Opinion

Sowell v. Collins

557 F. Supp. 2d 843
2008 U.S. Dist. LEXIS 25643
2008 WL 859137

Court: District Court, S.D. Ohio
Filed: Mar 31, 2008
Status: Published
Author: Sargus
On the bench: Sargus
Cited by: 8 cases
Authority: More cited than 54.0%

Distinguishing Higgins because “there is no reason to believe that counsel’s decision to forego cross-examining Edwards stemmed from lack of preparation, or was based on anything other than trial strategy.”

How later courts described this case

Distinguishing Higgins because “there is no reason to believe that counsel’s decision to forego cross-examining Edwards stemmed from lack of preparation, or was based on anything other than trial strategy.”
“Strategic choices of counsel are entitled to deference, and the cross-examination of witnesses falls within the area of tactics or strategy that ought not be subjected to second-guessing merely because that particular strategy proved to be unsuccessful.”

Written by the judges who cited it.

The opinion

OPINION AND ORDER

EDMUND A. SARGUS, JR., District Judge.

Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this Court a habeas corpus action pursuant to 28 U.S.C. § 2254 . The Court’s original disposition of this case was reversed by the Sixth Circuit Court of Appeals on June 28, 2004.

See Sowell v. Bradshaw,

372 F.3d 821 (6th Cir.2004). This matter is before the Court upon remand from the Sixth Circuit for a decision on the merits of petitioner’s remaining claims. For the reasons that follow, the writ of habeas corpus is conditionally granted.

I. INTRODUCTION

This case does not turn on the propriety of capital punishment. That issue has been definitively addressed by the United States Supreme Court in pronouncements binding on this Court.

Gregg v. Georgia,

428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976). It is, however, the obligation of this Court, under Article I § 10 of the Constitution and Section 2254 of Title 28, United States Code, to insure that the petitioner in this case has not been convicted or sentenced in violation of the Constitution of the United States.

This Court has recognized that it has no more important task than that of exercising its habeas corpus jurisdiction under 28 U.S.C. § 2254 in a case involving a sentence of death.

Sowell v. Anderson,

No. C-1-94-237, 2001 WL 1681142 (S.D.Ohio Oct.5, 2001) (citing

Roe v. Anderson,

C-1-96-825 (S.D. Ohio June 15, 2000)). The Constitution itself recognizes the writ of Habeas Corpus. U.S. Const. ART. I, § 10. As the Supreme Court noted in

Williams v. Taylor,

529 U.S. 362, 374-75 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000):

In 1867, Congress enacted a statute providing that federal courts “shall have power to grant writs of habeas corpus in all cases where any person maybe restrained of his or her liberty in violation of the Constitution, or any treaty or law of the United States.” Act of Feb. 5, 1867, Ch. 28 § 1, 14 Stat. 385 . Over the years, the federal habeas corpus statute has been repeatedly amended, but the scope of that jurisdictional grant remains the same.

Applying those principles to this case, the Court concludes that a writ should be granted as to petitioner’s first argument because petitioner received ineffective assistance of counsel during the penalty phase of his capital trial.

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II. FACTUAL AND PROCEDURAL BACKGROUND

In its June 23, 2004 Opinion and Order, the Sixth Circuit relied on the statement of facts set forth by the Ohio Court of Appeals:

The record discloses that [Sowell] and [Calvert] Graham resided in adjacent apartments on the third floor of an apartment building in downtown Cincinnati. [Sowell] was the resident manager of the building and became acquainted with Graham, who performed occasional odd jobs at the apartment building. After Graham became a resident in [So-well’s] apartment building, the two men developed a friendly relationship and visited one another in their respective residences.

On May 1, 1983, three days prior to the instant offenses, [Sowell] was a guest in Graham’s apartment. Also present were Donna Edwards (Edwards), a woman with whom Graham shared the apartment, and [Pam] Billups [a former prostitute who had been visiting Graham and Edwards]. Graham offered two marijuana cigarettes to [So-well], which he accepted. Thereafter [Sowell] left the apartment in the company of Billups and proceeded to a nearby restaurant where he purchased dinner for her. En route to the restaurant, [Sowell] smoked the second marijuana cigarette, having consumed the first at Graham’s residence. Thereafter the pair made their way to a hotel where [Sowell] rented a room. There was conflicting testimony concerning the events that transpired thereafter. However, it is not disputed that [Sowell] eventually lost consciousness, having consumed an unspecified quantity of wine during the evening in addition to the marijuana. The next morning [Sowell] made his way back to his residence, stopping along his route to obtain breakfast for Billups.

[Sowell] next encountered Billups on the afternoon of May 4, 1983. Billups was in the company of Edwards and the trio passed in the doorway of a store but did not acknowledge one another. As will be seen, this seemingly inconsequential meeting gained significance later in the day.

That evening [Sowell] returned to his apartment building after, according to his testimony, visiting no less than five taverns and consuming at least one double shot of vodka at each stop. Upon returning to his apartment building [So-well] realized that he was not in the mood to retire for the evening, and instead presented himself at Graham’s apartment. Graham greeted [Sowell] and invited him inside, where Edwards and Billups were also present. Graham produced a marijuana cigarette which was consumed by all four occupants.

[Sowell] testified before the trial court that following the consumption of the marijuana, he fell asleep for a short time. When he awoke the others were still present and [Sowell] discovered that approximately $190 had been removed from his trouser pocket. At first [So-well] thought that the trio was playing a joke upon him; however, his requests for the return of his money received no response. [Sowell] further testified that Graham then picked up a knife and ordered [Sowell] to leave the residence. [Sowell] complied and departed, but he was extremely angry as a result of his loss.

Both Billups and Edwards told the trial court that [Sowell’s] visit to the apartment on the day in question was at first friendly. However, [Sowell] soon became agitated and accused Billups of being unsociable in that she did not

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speak to him earlier that afternoon. [Sowell] also accused Billups of stealing $24 from him during their encounter three days earlier. When [Sowell] referred to Billups in terms meant to insult her pedigree, Graham ordered [So-well] to leave the premises. [Sowell] left, stating that he was going to obtain his gun, return and shoot Billups.

[Sowell] went directly to his apartment where he directed his common-law wife, Lenora Waugh (Waugh), to bring his gun to him. Waugh complied with that request, as well as with [Sowell’s] instructions to accompany him to Graham’s apartment. Upon returning to Graham’s door, Waugh, at [Sowell’s] instruction, knocked and indicated to those inside that she was a woman named Portia. Graham responded to the door and opened it. Edwards and Billups testified, and the trial court found, that [Sowell] forced his way into the apartment, firing a bullet from his handgun into the ceiling as he entered. [Sowell] demanded to know Billups’s whereabouts and threatened to shoot her. Graham was able to calm [Sowell] and began to escort him from the apartment and to close the door, whereupon [Sowell] suddenly turned and shot Graham in the abdomen. As Graham fell, [Sowell] fired a second shot into Graham’s skull. Graham fell to the floor, mortally wounded.

[Sowell] next made his way to the closet in which Billups was cowering, and fired three bullets into her body. [Sowell] next placed the gun to Billups’s forehead and pulled the trigger. However, the gun did not expel a bullet because it no longer contained ammunition. [Sowell] left the apartment after warning Edwards not to leave the premises or he would shoot her also. [So-well] returned to his apartment, obtained money and made his way to a nearby tavern where he was apprehended by the police.

[Sowell] testified regarding the shootings and told the court that he returned to Graham’s apartment to demand his money and that he was confronted by Graham, who was armed with a knife. [Sowell] stated that it was only after Graham made a furtive movement that [Sowell] began shooting at Graham, and that one of the bullets struck the ceiling. [Sowell] explained his conduct as follows: ‘It just, I just clocked out. When I seen that person going this way I just pivoted, I pivoted on my gun, I was shooting, I was angry, I started shooting, I just started shooting everybody I seen.’

Sowell v. Bradshaw,

372 F.3d 821, 823-27 (6th Cir.2004) (quoting

Ohio v. Sowell,

No. C-830-835, 1986 WL 9082 , *1-2 (Ohio Ct. App. Aug.20, 1986) (footnotes omitted)).

The following additional facts are relevant to the issues before the Court. On May 26, 1983, a Hamilton County grand jury indicted petitioner on one count of aggravated murder in violation of Ohio Revised Code (“O.R.C.”) § 2903.01(A), and one count of attempted murder in violation of O.R.C. § 2923.02(A) as it related to § 2903.01(A). The aggravated murder count contained a death penalty specification alleging that the aggravated murder was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons.

On October 14, 1983, petitioner, on the advice of counsel, waived his right to a jury trial and elected to be tried by a three-judge panel. Martin Pinales, one of petitioner’s trial counsel, testified at the evidentiary hearing conducted by this Court that he received the impression, following a pretrial conference with the presiding judge, “that if a jury was waived,

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this would not be a capital case.” (Evid. Hrg. Tr., at 9). Attorney Pinales advised petitioner of his view that petitioner would be spared the death penalty if he waived a jury trial.

(Id.

at 45). Pinales testified that he believed that he “had one no death penalty vote in Judge Crush.”

(Id.

at 46). Pinales clarified that Judge Crush never explicitly said that Sowell would be spared the death penalty if he waived a jury trial, but that Judge Crush seemed to suggest as much.

(Id.

at 50).

The guilt phase of the trial began on October 18, 1983, and concluded on October 20, 1983, with the three-judge panel unanimously finding petitioner guilty of both counts, as well as the death penalty specification to Count One. At the conclusion of the guilt phase, counsel for petitioner requested the preparation of a presen-tence investigation report (“PSI”) by the probation department, and requested that the Court order a mitigation evaluation by a mental health professional. During the course of the presentence investigation, a member of the probation department learned of a rumor that petitioner had confessed to committing two other uncharged murders. The probation officer informed Judge Crush of the rumor, and Judge Crush requested that Dr. Nancy Schmidtgoessling of the Court Psychiatric Clinic explore the allegations with petitioner. It does not appear from the record that defense counsel were aware of the investigation that Judge Crush had initiated. Dr. Schmidtgoessling detailed her discussions with petitioner concerning the alleged other murders in a letter to Judge Crush dated October 27, 1983. (Supp. App., at 200-01). That letter was included as part of the PSI and made a part of the record without objection by defense counsel.

The sentencing phase of the trial commenced on November 2, 1983, and concluded on November 3, 1983. Counsel’s mitigation strategy was to emphasize the good in petitioner, and virtually all of the evidence presented concerned good deeds performed by petitioner during his adult life. Counsel presented evidence that petitioner helped children, provided money and food to people in need, and tried to prevent crimes in his neighborhood. Counsel attempted to show that the offense was “brought on by the consumption of alcohol, by a friendship in which Billy Joe Sowell felt betrayed and by a hot temper.” (Mit. Tr. at 2). Counsel emphasized that the murder of Graham occurred because petitioner was unable to control his temper, and not because petitioner had “cooly and carefully” calculated revenge.

(Id.).

Counsel presented evidence showing that despite his hot temper, petitioner “had shown much kindness and concern for other people in the community throughout his life.”

(Id.

at 3). Counsel called five witnesses, each of whom testified briefly concerning petitioner’s redeeming qualities. Additionally, counsel presented an unsworn statement by petitioner, and introduced all of the psychological evaluations of petitioner that had occurred both prior to the guilt phase and prior to the mitigation phase of the trial. Pursuant to § 2929.03(D)(1) of the Ohio Revised Code, the PSI that counsel requested was introduced, as required by law. The PSI included a summary of petitioner’s entire criminal history, including offenses for which petitioner had been arrested but never convicted. The PSI also included information regarding petitioner’s status as a parole violator, and information suggesting that petitioner had not adjusted well to prison life in the past. A recommendation of death by the Cincinnati Police Department was also contained in the PSI.

Despite the fact that petitioner grew up in extreme poverty and suffered severe

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abuse and neglect as a child, counsel did not present any information concerning petitioner’s childhood, background, or social history. Counsel did not call one family member to testify. The panel did not hear that petitioner was one of seven children, and the Sowell family was so poor that the children were malnourished and routinely had nothing to eat. The panel did not hear that petitioner began stealing food at a young age, and his infant brother died of starvation. The panel did not hear that petitioner had no shoes until he was five years old, and that he and his siblings were often bitten by rats.

