Hasan v. Ishee

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

SIDDIQUE ABDULLAH HASAN,

f/k/a Carlos Sanders,

Petitioner, : Case No. 1:03-cv-288

- vs -

District Judge Susan J. Dlott

Magistrate Judge Michael R. Merz

TIMOTHY SHOOP, Warden,

Chillicothe Correctional Institution

Respondent. :

ORDER ADOPTING REPORTS AND RECOMMENDATIONS

This capital habeas corpus case is before the Court for decision on the merits on the Petition

for Writ of Habeas Corpus under 28 U.S.C. § 2254 of Petitioner Siddique Abdullah Hasan, f/k/a

Carlos Sanders (ECF No. 16). In the Petition, Hasan raised thirty-five claims. However, in his

Traverse, he withdrew claims Eighteen, Twenty-Two through Twenty-Five, and Thirty-Four (ECF

No. 22, PageID 107, 113, 162). The case was referred to the Magistrate Judge for a Report and

Recommendations, 28 U.S.C. § 636(b)(1)(B), which he filed on August 14, 2006 (Report, ECF

No. 81)1. Hasan objected (ECF No. 91) and the undersigned recommitted the matter (Recommittal

Order, ECF No. 100). The Magistrate Judge filed a Supplemental Report and Recommendations

1 The Magistrate Judge extensively and accurately set forth the factual background and procedural history of the case

(Report, ECF No. 81, PageID 1052, 1058-61), which the Court adopts in full.

(ECF No. 119), to which Hasan objected (Supp. Objections, ECF No. 122)2, and the Respondent

Warden filed a cursory Response (ECF No. 123). On March 28, 2019, in denying Hasan’s Motion

to Amend to add a Claim Thirty-Six, the undersigned concluded that: “Petitioner’s Objections to

the Magistrate Judge’s Decision having been overruled, the case remains pending for decision on

the Report and Recommendations of August 14, 2006 (ECF No. 81) and the Supplemental Report

and Recommendations of December 29, 2010 (ECF No. 119).” (Decision and Order, ECF No.

213, PageID 15020-21).

On October 18, 2019, the Sixth Circuit held that the exception to the procedural default

doctrine set forth in Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413

(2013) (“Martinez-Trevino”) applied to Ohio law. White v. Warden, 940 F.3d 270 (6th Cir. 2019).

Subsequently, the Court granted Hasan leave to conduct discovery and for an evidentiary hearing

on Claims Eight, Nine, and Thirty-One (Orders, ECF Nos. 238, 243), which are not addressed in

this Order.

For the reasons set forth below, the Reports are ADOPTED, Hasan’s Objections are

OVERRULED, and the Petition is DENIED except as to Claims Eight, Nine, and Thirty-One.

I. LEGAL STANDARDS

A. 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b)

A District Judge may, as the undersigned has here, refer a dispositive matter to a Magistrate

2 For reasons that are beyond the scope of the instant Order, on February 14, 2013, Hasan’s Supplemental Objections

were overruled without prejudice to refiling pending the completion of discovery (Order, ECF No. 144). On February

25, 2018, Hasan was granted an extension of time to file supplemental objections up to and including May 1, 2018

(Notation Order, ECF No. 192), but did not file new supplemental objections. Out of an abundance of caution and

fairness to Hasan, the Court has considered the initial Supplemental Objections (ECF No. 122) in considering the

Petition.

Judge “to submit to a judge of the court proposed findings of fact and recommendations for the

disposition[.]” 28 U.S.C. § 636(b)(1)(B).

Within fourteen days after being served with a copy, any party may

serve and file written objections to such proposed findings and

recommendations as provided by rules of court. A judge of the court

shall make a de novo determination of those portions of the report

or specified proposed findings or recommendations to which

objection is made. A judge of the court may accept, reject, or

modify, in whole or in part, the findings or recommendations made

by the magistrate judge. The judge may also receive further

evidence or recommit the matter to the magistrate judge with

instructions.

28 U.S.C. § 636(b)(1)(C).

B. 28 U.S.C. § 2254

As Hasan is imprisoned based on a state court judgment, he may petition for a writ of

habeas corpus “only on the ground that he is in custody in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. § 2254(a). A petition:

[S]hall not be granted with respect to any claim that was adjudicated

on the merits in State court proceedings unless the adjudication of

the claim—(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented[.]

28 U.S.C. § 2254(d). A habeas corpus petitioner must also satisfy additional procedural

requirements, including but not limited to exhaustion of state court judicial remedies.

28 U.S.C. § 2254(b). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. 104-132, 110 Stat. 1214, this Court’s review of a claim adjudicated on its

merits in a state court proceeding is sharply circumscribed: the federal court must defer to the

state court decision unless that decision is contrary to or an objectively unreasonable application

of clearly established precedent of the United States Supreme Court. 28 U.S.C. § 2254(d)(1);

Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133,

140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362,

379 (2000). Deference is also due under 28 U.S.C. § 2254(d)(2) unless the state court decision

was based on an unreasonable determination of the facts in light of the evidence presented in the

state court proceedings. A determination of a factual issue made by a State court is presumed to

be correct. The applicant shall have the burden of rebutting the presumption of correctness by

clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

A state court may be found to have acted “contrary to” federal law in two ways: (1) if the

state court’s decision is “substantially different from the relevant precedent” of the United States

Supreme Court; or (2) if “the state court confronts a set of facts that are materially indistinguishable

from a decision of [the United States Supreme] Court and nevertheless arrives at a result different

from [United States Supreme Court] precedent[.]” Williams v. Taylor, 529 U.S. 362, 405 (2006).

A state court does not act contrary to federal law simply because its application of federal law was

incorrect. Rather, the decision must have been “mutually opposed[,]” id., to “clearly established

Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1), which encompasses

only the holdings of Supreme Court decisions, and not their dicta. Williams, 529 U.S. at 412.

The “unreasonable application” standard is distinct from and more deferential than that of

“clear error.” “It is not enough that a federal habeas court, in its independent review of the legal

question, is left with a firm conviction that the state court decision was erroneous. . . . Rather, that

application must be objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75, 76 (2003)

(internal quotation marks omitted). “[E]valuating whether a rule application was unreasonable

requires considering the rule’s specificity. The more general the rule, the more leeway courts have

in reaching outcomes in case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652,

664 (2004) (internal citation omitted). However, this deferential standard applies only when the

state court has addressed the merits of a claim raised on appeal; “[w]here a state court has not

adjudicated a claim on the merits, the issue is reviewed de novo by a federal court on collateral

review.” Trimble v. Bobby, 804 F.3d 767, 777 (6th Cir. 2015).

C. Exhaustion, Procedural Default, and Res Judicata

A federal habeas corpus petitioner must exhaust his claims in the state court before he may

bring those claims before this Court. 28 U.S.C. § 2254(b)(2). This can be shown by demonstrating

that: (1) the highest court of a state has adjudicated the merits of the claim; or (2) under state law,

the claims are procedurally barred. Gray v. Netherland, 518 U.S. 152, 161-62 (1996). “[T]he

doctrine of exhaustion requires that a claim be presented to the state courts under the same theory

in which it is later presented in federal court.” Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998).

However, if a claim is procedurally barred under state law because “a state prisoner has defaulted

his federal claims in state court pursuant to an independent and adequate state procedural rule,

[then] federal habeas review of the claims is barred.” Coleman v. Thompson, 501 U.S. 722, 750

(1991). Under Ohio law, failure to make timely objections at trial or to raise the issue on direct

appeal from the trial court, if possible, bars a petitioner from raising that claim in a federal habeas

corpus petition. Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000), citing State v. Perry, 10

Ohio St. 2d 175, 176 (1967), paragraphs eight and nine of the syllabus; see also, e.g., Coleman v.

Mitchell, 244 F.3d 533, 538-39 (6th Cir. 2001) (“Coleman I”), superseded by statute on other

grounds as stated in Stewart v. Winn, 967 F.3d 534, 540 (6th Cir. 2020) (holding that the “Perry

rule” regarding res judicata was an adequate and independent state law ground upon which to find

a claim procedurally defaulted, and thus, bar its consideration of claims by district courts); Wong,

142 F.3d at 322 (emphasis added) (“Under Ohio law, the failure to raise on appeal a claim that

appears on the face of the record constitutes a procedural default under the State’s doctrine of res

judicata.”). A claim of ineffective assistance of counsel—e.g. for failure to make timely objections

at trial—normally must “be presented to the state courts as an independent claim before it may be

used to establish cause for a procedural default.” Murray v. Carrier, 477 U.S. 478, 489 (1986) ;

accord: Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000).

Further, in raising the claims in the state court, a petitioner must set out why he believes

his federal constitutional rights have been violated to avoid procedural default. 28 U.S.C. § 2254;

Gray, 518 U.S. at 162-63. The procedural default analysis focuses on the “last explained state

court judgment.” Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991). Therefore, a decision by a state

supreme court in which the court declines to exercise jurisdiction over an appeal from an

intermediate appellate court, but that does not provide reasons for that decision, does not constitute

the “state judgment” upon which this Court resolves the procedural default question. Munson v.

