Full opinion text
BOGGS, J., delivered the opinion of the court, in which ALAN E. NORRIS, J., joined. MOORE, J. (pp. 356-357), delivered a separate dissenting opinion. OPINION BOGGS, Circuit Judge. Ricky Bell, a warden for the State of Tennessee, appeals from the district court’s grant to Robert Coe of a writ of habeas corpus, which vacated his murder conviction and death sentence. Coe cross-appeals from the district court’s denial of habeas corpus on several other grounds he raised below. On the state’s appeal, we reverse on all counts. On Coe’s cross-appeal, we affirm on all counts. I A Cary Medlin, an eight-year-old girl, was murdered in 1979. She disappeared at around 5:30 p.m. on September 1 while riding bicycles with her eight-year-old step-brother, Michael. She was seen talking to a man in a brown car, and then getting into the car. At trial, Michael identified the driver of the car as Coe. Medlin’s body was. discovered the next day at about 2:00 p.m. She had been raped, sodomized, strangled, and stabbed in the neck, in that order. The list of suspects was initially quite long, and at least one other suspect was taken into custody, though he was released for lack of evidence. The search for the killer soon focused on Coe, who was arrested on September 4th while waiting to take a bus to Georgia under an assumed name. Shortly after arriving at the police station, Coe confessed. He was interrogated, and he offered details of the crime. On the 5th, Coe led officers on a trek to retrace his steps in committing the murder. He pointed out a house where a witness had seen him and his victim, though the witness could identify only the victim, Medlin, as having been in a car that drove by. On the 7th, Coe gave a statement in which he gave the following account of the events leading to Medlin’s death. Coe said that he took Medlin to the spot where her body was eventually found. He exposed himself to her, fondled her, masturbated in front of her, and got on top of her, though he was vague as to what the latter action entailed. At that point, Medlin told Coe that Jesus loved him, a statement that he said caused him to snap. He tried to choke her, and when that did not work, he stabbed her and watched her bleed to death. He then disposed of her body, her shoes, and the knife. Other evidence incriminated Coe. He apparently came home the night of the 1st and told his family that he had stabbed a state trooper in the throat. He had his wife dye his hair a darker color. The day he was arrested, Coe had traded in his silver and brown car for a blue one. There was relatively little physical evidence. Coe’s car yielded no evidence of a sexual assault. No hairs or fingerprints were found and used against Coe. However, the police did find fecal matter beneath his foreskin, and stains on the front inside of his pants that matched stains found on Medlin’s underpants (both were reddish-brown and contained potato starch). Coe had a history of mental illness. His childhood, according to one expert witness, was “like something out of Erskine Caldwell.” His father sexually abused Coe, and forced him to watch while he also sexually abused Coe’s sisters. Although several experts testified that Coe was not legally insane at the time of the murder, others testified that he was psychotic, schizophrenic, intoxicated, and under the influence of drugs. In 1975, Coe had been found incompetent to stand trial in Florida after he attempted to rape and then stab a forty-year-old woman. B In 1981, a Tennessee jury convicted Coe of first-degree murder, aggravated rape, and aggravated kidnapping. He was sentenced to death on the first charge, and life imprisonment on the other two. The Tennessee Supreme Court affirmed the conviction and sentence, State v. Coe, 655 S.W.2d 903 (Tenn.1983), and the United States Supreme Court denied certiorari, Coe v. Tennessee, 464 U.S. 1063, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984). Coe first applied for post-conviction relief in state court in 1984. The trial court denied relief after an evidentiary hearing in 1986, and the court of appeals affirmed. Coe v. State, No. C.C.A. 15, 1986 WL 14453 (Tenn.Crim.App. Dec.23,1986). The Tennessee Supreme Court denied Coe’s request for permission to appeal because he did not timely file for it (JA 227). In 1987, Coe filed his first petition for habeas corpus relief in federal court. The court dismissed the petition without prejudice in 1989, because Coe had not exhausted his state remedies. Coe filed his second motion for state post-conviction relief in 1989. It was dismissed and the court of appeals again affirmed. Coe v. State, No. 138, 1991 WL 2873 (Tenn.Crim.App. Jan. 16, 1991). The Tennessee Supreme Court denied permission to appeal, this time on the merits (JA 316). Coe filed the present federal habeas petition in 1992. During the pendency of this case, he filed a third motion for state post-conviction relief, which was denied. The court of appeals affirmed. Coe v. State, No. 02C01-9606-CR-00200, 1997 WL 88917 (Tenn.Crim.App. Mar. 4,1997). The Tennessee Supreme Court granted permission to appeal in December 1997. Ibid. Coe amended his federal petition in 1995 and 1996. The latter amendment included only part of what Coe wanted to add, as discussed further below, see infra, at 340-342. The district court disposed of some of Coe’s claims in April 1996, when it granted partial summary judgment in favor of the state. It disposed of the rest in December when, after an evidentiary hearing, it granted Coe relief on five of his claims, and denied relief on all of the others. Both parties timely appealed. II All of the grounds on which the district court granted habeas relief had to do with jury instructions. To warrant habeas relief, the jury instructions must have been so infirm that they rendered the entire trial fundamentally unfair. An ambiguous, potentially erroneous instruction violates the Constitution only if there is a reasonable likelihood that the jury has applied the instruction improperly. Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Austin v. Bell, 126 F.3d 843, 846 (6th Cir.1997), cert. denied, — U.S.-, 118 S.Ct. 1547, 140 L.Ed.2d 695 (1998). For capital sentencing factors, there are additional considerations, which we discuss below. A. Guilt Phase Instructions The district court granted habeas and vacated Coe’s conviction on two grounds from the guilt phase: reasonable doubt instructions and malice instructions. 1. Reasonable doubt The district court ruled that the following instruction on reasonable doubt at the guilt phase was impermissible, and reversed all of Coe’s convictions: Reasonable doubt is that doubt engendered by an investigation of all the proof in the case and an inability, after such investigation, to let the mind rest easily upon the certainty of guilt. Reasonable doubt does not mean a doubt that may arise from possibility. