsel claim must be
rejected under Strickland’s performance requirement.” Id. at 195 (citation modified).
Nor were Jones’s attorneys required to request a continuance because they had conducted
a limited mitigation investigation before voir dire. It is true that “counsel’s failure to make a
reasonable investigation of a defendant's psychiatric history and family background, and to
present mitigating evidence to the jury at sentencing, can constitute ineffective assistance.”
Clark v. Mitchell, 425 F.3d 270, 284 (6th Cir. 2005). But the state court found that Jones’s
counsel “had information about Jones’s background, education, family history and mental health
through competency evaluations[,] interviews[,] and records” before jury selection began. Jones,
2019 WL 385467, at *6. And “Jones’s counsel testified at the post-conviction hearing that they
had incorporated information regarding Jones’s family history, background, and mental health
issues into the defense at both the trial and the mitigation phase[s].” Id. Jones has not
challenged these factual determinations on appeal. Jones therefore cannot overcome AEDPA’s
doubly deferential standard to show that his counsel were deficient for failing to request a
continuance. See Jells, 538 F.3d at 496–97.
Even if we were to find Jones’s attorneys’ voir dire performance objectively
unreasonable, we would still reject Jones’s claim for lack of prejudice under de novo review. To
establish prejudice, Jones must show “‘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.’”
Keith, 455 F.3d at 677 (quoting Strickland, 466 U.S. at 694). We have previously given
deference to counsel’s performance where “trial counsel[] fail[ed] to ask specific questions”
during jury selection. Id. For example, in Stanford v. Parker, we found counsel’s failure to ask
jurors life-qualifying questions did not cause prejudice when “there [was] no evidence that any
potential jurors were inclined to always sentence a capital defendant to death” and “nothing in
the record indicate[d] that counsel’s failure to ask [such] questions led to the impanelment of a
partial jury.” 266 F.3d 442, 455 (6th Cir. 2001). Similarly, here, Jones does not say which

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prospective jurors he would have struck or which ones he would have tried to retain. Nor does
he “dispute that he was convicted and sentenced by an impartial jury, and he presents no reason
to think that a jury composed of a slightly different set of impartial jurors would have reached a
different verdict or sentence.” Keith, 455 F.3d at 678. We therefore reject Jones’s claim that his
counsel were ineffective because they did not conduct a meaningful voir dire.
3.
We finally address Jones’s claim that his attorneys were ineffective because they failed to
properly investigate and present expert testimony during the penalty phase. Jones specifically
argues that his counsel were deficient because they failed to present testimony that he suffers
from schizoaffective disorder, bipolar type, and that they did not properly rebut the state’s
allegations of malingering.
i.
The Ohio Court of Appeals rejected this claim on the merits, concluding that Jones’s state
post-conviction expert testimony was cumulative to evidence presented by Siddall during the
penalty phase. Thus, without deciding whether counsel were deficient, the court rejected Jones’s
claim because he failed to show prejudice. AEDPA therefore applies to the state court’s
conclusion. Rayner v. Mills, 685 F.3d 631, 638 (6th Cir. 2012). Seeking to overcome this
deference, Jones argues this holding was an unreasonable determination of the facts and an
unreasonable application of the law under § 2254(d). We disagree.
To demonstrate that a state court decision was based on an unreasonable determination of
the facts, Jones must show that the underlying facts found “were not just debatable or incorrect
but ‘unreasonable—a substantially higher threshold’ for obtaining relief.’” DeBruyn, 168 F.4th
at 927 (quoting Shoop v. Twyford, 596 U.S. 811, 819 (2022)). We presume that a state court’s
factual findings are correct and may only be rebutted by “clear and convincing evidence.” 28
U.S.C. § 2254(e)(1). Under federal habeas review, we may not supersede a state court’s factual
determination just because “reasonable minds reviewing the record might disagree about the
finding in question.” Brumfield v. Cain, 576 U.S. 305, 314 (2015) (citation modified). The Ohio
Court of Appeals concluded that Siddall’s testimony was “consistent with and cumulative of”