Kapture, 384 F.3d 310, 314 (6th Cir. 2004), citing Ylst, supra. However, the threshold for what

constitutes an “explained state court judgment” is modest—an order from a state supreme court

stating nothing more than “that the petitioner had failed to meet the burden of establishing

entitlement to relief under [Michigan Rule of Criminal Procedure] 6.508(D) – though brief –

constituted the last explained state court decision in the case.” Id. (internal quotation marks

omitted), quoting Simpson v. Jones, 238 F.3d 399, 407-08 (6th Cir. 2000). A decision by a state

court to review the merits of an otherwise-defaulted claim, as an act of grace to an appellant, does

not save that claim from being procedurally defaulted in the federal District Court. Coleman v.

Mitchell, 268 F.3d 417, 429 (6th Cir. 2001) (“Coleman II”), quoting Amos v. Scott, 61 F.3d 333,

342 (5th Cir. 1995). Finally, a District Court’s review “is limited to the record that was before the

state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180, 181

(2011).

A State’s procedural default defense must clear four hurdles. First, a petitioner must have

actually violated the state procedural rule; a state court’s mistaken interpretation of a rule in finding

that the petitioner violated that rule will not suffice. Lee v. Kemna, 534 U.S. 362, 376-77, 387

(2002); Trevino v. Texas, 503 U.S. 562, 567 (1992) (per curiam). Second, the case must not fall

within an exception to the state procedural rule which the petitioner is alleged to have violated;

e.g., if the gravamen of a petitioner’s ineffective assistance of counsel claim is based on evidence

outside the trial court record, then failure to raise that claim on direct appeal does not constitute a

procedural default. Morales v. Mitchell, 507 F.3d 916, 937 (6th Cir. 2007). Third, the state court,

in its last explained decision, must expressly state that a claim has been procedurally defaulted by

failing to comply with a procedural rule; otherwise, “[w]hen a federal claim has been presented to

a state court[,] and the state court has denied relief, it may be presumed that the state court

adjudicated the claim on the merits in the absence of any indication [of such a holding] or state-

law procedural principles to the contrary.” Harrington, 562 U.S. at 99. Finally, the state

procedural rule must be “adequate”—that is, it must have been clearly announced, “firmly

established[,] and regularly followed” by the State. Ford v. Georgia, 498 U.S. 411, 423-24 (1991).

The Sixth Circuit adopted a four-part test in Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986),

in which the District Court must examine whether: (1) a petitioner failed to comply with a

procedural rule; (2) the state court enforced the procedural sanction; (3) the state procedural bar is

“an adequate and independent ground” upon which the state can foreclose federal review; and (4)

a petitioner can demonstrate good cause for not complying with the procedural rule, and actual

prejudice from enforcement of the default. Id. at 138. A petitioner may circumvent the procedural

default bar by showing cause for the default and actual prejudice as a result of the alleged violation

of federal law, “or demonstrate that failure to consider the claims will result in fundamental

miscarriage of justice.” Coleman v. Thompson, 501 U.S. at 749-50; McCleskey v. Zant, 499 U.S.

467, 494-95 (1991). A petitioner must show that an objective factor, external to petitioner,

prevented him from complying with the procedural rule, Murray, 477 U.S. at 488, and that his trial

was “infected with error so ‘plain’ that the trial judge and prosecutor were derelict in

countenancing it, even absent the defendant’s timely assistance in detecting it.” U.S. v. Frady, 456

U.S. 152, 163 (1982), citing FED.R.CRIM.P. 52(b). Similarly, ineffective assistance of counsel in

failing to raise a claim in postconviction can be considered good cause to set aside the procedural

default and examine the claim on its merits. Trevino v. Thaler, 569 U.S. 413 (2013); Martinez v.

Ryan, 566 U.S. 1 (2012).

Procedural default may also be excused if a Petitioner can show, by a preponderance of the

evidence, that he is “actually innocent,” such that “a court cannot have confidence in the outcome

of the trial[,]” Lott v. Coyle, 261 F.3d 594, 602 (6th Cir. 2001), quoting Schlup v. Delo, 513 U.S.

298, 316 (1995), and thus, his conviction constituted a “fundamental miscarriage of justice.”

Coleman v. Thompson, 501 U.S. at 750.

II. ANALYSIS

A. Ineffective Assistance of Counsel Claims for Relief

Hasan raised several claims of ineffective assistance of trial and appellate counsel. The

Court examines them in turn, noting that when the issue is ineffective assistance of counsel, the

federal court is required to be doubly deferential as to any claim adjudicated by the state courts.

Harrington, 562 U.S. at 105.

1. Claim One: Failure to Voir Dire Potential Jurors on Issues of Race and

Religion

“Hasan contends his trial counsel were ineffective for failing to question prospective jurors

about their thoughts on Hasan’s race, African-American, and his religion, Muslim.” (Report, ECF

No. 81, PageID 1066, citing Petition, ECF No. 16, PageID 2051-52). The initial Report concluded

that “Hasan offers no evidence that any of the jurors in his case harbored any latent, or patent for

that matter, racial prejudices, and his suppositions and conclusion that his jury was ‘potentially

prejudiced’ are not enough to overcome the dual requirements of Strickland and 28 U.S.C. §

2254(d)(1).” Id. at PageID 1070-71, citing Strickland v. Washington, 466 U.S 668, 694 (1984).

Hasan raised three objections initially. First, he objected to the Magistrate Judge’s “reliance on

the Ohio Supreme Court’s ad hoc determination that counsel were in the best position to determine

whether such voir dire was necessary[,]” given that Timothy A. Smith, one of Hasan’s trial

attorneys, testified that there was no tactical reason not to challenge on race (Objections, ECF No.

91, PageID 1367-68, quoting Smith Depo., ECF No. 58, PageID 810; citing Report, ECF No. 81,

PageID 1068). Second, the Magistrate Judge’s theory that it would have been ill-advised to voir

dire on racial bias and conclusion that there was no prejudice shown are directly contrary to Turner

v. Murray, 476 U.S. 28 (1986). Id. at PageID 1369, citing 476 U.S. at 35. Third, while the

Magistrate Judge stated that little evidence had been provided to think that voir dire of the jury

was appropriate, Smith’s testimony rebutted the Supreme Court of Ohio’s similar finding. Id.

(citation omitted).

The Magistrate Judge noted that Smith’s deposition, although taken pursuant to this Court’s

Order (ECF No. 37), was not in evidence, and that

[T]he Supreme Court did not hold in Turner that it is per se

ineffective assistance of trial counsel to fail to voir dire jurors on

racial bias when ‘race is a factor.’ What it held was that a trial judge

committed constitutional error when he refused to ask questions in

voir dire related to this point.

(Supp. Report, ECF No. 119, PageID 1645). Smith objected that his filing of the Smith deposition

and request that the Magistrate Judge use his discretion to expand the record to include the

deposition were sufficient to place the deposition into evidence by the Court. Additionally,

“Respondent relied on Tim Smith’s deposition to argue against Petitioner’s habeas claims. It

simply is an unfair process that one party can rely on a piece of evidence, and another cannot.”

(Supp. Objections, ECF No. 122, PageID 1703-04 (citations omitted)). He also claims that the

Magistrate Judge relied on Smith’s deposition when it was detrimental to Hasan’s position, and

discounted the deposition as not in evidence when it was favorable to Hasan’s position. Id. at

PageID 1704-05, quoting Supp. Report, ECF No. 119, PageID 1648-49.

Hasan directs the Court to a prior version of S.D. Ohio Civ.R. 5.4(b) (Supp. Objections,

ECF No. 122, PageID 1704), which stated that depositions “shall be filed electronically if a party

reasonably anticipates that they will be needed as evidence relating to a forthcoming motion or

other proceeding.” S.D. Ohio Civ.R. 5.4(b). Further, the Magistrate Judge ordered merits briefing

on his Petition (Supp. Objections, ECF No. 122, PageID 1704, citing Order, ECF No. 59), and

Hasan relied on the deposition in his merits brief (ECF No. 60, citing Smith Depo., ECF No. 58).

Hasan argues the submission, order, and reliance are sufficient to admit the deposition (Supp.

Objections, ECF No. 122, PageID 1704, citing S.D. Ohio Civ.R. 7.2(e)).

There are two problems with Hasan’s position. First, the designation of a deposition and

reliance upon it, without more, is analogous to introducing and designating an exhibit at trial—by

itself, that does not put the deposition or exhibit into evidence. Second, the deposition does not

contain the signature of the court reporter or the stamp of the notary public in front of whom she

signed, and Hasan does not argue that he made other attempts to authenticate the deposition. Thus,

even if Hasan’s above-described efforts were sufficient to put a document in evidence, it was not

sufficient to put this deposition into evidence. As the Magistrate Judge’s determination that the

deposition was not in evidence is correct, the Court will not consider it or Hasan’s arguments

relying on the deposition. Also, the Court will not consider the Magistrate Judge’s conclusions to

the extent he relied upon the Smith deposition.

The last reasoned state court decision on this claim, as with many others, is State v. Sanders,

92 Ohio St. 3d 245 (2001). Therein, the Supreme Court of Ohio held that “trial counsel, who saw

and heard the jurors, were in the best position to determine whether such voir dire was needed.”