Counsel did not present testimony that petitioner’s father was a severe alcoholic, and when drunk, abused petitioner’s entire family. The panel did not hear that petitioner’s father once tied petitioner to a chair and beat him. The panel did not hear that petitioner’s father was frequently absent from the home because of drinking and extramarital affairs, and he sexually abused one of petitioner’s sisters. The panel did not hear that petitioner’s parents married and began having children when his mother was only fifteen. His parents often left petitioner and his six brothers and sisters alone for periods of three to four days at a time. When his parents were absent from the home, petitioner, at a young age, was forced to assume a parental role to the other children. Petitioner’s family lived in the basement of a home that was never completed, and the basement had no running water or electricity.

Petitioner began consuming alcohol and illicit drugs at a very young age. The panel did not hear that when petitioner was only fourteen, he left his home and moved to a junkyard where he lived in a tent. Petitioner began getting into trouble as a juvenile and in his mid-teens, he was sentenced in Kentucky and made to work in a coal mine. These facts concerning petitioner’s background were not made known to the experts whose reports were submitted.

At the conclusion of the mitigation phase, and without any substantial knowledge of petitioner’s background, the three-judge panel unanimously sentenced petitioner to death on Count One, and to a consecutive prison term of seven (7) to twenty-five (25) years on Count Two. In its sentencing opinion, the panel noted that petitioner “was not devoid of decent characteristics,” but emphasized that petitioner’s “life for the past thirty years has been one of chronic criminal behavior, much of its involving acts of violence.” (Mitig. Tr., at 79). The panel noted that petitioner had been charged with assault, battery and menacing approximately twenty times, and that he had been jailed or imprisoned approximately twelve times.

(Id.)

Represented by one of the two attorneys who had represented him at trial, along with a new attorney, petitioner appealed to the Court of Appeals for the First Appellate District. On August 20,1986, the split panel of the court of appeals affirmed petitioner’s convictions and sentence.

State v. Sowell,

No. C-830835, 1986 WL 9082 , *17 (1st Dist.1986). Judge Hildebrandt filed a dissenting opinion, finding that the aggravating circumstances did not outweigh the mitigating factors beyond a reasonable doubt, and finding that the imposition of the death penalty in petitioner’s case was excessive, disproportionate and inappropriate.

Id.

at *19 . Represented by the same two attorneys who had represented him before the court of appeals, petitioner appealed as of right to the Ohio Supreme Court. In an opinion issued on November 16, 1988, the Ohio Supreme Court affirmed petitioner’s convictions and sentences, and independently found that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt, and that the

*854

death sentence was appropriate and proportionate.

State v. Sowell,

39 Ohio St.3d 322 , 530 N.E.2d 1294 (1988). The United States Supreme Court denied petitioner’s petition for a writ of certiorari.

Sowell v. Ohio,

490 U.S. 1028 , 109 S.Ct. 1766 , 104 L.Ed.2d 201 (1989).

Petitioner, represented by the Ohio Public Defender, filed a postconviction action to vacate or set aside his convictions in the trial court on December 20, 1989. On May 4, 1990, the trial court issued findings of fact and conclusions of law denying the petition. Petitioner filed a timely appeal to the Court of Appeals for the First Appellate District. On June 26, 1991, the court of appeals affirmed the judgment of the trial court.

State v. Sowell,

73 Ohio App.3d 672 , 598 N.E.2d 136 (1st Dist.1991). Petitioner sought leave to appeal to the Ohio Supreme Court, and that court declined to accept jurisdiction.

State v. Sowell,

62 Ohio St.3d 1456 , 579 N.E.2d 1394 (1991).

In April 1992, petitioner filed a habeas corpus action in this Court. The Court dismissed his petition without prejudice for the failure to exhaust state court remedies.

Sowell v. Tate,

1:92cv327, (S.D.Ohio July 14, 1992). Specifically, the Court directed petitioner to comply with the procedure for raising claims of ineffective assistance of appellate counsel that had recently been announced in

State v. Murnahan,

63 Ohio St.3d 60 , 584 N.E.2d 1204 (1992). On May 3, 1992, petitioner filed an application for delayed reconsideration in the court of appeals based on allegations of ineffective assistance of appellate counsel. On October 1, 1992, the court of appeals denied petitioner’s application, finding that petitioner had failed to demonstrate good cause for the delay in filing the application.

Petitioner sought review of the court of appeals’ decision in the Supreme Court of Ohio. In addition, petitioner filed a motion for delayed reinstatement of his direct appeal as of right in the Ohio Supreme Court. On November 17, 1993, the Ohio Supreme Court affirmed the decision of the court of appeals denying petitioner’s motion for delayed reconsideration, and denied petitioner’s motion for delayed reinstatement of his direct appeal as of right. The Ohio Supreme Court denied petitioner’s motion for a rehearing on December 22, 1993.

Petitioner initiated the instant habeas corpus action on March 29, 1994, with the filing of a motion for the appointment of counsel. He subsequently filed his habeas corpus petition on May 24, 1994, wherein he raised fifty-two claims for relief. In the

Opinion and Order

of February 18, 1998, this Court dismissed claims 3, 33, 36, 47, 48 and 52 on the basis of procedural default. On October 5, 2001, the Court issued an

Opinion and Order

partially granting a conditional writ of habeas corpus as to petitioner’s thirty-fourth ground for relief, finding that petitioner did not knowingly, intelligently and voluntarily waive his right to a trial by jury as to the sentencing phase of his capital trial, (Doc. # 155). This Court did not address petitioner’s other grounds for relief. On June 23, 2004, the United States Court of Appeals for the Sixth Circuit reversed the Court’s decision, finding that petitioner was not entitled to relief on his thirty-fourth ground for relief because he failed to demonstrate that his jury waiver was not knowing and intelligent.

See Sowell v. Bradshaw,

372 F.3d 821 (6th Cir.2004). Moreover, the Sixth Circuit rejected the portion of petitioner’s fifth ground for relief alleging that trial counsel were ineffective because they did not receive sufficient assurances that a jury waiver would avoid the death penalty.

Id.

This Court reopened petitioner’s case on November 16, 2004. (Doc.# 171). On No

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vember 13, 2006, the Court issued an Order permitting supplemental briefing on the merits of the remaining forty-five claims contained in the petition for a writ of habeas corpus. (Doc.# 176). On January 11, 2007, both petitioner and respondent filed supplemental merits briefs. (Doc.# 179; doc.# 180).

In petitioner’s supplemental merits brief, petitioner notes that he consolidated his entire merits briefing into the supplemental merits brief so that the Court “will not have to page through several documents during its review.” (Doc.# 180 at 1). In addition, petitioner asserts that he has “narrowed the grounds on which he is seeking relief.”

(Id.)

Specifically, petitioner contends that his “1994 habeas petition contained claims that he originally raised in the state courts on direct appeal and post-conviction in the 1980’s,” and “[t]he jurisprudence of criminal law and capital litigation has changed significantly since that time.”

(Id.)

Petitioner states that he “has chosen those grounds for relief which are still viable, given the changes in constitutional litigation over the last twenty years.”

(Id.)

Petitioner sets forth eleven separate arguments upon which he alleges that he is entitled to habeas relief. In each of those eleven sections of his supplemental merits brief, petitioner references, by footnote, the corresponding grounds for relief contained in his original petition for a writ of habeas corpus wherein the arguments were initially made. Petitioner references seventeen of the remaining forty-five grounds for relief in his supplemental briefing, organizes those seventeen grounds for relief into eleven separate headings identified as arguments I through XI, and abandons the remaining twenty-eight grounds for relief contained in his original petition.

Although petitioner does not affirmatively identify the grounds for relief that he is now abandoning, it is apparent to the Court that petitioner is no longer pursuing claims 2, 6, 7, 10, 12, 13, 14, 16, 17, 20, 21, 22, 23, 24, 32, 35, 37, 39-46, and 49-51. Petitioner seeks habeas relief on the following claims set forth in his habeas petition: claims 25 and 27 (set forth as Argument I in his supplemental merits brief); claim 5 (set forth as Argument II); claim 26 (set forth as Argument III); claims 18 and 19 (set forth as Argument IV); claim 15 (set forth as Argument V); claims 28, 29, 30, and 31 (set forth as Argument VI); claim 4 (set forth as Argument VII); claims 8 and 9 (set forth as Argument VIII); claim 11 (set forth as Argument IX); claim 38 (set forth as Argument X); and claim 1 (set forth as Argument XI).

Respondent filed a supplemental merits brief on the same day as petitioner. Unaware that petitioner would be narrowing his grounds for relief, respondent’s supplemental brief addressed, in one form or another, most of the claims contained in petitioner’s habeas petition. Respondent renewed several procedural default arguments, noting that portions of this Court’s February 19, 1998,

Opinion and Order

addressing procedural default “ha[ve] been undercut by subsequent Sixth Circuit case-law.” (Doc. # 179, at 1). In respondent’s supplemental reply brief, filed on February 26, 2007, respondent “applauds and shares Sowell’s desire to streamline the claims and deal with them in one comprehensive pleading,” and notes that “[t]he litigation has come a long way since [petitioner’s] 52 claim, 660 paragraph, non-page-numbered petition to the Supplemental Briefing, which consolidated the original claims into 11 arguments and 110 pages.” (Doc.# 187, at 1). Respondent follows petitioner’s format in addressing petitioner’s newly ordered claims, and argues that all or part of arguments 3, 4, 6, 8, and 10 are procedurally defaulted. Respondent asserts that the remaining claims

*856

are without merit. The Court will now consider petitioner’s remaining claims.

III. STANDARD OF REVIEW

The habeas corpus statutes were amended, effective April 24, 1996, by the Antiterrorism and Effective Death Penalty Act of 1996, (“AEDPA”). Because petitioner filed his habeas corpus action well before the effective date of the AEDPA, this Court’s review of petitioner’s constitutional claims is governed by habeas corpus law as it existed prior to the enactment of those amendments.

Lindh v. Murphy,

521 U.S. 320, 326-27 , 117 S.Ct. 2059 , 138 L.Ed.2d 481 (1997). That is, state court findings of fact are presumed correct, unless petitioner rebuts that presumption of correctness by clear and convincing evidence; questions of law, as well as mixed questions of law and fact, are reviewed

de novo

by this Court.

Mapes v. Coyle,

171 F.3d 408, 413 (6th Cir.1999). The pre-AEDPA standard “permits reviewing federal courts greater latitude in examining the proceedings than is permissible under AEDPA-governed cases,”

Hamblin v. Mitchell,

354 F.3d 482 , 487 n. 2 (6th Cir.2003) (citing

Williams v. Taylor,

529 U.S. 362 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000)), and entitles Sowell “to have the federal habeas court ‘make its own independent determination of his federal claim, without being bound by the determination on the merits of that claim reached in the state proceedings.’”

Harries v. Bell,

417 F.3d 631, 634 (6th Cir.2005) (quoting

Buell v. Mitchell,

274 F.3d 337, 344 (6th Cir.2001)). This Court “may grant the writ if the state-court conviction violated the Constitution, laws, or treaties of the United States.”

Id.

at 635. With these principles in mind, the Court will consider petitioner’s remaining constitutional claims.

IV. DISCUSSION

ARGUMENT NO. I:

THE ACTS AND OMISSIONS OF DEFENSE COUNSEL IN THE TRIAL PHASE DEPRIVED MR. SOWELL OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN THE MITIGATION PHASE.

In his first argument, petitioner claims that he was denied the effective assistance of counsel during the mitigation phase of his capital trial. The crux of petitioner’s argument is that trial counsel failed to conduct an adequate sentencing phase investigation into his background and social history that would have allowed counsel to present a meaningful mitigation case on petitioner’s behalf, and that trial counsel failed to retain necessary experts to testify regarding petitioner’s brain impairment and his alcoholism. As a result of counsel’s deficient performance, petitioner argues, the three-judge panel did not hear of the emotional and physical trauma that petitioner suffered as a child, how that trauma impacted petitioner’s development, that petitioner suffered from severe alcoholism and alcoholic blackouts, and that petitioner had a brain impairment that hampered his ability to respond to stressful events. (Supp. Merits Brief, doc. # 180, at 8-9).

Ineffective assistance of counsel claims are governed by

Strickland v. Washington,

466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), in which the Supreme Court established a two-part inquiry:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made

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errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id.

at 687 , 104 S.Ct. 2052 . In other words, a habeas petitioner must show that his counsel’s performance “fell below an objective standard of reasonableness,”

Id.

at 687-88 , 104 S.Ct. 2052 , and that counsel’s performance was “prejudicial to the defense.”

