Opinion

Loza v. Mitchell

705 F. Supp. 2d 773
2010 U.S. Dist. LEXIS 38008
2010 WL 1253622

Court: District Court, S.D. Ohio
Filed: Mar 31, 2010
Status: Published
Author: Sargus
On the bench: Sargus
Cited by: 11 cases
Authority: More cited than 52.8%

holding that defendant received a full and fair opportunity to litigate his Fourth Amendment claim where the trial court heard and denied his motion to suppress and the defendant subsequently raised the same Fourth Amendment claim on direct appeal

How later courts described this case

holding that defendant received a full and fair opportunity to litigate his Fourth Amendment claim where the trial court heard and denied his motion to suppress and the defendant subsequently raised the same Fourth Amendment claim on direct appeal
holding actions were justified by legitimate penological interest because there was reason to believe outgoing letters were addressed to material witness
exclusion of expert’s testimony regarding the credibility and reliability of defendant’s confession did not violate petitioner’s Fifth, Sixth, Eighth, or Fourteenth Amendment rights, where the jury had the opportunity to view a videorecording of the entire interview

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 filed a habeas corpus action pursuant to 28 U.S.C. § 2254 . Petitioner filed his original habeas corpus petition (Doc. # 6), to which Respondent responded with a Return of Writ (Doc. # 11). Thereafter, this Court issued a

Opinion and Order

dismissing the following claims as procedurally defaulted: seven, nineteen, twenty (paragraph 252), twenty-six, and thirty-three.

The Court permitted some factual development in this case. By prior order, this Court issued a decision granting Petitioner leave to conduct discovery on the following claims for relief: five and seventeen (as to the selective prosecution component). Petitioner proceeded to conduct numerous depositions and to collect certain documents. Thereafter, the Magistrate Judge issued an

Opinion and Order

expanding the record before this Comb to include certain deposition transcripts. (Doc. # 57.) Still to be resolved by the Court are Petitioner’s request for an evidentiary hearing (Doc. # 68-1), Respondent’s response (Doc. # 72), and Petitioner’s reply (Doc. # 73.) In addition, An amicus brief was filed on Petitioner’s behalf by counsel for the United Mexican States. (Doc. #71.)

This case is now ripe for a final decision on the merits of those claims that are properly before the Court: grounds one, two, three, four, five, six, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, twenty (except paragraph 252), twenty-one, twenty-two, twenty-three, twenty-four, twenty-five, twenty-seven, twenty-eight, twenty-nine, thirty, thirty-one, thirty-two, and thirty-four.

I. Factual and Procedural History

The facts and procedural history of this case were set forth by the Ohio Supreme Court in

State v. Loza,

71 Ohio St.3d 61 , 641 N.E.2d 1082 (1994):

On January 16, 1991, defendant-appellant, Jose Trinidad Loza, shot four members of the family of his girlfriend, Dorothy Jackson. The victims were shot in the head at close range while they slept in their home in Middletown, Ohio. Loza shot Jackson’s mother, Georgia Davis; her brother, Gary Mullins; and her two sisters, Cheryl (Mullins) Senteno and Jerri Luanna Jackson. Mullins die d almost immediately from his wound; Davis and Senteno survived several hours before dying. Jerri Jackson, six months pregnant at the time of the shooting, die d on January 31, 1991.

On the afternoon of January 16, 1991, Gary Hoertt observed an individual in a white Mazda pick-up truck with California plates loading trash into his dumpster at his shop in Middletown. Having had previous problems with the unauthorized use of his dumpster, Hoertt searched the dumpster for something with which to identify the individual. Hoertt found a letter in the dumpster signed by Loza with a return address in Butler County. Hoertt read the letter, the contents of which indicated that Loza was involved in a drive-by shooting in Los Angeles and that he came to Ohio to avoid apprehension by the Los Angeles police.

After reading the letter, Hoertt called the Warren County Sheriffs Department to report his discovery. Hoertt was informed that it would take some time before a deputy could respond. During that time, Hoertt was informed by an

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employee that the individual, later identified as Loza, and a female companion were seen in the vicinity of the nearby Greyhound bus station. Hoertt then called Middletown police detective Roger Enable.

After Enable arrived at Hoertt’s shop and read the letter, Enable and Hoertt went to the dumpster, where they retrieved other items that Loza had discarded, which included: a knife; an empty box for a .25 caliber Raven automatic handgun; a receipt signed by a Judy A. Smith for the purchase of the handgun on January 15, 1991; a woman’s purse; a blank check on the account of Georgia L. Davis; a general money order made payable to Jose Loza; clothing; and some other personal items.

As Hoertt and Enable were going through the items in Hoertt’s office, Hoertt saw Loza approach the dumpster. Enable went to his cruiser and requested his dispatcher to notify Warren County deputies that the individual had returned and that he was going to speak to him. Enable identified himself as a police officer, approached Loza with his gun in his hand, and instructed Loza to place his hands on the front of the car. Enable searched Loza and asked his name. At this time, Loza identified himself as “Jose Rodriguez.” Enable told Loza the reason he was being stopped was because of what he put in the dumpster. Loza responded “yes.” Enable said the letter indicated that Loza may have been involved in a drive-by shooting in Los Angeles. Loza again responded “yes.” Enable then informed Loza that he was going to handcuff him and hold him until Warren County deputies arrived. Enable then went to locate the woman who had been seen with Loza earlier. Loza said that the woman’s name was Cynthia Rodriguez, that she was his wife, and that they were headed to California.

Enable then went inside the bus station and approached Dorothy Jackson. He asked her name and she responded “Dorothy Jackson.” When asked, Jackson stated that Loza’s name was “Jose Rodriguez,” and that they were not married. Within a short time after Enable’s initial contact with Loza, Warren County deputies arrived. The deputies determined Jackson was under age and that she planned to travel to California with Loza. When asked, Jackson gave her mother’s telephone number to the deputies. Enable was unsuccessful in reaching Davis, Jackson’s mother, by phone. Detectives Enable and George Jeffery then went to Davis’s home at 1408 Fairmont, but did not receive any response when they knocked at the door. A neighbor approached the detectives and said that she had been trying unsuccessfully all day to get someone from the house to respond.

Because the police were unable to determine if Jackson had permission to travel out of state, she was arrested for being an unruly minor and was taken to the Warren County Juvenile Detention Center. Loza was arrested for contributing to the delinquency or unruliness of a minor and was taken to the Warren County Justice Center.

When the detectives began questioning Jackson at the juvenile detention center, she did not initially tell them of the murders. Shortly into the questioning, she began crying. She said she did not want to go to jail, and that Loza had killed her family. Jackson told the detectives what she knew about the murders.

Based upon Jackson’s statement, Detective Enable obtained a search warrant for the house at 1408 Fairmont. When the police entered the house, they discovered the victims.

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Enable and Jeffery then returned to the Warren County Justice Center and began questioning Loza. The detectives’ interview with Loza was videotaped. At the beginning of the interview, Loza waived his

Miranda

rights. Initially, Loza said that he and Jackson were traveling to California with her mother’s permission. The detectives told Loza they knew what had happened, and that it would be in his, Jackson’s and the unborn baby’s best interest if he just told the truth. About one hour into the interview, Loza confessed to the murders. Loza detailed the murders, including the order in which he shot the victims. Loza stated that Jackson was not in the house at the time of the murders, and that she did not know that he was going to kill her family members.

The detectives asked Loza when he began thinking about murdering Jackson’s family members. Loza responded that he had been thinking about it since he had obtained the gun and particularly after Davis had threatened to have him arrested if he tried to leave the state with Jackson. Loza explained that he shot Davis because of her threats. When asked why he shot the others, he responded: “Knowing I had to do one, I had to do all. * * * Because if I only done one, they would have — they would have known it was me. If I would have done all of them, nobody would have found out.”

Loza was indicted on four counts of aggravated murder, with three death penalty specifications and a gun specification added to each murder charge. Death specification number one alleged murder to escape detection and arrest, R.C. 2929.04(A)(3); death specification number two alleged “course of conduct” murders, R.C. 2929.04(A)(5); and death penalty specification number three alleged murder during an aggravated robbery, R.C. 2929.04(A)(7). Appellant pleaded not guilty to all the charges.

Appellant waived his right to a jury trial and proceeded to trial before a three-judge panel. During cross-examination of the state’s final witness, the defense moved for a mistrial on the basis that the stated had failed to disclose certain exculpatory evidence during discovery. Over the state’s objection, the court granted a mistrial without prejudice. The trial court denied appellant’s subsequent motion to bar his retrial on double jeopardy grounds.

After the court denied appellant’s pretrial motion to suppress all statements and evidence seized in this matter, a trial by jury commenced on October 21, 1991.

Prior to submitting the case to the jury, the court dismissed the aggravated-robbery specification with respect to the aggravated murder of Jerri Jackson. The jury found appellant guilty on all four counts of aggravated murder. The jury also found appellant guilty of all remaining specifications except for the R.C. 2929.04(A)(3) specification with respect to the aggravated murders of Senteno and Jerri Jackson.

At the conclusion of the penalty phase, the court merged the R.C. 2929.04(A)(3) and 2929.04(A)(5) specifications with respect to the aggravated murders of Davis and Mullins. The jury recommended the death sentence for the aggravated murders of Mullins, Senteno, and Jerri Jackson and thirty years to life imprisonment for the aggravated murder of Davis. The court accepted the recommendation and sentenced appellant to death for the aggravated murders of Senteno, Mullins, and Jerri Jackson. The court also sentenced appellant to thirty years to life imprisonment for the aggravated murder of Davis and im

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posed a three-year term of actual incarceration for the firearm specification. The court ordered the life and three-year firearm sentences to be served consecutively to appellant’s death sentences.

{Loza,

71 Ohio St.3d at 61-64 , 641 N.E.2d 1082 ; App. Vol. Ill, at 1232-34.)

Represented by two new attorneys from the Ohio Public Defender’s Office, as he would be throughout the remainder of his state court proceedings, Petitioner appealed first to the Court of Appeals for the Twelfth Appellate District. Counsel for Petitioner raised twenty-nine assignments of error. On April 19, 1993, the appellate court issued an opinion affirming Petitioner’s convictions and sentences, and further finding that the aggravating circumstances outweighed the mitigating factors and that Petitioner’s death sentences were not disproportionate. (Sta

te v. Loza,

Case No. CA91-11-198 (Ohio App. 12 Dist.); App. Vol. I, at 556.)

Represented again by the Ohio Public Defender’s Office, Petitioner pursued his second appeal of right to the Ohio Supreme Court. Counsel for Petitioner raised thirty-three propositions of law. On November 30, 1994, the Ohio Supreme Court affirmed Petitioner’s convictions and sentences, and further concluded that the death sentences were appropriate and proportionate. (St

ate v. Loza,

71 Ohio St.3d 61 , 641 N.E.2d 1082 (1994); App. Vol. III, at 1223.) On December 28, 1994, the Ohio Supreme Court summarily denied Petitioner’s motion for reconsideration. (App. Vol. Ill, at 1263.)

On November 27,1995, Petitioner filed a postconviction action to vacate or set aside the judgment or sentence pursuant to R.C. § 2953.21 He raised thirteen claims for relief. On September 24, 1996, the trial court issued findings of fact and conclusions of law denying Petitioner’s postconviction action. (App. Vol. Ill, at 1604.) Petitioner appealed to the Court of Appeals for the Twelfth Appellate District. On October 13, 1997, the appellate court issued an opinion affirming the trial court’s judgment denying Petitioner’s postconviction action.

(State v. Loza,

Case No. CA96-10-214, 1997 WL 634348 (Ohio App. 12 Dist. Oct. 13, 1997); App. Vol. IV, at 1990-2012.) Petitioner sought discretionary review by the Supreme Court of Ohio and filed his memorandum in support of jurisdiction on November 26, 1997. On January 28, 1998, the Ohio Supreme Court issued an entry summarily declining to accept jurisdiction over Petitioner’s appeal.

(State v. Loza,

Case No. 97-2470, 81 Ohio St.3d 1429 , 689 N.E.2d 49 (Jan. 28, 1998); App. Vol. IV, Exh. KK, at 2199.)

II. Standards for Habeas Review

The provisions of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which became effective prior to the filing of the instant petition, apply to this case.

See Lindh v. Murphy,

521 U.S. 320, 336 , 117 S.Ct. 2059 , 138 L.Ed.2d 481 (1997). Under the AEDPA, a federal court shall not issue a writ of habeas corpus on a claim that the state courts adjudicated on the merits unless the state court adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254 (d)(1), or was based on “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” 28 U.S.C. § 2254 (d)(2). Section 2254(d)(1) circumscribes a federal court’s review of claimed legal errors, while § 2254(d)(2) places restrictions on a federal court’s review of claimed factual errors.