Id. at 274. Absent the Smith deposition, the Magistrate Judge’s conclusion that the state court

decision was neither contrary to law nor unsupported by the record was proper. Moreover, Turner

did nothing more than “hold that a capital defendant accused of an interracial crime is entitled to

have prospective jurors informed of the race of the victim and questioned on the issue of racial

bias.” 428 U.S. at 36-37 (emphasis added). The Magistrate Judge was thus correct in concluding

that there was no clearly established law mandating that Hasan’s counsel conduct voir dire on the

issue. Hasan’s objections are overruled.

2. Claim Two: Failure to Request Curative Instruction After Religiously

Biased and Racially Charged Comments During Voir Dire

During voir dire, venire member Martin Robin remarked that Hasan, an African-American

man dressed in traditional Islamic attire, reminded Robin of Louis Farrakhan, leader of the Nation

of Islam, a group that to Robin “represented anti-Semitism, hatred of white people, and black

separatism.” (Traverse, ECF No. 22, PageID 40 (citations omitted)). Hasan’s trial counsel moved

to dismiss the entire panel; the trial judge denied that motion but dismissed Robin from the venire.

Counsel undertook no further action, such as requesting a curative instruction based on Robin’s

comments. Hasan claims he was prejudiced because the comments were made in the presence of

four people who ultimately served as jurors. Id. at PageID 40-41. The Supreme Court of Ohio

concluded that “at trial he did not ask the court to take such measures. Thus, he has waived his

claim that such measures should have been taken.” Sanders, 92 Ohio St. 3d at 249.

However, the propositions of law, as discussed by the Sanders Court, concerning

ineffective assistance did not appear to cover counsel’s failure to request a curative instruction.

Nowhere in the Petition or Traverse does Hasan identify where in the record the issue was raised

in postconviction, and it is axiomatic that this Court need not scour the record (especially when,

as here, the state court record runs to thousands of pages) to determine whether and how the claim

was raised. Rather, the claim appears to be procedurally defaulted. Moreover, the claim is

meritless. As the Magistrate Judge pointed out, three of the four purportedly affected jurors had

already stated that they had no issue with the Islamic faith, and the fourth stated that he had no

reason to believe he could not be an impartial, fair juror. “There is no suggestion in the record that

any of the four jurors were anything but honest and truthful in their answers, and no evidence

whatsoever that any of them were swayed by Robin’s comments into a bias against Islam or Hasan

himself.” (Report, ECF No. 81, PageID 1075-76). Thus, even if it was deficient performance for

trial counsel not to request a curative instruction, there was no prejudice. Hasan’s objections are

overruled.

3. Claim Four: Abandonment of Grand Jury Bias Claim

Hasan claims that counsel improperly withdrew his claim, without explanation, that there

were four biased members of the grand jury that indicted him (Petition, ECF No. 16, PageID 2061-

62). This withdrawal, along with counsel’s failure to develop additional evidence supporting the

claim, caused Hasan to be deprived of “his rights to an unbiased jury and due process in violation

of the Fifth, Sixth, and Fourteenth Amendments.” Id. at PageID 2061. It is undisputed that the

evidence Hasan claims counsel should have developed was never presented to the state courts,

rendering the claim procedurally defaulted (Report, ECF No. 81, PageID 1079). This Court

recently held that Martinez-Trevino could not be used to cure the procedural default for Claim

Four (Order, ECF No. 236, PageID 15247-48), and the undersigned has no reason to depart from

that holding. Hasan’s objections are overruled.

4. Claim Five: Failure to Object to Trial Court’s Failure to Hold a

Remmer Hearing

Jurors during the trial were exposed to anti-death penalty demonstrators. The trial judge

brought two of the demonstrators into court and admonished them for making jurors feel

intimidated. The judge subsequently questioned the jurors, who stated that they were prepared to

move forward with the trial (Petition, ECF No. 16, PageID 2063-65, quoting Trial Tr., ECF No.

163-4, PageID 9530-36, ECF No. 163-5, PageID 9704). However, the judge did not hold an

evidentiary hearing under Remmer v. United States, 347 U.S. 227 (1954), to determine whether

there had been any influence on the jurors. Hasan argues that counsel violated Strickland in not

asking for such a hearing and not objecting to the judge’s failure to hold a hearing. Id. at PageID

2062-63, 2065-6, citing Remmer.

The Supreme Court of Ohio found that the trial judge did not abuse his discretion by not

conducting a Remmer hearing or voir dire of individual jurors beyond the two that he questioned.

Here, in contrast, the trial judge asked the jurors whether the incident

with the demonstrators had affected them. Moreover, he acted to

allay possible prejudice by warning the demonstrators not to speak

to the jurors, by telling the jurors he had done so, and by informing

the jurors that the demonstrators had no connection to either party

in the case.

Sanders, 92 Ohio St. 3d at 252.

It is well-established “that at least in the Sixth Circuit, the burden of proving prejudice

from extraneous information lies at the feet of the petitioner, as Hasan acknowledges.” (Report,

ECF No. 81, PageID 1080-82, citing Smith v. Phillips, 455 U.S. 209, 215 (1982); Remmer, 347

U.S. at 229-30; United States v. Pennell, 737 F.2d 521, 532 (6th Cir. 1984); United States v. Walls,

No. 95-2373, 162 F.3d 1162 (TABLE), 1998 WL 552907, *8 (6th Cir. Aug. 11, 1998); Traverse,

ECF No. 22, PageID 49-50). The Magistrate Judge concluded that even if counsel’s acquiescence

to the trial judge’s questioning of the jurors was ineffective assistance, Hasan had failed to show

how he was prejudiced by this, and recommended that Claim Five be denied (Report, ECF No. 81,

PageID 1086, citing Trial Tr., ECF No. 163-4, PageID 9533).

There is considerable uncertainty whether Hasan’s claim arises under Remmer, Strickland,

or both. Sanders, 92 Ohio St. 3d at 251-52; Report, ECF No. 81, PageID 1086; Objections, ECF

No. 91, PageID 1378-79; Supp. Report. ECF No. 119, PageID 1650-51; Supp. Objections, ECF

No. 122, PageID 1707-08. Yet, that uncertainty is ultimately immaterial, as his claim is not viable

under either Remmer or Strickland. The Supreme Court of Ohio held that the trial judge did not

violate Remmer by not holding a separate evidentiary hearing, Sanders, 92 Ohio St. 3d at 251-52;

that holding is entitled to deference. Absent a Remmer violation, there can be no Strickland

violation for failing to object. Thus, even if Hasan is correct that no prejudice need be shown for

failure to conduct a Remmer hearing (Objections, ECF No. 91, PageID 1378-79, citing Wisehart

v. Davis, 408 F.3d 321 (7th Cir. 2005)), he has still failed to meet the Remmer standard or prong

one of Strickland. Hasan’s objections are overruled.

5. Claim Seven: Failure to Request Removal of Sleeping Juror

During his trial, counsel brought to the trial judge’s attention that a juror, Mary McHale,

had been sleeping for over an hour during the prosecution’s case-in-chief. The trial judge

admonished the jury and made the courtroom cold, but counsel never moved to excuse McHale,

and the trial judge did not do so (Petition, ECF No. 16, PageID 2067-68, quoting Trial Tr., ECF

No. 163-9, PageID 10734-35, ECF No. 164-2, PageID 11501; Traverse, ECF No. 22, PageID 54,

citing Irwin v. Dowd, 366 U.S. 717, 722 (1961)). Hasan claims that trial counsel’s failure to take

any action with respect to McHale amounted to a constructive denial of his right to trial by jury.

Id. at PageID 2068. The Supreme Court of Ohio rejected the claim, concluding that counsel’s

bringing McHale’s sleeping to the trial court’s attention was sufficient for Strickland purposes.

Sanders, 92 Ohio St. 3d at 274-75.

The Magistrate Judge recommended that the claim be denied, concluding that the Supreme

Court of Ohio’s decision was not contrary to clearly established federal law (Report, ECF No. 81,

PageID 1089). He concluded that Irwin was inapposite, as “Irwin relates to juror impartiality, not

juror misconduct, and sleeping is a form of juror misconduct.” Id. at PageID 1090, citing United

States v. Sherrill, 388 F.3d 535, 537-38 (6th Cir. 2004). Further, Hasan had failed to show a

reasonable probability that the trial court would have been receptive to a motion to excuse or voir

dire McHale, and that the removal or voir dire would have resulted in a different outcome. Id. at

PageID 1090-91, quoting United States v. Tierney, 947 F.2d 854, 868-69 (8th Cir. 1991); citing

Strickland, 466 U.S. at 694.

Hasan raises two main objections, neither of which is persuasive. First, while he claims

that the Magistrate Judge’s reliance on the Supreme Court of Ohio’s decision was misplaced,

because the court rejected the claim with just one sentence of analysis (Objections, ECF No. 91,

PageID 1380, citing Report, ECF No. 81, PageID 1089), one sentence of analysis is sufficient to

constitute a reasoned decision on the merits. Munson, 384 F.3d at 314 (citation omitted). Second,

he claims that “outcome-determinative” prejudice is not required; “Petitioner need only

demonstrate that had his counsel acted, he would have received a fair trial – as opposed to one

impinged by, as the trial court found, ‘too much sleeping.’” (Objections, ECF No. 91, PageID

1381). Yet, as the Magistrate Judge noted, outcome-determinative prejudice is the required

showing (Supp. Report, ECF No. 119, PageID 1656, quoting West v. Seabold, 73 F.3d 81, 84 (6th

Cir. 1996); United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992); citing Mickens v. Taylor,

535 U.S. 162, 166 (2002); Lockhart v. Fretwell, 506 U.S. 364 (1993)). Hasan’s objections are

overruled.

