Opinion

Cowans v. Bagley

624 F. Supp. 2d 709
2008 U.S. Dist. LEXIS 83040
2008 WL 4452578

Court: District Court, S.D. Ohio
Filed: Sep 30, 2008
Status: Published
Author: Sargus
On the bench: Sargus
Cited by: 7 cases
Authority: More cited than 58.8%

assuming that prophylactic rules, such as that set forth in Miranda, are not grounded in federal constitution and concluding that Griffith applies only to rules required by federal constitution

How later courts described this case

assuming that prophylactic rules, such as that set forth in Miranda, are not grounded in federal constitution and concluding that Griffith applies only to rules required by federal constitution
finding trial court’s readmission in the penalty phase of all culpability phase evidence insufficient to warrant habeas relief, and noting the absence of any clearly established Supreme Court precedent on the issue

Written by the judges who cited it.

The opinion

OPINION AND ORDER

EDMUND A. SARGUS, JR., District Judge.

Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this Court a habeas corpus action pursuant to 28 U.S.C. § 2254 . Petitioner filed his original habeas petition on July 31, 2000 (Doc. # 5) and an amended petition on May 3, 2001 (Doc. # 15). Petitioner amended his petition again on June 12, 2002, to add a claim that he had inadvertently omitted. (Doc. #45.) Finally, on September 9, 2005, this Court issued an Opinion and Order permitting petitioner to amend his petition to add recently-exhausted claims of ineffective assistance of appellate counsel. (Doc. # 72.)

On September 30, 2002, this Court issued an Opinion and Order granting in part and denying in part respondent’s motion to dismiss proeedurally defaulted claims. (Doc. # 49.) Specifically, this Court dismissed as proeedurally defaulted grounds 2(c), 2(f), 2(g), 6, and 11. Subsequently, in a March 26, 2003 opinion and order denying petitioner’s motion to conduct additional discovery, this Court granted respondent’s motion to dismiss ground 10 as proeedurally defaulted. (Doc. # 56.) On September 12, 2006, the Court issued an Opinion and Order granting petitioner’s motion for reconsideration of its procedural default order as to grounds 2(c), 2(f), 2(g), and 6, specifically to consider whether recently-exhausted claims of appellate counsel ineffectiveness constitute cause and prejudice to excuse the default of those claims. (Doc. # 84.) Thus, the Court will revisit those procedural default determinations in the instant order.

The Court permitted limited factual development, first issuing an order on April 18, 2001 granting petitioner’s motion for funds under the criminal justice act to conduct DNA testing, (Doc. # 14), and then issuing an order on December 6, 2001 granting petitioner’s motion for additional funds to complete the DNA testing (Doc. # 29). Petitioner filed a report summarizing the results of the testing on April 2, 2002. (Doc. # 37.) On September 30, 2002, this Court issued an Opinion and Order granting petitioner’s motion to conduct certain discovery. (Doc. #48.) On March 26, 2003, however, the Court issued an Opinion and Order denying petitioner’s request to conduct additional discovery. (Doc. # 56.) And on September 26, 2003, the Court issued an Opinion and Order denying petitioner’s motion for an evidentiary hearing. (Doc. # 60.)

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This case is now ripe for a final decision on the merits of those claims that are properly before the Court: grounds 1, 2(a), 2(b), 2(d), 2(e), 2(h), 2(1), 2®, 2(k), 3, 4, 5, 7, 8, 9, 12, 13, and 14. Additionally, as noted above, the Court will revisit its procedural default determinations as to grounds 2(c), 2(f), 2(g), and 6.

I. Factual and Procedural History

The details of this capital murder and aggravated robbery are set forth in numerous state court opinions, including the Ohio Supreme Court’s published opinion in

State v. Cowans,

87 Ohio St.3d 68 , 717 N.E.2d 298 (1999):

Jessie J. Cowans, appellant, was convicted of the aggravated murder of Clara Swart and sentenced to death.

Mrs. Swart, a sixty-nine-year-old widow, lived alone in a rural section of Clermont County. One day in July 1996, when her son, Timothy, was taking some items to the side of the road to be picked up as trash, Cowans drove up and asked if he could take a glider-type swing that Timothy had placed by the road. Timothy agreed and helped him load the swing onto his truck.

On Wednesday, August 28, 1996, Mrs. Swart’s neighbor Mildred Kilgore went to Mrs. Swart’s house. Kilgore found Mrs. Swart standing outside talking to a man who looked like Cowans. When Kilgore approached, Mrs. Swart told the man that she was leaving with her friend, and he left. After he had gone, Mrs. Swart and Kilgore went inside, and Mrs. Swart said, “Oh, I’m scared. * * * He made me so nervous. * * * He scared me so bad.” Kilgore asked, “Who was it, Clara?” Mrs. Swart replied, “It was the man who came and got the chair [sic] off the garbage a few weeks ago.”

At 8:00 a.m. on Thursday, August 29, a Clermont County Senior Services bus arrived at Mrs. Swart’s house to pick her up. When Mrs. Swart did not respond to the sound of the driver’s horn, the driver went to the door and knocked. She heard some noise inside the house, but Mrs. Swart did not answer the door; nor did Mrs. Swart answer her telephone when the Senior Services office called. Mrs. Swart’s son came to visit her later in the day and found her body.

Mrs. Swart had been strangled with a purse strap, which was still around her neck. An electrical cord had been tied around her neck and to the handle of the refrigerator, and her hands had been tied with a telephone cord. She was still wearing her wedding ring and earrings. Officers found a palm print on a plastic bag covering a blender in Mrs. Swart’s kitchen.

After talking to Kilgore, sheriffs investigators began to consider Cowans a suspect. Investigators discovered that Cowans was on parole, so they called his parole officer, Sandra Higgins, to help them obtain Cowans’s fingerprints.

The investigators believed that they lacked enough evidence to obtain a search warrant for Cowans’s house. However, Higgins decided to search it herself in order to determine whether Cowans had violated his parole. Two deputies helped her. Once of the deputies testified that he found an Emmett Kelly clown figurine in the closet of Cowans’s bedroom. The figurine was later identified as belonging to Mrs. Swart. Subsequently, the deputies obtained Mrs. Cowans’s permission to continue searching. In the closet, they found a small wooden car.

While searching a wooded area behind Cowans’s house, a deputy found other items taken from Mrs. Swart’s house, including a wooden jewelry box. The little wooden car found in Cowans’s

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house appeared to have been broken off the lid of that box.

On the afternoon of September 2, Deputy Sheriff Jim DeCamp used a T-shirt belonging to Cowans to scent a bloodhound at Mrs. Swart’s residence. Once scented, the dog appeared to track the scent from Mrs. Swart’s backyard, over a fence, and for a short distance into a wooded area. The dog then lost the scent. After being rescented with the shirt, the dog appeared to follow it to the vicinity of a fallen tree where the handler was told that other deputies had found Mrs. Swart’s personal property. At this location, which was near the back end of Cowans’s property line, the dog was pulled off the scent. Again the dog was rescented and it continued to Cowans’s Chevrolet Blazer, which was parked at his house.

Mamie Trammel, one of Cowans’s neighbors, testified that she had a conversation with Cowans two days after the murder. Trammel testified that when she asked Cowans if he had heard about the murder, he said, ‘Yeah, isn’t that terrible * * * to hang a lady by the refrigerator with her hands behind her back.” This detail had not been made public by the sheriffs department.

Cowans was arrested on September 2. Deputy Sheriff Robert Evans drove him to the Clermont County Jail on a route that led past Mrs. Swart’s house. Evans slowed down as he passed the house, as he later testified, “just to see what Mr. Cowans would do.” Staring at the house, Cowans began to talk about the case. He complained that, as an “ex-con,” he was being “singled out.” Evans testified that Cowans said he had heard on the news that Mrs. Swart “was hung” and had later heard that she was strangled — information that had not been made public. Cowans also said “that he had been there [at Mrs. Swart’s house] on one occasion * * * for the purpose of picking up a swing.”

While confined in jail, Cowans discussed the charges against him with a fellow inmate, Marvin A. Napier. He told Napier at first that “he had chased some kids out of his backyard” and they “threw [some items] down on the ground. And he * * * went through some stuff and left what he didn’t want and took what he did want.”

Napier testified that Cowans later admitted to killing and robbing Mrs. Swart and gave details consistent with the facts of the case. For example, Napier testified that Cowans said he had found Mrs. Swart in the bathroom and “jerked [her] up off the toilet.” This was consistent with the fact that investigators found urine in the toilet bowl. Napier also testified that Cowans said he had tied Mrs. Swart with the phone cord, strangled her with a purse strap, and “ransacked” the house; also, that an “old people’s bus” arrived while he was there, and “[t]hey knocked on the door.”

Napier further testified that Cowans said he left Mrs. Swart’s house and walked home through the woods, that he went through the stolen property as he went, and that he left most of it in the woods as “junk” but brought home “[s]ome clown figurines” and some jewelry. Cowans allegedly told Napier “that he wished he’d have took the earrings and the wedding band off the lady’s finger.”

Cowans was indicted on four counts of aggravated murder. Count One alleged murder with prior calculation and design under R.C. 2903.01(A). Counts Two through Four alleged felony-murder under R.C. 2903.01(B). Each count carried four death specifications: one under R.C. 2929.04(A)(5), alleging that

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Cowans had a prior murder conviction, and three felony-murder specifications under R.C. 2929.04(A)(7). Other counts charged kidnapping under R.C. 2905.01(A)(2) (to facilitate commission of felony), kidnapping under R.C. 2905.01(A)(3) (with purpose to terrorize or inflict serious physical harm), aggravated robbery, and aggravated burglary.

Cowans was convicted of all counts and specifications. (The prior-conviction specification was tried to the court pursuant to R.C. 2929.022.) After the verdict of guilty was announced, Cowans continued to profess his innocence and refused to attend or participate in the sentencing phase. He refused to present mitigating evidence and asked that the witnesses who were prepared to testify in mitigation also refuse to cooperate. The jury recommended the death sentence, and the trial judge imposed it.

State v. Cowans, supra,

87 Ohio St.3d at 68-71 , 717 N.E.2d 298 .

Petitioner Cowans was indicted by the Clermont County Grand Jury on September 11, 1996. At that time, attorneys R. Daniel Hannon and Timothy Smith were appointed to represent him. On November 21, 1996, petitioner notified the trial court that he wanted his attorneys to withdraw from the case and new counsel to be appointed. The trial court acquiesced and appointed Attorneys Bruce Wallace and Michael Kelly.

In February, 1997, one month before his trial was scheduled to begin, petitioner notified the trial court that he wanted his attorneys to withdraw and new counsel to be appointed. Petitioner was of the view that his attorneys believed that he was guilty and wanted petitioner to lie. The trial court denied petitioner’s motion and petitioner was removed from the courtroom after becoming disruptive. Subsequently, counsel for petitioner, at his express request, asked to withdraw and for new counsel to be appointed. That motion came for a hearing on February 28, 1997, during which counsel explained that they had had disputes with petitioner concerning certain evidence and theories for how to deal with that evidence and petitioner insisted that he could not work with his attorneys. The trial court denied counsel’s request to withdraw.

On March 6, 1997, counsel filed another motion to withdraw and for appointment of new counsel, explaining that they had had disputes with petitioner concerning certain evidence, that petitioner had refused to speak to them, and that the lack of communication was especially complicating their efforts to deal with the recently-revealed evidence that petitioner had allegedly made incriminating statements to a jailhouse informant. The trial court never held a hearing and it does not appear that the trial court ever ruled on that motion.

The culpability phase of the trial commenced on March 25, 1997. The jury began its deliberations on March 31, 1997 and was sequestered during the entirety of those deliberations. On April 1,1997, petitioner was convicted as charged. As the verdicts were being read, petitioner interrupted and asked to leave the proceedings. He was taken to a room where he could view the proceedings via closed circuit television, but he subsequently overturned the television monitor.

Following the verdicts, jurors were sent home for several days prior to the commencement of the sentencing phase. Petitioner had elected to try before the trial court, not the jury, the specification that he had previously been convicted of murder. The trial court heard evidence, during which petitioner was intermittently absent due to his disruptive behavior, and ultimately found petitioner guilty of the specification.