Under § 2254(d)(1), a state court decision is “contrary to” Supreme Court precedent “when the state court confronts facts that are materially indistinguishable

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from a decision of the Supreme Court and nevertheless arrives at a result different from its precedent[ ]” or “when the state court ‘applies a rule that contradicts the governing law set forth in’ Supreme Court cases.”

Williams v. Coyle,

260 F.3d 684, 699 (6th Cir.2001) (quoting

Williams v. Taylor,

529 U.S. 362, 406-07 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000)). A state court decision involves an unreasonable application of Supreme Court precedent if the state court identifies the correct legal principle from the decisions of the Supreme Court but unreasonably applies that principle to the facts of the Petitioner’s case.

Coyle,

260 F.3d at 699 . A federal habeas court may not find a state adjudication to be “unreasonable” simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly.

Id.

Rather, a state court’s application of federal law is unreasonable “only if reasonable jurists would find it so arbitrary, unsupported or offensive to existing precedent as to fall outside the realm of plausible credible outcomes.”

Barker v. Yukins,

199 F.3d 867, 872 (6th Cir.1999).

Further, § 2254(d)(2) prohibits a federal court from granting an application for habeas relief on a claim that the state courts adjudicated on the merits unless the state court adjudication of the claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254 (d)(2). In this regard, § 2254(e)(1) provides that the findings of fact of a state court are presumed to be correct and that a petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence.

III. Petitioner’s Claims

This case is ripe for review of the merits of all but the following claims for relief: seven, nineteen, twenty (paragraph 252), twenty-six, and thirty-three.

First Ground for Relief:

The trial court erroneously deprived Petitioner of his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution when it prohibited the introduction to the jury of defense evidence regarding the reliability and credibility of Loza’s confession.

In the First Ground for Relief, Petitioner alleges that the trial court violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights by preventing him from introducing expert testimony regarding the credibility and reliability of his confession. (Petition, Doc. # 6, at ¶¶ 1-9; Memorandum in Support, Doc. # 62, at 4-11; Reply, Doc. # 70, at 1-9.)

On January 17, 1991, Petitioner was interviewed by Detective Knabel and Sergeant Jeffrey of the Middletown Police Department. The interview began at 12:21 a.m. and concluded one hour and ten minutes later. As soon as the interview began, the officers read to Petitioner his

Miranda

rights, which Petitioner indicated both orally and in writing that he understood.

The undersigned initially notes that he has watched the videotape of the statements and has reviewed the written transcript of the questioning. The Court notes that the questioning began in a low key, somewhat casual, albeit professional, manner. The interrogation room was small, but not particularly restrictive. In general, the questioning began by covering preliminary matters. After approximately thirteen minutes, the officer began asking pointed questions. At no time did either officer raise his voice or otherwise appear menacing.

The officers did tell Petitioner that “Luanna is alive,” which was true. (App.

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Vol. VII, at 3654.) Although she never regained consciousness and die d two weeks later, the officers told Petitioner that Luanna had given them a statement inculpating him. (App. Vol. VII, at 3658.)

Thirty-seven minutes into the questioning, the following exchange took place between Petitioner and Knabel:

Q. Do you know what Luanna was-Do you know what Luanna was wearing this morning?

A. No. 1 didn’t see her—

Q, How about a black t-shirt that come down just below her butt, a pair of white pan ties.

A. I’ve never seen her. After I went to work, she was outside. Last time I seen her it was on the street which was walking with Dorothy.

Q. Jose, we’ve talked to her.

A. Well, what can I say?

Q. You can say the truth.

A. Well, that’s what I am trying to tell you.

Q. No. That’s not the case. What you’re trying to do is put yourself in an electric chair or a gas chamber right along with Dorothy, and this child is going to go off into never, never land and never be seen again.

(App. Vol. VII, at 3648.)

In addition, Petitioner stated in multiple answers that his only fear was what was going to happen to Dorothy and their unborn child. (App. Vol. VII, at 3670, 3701, 3711, 3713, 3968.) Knabel also told Petitioner:

Q. Dorothy stands to do the same thing you do, man. Dorothy stands not only to lose her child, she’s 16 years old. She could lose the next 60 years.

(App. Vol. VII, at 3667.)

The officers also discussed with Petitioner what they could do for him if he cooperated. They told him that they did not “have the authority to make that deal.” (App. Vol. VII, at 3666.) When Petitioner asked Knabel how long Petitioner could spend in prison, Knabel told him, “I don’t know. That’s the judge’s decision, Jose.” (App. Vol. VII, at 3666.) Jeffrey also told Petitioner:

Q. Jose, we can’t make you any promises, okay. You know that. We can’t make any promises.

A. I’m not asking for none.

Q. I didn’t say you asked us for any. Okay. But we can’t make you any promises. But there’s one thing we can do. We can explain to the court what happened and why it happened. Okay. And surely you have some-some remorse over all of this. Okay. Surely it bothers you in here a little bit, I would think, because I think you got a heart,

(App. Vol. VII, at 3658-59.)

Approximately one hour and three minutes into the interview, Petitioner confessed to the killings. At the time he began the confession, Petitioner appeared to be calm.

In the first phase of the trial, Petitioner’s counsel sought to introduce the testimony of Dr. Roger Fisher, a clinical psychologist. The following exchange occurred outside of the presence of the jury:

THE COURT: We will allow counsel to state what he would expect the doctor to testify to if permitted to do so.

MR. SHANKS: We would expect that he would have testified if permitted to do so that he was a qualified psychologist, that he reviewed the taped confession, taped statement, of Jose Loza which was introduced into evidence by the State of Ohio in this case and that he reviewed other personal records of the Defendant in regard to his school records, juvenile records, employment records and summaries of interviews from

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Mr. Casey Cone in the State of California.

I believe he also testified that he reviewed the psychological history of Mr. Jose Loza present in the file from the Center for Forensic Psychology of Butler County Court System and that based upon his training, skill and experience and the documents reviewed and his review of the videotaped statement of Mr. Loza, that the videotaped statement specifically in reference to Mr. Loza’s acknowledgment of his participation in the offense and his desire to take full responsibility would have been product of psychological coercion and duress brought upon by the statements of the police officer that his girlfriend would be placed in the electric chair and his child would be sent to never-never land and that the letters and repeated affirmations of that statement would have been consistent with Mr. Loza’s coerced desire to protect his girlfriend and unborn child.

THE COURT: The Court, of course, has already ruled on motions to suppress in this case and found the confession has already been admitted as being a voluntary, knowing confession on the part of the Defendant.

The expert’s opinion as to duress at this time is not appropriate at this time. The Court has already been advised, as counsel has already been advised, the Court will exclude that testimony in this phase of the case.

(App. Vol. VI, at 3176-78.)

Petitioner contends that he was deprived of his right to present testimony as to the “physical and psychological environment that yielded the confession.”

Crane v. Kentucky,

476 U.S. 683, 689 , 106 S.Ct. 2142 , 90 L.Ed.2d 636 (1986.) Petitioner asserts that Dr. Fisher should have been allowed to explain to the jury Petitioner’s psychological make-up and unique characteristics which rendered his confession unreliable.

The Ohio Supreme Court made the following determination in rejecting Petitioner’s claim on direct appeal:

In his first proposition of law, appellant asserts that psychological testimony concerning the voluntariness of his confession should have been admitted during the guilt phase of his trial.

The trial court did not permit the jury to hear testimony of Dr. Roger Fisher, a clinical psychologist, who would have testified that appellant’s confession resulted from police coercion and duress caused by statements made by the police officers during the interrogation. Dr. Fisher would have testified that, in his opinion, appellant confessed because his background, psychological makeup, and his personal code of conduct required that he not “snitch” and that he “protect Dorothy.” Dr. Fisher would have testified that because Loza had a difficult childhood he was compelled to confess to protect his girlfriend and unborn child. The trial court concluded that since it had made a pretrial determination that Loza’s confession was voluntary, Dr. Fisher’s testimony was not appropriate during the guilt phase.

Appellant argues that

Crane v. Kentucky

(1986), 476 U.S. 683 , 106 S.Ct. 2142 , 90 L.Ed.2d 636 , requires the admission of Dr. Fisher’s testimony. In

Crane ,

a sixteen-year-old defendant sought to introduce testimony regarding the psychological impact of the length of his interrogation and the manner in which it was conducted. FN1 The United States Supreme Court held that the exclusion of the testimony about the circumstances of the defendant’s confession deprived him of his fundamental constitutional right to a fair opportunity to present a defense. The court recognized that while the issue of whether a

*790

confession is voluntary is a question of law for the court, the jury was entitled to hear the excluded testimony in order to make a factual determination of whether the manner in which the confession was obtained east doubts on its credibility.

Id.

at 689 , 106 S.Ct. at 2146 , 90 L.Edüd at 644.

FN1. The defendant in Crane testified that he had been detained in a windowless room for a protracted period of time, that he had been surrounded by as many as six police officers during the interrogation, that he had repeatedly requested and been denied permission to telephone his mother, and that he had been badgered into making a confession.

The testimony of Dr. Fisher is clearly outside the holding of

Crane .

The testimony of the witnesses in

Crane

related to how the physical and psychological environment of the interrogation could have impacted the voluntariness and credibility of the confession. Dr. Fisher’s proffered testimony relates to how Loza’s individual, psychological makeup, independent of the circumstances surrounding the interrogation, could have impacted the voluntariness and credibility of the confession. Consequently,

Crane

does not require the admission of Dr. Fisher’s testimony.

The jury was able to accurately consider the credibility and weight of the confession by watching it on videotape. They could see and hear the tone and manner of the interrogation, the number of officers present, the physical characteristics of the room, and the length of the interrogation. The jury had the opportunity to evaluate the credibility of the appellant and to give the confession its appropriate probative weight. See

State v. Jamison

(1990), 49 Ohio St.3d 182, 191 , 552 N.Eüd 180, 189 (the weight to be given evidence and the credibility of witnesses are jury issues).

Because the trial court already had ruled on the voluntariness of the confession and the jury had the opportunity to evaluate the credibility of the confession, the trial court did not abuse its discretion by excluding the testimony of Dr. Fisher during the guilt phase of the trial.

This proposition of law is overruled.

{Loza,

71 Ohio St.3d at 65-66 , 641 N.Eüd 1082; App. Yol. Ill, at 1234-35.)

This Court must determine whether the decision of the Ohio Supreme Court contravened or unreasonably applied clearly established Supreme Court precedent or involved an unreasonable determination of the facts based on the evidence presented. Petitioner relies primarily upon

Crane v. Kentucky, supra

to support his contention that the Constitution required that he be permitted to offer evidence regarding the circumstances surrounding his confession. Petitioner argues that 28 U.S.C. § 2254 (d)(1) does not preclude habeas corpus relief because the Ohio Supreme Court’s decision was contrary to the language of

Crane

and an unreasonable application of the principles underlying

Crane .

Crane ,

the trial judge made a preliminary, evidentiary ruling that the confession was admissible.

Crane,

476 U.S. at 685 , 106 S.Ct. 2142 . During the trial, the trial court excluded any testimony regarding the methods used to obtain the confession.

Crane,

476 U.S. at 686 , 106 S.Ct. 2142 . These circumstances included the fact that Crane, then age 16, was questioned by six police officers over an extended period of time.

Crane,

476 U.S. at 685 , 106 S.Ct. 2142 . Crane repeatedly asked to see his mother, and was denied his request. None of those facts were presented to the jury.

Crane

did not offer expert testimony and the Supreme Court did not address the admissibility of such offered evidence.

In contrast, the jury in this case watched the entire encounter between Pe

*791

titioner and the interrogating officers. All of the circumstances surrounding Petitioner’s confession, including the

Miranda

warning, were observed by the jury. To this extent,

Crane

is inapposite.

What Petitioner essentially challenges is the trial court’s exclusion of Dr. Fisher’s opinions that the confession was “the product of psychological coercion and duress.” (App. Vol. VI, 3177.) The Ohio Supreme Court found that the jury had the ability to obsexxve the entirety of circumstances leading to the confession. The question of whether an expert in psychology may opine on the voluntariness of a confession is a matter of state law and not subject to review in this habeas corpus proceeding, unless a state evidentiary rule, by itself or in concert with other state rules, “undermine[s] fundamental elements of the defendant’s defense.”