Id.

at 692 , 104 S.Ct. 2052 . Because a habeas petitioner must satisfy both the performance and the prejudice prongs of the

Strickland

test to demonstrate ineffective assistance of counsel, if a reviewing court determines that the petitioner has failed to satisfy one prong, it need not consider the other.

Id.

at 697 , 104 S.Ct. 2052 .

When evaluating counsel’s performance,

Strickland

requires the Court to “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”

Id.

at 689 , 104 S.Ct. 2052 . The Court must make every effort to avoid “the distorting effects of hindsight,” and the Court must “ ‘judg[e] the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.’ ”

Morales v. Mitchell,

507 F.3d 916, 930 (6th Cir.2007) (quoting

Strickland,

466 U.S. at 690 , 104 S.Ct. 2052 ).

The importance of competent representation during the penalty phase of a capital trial cannot be understated, and counsel’s “constitutional duty to investigate a defendant’s background in preparation for the sentencing phase of a capital trial is ‘well-established.’”

Harries v. Bell,

417 F.3d 631, 637 (6th Cir.2005) (quoting

Coleman v. Mitchell,

268 F.3d 417, 449 (6th Cir.2001)). In a capital trial, “[t]he sole source of mitigating factors cannot properly be that information which defendant may volunteer; counsel must make some effort at independent investigation in order to make a reasoned, informed decision as to their utility.”

Carter v. Bell,

218 F.3d 581, 596 (6th Cir.2000).

To establish the second prong of the

Strickland

test,

i.e.,

prejudice, a petitioner must demonstrate that there is a reasonable probability that, but for counsel’s errors, the result of the proceedings would have been different.

Strickland,

466 U.S. at 694 , 104 S.Ct. 2052 . When a petitioner has been sentenced to death, “the question is whether there is a reasonable probability that, absent the errors, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.”

Fautenberry v. Mitchell,

515 F.3d 614, 626 (6th Cir.2008) (quoting

Strickland,

466 U.S. at 695 , 104 S.Ct. 2052 ). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Strickland,

466 U.S. at 694 , 104 S.Ct. 2052 . A habeas petitioner does not establish the prejudice element where he shows only that his counsel failed to present cumulative mitigation evidence.

Broom v. Mitchell,

441 F.3d 392, 410 (6th Cir.2006). Rather, “‘to establish prejudice, the new evidence that a habeas petitioner presents must differ in a substantial way—in strength and subject matter—from the evidence actually presented at sentencing.’ ”

Fautenberry,

515 F.3d at 626 (quoting

*858

Clark v. Mitchell,

425 F.3d 270, 286 (6th Cir.2005)).

A. The Evidence Presented

The Court will begin its analysis of petitioner’s claims of ineffective assistance of counsel by considering what evidence trial counsel presented to the three-judge panel on petitioner’s behalf. The evidence presented at petitioner’s mitigation hearing consisted of an unsworn statement by petitioner, the testimony of five witnesses, and the submission of several psychological reports. Also before the panel was a Presentence Investigation Report (“PSI”) prepared by the probation department, at defense counsel’s request.

In his unsworn statement, petitioner expressed regret and apologized for killing Calvert Graham. (Mit. Tr. at 7). Petitioner testified that he had always tried to help people. He told the panel that when he met Lenora Waugh, the mother of his two youngest children, she was sleeping in a bus station. Petitioner offered her a place to stay

(Id.

at 10). Petitioner told the panel of his efforts to help a seventeen month old boy in his neighborhood.

(Id.

at 12). Petitioner explained that the child’s parents permitted the toddler to wander the neighborhood unattended, and that he saved the boy from being struck by a car. The boy’s mother asked petitioner to adopt the boy, and petitioner took the child into his home, provided him with medical attention, clothed him and inquired about adopting the child. Ultimately, the Hamilton County Department of Human Services interceded and petitioner relinquished physical custody of the boy to his parents.

(Id.

at 12-15).

Petitioner testified that he grew up in areas of Chicago, Milwaukee and Rockford, Illinois where violence was a way of life.

(Id.

at 11). Petitioner explained that he had to learn to protect himself at a young age.

(Id.).

Petitioner told the panel that he tried to work hard, and maintain employment, despite being disabled due to a back injury.

(Id.

at 12).

Defense counsel called Rita Reick and Georgia Stahl to testify. Both women were employed by the Hamilton County Municipal Probation Department. Rita Reick testified that she knew petitioner because he had been on probation.

(Id.

at 18). Petitioner worked in an area through which Reick had to pass at the end of the work day to reach her ear. Reick testified that petitioner prevented her from being robbed on one occasion, and that she considered him a protector because he would look out for her several times a week.

(Id.

at 19-20). She told the court that petitioner was very proud of his young daughter.

(Id. at

21).

Gerorgia Stahl testified that she worked as a cashier for the probation department, and that she met petitioner when he came to pay his fines. Like Rita Reick, Shahl walked by petitioner’s place of employment every day on her way to and from work. Stahl testified that petitioner would look out for her, and that he prevented her from being mugged on two different occasions.

(Id.

at 32). She explained that she would look for petitioner during her walks, that she considered him a protector, and that she had “only seen good in Billy.”

(Id.

at 33-35). Stahl stated that she cried when she heard that petitioner had been arrested.

(Id.

at 35).

Defense counsel also called Nancy Davis, who testified that she had known petitioner for approximately five or six years, and that he frequented the convenience store in which she had previously worked as a clerk.

(Id.

at 23). She stated that she could rely on petitioner to substitute for her without payment, during which time he waited on customers and had access to the cash register.

(Id.

*859

24-25).

She testified that petitioner prevented the store from being robbed on one occasion.

(Id.

at 24).

Defense counsel also called Steve Apple-bury to testify. Applebury testified concerning petitioner’s employment. Apple-bury stated that petitioner possessed good work traits, that petitioner was honest, that he was trusted with money, and that he was a very generous person. Apple-bury testified that petitioner had a reputation as being kind-hearted and that petitioner would share his food and money with others if they were in need.

(Id.

at 29-30).

Finally, Lenora Waugh testified on petitioner’s behalf. She stated that petitioner took her into his home when she was homeless, even though they did not develop a relationship until approximately six months later.

(Id.

at 37). She related that she considered their current relationship to be a common-law marriage during which they had two children. She concluded by telling the court that petitioner was very kind and a good father.

(Id.

at 38, 40).

Counsel did not present during either phase of petitioner’s trial expert testimony concerning petitioner’s mental state. The record discloses that prior to trial, the court appointed two psychiatrists, Dr. Emmett Cooper and Dr. James Titchner, and one psychologist, Dr. William Walters, to evaluate petitioner in order to determine his competency to stand trial and his mental state at the time of the offense. (Cooper Insanity Report, Supp.App. at 155-156; Cooper Competency Report, Supp. App. at 154; Tichener Competency Report, SuppApp. at 16; Tichener Insanity Report, Supp.App. at 163-167; Walters Insanity Report, SuppApp. at 168-170). At the conclusion of the guilt phase of the trial, defense counsel requested that a psychological evaluation of petitioner be performed for purposes of the mitigation hearing. Pursuant to that request, the court appointed Dr. Nancy Schmidtgoess-ling of the Hamilton County Court Clinic and reappointed Dr. Cooper to prepare reports for the mitigation phase. (Cooper Report, Supp.App. at 157-158; Schmidt-goessling Report, Supp.App. at 159-161). Counsel for petitioner chose not to hire or request any of their own mental health experts, and relied instead on the reports generated by the court’s experts. At the beginning of the mitigation hearing, counsel submitted all of the written reports for the trial court’s consideration, and chose not to present live testimony from any of the experts.

Dr. Cooper’s report regarding petitioner’s mental state detailed that petitioner had been disabled for some time with a back injury. (SuppApp., at 155). Dr. Cooper noted that petitioner had two previous psychiatric treatment episodes, one as a teenager for behavioral problems and another when he was in prison because of social withdrawal, but Dr. Cooper did not provide any detail regarding those episodes.

(Id).

Dr. Cooper reported that petitioner had no family history of psychiatric illness. Dr. Cooper concluded that petitioner did not meet the criteria for Not Guilty by Reason of Insanity, and that although petitioner was depressed enough to warrant psychiatric treatment, petitioner did not suffer from a mental disease or defect.

(Id.

at 156). Dr. Cooper determined that petitioner was competent to stand trial because petitioner understood the charges against him, and petitioner had sufficient cognitive and emotional capacities to assist counsel in his defense.

(Id.

at 154).

Dr. James Titchener evaluated petitioner to determine his competency to stand trial. Dr. Titchener concluded that petitioner possessed above average intelli

*860

gence. (Supp.App., at 163). Dr. Titchener stated that petitioner suffered from “severe psychological difficulty,”

(Id.),

and noted that petitioner exhibited a “real emotional disturbance” during the interview.

(Id.

at 165). Dr. Titchner opined that petitioner was “the type of person who lets others take advantage while he stringently over-controls his hostility and redirects it at himself. The defense of altruism is used to contain affect.”

(Id.

at 163). Dr. Titchener determined that petitioner “appears to tolerate and to submit to the abuses of others until finally he erupts with a feeling he himself cannot describe or understand because he hardly ever lets himself experience it.”

(Id.

at 163).

With respect to petitioner’s family background, Dr. Titchener provided the following information to the panel:

There was some review of family history and an intensely ambivalent relationship to the defendant’s mother who died in September of 1982. Mother had been good in some ways but a distant person and one who could not be satisfied with her marriage and family and frequently left it, finally divorcing husband when patient was sixteen. I think this historical background has explanatory power in that it shows us why this is a man who had to control his anger, stimulated often by his mother’s abandonment, in order to somehow retain and cling to the tenuous relationship with her.

(Id.

at 165).

Dr. Titchener diagnosed petitioner with “[i]solated or intermittent explosive personality disorder, manifested by the sudden appearance of uncontrollable aggressive impulses resulting in assault on a man and a woman.”

(Id.

at 165-66). Dr. Titch-ener stated that “[t]his disorder appears in the absence of generalized impulsivity or aggressiveness between episodes,” and that in his experience, the disorder “occurs exclusively in individuals who do not experience hostility and who extremely over-control it.”

(Id.

at 166). Dr. Titchener believed that petitioner experienced a crisis, “specifically the intense control and fear in this man of his aggressive impulses which then erupted in the special situation of feeling the exploited fool.”

(Id.)

Dr. Titchener concluded:

The alcohol and the marijuana were responsible for the loss of control which this man usually very carefully maintains.

In my opinion, this man does not suffer from mental disease or defect which would interfere with his capacity to differentiate between right and wrong. However, it is also my opinion that he suffers from mental disease or defect which would interfere with his capacity at the time of the offense to act upon his awareness of the distinction between right and wrong.

This is a most righteous man with a high moral sense and a great need to suppress and control hostility along with the parallel sense that his altruism and his goodliness wins him no love or favor from others, so the hostility mounts and exploded in the special situation of his feeling intensely exploited, helped by the tremendous lowering of controls brought about by the heavy consumption of alcohol and at least two marijuana cigarettes.

(Id.).

William Walters, Ph.D., a clinical psychologist, evaluated petitioner to determine his mental state at the time of the offenses. Dr. Walters met with petitioner at the Hamilton County jail on three occasions and administered the Minnesota Multiphasic Personality Inventory

*861

(“MMPI”) and the Quick Test.

(Id.

at 168). Additionally, Linda Merritt, a clinical social worker, interviewed petitioner, and she contacted Lenora Waugh, petitioner’s father, Attorney Piñales, two neighborhood acquaintances, the investigating officers and prosecutors.

(Id.).

Dr. Walters reported that petitioner’s intellectual level, as measured by the Quick test, was in the lower 21st percentile of the general population.

(Id.).

Dr. Walters found petitioner to be “a man of less than average intelligence with a rather fragile self-esteem that he frequently bolsters through his attempts to help others.”

(Id.

at 170). Dr. Walters described petitioner as depressed and sad, and noted that petitioner experienced periodic outbursts of sobbing during the evaluation.

(Id.).

Petitioner reported to Dr. Walters that his father was a “strict disciplinarian,” yet petitioner felt that his father’s punishments were just.

(Id.

at 169). Dr. Walters described the Sowell family as very poor but provided no further information. The report noted that petitioner’s mother and sister had died within the past year.

(Id.).

Dr. Walters opined that petitioner’s “charaeterological style of giving” to others was deeply engrained, and that petitioner frequently believed himself to have been victimized by others he had helped.