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The sentencing phase of the trial began on April 11, 1997. At that time, counsel for petitioner expressly stated that they wanted neither a presentence investigation report nor a psychological evaluation. Further, petitioner instructed his attorneys to present no mitigation evidence and his friends and family members not to cooperate with his attorneys. After the State proffered evidence and defense counsel explained why they would not be presenting evidence, the jury listened to opening statements, closing arguments, and the trial court’s jury instructions. The jury recommended that petitioner be sentenced to death and, on April 16, 1997, the trial court accepted the jury’s recommendation and sentenced petitioner to death.

Represented by new counsel, petitioner appealed as of right to the Supreme Court of Ohio. On October 20, 1999, the Ohio Supreme Court issued a decision affirming the judgment against petitioner.

State v. Cowans, supra,

87 Ohio St.3d 68 , 717 N.E.2d 298 . Chief Justice Moyer wrote a dissenting opinion in which he expressed his belief that the court should have applied to petitioner’s case the rule set forth in

State v. Ashworth,

85 Ohio St.3d 56 , 706 N.E.2d 1231 (1999), requiring the trial court to determine on the record, when a capital defendant evinces a desire to waive mitigation evidence, that the defendant’s waiver is knowing and voluntary, and that the defendant is competent to effect the waiver.

Cowans, supra

87 Ohio St.3d at 89-97 , 717 N.E.2d 298 (Moyer, C.J., dissenting). The United States Supreme Court denied certiorari on May 1, 2000.

During the time that he was litigating his direct appeal, petitioner also pursued postconviction relief in the state courts. Represented by the Ohio Public Defender’s Office, petitioner filed a postconviction action in the trial court, which action the trial court denied on September 21, 1998. The Ohio Court of Appeals for the Twelfth Appellate District issued a decision affirming the trial court’s judgment denying the postconviction action on September 7, 1999. The Ohio Supreme Court issued an entry on January 16, 2000 declining to accept jurisdiction over petitioner’s appeal, thereby letting stand the decisions of the court of appeals and trial court below.

During the pendency of these habeas corpus proceedings, petitioner, again represented by the Ohio Public Defender’s Office, filed in the Ohio Supreme Court on January 23, 2004, an Application for Delayed Reopening of his direct appeal — the procedure in Ohio for raising claims of ineffective assistance of appellate counsel. The Ohio Supreme Court issued an entry on August 4, 2004 denying the application without opinion.

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.

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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)). 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 now ripe for a final decision on the merits of those claims that are properly before the Court: grounds: grounds 1, 2(a), 2(b), 2(d), 2(e), 2(h), 2(i), 2(j), 2(k), 3, 4, 5, 7, 8, 9, 12, 13, and 14. Additionally, as noted above, the Court will revisit its procedural default determinations as to grounds 2(c), 2(f), 2(g), and 6.

First Ground for Relief:

Petitioner was denied the equal protection and due process of the laws when the Ohio Supreme Court failed to afford petitioner the benefit of the rule in

State v. Ashworth,

85 Ohio St.3d 56 , 706 N.E.2d 1231 (1999).

In his first ground for relief, petitioner argues that his Fourteenth Amendment rights to equal protection and due process were violated when the Ohio Supreme Court failed to apply its decision in

State v. Ashworth,

85 Ohio St.3d 56 , 706 N.E.2d 1231 (1999) to petitioner’s case, which was pending on direct review at the time

Ash-worth

was decided. In

Ashworth ,

the Ohio Supreme Court recognized that “[w]hile Crim.R. 11 addresses what must be done when a person charged with aggravated murder pleads guilty, there is no corollary procedure for the waiver of mitigation.”

Id.

at 61 , 706 N.E.2d 1231 . The Ohio Supreme Court went on to state:

We now hold that in a capital case, when a defendant wishes to waive the presentation of

all

mitigating evidence, a trial court must conduct an inquiry of the defendant on the record to determine whether the waiver is knowing and voluntary. The trial court must decide whether the defendant is competent and whether the defendant understands his or her rights both in the plea process and in the sentencing proceedings. (Citations omitted). The trial court must inform the defendant of the right to

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present mitigating evidence and explain what mitigating evidence is. The court must then inquire of the defendant, and make a determination on the record, whether the defendant understands the importance of mitigating evidence, the use of such evidence to offset the aggravating circumstances, and the effect of failing to present that evidence. After being assured that the defendant understands these concepts, the court must inquire whether the defendant desires to waive the right to present mitigating evidence, and, finally, the court must make findings of fact as to the defendant’s understanding and waiver of rights. (Citation omitted).

Id.

at 62 , 706 N.E.2d 1231 .

The Ohio Supreme Court also made clear that absent a request by counsel or other indicia of incompetence, “[w]e are not holding that a competency evaluation must be done in every case in which a defendant chooses to waive the presentation of mitigating evidence.”

Id.

(citing

State v. Tyler,

50 Ohio St.3d 24, 29 , 553 N.E.2d 576 (1990).) The Ohio Supreme Court further held that when a defendant seeks to waive the presentation of all mitigating evidence, and his competency is brought into issue, the following standard is to be used for determining competency:

A defendant is mentally competent to forgo the presentation of mitigating evidence in the penalty phase of a capital case if he has the mental capacity to understand the choice between life and death and to make a knowing and intelligent decision not to pursue the presentation of evidence. The defendant must fully comprehend the ramifications of his decision, and must possess the ability to reason logically,

ie.,

to choose the means that relate logically to his ends.

Ashworth,

85 Ohio St.3d at 69 , 706 N.E.2d 1231 .

The Ohio Supreme Court decided

Ash-worth

on March 24, 1999, nearly a year after Petitioner Cowans had filed his merit brief to the Ohio Supreme Court and approximately four months after petitioner’s oral argument before the Ohio Supreme Court. The Ohio Supreme Court decided petitioner’s appeal on October 20, 1999, seven months after it had decided

Ash-worth.

Petitioner’s eighth proposition of law on direct appeal challenged, in part, the failure of the trial court to determine whether petitioner’s waiver of the right to present mitigating evidence was knowing and voluntary. Although petitioner had not expressly raised the issue of the applicability of

Ashworth ,

the Ohio Supreme Court of its own volition took note of its holding in

Ashworth

that any waiver of the right to present mitigating evidence had to be knowing and voluntary and that the trial court was required to conduct an inquiry of the defendant on the record. The court then proceeded to set forth what, pursuant to

Ashworth ,

the record must affirmatively demonstrate when a defendant seeks to forgo the presentation of mitigating evidence.

Cowans,

87 Ohio St.3d at 85 , 717 N.E.2d 298 . Concluding that “the procedures used in this case to advise Cowans of the potential consequences of his decision were substantially similar to those adopted in

Ashworth[]

” the Ohio Supreme Court nevertheless conceded that “the trial court failed to address all six

Ashworth

requirements in its colloquy with Cowans.”

Id.

at 86 , 717 N.E.2d 298 . Specifically, the Ohio Supreme Court found that the record demonstrated neither an explanation by the trial court to petitioner of what mitigating evidence was nor a finding that petitioner both fully understood the ramifications of failing to present mitigating evidence and desired to waive his rights.

Id.

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The Ohio Supreme Court concluded, however, that “[w]hile this procedure fell short of that established in

Ashworth ,

we hold that our ruling in

Ashworth

is prospective only. We cannot hold the trial court accountable for not following a procedure that was not established or even foreshadowed, when the case was tried.”

Id.

The court went on to explain:

We are not holding today that substantial compliance is enough to satisfy the requirements of

Ashworth ;

however, the trial court here, like the trial court in

Ashworth ,

did engage the defendant in a colloquy concerning the waiver of mitigation, even though no guidelines were in place when Cowans was tried. Given the content of the trial court’s colloquy, there is nothing to indicate that Cowans did not knowingly and voluntarily relinquish his right to present mitigating evidence. Since the decision in

Ashworth

is prospective only, the failure to comply with

all

of the procedural requirements set forth in

Ashworth

is not error in this case.

To sum up: Cowans’s desire to waive mitigation did not automatically require a competency hearing, nor did the record create a doubt as to his competence such as to require a competency hearing; the record indicates that Cowans’s waiver was knowing and voluntary; and, although the specific procedural requirements of

State v. Ashworth

were not complied with in full, they are prospective only and hence do not apply here. Accordingly, Cowans’s eighth proposition of law is overruled.

Cowans,

87 Ohio St.3d at 86 , 717 N.E.2d 298 .

Petitioner argues herein that

Ashworth

created a bright line rule to be applied in capital cases where the defendant seeks to waive presentation of all mitigating evidence and that the Ohio Supreme Court erred in not applying

Ashworth

to his own case, which was still pending on direct appeal. The Ohio Supreme Court’s holding in his own case that

Ashworth

was to be given only prospective application and failing to apply it to criminal cases pending on direct review, petitioner argues, “violates basic norms of constitutional adjudication.” (First Amended Petition, Doc. # 15, at ¶ 5.) Characterizing the Ohio Supreme Court’s failure to apply

Ashworth

to his own case as “[selective application of new rules[,]” petitioner argues that he was denied his rights to due process and equal protection embodied in the Fourteenth Amendment.

(Id.

at ¶ 8.)

Respondent offers several arguments against granting relief on petitioner’s first ground. “Initially,” respondent argues, “it should be noted that this argument only involves state law, and as such, fails to state a cognizable claim in habeas corpus.” (Return of Writ, Doc. # 36, at 28.)

The crux of respondent’s opposition, however, is that the United States Supreme Court decision of

Griffith v. Kentucky,

479 U.S. 314, 328 , 107 S.Ct. 708 , 93 L.Ed.2d 649 (1987), requiring new rules for the conduct of criminal prosecutions to be applied retroactively to all cases pending on direct review or not yet final, applies only to newly declared constitutional rules, not to “every state-declared

common law

rule.” (Doc. # 36, at 29.) Respondent argues that because the

Ash-worth

decision had nothing to do with the constitutionality of Ohio’s criminal procedure, the Ohio Supreme Court was not required to apply it to petitioner’s case. (Doc. #36, at 29 (discussing

Mason v. Duckworth,

74 F.3d 815 (7th Cir.1996)).) Respondent further argues that the principles of

Griffith v. Kentucky

do not mandate retroactive application of

Ashworth

to petitioner’s case because

Ashworth

enunciated a new state-declared common law

*732

rule, rather than establishing new constitutional rule. (Doc. # 36, at 30.)

A related argument advanced by respondent against granting relief on petitioner’s claim is that notwithstanding what the Ohio Supreme Court mandated in

Ash-worth,

trial courts are not constitutionally required under applicable federal law to conduct a record colloquy with a defendant who seeks to waive his right to a jury trial. Respondent reasons from that jurisprudence that

Ashworth

simply established a state procedural rule to ensure a knowing and voluntary waiver of the right to present mitigation, which does not rise to a constitutional magnitude sufficient to require retroactive application to cases pending on direct review pursuant to

Griffith v. Kentucky.

Respondent goes on to argue at length that, contrary to petitioner’s assertions, the record demonstrates both that petitioner was competent to waive his right to present mitigating evidence and that petitioner made a knowing, intelligent, and voluntary waiver of that right. (Doc. # 36, at 31-36.) In so arguing, respondent appears to concede without equivocation that, “[t]he Eighth Amendment guarantees the right to present mitigating evidence of a sentence.” (Doc. # 36, at 31 (citations omitted).) Respondent argues that petitioner failed to point to any actual indica of incompetence in the trial record that would have alerted either the trial court or his own defense attorneys to question his competency, asserting that petitioner’s decision not to participate in the presentation of mitigating evidence and to instruct any potential witnesses not to cooperate do not, without more, demonstrate incompetence. (Doc. # 36, at 34.) Respondent further argues that petitioner fails to provide evidence that he did not knowingly and intelligently waive his right to present mitigating evidence. Specifically, respondent asserts that it is reasonable to infer from the fact that defense counsel were prepared to go forth with a mitigation case that petitioner was informed, during that process, of what constituted mitigation evidence, and that the totality of the circumstances demonstrates that petitioner understood the ramifications for waiving his right to present mitigation evidence — • namely, that the jury was likely to recommend the death penalty. (Doc. # 36, at 35.)