United States v. Scheffer,

523 U.S. 303, 315 , 118 S.Ct. 1261 , 140 L.Ed.2d 413 (1998).

Although not mentioned in its decision in this case, the Ohio Supreme Court has held that expert witnesses may not, under the Ohio Rules of Evidence, offer opinions as to the truthfulness of a witness’s statement.

State v. Boston,

46 Ohio St.3d 108 , 545 N.E.2d 1220 (1989). The Ohio Supreme Court held that the veracity of an alleged victim of child abuse was “the key issue in the case” and that expert testimony on the issue “infringed upon the role of the fact finder, who is charged with making determinations of veracity and credibility.”

Boston,

46 Ohio St.3d at 129, 130 , 545 N.E.2d 1220 (citing

State of Ohio v. Eastham,

39 Ohio St.3d 307, 312 , 530 N.E.2d 409 (1988)). Further, as the United States Supreme Court explained in

Montana v. Egelhoff:

In the absence of any valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecutor’s case encounter and survive the crucible of meaningful adversarial testing. Our holding that the exclusion of certain evidence in that case violated the defendant’s constitutional rights rested not on a theory that all “competent, reliable evidence” must be admitted, but rather on the ground that the Supreme Court of Kentucky’s sole rationale for the exclusion (that the evidence “did not relate to the credibility of the confession”) was wrong.

Crane

does nothing to undermine the principle that the introduction of relevant evidence can be limited by the State for a “valid” reason, as it has been by Montana.

Montana v. Egelhoff,

518 U.S. 37, 53 , 116 S.Ct. 2013 , 135 L.Ed.2d 361 (1996) (quoting

Crane,

476 U.S., at 687, 690-691 , 106 S.Ct. 2142 ;

Crane v. Commonwealth,

690 S.W.2d 753, 755 (1985)) (quotation marks omitted).

This Court cannot say that state law-authorized limitations placed upon experts opining on truthfulness “undermines fundamental elements of the ... defense.”

Scheffer,

523 U.S. at 315 , 118 S.Ct. 1261 . This is paxticularly so when the jury has the opportunity to view a videorecording of the entire interview which culminated in the confession. This Court concludes that the Ohio Supreme Court’s decision rejecting Petitioner’s claim did not violate the rule established in

Crane v. Kentucky.

Petitioner’s constitutional rights were not violated by the exclusion of the testimony of Dr. Fisher. Accordingly, Petitioner’s first ground for relief is DENIED.

Second Ground for Relief:

The admission of a coerced and involuntary statement at his capital trial denied Petitioner of his rights as guaranteed by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

A. Loza’s Statement [Was] The Result of Coercion

1. Coercive Police Tactics

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2. Improper Inducements

3. Trickery

4. The Personal Characteristics of the Suspect

5. Conclusion

B. The trial court erred by denying Petitioner’s motion to suppress using an erroneous legal standard in deprivation of Petitioner’s rights as guaranteed by the Fourth, Eighth and Fourteenth Amendments to the United States Constitution.

C. The trial court failed to explain the suppression denial.

Petitioner contends that his confession was coerced and involuntary in violation of his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. Petitioner asserts that he confessed only after police threatened his pregnant girlfriend. Petitioner also notes that he had not slept in twenty-four hours and was only eighteen years old. Petitioner further contends that the interrogating officers lied to and made certain promises to Petitioner in order to obtain his confession. (Petition, Doc. # 6, at ¶¶ 10-49; Doc. # 62, at 11-18; Doc. # 70, at 9-13.)

The Ohio Supreme Court rejected Petitioner’s claim as follows:

Appellant contends in his second and fifth propositions of law that his confession was involuntary because of psychological coercion, trickery, and deception by the police.

Appellant’s pretrial motion to suppress was based upon what he contended was an illegal arrest at the Greyhound station. Although he did not raise the issue of voluntariness in the motion to suppress, we will address the issue here.

A confession is involuntary and violative of the United States and Ohio Constitutions if it is the product of “coercive police activity.”

Colorado v. Connelly

(1986), 479 U.S. 157, 167 , 107 S.Ct. 515, 522 , 93 L.Ed.2d 473, 484 . “In deciding whether a defendant’s confession is involuntarily induced, the court should consider the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement.”

State v. Edwards

(1976), 49 Ohio St.2d 31 , 3 O.O.3d 18 , 358 N.E.2d 1051 , paragraph two of the syllabus, vacated in part on other grounds (1978) 438 U.S. 911 , 98 S.Ct. 3147 , 57 L.Ed.2d 1155 .

Appellant contends that his confession was involuntary because detectives Enable and Jeffery were psychologically abusive during the interrogation. Appellant asserts that the detectives were aware of his deep feelings for Jackson and his unborn child and they played upon those feelings in order to coerce appellant into confessing. Additionally, appellant asserts the detectives offered a plethora of promises, including lenient treatment from the court, a visit with Jackson, and a promise to release Jackson if he could just “tell * * * the truth.”

Admonitions to tell the truth are considered to be neither threats nor promises and are permissible.

State v. Cooey

(1989), 46 Ohio St.3d 20, 28 , 544 N.E.2d 895, 908 ;

State v. Wiles

(1991), 59 Ohio St.3d 71, 81 , 571 N.E.2d 97, 112 . The detectives did no more than urge the appellant to tell the truth.

The detectives’ references to Jackson were made in response to appellant’s repeated inquiries about what would happen to her. No threats were made concerning Jackson or what would happen if appellant did not confess. The

*793

detectives merely informed appellant of the possible consequences of his actions. By the time the detectives were questioning appellant, Jackson had already told the police about appellant’s involvement in the murders. Appellant sought the release of Jackson and he initiated the bargaining for her release. Under these circumstances, the statements made to the detectives were voluntary beyond doubt. See

State v. Melchior

(1978), 56 Ohio St.2d 15, 25-26 , 10 O.O.3d 8, 14-15 , 381 N.E.2d 195, 201-202 .

The detectives made no promises regarding the treatment appellant would receive from the court. They did say that they would be willing to testify that appellant was cooperative. Promises that a defendant’s cooperation would be considered in the disposition of the case, or that a confession would be helpful, does not invalidate an otherwise legal confession.

Edwards, supra,

49 Ohio St.2d at 40-41 , 3 O.O.3d at 23-24 , 358 N.E.2d at 1058-1059 .

The detectives made no promises regarding a visit with Jackson; the detectives did say that they would try to make arrangements for appellant and Jackson to visit “after all of this [was] done.” Contrary to the interpretation proffered by the defense, taken in the proper context of the entire confession the detectives’ statements could not be viewed as a coercive tactic used by the police to elicit the confession.

Appellant also contends that the police used trickery to induce his confession. Enable told appellant that Jerri [Luanna] Jackson was alive. He also stated that she had identified her assailant, which was not the case. However, all the other circumstances surrounding the confession indicate that it was made voluntarily, and the confession is admissible even though the police misled appellant by suggesting that they received certain information from the victim of the crime. See

Wiles, supra,

59 Ohio St.3d at 81 , 571 N.E.2d at 112 .

Applying the test of voluntariness set forth in

State v. Edwards, supra,

and in carefully reviewing the totality of the circumstances in this case, we concur in the trial court’s finding that the appellant’s statements were voluntarily made and that the appellant’s will to resist was not overborne by threats or improper inducements. Appellant was of majority age and was in command of his faculties at the time he confessed. He was not interrogated for an unreasonable length of time, and was not subjected to physical abuse or harsh conditions. We note that before the interrogation began, appellant waived his

Miranda

rights. Upon completion of the interrogation, when the detectives asked if he felt threatened by them or if they had made any promises to him, appellant responded that “no,” they had not threatened him, and agreed they had not made any promises to him. Through these affirmations, appellant has confirmed that his confession was voluntarily made.

Thus, we reject appellant’s propositions of law two and five.

(Loza,

71 Ohio St.3d at 66-68 , 641 N.E.2d 1082 ; App. Vol. Ill, at 1235-36.)

Petitioner is entitled to habeas corpus relief only if this Court determines that the Ohio Supreme Court’s decision was contrary to or involved an unreasonable application of clearly established federal law or involved an unreasonable determination of the facts. This Court is not persuaded that is the case.

The Court first addresses the circumstances of the confession. As noted above, the entire interview was tape recorded. The videotape does not demonstrate that Petitioner was reacting to a loss of sleep or

*794

that, at age eighteen, he was vulnerable or unsophisticated.

Petitioner claims that he confessed only after officers threatened his pregnant girlfriend, Dorothy Jackson, and their unborn child. On the videotape, Petitioner expressed concern for the welfare of Jackson and the unborn child. As Petitioner became evasive, Detective Knabel told him:

No. That’s not the case. What you’re trying to do is put yourself in an electric chair or gas chamber right along with Dorothy, and this child is going to go off into never, never land and never be seen again.

(App. Yol VII, at 3648.) Although only Knabel knew the true intent of this statement, the literal words suggested that Jackson could be a codefendant with Petitioner and both could face capital charges. As to the child “going to go off into never, never land and never be seen again,” this implicates that the child would enter foster care and adoption, if both mother and father were convicted of murder. From this statement alone, Petitioner might have inferred that direct harm would come to the child. Prior to the confession, however, Knabel explained:

Dorothy stands to do the same thing you do, man. Dorothy stands to lose not only her child, she’s 16 years old. She could lose the next 60 years.

(App. Vol. VII, at 3667.)

Petitioner was arrested as he was in the company of Dorothy Jackson. They were at a bus station preparing to leave town. Jackson lived in the same house where the murders occurred. Knabel had good reason in the early stages of the investigation to question the extent of Jackson’s involvement. Knabel’s questions to Petitioner, although no doubt pointed, probed the involvement of Petitioner’s pregnant girlfriend. Taken as a whole, prior to the confession, and contrary to Petitioner’s claim, the officers did not threaten that the child would be executed.

Petitioner also contends that the officers made unkept promises to him in order to induce a confession. After reviewing the entire videotape, the Court is of a different view. The officers made it clear that they could only advise a judge of Petitioner’s level of cooperation; they told Petitioner quite explicitly that they could not make other promises.

Finally, Petitioner contends that the officers lied to him by telling Petitioner that Luanna Jackson was alive and had told them what happened. Although Luanna Jackson was alive at that time, she was unconscious and had made no statement.

Even though a defendant is

Mirandized,

a confession may be unconstitutionally compelled if the same was the product of coercive state action. The Supreme Court noted in

Colorado v. Connelly:

Thus the cases considered by this Court over the 50 years since

Brown v. Mississippi

[ 297 U.S. 278 , 56 S.Ct. 461 , 80 L.Ed. 682 (1936) ] have focused upon the crucial element of police overreaching. While each confession case has turned on its own set of factors justifying the conclusion that police conduct was oppressive, all have contained a substantial element of coercive police conduct. Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.

Colorado v. Connelly,

479 U.S. 157, 164-65 , 107 S.Ct. 515 , 93 L.Ed.2d 473 (1986) (footnote omitted).

As to Petitioner’s claim that the officers lied to him, thereby inducing an involuntary confession, the case of

Frazier v. Cupp,

394 U.S. 731 , 89 S.Ct. 1420 , 22 L.Ed.2d 684 (1969) is instructive. Frazier

*795

was told by police officers that his cousin had already confessed to the crime. This statement was false. The Supreme Court held that, “[t]he fact that the police misrepresented the statements that Rawls had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible. These cases must be decided by viewing the ‘totality of the circumstances,’ ” 394 U.S. 731 , 89 S.Ct. 1420 , 22 L.Ed.2d 684 (1969) (citing

Clewis v. Texas,

386 U.S. 707, 708 , 87 S.Ct. 1338 , 18 L.Ed.2d 423 (1967)).

The Sixth Circuit has acknowledged that psychological coercion may render a confession involuntary.

Ledbetter v. Edwards,

35 F.3d 1062 (1994). The Sixth Circuit described a number of relevant factors, including (1) the recitation of Constitutional rights; (2) the age, education and intelligence of the defendant; (3) the length of questioning; and (4) any deprivation of food or sleep. Also, the Sixth Circuit considered the impact of misrepresentations made by law enforcement in reviewing the totality of the circumstances.

Petitioner contends that

Spano v. New York,

360 U.S. 315 , 79 S.Ct. 1202 , 3 L.Ed.2d 1265 (1959), is analogous to his case. In

Spano ,

pre-Miranda

case, the defendant was questioned for over eight hours, during which Spano asked for and was denied an attorney. During the interrogation, a police officer who was a close friend of Spano told the defendant that he (the police officer) would be fired if Spano did not cooperate. The Court does not find the facts in this case similar to those in

Spano .