6. Claim Thirteen: Failure to Subpoena and Authenticate Evidence

Material to Hasan’s Defense

Hasan’s counsel served a subpoena duces tecum upon the Federal Bureau of Investigation

seeking certain investigative materials relating to the riots, including “Tunnel Tapes 60 and 61.”

The United States moved to quash the subpoena, Hasan’s counsel allegedly failed to respond to

the motion, and the trial court granted the government’s motion (Petition, ECF No. 16, PageID

2093, citing Trial Tr., ECF No. 164-4, PageID 11722-27). Hasan claims that the materials would

have helped his counsel prove that the State had doctored the evidence and would have been

admissible to prove that. He also argues that counsel were ineffective in failing to subpoena

someone to testify as to the authenticity of his copy of Tunnel Tape 61, which the trial court refused

to allow to be played because the copy was not properly authenticated. Id. at PageID 2093-94.

The Supreme Court of Ohio rejected this claim, holding that Hasan did “not show how this

lapse [in attorney judgment] was prejudicial.” Sanders, 92 Ohio St. 3d at 274. Further, in his

Traverse, Hasan seeks only discovery of Tunnel Tape 61,which this Court denied (Report, ECF

No. 81, PageID 1100, citing Traverse, ECF No. 22, PageID 79-80; Order, ECF No. 75). In his

Objections, Hasan argues that the only reason he could not prove prejudice was because the

Magistrate Judge refused to allow him access to the only piece of evidence that could prove the

claim—Tunnel Tape 61. (Objections, ECF No. 91, PageID 1392). Objections are not the proper

vehicle to relitigate discovery decisions, and they are overruled.

7. Claim Fifteen: Failure to Object to Cumulative Prejudicial Evidence

Hasan claims that “during its case in chief, the State . . . presented testimony related to

numerous uncharged crimes, including crimes it did not even allege that Petitioner committed.”

(Petition, ECF No. 16, PageID 2096). Counsel failed to object, supposedly allowing this

inflammatory evidence to shock the jury at both the guilt and penalty phases of the trial. Id. at

PageID 2098-99. The Supreme Court of Ohio “determined without elaboration that defense

counsels’ failure to object to the evidence in question was a tactical decision, and that Hasan had

shown neither attorney error nor prejudice in his presentation of his claim.” (Report, ECF No. 81,

PageID 1103-04, citing Sanders, 92 Ohio St. 3d at 274).

The Magistrate Judge noted that while Hasan claims that he was prejudiced by the failure

to object to allegedly cumulative testimony regarding the chaos and destruction from the riot,

Hasan’s defense was that he had no control over the prisoners. “Evidence that violence and

destruction were widespread and uncontrolled during the riot was just as likely, and maybe even

more likely to add potency to Hasan’s defense as it was to cause a reasonable juror to hold Hasan

responsible for the acts of the other inmates.” Id. at PageID 1104-05, citing Petition, ECF No. 16,

PageID 2096-98; Traverse, ECF No. 22, PageID 82-83. Further, Hasan was acquitted of killing

Corrections Officer Bruce Harris, despite the jury’s being shown numerous crime scene and

autopsy photographs, undercutting Hasan’s argument that the cumulative evidence would shock a

reasonable jury. Id. at PageID 1105. Finally, Hasan’s argument that pictures of Vallandingham

were unnecessary, as the latter’s death was undisputed, was unavailing, given the State’s

requirement to prove every element of a crime irrespective of any concession. . Id. at PageID

1106, citing Estelle v. McGuire, 502 U.S. 62, 69 (1991); Strickland, 466 U.S. at 694; Petition, ECF

No. 16, PageID 2098.

Hasan further objects to the Magistrate Judge supposedly giving short shrift to Tim Smith’s

testimony as to the lack of strategy or plan in not objecting to the cumulative evidence: “four

miniscule cites in a 5,000 page transcript.” (Objections, ECF No. 91, PageID 1394, citing Report,

ECF No. 81, PageID 1105). Again, Smith’s deposition is not in evidence, and objections based

on the deposition are unavailing. Moreover, the Supreme Court of Ohio’s decision, although brief,

was not unreasonable or contrary to law, which was Hasan’s other objection. Hasan’s objections

are thus overruled in full.

8. Claim Sixteen: Failure to Object to Introduction of Victim Impact

Statement

Hasan claims that “the State elicited overwhelming victim impact evidence during its case-

in-chief[,]” despite not being proper guilt phase evidence (Petition, ECF No. 16, PageID 2099-

2100). Further, “[t]hat evidence was unrelated to the crimes or to the issues to be resolved at trial

and was inflammatory.” Thus, the admission of the evidence deprived Hasan of his right to a fair

trial, and counsel’s failure to object to such evidence was ineffective assistance. Id. at PageID

2101. The Magistrate Judge concluded that the introduction of such testimony was not

prosecutorial misconduct in violation of Payne v. Tennessee, and thus, failure to object could not

have violated Strickland (Report, ECF No. 81, PageID 1110, citing Payne, 501 U.S. 808 (1991)).

In his objections, Hasan claims that Payne “specifically limited itself to the admission of

victim impact evidence at the phase where it was ‘relevant to the jury’s decision as to whether or

not the death penalty should be imposed.’” (Objections, ECF No. 91, PageID 1395, quoting Payne,

501 U.S. at 827). Payne held no such thing:

We thus hold that if the State chooses to permit the admission of

victim impact evidence and prosecutorial argument on that subject,

the Eighth Amendment erects no per se bar. A State may

legitimately conclude that evidence about the victim and about the

impact of the murder on the victim’s family is relevant to the jury’s

decision as to whether or not the death penalty should be imposed.

There is no reason to treat such evidence differently than other

relevant evidence is treated.

501 U.S. at 827. Further, the Supreme Court expressly contemplated instances in which such

testimony could be introduced in the guilt phase. Id. at 823. Thus, there is no federal constitutional

issue as to the introduction of victim impact testimony, and absent such a constitutional issue,

Hasan’s objections are overruled.

9. Claim Nineteen: Failure to Assign as Error Hasan’s Denial of Access

to Grand Jury Transcripts

The trial judge refused to allow Hasan to inspect the grand jury transcripts of “co-

defendants, co-conspirators, and complicitors.” (Petition, ECF No. 16, PageID 2111). Despite the

trial court’s granting in part Hasan’s motion for in camera inspection and the importance of such

evidence to Hasan’s defense, id. at PageID 2111-15, appellate counsel did not raise the trial court’s

refusal as an assignment of error. Hasan claims that “[t]here is a reasonable probability that if

appellate counsel had raised this error that Petitioner’s convictions would have been reversed.” Id.

at PageID 2115. However, in his Traverse, Hasan seeks only discovery (ECF No. 22, PageID

108), which this Court denied previously (Report, ECF No. 81, PageID 1120, quoting Order, ECF

No. 37, PageID 515-16). Hasan objects that he “could not establish prejudice due to the refusal to

grant discovery. This demonstrates that Petitioner previously correctly argued that the discovery

requested may establish his entitlement to relief under Bracy.” (Objections, ECF No. 91, PageID

1398, citing Bracy v. Gramley, 520 U.S. 899 (1997)). Yet, objections are not the proper vehicle

to relitigate a discovery decision. Hasan’s objections are overruled.

10. Claim Twenty-One: Failure to Object to Erroneous Jury Instruction

Hasan claims that the jury instruction on complicity “was inaccurate and incomplete[,]”

and that trial counsel’s failure to object meant that the jury was able to convict Hasan of aggravated

murder “without a finding of a purpose to kill, an essential element of aggravated murder.”

(Petition, ECF No. 16, PageID 2120, citing Ohio Rev. Code § 2903.01(D)). He “argues that the

complicity instruction unconstitutionally shifted the burden of proof on the intent element of the

aggravated murder offense to him because the trial court did not emphasize that intent is an

essential element at the time the complicity instruction was given.” (Report, ECF No. 81, PageID

1123, citing Traverse, ECF No. 22, PageID 109-12). The Supreme Court of Ohio held that “his

claims were not supported by existing law at the time of the trial, and counsel had no duty to press

‘untested or rejected legal theories.’” Sanders, 92 Ohio St. 3d at 275, quoting State v. McNeill 83

Ohio St.3d 438, 449 (1998).

In his Report, the Magistrate Judge noted the heavy burden a habeas petitioner faces in

obtaining relief based on a jury instruction: “Errors in jury instructions do not rise to the level of

a constitutional violation unless the habeas petitioner can establish that the ‘instruction by itself so

infected the entire trial that the resulting conviction violates due process.’” (Report, ECF No. 81,

PageID 1123, quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973); Buell v. Mitchell, 274 F.3d

337, 365 (6th Cir. 2001)). As “the jurors were repeatedly instructed that Hasan could not be found

guilty of aggravated murder unless the state proved beyond a reasonable doubt that he did so

purposely[,]” id. at PageID 1124 (citations omitted), Hasan is unable to prove prejudice—that is,

that had his attorneys objected, the objection would have been sustained and “that there is a

reasonable probability that the outcome of his trial would have been different as a result[.]” Id.