(Id.

at 170). Petitioner’s need to give to others, Dr. Walters explained, coincided with a “rather child like and naive belief that others will recognize him as ‘a good guy’ and appreciate him. Yet, Mr. Sowell frequently feels devastated and enraged when this behavior on his part is interpreted as weakness, precipitating attempts by others to take advantage of him.”

(Id).

According to Dr. Walters, “these blows to his self-esteem are difficult to tolerate, and Mr. Sowell has a potential to respond with rage.”

(Id.).

This potential is “significantly magnified when he has been drinking alcohol.”

(Id).

Dr. Walters concluded:

It is the opinion of this examiner that Mr. Sowell was not suffering from a mental disease or defect of the mind at the time he committed the alleged offenses. Rather, Mr. Sowell’s characte-rological style is one of being frequently disappointed by others which results in an angry counterattack. Moreover, this behavior is severely exaggerated when he is under the effects of alcohol, which was the case on the day of the alleged offense. Any impairment in ability to refrain from the alleged behavior was due to a lethal combination of character style and alcohol. Thus, Mr. Sowell’s ability to detect right from wrong or ability to refrain from the impulse was not impaired due to mental illness.

(Id.)

After the guilt phase of petitioner’s trial, Dr. Cooper conducted a psychological evaluation of petitioner for purposes of the mitigation hearing. Dr. Cooper’s report, which was only a few paragraphs long, was devoid of any information concerning petitioner’s background and social history. Dr. Cooper determined that petitioner “manifested no signs or symptoms of mental disease or defect.”

(Id

at 157). Dr. Cooper believed that the following issues contributed to petitioner’s conduct:

1) He was under the influence of alcohol and marijuana at levels which seriously impair rational thinking, judgment, and impulse control,

2) He felt betrayed by individuals he had considered his friends, believing that they had stolen money from him as he slept, and

3) He felt that his physical well-being had been threatened by Mr, Graham,

*862

and believed he was provoked to protect his property and safety in the manner in which he responded.

(Id.

at 157-58). Dr. Cooper concluded it was likely that “the combined [e]ffect of these factors in an individual who has been disabled since 1971, and undergoing a number of personal stresses resulted in the behavior which culminated in the offenses.”

(Id.

at 158).

As part of her psychological evaluation of petitioner for use in the mitigation hearing, Dr. Schmidtgoessling interviewed petitioner for approximately two hours, conducted approximately four hours of psychological testing over a two day period, and reviewed records of the Court Clinic’s past contact with petitioner, specifically the NGRI evaluation.

(Id.

at 159). With respect to petitioner’s background, Dr. Schmidtgoessling indicated that petitioner felt he had a “rough childhood” and “an unhappy home life.”

(Id.)

Petitioner reported that as a child, “there was a lack of adequate food, clothing and material goods as well as lack of close parental nur-turance.”

(Id.)

Petitioner described his early social relations as being marked by intimidation and a need to learn to defend himself

(Id.)

Petitioner relayed that gangs were prevalent and he “had to know how to use a knife, it was expected.”

(Id.)

At an early age, petitioner felt that he was “on his own,” and he worked odd jobs, skipped school, and would run away for a couple of weeks at a time.

(Id.).

Dr. Schmidtgoessling deduced that petitioner’s early life experiences “left him feeling abandoned, angry, without significant stable relationships, and conscious of the need to defend himself in a dangerous, hostile environment.”

(Id.

at 159-60)

Petitioner confided in Dr. Schmidtgoess-ling that he began “wandering around

from

the age

14 or 15.”

(Id.

at 160). He admitted to many fights and being “in and out of jails for such charges as assaults and carrying weapons,”

(Id.)

Petitioner reported being in prison twice, and denied killing anyone prior to the offense at hand.

Petitioner stated that he had been married once. The marriage lasted only two years and petitioner “mourned his loss by drinking alcohol to excess for a year or so. During this time he suffered blackouts, neglected his appearance and health and remained depressed all the time.”

(Id.)

After another failed relationship, petitioner reported going on a “drinking binge” for a year or two. Petitioner stated that he had never received psychiatric treatment or treatment for alcohol abuse.

(Id.)

Dr. Schmidtgoessling noted that “on the MMPI, Mr. Sowell’s score on a scale which is highly accurate in separating alcoholics from nonalcoholics placed him in the alcoholic range.”

(Id.)

Dr. Schmidtgoessling opined that petitioner “minimizes his alcohol use” but “admits to using marijuana daily.”

(Id.)

Dr. Schmidtgoessling determined that petitioner possessed less than average intelligence, that his insight and thought processes were mildly impaired, and that he suffered from chronic social maladjustment.

(Id.

at 160). She concluded that:

Personality testing and history show that Mr. Sowell is an angry, resentful, argumentative individual who finds it very difficult to feel that his needs are adequately met in interpersonal relations. He is extremely sensitive to slight or criticism, which he may perceive where others don’t. Because of this, particularly if he feels he has been slighted or has lost face in front of others, unpredictable and irrational anger outbursts occur periodically. Externalization of blame is seen in Mr. Sowell, as well as a lack of insight and psychological mindedness.

*863

In summary, Mr. Sowell is a very vulnerable, empty man who craves acceptance and accolades from others so that he can see himself as worthwhile.

At the time of the offense he had apparently been drinking alcohol and using marijuana, and felt that he had been ripped off by people he had previously shown friendship and generosity to. There is no evidence that at the time of the offense—or ever in his life—that Mr. Sowell suffered from a mental disease or defect. He certainly did and does now suffer from a chronic personality disorder marked by serious problems in interpersonal relations and impulse control.

(Id.

at 160-61).

The PSI was also admitted into evidence. The PSI provided a factual summary of the offense and contained a section addressing victim impact. That section included statements from Pam Billups, Calvert Graham’s brother, and Specialist Ronald Camdon of the Cincinnati Police Department. With respect to petitioner’s background, the PSI stated that petitioner had eight years of education, that he had a history of previous psychiatric care in Rockford Illinois, that he was previously married, that he provided financial support for his children, and that he was disabled. The portion addressing petitioner’s criminal history outlined petitioner’s entire criminal record, including offenses for which petitioner had been arrested but never convicted, and noted that petitioner had previously been a parole violator, that he had multiple arrests in Illinois, and that he had not adjusted well to prison life in the past.

(Id.

at 187-192).

B. Petitioner’s Claims

Sentencing Phase Investigation

Petitioner argues that his trial attorneys conducted little to no investigation into his background and his personal and family history in preparation for the mitigation phase of his trial. Petitioner claims that counsel failed to interview members of his family, failed to obtain a mitigation specialist/investigator, and relied on the PSI prepared by members of the probation department who were not trained to conduct a mitigation investigation. The Court will address petitioner’s arguments in turn.

First, petitioner argues that his counsel failed to interview members of his family and others who knew him throughout his life. Specifically, petitioner claims that counsel failed to interview his employer, his paternal aunt Ann Simpson, local businessman Walter Gabennesh, his friend and bail bondsman Leroy Jones, his great uncle Bobby Lee Horton, his youngest brother Larry Sowell, his co-worker Jimmy Wilcox, and his father, Henderson Sowell Sr. Counsel failed to call a single member of petitioner’s family to testify in mitigation, other than his common law wife, Lenora Waugh, who met with counsel only once before her testimony. With respect to the witnesses who did testify for the defense, petitioner argues that his counsel did not adequately interview them prior to their testimony, and that several of those witnesses testified not as a product of defense counsel’s investigation, but because those witnesses contacted defense counsel and volunteered to testify on petitioner’s behalf. (Doc. # 180, at 13).

Next, petitioner argues that his counsel violated their duty to investigate because they did not request the appointment of a mitigation specialist to assist in identifying, interviewing and preparing witnesses for the mitigation hearing. Petitioner maintains that counsel in a capital case

*864

cannot satisfy their obligation to conduct a thorough investigation into a defendant’s life history, family background, and formative environment without the assistance of investigators and mitigation specialists trained to identify environmental and biological factors that affect a person’s development.

{Id.

at 12). Petitioner argues that a mitigation investigator was necessary in his case because most of his family members and many of the records concerning his past were located in either Illinois or Alabama. As a result of those distances, trial counsel were unable to interview several individuals who had valuable information concerning petitioner’s development and childhood. Petitioner maintains that a mitigation investigator would have assisted counsel by traveling to interview petitioner’s family, and by reviewing the school and hospital records that were located out of state.

Finally, petitioner claims that counsel’s performance was deficient because in lieu of conducting their own mitigation investigation, counsel relied on the Hamilton County Adult Probation Department to prepare a presentence investigation report (“PSI”). Counsel’s request to have the probation department prepare a PSI did not fulfill counsel’s obligation to conduct an independent investigation, petitioner argues, because the probation authorities were not trained to conduct as comprehensive an evaluation as required for the preparation of a mitigation case on behalf of the defense. Additionally, the PSI contained damaging information that would otherwise have been inadmissible, such as petitioner’s criminal record, the fact that petitioner had previously been a parole violator, that petitioner had twenty arrests in Illinois, and that petitioner had adjusted poorly to prison in the past.

{Id.

at 31).

Petitioner argues that his counsel were ill-equipped to present a meaningful case in mitigation due to their failure to conduct an adequate sentencing phase investigation. Petitioner notes that “[o]n the morning of November 2, 1983, defense counsel gave their opening statement in mitigation. By lunch time, defense counsel had completed their mitigation phase presentation including closing argument. Defense counsel called six witnesses whose direct examination totals only thirty-four pages in the transcript.” (Doc. # 180, at 8). According to petitioner, the testimony presented by defense counsel was limited to the good character traits of petitioner, and the witnesses offered no insight into the emotional trauma that petitioner experienced during his formative years.

{Id.)

Due to counsel’s failure to conduct an adequate investigation, petitioner argues, a wealth of mitigating evidence was not presented to the three-judge panel. Petitioner has submitted affidavits from several individuals, including family members, who have stated that they were ready and willing to testify at the mitigation hearing but were not interviewed by counsel. Petitioner argues that the following mitigating evidence was not presented to the panel.

Petitioner grew up in extreme poverty. He was born in 1937, and spent the first nine years of his life living in Alabama. The family experienced “blatant discrimination that was an inherent part of being black in the rural South during the 1940’s.” (Hawgood Affidavit, Supp.App., at

230).

Both of petitioner’s parents were from broken families and neither had adequate parenting skills. The Sowell family included six children, and they were often without adequate food, clothing, shelter and other basic necessities. Petitioner was forced to steal food in order for his siblings and him to survive. (Doc. # 180, at 19). When petitioner was eight years old, his infant brother died of starvation. (Haw-good Affidavit, Supp.App., at 226). Peti

*865

tioner recalls that as small children, he and his siblings were bitten by rats, were infected with ringworms, and lacked sufficient clothing.

(Id.)

Petitioner did not get his first pair of shoes until he was five years old.

(Id.)

The family lived in a three bedroom trailer that had no indoor plumbing. When he was nine, the Sowell family moved to Illinois and lived in the basement of an unfinished house. The basement home had no electricity or running water.

Petitioner’s father, Henderson Sowell, Sr., was, by several accounts, a serious alcoholic and a violent man. He became involved in extramarital affairs and would leave the basement home for long periods of time. Petitioner states that when his father was home, “the family was in a state of constant chaos and fear.” (Doc. # 180, at 20). Petitioner’s father, when intoxicated, would beat petitioner’s mother and the children, including petitioner. Petitioner’s father demanded control and organization, and reacted violently when those conditions were not met. In order to avoid such reactions, the Sowell children would not speak while he was in the basement. (Affidavit of Henderson Sowell, Jr., Supp. App., at 248). Petitioner’s father tied petitioner and his sister Joann to a chair and beat them. (Affidavit of Catherine Jones, Supp.App., at 260). Petitioner’s father sexually abused petitioner’s sister Catherine.

(Id.).

Petitioner’s mother was so terrified of his father that she would not try to protect her children from his drunken outbursts. She often fled the home, leaving the children to defend themselves. (Supp.App., at 248). Petitioner’s parents eventually divorced, and petitioner and three of his siblings remained with their father in the basement home. Petitioner’s father would leave the children for long periods of time while cavorting with other woman. Petitioner was forced to act as a surrogate parent for his siblings. Because his father was frequently gone, the children had no food. Petitioner would go to his mother’s home and beg for food.