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge, but moral certainty is required and this certainty is required as to every proposition of proof requisite to constitute the offense. (emphasis added). A functionally equivalent instruction was given at the sentencing stage. Subsequent to the district court’s decision, we approved the identical instruction in Austin, 126 F.3d at 846-47. Coe concedes this and offers no reason why we should overrule ourselves, and we shall not. 2. Malice The district court found that two parts of the jury instructions on malice were constitutionally flawed, and vacated Coe’s murder conviction. We do not reach the merits of these challenges, because Coe’s claim is procedurally barred from being considered here. Procedural bar applies when a state prisoner defaults his federal claims in state court pursuant to an independent and adequate state procedural rule. Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir.1996). There are exceptions to this rule when the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or can demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Ibid. When a state-court judgment rested primarily on federal law or was interwoven with federal law, the bar applies only if the state court clearly and expressly stated that its judgment rested on a state procedural bar. Ibid. Coe did not raise his malice instruction argument at trial, on direct appeal, or in his first state post-conviction motion. He did so in his second effort at state post-conviction relief, but the state trial court held that the claim was procedurally barred because it had not been raised before. The court of appeals agreed, holding that Coe’s failure to raise the claim was not excusable based on the argument that its basis was new. The claim was based on Yates v. Aiken, 484 U.S. 211, 108 S.Ct. 534, 98 L.Ed.2d 546 (1988), but that case held only that Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), applied retroactively. Coe could have asserted a Francis claim in his first state motion for post-conviction relief, which was not decided until 1986. Because he had not done so, the court said, the claim was barred. The court also said: Even if we assume that the instructions on malice were erroneous under Francis, and these issues were not waived in Coe I, any error was clearly harmless under the facts of this case. The facts established both felony murder and common-law murder beyond a reasonable doubt. State v. Coe, 655 S.W.2d 903 (Tenn.1983). Malice is immaterial to felony murder. State v. McKay, 680 S.W.2d 447 (Tenn.1984). The facts in this case clearly demonstrate an overwhelming amount of evidence of malice. Ground 7 is without merit. Coe, 1991 WL 2873, at *6. Coe appears to have challenged the waiver holding in his effort to appeal, but the Tennessee Supreme Court denied Coe permission to appeal because his filing was untimely. Coe claims that the court of appeals’s alternative holding — that he would lose on the merits anyway — means that he is not procedurally barred, because the state courts in fact reached the merits. This argument fails due to the Supreme Court’s decision in Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). Harris states that a state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court’s judgment, even when the state court also relies on federal law. Id. at 264 n. 10, 109 S.Ct. 1038 (citing Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 80 L.Ed. 158 (1935)); see also Sochor v. Florida, 504 U.S. 527, 533, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992). The alternative holding thus does not require us to disregard the state court’s finding of procedural bar. Coe next argues that the court of appeals ruling does not represent a “clear and express” statement of procedural bar. Although it could be clearer and more express, the court’s statement that (1) Coe’s argument did not “present a cognizable claim” because it was not based on new law; coupled with (2) the self-consciousness of the alternative argument (“even if ... these issues were not waived in Coe I”), suffices as a clear and express statement. Furthermore, it is worth noting that Coe’s appeal to the state supreme court from this ruling discussed only procedural bar, and not the court’s holding on the merits. By way of comparison, the state-court statement in Harris, the case that established the “clear and express” doctrine, was held to be unclear: In its order, the Appellate Court referred to the “well-settled” principle of Illinois law that “those [issues] which could have been presented [on direct appeal], but were not, are considered waived.” The court found that ... petitioner’s ineffective-assistance allegations “could have been raised in [his] direct appeal.” The court, however, went on to consider and reject petitioner’s ineffective-assistance claim on its merits. Harris, 489 U.S. at 258, 109 S.Ct. 1038 (alterations in Harris) (citations omitted). In other words, the state appellate court in Harris said “X means waiver, and this case has X.” Coe’s court took things one step further, however, and explicitly and clearly said that Coe had no cognizable claim. There was, therefore, a sufficiently clear and express statement here. Coe next argues that his violation of state procedural standards was not “knowing and understanding” as required by state statute. That is, he claims that the court of appeals was wrong to hold that his claim was procedurally barred (if it so held) because he did not know that omitting the claim from his first state motion for post-conviction relief would prevent him from raising it later. This argument is foreclosed by House v. State, 911 S.W.2d 705, 714 (Tenn.1995), cert. denied, 517 U.S. 1193, 116 S.Ct. 1685, 134 L.Ed.2d 787 (1996), in which the Tennessee Supreme Court decided to use an objective waiver standard rather than a subjective one. Although the petitioner in House was represented by counsel in his first post-conviction proceeding (in which he waived certain claims), and Coe proceeded pro se, the holding in House does not turn on this distinction. The court in House takes pains to say that there is no right to counsel in post-conviction proceedings, and so the ineffectiveness of post-conviction counsel does not excuse waiver. Id. at 712. In other words, even if Coe had had ineffective counsel (i.e. the functional equivalent of no counsel at all) he would still be bound by his omissions in his first motion for post-conviction relief. The key is that Coe had a full and fair hearing in his first motion on whatever claims he chose to raise, see id., and he does not allege otherwise here. Coe offers one more rejoinder. He cites Hathorn v. Lovorn, 457 U.S. 255, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982) for the proposition that “a state procedural ground is not ‘adequate’ unless the procedural rule is ‘strictly or regularly followed.’ ” Id. at 262-63, 102 S.Ct. 2421 (quoting Barr v. City of Columbia, 378 U.S. 146, 149, 84 S.Ct. 1734, 12 L.Ed.2d 766 (1964)). Coe says that because Tennessee’s waiver practice has not been consistent in cases with similar circumstances, it cannot serve as the basis for a procedural bar. The state responds by citing numerous eases that establish waiver, and it has the better of the argument. Coe’s eases are mostly either adverse, or too old to constitute current “strict and regular” practice. The few that remain are isolated and unpublished, and so are also insufficient to defeat an otherwise “strict and regular” practice. See Delbridge v. State, 742 S.W.2d 266 (Tenn.1987) (not mentioning waiver); Moore v. State, No. 03C01-9212-CR-00445, 1994 WL 17864, at *3 (Tenn.Crim.App. Jan. 25, 1994) (holding that record did not establish knowing waiver); Sneed v. State, No. 03C01-9201-CR-00027,1992 WL 200951 (Tenn.Crim.App. Aug.21,1992) (not mentioning waiver); Bates v. State, No. 03C01-9102-CR-00055, 1991 WL 172999 (Tenn.Crim.App. Sept. 10, 1991) (same); Brewer v. State, No. 1179, 1991 WL 21605, at *2-*3 (Tenn.Crim.App. Feb.22, 1991) (finding that petitioner did not knowingly waive claim); State v. Bounds, No. C.C.A. 88 — 170—III, 1989 WL 92215, at *1 (Tenn.Crim.App. Aug. 17, 1989) (finding of no waiver, because of intervening case law). Furthermore, even if the cases were not any of these things, Coe’s argument proves too much. Under Coe’s theory, the state would never be able to begin using a procedural bar doctrine, because it would not be able to wipe the slate clean of any precedent that accrued before the institution of the procedural bar. We pause to note that, were we to reach the merits, we would be inclined to reverse anyway. The first problematic instruction on malice read as follows: If a deadly weapon is handled in a manner so as to make the killing a natural or probable result of such conduct, then that may be considered by you as to the existence of malice sufficient to support a conviction of murder in the second degree unless it is rebutted by other facts and circumstances. (emphasis added). In Houston v. Dutton, 50 F.3d 381, 385 (6th Cir.), cert. denied, 516 U.S. 905, 116 S.Ct. 272, 133 L.Ed.2d 193 (1995), a case originating in Tennessee, we invalidated the use of a “deadly weapon” instruction. In that case, however, the instruction said that such handling of a deadly weapon “raises a presumption of malice,” subject to rebuttal. Ibid (emphasis omitted). In this case, by contrast, the court said that the use of the weapon “may be considered.” This distinction is important. In Francis v. Franklin, 471 U.S. 307, 313-14, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), the Supreme Court drew a distinction between “mandatory” inferences, which are problematic, and permissive ones, which are not. The language here is unambiguously permissive. See Peterson v. Murray, 904 F.2d 882, 888 (4th Cir.) (deeming similar “may” language permissive), cert. denied, 498 U.S. 992, 111 S.Ct. 537, 112 L.Ed.2d 547 (1990); United States v. Washington, 819 F.2d 221, 225-26 (9th Cir.1987) (same). The district court argued that the “unless” language in the rebuttal clause implied man-datoriness, since there would be no need for a rebuttal unless there was a mandatory presumption. We disagree. The “deadly weapon” instruction merely sets up a possible inference, and then notes a situation in which even that inference is impermissible. See Elam v. Nix, 951 F.2d 890, 891 (8th Cir.1991) (reaching same conclusion); cf. United States v. Reeves, 594 F.2d 536, 541 (6th Cir.) (disapproving of “unless” language with less clearly permissive inference), cert. denied, 442 U.S. 946, 99 S.Ct. 2893, 61 L.Ed.2d 317 (1979). The second challenged instruction reads as follows: Implied malice may be found to exist where the wrongdoer did not intend to slay the person killed but death resulted from a consciously unlawful act done intentionally and with knowledge on the wrongdoer’s part that the act was directly perilous to human life. In this event there is implied such a high degree of conscious and willful recklessness as to amount to that malignity of heart constituting malice. According to the district court, this instruction requires a finding of malice when the other elements of murder are found; once the jury finds that the defendant acted intentionally and caused the victim’s death, the instruction leaves no alternative but to find malice, and so the prosecution is relieved of its burden of proving malice. The inference in this instruction (“may be found”) appears to us to be a permissive one. The several cases cited by the district court in finding this instruction impermissible all involve clearly mandatory language, and none of them contain the “directly perilous to human life” language present here. See Yates v. Evatt, 500 U.S. 391, 401-02, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991) (disapproving of an instruction that: “ ‘[mjalice is implied or presumed’ from the ‘willful, deliberate, and intentional doing of an unlawful act....’”); Mullaney v. Wilbur, 421 U.S. 684, 686-87, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (disapproving of standard that malice is established by unlawful intentional act, unless heat of passion or provocation were established too); Alexander v. Foltz, 838 F.2d 140, 146 (6th Cir.) (quoting People v. Richardson, 409 Mich. 126, 293 N.W.2d 332, 340 (1980)) (Ryan, J.) (“The necessary factual element of malice may be permissibly inferred from the facts and circumstances of the killing, but it can never be established as a matter of law by proof of other facts.”), cert. denied, 486 U.S. 1033, 108 S.Ct. 2017, 100 L.Ed.2d 604 (1988). Our certitude is tempered by the next sentence (not considered by the district court), but that sentence appears simply to explain the permissive inference, rather than convert it into a mandatory one. In any event, however, we do not reach the merits on this question, because Coe’s claim is procedurally barred. B. Sentencing Phase We have previously had occasion to explore the nature of the Tennessee death penalty process: Tennessee is a “weighing” state — that is, the jury determines whether any aggravating circumstances have been established beyond a reasonable doubt by the State and then balances this against any mitigating circumstances found by the individual jurors. If the jury unanimously finds that the aggravators outweigh the mitigators, death must be imposed. Houston v. Dutton, 50 F.3d 381, 387 (6th Cir.), cert. denied, 516 U.S. 905, 116 S.Ct. 272, 133 L.Ed.2d 193 (1995) (emphasis omitted). 1. “Heinous, atrocious, or cruel” instruction At the sentencing phase, the jury found four aggravating factors that applied and which, on the whole, were not outweighed by mitigating factors. These can be summarized as: (1) The victim was under 12 and the defendant over 18; (2) The murder was especially heinous, atrocious, or cruel and involved torture; (3) The murder was committed for the purpose of avoiding prosecution; and (4) The murder was committed while the defendant was engaged in committing and fleeing after committing aggravated rape and aggravated kidnapping. At issue on appeal is the second ground. The district court had defined this factor for the jury as follows: The murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind. “HEINOUS” means extremely wicked or shockingly evil. “ATROCIOUS” means outrageously wicked and vile. “CRUEL” means designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the suffering of others, pitiless. In holding this factor to be impermissible, the district court cited Houston, and Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) (per curiam). In Houston, we held that this same Tennessee instruction (minus the appended definitions of the three terms) was unconstitutionally vague. Houston, 50 F.3d at 387. Established Supreme Court precedent had held that simple “heinous, atrocious, or cruel” language is unconstitutionally vague. See Richmond v. Lewis, 506 U.S. 40, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992); Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). We