Respondent’s final argument is that “because there is no clearly established case directly on point, this court may not grant habeas relief on this claim under the ‘new rule’ doctrine of

Teague v. Lane,

489 U.S. 288, 297-98 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989).” (Doc. # 36, at 35.) In support, respondent cites

Stewart v. LaGrand,

526 U.S. 115, 119 , 119 S.Ct. 1018 , 143 L.Ed.2d 196 (1999)

(per curiam), in

which the United States Supreme Court overruled a decision by the United States Court of Appeals for the Ninth Circuit holding that Eighth Amendment protections may not be waived, stating that such a holding would create and apply a new procedural rule in violation of

Teague .

(Doc. # 36, at 36.)

In his traverse, petitioner takes issue with respondent’s argument that the determination of whether the rule created in

Ashworth

should apply retroactively to cases pending on direct review turns on whether it was a “rule of constitutional procedure” or a “state-declared common law rule.” (Traverse, Doc. #42, at 6 (quoting Return of Writ, Doc. # 36, at 30-33).) Petitioner dismisses respondent’s position, arguing that “the distinction between a constitutional right and the procedure used to prevent the violation of the right is surely a distinction without a difference.” (Doc. # 42, at 6.) In so arguing, petitioner emphasizes that the right to

*733

present mitigating evidence is a constitutional right and that even respondent admits the same.

(Id.)

Petitioner reasons that any waiver of the right to present mitigating evidence must be knowing, intelligent, and voluntary, and that even assuming the Constitution does not require a

particular

procedure, it nevertheless requires

some

procedure to ensure that any waiver thereof comports with due process.

(Id.

at 6-7.) Petitioner goes on to argue:

Prior to

Ashworth ,

Ohio courts had

no procedure

to ensure a voluntary waiver of the right to present evidence in mitigation of a sentence.

Ashworth

established the

minimum

inquiry that must be present in the record in order for the courts to determine whether the waiver was knowing, intelligent and voluntary. To this extent then, the

Ashworth

rule is of “constitutional magnitude.” (Emphasis in original.)

(Doc. #42, at 7.) Petitioner argues that even if. this Court were to conclude that the

Ashworth

rule is not of constitutional magnitude, this Court would still be required to determine whether petitioner’s waiver of his right to present mitigating evidence comported with due process. The record, according to petitioner, does not support such a finding.

Part and parcel to any determination whether his waiver comported with due process, according to petitioner, is a determination whether he was competent to voluntarily relinquish his rights. (Doc. #42, at 9.) In this regard, petitioner argues that he can prevail on both a claim of procedural competency, because the record established a

bona fide

doubt regarding his competence to stand trial into which the trial court failed to inquire, and a claim of substantive competency, because he “probably was not competent” to voluntarily waive his right to present mitigating evidence. (Doc. # 42, at 11.) Germane to both inquiries, according to petitioner, is the wealth of indicia in the record sufficient to alert a reasonable judge that petitioner’s competency was in doubt. Citing at length facts set forth in Chief Justice Moyer’s dissenting opinion, (Doc. # 42, at 12-13, 14-18), petitioner argues flatly that “[d]ue process is violated where a hearing is not held despite the presence of evidence creating doubt regarding a Defendant’s competence.” (Doc. #42, at 14.) Chief Justice Moyer’s dissenting opinion included observations that petitioner’s disruptive behavior could have been a rationally-based, but misguided, protest against the criminal proceedings against him or the result of instability, and that petitioner’s outbursts demonstrated an inability to control his behavior that also might have stemmed from a mental disorder. (Doc. # 42, at 14.) Chief Justice Moyer also emphasized incidents in the record demonstrating petitioner’s “unreasonable belief, approaching paranoia,” that everyone involved in the proceedings against him— from his defense attorneys and the prosecutors, to the trial court and the jury, to the female law enforcement officer who controlled the stun belt that he was compelled to wear — was working against him. (Doc. # 42, at 14-18.) Petitioner argues that, because the trial court failed to conduct a hearing in the face of the wealth of indicia calling petitioner’s mental state into question, its competency determination is not entitled to a presumption of correctness. (Doc. # 42, at 19.)

Petitioner concludes by arguing that the record is either silent or equivocal on all of the factors identified in

Ashworth

as being critical to the determination of competency and voluntariness and that this Court may not presume a knowing, intelligent, and voluntary waiver based on such a record. (Doc. # 42, at 20-22.) Specifically, petitioner insists (1) that the trial court engaged not in a colloquy with petitioner, but

*734

in an argument in seeking to control petitioner’s behavior; (2) that petitioner was never advised on the record about this right to present mitigating evidence; (3) that the trial court never explained to petitioner what mitigating evidence was; (4) that the trial court never inquired into petitioner’s understanding of mitigating evidence, of its role in offsetting aggravating circumstances, or of the effect of failing to present it; and (5) that the trial court never made findings of fact that petitioner understood and waived his rights. (Doc. # 42, at 21-22.)

In a reply to petitioner’s traverse, respondent not only reiterates her initial arguments against granting relief on petitioner’s first ground, but also assails as “somewhat misguided” petitioner’s “continued reliance” on Chief Justice Moyer’s dissent in support of his claim that his waiver was invalid. (Doc. # 43, at 4.) Respondent asserts that the record reviewed in its entirety, as opposed to the several, isolated outbursts by petitioner that Chief Justice Moyer discussed at length in his dissent, fails to support petitioner’s assertion that his waiver was not knowing, intelligent, and voluntary. Specifically, respondent asserts that it is fair to presume that, through defense counsel’s process of preparing witnesses for mitigation, petitioner was informed about the nature and content of mitigating evidence. Respondent further asserts that the trial court clearly informed petitioner that his refusal to present any mitigating evidence would almost surely result in the jury imposing a death sentence. Thus, according to respondent, petitioner has not established that he was unaware of the consequences of waiving the presentation of mitigating evidence.

In determining whether the Ohio Supreme Court’s decision denying petitioner’s claim on direct appeal that he did not competently execute a knowing, intelligent, and voluntary waiver of his right to present mitigating evidence, this Court must address the following issues: (1) whether the Ohio Supreme Court erred in failing to apply its

Ashworth

decision to petitioner’s case and, if so, whether the error warrants habeas corpus relief; (2) whether petitioner’s waiver of his right to present mitigating evidence comported with Due Process; and (3) whether petitioner was competent to execute a valid waiver of his right to present mitigating evidence.

A. The Ohio Supreme Court’s Failure to Apply

Ashworth

The initial query before the Court is whether the Ohio Supreme Court was obligated to apply

Ashworth

retroactively to petitioner’s case, which was pending on direct appeal at the time the Ohio Supreme Court decided

Ashworth .

Griffith v. Kentucky,

479 U.S. 314, 328 , 107 S.Ct. 708 , 93 L.Ed.2d 649 (1987), the United States Supreme Court held that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Ohio law on retroactivity appears to fall in line with

Griffith. See, e.g., State v. Reynolds,

79 Ohio St.3d 158, 162 , 679 N.E.2d 1131 (1997) (declining, in the interest of finality, to apply new decision retroactively to case on collateral review);

State v. Hill,

160 Ohio App.3d 324, 334 , 827 N.E.2d 351 (Ohio App. 8 Dist.2005) (applying

Crawford

Confrontation Clause case to state criminal case pending on direct appeal at the time

Crawford

was announced);

State v. Jenkins,

42 Ohio App.3d 97, 101 , 536 N.E.2d 667 (Ohio App. 8 Dist.1987) (following

Griffith

in declining to apply new decision to state case on collateral review).

*735

Griffith

itself did not define what constitutes a “new rule for the conduct of criminal prosecutions” sufficient to require retroactive application. But it left some clues. For one thing, the Supreme Court began its discussion by setting forth the history of its retroactivity jurisprudence as to

“constitutional

rules of criminal procedure.”

Griffith,

479 U.S. at 320 , 107 S.Ct. 708 (emphasis added). Further, the Supreme Court held in

Griffith

that its decision in

Batson v. Kentucky,

476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), which required a prosecutor to articulate a neutral, fact-based justification for use of a peremptory challenge during

voir dire

which limited or eliminated a racial group, was to be applied retroactively to all cases pending on direct review or not yet final. Accordingly, many courts, state and federal, have concluded that

Griffith’s

holding applies only to new

constitutional

rules for the conduct of criminal prosecutions, and not to rules involving or based upon state law or procedural rules distinct from or broader than the underlying constitutional rights they were designed to protect. In answering the question before it — namely, whether the Ohio Supreme Court violated Petitioner Cowans’s rights to Due Process and Equal Protection when it failed to apply its

Ashworth

decision to his case-the Court finds it helpful to examine a number of those decisions.

When the Ohio Supreme Court declined to apply its

Ashworth

decision to petitioner’s case on direct appeal, it did not cite any retroactivity cases or discuss any retroactivity principles. Rather, it stated that, “[w]e cannot hold the trial court accountable for not following a procedure that was not established, or even foreshadowed, when the case was tried.”

Cowans,

87 Ohio St.3d at 86 , 717 N.E.2d 298 . Most of the state court decisions that this Court has reviewed, in which the state courts addressed the issue squarely, concluded that

Griffith v. Kentucky

does not govern a state court’s retroactivity analysis as to state supreme court decisions announcing new rules not based on the federal constitution.

At issue in

Taylor v. State,

10 S.W.3d 673 (Tex.Crim.App.2000), was whether the abolition of the juvenile exception to the accomplice witness rule, announced in the decision of

Blake v. State,

971 S.W.2d 451 (Tex.Crim.App.1998), should apply retroactively to cases not yet final on direct review. Texas’s highest court answered that query in the negative, explaining:

The Supreme Court’s retroactivity analysis for federal constitutional errors is binding upon the states when federal constitutional errors are involved. (Citation omitted). Conversely,

Griffith

and

Teague

do not bind the states on the retroactivity of new rules under state laws.

Taylor,

10 S.W.3d at 679 .

People v. Sexton,

458 Mich. 43 , 580 N.W.2d 404 (1998), involved three cases consolidated to address the issue of whether to apply retroactively to cases on direct review the Michigan Supreme Court’s

People v. Bender,

452 Mich. 594 , 551 N.W.2d 71 (1996), decision requiring police to inform a suspect when retained counsel is available for consultation. The

Bender

decision itself stated that the rule was not required by the state constitution and announced that, just as the Supreme Court of the United States had done in

Miranda v. Arizona,

it was creating a prophylactic rule. In ultimately deciding to use a three-part analysis, rather than

Griffith ,

for determining whether to give its

Bender

decision retroactive effect to cases pending on direct review, the Michigan Supreme Court concluded,

“Griffith

is not applicable to the cases at bar because it applies only to rules of criminal procedure that are

*736

grounded on the United States Constitution.”

Sexton,

458 Mich. at 54 , 580 N.W.2d at 410 .

Cooper v. State,

889 P.2d 293 (Okl.Cr.1996),

rev’d on other grounds,

517 U.S. 348 , 116 S.Ct. 1373 , 134 L.Ed.2d 498 (1996), the defendant challenged the fact that the trial court had given a standard instruction on inferences able to be drawn from a defendant’s flight. In so challenging, the defendant sought the benefit of retroactive application to his case the

Mitchell v. State,

876 P.2d 682 (Okl.Cr.1994), decision, in which Oklahoma’s high court had decided that such instructions were improper where the defendant had not explained his departure. The court rejected the defendant’s reliance on

Griffith v. Kentucky,

stating:

“Griffith

and the retroactivity principle is indeed applicable in all questions concerning federal questions. However, the Supreme Court has never held we must apply the same standard to holdings by this Court dealing with issues of state law.”

Cooper,

889 P.2d at 308 .

Farbotnik v. State,

850 P.2d 594 (Wyo.1993), the defendant sought retroactive application to his case on direct review of the Wyoming Supreme Court’s

Bearpaw v. State,

803 P.2d 70 (1990), decision announcing the requirements for a complete record necessary for direct appeal. The Wyoming Supreme Court framed the issue before it as follows:

The effective debate is whether

Bear-paw

articulates a constitutional right with respect to a complete record in a criminal case or whether, on the other hand,

Bea'rpaw

represents the exercise of this court’s supervisory power. Retrospective application normally would be associated with a constitutional proposition, but a prospective application is generally indicated for rules arising out of the court’s supervisory power except for those rules that are intended to substantially improve the fact finding at trial.