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Stinson’s and Beven’s testimony. Jones, 2019 WL 385467, at *17. Jones specifically takes
issue with the state court’s conclusion that testimony was cumulative, at least in part, because it
concluded that Jones’s “mental illness is inextricably wrapped around his anti-social personality
disorder.” Id.
The state court of appeals’ factual determination was not unreasonable. At the penalty
phase, Siddall testified that Jones’s condition resulted from his “serious history of depression and
mood instability,” which was “associated with repeated suicidal behaviors,” alcohol and
cannabis abuse, and an antisocial personality disorder. Jones, 984 N.E.2d at 987. During post-
conviction proceedings, Siddall acknowledged that, by only diagnosing Jones with antisocial
personality disorder, he was aware that diagnosis differed from some of Jones’s other treating
doctors in the hospital and prison systems. He nonetheless felt that the “important” thing to take
away from his testimony was that Jones suffered from serious “psychological problems,” which
“included a depressive disorder, psychotic like features, and the history of antisocial behavior.”
DE 19-2, Evid. Hr. Tr., Page ID 8377. Siddall testified that, in describing Jones’s symptoms to
the jury, he did not think the “label[]” was most important but rather the “symptoms” associated
with his condition. Id. at 8379.
Moreover, Stinson testified that his and Siddall’s diagnoses were “actually perhaps not as
far off as [they] may seem.” Id. at 8036. And he stated that Siddall was not “wrong with the
diagnosis of a mood disorder” and that he had “no problem” with Siddall’s diagnosis of
“antisocial personality disorder.” Id. at 8036–37. Beven agreed that there is “an overlap” of
symptoms between schizoaffective disorder and a mood disorder. Id. at 7666. Beven also
explicitly noted that, while Jones was incarcerated, he and another doctor had disagreed about
whether “Jones was primarily somebody that had antisocial personality disorder or traits, as
opposed to [Beven’s] opinion which was that [Jones] indeed [had] those traits as part of his
character, but the predominant problem was that of his schizoaffective disorder.” Id. at 7655.
Given this testimony, the state court did not unreasonably interpret the evidence by adopting the
government’s view and concluding that Siddall’s and Jones’s post-conviction experts’ testimony
were cumulative and consistent with each other.

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Jones argues that the state court erred in determining the facts because it adopted the
state’s view of the evidence. For example, he notes that Stinson testified that schizoaffective
disorder differs from a traditional mood disorder like antisocial personality disorder because “it
is also a thought disorder[] [that] has a component of psychosis.” DE 19-2, Evid. Hr. Tr., Page
ID 8010. Thus, a schizoaffective diagnosis means that a person also suffers from symptoms like
“delusional belief[s]” or “hear[ing] voices that are not really there.” Id. Beven also disagreed
that the differences between schizoaffective disorder and antisocial personality disorder were
“just names” and felt they were instead “separate diagnoses that connote two very different
things.” DE 19-2, Evid. Hr. Tr., Page ID 7657. But Siddall testified during mitigation that
“there was a consensus in the record” that Jones suffered from “psychotic symptoms,” including
“hallucinations” and “[h]earing voices.” DE 19-2, Mitig. Hr. Tr., Page ID 7006. And he agreed
that Jones’s symptoms of “auditory hallucinations[] or hearing voices . . . indicat[ed] that [they]
first manifested itself when he was a youngster.” Id. at 7024–25. Thus, while we acknowledge
“the conflicting expert evidence,” the state court did not “make a clear and convincing factual
error” by “choos[ing] to credit” the government’s “permissible view of the evidence.” Debruyn,
168 F.4th at 927–28; see also Hill v. Shoop, 11 F.4th 373, 389 (6th Cir. 2021) (en banc)
(“[F]aced with two reasonable interpretations of evidence, we cannot say that the state court’s
decision to go with one over the other was unreasonable.”).
For similar reasons, the state court’s conclusion that there was no prejudice because
Siddall’s testimony was cumulative to Stinson’s and Beven’s was not an unreasonable
application of clearly established law. To find prejudice based on counsels’ performance at the
penalty phase, a defendant must show “a reasonable probability that, absent counsel’s errors, the
sentencer would have concluded that the balance of aggravating and mitigating circumstances
did not warrant death.” Thornell v. Jones, 602 U.S. 154, 163 (2024) (citation modified). To
succeed, “the additional, unpresented evidence” must “‘differ[] in a substantial way—in strength
and subject matter—from the evidence actually presented.’” White, 131 F.4th at 494 (quoting
Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir. 2005) (alteration in original).
As surveyed above, the state court reasonably concluded that Jones’s post-conviction
expert testimony was consistent with and cumulative to Siddall’s testimony during the penalty