gave no explanation in Houston for why the limitation to “torture and depravity of mind” did not suffice to cure this vagueness problem. Indeed, the Supreme Court suggested that such a limitation might suffice in dicta in Maynard, 486 U.S. at 365, 108 S.Ct. 1853. But in Houston, the state conceded that the instruction was vague and we held accordingly. In Shell, the Supreme Court disapproved of a set of instructions similar to the ones here. The instructions in Shell lacked the “torture and depravity” modifier, but appended individual definitions of “heinous, atrocious, and cruel” that are functionally and virtually equivalent to those used in this case. Shell, 498 U.S. at 2, 111 S.Ct. 313 (Marshall, J., concurring). The Court held that these definitions did not suffice, to cure the vagueness problem. Id. at 1, 111 S.Ct. 313; see id. at 2, 111 S.Ct. 313 (Marshall, J., concurring). In combination, then, Houston and Shell require us to hold that the instructions on this point in this case were constitutionally infirm. The state offers two arguments against overturning the sentence on this ground. First, it asserts that this claim is procedurally barred for Coe. Despite the state’s assertion, however, Coe did raise the issue in his direct appeal, apparently by incorporating an argument from his motion for a new trial that the potential aggravating circumstances presented to the jury were (federally) unconstitutionally vague. Regardless of whether the state supreme court should not have addressed an issue raised in that manner, it upheld the statute on the merits against Coe’s challenge. Coe, 655 S.W.2d at 913. The court cited a case that upheld the state statute, State v. Austin, 618 S.W.2d 738, 742 (Tenn.), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981). That case relied on an earlier case, State v. Dicks, 615 S.W.2d 126, 131 (Tenn.), cert. denied, 454 U.S. 933, 102 S.Ct. 431, 70 L.Ed.2d 240 (1981), that approved the “heinous, atrocious, or cruel ... torture or depravity of mind” instruction on the purported grounds of a United States Supreme Court decision (Proffitt v. Florida, 428 U.S. 242, 255-56, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976)). Therefore, the claim is not procedurally barred. The state next argues that any error stemming from this aggravating factor is harmless. To answer this question, unfortunately, we must venture into a thicket; it is unclear if we may engage in harmless-error analysis when dealing with an infirm aggravating factor, or if instead this is a matter reserved for the state trial and appellate courts. We join the four other circuits that have squarely addressed this question and hold that we are indeed permitted to perform a harmless-error analysis here. See Billiot v. Puckett, 135 F.3d 311 (5th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 413, — L.Ed.2d- (1998); Davis v. Executive Director of Dept. of Corrections, 100 F.3d 750, 768 n. 18 (10th Cir.1996), cert. denied, — U.S.-, 117 S.Ct. 1703, 137 L.Ed.2d 828 (1997); Williams v. Clarke, 40 F.3d 1529, 1539-40 (8th Cir.1994), cert. denied, 514 U.S. 1033, 115 S.Ct. 1397, 131 L.Ed.2d 247 (1995); Smith v. Dixon, 14 F.3d 956, 974-81 (4th Cir.) (en banc), cert. denied, 513 U.S. 841, 115 S.Ct. 129, 130 L.Ed.2d 72 (1994); see also O’Guinn v. Dutton, 88 F.3d 1409, 1461 (6th Cir.1996) (en banc) (Batchelder, J., dissenting) (six judges of this court espousing this conclusion in a dissent from a majority opinion that did not reach the merits), cert. denied, — U.S. -, 117 S.Ct. 754, 136 L.Ed.2d 690 (1997). We must make an initial distinction. This discussion is only an issue in this ease because Tennessee is a “weighing” state, in which the jury weighs aggravating factors against mitigating factors. In non-weighing states, the sentencer must find at least' one aggravating circumstance to make a convicted murderer eligible for the death penalty. Once the factor is found, the jury weighs the totality of the circumstances. Therefore, if multiple aggravators are found but an appellate court strikes one of them down, the death sentence can stand as it is. This is because the sentencer has still found at least one aggravating factor, and the invalidation of another aggravator does not necessarily change the totality of the circumstances that are considered to arrive at a sentence (though other errors might do so, and could necessitate reversal). See Stringer v. Black, 503 U.S. 222, 229, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992); Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); see also Tuggle v. Netherland, 516 U.S. 10, 116 S.Ct. 283, 133 L.Ed.2d 251 (1995). In a weighing state, by contrast, when a court invalidates one of the aggrava-tors, it has removed a mass from one side of the scale. There is no way to know if the jury’s analysis — how the aggravating and mitigating circumstances balanced — would have reached the same result even without the invalid factor. Stringer, 503 U.S. at 231-32, 112 S.Ct. 1130. Therefore, whenever an aggravating factor has been invalidated in a weighing state, the sentence must be re-weighed or analyzed for harmless error if the sentence is to be affirmed. Ibid. The question before us, then, is who is permitted to perform such analyses. The state concedes that we may not perform reweighing, but it claims that it is perfectly acceptable for us to engage in harmless-error analysis. We agree that this distinction is warranted. In reweighing, a state court effectively vacates the original sentence and resentences the defendant; this process is hardly appropriate in the course of collateral review by a federal court. In harmless-error analysis, by contrast, a court determines that the original sentence is not constitutionally infirm in the first place, a process that is quite appropriately performed on federal collateral review. Indeed, we would perform a similar analysis if, say, Coe claimed ineffective assistance of counsel based on a failure to raise his vagueness argument on direct appeal. See Smith, 14 F.3d at 976. In that instance, we would have to apply the test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and determine whether Coe had been prejudiced by his counsel’s lapse. The analysis we are performing here is not appreciably different. Coe responds that however sensible the above holding may seem, we are prevented from performing harmless-error analysis by the express language of Supreme Court and Sixth Circuit case law. Although this argument is superficially convincing, we cannot agree. In Stringer, the Supreme Court held that “[u]se of a vague or imprecise aggravating factor in the weighing process invalidates the sentence and at the very least requires constitutional harmless-error analysis or reweighing in the state judicial system.” Stringer, 503 U.S. at 237, 112 S.Ct. 1130. The Court subsequently reiterated and clarified this principle, ruling that “[wjhere the death sentence has been infected by a vague or otherwise constitutionally invalid aggravating factor, the state appellate court or some other state sentencer must actually perform a new sentencing calculus, if the sentence is to stand.” Richmond v. Lewis, 506 U.S. 40, 49, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992) (emphasis added). Finally, in Houston, we cited