Hasan raises two closely-related objections. First, he claims that the Magistrate Judge

erred in finding that the Supreme Court of Ohio’s decision was not unreasonable, as “[t]he United

States Supreme Court does not allow burden shifting.” (Objections, ECF No. 91, PageID 1400,

citing Sandstrom v. Montana, 442 U.S. 510 (1979); Houston v. Dutton, 50 F.3d 381, 385 (6th Cir.

1995); Report, ECF No. 81, PageID 1122, 1124-25). Second, contrary to the Magistrate Judge’s

conclusion, a reasonable juror could understand the instruction as presuming that intent already

existed. Id., citing Report, ECF No. 81, PageID 1124. Neither is persuasive. As discussed above,

the trial judge repeatedly instructed the jury that Hasan could only be convicted if the jurors

concluded that he acted purposely, and defined purposely for the jury (See, e.g., Trial Tr., ECF No.

164-9, PageID 12906). No reasonable reading of the instructions suggests that the trial judge

shifted the burden of proof to Hasan, and the supposedly erroneous instruction certainly does not

raise a reasonable probability of a different outcome. Hasan’s objections are overruled.

11. Claim Twenty-Eight: Failure to Object to Jury Instruction

Hasan argues that the jury instruction improperly defined “mitigating factors,” and

counsel’s failure to object caused jurors to be unduly restricted in their consideration of mitigation

evidence, as they were not instructed that they could “consider Petitioner’s history, character, and

background when reaching its sentencing determination.” (Petition, ECF No. 16, PageID 2137,

quoting Trial Tr., ECF No. 165-2, PageID 13268). The Supreme Court of Ohio rejected this claim,

concluding that “his claims were not supported by existing law at the time of the trial, and counsel

had no duty to press untested or rejected legal theories.” Sanders, 92 Ohio St. 3d at 275 (internal

quotation marks and citation omitted). The Magistrate Judge recommended that the claim be

denied, concluding that: (1) the state court decision was not contrary to existing Supreme Court

precedent; (2) Hasan had alleged but not demonstrated prejudice from the allegedly faulty jury

instruction; and (3) “even if he had demonstrated prejudice, the Ohio Supreme Court’s independent

weighing of the aggravating circumstances and mitigating factors, in which it fully considered and

gave some weight to Hasan’s history, character, and background, likely cured the prejudice.”

(Report, ECF No. 81, PageID 1136, citing Sanders, 92 Ohio St. 3d at 279-81).

Hasan’s entire objections are as follows:

Petitioner objects to the MJ’s denial of Petitioner’s claim and the

conclusion that the Ohio Supreme Court’s decision was not contrary

to or unreasonable. Petitioner also objects to the MJ’s proposition

that an appellate court’s reweighing can constitutional [sic] fix and

substitute for the required constitutional analysis for an error

recognized years later.

(Objections, ECF No. 91, PageID 1404). Only specific objections are preserved for appellate

review. Smith v. Detroit Federation of Teachers, 829 F.2d 1370 (6th Cir. 1987). The district court

need not provide de novo review where objections to a Magistrate Judge’s report and

recommendations are frivolous, conclusive, or general. Parties have a duty to pinpoint portions of

the report that the Court should consider. Mira v. Marshall, 806 F.2d 636 (6th Cir. 1986). As the

first objection states nothing about why the Magistrate Judge’s decision was incorrect, and the

second objection is dealt with extensively infra in Claims Twenty-Six and Twenty-Seven, Hasan’s

objections are overruled.

12. Claim Twenty-Nine: Failure to Object to Improper Penalty Phase

Instructions

Hasan claims that the jury instructions were improper in that they stated that unanimity

was required for any verdict the jurors returned, rather than stating that any one of them could

prevent the imposition of the death penalty (Petition, ECF No. 16, PageID 2139-40 (citations

omitted)). He argues that “there is a reasonable probability that if counsel had objected to the

improper instructions a member of Petitioner’s jury could have considered a life sentence and

Petitioner would not have been sentenced to death.” Id. at PageID 2141. The Magistrate Judge

recommended that the claim be denied, noting that the Supreme Court had held that such

instructions were acceptable so long as there is no requirement of unanimity as to a particular

mitigating factor (Report, ECF No. 81, PageID 1137, citing McKoy v. North Carolina, 494 U.S.

433 (1990); Mills v. Maryland, 486 U.S. 367, 373-75 (1988); Roe v. Baker, 316 F.3d 557 (6th Cir.

2002); Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000); Coe v. Bell, 161 F.3d 320 (6th Cir. 1998)).

“Furthermore, Hasan’s counsel cannot have been ineffective by failing to object when the

objection would have been overruled.” Id. at PageID 1138.

Hasan’s sole specific objection is that the Magistrate Judge failed to follow Davis v.

Mitchell (Objections, ECF No. 91, PageID 1404-05, citing Williams v. Anderson, 460 F.3d 789

(6th Cir. 2006); Davis, 318 F.3d 682 (6th Cir. 2003). In Davis, the Sixth Circuit held that the

instructions were unconstitutional in part because “the jury was never told, either expressly or

impliedly, that individual jurors may consider mitigating circumstances in the weighing process

regardless of the lack of agreement with other jurors as to the presence of that factor.” Id. at 689-

90. In this case, “Hasan does not contend that the jurors in his case were instructed that existence

of any mitigating factor must be unanimously found, only that they were instructed that any life

sentence verdict must be unanimous.” (Report, ECF No. 81, PageID 1137). Further, the jury

instructions in Hasan’s case were not “acquittal first”— the decisions as to whether to impose the

death penalty or a life imprisonment sentence were to be considered contemporaneously, rather

than a rejection of the death penalty first. Thus, assuming that Hasan is right as to Davis controlling

in this Court, the instructions in this case would still comply with binding precedent. Hasan’s

objections are overruled; however, because reasonable jurists could disagree with this conclusion,

Hasan is granted a certificate of appealability with respect to this issue.

13. Claim Thirty-Two: Failure to Object to Improper Victim Impact

Opinion Testimony

During the penalty phase of the trial, Vallandingham’s mother testified that the proper

punishment for someone killing her son “should be punished with an automatic death penalty.”

(Petition, ECF No. 16, PageID 2148, citing Trial Tr., ECF No. 165-3, PageID 13295-97). Hasan

claims that, had counsel objected to this testimony, he “would not have been convicted of capital

murder and sentenced to death.” Id. In his Traverse, Hasan “drop[ped] his ineffectiveness

arguments under his Thirty-Second Habeas Ground. However, he continues to assert as error the

trial court’s improper consideration of the victim opinion evidence.” (ECF No. 22, PageID 153).

However, as noted by the Magistrate Judge, Hasan had never actually raised an independent

improper testimony claim (Report, ECF No. 81, PageID 1144, citing Rules Governing Section

2254 Cases 2(b)). “That Hasan has withdrawn the claim asserted in his petition, and has not sought

to amend his petition through proper channels leaves this Court with nothing to address with

respect to Hasan’s thirty-second ground for relief. The claim should be denied on that basis.” Id.

Hasan objects that he did fairly raise the claim , noting that he stated both that the testimony

violated the Eighth Amendment and that the trial court erred in considering such testimony

(Objections, ECF No. 91, PageID 1406, citing Petition, ECF No. 16, PageID 2148). Moreover,

Hasan claims, the Warden’s response on the merits to the underlying claim shows that he was on

notice that Hasan had raised such a claim. Id., citing Return of Writ, ECF No. 17, PageID 2309.

Yet, the Warden couched his merits analysis only in the alternative, and stated in bold type his

position that “[t]his claim ‘on the record’ is procedurally defaulted[.]” (Return of Writ, ECF No.

17, PageID 2308-09). Raising a potential alternative ground out of an abundance of caution is not

the equivalent of being on notice of the gravamen of a claim. As the claim is procedurally

defaulted, Hasan’s objections are overruled. However, because a reasonable jurist could disagree

with this conclusion, Hasan is granted a certificate of appealability on this issue.

14. Claim Thirty-Three: Prosecutorial Misconduct During Penalty Phase

Hasan argues that the State engaged in myriad instances of misconduct during the penalty

phase of the trial, and that had trial counsel objected to this misconduct, “Petitioner would not have

been convicted of capital murder and sentenced to death. Trial counsel’s failure to do so violated

his Eighth and Fourteenth Amendment rights.” (Petition, ECF No. 16, PageID 2152). Like Claim

Thirty-Two, it is unclear whether Hasan intends to bring a prosecutorial misconduct or ineffective

assistance claim. Yet, the distinction is ultimately immaterial. If this is a prosecutorial misconduct

claim, then counsel’s failure to object contemporaneously has defaulted the claim. If Hasan is

raising an ineffective assistance claim or using ineffective assistance as cause to set aside that

procedural default, the Supreme Court of Ohio rejected the ineffective assistance claim (Report,

ECF No. 81, PageID 1145-46, citing Sanders, 92 Ohio St. 3d at 274-75). While Hasan objects

that the Magistrate Judge erred in not considering cause arguments pursuant to Murray, he does

not explain, much less demonstrate, how the Supreme Court of Ohio’s ruling was unreasonable or

contrary to law. Consequently, Hasan’s objections are overruled.