Petitioner was

Mirandized

and never asked for counsel. The interrogation lasted only one hour, was videotaped, and did not reveal other forms of coercion.

The Court concludes that the Ohio Supreme Court’s decision rejecting Petitioner’s claim did not contravene or unreasonably apply controlling United States Supreme Court precedent and did not involve an unreasonable determination of the facts. That being so, Petitioner’s second ground for relief must be DENIED.

Third Ground for

Relief: The State of Ohio ignored its international treaty obligations thereby depriving Petitioner of his rights as guaranteed by the Supremacy Clause, and the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Petitioner’s third ground for relief asserts that his rights under Article 36 of the Vienna Convention on Consular Relations were violated when local law enforcement officers not only failed to notify him without delay that, as a Mexican national, Petitioner had an absolute right to communicate with the Mexican consulate, but also failed to notify the Mexican consulate without delay that Petitioner had been arrested. (Petition, Doc. # 6, at ¶¶ 50-71.) In fact, according to Petitioner, to this day neither he nor the Mexican government have received formal notification. Arguing that the Supremacy Clause of the United States Constitution confers upon treaties the same force and effect as the Bill of Rights and other federal laws, Petitioner argues that the violation of his Vienna Convention rights warrants federal habeas corpus relief. Specifically, Petitioner argues that the violation of his Vienna Convention rights mandates the same sort of remedy as would a violation of his

Miranda

rights — namely the exclusion of Petitioner’s inculpatory statements. In the absence of those inculpatory statements, Petitioner argues, the capital convictions against him cannot stand. In this regard, Petitioner points out that there was no scientific evidence or eyewitnesses that linked him to the homicides and that for a host of reasons, Dorothy Jackson’s self-serving statements implicating Petitioner are not reliable.

*796

Petitioner argues that although he need not demonstrate prejudice, he was in fact prejudiced by the violation of his rights under the Convention. Petitioner asserts that the Mexican consulate

would

have advised him of his rights,

would

have provided him with Spanish-speaking attorneys,

would

have assisted Petitioner’s counsel with the investigation of Petitioner’s background,

would

have attended Petitioner’s trial to ensure that the proceedings were full and regular, and

would

have assisted Petitioner in demonstrating that his confession was the result of police coercion — threats directed at Petitioner’s girlfriend and unborn child — to which Petitioner was particularly susceptible because of his cultural background.

In sum, Petitioner argues that by failing to honor a treaty into which the United States entered, local law enforcement not only violated the Supremacy Clause, but in doing so implicated Petitioner’s due process rights and additionally violated Petitioner’s Fifth Amendment right to remain silent.

Petitioner expands upon these arguments in his memorandum in support of his habeas corpus petition. (Doc. # 62, at 18-35.) Petitioner turns his focus first on the import of the International Court of Justice’s

LaGrand Case

decision.

That decision, according to Petitioner, defined the scope of rights guaranteed by Article 36 of the Vienna Convention, is authoritative, and must be followed by this Court. Petitioner asserts that the International Court of Justice (“ICJ”) set out five principle holdings:

First, “Article 36 ... creates individual rights” for a detained foreign national to be informed, following his detention and prior to trial, that he is entitled to receive assistance from his nation’s consul if he so chooses.

La Grand

¶ 77 (emphasis added). Second, this right is separate and distinct from, and not cumulative of, rights accorded under the laws of a state or the U.S. Constitution.

Id.

¶ 91. Third, a showing of prejudice is not necessary to establish a violation of Article 36.

Id.

¶ 74. Fourth, a state that denies a defendant his Article 36 rights cannot invoke waiver as a defense to a challenge based on that violation.

Id.

¶ 60. Finally, neither the United States, nor any of its constituent states, including Ohio, may apply its procedural default rules to deprive a foreign national of the opportunity to challenge his conviction and death sentence on the ground that he was deprived of his rights under Article 36 to seek and obtain consular assistance from his own government without delay.

Id.

¶¶ 90-91.

(Doc. # 62, at 22.) Petitioner argues that Ohio is bound by the Supremacy Clause to follow the Convention and that the ICJ’s

LaGrand

decision prescribes the rule of law for this Court regarding Article 36 rights.

Petitioner argues that there are additional reasons why

LaGrand

is binding on this Court, to wit: because the United States recognized when it signed and ratified the Vienna Convention that the ICJ’s interpretations and applications of the Convention would be binding and under the United Nations charter that it would undertake to comply with any decision by the ICJ to which the United States was a party; because the principles of

stare decisis

should apply to give the ICJ’s decision, binding effect on similarly situated detainees; because the related doctrines of “issue preclusion” and “offensive collateral estoppel” prohibit the United States from disregarding the rulings on a case to which the United States agreed- to be a party; because the “paramount international law rule of

pacta sunt servanda”

mandates

*797

that treaties must be observed; because disregarding

La Grand

would result in German and non-German detainees being treated differently — (the detainees in the

La Grand

case were German nationals and Petitioner is a Mexican national) — and because “ ‘[tjreaties that lay down rules to be enforced by the parties [to the treaty] through their internal courts or administrative agencies should be construed so as to achieve uniformity of result despite differences between national legal systems.’ ” (Doc. # 62, at 26 (quoting Restatement (Third) of Foreign Relations of Law of the United States Restatement at Section 325 cmt. d (1987)).)

Petitioner also points out that the ICJ’s

La Grand

decision reinforces his argument that he need not show prejudice from the violation of his Article 36 rights in order to obtain relief. Asserting that the denial of Article 36 rights affects the entire proceeding, Petitioner reiterates his arguments that relief does not require a showing of prejudice and cannot be denied through the application of harmless error review. In any event, Petitioner argues as he did in his petition that he in fact suffered “overwhelming prejudice” from the denial of his Article 36 rights. (Doc. # 62, at 30.) Specifically, Petitioner argues that the Mexican consulate would have found Petitioner different counsel familiar with the critical cultural issues implicated in both the culpability and sentencing phases of Petitioner’s trial and that the involvement of the consulate would have provided invaluable resources and inhibited the racism that Butler County law enforcement officers displayed toward Petitioner.

Respondent argues that Petitioner is not entitled to relief on his third ground for relief because his rights under a treaty are not constitutional in dimension. (Doc. # 67, at 39.) Respondent argues that the state trial court and court of appeals were correct in rejecting Petitioner’s claim in postconviction on the basis that Petitioner’s claim did not constitute a substantive ground entitling him to postconviction relief. Respondent argues that Petitioner is incorrect in his assumption that a breach of international law automatically constitutes a ground upon which federal habeas corpus relief can be granted and that Petitioner’s reliance on the

La Grand

decision in making that assumption is misplaced. Respondent additionally asserts that the Eleventh Amendment forecloses habeas relief on Petitioner’s claim. Respondent concludes that the state courts’ rejection of Petitioner’s claim did not contravene or unreasonably apply federal law and did not involve an unreasonable determination of the facts.

Petitioner presents three primary arguments in his reply brief. First, Petitioner argues that the determination by the state courts in postconviction that his argument did not state a claim upon which postconviction relief could be granted was

not

a ruling on the merits. Accordingly, Petitioner argues, this Court must review his claim

de novo

rather than merely determine whether the state courts’ decision contravened or unreasonably applied controlling federal law. (Doc. # 70, at 13-14.) Second, Petitioner presents multiple arguments disputing “Respondent’s sole contention” that “a violation of the Vienna Convention does not constitute a violation of the constitution.”

(Id.

at 14.) Citing 28 U.S.C. § 2241 (c)(3) and § 2254(a), Petitioner argues that Congress expressly empowered federal district courts to grant habeas relief on a violation of a treaty. Petitioner argues that the United States Supreme Court recognized as much in

Breard v. Greene,

523 U.S. 371, 376 , 118 S.Ct. 1352 , 140 L.Ed.2d 529 (1998). Regarding Respondent’s argument that the Eleventh Amendment forecloses relief on this claim, Petitioner argues simply that his claim does not implicate the Eleventh

*798

Amendment because Petitioner is not suing the State of Ohio.

Finally, after reiterating his arguments in support of relief, Petitioner for the first time and in the alternative “requests an evidentiary hearing to present evidence that he has been prejudiced by Ohio’s failure to comply with the Convention.” (Doc. # 70, at 18-19.) Respondent opposes Petitioner’s request. (Doc. # 72.)

The evolving state of law on this issue resulted in the parties filing numerous supplemental pleadings. Petitioner filed a notice on April 16, 2004 stating that the International Court of Justice ruled on March 31, 2004 that the United States had violated the Vienna Convention on Consular Relations in securing the convictions and death sentences of Mexican nationals. (Doc. # 74.) The ICJ made four specific findings as to Petitioner’s case: (1) that Petitioner’s rights were violated when Ohio did not provide Petitioner information regarding his right to consular access; (2) that Petitioner’s rights were violated when Ohio did not notify the Mexican consulate without delay of Petitioner’s arrest; (3) that Petitioner was denied his rights to communicate with, receive visits from, and have access to the consulate; and (4) that Petitioner was denied his rights to have the consulate arrange for legal counsel.

(Id.

at 1-2.) Petitioner attached a copy of the ICJ’s decision

(“Avena

decision”).

On December 7, 2004, Petitioner filed notice of additional authority in support of his third and fourth grounds for relief — his claims that his rights under the Vienna Convention were violated and that his defense counsel were ineffective in their representation of a foreign national. (Doc. # 75.) Petitioner argues specifically that ABA Guideline 10.6 concerning the obligations of counsel representing a foreign national and the decision of

Hamblin v. Mitchell,

354 F.3d 482 (6th Cir.2003), where the Sixth Circuit recognized the applicability of the ABA Guidelines in determining the prevailing professional norms by which counsel’s performance is to be judged bolster his third and fourth grounds for relief.

On April 20, 2005, Petitioner filed notice of relevant proceedings, explaining that in

Medellin v. Dretke,

Case No. 04-5928, the United States Supreme Court had accepted the following questions for review:

1. In a case brought by a Mexican national whose rights were adjudicated in the

Avena

Judgment, must a court in the United States apply as the rule of decision, notwithstanding any inconsistent United States precedent, the

Avena

holding that the United States courts must review and reconsider the national’s conviction and sentence, without resort to procedural default doctrines?

2. In a case brought by a foreign national of a State party to the Vienna Convention, should a court in the United States give effect to the

LaGrand

and

Avena

Judgments as a matter of international judicial comity and in the interest of uniform treaty interpretation?

(Doc. # 77, at 1.)

On July 21, 2006, Petitioner filed notice of additional authority, to wit:

Sanchez-Llamas v. Oregon,

548 U.S. 331 , 126 S.Ct. 2669 , 165 L.Ed.2d 557 (2006). In

Sanchez-Llamas ,

according to Petitioner, the Supreme Court considered whether the exclusionary rule was an appropriate remedy for a Vienna Convention claim and whether procedural default is applicable to such claims. (Doc. # 82, at 1.) Petitioner argues that the decision lends support to his second, third, and fourth grounds for relief by, among other things, endorsing Petitioner’s claim that the Supremacy Clause requires Ohio to comply with the Vienna Convention and assuming without deciding that the Vienna Convention grants individuals enforceable rights.

*799

On March 27, 2008, Respondent filed notice of additional authority — namely, the Supreme Court’s decision in

Medellin v. Texas,

— U.S.-(2008). In

Medellin,

according to Respondent, the Supreme Court held that the ICJ’s

Avena

decision is not enforceable in domestic courts and accordingly does not provide the basis for a viable claim in federal habeas corpus. (Doc. # 86.) Respondent argues that the petitioner in

Medellin,

like Petitioner herein, was specifically named in the ICJ’s

Avena

decision and that the Supreme Court decided as to the petitioner in

Medellin

that

Avena

was not enforceable in United States courts because the Vienna Convention was not a self-executing treaty and constituted only an obligation of the political branches.

Disagreeing with Respondent’s interpretation, Petitioner filed a response on April 3, 2008 setting forth his own interpretation of the

Medellin

decision. (Doc. # 87.) In short, according to Petitioner,

Medellin

does not impact this Court’s review of arguments that Petitioner has made showing how he was prejudiced by the denial of his Article 36 rights. Petitioner argues in the first instance that because

Medellin

concerned procedurally defaulted claims and Petitioner’s claim is properly before the Court on the merits,

Medellin

has no application. Petitioner insists that “[t]he heart of the challenge rejected in

Medellin

was the Mexican National’s attempt to overcome state procedural bars that prevented the consideration of his successive habeas petition by citing the ICJ’s ruling that procedural bars could not be invoked to prevent merits review of Article 36 violations.”