Petitioner began to use drugs and consume alcohol when he was thirteen. When he was only fourteen, petitioner left the basement home and began living in a tent at a local junk yard. During the next two years, petitioner was arrested more than twenty times, mostly for drunken and as-saultive behavior. According to petitioner, he “had developed a Jekyll and Hyde personality. On one hand, when he was sober, he was a very generous person. However, when he had been drinking he became very combative.” (Doc. # 180, at 22). Petitioner was sent to a juvenile facility in Kentucky where he was forced to work in a coal mine. After working in the coal mine, petitioner returned to Illinois. He was convicted of forging a seventy-two dollar check and served nine years in an Illinois State prison. When he was released, he moved to Cincinnati to start a new life. He maintained employment, and tried to help others who needed money and food.

Finally, petitioner argues that the panel did not learn that his siblings “have not fared any better in life.”

(Id.,

at 23). His sister Joanne became a prostitute and killed her pimp. His brothers Henderson Jr. and Benny served time in prison. His brother Larry served time for manslaughter. Four of the six Sowell children were, at one time or another, alcohol or hard drug addicts. (Hawgood Affidavit, Supp. App., at 233).

According to petitioner, he was prejudiced by counsel’s deficient performance during the mitigation phase of his trial because counsel were unable to present to the panel information concerning the connection between his abusive background and the commission of the offense. Peti

*866

tioner maintains that during his formative years, he developed “an extreme sense of anger, inadequacy, and longing for acceptance.” (Doc. # 180, at 25). Due to the lack of familial resources and nurturing from his parents, petitioner “felt misused, abandoned, unappreciated, and victimized,” and “learned that an appropriate response to frustration was physical violence.”

(Id.).

Petitioner argues that there is a reasonable likelihood that at least one member of the three-judge panel would have voted in favor of a sentence less than death if the panel had been informed of petitioner’s dysfunctional childhood, and the resulting impact of that childhood on his development and commission of the offense, and if the panel had not learned of all the damaging and otherwise inadmissible information contained in the PSI.

Petitioner presented his allegations of ineffective assistance of counsel during mitigation to the state courts during his state postconviction proceedings. Petitioner submitted the affidavits of fourteen members of his family outlining his background and character in support of his claim that trial counsel failed to interview members of his family. With respect to his claim that his counsel should have requested a mitigation specialist, petitioner submitted the affidavit of a mitigation specialist who attested to the assistance that her expertise could lend to defense counsel preparing for a mitigation hearing in a death penalty case.

The court of appeals considered and rejected petitioner’s claims. The court determined that the information contained in the affidavits of family members was merely cumulative of the evidence considered by the trial court during the penalty phase of the trial.

State v. Sowell,

73 Ohio App.3d 672, 681 , 598 N.E.2d 136 (1st Dist. 1991). The court held that “[i]n the absence of proof of a reasonable probability that, but for this alleged omission of counsel, the result of his trial could have been different, Sowell’s challenge to the effectiveness of counsel in this respect fails.”

Id.

Furthermore, the court concluded that petitioner failed to demonstrate a particularized need for the assistance of a mitigation investigator, finding that “ ‘the experts sought here would have been no more than consultants to counsel as opposed to sources of evidence relevant to disputed factual issues.’ ”

Id.

(citing

State v. Jenkins,

15 Ohio St.3d 164 , 473 N.E.2d 264 (1984)). Because the court concluded that petitioner could not establish a basis for such assistance, the court held that petitioner’s counsel neither violated an essential duty to petitioner, nor prejudiced the defense by failing to request a mitigation specialist.

Id.

The question before this Court is whether petitioner’s trial attorneys performed unreasonably and to petitioner’s prejudice in failing to conduct a comprehensive investigation into petitioner’s background and social history, in failing to interview and subpoena certain family members and friends to testify, and for requesting the preparation of a PSI. For the reasons that follow, the Court finds that counsel performed deficiently by failing to discover, develop or present substantial mitigating evidence concerning petitioner’s background and social history, and that there is a reasonable probability that had counsel done so, at least one member of the three-judge panel would have voted against the imposition of the death penalty,

a. Deficient performance

In evaluating counsel’s performance, the Court must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” and make every effort “to eliminate the distorting effects of hindsight.”

Strickland,

466 U.S. at 690 , 104 S.Ct. 2052 .

*867

The Court must objectively review counsel’s performance in the context of prevailing professional norms, and the Supreme Court has referred to the standards of the American Bar Association (“ABA”) as guides to determining what is reasonable representation in a capital case.

See Rompilla v. Beard,

545 U.S. 374, 387 , 125 S.Ct. 2456 , 162 L.Ed.2d 360 (2005);

Wiggins v. Smith,

539 U.S. 510, 523 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003). Although petitioner’s trial occurred before promulgation of the standards, “[c]onsidering counsel’s performance in light of the current ABA Guidelines is proper despite the fact that the ABA Guidelines were issued well after Petitioner’s trial, as the ABA Guidelines represent a codification of longstanding, common-sense principles of representation understood by diligent, competent counsel in death penalty cases.”

Haliym v. Mitchell,

492 F.3d 680 , 717 n. 28 (6th Cir.2007) (applying 2003 ABA guidelines to a case tried in 1987);

see also State v. Keith,

79 Ohio St.3d 514 , 684 N.E.2d 47 , (1997);

State v. Esparza,

39 Ohio St.3d 8, 9 , 529 N.E.2d 192 (1988);

State v. Buell,

22 Ohio St.3d 124, 138 , 489 N.E.2d 795 (1986).

Furthermore, the cases that have criticized this procedure are relatively recent, and this Court must judge the reasonableness of counsel’s conduct as of the time that counsel rendered the assistance.

Sowell v. Bradshaw,

372 F.3d 821, 838 (6th Cir.2004) (finding that counsel’s conduct with respect to petitioner’s jury waiver did not fall below a minimal level of professional competency even though counsel “might now, over sixteen years later, approach the situation differently”). The decision to request a PSI or mental examination under R.C. § 2929.03(D)(1), so long as there was some reasoned basis for it, is generally a tactical decision not to be second-guessed in hindsight. Although it would appear that the better practice would have been for counsel to forgo requesting a PSI, the Court cannot conclude that, in 1983, counsel were constitutionally ineffective for utilizing § 2929.03(D)(1) of the Ohio Revised Code and requesting the preparation of a PSI.

Necessary Experts

Petitioner argues that counsel failed to retain reasonably necessary mitigation experts. First, petitioner argues that because his counsel failed to sufficiently investigate his background and social history, Drs. Schmidtgoessling and Cooper did not have all of the information necessary to conduct an adequate mitigation evaluation. Due to their lack of information, petitioner contends, the mitigation evaluations performed by Schmidtgoess-ling and Cooper, as well as the reports that were generated as a result of those evaluations, were constitutionally inadequate. Next, petitioner argues that counsel should have requested the appointment of additional, independent experts based on information contained in the reports generated by the court’s experts. Specifically, petitioner claims that counsel should have requested a substance abuse or addiction specialist, and that counsel should have requested further testing by a neu-ropsychologist to determine whether he suffered from a brain impairment or brain damage.

Petitioner argues that he was substantially prejudiced by counsel’s failure to retain reasonably necessary mental health experts. Because counsel did not follow up on the information contained in the reports submitted by the court’s experts, and failed to request a neuropsychological evaluation of petitioner and a substance abuse specialist, the three-judge panel did not consider crucial psychological evidence that was necessary for the panel to draw a nexus between petitioner’s background and the events that led up to his commission of the offense. Petitioner argues that a habeas petitioner proves prejudice when he demonstrates that trial counsel failed to present evidence of a brain impairment.

See Glenn,

71 F.3d 1204, 1211 (6th Cir.1995).

In support of his argument that the mitigation evaluations performed by Schmidtgoessling and Cooper were constitutionally inadequate due to counsel’s failure to investigate his background and social history, petitioner cites an affidavit from Dr. Julia Hawgood, a psychologist who evaluated him in 1989 in connection with his state postconviction proceedings. Dr. Hawgood’s affidavit detailed the importance of having complete background

*875

information of a capitally charged defendant. As part of her evaluation of petitioner, Dr. Hawgood reviewed the transcript of the mitigation hearing, all of the affidavits submitted by petitioner in post-conviction, all psychiatric evaluations performed in his case, the PSI, all testing data, prison records, medical records, and parole progress reports, and conducted a six hour clinical interview of petitioner. (Hawgood Affidavit, Supp.App., at 225).

Dr. Hawgood opined that extensive psychological data, as well as records from schools, treatment sites, courts, and employers should have been available for counsel’s preparation, and that this extensive data “should have been available to the mental health professions asked to do the psychological evaluation for mitigation, so that the unique developmental influences of Mr. Sowell’s life and his resulting personality dynamics could be cohesively conceptualized and integrated into the pre-sentence evaluation.”

(Id.

at 244). With respect to Dr. Schmidtgoessling’s mitigation evaluation, Dr. Hawgood determined that Dr. Schmidtgoessling “neither was given sufficient time to conduct an in-depth evaluation, nor was she provided with extensive collateral data from other professionals during this brief period.”

(Id.)

Due to the lack of necessary data, Dr. Hawgood concluded, Dr. Schmidtgoessling was unable to provide a comprehensive picture of petitioner’s development.

(Id.).

Dr. Hawgood found it noteworthy that Dr. Schmidtgoessling “was not called as an expert witness, so that her expertise as a professional and her knowledge of Mr. So-well’s developmental influences could be utilized to the fullest.”

(Id.).

Dr. Haw-good offered the following opinion:

In short, in order for the legal process to work optimally, the psychologist and the trier of fact must have the opportunity to understand in depth who the defendant is, how his life’s experiences have come to impact his functioning, and what psychological factors come to play in the crime. It is my opinion that neither Billy Joe Sowell’s attorney nor his trier of fact had such a fully developed understanding.

(Id.

at 245-46).

With respect to her own evaluation of petitioner, Dr. Hawgood attempted to explain petitioner’s development in terms of biological and environmental influences. She noted that petitioner, during his formative years, developed an extreme sense of anger, inadequacy and longing for acceptance due to the lack of familial resources and nurturing by his parents. Petitioner felt “misused, emotionally abandoned, unappreciated, and victimized.”

(Id.

at 229-30). From his parents, petitioner learned that an appropriate response to frustration was physical violence, even in personal relationships.

(Id.

at 232-33; Doc. # 180, at 25). Dr. Hawgood concluded that “[b]y the time of his capital offense in 1983, Billy Joe Sowell had developed a considerable repressed rage that stems originally from his sense of being emotionally and physically abandoned by his parents and from his resentment at being victimized by life.” (Supp.App., at 236). Petitioner attempted to stringently over control his rage through “long, hard hours of structured labor,” and by isolating himself from potential sources of frustration.

(Id.

at 237). Petitioner also suffered from “feelings of inferiority, inadequacy, and low self esteem,” which he attempted to offset by being generous to others.

(Id.).

Petitioner used alcohol to reduce his anger, but “[i]ronically, alcohol would ameliorate his anger, but also reduce his ability to control his anger.” (Doc. # 180, at 26).

Dr. Hawgood noted that on the day of the offense, “[psychologically, Mr. Sowell experienced himself in yet another sitúa

*876

tion of feeling intensely exploited, manipulated and unappreciated” because he believed that the occupants of the apartment had stolen his money while he slept off the effects of alcohol and marijuana. (Supp. App., at 243). His anger at being robbed “was based on the fact that he had been a ‘good friend’ to Mr. Graham by lending him money and helping him out.”

(Id.).

More importantly, according to Dr. Haw-good, “the anger was fueled at a more primitive level by a lifetime of perceived unfair treatment, beginning the day he was born.”

(Id.).

Petitioner’s argument that counsel were ineffective because they did not request additional mental health evaluations once they were informed that further evaluations were necessary has two sub-parts. First, petitioner argues that counsel should have requested the appointment of a substance abuse or addiction specialist. Petitioner directs the Court’s attention to the reports of Drs. Titchener and Walters addressing the issue of sanity, which indicated that alcohol and marijuana impacted petitioner’s development in life. (Titchener Insanity Report, Supp.App., at 165-66; Walters’ Insanity Report, Supp.App., at 170). Additionally, the mitigation reports prepared by Drs. Cooper and Schmidtgoessling concluded that petitioner’s usage of alcohol and marijuana contributed to the commission of the offense. (Cooper Mitigation Report, Supp.App. at 157; Sehmidtgoessling Mitigation Report, Supp.App. at 161). Dr. Schmidtgoessling determined that there was a “high likelihood” that petitioner was an alcoholic. (Schmidtgoessling Mitigation Report, pg. 3, Supp. App. at 161). Petitioner argues that his counsel should have sought to further development this information, because “the reports that the court admitted at the mitigation phase should have placed counsel on notice as to the need to request the appointment of a substance abuse or addiction specialist.” (Doc. # 180, at 17).