Farbotnik,

850 P.2d at 597 . After concluding that the defendant’s record complied with federal due process mandates and rejecting the defendant’s attempt to inject constitutional principles into its

Bearpaw

decision, the court elected to follow the three-part analysis set forth in

Stovall v. Denno,

388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 (1967), for determining whether to give Bearpaw retroactive effect to cases pending on direct appeal. In using that analysis, rather than Griffith, the court explained:

The application of

Griffith

is limited, however, to new rules of criminal procedure that “(1) are binding on the federal courts pursuant to the Supreme Court’s supervisory powers in the federal system, or (2) are binding on state and federal courts as a matter of federal constitutional law.”

People v. Carrera,

49 Cal.3d 291 , 261 Cal.Rptr. 348, 369-70 , 777 P.2d 121, 142 (1989);

People v. Murtishaw,

48 Cal.3d 1001 , 258 Cal.Rptr. 821 , 773 P.2d 172 (Cal.1989). If neither of those conditions pertains, a state court is free to define the limits of prospective or retroactive application of any precedent because the constitution of the United States is silent on that issue. (Citations omitted).

Farbotnik,

850 P.2d at 602 .

The issue before New York’s highest court in

People v. Mitchell,

80 N.Y.2d 519 , 591 N.Y.S.2d 990 , 606 N.E.2d 1381 (1992), was whether to apply to the defendant’s case on direct appeal its

People v. Antommarchi,

80 N.Y.2d 247 , 590 N.Y.S.2d 33 , 604 N.E.2d 95 (1992), decision, decided the same day, concerning the right of a defendant to be present for certain voir dire questioning. The court concluded that

*737

Griffith

was not controlling because, “[i]f no Federal constitutional principles are involved, however, the question of retroactivity is one of State law.”

Mitchell,

80 N.Y.2d at 526 , 591 N.Y.S.2d 990 , 606 N.E.2d 1381 . The court went on to conclude that it had decided

Antommarchi

as a matter of state law because the basis of the decision was found in New York’s criminal procedural law. In so concluding, the court explained: “[ajlthough the statute has underlying due process concerns, its protective scope is broader than the constitutional rights it encompasses.”

Id.

(citations omitted).

State v. Royer,

436 N.W.2d 637 (Iowa 1989), the defendant urged the Iowa Supreme Court to apply retroactively to his case on direct appeal its

State v. Jeffries,

430 N.W.2d 728 (Iowa 1988) decision regarding the standard trial courts were to follow when deciding whether to give a lesser included offenses instruction. The state urged the court to use a three-part analysis for determining whether

Jeffries

should be applied. The Iowa Supreme Court applied

Jeffries

to the defendant’s case, but not because it felt obligated by

Griffith v. Kentucky

to do so, explaining: “Although we are not required to follow the

Griffith

case because lesser-included offenses do not infringe on a constitutional right, the reasoning adopted therein is applicable to this situation.”

Royer,

436 N.W.2d at 640 n. 2.

The question before the California Supreme Court in

People v. Carrera,

49 Cal.3d 291 , 261 Cal.Rptr. 348 , 777 P.2d 121 (1989), was whether to apply retroactively to the defendant’s case on direct appeal its

De Lancie v. Superior Court,

31 Cal.3d 865 , 183 Cal.Rptr. 866 , 647 P.2d 142 (1982), decision recognizing a statutory right of privacy for pretrial detainees. The California Supreme Court had held in

Donaldson v. Superior Court,

35 Cal.3d 24 , 196 Cal.Rptr. 704 , 672 P.2d 110 (1985), that its

De Lancie

decision was inapplicable to antecedent conduct, but that was before the United States Supreme Court issued its

Griffith v. Kentucky

decision. Looking at the issue in light of

Griffith ,

the California Supreme Court concluded:

We are not compelled to follow

Griffith ,

as it specifies only the rule of retroactivity that the Supreme Court has decreed for those new rules of criminal procedure it announces that (1) are binding on the federal courts pursuant to the Supreme Court’s supervisory powers in the federal system, or (2) are binding on state and federal courts as a matter of federal constitutional law. That is, nothing in

Griffith

purports to establish a new rule of retroactivity for rules of criminal procedure founded on state constitutional or statutory law. (Citation omitted).

Carrera,

49 Cal.3d at 326-27 , 261 Cal.Rptr. 348 , 777 P.2d 121 .

Commonwealth v. Waters,

400 Mass. 1006 , 511 N.E.2d 356 (1987), the Massachusetts Supreme Court considered whether

Griffith v. Kentucky

required it to apply to the defendant’s case its

Commonwealth v. Allen,

395 Mass. 448 , 480 N.E.2d 630 (1985), decision requiring a judicial determination of the voluntariness of a defendant’s statements whenever the issue is raised. The court declined, explaining as follows:

From our reading of

Griffith ,

we conclude that this holding is ancillary to the constitutional rule of

Batson v. Kentucky,

476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), and is not based on equal protection or due process grounds. Accordingly,

Griffith

does not require this court to give retroactive application to rules that are not based on the Federal Constitution.

*738

Waters,

400 Mass. at 1007 , 511 N.E.2d at 357 .

Farthing v. Commonwealth,

NO.2002-CA-002283-MR, 2004 WL 758337 (Ky.App. Apr. 9, 2004), the Kentucky Court of Appeals declined to apply retroactively a Kentucky Supreme Court decision,

Kotila v. Commonwealth,

114 S.W.3d 226 (Ky.2003), interpreting a Kentucky statute setting forth the essential elements for a conviction for complicity to manufacture methamphetamine. Although the appellate court appeared to base its decision primarily on the defendant’s failure to preserve his insufficiency-of-the-evidence claim for appeal, stating, “[a] new decision should not be applied retroactively unless the issue was properly preserved for appellate review,” 2004 WL 758337 at * 7, the appellate court also rejected the defendant’s

Griffith v. Kentucky

argument, stating, “Farthing’s reliance on

Griffith

is misplaced, however, as

Griffith

applies only to rules of criminal procedure that are grounded on the United States Constitution.”

Id.

at n. 45 (citations omitted).

By way of contrast, in

Smith v. State,

598 So.2d 1063 (Fla.1992), the Florida Supreme Court appeared not to distinguish between constitutional and non-constitutional rules in determining that

Griffith v. Kentucky

required retroactive application of any new rules of criminal procedure to cases not yet final on direct review. At issue was whether to give retroactive effect to the Florida Supreme Court’s

Pope v. State,

561 So.2d 554 (Fla.1990), decision, in which that court held that when an appellate court reverses a departure sentence because of the absence of written reasons for the departure, the court must remand the case for resentencing with no possibility of departure from the guidelines. The Florida Supreme Court decided to apply

Pope

to the defendant’s case, explaining:

Thus, we hold that any decision of this Court announcing a new rule of law, or merely applying an established rule of law to a new or different factual situation, must be given retrospective application by the courts of this state in every case pending on direct review of not yet final.

Smith,

598 So.2d at 1066 . In so holding, the Florida Supreme Court qualified that the claim at issue had to have been preserved for appellate review.

Murtishaw v. Woodford,

255 F.3d 926 (9th Cir.2001), the petitioner argued that he was entitled to habeas corpus relief based on the failure of the California Supreme Court to apply to his case on direct appeal its

People v. Flannel,

25 Cal.3d 668 , 160 Cal.Rptr. 84 , 603 P.2d 1 (1979), decision. In

Flannel ,

the California Supreme Court held that an honest though unreasonable belief of the need for self-defense is sufficient to negate the existence of malice and that the trial court must instruct the jury as much when the evidence warrants it. The California Supreme Court had declined to apply

Flannel

to Murtishav/s case, holding that

Griffith

applied only to rules based on the federal Constitution or upon the federal supervisory power, and that “[w]e need not extend this analysis to rules of criminal procedure derived solely from state law.”

People v. Murtishaw,

48 Cal.3d 1001, 1013 , 258 Cal.Rptr. 821 , 773 P.2d 172 (1989). The Court of Appeals for the Ninth Circuit agreed with the California Supreme Court’s analysis, explaining:

Griffith

requires retroactive application only of “new constitutional rules of criminal procedure,”

Griffith,

479 U.S. at 322 , 107 S.Ct. 708 , 93 L.Ed.2d 649 . It does not require retroactive application of every new state-declared common law. Murtishaw argues that

Flannel

was implicitly based on constitutional

*739

principles because it contained overtones of due process. The

Flannel

court, however did not cite to the federal or state Constitution in reaching its decision that trial courts must give

sua sponte

instructions of the unreasonable self-defense theory. (Citation omitted). Furthermore, in

Murtishaw II,

the California Supreme Court expressly held that the

Flannel

rule was based on state common law, not on the Federal Constitution. (Citation omitted). Murtishaw cannot cite to any authority indicating that the federal constitution requires a

sua sponte

instruction on the imperfect self-defense theory.

Murtishaw v. Woodford,

255 F.3d at 956 .

United States ex rel. Franklin v. Gilmore,

993 F.Supp. 1162 (N.D.Ill.1998), involved a habeas corpus action challenging the failure of the Illinois Supreme Court to apply retroactively to petitioner’s case on direct appeal a new Illinois Supreme Court decision,

People v. Gacho,

122 Ill.2d 221 , 119 Ill.Dec. 287 , 522 N.E.2d 1146 (1988), requiring the trial court to instruct the jury in any case where the defendant was convicted of two or more murders that a natural life sentence was mandatory if the jury did not impose the death penalty. Citing

Griffith v. Kentucky,

the petitioner argued that the state courts had erred in not applying its

Gacho

decision to his case in violation of his rights under the Fourteenth Amendment. The District Court for the Northern District of Illinois rejected the petitioner’s argument because

Griffith

was limited in its scope “to new rules of federal constitutional magnitude.”

United States ex rel. Franklin,

993 F.Supp. at 1178 (citation omitted). Noting that another Illinois Supreme Court decision had construed the right to a natural life instruction as a statutory right rather than a constitutional right, the district court explained that, “[sjtate courts are entitled to refuse to apply new state court decisions retroactively, and the Supreme Court has ‘reemphasize[d] that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.’ ”

Id.

(quoting

Estelle v. McGuire,

502 U.S. 62, 67-68 , 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991)).

Mason v. Duckworth,

74 F.3d 815 (7th Cir.1996), involved a habeas corpus action in which the petitioner had challenged his conviction based on the failure of Indiana’s highest court to apply to his case on direct appeal its

Modesitt v. State,

578 N.E.2d 649 (Ind.1991), decision.

Modesitt

overruled a previous decision and adopted Fed. R.Evid. 801(d)(1)(A), which added a requirement for admissibility of certain out-of-court statements.

Modesitt

expressly stated that it was to be applied only prospectively. The Court of Appeals for the Seventh Circuit rejected the petitioner’s argument, based on

Griffith v. Kentucky,

that

Modesitt

should have been applied retroactively to his case on direct appeal, explaining, “[a]s Judge McKinney in the district court noted, however, there is an ‘explicit caveat’ to the holding:

Griffith

only applies to new rules of federal constitutional magnitude.”

Mason,

74 F.3d at 818 . Determining that Modesitt’s overruling of the previous controlling decision had nothing to do with the constitutionality of that decision and everything about curbing abuse and harmonizing Indiana’s evidentiary rules with those of other jurisdictions, the Seventh Circuit concluded that, “[t]his change in the rules of evidence is simply not one of constitutional proportions, and for that reason

Griffith

does not apply.”

Id.

at 819.

Lackey v. Scott,

28 F.3d 486 (5th Cir.1994), the habeas corpus petitioner argued that the state’s highest court had violated his constitutional rights by failing to apply retroactively to his case on direct

*740

appeal a new state decision,

Geesa v. State,

820 S.W.2d 154 (Tex.Crim.App.1991), requiring a definition of the term “reasonable doubt” in jury instructions in criminal trials. The Texas Court of Criminal Appeals also ruled in

Geesa

that the decision would apply only prospectively. The petitioner argued that

Geesa

was based on federal constitutional law and that, accordingly,

Griffith v. Kentucky

required that it be given retroactive application to cases not yet final on direct appeal. The Fifth Circuit rejected the petitioner’s argument, holding that, “[cjontrary to Lackey’s assertions, the rule announced in

Geesa

was not required by the federal constitution or law. (Citations omitted). Thus, the federal retroactive principles discussed in

Griffith

have no bearing on the state’s application of its new rule. (Citation omitted).”