(Id.

at 3.) Petitioner’s second argument is that because

Medellin

did not go so far as to bar any domestic remedy for the denial of Article 36 rights,

Medellin

did not foreclose the availability of habeas corpus relief. Petitioner concludes by reiterating his argument that his claim is meritorious — that his Article 36 rights were violated and that he suffered overwhelming prejudice as a result.

Petitioner presented a bare-bones version of this claim to the state courts in postconviction, obviously without the legal and factual arguments that recent decisions by the ICJ and United States Supreme Court gave rise to. Petitioner argued in his first claim for relief that his trial attorneys were ineffective for failing to utilize the services of a cultural expert and in his fourth claim for relief that Ohio’s death penalty violated international laws and the Supremacy Clause of the United States Constitution. (App. Vol. Ill, at 1412.) Subsequently Petitioner supplemented those claims with the argument that his right of consular access under Article 36 of the Vienna Convention was violated.

(Id.

at 1607-08.) The trial court rejected his argument, finding among other things that Article 36’s right to consular access “does not equate to a fundamental right, such as the right to an attorney;” that the trial court was aware “of no law, treaty, or judicial precedent which imposes on law enforcement officials an affirmative duty to inform an alien detainee of a right to contact consul;” that Petitioner “fail[ed] to demonstrate how the failure to contact the Mexican consul prejudiced his defense;” and that “[t]he Vienna Convention does not establish any basis for vacation of petitioner’s sentence.”

(Id.

at 1608-09, 1611.)

Petitioner expanded upon his Vienna Convention argument on appeal from the trial court’s decision, presenting more succinctly the claim that he presents herein. (App. Vol. IV, at 1643-49.) The state appellate court rejected Petitioner’s claim as follows:

In his first assignment of error, Loza contends that he is entitled to postconviction relief because his rights under the Vienna Convention on Consular Re

*800

lations were violated. The Vienna Convention requires an arresting government to notify a foreign national who has been arrested, imprisoned or taken into custody or detention of his right to contact his consul. Vienna Convention on Consular Relations, April 24, 1963, TIAS 6820, 21 U.S.T. 77. Loza, a citizen of Mexico, argues that he is entitled to postconviction relief because the police never informed him that he had a right to contact the Mexican consul.

Pursuant to R.C. 2953.21(A)(1), post-conviction relief is dependent upon a showing that “there was such a denial or infringement of the person’s rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States.” Thus, a petitioner is not entitled to postconviction relief unless he shows a violation of rights that are constitutional in dimension, which occurred at the time that he was tried and convicted.

State v. Powell

(1993), 90 Ohio App.3d 260 [ 629 N.E.2d 13 ].

Pursuant to the Supremacy Clause of the United States Constitution, federal statutes and treaties are the supreme law of the land. Thus, a treaty has been deemed to be the substantial equivalent of a federal statute. See,

e.g., Boos v. Barry

(1988), 485 U.S. 312 , 108 S.Ct. 1157 [ 99 L.Ed.2d 333 ];

Reid v. Covert

(1957), 354 U.S. 1, 17-18 , 77 S.Ct. 1222, 1230-31 [ 1 L.Ed.2d 1148 (1957) ]. However, rights under a treaty and rights under a federal statute are not the equivalent of constitutional rights.

Id.;

see, also,

Waldron v. I.N.S.

(C.A.2, 1993), 17 F.3d 511, 518 (holding that rights under Vienna Convention are not the equivalent of fundamental rights, such as the right to counsel). Therefore, we agree with the following reasoning of the United States Court of Appeals for the Fourth Circuit:

Even if the Vienna Convention on Consular Relations could be said to create individual rights (as opposed to setting out the rights and obligations of signatory nations), it certainly does not create

constitutional

rights. Although states may have an obligation under the Supremacy Clause to comply with the provisions of the Vienna Convention, the Supremacy Clause does not convert violations of treaty provisions (regardless of whether those provisions can be said to create individual rights) into violations of constitutional rights. Just as a state does not violate a constitutional right merely by violating a federal statute, it does not violate a constitutional right merely by violating a treaty.

Murphy v. Netherland

(C.A.4, 1997), 116 F.3d 97, 100 .

Although the police should have complied with the Vienna Convention and informed Loza that he had the right to contact the Mexican Consul, Loza’s rights under the treaty are not constitutional in dimension. Accordingly, the tidal court properly found that Loza’s claim did not constitute a substantive ground that entitled him to postconviction relief, and Loza’s first assignment of error is overruled.

(App. Vol. IV, at 1993-95.) Because the Ohio Supreme Court declined to exercise jurisdiction over Petitioner’s discretionary appeal, the state appellate court’s decision constitutes the last reasoned state decision addressing Petitioner’s claim.

Before addressing the merits of Petitioner’s claim, the Court must determine as a threshold matter which standard of review to employ. By way of reminder, under the AEDPA, a federal court shall not issue a writ of habeas corpus on a claim that the state courts adjudicated on the merits unless the state court adjudica

*801

tion “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254 (d)(1), or was based on “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” 28 U.S.C. § 2254 (d)(2). Moreover, under § 2254(d)(1), a state court decision is “contrary to” Supreme Court precedent “when the state court confronts facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from its precedent ]” or “when the state court ‘applies a rule that contradicts the governing law set forth in’ Supreme Court cases.”

Williams v. Coyle,

260 F.3d 684, 699 (6th Cir.2001) (quoting

Williams v. Taylor,

529 U.S. 362, 406-07 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000)). Similarly, a federal habeas court may not find a state adjudication to be “unreasonable” simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly.

Id.

Barker v. Yukins,

199 F.3d 867, 872 (6th Cir.1999).

The limitations on federal habeas review set forth in § 2254(d) apply only to state court decisions that constitute “adjudications on the merits.” Petitioner argues that the state appellate court, by rejecting his Vienna Convention claim as not constituting a substantive ground upon which postconviction relief could be granted, did not adjudicate his claim on the merits. Accordingly, Petitioner argues, this Court must undertake a

de novo,

rather than deferential, review of his claim. (Doc. # 70, at 13.) Petitioner’s argument is unpersuasive for two reasons. First, in the Sixth Circuit, even in the absence of a decision by the state courts addressing the substance of a properly raised federal claim, federal habeas courts are required to “conduct an independent review of federal law to determine if the state court either contravened or unreasonably applied clearly established federal law....”

Schoenberger v. Russell,

290 F.3d 831, 835 (6th Cir.2002) (citing

Harris v. Stovall,

212 F.3d 940, 943 (6th Cir.2000)).

see also Caro v. Calderon,

165 F.3d 1223, 1226 (9th Cir.1999) (“this Court has recognized that the failure to present evidence necessary to bridge a cultural gap may constitute ineffective assistance of counsel.”). But the Court is not persuaded that Petitioner’s counsel were ineffective in this case for failing to obtain a cultural expert. In

Syriani v. Polk,

118 Fed.Appx. 706 (4th Cir.2004), the petitioner was convicted of capital murder in the killing of his wife. The petitioner, who was a native of Jordan, raised a claim of ineffective assistance for counsel’s failure to obtain a cultural expert to testify as to the effect that the Petitioner’s “Arabic heritage might have had upon his actions during the marriage and on the night he inflicted the fatal wounds upon his wife.”

Syriani,

118 Fed.Appx. at 716 . The Fourth Circuit found no ineffective assistance, explaining:

It is clear that Syriani’s counsel understood and adequately presented the cultural aspects of the case, and successfully highlighted their mitigation value. In particular, Mr. Plumides demonstrated that he fully understood Syriani’s marriage arrangement and the cultural differences between his life in Jordan and his life in the United States. Counsel presented information about Syriani’s unique cultural background to the jury, through the testimony of Syriani and [his sister] Odeet. And, counsel referred to the differences between Arabic and American culture during his closing argument to the jury, including reminding the jury of Syriani’s unique difficulty in coping with his wife’s adoption of more American behaviors, such as driving, working outside the home, and wearing makeup and a more amerieanized wardrobe.

In sum, we cannot say that the trial counsel’s failure to travel to Jordan to interview family members and friends of Syriani from years before, or failure to retain a “cultural expert” to testify as to the effect his Arabic heritage might have had upon his actions during the marriage and on the night he inflicted

*813

the fatal wounds upon his wife, constituted ineffective assistance of counsel. Counsel interviewed Syriani and his sister living in the United States, as well as a sibling who visited from Jordan, and presented a great deal of evidence of Syriani’s background to the jury. * * *

Id.

The Fourth Circuit went on to conclude that even assuming counsel should have done more in investigating this aspect of the case by obtaining a cultural expert, the petitioner had failed to demonstrate prejudice. The Court reasoned that, even after counsel presented evidence about the petitioner’s background, cultural influences, and the effect that all of that had on his actions during the marriage and on the evening of the murder, “[cjlearly, the jurors knew and understood the cultural issues involved in this case, and weighed them, but concluded that this did not outweigh the aggravating nature of the attack.”

Id.

at 717 .

Like the Fourth Circuit in

Syriani ,

this Court is of the view that Petitioner’s trial counsel did not render ineffective assistance by failing to obtain a cultural expert. As the Court will explain more fully below, the Court concludes that counsel obviously demonstrated an understanding of the cultural influences on Petitioner and that counsel’s failure to go further by obtaining a cultural expert did not constitute deficient or prejudice performance at either the culpability or mitigation phases. Counsel attempted to present evidence during the culpability phase to call into question the reliability of Petitioner’s confession and did present some evidence during mitigation not only to undermine the reliability of Petitioner’s confession but also to bridge any cultural gap.

To the extent Petitioner argues that his trial counsel were ineffective for failing to present the testimony of a cultural expert during the culpability phase of the trial, Petitioner’s argument must fail. Trial counsel sought to call psychologist Dr. Roger Fisher to testify during the culpability phase of the trial that Petitioner’s confession was the product of psychological coercion and duress because of statements that police had made suggesting that Dorothy Jackson could end up in the electric chair and that their unborn child could end up in “never never land,” and that letters that Petitioner sent from prison were a deliberate attempt on his part to reinforce his coerced desire to protect Dorothy and the baby. (Tr. Vol. VI, at 3175-77.) The trial court excluded the testimony, explaining that because it had already admitted Petitioner’s confession as voluntary and knowing, it would be inappropriate to allow expert testimony suggesting that Petitioner’s confession was the product of coercion or duress.

(Id.

at 3177.) A cultural expert presumably would have testified essentially along those same lines during the culpability phase or in support of a motion to suppress Petitioner’s confession prior to trial. Thus, Petitioner falls short of demonstrating deficient performance or prejudice from counsel’s failure to take an action that counsel essentially tried to take: present expert testimony suggesting that Petitioner’s confession was the product of coercion or duress, particularly in a case in which the jury was able to view a videotape of the confession.

As for counsel’s failure to obtain a cultural expert during the mitigation phase, Respondent is correct that trial counsel did essentially present what Petitioner faults them herein for failing to present — -namely the theory that Petitioner, by virtue of his upbringing, experiences, and influences, admitted responsibility for the murders not necessarily because he had committed those murders, but because he sought above all

*814

else to protect Dorothy Jackson and his unborn child from the police. Dr. Fisher testified emphatically and repeatedly that Petitioner would have done anything, including lie and give up his life, to protect Dorothy and their unborn child.

(Id.

at 3415-16, 3416, 3418, 3419.) Petitioner appears to be arguing that had trial counsel obtained the services of a cultural expert to add a cultural dimension to the

theory

— ie., that Petitioner, by virtue of the influence of his Mexican immigrant heritage, was that much more compelled to confess to the murders and was that much more susceptible to threats by the police of what would become of Dorothy and the baby if Petitioner did not accept full responsibility' — • there is a reasonable probability that the jury either would have acquitted him of capital murder or at least recommended a sentence less than death. Petitioner’s argument is unpersuasive.

First, as noted above, trial counsel did manage to present

some

cultural evidence during the mitigation phase to bridge the cultural gap. Dr. Fisher explained that the abandonment of the family by Petitioner’s father had a particularly devastating impact on Petitioner because Petitioner was at an age during which young males in a Hispanic culture look to them fathers for security, stability, and well-being within the family, and as role models for how to be a man, husband, and father. (Tr. Vol. VI, at 3401.) Dr. Fisher also testified about the difficulties that Petitioner experienced when he and his siblings relocated to Los Angeles because Petitioner struggled to learn English and adapt to a new culture.