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phase. Indeed, the jury had already heard from Siddall that Jones suffered from serious
psychological problems, including a depressive disorder, psychotic-like features, and a history of
antisocial personality disorder. It is true that Beven, as Jones’s treating physician for eight years,
may have presented a more compelling rebuttal to the state’s allegations of malingering. But we
cannot say that the new expert testimony “differs in a substantial way—in strength and subject
matter—from the evidence actually presented.” White, 131 F.4th at 494 (citation modified). We
therefore hold that a fair-minded jurist could conclude that Jones was not prejudiced by his
counsels’ alleged failure to discover the extent of his mental illness. See Harrington, 562 U.S. at
112.
ii.
Even if the Ohio Court of Appeals erred on prejudice, Jones’s claim would still fail
because he cannot show deficient performance under de novo review. “Mere disagreement
between experts does not serve as an appropriate basis upon which to grant habeas relief.”
Hughbanks v. Hudson, 2 F.4th 527, 545 (6th Cir. 2021) (citation modified); see also Mammone,
49 F.4th at 1052 (“[S]electing an expert is the classic example of a strategic choice made by
counsel.”). Where a petitioner “presents ‘no evidence that [an expert] was incompetent, or that
[his] lawyers had any reason to question [the expert’s] professional qualifications,” a petitioner
cannot show that counsel was deficient for relying on that diagnosis. Hughbanks, 2 F.4th at 545
(quoting Campbell v. Coyle, 260 F.3d 531, 555 (6th Cir. 2001)).
Jones has not shown that Siddall was incompetent or professionally unqualified.
Although Jones contends that Siddall’s 4.75 hours spent reviewing the records rendered his
diagnosis “inaccurate,” CA6 R. 16, Appellant’s Br., at 67, he does not argue that Jones’s lawyers
“had any reason to question” Siddall’s competency or qualifications, Hughbanks, 2 F.4th at 545.
No one disputes that Siddall was a qualified mitigation expert. Indeed, he is a licensed clinical
and forensic psychologist who has performed hundreds of evaluations on individuals in criminal
and civil settings. And he has been appointed as a mitigation expert in fifteen to twenty capital
cases dating back to the 1980s. Moreover, Siddall submitted his bill to O’Brien for his services
after the mitigation hearing, which indicates that Jones’s attorneys had no reason to question the
exact amount of time Siddall spent reviewing the records.