Richmond and affirmed the grant of a writ of habeas corpus, because the state court had not recognized the error and thus had not “performed a new sentencing calculus.” Houston, 50 F.3d at 387 (quotation marks omitted). Significantly, though, we did not address the harmless-error question in Houston. Our holding, therefore, applied only to reweighing. Indeed, the portion of Richmond that we quoted (the same portion set forth in the paragraph above) makes this clear: it is only when “the death sentence has been infected by a constitutionally ... invalid aggravating factor” that state reweighing is required to preserve the verdict. By definition, though, an error that is harmless does not “infect” the sentence and does not require reweighing by the state. As a final note, the language of Stringer requiring “constitutional harmless-error analysis or reweighing in the state judicial system” is consistent with our conclusion. For the reasons discussed above, the phrase “state judicial system” modifies “reweighing” only, and not “harmless-error analysis.” Indeed, the Supreme Court has never held otherwise. Rather, the Court has taught that “[f]ederal intrusions into state criminal trials frustrate both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.” Brecht v. Abrahamson, 507 U.S. 619, 635, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)). Therefore, “before overturning final and presumptively correct state convictions or sentences on habeas review, [we] must assess for harmlessness those errors that are eligible for this review in order to assure that the extraordinary relief provided by the writ is granted only to those ‘persons whom society has grievously wronged.’ ” Smith, 14 F.3d at 976 (quoting Brecht, 507 U.S. at 634, 113 S.Ct. 1710 (quoting Fay v. Noia, 372 U.S. 391, 441, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963))). We turn, therefore, to analyze this error for harmfulness. The question we ask is whether the error “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 623, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). The important criterion in a vagueness analysis of an aggravating circumstance is narrowing: “A capital sentencing scheme must, in short, provide a meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.” Godfrey v. Georgia, 446 U.S. 420, 427, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (quotation marks omitted; alteration in original). Our analysis is relatively simple in this case. Even though the aggravator at issue was phrased as “especially heinous, atrocious, or cruel in that it involved torture or depravity of mind,” the jury held more narrowly that “the murder was especially heinous, atrocious, or cruel and involved torture.” As is evident from the facts recited above, there is more than ample evidence to support such a conclusion. This distinction—finding torture but not depravity of mind—is significant. The vagueness problem of the “heinous, atrocious, and cruel” (“HAC”) instruction is curable with appropriately narrowing language. We have held, of course, that requiring “torture or depravity of mind” does not solve the vagueness problem. Requiring only torture, however, does. See Maynard v. Cartwright, 486 U.S. 356, 364-65, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (implying that “torture” limitation suffices to cure vagueness of HAC); Walton v. Arizona, 497 U.S. 639, 654, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (confirming implication); Duvall v. Reynolds, 139 F.3d 768, 793 (10th Cir.1998) (holding that “torture of the victim or serious physical abuse” language in the instruction cures vagueness of HAC); cf. Wade v. Calderon, 29 F.3d 1312, 1319-20 (9th Cir.1994) (holding that intentional torture suffices), cert. denied, 513 U.S. 1120, 115 S.Ct. 923, 130 L.Ed.2d 802 (1995). In this case, the jury ignored the problematic “depravity” factor and limited its finding to the appropriately narrowing “torture” factor, confirming that finding in a specific, handwritten verdict form. Furthermore, in Maynard and Walton, the narrowing factor was only applied by a reviewing court, not by the jury itself—the fact that we have this evidence from the jury itself confirms our conclusion that the jury’s discretion was channeled and narrowed appropriately. The error in this case was harmless, and the district court erred in granting habeas corpus relief on this basis. 2. Unanimity Next at issue is the district court’s determination that the jury instructions on unanimity in sentencing were unacceptable. The state fust contends that this claim is procedurally barred. When Coe raised this issue in his third state motion for post-conviction relief, the trial court said that he was procedurally barred because he should have raised the issue before, and the court of appeals said that the issue was part of a group of questions that were “waived, previously determined on direct appeal, and/or time barred.” The state trial court’s statement suffices as a clear statement, and the court of appeals’s line-blurring mass af-firmance does not change that conclusion. See Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (“[W]here, as here, the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits.”). As with the “heinous” instruction discussed above, however, Coe did raise this issue in his direct appeal, apparently by incorporating it from his motion for a new trial. Also as mentioned above, the state supreme court held that the death-sentence statute was not constitutionally infirm. It is not clear if this holding applies to the unanimity provisions, however, and the cases cited by the state supreme court on direct appeal do not cover unanimity. See State v. Austin, 618 S.W.2d 738, 742 (Tenn.), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981); State v. Dicks, 615 S.W.2d 126 (Tenn.), cert. denied, 454 U.S. 933, 102 S.Ct. 431, 70 L.Ed.2d 240 (1981). The district court responded to this by citing Tennessee Code § 39-2-205 and State v. Martin, 702 S.W.2d 560, 564 (Tenn.1985) for the notion that, in capital cases, the state supreme court has to review significant errors, whether or not they were raised by the defendant. As phrased by the district court, this proposition is too broad, as it would eliminate the entire doctrine of procedural bar in Tennessee in capital cases. See Kornahrens v. Evatt, 66 F.3d 1350, 1362-63 (4th Cir.1995) (accepting similar reasoning in South Carolina case), cert. denied sub nom. Kornahrens v. Moore, 517 U.S. 1171, 116 S.Ct. 1575, 134 L.Ed.2d 673 (1996). Martin, though, cited § 39-2-205 and reviewed a question that had been discussed but not preserved for review at trial. Martin, 702 S.W.2d at 564. A fortiori, because the issue in this case was not only discussed but formally contested, Martin applies to eliminate the procedural bar problem for Coe. The state court’s suggestion of waiver in dismissing Coe’s third petition for post-conviction review was only a successive-petition type of waiver; it did not address the issue of whether the question had been raised on direct appeal. Even if it had, furthermore, the third petition is currently pending before the state supreme court. Therefore, we find that this claim is not procedurally barred, and so we turn to the merits. The jury was told: If you unanimously determine that at least