Lackey,

28 F.3d at 491 . The Fifth Circuit also rejected the petitioner’s argument that the failure to give

Geesa

retroactive application under

Griffith

principles violated his Equal Protection rights, reasoning that the petitioner had failed to attempt to demonstrate that the state had no rational basis for giving

Geesa

only prospective effect.

Diggs v. Owens,

833 F.2d 439 (3rd Cir.1987), the petitioner argued that he was entitled to habeas corpus relief because he had been tried for first degree murder and kidnapping in Pennsylvania in violation of several articles of the Interstate Agreement on Detainers Act (IADA). The petitioner’s claim was largely based on

United States v. Mauro,

436 U.S. 340, 349 , 98 S.Ct. 1834 , 56 L.Ed.2d 329 (1978), wherein the Supreme Court held, with qualifications, that a writ of habeas corpus

ad prosequendum

was not a detainer for purposes of the IADA. However, the Third Circuit had held in

United States v. Williams,

615 F.2d 585, 592-93 (3rd Cir.1980), that

Mauro

was not to be applied retroactively. The petitioner argued that

Griffith v. Kentucky

required that

Mauro

be applied retroactively to his case. The Third Circuit rejected his argument, explaining:

Griffith, however, was concerned with the retroactive application of the constraints on a prosecutor in jury selection established in

Batson v. Kentucky,

476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), and thus dealt with constitutionally mandated procedures. * * * Accordingly, we hold that

Griffith

should be confined to constitutional rules of criminal procedure and thus does not require retroactive application of new procedural decisions not constitutionally grounded.

There is no reason to apply the

Griffith

constitutional retroactivity holding here as the IADA is “nothing more that a set of procedural rules” and remains distinct from the rights it was fashioned to serve.

Diggs,

833 F.2d at 442 (quoting

United States v. Palmer,

574 F.2d 164, 167 (3rd Cir.1978)).

The weight of authority persuades this Court that the Ohio Supreme Court was required to apply its

Ashworth

decision to Petitioner Cowans’s case on direct appeal

only

if it can be said that the

Ashworth

decision was constitutionally mandated. The parties appear to agree. Respondent argues that the

Ashworth

rule announced by the Ohio Supreme Court is merely a state-declared common law rule that does not deserve or require retroactive application under

Griffith .

Petitioner, on the other hand, argues that the

Ash-worth

rule is of constitutional magnitude because it establishes procedures to ensure that any waiver by a capital defendant of the fundamental right to present mitigation evidence is entered knowingly, intelligently, and voluntarily.

*741

The Court begins its analysis by examining what the

Ashworth

court itself stated about the rule it was creating, and, more specifically, whether the

Ashworth

court regarded the rule as a constitutionally mandated rule or something less. Noting that it had never addressed a situation in which a defendant convicted of death-eligible aggravated murder sought to waive the presentation of all mitigation evidence, the

Ashworth

court began its analysis referencing only state criminal law: “While Crim. R. 11 addresses what must be done when a person charged with aggravated murder pleads guilty, there is no corollary procedure for the waiver of mitigation.”

Ashworth,

85 Ohio St.3d at 61 , 706 N.E.2d 1231 . In prefacing the rule it was about to create, the court neither cited the federal or state constitution, nor discussed constitutional principles: “In this case the procedures followed by the trial court ensured that Ashworth made a knowing and voluntary waiver of his presentation of mitigating evidence. These procedures provide a foundation for guidelines to assist trial courts in dealing with a situation such as the one presented here.”

Id.

at 62 , 706 N.E.2d 1231 . The absence of any reference to the constitution or constitutional principles infers that

Griffith v. Kentucky

does not require that retroactive effect be given to the rule for cases pending on direct review.

See Murtishaw v. Wood-ford, supra,

255 F.3d at 956 (noting that the decision creating the new rule at issue failed to discuss or cite the federal or state constitution and that the petitioner could not cite to any authority indicating that the federal constitution required a

sua sponte

instruction on the imperfect self-defense theory).

Requirements of an on-the-record determination that a waiver is knowing and voluntary historically are reserved for waivers of fundamental constitutional rights. The

Ashworth

court did not shy away from that terminology: “We now hold that in a capital case, when a defendant wishes to waive the presentation of

all

mitigating evidence, a trial court must conduct an inquiry of the defendant on the record to determine whether the waiver is knowing and voluntary.”

Ashworth,

85 Ohio St.3d at 62 , 706 N.E.2d 1231 .

That said, the United States Supreme Court recently used language suggesting that the right to present mitigating evidence is not so fundamental as to require any waiver thereof to be knowing, intelligent, and voluntary. In

Schriro v. Landrigan,

550 U.S. 465 , 127 S.Ct. 1933 , 167 L.Ed.2d 836 (2007), the Supreme Court held that the district court did not abuse its discretion in refusing to hold an evidentiary hearing on the petitioner’s claim of ineffective assistance of counsel stemming from counsel’s failure to investigate and present mitigating evidence because the petitioner had interfered with counsel’s investigation and presentation. Regarding the Ninth Circuit’s determination that the record did not indicate that the petitioner’s decision not to present mitigating evidence was “informed and knowing,” the Supreme Court remarked, “We have never imposed an ‘informed and knowing’ requirement upon a defendant’s decision not to introduce evidence.”

Landrigan,

127 S.Ct. at 1942 (citing

Iowa v. Tovar,

541 U.S. 77, 88 , 124 S.Ct. 1379 , 158 L.Ed.2d 209 (2004)). The Supreme Court later stated, “we have never required a specific colloquy to ensure that a defendant knowingly and intelligently refused to present mitigating evidence.”

Id.

at 1943.

This Court is aware of at least two district courts that have relied upon that remark to deny relief on a claim that the petitioner’s waiver of mitigation evidence was not knowing and voluntary. Before the district court in

Van Adams v. Schriro,

No. CV-04-1359-PHX-MHM, 2007 WL

*742

1539326 (D.Ariz. May 22, 2007) was a motion for reconsideration of, among other things, that court’s decision denying as procedurally barred the petitioner’s second claim for relief, in which the petitioner had argued that his waiver of the presentation of mitigation evidence was not knowing or voluntary because his counsel had not performed an adequate investigation and because the trial court had not engaged the petitioner in an adequate waiver colloquy. The district court not only adhered to its determination that the claim was procedurally barred, but also remarked that the claim was without merit, explaining:

In addition, based upon the Supreme Court’s statement in

Landrigan

that “[w]e have never imposed an ‘informed and knowing’ requirement upon a defendant’s decision not to introduce evidence,” 127 S.Ct. at 1942 — 43, it is clear that Claim 2 is without merit. Because there is no Supreme Court precedent requiring a knowing and informed waiver of mitigation evidence, Petitioner’s assertion in Claim 2 that his waiver was uninformed and involuntary cannot provide a basis for relief.

Van Adams,

2007 WL 1539326 at * 2.

Lambert v. Beard,

Civil Action No. 02-9034, 2007 WL 2173390 (E.D.Pa. Jul. 24, 2007), the district court squarely based its rejection of the petitioner’s claim that his waiver of the right to present mitigation evidence was not knowing, intelligent, and voluntary on the Supreme Court’s

Landrigan

decision. Rejecting the petitioner’s argument that the trial court’s colloquy regarding his waiver consisted only of superficial questions followed by monosyllabic responses, the district court explained:

Recently, in

Schriro v. Landrigan,

550 U.S. 465 , 127 S.Ct. 1933 , 167 L.Ed.2d 836 (2007), the Supreme Court observed that it has never “imposed an ‘informed and knowing’ requirement upon a defendant’s decision not to introduce [mitigating] evidence” or “required a specific colloquy to ensure that a defendant knowingly and intelligently refused to present mitigating evidence.”

Id.

at 1942-43. In light of

Landrigan ,

Petitioner’s claim fails under AEDPA, which permits a federal court to grant habeas relief only if the state courts unreasonably applied “clearly established Federal law, as

determined by the Supreme Comi of the United States.” 28

U.S.C. § 2254(d)(1) (emphasis added).

Lambert v. Beard,

2007 WL 2173390 , at * 49.

This Court takes from the Supreme Court’s remark in

Landrigan

and the results in

Van Adams

and

Lambert ,

as well as from the numerous state and federal decisions declining to apply retroactively new state court decisions to cases pending on direct appeal, that the Ohio Supreme Court’s

Ashworth

decision establishing the procedure for trial courts to follow when faced with a death-eligible defendant who seeks to waive the presentation of all mitigation evidence did not emanate from the federal Constitution sufficient to have required its retroactive application to Petitioner Cowans’s case on direct appeal pursuant to

Griffith v. Kentucky.

The Ohio Supreme Court in

Ashworth

announced the procedure as a corollary to Ohio R.Crim. P. 11(c)(3) governing the acceptance of a guilty plea to a capital offense and did not cite the state or federal constitution or discuss constitutional principles in announcing the procedure. The Court agrees with petitioner that there are due process and equal protection undertones to the

Ashworth

rule, but that is true of virtually any rule of criminal procedure and, without more, seems insufficient to require retroactive application under

Griffith v. Kentucky. See, e.g., People v.

*743

Mitchell, supra,

80 N.Y.2d at 526, 591 N.Y.S.2d 990 , 606 N.E.2d 1381 (rejecting defendant’s argument for retroactive application of a decision interpreting a statute concerning the right to be present during voir dire questioning because “[ajlthough the statute has underlying due process concerns, its protective scope is broader than the constitutional rights in encompasses”); Murt

ishaw v. Woodford, supra,

255 F.3d at 956 (rejecting argument seeking retroactive application of state decision containing “overtones of due process”);

Diggs v. Owens,

833 F.2d at 442 (stating that procedural rules set forth in Interstate Agreement on Detainers Act were distinct from the rights the IADA was designed to protect);

but see United States v. Lopez-Pena, supra,

912 F.2d at 1545 (“We cannot think, however, that criminal defendants whose cases are still pending on direct review should be any less entitled to claim the protection of important substantive statutes than of rights found in the Constitution”).

For the foregoing reasons, the Court cannot find that the Ohio Supreme Court’s failure to apply its

Ashworth

decision to Petitioner Cowans’s case unreasonably applied or contravened clearly established Supreme Court precedent.

See, e.g. Guzman v. Greene,

425 F.Supp.2d 298, 317 (E.D.N.Y.2006) (“Since there is no Supreme Court holding addressing the issue of whether the states must retroactively apply a new criminal rule of state law, it cannot be concluded under AEDPA that the Appellate Division’s rejection of Guzman’s insufficiency of the evidence claim was contrary to clearly established Supreme Court precedent.” (citation omitted)). But the inquiry, in determining whether the Ohio Supreme Court’s decision denying petitioner’s claim that he did not competently execute a knowing, intelligent, and voluntary waiver of the right to present mitigating evidence, does not end here.

B. The Validity of Petitioner’s Waiver of Mitigation

As noted above, the Ohio Supreme Court also concluded on direct appeal that petitioner’s waiver of the right to present mitigation evidence was knowing, intelligent, and voluntary.

Cowans,

87 Ohio St.3d at 85-86 , 717 N.E.2d 298 . The Ohio Supreme Court found that the record established that the trial court had engaged in communications with petitioner over a two-day period, during which the trial court apprised petitioner of his right to present testimony and make a statement and that his attorneys had prepared to present witnesses, inquired of petitioner why he did not wish to present any mitigation, and explained to petitioner that if he presented no mitigation the jury would likely recommend death. The Ohio Supreme Court then concluded, “[gjiven the content of the trial court’s colloquy, there is nothing to indicate that Cowans did not knowingly and voluntarily relinquish his right to present mitigating evidence.”