(Id.

at 3403-04.) Dr. Fisher went on to explain how Petitioner’s urgent desire to become part of the family he had never had and to give his surname worth again after his father’s abandonment-desires informed by his Mexican heritage resulted in Dorothy Jackson becoming the most important thing in his life.

(Id.

at 3409-10, 3417.)

Of course, Petitioner is also correct in his assertion that trial counsel did not present all of the cultural evidence that Petitioner argues was available and warranted — namely, the testimony of an expert on Mexican American culture who could have provided more extensive information about the extent and force of the cultural dimension underlying Petitioner’s motivation to confess to the murders not only as a basis for suppressing Petitioner’s confession before trial, but also during the culpability and penalty phases to persuade the jury that Petitioner’s admissions were unreliable and should be given little if any weight. Petitioner submitted in support of his state postconviction action an affidavit dated November 9, 1995, by Dr. Susan Keefe, a Professor of Anthropology at Appalachian State University who specialized in Mexican American culture. (App. Vol. Ill, at 1435-1443.) Dr. Keefe explained that she was trained in the analysis of “cultural systems,” defined as “the learned pattern of of ideas, values, and rules governing behavior in a social group.”

(Id.

at 1436, ¶ 8.) Dr. Keefe stated that she reviewed numerous materials and documents from Petitioner’s trial and detailing his background, in addition to reviewing the affidavits of immediate family members, friends, a teacher, and a probation officer, and also consulted with defense counsel, the mitigation specialist, the clinical psychologist, and Petitioner himself.

(Id.

at ¶¶ 10-12.)

Based on the foregoing, Dr. Keefe made numerous observations not only generally about the Mexican American immigrant experience, but also specifically about the stresses that Petitioner and his family experienced. Dr. Keefe stated for instance that once relocated in Los Angeles, Petitioner and his family coped with their social isolation through loyalty to family and

*815

other traditional Mexican cultural supports such as the church.

{Id.

at 1439, ¶ 29.) Dr. Keefe discussed generally the oppressive poverty in which many Mexican American immigrants lived and how they often turned to alternative forms of family, such as gangs, in order to survive on the streets.

{Id.

at ¶¶ 30-31.) Dr. Keefe also explained how mother-centered households often turn out the most gang members, as “the gang often provides the first opportunity to have male role models among peers facing similar difficulties in sex role identification.”

{Id.

at 1440, ¶ 33.) Dr. Keefe opined that Petitioner encountered the most difficulties when he entered high school and began drinking, getting into more fights, and tattooing himself consistent with gang membership; and yet, according to Dr. Keefe, “[Petitioner] was probably a peripheral gang member rather than a hard-core member.”

{Id.

at 1440-41, ¶¶ 36-37.) Dr. Keefe also explained that “Chicano gangs have a subculture which is consistent in significant ways with Mexican culture, especially with regard to ideal masculinity or

machismo.” {Id.

at 1441, ¶ 38.) After describing in detail the “complex cultural concept of Mexican manliness,” Dr. Keefe went on to explain the depth and extent of Petitioner’s “concern with manliness.”

{Id.

at ¶ 40.) After discussing Petitioner’s obsession with having his own family, as a product of cultural influences and his own father’s abandonment, Dr. Keefe went on to describe Petitioner’s relationship with Dorothy Jackson, their desire to get married and have a family, and the increasing disdain that Dorothy’s family exhibited toward Petitioner and Dorothy herself.

{Id.

at 1442, ¶¶ 42M5.) Dr. Keefe explained that abortion and even adoption would be abhorrent to most Mexican Americans as inconsistent with the tenets of the Catholic church and with the Mexican cultural value of family that emphasizes blood kin.

{Id.

at 1443, ¶ 47.) Dr. Keefe concluded as follows:

It would be consistent with Mr. Loza’s Mexican values to try to protect Dorothy and the baby after his arrest by confessing to the crimes. His concerns on the videotaped confession are entirely focused on the outcome for Dorothy and the baby after the police say that he and Dorothy will be electrocuted and the baby will go to “Never-Never Land.” After this statement, Mr. Loza says that Dorothy had nothing to do with it. “I’m taking all responsibility for this,” he says. He wonders if Dorothy can get the money back from the unused bus tickets (presumably in order to travel to Los Angeles). He wonders if she could be released to live with his mother. He wonders if she has the baby in prison would the baby be taken away. He wonders if his mother could adopt the baby. He ends by saying he would do it again if Dorothy’s family still said the same things: that they would give the baby up for adoption and that the baby should not be given Mr. Loza’s last name. In the end, Mr. Loza explains his situation by saying “I’m only trying to be the man my father never was.” “A real Mexican man would respond to threats against his family, protect his family at all costs, and stand his ground in the most difficult circumstances.”

{Id.

at ¶ 48.) The state courts found that “[Dr.] Keefe’s ‘cultural evidence’ is merely cumulative of or alternative to Dr. Fisher’s testimony.”

(App. Vol. IV, at 1999.) The

*816

most that Petitioner has shown is that counsel

could

have done more, which will almost always be the case. What Petitioner has not shown is that counsel

should

have done more as a matter of prevailing professional norms. Petitioner makes much of the fact that counsel admitted in affidavits that their failure to obtain a cultural expert was the result not of a strategic decision but of oversight stemming from the fact that they had never represented a Hispanic defendant and did not recognize the need to obtain a cultural expert. But given the fact that counsel obviously demonstrated an understanding of the cultural influences on Petitioner, attempted to present evidence during the culpability phase to call into question the reliability of Petitioner’s confession, and did present some evidence during mitigation to call into question the reliability and bridge any cultural gap, this Court cannot find that counsel’s admitted failure to recognize the need for an obtain a cultural expert amounted to deficient performance falling outside prevailing professional norms.

Petitioner also has not shown that but for counsel’s alleged errors, there is a reasonable probability that the outcome of his trial or sentencing hearing would have been different. First, although the likelihood that a trial court will refuse to admit certain evidence does not obviate counsel’s duty to attempt to offer the evidence if it appears that the evidence is relevant and competent, Petitioner still cannot demonstrate prejudice from counsel’s failure to offer a cultural expert in the instant ease. As noted above, the fact that the trial court would not permit Dr. Fisher to testify during the culpability phase of the trial that Petitioner’s confession was the result of coercion or duress militates strongly in favor of finding that Petitioner was not prejudiced during the culpability phase due to counsel’s failure to obtain a cultural expert to testify about the degree to which Petitioner’s Mexican heritage motivated him to confess to the murders.

In addition, the fact remains that trial counsel

essentially

presented to the jury during mitigation the theory that Petitioner had confessed to killing Dorothy’s four family members not necessarily because he had actually done so, but because he was motivated above all else to protect Dorothy and their unborn child from the police. (Tr. Vol. VI, at 3387-88, 3393-3430.) Petitioner has not demonstrated and the Court is not otherwise persuaded that had counsel simply presented more evidence in support of that theory — namely in the form of expanded testimony by an expert in Mexican American culture— there is a reasonable probability that the jury would have reached a different verdict at either the culpability phase or the penalty phase. Petitioner dismisses any argument that trial counsel presented the essence of this cultural evidence through the mitigation testimony of Dr. Fisher, emphasizing that Dr. Fisher provided only psychological testimony, not cultural testimony. But having reviewed Dr. Susan Keefe’s affidavit, the Court simply finds unpersuasive any argument that had the jury heard more extensive testimony from a cultural expert such as Dr. Keefe rather

*817

than or in addition to the testimony that Dr. Fisher provided, there is a reasonable probability that the jury would have reached a different sentencing result. In considering the value of Dr. Fisher’s testimony relative to the value of testimony by a cultural expert, the Court recognizes that Dr. Fisher’s testimony about the lengths to which Petitioner would have gone to protect Dorothy and her baby included killing her family and feeling that that was justified, while Petitioner has consistently argued that a cultural expert would have helped explain how Petitioner’s cultural influences motivated him to protect Dorothy not by committing the murders but by confessing to the murders.

(Id.

at 3414, 3420-21.) Nonetheless, considering all of the evidence, as well as the cultural evidence that Petitioner argues should have been presented, the Court simply is not persuaded that there is a reasonable probability that the testimony of a cultural expert, even if confined to a theory that Petitioner confessed to but did not commit the murders, would have resulted in a different sentencing verdict.

See, e.g., Beuke,

537 F.3d at 644 (“Thus, ‘we reweigh the evidence in aggravation against the totality of available mitigating evidence,’ which includes the mitigation evidence that was omitted because of counsel’s alleged deficiencies.”) (quoting

Harries v. Bell,

417 F.3d 631, 639 (6th Cir.2005).) In so holding, the Court is mindful that “[t]he petitioner ‘need only show that one juror would have reached a different result to establish prejudice.’ ”

Beuke,

537 F.3d at 644 -45 (quoting

Gillard v. Mitchell,

445 F.3d 883, 896 (6th Cir.2006).)

B. Counsel’s Failure To Present Additional Family Members During Mitigation.

Petitioner also argues that trial counsel performed deficiently and to his prejudice by failing during the mitigation hearing to call additional family members to testify and to better prepare the family members who did testify. Petitioner argues that his trial counsel performed deficiently and to his prejudice by failing to call not only his maternal grandmother, who had raised him for much of his life, but also his sister Beatrix and his brother Jesus. (Petition, Doc. # 6, at ¶ 78.) Petitioner asserts that calling those additional family members would have provided the jury with a complete picture of Petitioner’s life and background. Petitioner also asserts that the testimony would have provided evidence of the full effect of Petitioner’s father’s abandonment of the family when the children were so young and of Petitioner’s mother then being forced to leave her children. (Doc. # 62, at 41.) Petitioner also argues that the omitted testimony, in conjunction with the testimony of a cultural expert, not only would have provided the jury with a more complete understanding of life in Los Angeles for illegal Mexican immigrants, but also would have provided a basis for the proposition that Petitioner had confessed falsely in order to protect his unborn child. Citing

Eslaminia v. White,

136 F.3d 1234 (9th Cir.1998), Petitioner asserts that testimony from various family members cannot be cumulative because first-person views and opinions constitute unique and unduplicated evidence. (Doc. # 62, at 41.) Petitioner asserts that he was prejudiced by the omissions because the fact that the jury returned a life verdict on the first aggravated murder count demonstrates a reasonable probability that but for counsel’s deficient performance in failing to call additional family members, the jury would have returned life verdicts on each of the victims.

Responding to Petitioner’s arguments in her Return of Writ, Respondent characterizes Petitioner’s claim as one assailing trial counsel for failing to present cumulative mitigating evidence. (Doc. # 67, at 45.) Respondent asserts that defense counsel

*818

presented substantial mitigating evidence from Petitioner’s family and that Petitioner’s mother and two sisters provided testimony about Petitioner’s family history and character. Respondent goes on to argue that Dr. Fisher testified as to all of the information that Petitioner’s grandmother’s affidavit purports to reveal and to all of the details about Petitioner’s ROTC and work experiences that Petitioner’s sisters’ affidavits purport to reveal. Respondent further asserts that Petitioner’s sister Viviana Loza also testified about Petitioner’s family background and ROTC involvement. Respondent also maintains that Petitioner’s mother testified about Petitioner’s father’s abandonment of the family, Petitioner’s traumatic childhood experiences, and Petitioner’s “light criminal past.”

(Id.)

Finally, Respondent asserts that Petitioner’s brother Jesus’s affidavit offered nothing mitigating on behalf of Petitioner only criticism of Dorothy Jackson. Respondent concludes by arguing that additional family testimony would only have been cumulative.

In his reply brief, Petitioner essentially disputes Respondent’s argument that testimony by family members who did not testify would have been cumulative or otherwise not relevant mitigating evidence. (Doc. # 70, at 26-32.) Petitioner argues that testimony by his maternal grandmother Emma Rodas would not have been cumulative to anything that was presented, and argues specifically that Dr. Fisher could not have described any of the information set forth in Rodas’s affidavit. Petitioner asserts that his grandmother, as the person who raised him for much of his life, could have testified about medical problems and conditions that Petitioner experienced as a child; the extent of abuse that Petitioner suffered at the hands of his mother’s boyfriend; Petitioner’s lack of involvement in gangs; the fact that Petitioner once took the blame for stealing stereos solely in order to protect his friends; and Petitioner’s statement to her that regardless of guilt, he took the blame for the murders solely in order to protect Dorothy and his child.