one statutory aggravating circumstance or ... circumstances have been proved by the State, beyond a reasonable doubt, and said circumstance or circumstances are not outweighed by any mitigating circumstances, the sentence shall be death. The Jury shall state in writing the statutory aggravating circumstance or ... circumstances so found, and signify in writing that there were no mitigating circumstances sufficiently substantial to outweigh the [aggravating circumstances]. The jury was then given the form its verdict should take: (1) We, the Jury, unanimously find the following listed statutory aggravating circumstance or circumstances; (2) We, the Jury, unanimously find that there are no mitigating circumstances sufficiently substantial to outweigh the [aggravating circumstances] so listed above. (3) Therefore, -we, the Jury, unanimously find that the punishment shall be death. The alternate result was then provided for and explained: If you unanimously determine that no statutory aggravating circumstance has been proved by the State beyond a reasonable doubt; or if the Jury unanimously determine that [aggravating circumstances] have been proved by the State beyond a reasonable doubt; but that said [aggravating circumstances] are outweighed by one or more mitigating circumstances, the sentence shall be life imprisonment. For both the death verdict and the life imprisonment verdict, the jury was told that its verdict must be unanimous. The district court, relying on two of its own precedents, concluded that these instructions were unacceptable because there was a reasonable probability that the jurors believed that they could consider only those mitigating circumstances that they unanimously agreed were present. See McKoy v. North Carolina, 494 U.S. 433, 439-41, 444 & n. 8, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990); Mills v. Maryland, 486 U.S. 367, 373-75, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988) (declaring such a requirement unconstitutional). The district court also held that the instructions improperly failed to inform the jury of the consequence of a non-unanimous verdict (i.e., a life sentence). We first note that this same issue was raised in a recent case, Austin v. Bell, 938 F.Supp. 1308 (M.D.Tenn.1996), in which the district court reached the same conclusion as it did in this case. See id. at 1320-21. We affirmed Austin on ineffective assistance grounds, and so specifically did not reach the unanimity question, but we noted that although we were not reaching the issue, we had “serious concerns” about the instruction. Austin v. Bell, 126 F.3d 843, 849 (6th Cir.1997), cert. denied, — U.S.-, 118 S.Ct. 1547, 140 L.Ed.2d 695 (1998). We cited, among other cases, Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). In Mills, a similar issue was raised; the Supreme Court ruled that the proper inquiry is whether a reasonable jury might have interpreted the instructions in a way that is constitutionally impermissible. Mills, 486 U.S. at 375-76, 108 S.Ct. 1860. The relevant portion of the form in Mills read as follows: “Based upon the evidence we unanimously find that each of the following mitigating circumstances which is marked ‘yes’ has been proven to exist by a preponderance of the evidence and each mitigating circumstance marked ‘no’ has not been proven by a preponderance of the evidence.” Mills, 486 U.S. at 387, 108 S.Ct. 1860 (emphasis omitted). The Supreme Court held this to be impermissible. Id. at 377-84, 108 S.Ct. 1860. In Kordenbrock v. Scraggy, 919 F.2d 1091, 1108-10, 1120-21 (6th Cir.1990) (en bane), cert. denied, 499 U.S. 970, 111 S.Ct. 1608, 113 L.Ed.2d 669 (1991), the trial court had given a unanimity instruction with regard to aggravating factors, but not with regard to mitigating ones. We held that the only reasonable reading of the instruction was that, by omission, no unanimity was required as to mitigating factors. Kordenbrock, 919 F.2d at 1121. We find that the instructions challenged by Coe do not violate Mills. Then language requires unanimity as to the results of the weighing, but this is a far different matter than requiring unanimity as to the presence of a mitigating factor. Nothing in this language could reasonably be taken to require unanimity as to the presence of a mitigating factor. The instructions say clearly and correctly that in order to obtain a unanimous verdict, each juror must conclude that the mitigators do not outweigh the aggravators. The language certainly is not as directly problematic as that in cases that have followed Mills. See, e.g., McKoy, 494 U.S. at 436, 110 S.Ct. 1227 (“Do you unanimously find from the evidence the existence of one or more of the following mitigating circumstances?”); United States ex rel. Kubat v. Thieret, 679 F.Supp. 788, 813 (N.D.Ill.1988) (“If ... you unanimously conclude that there is a sufficiently mitigating factor or factors to preclude imposition of the death sentence, you should sign the form which so indicates.”), aff'd, 867 F.2d 351 (7th Cir.), cert. denied, 493 U.S. 874, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989). Those cases did not require any sort of inferential leap to conclude that the jury had to be unanimous before it could even consider a particular mitigating factor; the instruction specifically so stated. In Coe’s case, by contrast, it is fairly clear that, as with the first challenged instruction, the unanimity refers to the weighing process and not to the finding of a mitigating factor. Coe argues that the unanimity instruction in the weighing process is improper too, an issue that is addressed below. We also note that the problematic language did not appear in the section of the instructions on finding mitigating factors. Rather, it appeared in the section on weighing. By contrast, the instructions that precede the section on finding mitigating factors says nothing at all about unanimity. Rather, they say that the jury “shall consider ... any mitigating circumstance[ ].” This is in direct contradistinction to the immediately previous section on aggravating circumstances, where the jury is told that “no death penalty shall be imposed by a Jury but upon an [sic] unanimous finding of the existence of one or more of the statutory aggravating circumstances----” The contrast between the unanimity required for “finding ... one or more” aggravators and the silence accompanying the instructions on “considering] any” mitigators is precisely what we found disposi-tive in Kordenbrock. The instructions, therefore, are not improper. The dissent emphasizes the use of the words “as heretofore indicated” in the instructions on considering mitigation, and argues that those words can easily be understood by the jury to refer to the earlier unanimity discussion on finding aggravating circumstances. However, in context, that construction is very unlikely. The instructions condensed to 12 lines at page 63 of the dissent actually occupy over two pages in the record. There is a whole page omitted at the ellipsis in the block quotation before the crucial language “as heretofore indicated.” Also omitted is the key language explaining that it is the statute that provides for the jury to consider “as heretofore indicated” all mitigating factors. The words “as heretofore indicated” are taken directly from § 