Cowans,

87 Ohio St.3d at 86 , 717 N.E.2d 298 . For the reasons that follow, the Court is not persuaded that the Ohio Supreme Court’s conclusion contravened or unreasonably applied clearly established federal law, or involved an unreasonable determination of the facts. Thus, in addition to concluding that there was no constitutional error in the failure of the Ohio Supreme Court to apply its

Ashworth

decision to petitioner’s case on direct appeal, the Court further concludes that the record is sufficient to demonstrate that petitioner’s waiver of the right to present mitigating evidence — whatever the scope and constitutional magnitude of that right — was knowing, intelligent, and voluntary and that petitioner was competent to waive the right.

*744

The Court notes initially, however, that case law is less than certain whether a waiver of the right to present mitigation evidence is subject to the heightened waiver standard set forth in

Johnson v. Zerbst,

304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938). In

Singleton v. Lockhart,

962 F.2d 1315 (8th Cir.1992), the Eighth Circuit appeared to apply the heightened

Zerbst

standard to the petitioner’s waiver of the presentation of mitigating evidence. The petitioner in

Singleton

challenged, among other things, the failure of his counsel to present mitigating evidence, though the petitioner had instructed him not to, as well as the district court’s determination that the petitioner’s waiver of the presentation of mitigation evidence had been knowing, intelligent, and voluntary. The petitioner’s counsel provided extensive testimony during an evidentiary hearing concerning the circumstances surrounding the petitioner’s decision not to present mitigation evidence. Citing cases that recognized a defendant’s right to make a competent waiver of the right to pursue further appellate relief from a death sentence, the Eighth Circuit concluded,

“If

a defendant may be found competent to waive the right of appellate review of a death sentence, we see no reason why a defendant may not also be found competent to waive the right to present mitigating evidence that might forestall the imposition of such a sentence in the first instance.”

Singleton,

962 F.2d at 1322 . Concluding mostly from trial counsel’s habeas testimony that petitioner had been fully and completely advised of his right to present mitigation evidence before making a knowing and intelligent decision not to, the Eighth Circuit went on to find that “there is no question but that Singleton was not laboring under any mental disability that would call into question his competence to knowingly and intelligently waive his right to present mitigating evidence.”

Id; see also Snell v. Lock-hart,

14 F.3d 1289 (8th Cir.1994) (rejecting the petitioner’s challenge of the district court’s determination that he had made a knowing and intelligent waiver of the presentation of mitigating evidence).

The Tenth Circuit took a different view in

Brecheen v. Reynolds,

41 F.3d 1343 (10th Cir.1994). Addressing the petitioner’s claim of ineffective assistance of counsel for failing to introduce certain mitigating evidence that petitioner had instructed his counsel not to present, the Tenth Circuit stated:

In short, the question as to the propriety of introducing additional mitigating evidence in this case is not a fundamental right subject to the

Zerbst

waiver standard, but rather, fits squarely into the category of rights that are nonfundamental and that are not reviewed for compliance with the heightened waiver standard.

Id.

at 1368.

see also Williams v. Bordenkircher,

696 F.2d 464 , (6th Cir.1983). Determining whether a bona fide doubt exists is no easy task, as the Supreme Court explained in

Drope :

The import of our decision in

Pate v. Robinson

is that evidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial all are relevant in determining whether further inquiry is required, but that even one of these factors standing alone may, in some circumstances, be sufficient. There are, of course, no fixed or immut

*754

able signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated.

Drope,

420 U.S. at 180 , 95 S.Ct. 896 .

Applying these principles to the facts at hand, the Court concludes that petitioner was competent to make a knowing, intelligent, and voluntary waiver of his right to present mitigating evidence and that the trial court did not err in failing to conduct a hearing to determine petitioner’s competency. The Court is satisfied that the record demonstrates that petitioner possessed the mental capacity to understand the choice between life and death, to make a knowing and voluntary decision not to present mitigating evidence, to fully comprehend the ramifications of his decision, and to reason logically. The only evidence of incompetency to which petitioner points are the angry and disruptive outbursts in which he engaged at several points during his trial proceedings and indications of his paranoia that everyone— from the trial court and prosecutors to the deputies and his own defense attorneys— was out to get him. But close scrutiny of those matters in the full context of petitioner’s trial proceedings reveals that they fall short of either establishing that petitioner was incompetent or constituting indicia sufficient to provide a bona fide reason to question petitioner’s competency.

Further, the record contains no evidence of a significant history of mental health problems on petitioner’s part. In an affidavit prepared by Dr. Jeffrey Smalldon in May 1998 recounting his evaluation of petitioner in preparation for petitioner’s mitigation hearing, Dr. Smalldon opined that petitioner suffered from, at most, a history of alcohol dependence and polysubstance abuse, as well as an Antisocial Personality Disorder stemming from his abusive and chaotic upbringing. (Doc. # 85-5.) Even the March 1998 mental health evaluation completed by Dr. Kristin E. Haskins and submitted during petitioner’s postconviction proceedings falls short of establishing that he was incompetent either at the time that he waived the presentation of mitigating evidence or at the time that Dr. Has-kins evaluated him. Neither defense counsel, nor the prosecution, nor the trial court — those people in the best position to observe petitioner’s disruptive behavior in context and demeanor throughout the trial proceedings — ever expressed any doubts about petitioner’s competency.

It is true that at several points throughout the trial proceedings, petitioner engaged in angry and disruptive behavior. But disruptive behavior alone, especially when prompted by anger at certain aspects of the proceedings against him as opposed to mental disease or defect, is insufficient to establish a defendant’s incompetency or even necessarily raise questions as to his competency.

See, e.g., Sweezy v. Garrison,

554 F.Supp. 481, 491 (D.C.N.C.1982) (finding that petitioner’s frequent disruptions of proceedings and brusque behavior toward trial court, witnesses, jury, and his defense counsel demonstrated that he felt “railroaded, which is probably a frequent feeling of persons charged with a crime.”) As did the district court in

Sweezy ,

this Court concludes that Petitioner Cowans’s occasional outbursts of disruptive behavior are “more explainable in terms of an angry, hostile personality rather than in terms of incompetence.”

Id.

at 485 .

Petitioner responded disruptively in court at several different points during his trial proceedings, over a span of nearly five months. The first time that petitioner acted out his pique was during a motions hearing in November 1996, only a few

*755

months after he was indicted. Just as the trial court was asking petitioner whether he had been served with the new indictment, petitioner answered that he had and then said, “May I please say some words?” (Tr. Vol. I, Exh. 30, at 3.) After the trial court cautioned him that he did not have to speak during any of the trial proceedings and that anything he said could be used against him, petitioner stated that he understood and that he wanted new counsel. The trial court agreed with petitioner’s request to appoint new counsel, but when petitioner gleaned from the remarks that the trial court planned to appoint counsel from the same office as petitioner’s previous counsel (the public defender’s office), petitioner interrupted: “That is just like hanging me, Your Honor, you might as well hang me.”

(Id.

at 6.) Petitioner explained that he felt that his previous attorneys had been pressuring him to plead guilty and that if the trial court appointed attorneys from the same office, then his previous counsel would “still be running the show behind the scenes.”

(Id.)

The trial court said it would take the matter under advisement and the proceedings concluded without further incident.

The trial court thereafter appointed Michael Kelly and Bruce Wallace to represent petitioner and it does not appear that petitioner had a problem with that. However, several months later, during hardship interviews with prospective jurors on February 19, 1997, petitioner acted out his pique a second time. As the trial court was explaining the purpose of the hearing, petitioner interrupted and asked if he could speak. (Tr. Vol. I, Exh. 36, at 5.) The trial court assured him that he would be given a chance to speak as soon as the trial court was finished with its introductory remarks. The trial court also reminded petitioner that he had a right to be present at that and all proceedings, so long as he was not disruptive. Then, the trial court invited petitioner to speak:

THE DEFENDANT: First of all, I would like new counsel. My attorneys and I had a disagreement. I want new counsel. Secondly, Your Honor, I would like to be at all hearings, but there seems to be a problem with me and Ms. Zenni. They made me sign a thing about wearing that belt that says if I do any overt action, if I raise my voice or what have you, that she can push that button. I feel I can’t wear no belt like that. I sent a letter to the county jail. I asked them if they can find somebody other than Ms. Zenni because she seems to have a personal problem with me. Also, I would like to have new counsel.

THE COURT: As far as new counsel, let’s address that first. Can you tell me the reason you want a new attorney?

THE DEFENDANT: I am not sure that is right, Your Honor.

THE COURT: At this point in time you don’t get, as just a matter of course, new counsel just because you wish to have new attorneys, since this is the second time around. The first attorneys were excellent attorneys. These attorneys are excellent attorneys as far as handling death cases, their experience. Unless you give me some adequate reason, I have no other choice then [sic] certainly to deny your request.

THE DEFENDANT: They want — they feel I am guilty, you know. I feel they can’t represent me to best of their ability because they feel I am guilty.

THE COURT: Well, you understand, of course, that an attorney’s duty is to represent his client regardless of personal feelings. In fact, that is one of the main training modes in law school as well as his profession. Regardless of how they or he or anyone of them feel, it

*756

is what kind of representation thy are going to be giving you.

THE DEFENDANT: Your Honor, I seem to be fighting for my life here. You are expecting me to keep these men as my attorneys? I’m sorry. I don’t know nothing about the law but I know that is against my constitution.

THE COURT: Ml right. Let me say this, Mr. Cowans, unless you give me adequate reason and cause other than the fact you don’t agree with them and don’t like them at this point in time-

THE DEFENDANT: It is not about liking them. They are wanting me to plead guilty and lie when I — you know, if I lie now and it comes out later then I am guilty.

THE COURT: Do either of you wish to be heard at this point?

MR. KELLY: I have to get permission from Mr. Cowans. I don’t want to violate any attorney client privilege. May I discuss briefly some of our conversations without saying anything specifically you said, Jessie?

THE COURT: Mr. Cowans?

THE DEFENDANT: I have nothing to say to this man, Your Honor.

THE COURT: Well, if you are not going to cooperate with your attorney at this point in time you give me no choice, Mr. Cowans, I am going to have to go forward and keep these counsel on board.

(Tr. Vol. I, Exh. 35, at 5-8.)

Defense counsel proceeded to explain that they had had disagreements with petitioner concerning certain evidence and theories, but insisted that they had never encouraged him to lie or plead guilty. The trial court then stated that it was of the view that defense counsel had been diligently representing petitioner and that, without more, it could not replace them with a new set of attorneys. At that point, petitioner stood as if to leave, prompting the following exchange:

THE COURT: Have a seat for a minute, sir, until I finish. If you don’t wish to be in the courtroom when all these proceedings take place, Mr. Cowans, you have the right to leave this courtroom and be somewhere else. There are two ways I can have you situated. You can either remain back in jail or you can be in another room and we will have two-way communication so that you can see what is going on, as well as hear what is going on. And that choice is yours, sir. The three alternatives are to be here, do not disrupt, two, to be in another room, or three to be back in the jail.

THE DEFENDANT: I would like new counsel, Your Honor.

THE COURT: That is going to be denied, sir. With that in mind, what alternatives do you want to work with?

THE DEFENDANT: I would like new counsel.

THE COURT: Ml right. Do you wish to remain here at this time, sir?

THE DEFENDANT: I would like new counsel, sir.

THE COURT: I take it then that means no, sir. Do you wish to remain in the jail while — •

THE DEFENDANT: I would like new counsel, sir.

THE COURT: I take it that means no also. You give me no choice, Mr. Cowans, if you cannot indicate to me—

THE DEFENDANT: I gave you a choice, sir. I would like new counsel.

THE COURT: Are you going to assure me you are not going to be disruptive?

THE DEFENDANT: I would like new counsel, sir.

*757

THE COURT: If you are not going to answer my question, I take it you are going to be disruptive.

THE DEFENDANT: I would like new counsel.

THE COURT: All right. I would ask that you please leave. I have given you a chance to listen to what is going [on]. If you want to listen to what is going on, we will have you placed in a special room. Until you voice that to either me or to your attorneys or to the jail personnel, I will take it you do not wish to be present. Anything further you want to place on the record?

THE DEFENDANT: I would like new counsel.

(Tr. Vol. I, Exh. 35, at 9-11.) At that point, petitioner left the courtroom, the potential jurors were escorted in for a continuation of the hearing on juror hardship excuses, and the trial court explained, among other things, that petitioner had chosen not to be present and that jurors were not to consider his absence for any purpose.