Petitioner does not dispute Respondent’s assertion that Petitioner’s sister Viviana provided some background information regarding Petitioner. Petitioner argues, however, that the information that she provided was incomplete, due to the fact that she met with counsel only once prior to testifying. Petitioner argues that Viviana could have provided the following additional information, to wit: that Petitioner was physically abused by teachers at public schools in Mexico; that Petitioner was developmentally delayed in that he did not learn to speak at an appropriate age; that bullies beat up Petitioner nearly every day when he first came to the United States; and that Dorothy’s family left Los Angeles as the result of being victims of a drive-by shooting.

Similarly, Petitioner argues that although his mother Beatriz provided some background information concerning Petitioner, his mother could have provided more complete information, had she met with counsel more than once before testifying. For instance, according to Petitioner, his mother could have testified that teachers and classmates in public school in Mexico physically abused Petitioner; that Petitioner was a sickly child; that gang members beat Petitioner because he refused to join their gang; that Dorothy, following a physical altercation, miscarried the first child that she and Petitioner had conceived; and that Dorothy’s family left Los Angeles as a result of being the victims of a drive-by shooting.

With respect to Respondent’s argument that Petitioner’s brother Jesus’s affidavit offered nothing mitigating on behalf of Petitioner and only criticism of Dorothy Jackson, Petitioner argues that Respon

*819

dent xnischaracterizes Jesus’s affidavit. Petitioner argues that Jesus could have testified that gang members once beat Petitioner because he refused to join their gang and that Petitioner eventually joined a gang that did not engage in violent acts and that Petitioner joined only to be with his Mends. Petitioner argues that such testimony would have been invaluable corroborating evidence that Petitioner was

not

a serious gang member, contrary to other improper gang evidence that was introduced throughout Petitioner’s trial.

Petitioner concludes by arguing that the omitted information set forth above was not cumulative to information that defense counsel did provide during his sentencing hearing. Petitioner argues, accordingly, that any factual finding made by the state courts in postconviction that the information was merely cumulative is unreasonable based on the evidence presented and therefore deserves no deference as set forth in 28 U.S.C. §§ 2254 (d)(2) and (e)(1). Petitioner argues in the alternative that he is entitled to an evidentiary hearing to develop the facts set forth above and prove that those facts establish a claim of ineffective assistance of trial counsel. (Doc. # 70, at 32-33; Doc. # 73.)

As noted above, Petitioner presented this component of his ineffective assistance claim to the state courts in postconviction. He argued in his third claim for postconviction relief that his convictions and/or sentences were void or voidable because his trial attorneys were deficient in their presentation of mitigation witnesses from the Loza family, specifically by neglecting to call Petitioner’s grandmother, sister, and brother, (App. Vol. Ill, at 1417-19.) Petitioner supported the claim with the affidavits of anthropologist Dr. Susan Keefe, Petitioner’s mother Beatriz Ventura, Petitioner’s maternal grandmother Emma Rodas, Petitioner’s sister Viviana Loza, Petitioner’s sister Beatrix Loza, Petitioner’s brother Jesus Loza, Petitioner’s trial attorneys Michael D. Hanks and Gregory Howard, clinical psychologist Dr. Julia Hawgood, and Edna Marlow — Dorothy Jackson’s foster mother who recovered and turned over to trial counsel letters that Petitioner had sent to Dorothy from prison. The trial court appears to have rejected Petitioner’s claims as being barred by

res judicata,

as being without merit, and as being supported by only cumulative evidence. (App. Vol. Ill, at 1605-09,1610.)

The last state court to issue a reasoned decision addressing these arguments, the state appellate court, rejected Petitioner’s claim concerning counsel’s failure to call additional family members as follows:

Lawson

at 315 [ 659 N.E.2d 362 ];

Combs

at 105 [ 652 N.E.2d 205 ], Accordingly, Loza’s claims of ineffective assistance of counsel are without merit, and his second assignment of error is overruled.

(App. Vol. IV, at 2000.)

As noted

supra,

“[c]ounsel has a duty to make reasonable investigations or to make

*820

a reasonable decision that makes particular investigations unnecessary.”

Strickland,

466 U.S. at 691 , 104 S.Ct. 2052 . As the Court previously explained, in the Sixth Circuit, the scope of a court’s review of a claim of ineffective assistance of counsel during mitigation is shaped by the degree of counsel’s alleged inadequacies. The Sixth Circuit recently explained that, “[o]ur circuit’s precedent has distinguished between counsel’s

complete

failure to conduct a mitigation investigation, where we are likely to find deficient performance, and counsel’s failure to conduct an

adequate

investigation, where the presumption of reasonable performance is more difficult to overcome.”

Beuke v. Houk,

537 F.3d at 643 (citing

Campbell v. Coyle,

260 F.3d at 552, and

Moore v. Parker,

425 F.3d at 255 ). The Sixth Circuit in

Beuke

went on to explain that, where it appears that trial counsel did not entirely abdicate their duty to investigate for mitigating evidence, a reviewing court should closely evaluate whether trial counsel exhibited specific deficiencies that were unreasonable under prevailing professional standards.

Beuke,

537 F.3d at 643 (citing

Dickerson v. Bagley,

453 F.3d at 701 ).

The Sixth Circuit has addressed on countless occasions claims alleging ineffective assistance for the failure to investigate and call additional family members to testify in mitigation and/or to better prepare the family members who did testify at mitigation. In

Carter v. Mitchell,

443 F.3d 517 , the only mitigation that defense counsel presented consisted of the petitioner’s own statement detailing a troublesome stepfather, problems with anger, and a recent conversion to religion.

Id.

at 530 . The petitioner claimed that his defense counsel should have investigated and called family members to testify about the petitioner’s troubled background, abuse of drugs and alcohol, history of violent behavior, experience with racial prejudice, and influence by an alcoholic and philandering father. In support, the petitioner presented affidavits by his mother, step-father, sister, younger brother, older brother, half-sister, and paternal aunt. The Sixth Circuit found neither deficient performance nor prejudice. The Sixth Circuit could not find deficient performance because the three family members whom counsel failed to contact would have offered little personal insight into the problems described by the petitioner, because there was no allegation that counsel failed to contact the other four family members, and because the petitioner presented no evidence as to what counsel did in the way of investigation.

Id.

at 530-31 . The Sixth Circuit went on to find that even assuming counsel had performed deficiently, the petitioner could not demonstrate that he was prejudiced because the testimony that the petitioner’s family members were prepared to give was either cumulative to the petitioner’s own statement or too damaging to be of much value in mitigation.

Id.

at 531-32 .

Clark v. Mitchell,

425 F.3d 270 (6th Cir.2005), the mitigation presented on behalf of the petitioner consisted of testimony by an expert, Dr. Kisin, and the petitioner’s mother. Petitioner claimed in habeas that his attorneys were ineffective for failing to investigate and call additional family members and offered in support affidavits by two mental health experts and numerous family members. The Sixth Circuit rejected his claim, explaining:

Our cases reject a requirement that any later-identified cumulative mitigating ev

*821

idence must have been introduced in order for counsel to be effective. As this court recently explained, “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.”

Hill v. Mitchell,

400 F.3d 308, 319 (6th Cir.2005). This court also held in

Smith v. Mitchell,

348 F.3d 177, 200-02 (6th Cir.2003), that a petitioner was not prejudiced by his counsel’s failure to introduce additional mitigating evidence at sentencing where new evidence sought to be introduced was merely cumulative to that which had already been presented at mitigation.

Clark,

425 F.3d at 286 . The Sixth Circuit went on to explain that, “[wjhile the opinions of Dr. Gelbort and Dr. Kandiko, as well as the affidavits from Clark’s family, provide further mitigating details about Clark, they do not significantly expand upon the information that was available to the jury.”

Id.

at 287 .

Martin v. Mitchell,

280 F.3d 594 (6th Cir.2002), trial counsel gave no opening statement, and then presented testimony by a probation officer (for the purpose of admitting a presentence investigation report into evidence), the petitioner’s mother, and the petitioner’s grandmother. The petitioner argued that counsel were ineffective for failing to conduct an adequate investigation into the petitioner’s background, failing to contact additional family members, and failing to collect records concerning the petitioner’s medical and mental health, education, employment, and juvenile incarceration. In support, the petitioner provided affidavits by eight family members averring that they would have testified had they been contacted but otherwise failing to set forth what they would have testified to. The petitioner’s mother, who stated in her affidavit that she was not prepared for what to testify to during the sentencing hearing, nonetheless provided testimony concerning the following during the sentencing hearing: the petitioner’s problems with juvenile court and in school; the petitioner’s juvenile institutionalization; her being on welfare during the petitioner’s youth; the lack of financial support that she received from the petitioner’s father; the petitioner’s abnormal behavior during school; psychiatric testing that the petitioner received at school; abuse that the petitioner suffered at the hands of his mother’s alcoholic husband; physical and psychological injuries that the petitioner suffered as the result of a gas explosion; the petitioner’s dropping out of school in order to work for money to buy adequate clothing; and the petitioner’s employment history. Following her testimony, when defense counsel stated that they had no further witnesses, the trial court asked if there were any family members or acquaintances in the court room, including the petitioner’s father, who wished to testify on behalf of the petitioner. Subsequently, the petitioner’s grandmother took the stand and testified that she had cared for the petitioner when he was an infant and again when he was five or six years old; that the petitioner wanted to go to church with her during that latter period; that she cooked for the petitioner and his siblings because they did not seem to have adequate food due to a lack of financial support from the petitioner’s father; that the petitioner’s mother had a difficult time raising her kids because of her asthma and inability to work steadily; and that the petitioner did not have a typical or tight relationship with his father. In closing arguments, defense counsel argued essentially that society had cast the petitioner aside at a young age and that if he was to be institutionalized, they (society) needed to improve. The record contained evidence that the petitioner, at times, was uncooperative with his counsel.

*822

The Sixth Circuit proceeded to address Martin’s ineffective assistance of counsel claim by first examining a host of previous decisions addressing similar claims.

Martin,

280 F.3d at 611-12 . Ultimately, the Sixth Circuit found that because counsel presented something in the way of mitigation and conducted some, albeit not exhaustive, investigation, there was no constructive denial of counsel.

Id.

at 613 . Following a review of omitted information about the petitioner proffered by a mental health expert, the Sixth Circuit went on to find that counsel did not perform deficiently for failing to investigate and present that information because “the testimony of Martin’s mother and grand mother did discuss most, if not all, of the factors in [Dr. Schmidtgoessling’s] affidavit.”

Id.

at 614 . The Sixth Circuit reasoned that even if that information had not been presented within the context of an expert’s opinions and conclusions, it nonetheless was sufficiently presented to the jux*y, not only through the testimony of the petitioner’s mother and grandmother but also through the presentence investigation report and psychological evaluation that went to the jury. The Sixth Circuit also held that the petitioner could not demonstrate prejudice because family members did not set forth in the affidavits that petitioner submitted what information they would have testified to and because, as noted earlier, substantial background information concerning the petitioner was presented to the jury.

Viewed against this backdrop, the record in this case does not support a finding that Petitionex-’s counsel performed unreasonably and to Petitioner’s prejudice for failing to call additional family members to testify in mitigation and/or for failing to better prepare those family members who did testify at mitigation. As in

Caiter

and

Martin ,

the record demonstrates that counsel did investigate and present mitigating evidence, the substance of which was akin to that which Petitioner faults counsel for failing to investigate, develop, and present. The Court previously noted above that the record contains evidence that trial counsel sought funds for mitigation experts at an early stage during the pretrial proceedings and traveled to Los Angeles to interview Petitioner’s family members and investigate his background. At the mitigation hearing, trial counsel delivered an opening statement urging the jury to consider Petitioner’s difficult background, the testimony that trial counsel anticipated presenting, Petitioner’s lack of a significant criminal history, Petitioner’s concern for the well-being of Dorothy Jackson and their unborn child, the absence of a nexus between the robberies and killings of the victims, and Petitioner’s acceptance of responsibility. (Tr. Vol. VI, at 3384-88.) Trial counsel went on to call clinical psychologist Dr. Roger Fisher, who provided testimony explaining among other things how abandonment by Petitioner’s father, difficult upbringing and violent surroundings, and concern for the well-being of his unborn child and its mother would prompt Petitioner to repeatedly and emphatically take x'esponsibility for the murders to protect Dorothy and their unborn child. Trial counsel also presented testimony by Petitioner’s youngest sister Samantha Ceja, oldest sister Viviana Loza, and mother Beatriz — all of whom provided information generally about Petitioner’s background, upbringing, positive attributes as a bx’other and son, and relationship with Dorothy Jackson and her family. The foregoing precludes any argument that trial counsel

completely

failed to investigate or present mitigation. The Court accordingly must “closely evaluate” whether Petitioner’s attorneys “exhibited specific deficiencies that were unreasonable under prevailing professional standards.”