B. Pretrial, Trial, and Sentencing Claims for Relief

1. Claim Three: Venire was Racially Skewed, Resulting in an Unfair Jury

Hasan claims that “[a]s a result of state action, the vast majority of prospective African-

American jurors were located at the end of Petitioner’s venire. This structuring all but precluded

the possibility of securing a representative jury.” (Petition, ECF No. 16, PageID 2055). However,

in his Traverse, Hasan concedes that he “is not requesting a decision on the merits of his ineffective

assistance of counsel claim, but rather is arguing that ruling on this claim is premature because

discovery has not been completed in habeas.” (Traverse, ECF No. 22, PageID 45). Yet, as the

Magistrate Judge correctly notes, “a traverse is not the proper vehicle for requesting discovery.”

(Report, ECF No. 81, PageID 1076, citing Rules Governing Section 2254 Cases 5 and 6). Hasan

argues that there is nothing in the Habeas Rules or Supreme Court precedent that prohibits him

from taking such discovery (Objections, ECF No. 91, PageID 1374). However, he cites no

authority by which requesting discovery through a traverse is proper, and the mere absence of

contrary Supreme Court authority or rule does not dictate such a request would be proper. Further,

the request is inconsistent with the fact that, on the same day the Traverse was filed, Hasan sought

discovery on Claim Three in his Motion to Conduct Discovery and Request for an Evidentiary

Hearing (ECF No. 21, PageID 20), which this Court denied (Order, ECF No. 37, PageID 520;

Order Affirming Mag. Judge Decision, ECF No. 46). The request is no better taken here. Hasan’s

objections are overruled and Claim Three is denied.

2. Claim Six: Erroneous Denial of Jury View

Hasan claims that he was deprived of a fair trial when the trial court denied counsel’s

motion for a jury view of the L-block, where the murder of Robert Vallandingham occurred

(Petition, ECF No. 16, PageID 2067, citing Trial Tr., ECF No. 162-7, PageID 8741-43). The

Supreme Court of Ohio rejected this claim, concluding both that the denial had a rational basis—

“that the premises had changed so much since then that a jury view would not be helpful”—and

that “[d]enial of a view did not ‘significantly [undermine] fundamental elements of the defendant's

defense.’” Sanders, 92 Ohio St. 3d at 255-56 (brackets in original), quoting United States v.

Scheffer, 523 U.S. 303, 315 (1998); citing State v. Zuern, 32 Ohio St. 3d 56, 58 (1987).

The Magistrate Judge recommended that the claim be denied, noting that a nearly-identical

claim had been raised in a case involving another inmate who participated in the riots (Report,

ECF No. 81, PageID 1087-89, quoting Zuern v. Tate, 101 F. Supp. 2d 948, 980-81 (S.D. Ohio

2000 (Rice, C.J.)), rev’d in part on other grounds at 336 F.3d 478 (6th Cir. 2003)). Then-Chief

Judge Walter H. Rice rejected Zuern’s claim, noting that “[u]nder the law of Ohio, a jury view is

not evidence[,]” meaning that “by denying the Petitioner’s request for a jury view, the trial court

did not prevent him from presenting evidence to support his defense.” Zuern, 101 F. Supp. 2d at

980 (emphasis in original). Further, the decision to deny a jury view was within the trial court’s

discretion; even if that discretion had been abused, that abuse could not establish a federal

constitutional violation. Id. at 981.

Hasan objects to the Magistrate Judge’s reliance on a District Court case, and claims that

“[t]he jury view would have illuminated the significance and the distance between these two

points. This also forms a basis of the prejudice that inures.” (Objection, ECF No. 91, PageID

1379-80). Neither objection is persuasive.

District Court decisions, even published decisions of judges of the same Court, do not bind

this Court in subsequent cases. Threadgill v. Armstrong World Industries, Inc., 928 F.2d 1366,

1371 (3rd Cir. 1991). See also Colby v. J.C. Penney Co., Inc., 811 F.2d 1119, 1124 (7th Cir. 1987)

(district judges should not treat decisions of other district judges as controlling unless doctrines of

res judicata or collateral estoppel apply). However, there is no bar to one District Judge’s

considering decisions of her colleagues for their persuasive value. The similarities of the claim

and factual circumstances, along with respect for the reputation of the deciding judge , commend

Zuern to this Court as persuasive authority.

More importantly, Hasan has pointed to no Supreme Court or Sixth Circuit case that would

justify departing from Zuern. As to the prejudice from the lack of jury view, again, what the jurors

see in a jury view is not evidence. Finally, in the Supplemental Objections, Hasan argues that the

Magistrate Judge’s reliance on the Supreme Court of Ohio’s upholding of the denial of a jury view

was improper, as it “omits mention that in the retrial of James Were in 2003 the trial court ordered

a jury view.” (Supp. Objections, ECF No. 122, PageID 1708, citing Chambers v. Mississippi, 410

U.S. 284 (1972)). Such an order is irrelevant in light of the broad discretion afforded trial judges

in whether to grant jury views; the fact that a jury view was granted elsewhere, without more, does

not suggest that the trial judge’s denial was an abuse of that discretion. Hasan’s objections are

overruled.

3. Claim Ten: Improper Withholding of Brady Material

Hasan notes that “numerous inmates gave either recorded statements, testimony in multiple

trials, and recorded polygraph exams. Those same inmates were used by the state to convict

Petitioner.” (Petition, ECF No. 16, PageID 2090). Hasan argues that those statements and

testimonies contained numerous inaccuracies and contradictions, but the State did not disclose

those exculpatory materials to Hasan, in violation of Brady v. Maryland, 373 U.S. 83 (1963). Id.

at PageID 2090-91. The Magistrate Judge recommended dismissing for: (1) procedural default

due to lack of fair presentation; (2) some material not disclosed was in the public record; (3)

affidavits do not establish that evidence was withheld; and (4) actual innocence evidence presented

was insufficient to overcome procedural default (Supp. Report, ECF No. 119, PageID 1663, citing

Brady, 373 U.S. 83; Report, ECF No. 81, PageID 1096-98).

Hasan objects that “[t]he state court record indicates what he relied on in support of his

allegation: ‘All exhibits referenced in this petition.’” (Objections, ECF No. 91, PageID 1389,

quoting State Court Record, ECF 160-2, PageID 6202). Yet, the Brady claim that Hasan references

was only raised in his second postconviction petition (State Court Record, ECF No. 160-2, PageID

6081, 6200-02), which the state court denied for “fail[ing] to satisfy the mandatory requirements

of R.C. 2953.23(A)(1) and (2). Specifically, the Court finds defendant cannot satisfy the provisions

of either (A)(1) or (A)(2).” (State Court Record, ECF No. 160-4, PageID 7042). The Supreme

Court of Ohio did not exercise jurisdiction. State v. Sanders, 98 Ohio St. 3d 1423, 2003-Ohio-

259. Thus, the Magistrate Judge’s conclusion that the claim is procedurally defaulted is correct.

While Hasan asked for reconsideration of Claims Four, Eight, and Nine, and to amend Claim

Thirty-One, in light of White v. Warden, 940 F.3d 270 (6th Cir. 2019), applying Martinez-Trevino

to Ohio law (Motion for Leave to Amend, ECF No. 210; Motion for Reconsideration, ECF No.

231), he did not do so with respect to Claim Ten. Hasan’s statement that he “incorporates his

objections to the Eighth Ground for Relief in their entirety” (Objections, ECF No. 91, PageID

1391) is insufficient to set aside the procedural default. Moreover, the Magistrate Judge is correct

that the evidence designated by Hasan to show actual innocence—that is, “evidence of innocence

so strong that a court cannot have confidence in the outcome of the trial[,]” Schlup, 519 U.S.at

316—is insufficient to excuse the procedural default. Thus, without opining on the existence of a

public records exception to Brady, Hasan’s objections must be overruled.

4. Claims Eleven and Twelve: Improper Withholding of Materials for

Cross-Examination and Refusal to Appoint Expert for Tape Analysis

Hasan argues that: the State improperly refused to disclose documents and necessary

evidence for cross-examining the other inmates that were called as State’s witnesses at trial; the

trial judge erred in refusing to order the State to review and disclose any such material; and the

trial judge erred in refusing to appoint an expert to help Hasan’s counsel analyze the tunnel tapes

(Petition, ECF No. 16, PageID 2091, 2092). Hasan did not argue the merits of the claims in his

Traverse, instead merely asking for discovery, which this Court denied (Orders, ECF Nos. 37, 46,

53, 57, 75). Absent any other reason why the claims may be meritorious, the Magistrate Judge

recommended that they be denied (Report, ECF No. 81, PageID 1098-99). In his Objections,

Hasan alleges that he never abandoned the claims, and that “the erroneous denial of discovery

disposed of and lead [sic] to the denial of the claim[s] for failing to establish prejudice.”

(Objections, ECF No. 91, PageID 1391, 1392). As Objections are not the proper vehicle to

relitigate a discovery decision, they are overruled.