Later that day, as the hardship-excuses hearing continued with a new panel of potential jurors, Mr. Wallace approached the bench to inform the trial court and prosecutors that co-counsel Mr. Kelly was on the telephone with petitioner. (Tr. Vol. I, Exh. 35, at 62.) After the trial court dismissed the prospective jurors, Mr. Kelly entered and explained that petitioner had relayed to him a demand that he and Mr. Wallace file a motion to withdraw as his attorneys. Explaining that they felt obligated to follow petitioner’s wishes, Mr. Kelly advised the trial court that they would be filing a memorandum. When the trial court responded that it would hold a hearing as soon as possible on the matter, Mr. Kelly confirmed that petitioner wanted to be present at that and all future proceedings. The trial court then continued with the hearing on juror hardship excuses, without petitioner present.

Petitioner’s third episode of disruptive behavior took place one week later, on February 28, 1997, when the trial court conducted a hearing on defense counsel’s motion to withdraw. The trial court began by advising petitioner that he had the right to be present at all proceedings and to consult with his attorneys, so long as he did not become disruptive, to which petitioner responded, “Stating the fact I want new counsel is not disrupting.” (Tr. Vol. I, Exh. 36, at 3.) After a brief back-and-forth between petitioner and the trial court about why petitioner had been removed from the courtroom the previous week, the trial court clarified that defense counsel had filed a motion to withdraw, pursuant to petitioner’s request, and that petitioner had also filed his own motion for new counsel, though neither the prosecution nor the trial court had received a copy of that

pro se

motion. Defense counsel proceeded to explain, consistent with their motion, that they had had a disagreement with petitioner at the jail while discussing certain evidence and theories for how to handle that evidence, and that petitioner thereafter, on several occasions, refused to speak to them when they went to the jail to discuss the case with him. The trial court then invited petitioner to speak:

THE DEFENDANT: I need new counsel. We are not getting along. Do not want me to say something. I keep hearing all of this, if I say something, it won’t be used against me. Prosecution is sitting right there.

Your Honor, it comes up about a palm print. I’m not talking about the time I got disruptive and loud and told them I wanted new counsel. I’m talking about times before that when Mr. Kelly would come over to the jail by himself and sit

*758

out there and talk to me about that palm print.

Your Honor, I feel that I cannot get along with this counsel. And I’m asking the Court, may I please have new counsel? That’s all I can say.

(Tr. Vol. I, Exh. 36, at 7-8.)

The trial court then asked the prosecution if they had anything to offer, to which Mr. Breyer replied, “Judge, I can’t help but think about the boy who cried, ‘Wolf.’ ”

(Id.

at 8.) Mr. Breyer went on to express reservations about appointing new counsel for such nebulous reasons and concerns that petitioner was going to continue to insist on new attorneys “like a roundrobbin tournament.”

(Id.)

Petitioner then interrupted:

THE DEFENDANT: It’s obvious I’m guilty to you, man.

MR. BREYER: —I haven’t heard anything to indicate they’re not doing what they’re obligated to do.

THE DEFENDANT: Well, you’d like for them-

THE COURT: Excuse me one moment, Mr. Cowans. Give him a chance to speak and I’ll give you a chance to speak. Okay? This is the way we do things, Mr. Cowans. Please.

THE DEFENDANT: Yes, sir.

MR. BREYER: I think an inability to communicate between counsel and Defendant is a serious problem. But when it’s a one-sided refusal to communicate, I don’t see that as something the Court should step into and rectify.

THE COURT: Mr. Cowans?

THE DEFENDANT: Your Honor, prosecution is going to say stuff like that. They would rather me keep counsel that ain’t going to be able to represent me to their fullest, because that would be in their benefit.

(Id.

at 8-9.)

Explaining that it continued to be of the view that defense counsel were competent, conscientious, and were obviously working diligently to represent petitioner, the trial court announced that it would be keeping defense counsel on. The trial court encouraged petitioner to try to overcome his differences with them and to try to communicate, cooperate, and work with them “because they are your best chance.”

(Id.)

Petitioner responded:

THE DEFENDANT: What do I do now, Your Honor? I don’t want that.

THE COURT: I’m sorry you don’t, sir.

THE DEFENDANT: I don’t want that. You people have gotten me charged with four counts of murder. I’m trying to fight for my life. You are going to tell me you are not going to give me counsel- — •

THE COURT: Yes, sir.

THE DEFENDANT: —that I do not agree with, that would get along with me? I don’t want somebody that’s going to tell me I’m guilty. You understand? I don’t want that. Now, I’m asking you for new counsel. You keep telling me no. You have to give me new counsel. I’m fighting for my life, sir. Now, if you don’t want to give me new counsel, what’s my next step? I don’t want this man as my counsel. What’s my next step, Your Honor?

THE COURT: That’s up to you, Mr. Cowans. At this point in time, that’s your attorney at this stage.

THE DEFENDANT: What do I do now, sir?

THE COURT: That’s up to you at this point, sir.

THE DEFENDANT: That’s why I’m asking you, because I don’t have an at

*759

torney I can ask that. What do I do now, sir?

THE COURT: You are entitled to either cooperate with these people and work with them to the best of your ability and their ability, so they can defend you in an adequate manner—

THE DEFENDANT: You’re wrong, Your Honor.

THE COURT: That’s entirely up to you, sir.

THE DEFENDANT: You’re wrong. You are going against my constitutional rights. My rights say I’m allowed efficient counsel. You’re not giving me efficient counsel, sir. You might think he’s doing good, they might think he’s doing good, because you are the Judge, that’s the prosecution. Me, as the Defendant, I’m telling you the man ain’t representing me to the fullest.

THE COURT: This is what it’s going to be at this point, Mr. Cowans.

THE DEFENDANT: What am I supposed to do now? You are talking about having a trial without me? You know, come on, man. That’s bull. That’s bull.

THE COURT: You better sit here and you better cooperate with your attorneys.

THE DEFENDANT: I’m not going to cooperate with this man.

THE COURT: You’ve got two choices.

THE DEFENDANT: I’ve done stated that to you, sir. I want new counsel. I know my rights. I want new counsel.

THE COURT: Denied.

THE DEFENDANT: Well, I want a new Judge, then.

THE COURT: You certainly have the right to file—

THE DEFENDANT: You are going to sit there and deny me something. And I’m sitting here telling you I don’t want this man as my counsel. That’s bullshit, man.

THE COURT: You are entitled, sir, to—

THE DEFENDANT: Don’t tell me no. Shut up, man. You are the problem, any damn way.

THE COURT: Mr. Cowans, let me advise you, again, sir, that you have the right to sit here and participate in this trial.

THE DEFENDANT: Participate how? Participate in hanging me?

THE COURT: I just told you, Mr. Cowans.

THE DEFENDANT: You find that funny, mother fucker. Fuck you, punk.

THE COURT: Mr. Cowans, keep it up and you are leaving this Courtroom. Do you understand that, sir?

THE DEFENDANT: The man is going to laugh at me.

THE COURT: Did I just tell you before, not too long ago—

THE DEFENDANT: The man is going to laugh at me.

THE COURT: —you are leaving this courtroom if you continue this?

THE DEFENDANT: The man is going to laugh at me.

THE COURT: If he laughs, sir, so what? So what if he laughs at you?

THE DEFENDANT: So, now, I see what it’s really about.

THE COURT: At this point in time, sir, he shouldn’t be laughing at you. But the point of the matter is, you are not to react this way.

THE DEFENDANT: Why not? I’m fighting for my life, man.

THE COURT: You are going to leave this Courtroom if you keep it up, Mr. Cowans.

*760

THE DEFENDANT: I want the Judge to tell me what I’m supposed to do now to get new counsel. I want new counsel. I don’t want this man as my counsel.

THE COURT: Mr. Cowans, at this point in time, I’m indicating that this is the counsel that you are going to have to work with, sir.

THE DEFENDANT: So, what do we do now during trial? I don’t want this man as my counsel. I don’t want this man representing me in anything. Now, what?

THE COURT: Do you wish to represent yourself, Mr. Cowans?

THE DEFENDANT: How? I don’t know shit about law. How?

THE COURT: Then, I suggest you cooperate.

THE DEFENDANT: Cooperate with a man that’s trying to down me? Come on, Your Honor.

THE COURT: You have Mr. Wallace, also, Mr. Cowans.

THE DEFENDANT: Yeah, okay. I see what this is about.

THE COURT: Anything else?

THE DEFENDANT: Yeah. I feel that you might as well be in their pocket. Are they paying you to down me or something? Is the prosecution paying you, Your Honor?

THE COURT: Anything else?

THE DEFENDANT: Must be.

THE COURT: Do you have anything else you want to add about this motion, sir, before we leave?

THE DEFENDANT: I would like new counsel.

THE COURT: Once again, denied. Submit an entry accordingly. Mr. Cowans, again, I can advise you, you should consult with your counsel.

THE DEFENDANT: I would like new counsel.

THE COURT: This case is going on trial March 17th, sir. Anything further?

THE DEFENDANT: I would like new counsel.

THE COURT: Folks? Mr. Kelly?

MR. KELLY: Yes, sir.

THE COURT: Anything further, sir?

MR. KELLY: Not unless Mr. Cowans—

THE DEFENDANT: Tell that man you don’t want to be my counsel, man. You know what the hell you said to me over at the jail. Tell that man.

MR. KELLY: I advised Mr. Cowans, if he didn’t want us to be his counsel — it wasn’t at the jail, it was on the phone— that it would be difficult to represent him. However, I did not tell him I would file a motion for us to withdraw. I told him I would file the motion he requested—

THE DEFENDANT: You know what you said.

MR. KELLY: —which says that the Court appoint new counsel.

THE COURT: Again, Mr. Cowans, I would advise you—

THE DEFENDANT: You know what you said, man.

THE COURT: —to work with Mr. Kelly. Mr. Kelly, work with Mr. Cowans. If you can cooperate, it’s in your best interest, sir. Mr. Breyer?

(Tr. Vol. I, Exh. 36, at 10-15.) Mr. Breyer stated that he would prepare an entry and the hearing concluded.

Trial then commenced on March 17, 1997, as scheduled. The record contains no indication that petitioner engaged in any further disruptive behavior, in or out of court, or had any difficulty working with his attorneys, for the duration of his trial.

*761

That changed on April 1, 1997, the day that the culpability phase of his trial concluded, as the verdicts were being read. Before the trial court could finish reading the verdict forms for the specifications to the aggravated murder charge set forth in count two, petitioner interrupted:

THE DEFENDANT: Look me in the mother fucking eye.

THE COURT: —moving then on to specification three to count two—

THE DEFENDANT: Don’t peek at me.

(Tr. Vol. V, Exh. 49, at 2491.) The trial court continued reading the verdict forms until, while the trial court was reading the verdict form for specification three to count three, defense counsel interrupted:

MR. KELLY: Your Honor, can we interrupt the reading, please? May I approach the bench?

THE COURT: Yes.

THE DEFENDANT: Get me the fuck out of here, man. Get me out of here. Not one of you mother fuckers can look me in the eye. You all pieces of shit. (UNREPORTED SIDE BAR)

THE COURT: Ladies and gentlemen, would you please retire to the juryroom for a few minutes, and then we’ll continue on.

(The jury returned to the juryroom.)

THE DEFENDANT: Get me the fuck out of here. Get me out of here, man. I’m trying to be cool. I’ve been asking to get out of here. Get me out of here. Get me out this fucking courtroom.

THE COURT: Mr. Cowans, it’s my understanding, you do not wish to remain in the courtroom; is that correct, sir?

THE DEFENDANT: Get me the fuck out of here.

THE COURT: Do you not wish to remain in the courtroom during the sentence, sir — or the announcement of the verdict, sir?

THE DEFENDANT: Are you going to get me out of here, man? I’m asking to get the fuck out this courtroom.

(Tr. Vol. V, Exh. 49, at 2494-95.)

The trial court had petitioner removed from the courtroom and placed in a basement holding cell equipped with a closed-circuit TV broadcasting the proceedings, whereafter the jury returned to the courtroom and the trial court finished reading the verdicts. At the conclusion of the reading of the verdicts, the trial court advised the jurors not to allow themselves to be prejudiced against petitioner because of his actions.