Beuke,

537 F.3d at 643 . Based on the foregoing, the Court answers that inquiry in the negative and

*823

finds that Petitioner’s attorneys did not perform deficiently in connection with their mitigation investigation and presentation.

Even assuming trial counsel performed deficiently, the Court further finds that Petitioner was not prejudiced. Although not “cumulative” in the sense that it was word-for-word duplicative, the omitted information that Petitioner’s sister, grandmother, and brother could have provided, there was considerable overlap between the information that Petitioner’s sister, grandmother, and brother could have provided and the information that was presented. This Court is of the view that what was omitted was not so substantially different from what was presented that it can be said that but for counsel’s failure to present the omitted information, there is a reasonable probability that the jury would have returned life sentences as to all four victims instead of just one of them.

See, e.g., Beuke v. Houk, 587 F.3d

at 645 (finding that although some of the omitted evidence in mitigation, such as the petitioner’s low self-esteem and the degree of his parents’ sheltering him, was not cumulative, “this non-cumulative evidence is not powerful mitigating evidence that is reasonably likely to have changed the jury’s recommendation of death.”)

Petitioner asserts that the fact that the jury returned a life verdict as to Georgia Davis is evidence that had trial counsel presented more in the way of mitigation by calling Petitioner’s sister, grandmother, and brother, there is a reasonable probability that the jury would have returned life verdicts as to each of the four victims. Petitioner’s assertion is pure speculation. There is no way of knowing why the jury returned a life verdict as to Georgia Davis and it is pure speculation to assume that there is a reasonable probability that presentation of the omitted information would have persuaded the jury to return life verdicts as to all four of the victims. In short, considering all of the evidence, as well as the cultural and background evidence that Petitioner argues should have been presented, the Court simply is not persuaded that there is a reasonable probability that better testimony by Petitioner’s mother and two sisters, or testimony by Petitioner’s sister, grandmother, and brother would have resulted in a different sentencing verdict.

See, e.g., Beuke,

Harries v. Bell,

417 F.3d 631, 639 (6th Cir.2005).) Again, the Court is mindful that “[t]he petitioner ‘need only show that one juror would have reached a different result to establish prejudice.’ ”

Beuke,

537 F.3d at 644 -45 (quoting G

illard v. Mitchell,

445 F.3d 883, 896 (6th Cir.2006).)

Petitioner’s case is distinguishable from those in which the Sixth Circuit found ineffective assistance of counsel for the failure to investigate and present additional mitigation evidence. The Sixth Circuit has found ineffective assistance where counsel failed to present any evidence or arguments in mitigation.

See e.g., Austin v. Bell,

126 F.3d 843, 849 (6th Cir.1997);

Hamblin v. Mitchell,

354 F.3d 482, 490 (6th Cir.2003);

Rickman v. Bell,

131 F.3d 1150, 1157 (6th Cir.1997) (prejudice inferred because deficiencies were so severe);

Groseclose v. Bell,

130 F.3d 1161, 1166 (6th Cir.1997). But Petitioner’s is not such a case. In

Harries v. Bell,

417 F.3d 631 (6th Cir.2005), the Sixth Circuit found ineffective assistance where counsel limited their mitigation investigation to telephoning the petitioner’s mother and brother; sending requests for information to institutions where the petitioner had been confined; interviewing the petitioner, the petitioner’s co-defendant, and two state

*824

witnesses; declining to obtain a mental health expert despite indications from the petitioner’s mother of mental problems; and failing to adequately investigate the petitioner’s background despite indications of a troubled childhood. Even that case is distinguishable because here, Petitioner’s counsel certainly did more in the way of investigation and presentation and because there is no indication in the record that there were any glaring or obvious leads that Petitioner’s counsel inexplicably failed to follow up with during them investigation.

C. Conclusion.

For the foregoing reasons, the Court is not persuaded that Petitioner’s trial counsel performed unreasonably or to his prejudice by failing to obtain a cultural expert for the culpability and mitigation phases of Petitioner’s trial, by failing to better prepare those family members who did testify at the mitigation hearing, and by failing to call additional family members to testify at the mitigation hearing. The Court would reach that conclusion under either the deferential standard of review set forth in 28 U.S.C. § 2254 (d) or

de novo

review. The Court also concludes, based upon the facts that Petitioner developed and presented and upon this Court’s legal and factual conclusions set forth above, that an evidentiary hearing on this claim is not necessary. Accordingly, Petitioner’s fourth claim for relief and request for an evidentiary hearing are DENIED.

Fifth Ground for Relief:

The suppression of exculpatory, impeachment evidence that leads to the grant of a defense request for a mistrial creates a bar to retrial under the double jeopardy clause as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.

Petitioner’s fifth ground for relief concerns the mistrial and retrial that resulted when, prior to Petitioner’s initial trial before a three-judge panel, the prosecution failed to disclose to Petitioner’s trial counsel a forensic report from the Ohio Bureau of Criminal Identification and Investigation (“BCI”) reflecting that blood analysts found not a single trace of blood on five bags of Petitioner’s clothes that the police had submitted for blood trace analysis. (Petition, Doc. # 6, at ¶¶ 79-109.) Petitioner notes that each of the four victims was shot at close range and that at least one of the victims, Gary Mullins, was shot at a range as close as four inches. Petitioner’s counsel learned of the existence of the exculpatory report during their cross examination of the State’s final witness, even though defense counsel had expressly requested all exculpatory evidence during discovery. Being of the view that a continuance would be insufficient to enable them to remedy the harm from the prosecution’s non-disclosure of the report, given that the nondisclosure prejudiced Petitioner’s waiver of a jury trial and that defense counsel might have employed a vastly different trial strategy had they known of the report, defense counsel felt compelled to request, and were granted, a mistrial. Petitioner argues herein that his retrial violated his right against being placed in double jeopardy as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.

Petitioner states that on January 24, 1991, police submitted five bags of Petitioner’s clothes to BCI for blood analysis and that on January 29, 1991, BCI forensic scientist Margaret Saupe mailed a written report to Detective Roger Knabel reflecting that she had found no blood on Petitioner’s clothing. According to Petitioner, the record reflects that the report was discussed at a pretrial meeting attended by Detective Knabel, Officer Walton, Sergeant Jeffries, and Assistant Butler Coun

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ty Prosecutor Noah Powers. Petitioner further states that prior to his first trial, defense counsel expressly included in their discovery requests any exculpatory evidence and reports and that the prosecution filed a supplemental answer on May 1, 1991 stating in item twenty-two that Petitioner’s clothing had

not

been analyzed for traces of blood. Following disclosure of the report during defense counsel’s cross examination of the State’s final witness, forensic expert Russell McSeveney, the trial court, over the prosecution’s objection, granted a mistrial without prejudice on August 8,1991.

On October 10, 1991, Petitioner moved to bar his retrial under the Double Jeopardy Clause, asserting that the prosecutor’s misconduct had caused the mistrial. Petitioner also asserted that in addition to failing to disclose the exculpatory BCI report, the prosecution additionally failed to disclose favorable impeachment evidence that Petitioner had requested prior to trial, to wit: various statements by Dorothy Jackson at the grand jury hearing that were inconsistent with her testimony at trial, as well as testimony by Heather Garretson placing Jackson on the front porch of Jackson’s home at the morning of the shootings (contradicting Jackson’s testimony that she never returned to her home after she left it around 8:00 a.m.). Petitioner states that the trial court, although characterizing the prosecution’s actions as “questionable,” nonetheless denied his motion to bar retrial.

Citing

Oregon v. Kennedy,

456 U.S. 667, 675-76 , 102 S.Ct. 2083 , 72 L.Ed.2d 416 (1982), Petitioner contends that, although a successful motion by a defendant for mistrial typically does not create a double jeopardy bar to retrial, there is a notable exception to that rule when it appears that the prosecution engaged in misconduct intended to goad the defendant into seeking a mistrial. Petitioner insists that “objective facts and circumstances in the record clearly establish that the prosecutor’s misconduct was intentional.” (Doc. # 6, at 36.) According to Petitioner, the fact that Assistant Prosecutor Noah Powers attended a pretrial meeting during which the BCI blood report was discussed gives rise to an inference that the prosecution intentionally withheld the report, because the prosecution knew about the report and about defense counsel’s request for the report. Petitioner also contends that the prosecution’s failure to disclose the BCI report was not an isolated incident, pointing to the prosecution’s failure to disclose evidence that impeached Dorothy Jackson and presentation of materially false testimony by Jackson as evidence of a pattern of intentional misconduct. Petitioner argues that the prosecution’s misconduct that resulted in the mistrial was so egregious as to bar retrial.

Petitioner also submits that, although the Constitution prohibits a State from reprosecuting a defendant in order to enhance its chance of obtaining a conviction by providing itself with the opportunity to refine and strengthen its case, that is precisely what occurred in Petitioner’s case. Petitioner asserts that the prosecution had the benefit of reviewing the mistrial transcript, identifying weaknesses in its case, “improving” Dorothy Jackson’s testimony in a number of facets, and refining the testimony of the coroner regarding the times of deaths of the victims to better coincide with evidence against Petitioner. Petitioner concludes by insisting that the prosecutions’ misconduct, and the benefits that it received as a result of the misconduct, were multifaceted:

The State placed itself in an advantageous position. If Loza failed to discover the BCI report and impeachment testimony, the State could proceed with the benefit of its nondisclosure. If Loza discovered the evidence at trial, howev

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er, his trial strategy would be so severely undermined that he would have necessarily moved for a mistrial. The State would then re-prosecute after its practice trial with the benefit of honing its case-in-chief.

(Doc. # 6, at ¶ 108.)

In his memorandum in support, Petitioner adds that the Ohio Supreme Court’s rejection of Petitioner’s claim rested on a factual determination that was clearly rebutted by evidence developed during discovery in this habeas corpus proceeding. (Doc. # 62, at 45-47.) Petitioner points out that the Ohio Supreme Court rejected his double jeopardy claim based on its finding that the prosecution had learned of the existence of the BCI report on the morning of the last day of trial and that there was no evidence that the prosecution deliberately or intentionally withheld the report from defense counsel.

(Id.

at 45, citing

Loza,

71 Ohio St.3d at 71 , 641 N.E.2d 1082 .) Petitioner takes aim at that factual finding, noting that Detective Knabel stated in his federal habeas corpus deposition that he had supplied periodic packets of investigative materials to the prosecution and that he had made two copies of his investigative file that included the BCI report and had provided both copies to the prosecution. The fact that Detective Knabel stated during his deposition that he had found two copies of the BCI report in his “back-up file” is important, Petitioner argues, because Detective Knabel had testified during Petitioner’s second trial that the prosecution had Detective Knabel’s “back-up file.” Petitioner also points out that Detective Knabel sat at the prosecutor’s table during the first trial with a copy of his investigative file, meaning that the BCI report was physically present at the prosecutor’s table during the entire first trial. Petitioner asserts that Detective Knabel stated no less than four times during his deposition that the prosecution had received the BCI report before the first trial and that Detective Knabel’s assertion was corroborated by Lieutenant Jeffery’s deposition testimony and Detective Walton’s trial testimony. All of this, combined with the non-disclosure of the other impeachment evidence set forth above, leaves little doubt, according to Petitioner, that the prosecution knew of the existence of the BCI blood report and deliberately withheld it.

Respondent argues in her Return of Writ that the Ohio Supreme Court correctly denied Petitioner’s claim and that this Court should deny habeas corpus relief. (Doc. # 67, at 50-56.) The heart of Respondent’s argument is that there is no evidence in the record that the State deliberately withheld favorable evidence, much less intentionally provoked mistrial, and that absent such evidence, retrial following a mistrial that Petitioner requested and obtained was not barred by the Double Jeopardy Clause. Respondent argues that the Ohio Supreme Court’s decision rejecting Petitioner’s claim was not contrary to clearly established United States Supreme Court and that federal law actually supports denial of Petitioner’s claim. Reiterating her position that the record contains no evidence that the State intentionally provoked a mistrial, Respondent further argues that the Ohio Supreme Court’s decision rejecting Petitioner’s claim was not based on an unreasonable determination of the facts based on the evidence presented. Respondent concludes by arguing that because Petitioner retained primary control over the course of his trial — namely by seeking a mistrial in order to avail himself of a jury trial rather than a bench trial once he learned about the favorable BCI report — his retrial did not violate the Double Jeopardy Clause.

In his Reply Memorandum, Petitioner states that Respondent’

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