39-2404(j) of the Tennessee Code, and obviously refer to the whole process of “consideration” that has just been explained, including burden of proof, signing of the verdict form, weighing of mitigating factors against aggravating factors, etc. It is not a plausible construction that those words import a process of unanimity that was required only and specifically of the finding of aggravating circumstances. Coe naturally emphasizes the less clear-cut weighing language, and valiantly attempts to bring the language within the prohibition of Mills. Coe has noted that an instruction that gets the law right does not necessarily save another, contradictory instruction, since it is impossible to know which of the two contradictory propositions the jury relied upon. See Francis v. Franklin, 471 U.S. 307, 322, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). In this case, however, the two passages are not contradictory. One is clear and the other is less clear, to be sure, but they are not incompatible. In Francis, the Court considered whether “taken as a whole [the correct language] might have explained the [law] with sufficient clarity that any ambiguity in the [challenged language] could not have been [misconstrued] by a reasonable juror....” Id. at 318-19, 105 S.Ct. 1965. The Supreme Court reminded us, in other words, that we should read the whole of the instructions, and should not isolate and parse text until we find something wrong with it. In Francis, the Court found that the context did not cure the potential for misunderstanding, but in this case we find that it does, to the extent that there is any potential for misunderstanding to begin with. The next aspect of the unanimity instructions that Coe successfully challenged in the district court is that the jurors were not told that Coe would receive a life sentence if they failed to reach a unanimous sentence. See Tenn.Code. Ann. § 39-2404 (1982) (mandating life sentence if jury is unable to achieve unanimity, but precluding court from informing the jury of this); State v. Simon, 635 S.W.2d 498, 505 (Tenn.), cert. denied, 459 U.S. 1055, 103 S.Ct. 473, 74 L.Ed.2d 621 (1982). Coe argues that by requiring unanimity for either life or death, a holdout juror preferring a life sentence might vote for death because he thought that a unanimous verdict was required in every ease. Therefore, he says, the jury should have been informed of the consequences of a failure by it to achieve unanimity. We are unpersuaded by this argument. Two circuits have considered and rejected similar arguments regarding similar proceedings and similar state laws. See United States v. Chandler, 996 F.2d 1073, 1089 (11th Cir.1993); Barfield v. Harris, 540 F.Supp. 451, 472 (E.D.N.C.1982), aff'd, 719 F.2d 58 (4th Cir.1983), cert. denied, 467 U.S. 1210, 104 S.Ct. 2401, 81 L.Ed.2d 357 (1984). Coe cites Supreme Court precedent for his proposition, but that precedent is inapt. He cites Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), for the proposition that a jury must be aware of its options if the sentence is to be seen as reliable, but Beck held only that a jury should be informed of its ability to convict of applicable lesser-included offenses, and Coe’s jury was so instructed. Beck does not consider the necessity of informing a jury of the consequences of its inability to reach a unanimous verdict. Coe also cites Romano v. Oklahoma, 512 U.S. 1, 8-9, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994), which cited Caldivell v. Mississippi, 472 U.S. 320, 336, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), for the proposition that the “jury must not be misled regarding the role it plays in the sentencing decision.” True enough. But it does not mislead the jury to impress upon it the importance of unanimity. Romano dealt with the admission of potentially misleading evidence (a previous death sentence imposed on the same defendant), but the Court held that this did not mislead the jury as to its role, or minimize its sense of responsibility. Romano, 512 U.S. at 9, 114 S.Ct. 2004. These necessary indicia are not present in this case either. The jury’s role was to deliberate and to attempt to reach a unanimous verdict. The fact that there was a statutorily defined default rule in case the jury could not agree does not change this fact. Indeed, it does not necessarily mislead a jury regarding its role to avoid disclosing what will happen if the jury fails to achieve unanimity. If Coe were correct here, the Supreme Court surely would not have decided Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), the way it did. In that ease, the Court approved use of an Allen charge in a capital ease. Id. at 237-38, 108 S.Ct. 546. It cited approvingly the Court’s statement in Allen that “[t]he very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves.” Id. at 237, 108 S.Ct. 546 (quoting Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896)). The jury was given incomplete information, but not misleading information. Coe’s scenario — a minority juror who interprets the unanimity requirement as directing him to give in to the majority — is simply not reasonable. Unanimity means the opposite: that the majority does not win simply because it is a majority. The jury was told precisely this when instructed regarding unanimity at the guilt phase; the jury was instructed to “not surrender your honest conviction ... for the mere purpose of returning a verdict.” The state law did not unconstitutionally deceive the jury and infect the verdict in this case with unreliability, and the district court erred in holding otherwise. C. Cumulative Effect Coe and the district court claim that the errors committed by the state trial court cumulatively represent error. Since we have found only one (harmless) error, there is no basis to conclude that there is any cumulative effect here. D. Conclusion Based on the foregoing, then, we REVERSE the district court’s grant of habeas corpus relief to Coe. Ill Coe raises a myriad of issues on cross-appeal. He contends that the district court should have granted, rather than denied, ha-beas corpus on each of these issues. We affirm the district court, though we rely on different reasons with respect to several of the issues. A. Suppression Coe petitioned the district court on the grounds that his statement to the police (the heart of the evidence against him) should not have been admitted. He offered many arguments why the statement was suspect: that Coe was both gullible and mentally ill; that the police asked Coe leading questions; that the police knew the details surrounding the crime, raising suspicion that they wrote Coe’s statement themselves; that the police continued investigating another suspect even after Coe confessed; that Officer Daniel, who took the statement, allegedly lied to the jury; and that there was evidence that Coe had been physically harmed when he was taken into custody. The district court rejected those arguments. It applied the standard for voluntariness stated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and credited various pieces of evidence in the record that supported a finding that the statements were proper. A tape was admitted at trial in which Coe heard his rights and said that he understood them. Later on the tape, he said that he was