5. Claim Fourteen: Refusal to Allow Hasan to Introduce Tunnel Tapes

and Records of Islamic Service

Hasan attempted to introduce Tunnel Tapes 60 and 61 and a record of attendance at Islamic

services for the purpose of impeaching four State witnesses (Petition, ECF No. 16, PageID 2094-

95). As the trial court did not allow the introduction of either the tapes or the service record, the

testimony and reputations of the witnesses went unimpeached, severely damaging his defense. Id.

at PageID 2095. The Supreme Court of Ohio rejected this claim on several grounds. As to Tape

61, the Court held that the trial judge did not abuse his discretion because he allowed the tape to

be played, but did not allow Hasan to opine as to whether the tape had been altered or faked, as he

is not an expert. Sanders, 92 Ohio St. 3d at 258. “Furthermore, Sanders did not attempt to

authenticate the tape by proffering ‘evidence sufficient to support a finding that the matter in

question is what its proponent claims.’” Id., quoting Ohio Evid.R. 901(A). As to Tape 60, the

Court noted that:

[A]lthough the tape itself was excluded, the defense was allowed to

confront [fellow SOCF inmate David] Lomache on cross-

examination with a transcript of the tunnel tape. Indeed, defense

counsel got Lomache to admit that he made a “pep rally” speech at

the meeting and that he had feared that these statements might cause

him to be prosecuted for his involvement in the riot. Since

Lomache’s testimony was subjected to adversarial testing, we reject

Sanders’s Sixth Amendment claim.

Id. at 259. Finally, Hasan had hoped to use the service records to show that two inmates had lied

about being Muslim. Yet, because Hasan “never identified the inmates in question, we are unable

to determine whether it had any impeachment value as to those inmates. In any event, because the

exhibit covered only a limited period (December 1992–March 1993), it did not show that any given

inmate never attended services.” Id. (emphasis in original). The Magistrate Judge, concluding

that no evidentiary rules were arbitrarily violated and that Hasan’s Sixth Amendment right to put

on a complete defense was not violated, recommended the claim be denied (Report, ECF No 81,

PageID 1102-03 (citations omitted)).

Hasan objects3 that the Supreme Court of Ohio’s ruling on Tape 61 is an unreasonable

determination of the facts, as it was a State objection, rather than counsel not playing the tape

(Objections, ECF No. 91, PageID 1393, citing Trial Tr., ECF No. 164-4, PageID 12409-10). Yet,

an inspection of the transcript shows that the Supreme Court described the exchanges and outcome

accurately, and that Court’s decision was not contrary to law.4 Nor was the Court’s decision

unreasonable or contrary to law as to Tape 60 or the attendance record, which was Hasan’s sole

objection to those decisions. Id. at PageID 1394. Hasan’s objections are overruled.

6. Claim Twenty-Six: Improper Exclusion of Mitigation Evidence

Hasan argues that the trial court’s refusal to allow Hasan to raise the riot as a mitigating

factor or defense expert Joseph Rowan to testify deprived him of a fair mitigation phase and thus,

his Eighth Amendment right to an individualized sentencing (Petition, ECF No. 16, PageID 2132-

34). The First District Court of Appeals affirmed the trial court’s ruling that Rowan’s testimony

3 Hasan also argues that he is not merely challenging state evidentiary issues, but making a constitutional claim under

Crane v. Kentucky, 476 U.S. 683 (1986) (Objections, ECF No. 91, PageID 1392-93). The Court assumes for purposes

of this Order that Hasan was attempting to make such a claim.

4 Hasan objects to the Magistrate Judge’s reliance upon the Supreme Court of Ohio’s conclusion that Hasan did not

authenticate Tape 61 (Objections, ECF No. 91, PageID 1393). The Court need not reach this issue in overruling his

objections for Claim Fourteen as a whole.

was not relevant (Report, ECF No. 81, PageID 1126, citing State v. Sanders, 1st Dist. Hamilton

No. C-960253, 1998 WL 212756, *10 (Ohio App. May 1, 1998)). The Supreme Court of Ohio

found that Rowan’s testimony would have been relevant, but rather than remanding for a new

sentencing hearing, the Court considered the proffer made by Rowan in its independent sentencing

review. Sanders, 92 Ohio St. 3d at 266-67. Therein, the Court “conclude[d] that the mitigation

here, though significant, is outweighed beyond a reasonable doubt by the three proven aggravating

circumstances.” Id. at 280.

The Magistrate Judge notes that Hasan contests only that the Supreme Court of Ohio’s

consideration of Rowan’s proffer as part of its independent weighing was sufficient to “cure the

trial court’s error in excluding the testimony[.]” (Report, ECF No. 81, PageID 1128). He further

concludes that Hasan’s statement of the governing law was incorrect. Id., citing Traverse, ECF

No. 22, PageID 115. While Hasan cites Hitchcock v. Dugger, 481 U.S. 393 (1987), and Williams

v. Taylor, 529 U.S. 362 (2000), both cases are inapposite. In Hitchcock, the trial court instructed

the jury that it was precluded from considering non-statutory mitigation factors. In the absence of

a showing of harmless error, remand for new sentencing was the only remedy. In Willliams, trial

counsel failed to introduce all relevant mitigation evidence (Report, ECF No. 81, PageID 1128-

29, citing Williams, 529 U.S. at 397-98; Hitchcock, 481 U.S. at 398-99). Moreover, Williams

rejected the idea that remand was the only remedy in that situation. “Instead, the Court considered

whether the state supreme court’s independent weighing of the aggravating circumstances and

mitigating factors, including the erroneously omitted mitigation evidence, had cured the error.”

Id. at PageID 1129, citing Williams, 529 U.S. at 398; Clemons v. Mississippi, 494 U.S. 738, 751-

52 (1990). So long as all relevant mitigation evidence is reviewed, remand is not necessary. Id.

at PageID 1129-30.

The Magistrate Judge further rejected Hasan’s claim that deviating from Ohio’s statutory

scheme had deprived him of his liberty interest in a jury determination of whether mitigating

factors outweighed the aggravating circumstances. He noted that the Clemons Court had

considered and rejected a similar claim; consequently, “Hasan has not demonstrated how the Ohio

Supreme Court’s resolution of his claim was contrary to or an unreasonable application of the

federal law discussed[.]” (Report, ECF No. 81, PageID 1131, quoting Clemons, 494 U.S. at 746-

47).

Hasan objects that the refusal to allow Rowan’s testimony was a structural error, which no

independent reweighing by the Supreme Court of Ohio can cure. Thus, he asserts, Clemons and

its progeny do not control (Objections, ECF No. 91, PageID 1401-03, citing Deck v. Missouri, 544

U.S. 622 (2005); Penry v. Johnson, 532 U.S. 782 (2001); Clemons, 494 U.S. 738; Hitchcock, 481

U.S. 393; Skipper v. South Carolina, 476 U.S. 1 (1986); Eddings v. Oklahoma, 455 U.S. 104

(1982); Lockett v. Ohio, 438 U.S. 586 (1978). Hasan does not have pinpoint citations for any of

these cases, and on their faces, none of them suggests that the trial court’s disallowance of Rowan’s

testimony was structural error, nor that the Supreme Court of Ohio’s consideration of the evidence

was insufficient to cure the error. Hasan also objects that the Supreme Court of Ohio imposed the

initial death sentence upon him, which violated the Ohio and United States constitutions. Id. at

PageID 1402, citing Ohio Const., art. IV, §§ 2-3; Hicks v. Oklahoma, 447 U.S. 343 (1980). This

argument cannot be squared with Clemons, in which the Supreme Court discussed how a state

appellate court’s independent weighing and affirmance of a death sentence, even when there was

a sentencing error in the lower court, did not constitute a due process violation. The Court so held

because there was not a constitutional right to a jury finding when that finding could also be made

by an appellate court. 494 U.S. at 747. Hasan’s objections are overruled.

7. Claim Twenty-Seven: Insufficient Consideration of Mitigation

Evidence and Consideration of Non-Statutory Aggravating Factors

Hasan claims that the “trial court erred in failing to consider relevant mitigating evidence,

and concomitantly inappropriately relied upon non-statutory aggravating circumstances in its

independent weighing of the aggravating circumstances and mitigating factors.” (Report, ECF

No. 81, PageID 1132, citing Petition, ECF No. 16, PageID 2134; Traverse, ECF No. 22, PageID

124-26). Hasan’s objections are virtually identical to those for Claim Twenty-Six: that the trial

court’s errors were structural and could not be remedied by the Supreme Court of Ohio’s

independent analysis; and that a due process violation occurred by the appellate court’s imposition

of a death sentence (Objections, ECF No. 91, PageID 1403, citing Hicks, 447 U.S. 343). The

Supreme Court of Ohio rejected this claim, Sanders, 92 Ohio St. 3d at 279-80, and for the same

reasons set forth in Claim Twenty-Six, the state court decision was not contrary to or an

unreasonable application of state court law. 28 U.S.C. § 2254(d)(1). Hasan’s objections are

overruled.

8. Claim Thirty: Instructions Improperly Diminished Jury’s Sentencing

Responsibility

“In his thirtieth ground for relief, Hasan contends that the trial judge improperly

emphasized that the jury’s sentencing recommendation was just that, a recommendation.” (Report,

ECF No. 81, PageID 1138, citing Petition, ECF No. 16, PageID 2142-44). Counsel failed to object

contemporaneously, rendering the claim procedurally defaulted . As the trial court instruction

complied with the statute, the Supreme Court held that the trial court did not commit plain error.