In the second sub-part, petitioner claims that counsel should have requested the appointment of a neuropsychologist, as well as additional psychological testing to determine if petitioner was suffering from brain damage or a brain impairment. Petitioner directs the Court’s attention to Dr. Cooper’s report which stated that petitioner had suffered from “two previous psychiatric episodes....” (Supp.App., at 155). Dr. Titchener concluded in his sanity evaluation report that petitioner suffered from a “mental disease or defect which would interfere with his capacity at the time of the offense to act upon his awareness of the distinction between right and wrong.” (Supp.App., at 166). Additionally, another report indicated that petitioner suffered severe head injuries as a child and suffered from blackout spells between the ages of eight and fourteen. (April 15, 1983 Reclassification Report, Mitigation Ex. 1, Supp.App. at 278). Petitioner claims that in light of this information, counsel should have sought an evaluation by a neuropsychologist to determine the extent of any brain impairment or brain damage suffered by petitioner.

Petitioner has offered affidavits from two additional mental health experts to support his claim that trial counsel failed to secure necessary experts and evaluations. First, petitioner offers an affidavit from Robert Smith, Ph.D., a licensed Clinical Psychologist, who, in 1993, conducted a psychological and chemical dependency assessment of petitioner in order to determine the nature, extent, and effect of petitioner’s dependence on alcohol. (Supp.App., at 273). Dr. Smith administered the Michigan Alcoholic Screening Test (“MAST”) and the Drug Abuse Screening Test (“DAST”).

(Id.)

Dr. Smith noted that on either of those tests, a score of five or

*877

higher is significant.

(Id.)

Petitioner received a score of 31 on the MAST, and a score of 8 on the DAST.

(Id.)

Dr. Smith concluded that petitioner’s scores “clearly indicated that his use of drugs and alcohol was problematic.”

(Id.)

Dr. Smith noted that petitioner’s father abused alcohol on an almost daily basis, and that two of petitioner’s three brothers have an extensive history of alcohol abuse.

(Id.

at 274). Petitioner began experimenting with alcohol at age thirteen.

(Id.

at 274). By age fifteen, and after his parents decided to divorce, petitioner began to abuse alcohol on a daily basis.

(Id.)

When drinking alcohol, petitioner became short tempered and would initiate fights with his peers.

(Id.).

Between the ages of nineteen and twenty-one, petitioner’s use of alcohol continued to be excessive, resulting in blackouts, mood swings, and angry outbursts that would lead to fights with those around him.

(Id.

at 275). Between the ages of twenty-two and thirty, petitioner spent considerable time incarcerated, where he learned to make homemade alcohol.

Dr. Smith characterized petitioner’s alcohol abuse between the ages of thirty and forty as excessive. Smith described that time period as follows:

Mr. Sowell recognized that his use of alcohol was out of control. He made several unsuccessful attempts to reduce his consumption. He was successful for only short periods of time and then would resume drinking in excessive amounts. The blackouts increased in frequency and his behavior became more erratic. After separating from his wife, his drinking progressed even further. At this point, Mr. Sowell acknowledged that when he attempted to quit drinking, he experienced severe withdrawal symptoms (i.e., gross tremors, diaphoresis, auditory and visual hallucinations). He realized that he could not stop drinking abruptly and needed to maintain his consumption in order to avoid becoming ill.

(Id.).

According to Smith, petitioner reported gulping alcohol and admitted that he had frequent blackouts.

(Id.

at 275). Petitioner’s use of alcohol “progressed to the point of what is referred to as ‘maintenance drinking’ in which the individual maintains a blood alcohol concentration that will enable them to avoid the experience of any withdrawal.”

(Id.

at 276).

Dr. Smith explained that the most notable sign of an individual suffering from alcoholism is a change in the person’s behavior, and “[d]ramatic mood swings are common and may lead to bouts of depression or unpredictable acts of violence.”

(Id.

at 276). With respect to petitioner’s interpersonal relationships, Dr. Smith reported that petitioner acknowledged that his use of alcohol led to arguments with his family and peers as early as adolescence. As an adult, petitioner’s alcoholism caused his relationships with friends and family, including his wife, to deteriorate.

(Id.

at 276).

Dr. Smith concluded that petitioner’s behavior and judgment were significantly influenced by his extensive use of alcohol throughout the day of the offense. Specifically, Dr. Smith noted that petitioner’s violent behavior was directly affected by his alcohol use, and “[t]here is reason to believe that had he not been under the influence of alcohol, he would have been able to refrain from his involvement in this offense.”

(Id.

at 278). Dr. Smith opined that “[g]iven Mr. Sowell’s history of alcohol abuse, and the significant life problems he has experienced as a result, the evidence is overwhelming that he suffers from a psychiatric disorder titled, Alcohol Dependence (DSM III-R 303.90) and Cannabis Abuse (DSM III-R 305.20).”

(Id.).

*878

Petitioner has also submitted an affidavit from Dr. Michael Gelbort, a licensed clinical neuropsychologist, who evaluated him in 1993.

Dr. Gelbort explained that petitioner is slow to process and perceive information, is easily confused, and his thought processes are often “illogical and tangential.” (Supp.App., at 220). Petitioner’s academic skills are at the fourth, eighth and sixth grade levels for the areas of reading, spelling and math respectively.

(Id.)

Dr. Gelbort determined petitioner’s full scale IQ to be 86.

(Id.

at 221). On the Wechsler Adult Intelligence Test, he scored in the lower two and one half percent of the population on the subtests involving verbal comprehension, verbal reasoning, and verbal problem solving.

(Id.

at 151). Petitioner scored in the lower two percent of the population in his ability to “reason, ponder, project into the future, anticipate consequences of all those things.... ”

(Id.

at 152). Petitioner exercises thinking skills, like those where he must use judgment and reasoning, “like people who tire mentally retarded.”

(Id.

at 152). Dr. Gelbort testified at the evidentiary hearing that petitioner tested “like people with brain damage, and that’s in fact consistent with his history. He has had a number of head injuries.” (Fed. Evid. Hearing Tr., at 84). Dr. Gelbort noted in his affidavit that petitioner suffered head injuries as a youth that resulted in losses of consciousness on several occasions. Those injuries arose from fights, and from going down a ski jump and crashing on a bicycle. (Supp.App., at 219).

Dr. Gelbort concluded that petitioner’s slowed information processing ability, and his limitations in problem solving abilities, are consistent with the late effects of acquired brain dysfunction, which affects the frontal and left temporal lobes of the brain.

(Id.

at 222). Due to organic dysfunction, petitioner is more likely to be impulsive, to process information slowly, to have difficulty problem solving and working in a logical manner.

(Id.

at 222-23). All of these problems “are exacerbated by the effects of chronic alcohol abuse.”

(Id.

at 222). Dr. Gelbort concluded that “Mr. Sowell’s cognitive condition appears to be of long-standing and would have been in effect at the time of the criminal act in question.”

(Id.

at 223). With respect to the prior evaluations of petitioner, Dr. Gel-bort opined that “[t]he patient’s history has several markers which would have alerted an appropriately trained psychologist from that era that neuropsychological dysfunction might be present and should be evaluated.”

(Id.

at 223).

The question before the Court is whether petitioner’s trial attorneys performed unreasonably and to petitioner’s prejudice in failing to request and obtain independent experts regarding petitioner’s brain impairment and substance abuse, and choosing instead to rely on the evaluations and reports prepared by the court’s experts. In support of this claim, petitioner submits affidavits from three doctors who concluded, after reviewing the evidence in his case, as well as substantial background information, that petitioner’s alcoholism directly affected his behavior on the night that he killed Graham, and that the reports prepared by Drs. Cooper and Schmidtgoessling were inadequate. Petitioner argues that these affidavits offer proof of what any other experts would have offered, and that, potentially, the experts in his case would have offered had they been provided with more developed

*879

information concerning petitioner’s background.

As an initial matter, the Court notes that it has previously concluded that it could not consider the affidavits of Drs. Smith and Gelbort. In his state postcon-viction proceedings, petitioner presented an affidavit from Dr. Hawgood, but did not present affidavits from Smith or Gelbort. The Court concluded, in its Opinion and Order denying petitioner’s motion for an evidentiary hearing on this claim, that petitioner failed to explain, and that no explanation was apparent from the record, why this evidence could not have been presented to, and developed in, the state courts during his postconviction proceedings. (Doc. # 123 at 19,

Opinion and Order

of September 29, 1998). The Court also concluded that petitioner failed to demonstrate that a fundamental miscarriage of justice would result if the Court denied petitioner’s motion for an evidentiary hearing in this regard.

(Id.)

However, even if the Court considered all three affidavits, petitioner’s arguments lack merit.

With respect to the failure of petitioner’s trial counsel to obtain their own independent psychological experts, counsel did not perform unreasonably or to petitioner’s prejudice in this regard. Petitioner’s ineffectiveness allegation is also related to the fact that, by virtue of trial counsel’s failure to obtain their own experts, the results of the various psychological evaluations that were performed on petitioner were available to the prosecution and trial court alike. Petitioner asserts that the failure of his attorneys to secure their own experts was not the result of sound trial strategy. However, petitioner offers no evidence to the contrary, and counsel are not ineffective simply for using a court expert, as opposed to an independent expert.

Keith v. Mitchell,

455 F.3d 662 (6th Cir.2006) (rejecting argument that counsel were ineffective for using court’s experts when he could not demonstrate prejudice);

Smith v. Mitchell,

348 F.3d 177 (6th Cir.2003) (same).

Moreover, Counsel’s decision in this instance not to obtain additional substance abuse or psychological experts can be characterized as a reasonable decision deserving of deference because it appears that counsel had available to them multiple evaluations of petitioner concerning his competency and mental state. Through the pretrial period, petitioner was evaluated on several occasions by multiple mental health experts concerning both his competency to stand trial and his mental state at the time of the offense. Based on the presumption of competency that defense counsel enjoy under

Strickland ,

as well as the record, it is reasonable to presume that counsel’s decision not to seek yet another expert stemmed not from neglect or laziness, but from the reasonable decision, based on the conclusions of the multiple doctors who had examined petitioner prior to trial, that the well was dry.

See Jer-myn v. Horn,

266 F.3d 257, 301-302 (3rd Cir.2001) (finding that counsel’s decision not to seek another mental health evaluation was reasonable based on contents of report finding that defendant was competent);

Wilson v. Greene,

155 F.3d 396, 403 (4th Cir.1998) (counsel not required to second-guess content of reports concluding that defendant was not mentally ill at time of the offense). Counsel could reasonably have determined that there was no more information to be gleaned and no advantage to be gained by obtaining their own experts. For these reasons, petitioner’s counsel did not perform unreasonably or to petitioner’s prejudice in this regard.

Petitioner is incorrect in his contention that none of the experts who evaluated him at the time of his trial drew a connection between his alcoholism and the mur

*880

der of Graham. Contrary to petitioner’s assertion, Dr. Schmidtgoessling did conclude that petitioner was an alcoholic, and the reports of Drs. Titchener and Walters contained information about the effect of alcohol on petitioner’s commission of this offense. Dr. Schmidtgoessling noted that the MMPI testing, which she described as highly accurate at separating alcoholics from non-alcoholics, indicated that petitioner was an alcoholic. (Supp.App., at 160). Dr. Schmidtgoessling recited petitioner’s history of excessive drinking, and noted that petitioner suffered alcoholic blackouts and was prone to binge drinking.

(Id).

She opined that there was a high likelihood that petitioner suffered from alcoholism.

(Id.

at 161).

Petitioner’s history of alcoholism was also referenced in the other evaluations of petitioner that were included in Court’s Exhibit 1 and submitted for the panel’s consideration in mitigation. Dr. Walters, who evaluated petitioner to determine his mental state at the time of the offense, noted that petitioner’s potential for being hurt by others is magnified, significantly, when he has been drinking alcohol. (Supp. App., at 170). Dr. Walters concluded that petitioner’s anger and feelings of inferiority are “severely exaggerated when he is under the effects of alcohol, which was the case on the day of the alleged offense. Any impairment in ability to refrain from the alleged behavior was due to a lethal combination of character style and alcohol.”