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At bottom, Jones’s challenge to Siddall is that his diagnosis—that Jones suffered from
antisocial personality disorder rather than schizoaffective disorder, bipolar type—was
“inaccurate.” CA6 R. 16, Appellant’s Br., at 67. But mere “disagreement in diagnoses is not
sufficient to render counsel[s’] performance deficient.” Hughbanks, 2 F.4th at 545. Jones’s
counsel were therefore “entitled to rely on” Siddall’s “opinions and conclusions” at the
mitigation hearing. Mammone, 49 F.4th at 1052; see also Lewis v. Alexander, 11 F.3d 1349,
1353 (6th Cir. 1993).
Jones also argues that his attorneys were deficient because they failed to review Jones’s
prison records, which he says were necessary to rebut the state’s allegations that Jones
malingered his psychotic symptoms.6 Jones analogizes his case to Rompilla, where the Supreme
Court held that a petitioner’s lawyers were deficient because they failed to review mitigating
evidence in his criminal records even though they knew that the state “intended to seek the death
penalty by proving [the petitioner] had a significant history of felony convictions indicating the
use or threat of violence.” 545 U.S. at 383, 390. Here, Jones says that his trial counsel were
deficient because they were aware that the government would rely on the Oakwood Report—
housed in the Department of Rehabilitations and Corrections records—to show Jones malingered
his psychotic symptoms. He contends his attorneys would have found Beven’s records if they
had reviewed those same files, and that calling Beven as a mitigation witness was necessary to
properly rebut the malingering charge.
We find Rompilla inapplicable here. Rompilla requires that counsel “make reasonable
efforts to obtain and review material that counsel knows the prosecution will probably rely on as
evidence of aggravation at the sentencing phase of trial.” Id. at 377. While Jones argues his
“[c]ounsel did not supply Siddall with all the important records,” CA6 R. 22, Reply Br., at 12,
the record does not show that Jones’s counsel or Siddall failed to review the prison file
containing the Oakwood Report. It is true that Siddall testified that some records came in “late”
and that he generally receives records before a capital trial “as a rule.” DE 19-2, Evid. Hr. Tr.,
6Jones more fully developed this specific argument during oral argument. There, the state argued that this
claim was waived because it was not fairly presented in Jones’s habeas petition and appellate briefing. We need not,
however, decide whether the argument is waived because we reject it here on the merits.

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Page ID 8394, 8402. But Siddall testified that he received “[t]he comprehensive records,” which
“would have included everything from school records to medical records to psychiatric or
correctional records.” Id. at 8364. This included the Oakwood Report—part of the Ohio
Department of Rehabilitations and Corrections records—which Siddall indicated he relied on in
drafting his mitigation report. And Siddall testified that he was “able to read and see the
diagnoses that the other doctors had given” when he “reviewed all the records from the hospitals
and the prison system.” Id. at 8375. Moreover, O’Brien stated that he reviewed the records as
well.
Jones’s case is also distinguishable from Rompilla because the new evidence there
created a completely different mitigation strategy than what was presented during the penalty
phase. 545 U.S. at 390–91. In Rompilla, the relevant file led to “a range of mitigation leads that
no other source had opened up” and presented petitioner’s background “very differently from
anything defense counsel had seen or heard.” Id. at 390. Here, in contrast, counsel was aware of
and prepared to rebut the malingering charge. Indeed, Siddall extensively argued that whether a
person has malingered is often independent of whether that person suffers from psychological
problems. While Siddall concluded that the “consensus of professional opinion” “contained in
[Jones’s] records suggest[ed] that [his] psychotic symptoms were consciously exaggerated[,]”
DE 19-2, Mitig. Hr. Tr., Page ID 7005–06, 7215, he testified numerous times that “malingering
in itself does not negate some form of mental disorder,” id. at 6996; see also id. at 7018
(testimony attempting to limit the government’s malingering charge to “psychotic symptoms”
and pointing out that there were no “discussions” in the record “of malingering around the other
psychiatric issues that [Jones] experiences”); id. at 7024 (testimony that “malingering can co-
exist along with legitimate mental health problems” and agreeing that “malingering itself doesn’t
necessarily negate those underlying mental illnesses”); id. at 7028 (testimony rebutting state’s
malingering charge and noting that malingering “does not necessarily negate the fact that [a
person] has legitimate psychiatric problems”). Rompilla involved counsel’s failure to find “a
range of mitigation leads that no other source had opened up.” 545 U.S. at 390. Counsel’s
failure here to present additional mitigation evidence to combat Jones’s alleged malingering,
including their failure to call Beven as a witness, is clearly distinguishable.

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No. 24-3356 Jones v. Shoop Page 40
IV.
For the foregoing reasons, we affirm the district court’s judgment and deny Jones’s
petition for writ of habeas corpus.

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