Sanders, 92 Ohio St. 3d at 269. Further, while Hasan argues that trial counsel’s failure to object

constituted cause to set aside the procedural default, the Supreme Court of Ohio also rejected this

argument, holding that counsel was under no obligation to object based on “untested legal

theories.” Id. at 275. While Hasan “objects to the MJ’s failure to consider cause arguments

pursuant to Murray[,]” (Objections, ECF No. 91, PageID 1405), he does not identify what cause

arguments the Magistrate Judge should have considered; nor, more importantly, does he explain

how the Supreme Court of Ohio’s decisions were unreasonable or contrary to law. Hasan’s

objections are overruled.

C. Other Claims

1. Claim Seventeen: Prosecutorial Misconduct and Failure to Object by

Defense Counsel

Hasan claims that the State engaged in myriad misconduct that deprived him of his

procedural and substantive due process rights, and that trial counsel’s failure to object to those

instances deprived him of ineffective assistance of counsel (Petition, ECF No. 16, PageID 2102-

10). “Hasan seems to concede that his entire claim is procedurally defaulted, but urges this Court

to address it de novo, contending that his trial counsels’ ineffectiveness provides cause for his

default.” (Report, ECF No. 81, PageID 1111, citing Traverse, ECF No. 22, PageID 89-91). Yet,

the Supreme Court of Ohio found that the decisions by Hasan’s counsel not to object to instances

of supposed misconduct were strategic and that Hasan had not shown the requisite prejudice.

Sanders, 92 Ohio St. 3d at 274-75. “Hasan does not challenge that determination in these habeas

proceedings, so this Court has no occasion to review the correctness, or incorrectness, as Hasan

asserts, of the state court’s decision.” (Report, ECF No. 81, PageID 1111). In other words, the

state court foreclosed claims of alleged misconduct by an adequate and independent state ground—

enforcement of the contemporaneous objection rule, Sanders, 92 Ohio St. 3d at 270-72—and the

state court also held that counsel was not ineffective in failing to object, id. at PageID 274-75, thus

depriving Hasan of the good cause necessary to set aside the procedural default. As the entire

claim has been procedurally defaulted, without good cause to set aside the default, the Court must

deny this claim irrespective of its merits. Hasan’s objections are overruled.

2. Claims Eighteen, Twenty-Two through Twenty-Five, and Thirty-Four:

Withdrawn

In his Traverse, Hasan withdrew these claims (ECF No. 22, PageID 107, 113, 162).

Accordingly, the claims are dismissed with prejudice.

3. Claim Twenty: Inadequate Preparation by Trial Counsel due to State

Interference with Representation

Hasan claims that as a result of an inadequate budget set by and delinquent payments by

Scioto County, along with a constant reshuffling of appointed counsel, his trial attorneys could not

adequately represent him at trial, and consequently, he was denied “his rights to confrontation, to

present a defense, and due process, rendering counsel ineffective and Petitioner’s trial unfair.”

(Petition, ECF No. 16, PageID 2120). The Supreme Court of Ohio held that inadequate

compensation is not an independent ground upon which an ineffective assistance of counsel claim

could be based. Sanders, 92 Ohio St. 3d at 275-76. That Court also held that Hasan’s transfer

from Warren Correctional Institution to Mansfield Correctional Institution was insufficient to

render assistance inadequate, because the transfer did not cut off attorney-client communication,

and Hasan was transferred back to Warren prior to trial. Id. at 276, citing Geders v. United States,

425 U.S. 80 (1976). As to the shuffling of attorneys, the Court noted that Hasan’s co-counsel had

been on the case continuously for fifteen months prior to trial, and held that the trial court’s denial

of a continuance was not an abuse of discretion. Id. Finally, the Court held that any interference

by the State was not so severe as to presume prejudice “without inquiry as to actual conduct during

the trial. Id. at 277-78, quoting United States v. Cronic, 466 U.S. 648, 660 (1984).

Hasan concedes that his claim arises under Cronic (Objections, ECF No. 91, PageID 1400).

In that case, the Supreme Court held that certain circumstances are so egregious that a petitioner

is relieved of showing prejudice, for example, when there “the complete denial of counsel . . . at a

critical stage of his trial.” Cronic, 466 U.S. at 659. The Magistrate Judge concluded that “Hasan

has not explained how the state court’s decision was contrary to or an unreasonable application of

Strickland or Cronic[,]” and recommended that the claim be denied. (Report, ECF No. 81, PageID

1122). Hasan objects that Smith’s testimony provides the factual basis that the Magistrate Judge

thought was lacking (Id.; Objections, ECF No. 91, PageID 1399); yet, Smith’s deposition is not in

evidence, and Hasan does not identify other such evidence. Rather, he claims that he “can point

to no other legal case on point because no other defendant his [sic] been saddled with such a bereft

process geared towards conviction and death sentences.” Id. at PageID 1400. Such circular

hyperbole is not a substitute for proving how the Supreme Court of Ohio’s rejection of his Cronic

claim was contrary to law. Hasan’s objections are overruled.

4. Claim Thirty-Five: Cumulative Error

Hasan argues that “[t]he cumulative errors in this case indicated that there is a reasonable

probability that Petitioner would not have been convicted and/or sentenced to death.” (Petition,

ECF No. 16, PageID 2152). This claim fails for two reasons. First, as the Magistrate Judge points

out, cumulative error is not a cognizable claim in habeas (Report, ECF No. 81, PageID 1147

(citations omitted). Second, “having found no error in Hasan’s first through thirty-fourth grounds

for relief, there is nothing to cumulate in the thirty-fifth.” Id. at PageID 1147-48. Hasan makes

only a cursory, detail-free objection to this claim (Objections, ECF No. 91, PageID 1407), and for

the reasons set forth by the Magistrate Judge, the objection is overruled.

5. General Objections

Hasan raises three general objections. “First, he objects to the statement of facts and a

reliance on the state court’s finding of facts as it relates to his allegations of actual innocence as

cause for a procedural default. The United States Supreme Court unmistakably held this is error.”

(Objections, ECF No. 91, PageID 1366-67, citing House v. Bell, 547 U.S. 518 (2006)). “Third,

Petitioner objects to the MJ’s recognition of the actual innocence standard as if it had been

applicable to this habeas proceeding from its inception.” Id. at PageID 1367. As Hasan’s claims

of actual innocence pertain to Claims Eight and Nine, which are not addressed in this Order, the

objections are overruled as moot. “Second, to the extent the Magistrate Judge[] . . . relies on this

summarization of trial testimony as historical fact-findings, Petitioner objects.” Id. A detailed

reading of both the Report and Supplemental Report shows no such reliance by the Magistrate

Judge; thus, Hasan’s objection must be overruled.

In his Supplemental Objections, Hasan further objects to: any conclusion made by the

Magistrate Judge that Hasan abandoned any claim or discovery sought5; the Magistrate Judge’s

consideration of actual innocence; and the inadmissibility of the deposition of Timothy Smith

(ECF No. 122, PageID 1697-1705). The undersigned has addressed and rejected the substance of

these objections infra; to the extent further necessary, these objections are overruled.

III. CONCLUSION

For the foregoing reasons, the Magistrate Judge’s Report (ECF No. 81) and Supplemental

5 Hasan notes that the Magistrate Judge denied his Second Motion for Discovery (Order, ECF No. 75, citing Motion,

ECF No. 57), and that his appeal from that denial remains pending before the Court (Supp. Obj., ECF No. 122, PageID

1699, citing Appeal, ECF No. 76). As the Magistrate Judge’s decision was neither clearly erroneous nor contrary to

law, 28 U.S.C. § 636(b)(1)(A), Hasan’s appeal is denied and the Magistrate Judge’s order denying discovery remains

in effect.

Report (ECF No. 119) are ADOPTED in full except as where expressly set forth below. Hasan’s

Objections (ECF No. 91) and Supplemental Objections (ECF No. 122) are DENIED. The Petition

(ECF No. 16) is DENIED and DISMISSED WITH PREJUDICE as to all claims except Claims

Eight, Nine, and Thirty-One. Judgment shall ultimately enter in favor of the Warden and against

Hasan on the remaining thirty-two claims.

No reasonable jurist would find that Hasan “has made a substantial showing of the denial

of a constitutional right[,]” 28 U.S.C. § 2253(c)(2), or would disagree with the undersigned’s

conclusions with respect to Claims One through Seven, Ten through Twenty-Eight, Thirty, and

Thirty-Three through Thirty-Five, and Petitioner is denied a certificate of appealability on those

claims. However, as reasonable jurists could disagree with the undersigned’s conclusions as to

Claims Twenty-Nine and Thirty-Two, Hasan is granted a certificate of appealability only as to

those claims. Because Hasan’s appeal on these issues do not lack a basis in law or fact, Neitzke v.

Williams, 490 U.S. 319, 325 (1989); Coppedge v. United States, 369 U.S. 438, 445 (1962), Hasan

will ultimately be permitted to proceed in forma pauperis.

Claims Eight, Nine, and Thirty-One remain pending before this Court.

IT IS SO ORDERED.

April 28, 2021.

S/Susan J. Dlott______________

Susan J. Dlott

United States District Judge