(Id.).

Dr. Cooper, a psychiatrist, determined that petitioner’s use of alcohol and marijuana “at levels which seriously impair rational thinking, judgment and impulse control,” contributed to the commission of the offense. (Supp.App., at 157). Likewise, Dr. Titchener, in his report regarding petitioner’s competency to stand trial, noted that petitioner’s consumption of “alcohol and marijuana were responsible for the loss of control which this man usually very carefully maintains.” (Supp. App., at 166).

The fact that counsel did not request the appointment of a substance abuse specialist more likely suggests that counsel felt Dr. Schmidtgoessling’s diagnosis of petitioner, and the nexus that she and the other experts drew between his alcoholism and his conduct on the night in question, sufficiently addressed this issue. Counsel may have felt that the conclusion of Dr. Schmidtgoessling that petitioner was an alcoholic would carry more weight than that of a defense expert, due to the fact that Dr. Schmidtgoessling was an independent court expert. Thus, it could very well have been a strategic decision on the part of defense counsel to rely exclusively on the conclusions reached by the court’s own experts. In any event, petitioner has failed to overcome the strong presumption that counsel’s conduct in this regard was sound trial strategy and within the scope of reasonably professional assistance.

With respect to petitioner’s claim that the experts failed to diagnose his brain impairment, petitioner has not demonstrated that he in fact suffers from a brain impairment. Petitioner’s only evidence in this regard is Dr. Gelbort’s affidavit, which this Court has determined it cannot consider. (Doc. # 123 at 19, Opinion and Order of September 29.1998). Even if the Court were to consider the affidavit of Dr. Gelbort, the Court is not of the view that Dr. Gelbort conclusively diagnosed petitioner as suffering from a brain impairment. Rather, Dr. Gelbort concluded that petitioner’s slowed information processing ability and limitations in problem solving abilities was

consistent

with acquired brain dysfunction. (Gelbort Affidavit, Supp. App., at 222).

Even if petitioner’s counsel had been deficient in not obtaining a defense expert

*881

on substance abuse or a neuropsychologist, petitioner would be hard pressed to demonstrate prejudice. All three affidavits submitted by petitioner are lengthy and extraordinarily detailed, but their significance for the purpose of this habeas action is rather straightforward: All three conclude, among other things, that petitioner’s intoxication played a role in the murder of Graham, and that petitioner may be suffering from a brain impairment. This information was, in essence, presented to the panel. Under

Strickland ,

the Court must consider whether the additional evidence is so different in strength and character from what counsel presented that there is a reasonable probability that the inclusion of it would have affected the outcome of the trial. In so doing, the Court is not persuaded that this is a case where counsel failed to present evidence of mental or personality defects that almost surely would have mitigated petitioner’s culpability and without which the Court cannot have confidence in the reliability of petitioner’s sentencing proceedings. Accordingly, the Court concludes that counsel did not fail to retain necessary experts.

Conclusion

For all of the foregoing reasons, the Court grants in part and denies in part petitioner’s claims of ineffective assistance of counsel during the mitigation phase of his trial. The Court finds that trial counsel failed to conduct an adequate sentencing phase investigation into petitioner’s background and social history, and that petitioner has demonstrated a reasonable probability that at least one member of the three-judge panel would have voted against death had counsel presented mitigating evidence describing petitioner’s violent and neglectful childhood. However, the Court finds petitioner’s argument that his counsel failed to obtain reasonably necessary experts to be without merit.

ARGUMENT NO. II:

THE ACTS AND OMISSIONS OF THE DEFENSE COUNSEL IN THE TRIAL PHASE DEPRIVED MR. SOWELL OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

In his second argument, petitioner asserts that he was denied his right to the effective assistance of counsel during the guilt phase of his trial in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Petitioner presents three arguments in support of this claim. First, petitioner argues that counsel failed to conduct a reasonable pre-trial investigation. Next, petitioner argues that counsel failed to cross-examine Donna Edwards, a key prosecution witness and eye-witness to the shootings. Finally, petitioner claims that counsel failed to object to inadmissible evidence concerning petitioner’s children, a false ceiling in his apartment, and his prior contacts with law enforcement.

A. Counsel conducted an unreasonable investigation

Petitioner argues that his counsel violated their duty to conduct a sufficient pretrial investigation. According to petitioner, the ABA Standards for Criminal Justice require that defense counsel conduct a reasonable pre-trial investigation that includes, at a minimum, interviewing the state’s witnesses, as well as identifying and interviewing any potential defense witnesses. Petitioner argues that the state provided his counsel with a witness list identifying twenty-two potential witnesses, two of whom actually witnessed the shootings, yet his counsel failed to interview any of those individuals prior to trial. In sup

*882

port of this assertion, petitioner cites the affidavits of Jerrell Perrin and Donna Edwards, who aver that defense counsel never interviewed them. (Perrin Affidavit, Supp.App. at 264; Edwards Affidavit, Supp.App. at 211). Additionally, petitioner cites the itemized legal bills submitted by trial counsel, and argues that those bills do not reflect any attempt by counsel to interview any of the eyewitnesses. (Faller Fee Application, Supp.App. at 207-210). Because his counsel failed to conduct any pretrial interviews of the state’s potential witnesses, petitioner argues, “defense counsel could not have possibly made adequate strategic and informed decisions regarding the presentation of the evidence.” (Doc. # 180, at 35).

Petitioner asserts that he suffered prejudice as a result of counsel’s failure to conduct an adequate pre-trial investigation. First, petitioner claims that because counsel did not fully investigate his case, they were ill-equipped to advise him to waive his right to a jury trial. Petitioner argues that counsel advised him to have his case decided by a three-judge panel, rather than a jury, without taking adequate precautions to ensure that a jury waiver would result in a sentence less than death. As a result, petitioner’s “chances for success on appeal were diminished.” (Doc. # 180, at 38). Petitioner’s argument appears to ignore the decision of the Sixth Circuit addressing this issue. In its Opinion and Order of June 23, 2004, the Sixth Circuit rejected this argument, finding that “[ajlthough [Attorney] Piñales might now, over sixteen years later, approach the situation differently, his actions on the record of this case, concerning his advice to Sowell regarding the jury waiver, did not fall below a minimal level of professional competency, and thus did not constitute ineffective assistance of counsel.”

Sowell v. Bradshaw,

372 F.3d 821, 838 (6th Cir. 2004). Accordingly, the Court need not address this issue.

Next, petitioner claims that counsel’s failure to identify Perrin as a potential witness resulted in prejudice because counsel were unaware that she had information that supported the defense theory of the case. Specifically, Perrin, who lived in the apartment building where the shooting occurred, heard “a heated, passionate, and emotional exchange between Mr. So-well and Ms. Billups” immediately prior to the shootings. (Perrin Affidavit, Supp. App. at 263-264). Perrin would have testified that petitioner accused Billups of theft, and Billups verbally attacked petitioner with profanity.

(Id.)

Perrin knew Billups, and knew that Billups had a reputation as a prostitute who would “do a trick, wait until the ‘John’ fell asleep, and then steal from him.” (Doc. # 180, at 41). According to petitioner, it is reasonable to conclude that he would have been convicted of an offense less than capital murder but for the deficient investigation by his trial counsel, because Perrin’s account of the shooting is “strong support that Mr. Sowell’s crime was one of sudden emotion, not studied and careful analysis.”

(Id.).

Petitioner maintains that counsel should have called Perrin as a witness in order “to show that the shootings were prefaced by a heated, passionate, and emotional exchange between Mr. Sowell and Ms. Bill-ups.”

(Id.)

This testimony, petitioner contends, would have provided “additional facts to place a key element of the prosecution’s case—prior calculation and design—in doubt.”

(Id.).

Petitioner presented this argument in his state post-conviction proceedings as part of his twenty-seventh cause of action. In support of this claim, petitioner presented the affidavit of an attorney expert who attested to a defense counsel’s duties to a capitally charged defendant. Addi

*883

tionally, petitioner offered the affidavit of Jerrell Perrin, which stated that she was never contacted by petitioner’s trial counsel or their investigators. The court of appeals rejected petitioner’s claim on the merits, finding that the affidavit of the attorney expert expressed no opinion as to the performance of petitioner’s own counsel, and finding that Perrin’s proposed testimony, in substance, would have been cumulative of the evidence already presented at petitioner’s trial.

State v. Sowell,

73 Ohio App.3d 672, 680 , 598 N.E.2d 136 (1st Dist.1991).

The failure to investigate or call a particular witness can constitute ineffective assistance of counsel in violation of the Sixth Amendment.

See, e.g., Clinkscale v. Carter,

375 F.3d 430, 443 (6th Cir.2004) (collecting cases). But cases in which courts have found ineffective assistance under those circumstances involved not only a complete failure on the part of counsel to investigate the witness, or explain the failure to investigate, but also a showing that the witness or witnesses whom counsel failed to investigate did, in fact, have favorable testimony to offer.

See Stewart v. Wolfenbarger,

468 F.3d 338, 356-57 (6th Cir.2006);

Towns v. Smith,

395 F.3d 251, 258-59 (6th Cir.2005);

Clinkscale,

375 F.3d at 443 .

In the instant matter, the record does not support petitioner’s contention that his counsel conducted a deficient investigation with respect to the culpability stage of his trial. To the contrary, the record reflects that counsel filed for discovery and for a more definite bill of particulars, met with petitioner to discuss his options with respect to the trier of fact, and reviewed the grand jury testimony of at least four witnesses. During a pre-trial hearing, petitioner’s counsel stated on the record that they had met with the prosecutor and reviewed the evidence and photographs. (Tr. Trans, at 43). Counsel filed several pre-trial motions, including a motion to suppress the gun found in petitioner’s apartment. Moreover, as the trial court noted, petitioner failed to present any evidence during his post-conviction proceedings suggesting that his counsel did not have copies of the witness statements to police. Accordingly, the record does not support petitioner’s contention that his counsel were deficient due to a lack of preparation.

See, e.g., Mason v. Mitchell,

320 F.3d 604, 618 (6th Cir.2003) (totality of circumstances did not demonstrate that counsel were unprepared where counsel filed numerous pretrial motions, argued several pretrial hearings, and clearly articulated defense theory to jury).

Furthermore, under

Strickland ,

a court deciding an ineffective assistance claim need not address both components of the inquiry if the petitioner makes an insufficient showing on one.

Sowell v. Bradshaw,

372 F.3d 821, 838 (6th Cir.2004) (citing

Strickland,

466 U.S. at 697 , 104 S.Ct. 2052 ). Even if the Court were to assume that counsel’s failure to interview the individuals on the state’s witness list constituted deficient performance, petitioner cannot establish that trial counsel’s failure to interview the witnesses, and specifically counsel’s failure to call Perrin as a defense witness, affected the outcome of his trial.

The state listed Jerrell Perrin as a potential witness on its witness list, but she was not called to testify at petitioner’s trial. During petitioner’s postconviction proceedings, Perrin signed an affidavit stating that she knew Billups to be a prostitute with a reputation for “dishonesty because she rolled her male customers.” (Perrin Affidavit, Supp.App. at 263-264). Further, Perrin’s affidavit states, in relevant part:

*884

4) Billy would help those individuals who were in a financial bind. As a result it was well known in our neighborhood that he carried money,

8) On the night in question I heard a ruckus in the hall. I looked in the hall and Billy was standing outside Calvin’s apartment. I heard Billy ask for his money back. I also heard Pam Billups in a very loud voice shouting at Billy. She was using extreme profanity.

9) I shut my door hoping that the noise would cease. Twenty (20) to thirty (30) minutes later I thought I heard a car backfire. I opened my door and saw Billy walking back to the apartment.

12) I was not contacted by any of Billy’s trial attorneys or their investigators.

(Id.)

In reviewing the entire trial record, the Court finds that the Perrin affidavit supports, in many respects, the state’s theory of the case, and contradicts petitioner’s account of the events of May 4, 1983. The information concerning Billups reputation as a prostitute who “rolled” her customers is not inconsistent with the trial testimony. Billups admitted during her direct testimony that she had just been released from the Cincinnatti Correctional Institute after having served time for petty theft. (Tr. Trans, at 193). Moreover, the portion of the Perrin affidavit that states that petitioner was arguing with Billups contradicts petitioner’s testimony at trial, and supports the testimony of Billups and Edwards. Petitioner testified that he spoke to Graham about the fact that his money was missing, but that he did not confront Billups or Edwards.