not mistreated and that he was making the statement of his own free will. Coe signed a Miranda waiver form, which was admitted at trial. The officer who took the statement testified that Coe did not appear to be intoxicated. The district court noted testimony that friends saw Coe with bruises in jail, but rejected that testimony in favor of contrary evidence. Coe says that the discrediting of these witnesses is based on a misunderstanding. He also points to evidence suggesting that police harassed his wife, which allegedly intimidated him into making a statement (even though he was already in custody and there is no evidence that he had any inkling of the alleged harassment). The district court surveyed the evidence, heard from the witnesses first hand, and on the face of the record came to a proper conclusion regarding the alleged coercion underlying Coe’s statement. The district court acted properly in considering coercion rather than credibility. To the extent that Coe argued that his statements were the product of his gullibility and of leading questions, the proper vehicle for such claims is cross-examination at trial. The proper inquiry under Miranda is only whether the government coerced the statement, not whether the statement was the product of Coe’s abstract free will. See Colorado v. Connelly, 479 U.S. 157, 169-70, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). To the extent that Coe was addressing coercion, the district court’s evaluation of the evidence was appropriate. B. Motion to Amend Under a scheduling order entered in April 1995, Coe was given until mid-May 1995 to file any amendments. He did so, adding 15 new issues. Discovery was to be completed in July 1995 and dispositive motions filed by August. In December 1995, Coe moved to amend his federal habeas petition a second time, attempting to add 17 new issues. As Coe tells it, this motion was put forward a year before the district court’s decision, and seven months before the conclusion of the evidentiary hearing. As the state notes, it was 3 years and 10 months after the filing of the first petition in February 1992. Seven months later, in July 1996, the district court granted Coe’s motion with regard to several law-based claims, but rejected the motion with regard to the other eight fact-based ones. The district court held that the only explanation given by Coe — that he had a new (additional) federal public defender on his team — was insufficient, since he had had ample and expert representation from a federal public defender from the early days of the case, and had had a second lawyer assisting on the case since Summer 1994. The court held that granting the motion fully would unduly prejudice the state, since the state would have to file a large new answer, prepare for a new round of discovery, rewrite dispositive motions, and prepare for additional evidentiary hearings. The state claimed that the discovery alone would take three or four months. Reasoning that the legal claims would not spur any new discovery, the district court let them in, while keeping the new fact-based claims out. The court also threw out two legal claims it deemed frivolous: claims that the death penalty in general, and electrocution in particular, violated Coe’s rights. Coe filed a motion for reconsideration, noting that his fact-based claims involved information already known to the state (e.g. Brady claims), so that there would be no discovery burden. He also said that the three to four months of extra discovery projected by the state was both unrealistic and moot, since it took seven months for the district court to resolve the motion; in the meantime the evidentiary hearing had been moved from February to April. The standard for reviewing denials of motions to amend is abuse of discretion. We have held that: Under Rule 15(a), leave to amend a pleading shall be freely given when justice so requires. This court has explained the factors that a district court should consider when deciding whether to grant leave to amend. Several elements may be considered in determining whether to permit an amendment. Undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment are all factors which may affect the decision. Delay by itself is not sufficient reason to deny a motion to amend. Notice and substantial prejudice to the opposing party are critical factors in determining whether an amendment should be granted. Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir.1994) (citations omitted and punctuation regularized). “Delay by itself’ is not sufficient to deny a motion to amend, but the delay in this case was substantial. When combined with the prejudice cited by the district court, there were sufficient grounds for the district court to deny the motion. Coe may be right that, in hindsight, there would have been much less prejudice than the state initially predicted if the district court had granted the motion to amend promptly. However, we do not review the district court’s hindsight. At the time the district court rendered its decision, allowing amendment of the complaint would have caused prejudice. The district court did not abuse its discretion. Compare Semco, Inc. v. Amcast, Inc., 52 F.3d 108, 114 (6th Cir.1995) (affirming district court when plaintiff had previously amended its complaint, and moved to amend a mere month before trial after extensive discovery had been conducted) with Security Ins. Co. v. Kevin Tucker & Assocs., Inc., 64 F.3d 1001, 1009 (6th Cir.1995) (reversing district court despite plaintiffs 16-month delay in filing motion to amend, because the action had been dormant for 13 of those months and the ease was at its earliest stage of pretrial activity, with discovery cut-off and trial dates not having been set). C. Ineffective Assistance of Counsel Coe’s next argument is that his trial lawyer: (1) did not sufficiently investigate other suspects, exculpatory evidence, and vital inconsistencies in the testimony of key eyewitnesses; (2) did not investigate or pursue vital physical exculpatory evidence; and (3) did not develop an alibi defense for Coe, which would have been highly plausible. The specifics of what Coe claims an effective lawyer would have done for him are too voluminous to detail here. They also largely miss the point: just as (or more) important as what the lawyer missed is what he did not miss. That is, we focus on the adequacy or inadequacy of counsel’s actual performance, not counsel’s (hindsight) potential for improvement. See Sims v. Livesay, 970 F.2d 1575, 1580 (6th Cir.1992). Furthermore, our review is highly deferential. Ibid. According to Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to satisfy the “effectiveness” portion of the test (we need not reach the question of prejudice), Coe would have to demonstrate “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Alternately, combining both elements of the Strickland test, counsel is ineffective if the “trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. 2052. In this case, although there are things that Coe’s lawyer could have done better, Coe has not convinced us that his lawyer did not function adequately at trial, or that the trial produced an unjust result. Coe points to exculpatory physical and alibi evidence as examples of things that his lawyer would have pursu