(Id.

at 2502-03.) "While the trial court was polling the alternate jurors, out of the presence of the jury, a deputy advised the court that petitioner had disabled the closed-circuit TV and was requesting to return to the jail.

(Id.

at 2503.) The trial court construed petitioner’s actions as a constructive waiver of his right to be present for or view the proceedings and directed the deputies to return petitioner to the jail.

(Id.

at 2509.)

After the trial court finished polling the alternate jurors concerning whether they agreed with the jury’s verdicts, the trial court decided to have petitioner brought back to the courthouse for the bench hearing on the specification charging that petitioner had a prior murder conviction. Mr. Wallace then advised the trial court:

MR. WALLACE: Your Honor, I visited Mr. Cowans at the jail just moments ago. He was very cooperative with me and was willing to discuss the matter with me. However, he made it clear that he did not wish to be returned to the court house or the courtroom at this time for this hearing, or for any future hearings or proceedings in this case.

(Id.

at 2519.) When the trial court announced its decision to have petitioner

*762

brought back to the court house in any event, “so he doesn’t lose any confrontational rights,”

(Id.

at 2520), Mr. Wallace stated that he thought he might be able to convince petitioner to make an on-the-record waiver of his right to be present.

Petitioner was brought back to the court room. But before the trial court began the evidentiary hearing to determine petitioner’s prior-murder-conviction specification, Mr. Kelly stated that petitioner no longer wished to be present in the courtroom for any proceedings — not the evidentiary hearing, not the mitigation hearing, not sentencing. The trial court engaged petitioner in a brief colloquy — (which this Court set forth verbatim above in determining that petitioner’s waiver to present mitigation evidence was knowing, intelligent, and voluntary) — during which petitioner answered the trial court’s questions, confirming that counsel had accurately expressed his wishes and that he did not wish to be in the court room for any further proceedings. When it became evident that the trial court intended to place petitioner in the basement holding cell, he became agitated and somewhat disruptive, at times directing obscenity-laced comments at the trial court and the prosecution. Despite petitioner’s protestations, the trial court had him placed in the basement holding cell for the duration of the short evidentiary hearing, despite being advised by defense counsel at the outset of the evidentiary hearing that petitioner was demanding that the sound on the TV be turned down, turning his back to the TV, and laying on the floor being restrained by three deputies. (Tr. Vol. V, Exh. 49, at 2529.) The trial court commenced with the evidentiary hearing, after which petitioner was returned to the jail.

As explained more fully earlier in this decision, when court reconvened on April 10,1997 for petitioner’s mitigation hearing, defense counsel stated on the record that petitioner had directed them not to present any evidence on his behalf at the mitigation hearing and had further directed relatives, friends, and other acquaintances not to cooperate with the defense team in gathering any mitigation information. (Tr. Vol. V, Exh. 49, at 3-4.) The trial court engaged petitioner in a brief colloquy— (which this Court set forth verbatim above in determining that petitioner’s waiver to present mitigation evidence was knowing, intelligent, and voluntary) — during which petitioner calmly and responsively answered the trial court’s questions, confirming that his counsel had accurately expressed his wishes, that he did not wish any mitigating evidence to be presented on his behalf, and that he would agree to be present the following day when the jury was brought in rather than be placed in the basement holding cell.

(Id.

at 4-6.)

The following day, when court reconvened for the commencement of petitioner’s mitigation hearing, petitioner confirmed yet again, both through counsel and through his own answers to the trial court’s questions, that he did not wish to appear in civilian clothes or to have any mitigation evidence presented on his behalf. Petitioner remained in the courtroom for the entirety of the mitigation hearing- — which consisted of only opening statements and closing arguments by the prosecution, a brief statement by defense counsel explaining that petitioner wished no mitigation evidence to be presented, the readmission of evidence from the first phase, and the trial court’s instructions to the jury — and never engaged in any disruptive behavior, save trying to appear to be asleep during portions of the opening statements and closing arguments (Tr. Vol. V, Exh. 50, at 48.) When the jury returned after a few hours of deliberations with a verdict recommending death, petitioner engaged in no disruptive behavior.

*763

Finally, when petitioner appeared in court the following week for formal sentencing, he engaged in no disruptive behavior, (beyond inviting the victim’s son, during his victim impact statement, to look him (petitioner) in the eye).

(Id.

at 88.)

The Court is not persuaded that the episodes of disruptive behavior set forth above demonstrate or suggest that petitioner was incompetent to waive his right to present mitigation evidence or even that the disruptive behavior was sufficient to raise doubts as to petitioner’s competency such that the trial court should have been prompted to conduct a hearing to determine petitioner’s competency. Competency, in the context of a waiver of the right to present mitigating evidence, requires the Court to determine whether petitioner had the mental capacity to understand the choice between life and death and to make a knowing and intelligent decision not to pursue the presentation of evidence, to fully comprehend the ramifications of his decision, and to reason logically,

ie.,

to choose the means that relate logically to his ends. It may be argued in this case that petitioner, in choosing to forgo the presentation of mitigating evidence, did not choose means that related logically to his ends, which obviously were to achieve acquittal and exoneration. But it bears reminding that the test is whether the petitioner possessed the

capacity

to reason logically by choosing means that related logically to his ends, not whether the petitioner

actually

employed means that related logically to his ends.

As the district court in

Sweezy v. Garrison

reasoned, the petitioner’s episodes of disruptive behavior “definitely evidence[d] a rational as well as factual understanding of the proceedings ... because virtually all were closely related to either the outcome of the case or the procedures involved,

ie.,

getting a jury, using witnesses, protesting testimony and verdict, getting a lawyer replaced, and protesting the judge’s action.”

Sweezy,

554 F.Supp. at 492 (citation omitted). In that case, one of the claims raised by petitioner was that he had been incompetent to stand trial, as evidenced by his prior history of mental health problems, his aversion to taking his medications, and his frequent episodes of disruptive behavior during his trial. After dismissing petitioner’s assertions about his history of mental health problems and aversion to taking medication, the district court found, as noted above, that petitioner’s disruptive behavior in court “is more explainable in terms of an angry, hostile personality rather than in terms of incompetence.”

Id.

at 485 . The district court recounted petitioner’s episodes of disruptive behavior in detail, which included but were not limited to, being abrasive and brusque to the trial judge, often refusing to answer his questions; requesting that his attorneys be replaced; requesting black lawyers; asserting that the prosecution was lying; referring to the trial judge as a hypocrite and referring to the court as a “Kangaroo Court;” and cursing during the reading of the verdict. In concluding that petitioner’s in-court behavior actually reflected a rational and factual understanding of the proceedings, rather than incompetence, the district court went on to explain:

Therefore, while petitioner’s actions and remarks have been characterized by him as irrational, that word is appropriate only to the extent it describes actions by petitioner which were not in his best interest. However, rationality from a standpoint of competence is not determined by foolishness or wisdom, and, for this additional reason, the events on which petitioner relies to establish his incompetency at the time of trial and the

*764

duties on counsel are not probative on the point.

Id.

Similarly, in the instant case, petitioner’s episodes may have been inappropriate and not in his best interests; but they actually evidenced a rational and factual understanding of the proceedings, as opposed to incompetence, in the sense that they “were closely related to either the outcome of the case or the procedures involved!!]”

Sweezy,

554 F.Supp. at 492 . Petitioner fought for new attorneys who would in turn fight for him when he thought that his assigned attorneys believed him to be guilty and were urging him to accept a plea bargain. (Tr. Vol. I, Exh. 30, at 3-7; Tr. Vol. I, Exh. 35, at 7; Tr. Vol. I, Exh. 36, at 9.) He clearly had some back-and-forth with his attorneys on how to deal with certain evidence, such as the presence of his palm print in the victim’s home. (Tr. Vol. I, Exh. 36, at 7-8.) He obviously understood that he had a constitutional right to counsel. (Tr. Vol. I, Exh. 36, at 10.) He was reluctant to discuss in front of the prosecution, or in open court for fear that it would be used against him, the nature of the disagreements that had precipitated his request for new counsel. (Tr. Vol. I, Exh. 36, at 7-8.)

Chief Justice Moyer of the Ohio Supreme Court concluded in dissent that petitioner’s waiver of his right to introduce mitigation evidence, combined with petitioner’s conduct both before and during trial, should have required the trial judge to order a competency evaluation. Although this Court is of the same view, the fact is that a reviewing court in a habeas proceeding is not authorized to simply second-guess the state court. The majority opinion cannot be said to be either a decision that was contrary to clearly established federal law or a decision that involved an unreasonable determination of the facts presented.

The Court also takes into consideration that, although petitioner’s episodes of disruptive behavior were often inappropriate and not in his best interests — albeit, not irrational from the standpoint of competence — the record contains numerous instances demonstrating that petitioner was not only oriented to the proceedings, but also capable of conducting himself appropriately and reasoning logically.

Sweezy, supra,

554 F.Supp. at 492 For instance, notwithstanding his angry outbursts following the trial court’s denial of his motion to replace his second set of attorneys, petitioner proceeded to conduct himself appropriately throughout the duration of the culpability phase of his trial, never once acting out or behaving disruptively until the rendition of the verdicts. Additionally, once petitioner had determined to forgo the presentation of any mitigating evidence, he nonetheless elected to appear in the courtroom with his attorneys for his mitigation hearing to avoid the alternative of being placed in the basement holding cell, for he had demonstrated on several occasions that he was loathe to be placed in that cell. (Tr. Vol. V, Exh. 49, at 4-6.)

Additional factors to take into consideration are, as noted above, the apparent absence of any prior history of mental health problems on petitioner’s part. Similarly, neither defense counsel, nor the trial court, nor the prosecution- — -those people in the best position to observe the incidents set forth above in their context and petitioner’s demeanor and behavior throughout the trial — suggested that they had any questions as to petitioner’s competency.

Moreover, even the most recent mental health evaluation, performed by Dr. Kristen Haskins in 1998 in connection with petitioner’s state posteonviction proceedings, stops short of positing with any de

*765

gree of certainty that petitioner was incompetent when he waived his right to present mitigating evidence. Dr. Has-kins’s affidavit recounts a personal, family, and developmental history for petitioner that was horrific. She appeared to diagnose petitioner with “a severe personality pattern disturbance” (App. Vol. IV, at 303) and “a significant substance abuse problem”

(Id.

at 305). She suggested that what she had learned from petitioner and his family may have been only the “tip of the iceberg.”

(Id.

at 307.) Still, Dr. Has-kins concluded only that “[djescriptions of his loss of control and outbursts in the court room and his refusal of mitigation suggest his coping resources had been so severely depleted by the stress of the trial and that he was possibly psychologically decompensated to the point that he was unable to competently proceed.” (App. Vol. IV, at 307.) This falls short, in this Court’s view, of evidence that petitioner was suffering from a mental disease, disorder, or defect that may have substantially affected his capacity to appreciate his position and making an informed decision not to present mitigating evidence.

Petitioner has not demonstrated that he was incompetent when he waived his right to present mitigation evidence or that the trial court erred when it failed to

sua sponte

conduct a competency hearing.

The Court reaches the following conclusions regarding petitioner’s first ground for relief. Petitioner argued that the Ohio Supreme Court erred in not applying its

Ashworth

decision to his case on direct appeal. The Ohio Supreme Court rejected that argument and this Court concludes that the decision in that regard did not contravene or unreasonably apply controlling Supreme Court precedent. Petitioner argued that his waiver of the right to present mitigation evidence was not knowing, intelligent, and voluntary. The Ohio Supreme Court rejected that argument and this Court concludes that the decision in that regard did not contravene or unreasonably apply controlling Supreme Court precedent or involve an unreasonable determination of the facts based on the evidence presented. Finally, petitioner argued that he was not competent to make a knowing, intelligent, and voluntary waiver of the right to present mitigating evidence, and that the trial court erred when it failed to

sua sponte

conduct a hearing on petitioner’s competency. The Ohio Supreme Court rejected that argument on direct appeal and the state courts further rejected it in postconviction. This Court concludes that those decisions did not contravene or unreasonably apply controlling Supreme Court precedent or involve an unreasonable determination of the facts based on the evidence presented. Accordingly, the Court DENIES petitioner’s first ground for relief as meritless.

D. Certificate of Appealability

An appeal from the denial of a habeas corpus action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253 (c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253 (c)(2);