(Id.

at 435). Billups, on the other hand, testified that petitioner “went off,” was angry because she had not spoken to him earlier in the day, accused her of stealing from him, and called her derogatory names.

(Id.

at 168-69). Edwards testified that petitioner and Billups had a “heated conversation” and that petitioner threatened to cut Billups’ throat and to shoot her if she did not return the money to him.

(Id.

at 258-59). Furthermore, Perrin’s statement that she heard what she thought was a car backfiring twenty or thirty minutes after the argument directly contradicts petitioner’s testimony at trial that the time frame between the argument and the shootings was “far less than five minutes.”

(Id.

at 439, 469).

Additionally, the Court must consider the strength of the evidence against petitioner in determining whether the alleged deficient performance prejudiced the outcome of the case. Identity was not an issue in this case, because petitioner admitted to shooting Graham to death, and shooting Billups three times. The only issue to be decided by the panel was whether petitioner committed the acts with prior calculation and design. The defense theory of the case was that petitioner did not, and that he was guilty of a lesser offense than aggravated murder. However, the state presented testimony from two individuals who were present in the apartment that day, both of whom actually witnessed the shootings. Petitioner stated in unmistakable terms his intention to retrieve his gun and shoot and kill Billups. The evidence against petitioner was great, and it is fair to say that the testimony of Perrin, who was not present in the apartment at the time of the shootings, would not have affected the outcome of petitioner’s trial. Accordingly, the Court finds petitioner’s claim to be without merit.

B. Counsel failed to cross-examine Donna Edwards

Petitioner argues that trial counsel performed deficiently because they failed to

*885

cross-examine Donna Edwards, a key-prosecution witness and eyewitness to the shooting. Petitioner maintains that the testimony of Edwards, who was the only individual present in the apartment who was not shot by petitioner, was inconsistent in several respects with the testimony of Pamela Billups, one of the victims of this offense. Petitioner highlights several of these inconsistencies. First, Billups testified that when petitioner entered the apartment, Graham, Billups and Edwards were eating, yet Edwards testified that when petitioner entered the apartment, Graham was at the store. (Doc. # 180, at 40). Next, Billups testified that she was not smoking marijuana, and Edwards testified that Billups and petitioner each had their own marijuana cigarette. (I'd). Third, Billups testified that petitioner did not threaten to cut her throat with a knife, and Edwards testified that petitioner did threaten Billups with a knife.

(Id.).

Fourth, Billups testified that, petitioner found her hiding in the closet prior to shooting Graham, and Edwards testified that petitioner shot Graham and then found Billups in the closet.

(Id.)

Next, Billups testified that she did not admit to taking petitioner’s money prior to the shootings, yet Edwards testified that Bill-ups confessed to stealing petitioner’s money.

(Id.).

Finally, Billups testified that Edwards did not return to the apartment after the shootings, and Edwards testified that she did return to the apartment because when she went to get help, petitioner threatened to shoot her if she did not return to the apartment.

According to petitioner, trial counsel’s failure to cross-examine Edwards concerning the above inconsistencies constituted deficient performance, and he suffered prejudice as a result. Specifically, petitioner argues that the three-judge panel believed the testimony of Billups and Edwards over the testimony of petitioner, as evidenced by the fact that the panel convicted Sowell of aggravated murder as opposed to manslaughter. Had counsel cross-examined Edwards and highlighted the inconsistencies between her testimony and the testimony of Billups, petitioner argues, the three-judge panel may have believed petitioner’s version of the events. Petitioner maintains that cross-examination of Edwards was necessary to cast doubt as to the truthfulness of her testimony and the testimony of Billups.

Petitioner, who was represented on direct appeal by one of his trial counsel, raised this claim of ineffective assistance of counsel in his state postconvietion petition as his twenty-seventh ground for relief The state courts refused to consider the merits of this claim, finding that it should have been raised on direct appeal and was therefore barred by

res judicata.

In this Court’s

Opinion and Order

of March 16, 1999, (doc. # 134), the Court agreed, and determined that petitioner’s claims of ineffective assistance of trial counsel should have been raised on direct appeal, even though one of his trial counsel remained on the case, because he had one new appellate lawyer who had not served as trial counsel. As will be discussed more fully in the section of this

Opinion and Order

addressing petitioner’s fourth argument, that decision was incorrect in light of the Sixth Circuit’s decision in

Combs v. Coyle,

205 F.3d 269, 276-77 (6th Cir.2000). Accordingly, petitioner’s claim of ineffective assistance of trial counsel for failing to cross-examine Donna Edwards is properly before the Court for a consideration on the merits.

In determining whether trial counsel’s performance fell below an objective standard of reasonableness, this Court must judge the reasonableness of counsel’s conduct on the facts of petitioner’s case,

*886

viewed from counsel’s perspective at the time, recognizing that “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”

Strickland,

466 U.S. at 690 , 104 S.Ct. 2052 . Strategic choices of counsel are entitled to deference, and the cross-examination of witnesses falls within the area of tactics or strategy that ought not be subjected to second-guessing merely because that particular strategy proved to be unsuccessful. That is, “[c]ourts generally entrust cross-examination techniques, like other matters of trial strategy, to the professional discretion of counsel,” and tactical decisions are not ineffective assistance of counsel simply because, in retrospect, “better tactics may have been available.”

Jackson v. Bradshaw,

2007 WL 2890388 , *25 (S.D.Oh. Sept.28, 2007) (citing

Dell v. Straub,

194 F.Supp.2d 629, 651 (E.D.Mich.2002)).

Petitioner cites

Higgins v. Renico,

470 F.3d 624, 633 (6th Cir.2006), as support for his claim that counsel were ineffective for failing to cross-examine Edwards.

Higgins ,

however, is readily distinguishable from petitioner’s case. In

Higgins ,

trial counsel failed to cross-examine Wayne Young, a witness whom the Sixth Circuit characterized as “the sole eyewitness to— and possible perpetrator of—the murder” with which Higgins had been charged.

Id.

at 632 . At trial, counsel “candidly admitted that he was not prepared to go forward, and when his request for more preparation time was denied, he blithely forfeited his client’s right to confront Wayne Young and subject his direct testimony to cross-examination.”

Id.

The Sixth Circuit concluded that “[t]he failure of counsel to participate in a critical phase of the trial, and to subject the State’s case to meaningful adversarial testing,

on the sole ground of lack of preparation,

was not a reasonable strategic decision entitled to deference.”

Id.

at 632-63 (citation omitted) (emphasis added). In petitioner’s case, on the other hand, there is no reason to believe that counsel’s decision to forego cross-examining Edwards stemmed from lack of preparation, or was based on anything other than trial strategy. Importantly, unlike the situation in

Higgins ,

Edwards was never a potential suspect in this case, and the identity of the shooter was never in question.

Petitioner’s case more closely resembles the case of

Moss v. Hofbauer,

286 F.3d 851 (6th Cir.2002). In that case, the Sixth Circuit held that the petitioner could not prevail on his claim of ineffective assistance of trial counsel, because “counsel did not ‘entirely fail to subject the prosecution’s case to meaningful adversarial testing.’ ”

Id.

at 865 (quoting

United States v. Cronic,

466 U.S. 648, 659 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984)). Although counsel in

Moss

waived opening statement and elected not to cross-examine a state’s witness, the Sixth Circuit noted that counsel’s preparation included “meeting with Moss before the preliminary examination, attending the preliminary examination, visiting Moss several times in jail, consulting with the attorneys for [co-defendants], visiting the scene of the shooting, and reviewing the records from the police department, which she obtained after drafting a discovery order.”

Id.

at 861 . Additionally, counsel “encouraged Moss to accept the guilty plea offer that the State had presented to him,” and during the trial, counsel “reserved her right to make an opening statement, cross-examined several witnesses, and made a closing argument.”

Id.

After reviewing the record in its entirety, the Court finds that petitioner’s claim of ineffective assistance of trial counsel lacks merit. Although Edwards was a witness to the actual shooting, she had little

*887

to offer regarding petitioner’s interaction with Billups in the days immediately preceding the shooting. Billups, on the other hand, was subject to lengthy cross-examination by counsel, as counsel attempted to establish that the shootings “were prefaced by a heated, passionate, and emotional exchange between Mr. Sowell and Ms. Billups.” (Doc. # 180, at 41). Petitioner’s case was not won or lost by whether counsel could exonerate him as the shooter; rather, counsel’s theory of the case was that petitioner did not act with prior calculation and design, and “[t]he disputed issue centered on what precipitated the shooting.” (Doc. # 186, at 7). To that end, counsel delivered an opening statement setting forth a cohesive defense, cross-examined Billups regarding the alleged theft that was at the center of the dispute, and called petitioner to testify regarding the events in question, his relationship with Billups in the days leading up to the shooting, and his mental state at the time of the offense.

Furthermore, the failure to cross-examine Edwards cannot be said to have affected the outcome of petitioner’s trial. Even if counsel would have highlighted the inconsistencies between Edwards’ testimony and that of Billups, those inconsistencies concerned somewhat collateral matters. What remains consistent with respect to the testimony of the two women is that petitioner threatened to shoot Billups, left the apartment to retrieve a gun from his own apartment down the hall, enlisted the assistance of Lenora Waugh to regain entry into the apartment, entered the apartment with force, shot Graham twice—including a fatal close range shot to his head, then went to where Billups was hiding in a closet and fired three shots into her body at close range, stopping only when he ran out of ammunition. With respect to these essential facts, the testimony of Edwards and Billups was consistent, and petitioner cannot meet the prejudice prong of

Strickland .

C. Counsel failed to object to inadmissible evidence

Finally, petitioner argues that trial counsel’s performance was deficient during the guilt phase because counsel failed to object to inadmissible evidence. Petitioner claims that counsel failed to object to questions by the prosecutor during his cross-examination of petitioner concerning whether petitioner conceived children out of wedlock, had a “false” ceiling in his apartment, and whether petitioner had pri- or contacts with the Cincinnati Police Department. (Doc. # 180, at 37). Petitioner contends that he suffered prejudiced as a result of this line of questioning because neither the questions nor the answers were relevant to the charges contained in the indictment. According to petitioner, counsel’s failure to object to this testimony permitted the prosecutor to portray petitioner as “immoral and violent.”

(Id.).

Respondent contends that petitioner has never presented this claim to the state courts, and therefore, the claim is procedurally defaulted and not preserved for habeas review. This Court agrees. Because petitioner was represented on direct appeal by one of his trial counsel, petitioner’s ineffective assistance of trial counsel claims were properly raised in post-conviction. In his twenty-seventh ground for relief in his state post-conviction petition, petitioner set forth several allegations of ineffective assistance of trial counsel. (J.A. Yol. II, Ex. L to Return of Writ). As indicated by respondent, however, petitioner did not raise the instant ineffective assistance of trial counsel sub-claim in his petition for post-conviction relief. With respect to counsel’s failure to object during the state’s cross-examination of petitioner, petitioner argued that his counsel should

*888

have objected to the, prosecutor’s attempt to use petitioner’s silence against him.

{Id.

at ¶ 164). Petitioner did not allege that counsel should have objected to the prosecutor’s questions regarding petitioner’s children, the alleged false ceiling, or his prior contacts with law enforcement. Petitioner has never presented those claims to the state courts.

When a habeas petitioner fails to obtain consideration of a claim by a state court, either due to the petitioner’s failure to raise that claim before the state courts while state court remedies were still available or due to a state procedural rule that prevented the state courts from reaching the merits of the claim, that claim is procedurally defaulted.

See Seymour v. Walker,

224 F.3d 542, 549-50 (6th Cir.2000). A federal court will review a defaulted claim only if a petitioner “show[s] that there was cause for the default and prejudice resulting from the default, or that a miscarriage of justice will result from enforcing the procedural default.”

Id.

at 550 . Petitioner has not attempted to make such a showing here. Petitioner, having offered no explanation as to why the claim was not raised in the state courts when it could and should have been, has procedurally defaulted this sub-claim and it is not amenable to habeas corpus review.

Even if this sub-claim was not defaulted, it is without merit. Petitioner simply cannot establish that he suffered prejudice as a result of trial counsel’s failure to object to questioning by the prosecutor concerning whether he conceived children out of wedlock, whether he had a false ceiling in his apartment, or whether he had prior contacts with the Cincinnati Police Department. “In bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions.”

Harris v. Rivera,

454 U.S. 339, 346 , 102 S.Ct. 460 , 70 L.Ed.2d 530 (1981) (per curiam);