Opinion

Madrigal v. Bagley

276 F. Supp. 2d 744
2003 U.S. Dist. LEXIS 13947
2003 WL 21919789

Court: District Court, N.D. Ohio
Filed: Aug 5, 2003
Status: Published
Author: Gwin
On the bench: Gwin
Cited by: 12 cases
Authority: More cited than 68.7%

The opinion

OPINION & ORDER

[Resolving Doc. 1]

GWIN, District Judge.

On March 19, 2002, Petitioner Jamie R. Madrigal (“Madrigal”) petitioned this Court for a writ of habeas corpus under 28 U.S.C. § 2254 . In seeking relief in this death penalty case, Petitioner Madrigal says that constitutional error attended his conviction and resulting death penalty sentence.

Although Madrigal states various grounds for relief, he principally claims that the state-court denied him his constitutional right of confrontation when it allowed the admission of two out-of-court statements by a co-defendant who refused to testify at trial. With those out-of-court statements, the co-defendant denied culpability and instead implicated Madrigal as the killer. The co-defendant Chris Cath-cart’s testimony was important. The identity of the killer was the principal issue at trial and some evidence suggested that the co-defendant Cathcart was the killer.

Reviewing this denial of a right to cross-examine evidence offered against him, the Ohio Supreme Court found the trial court erred but found the error harmless. Madrigal challenges this finding. He says much evidence suggested that the co-defendant, not Madrigal, was the killer. He argues that the trial court’s error in admitting the implicating statement was significant to his conviction.

Respondent Warden Margaret Bagley (“Bagley”) denies that Petitioner Madrigal is entitled to a writ of habeas corpus. First, Respondent Bagley maintains that Madrigal procedurally defaulted many of his claims for relief. Regarding the remaining claims, Bagley argues that Ma

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drigal fails to show any constitutional violations. Alternatively, she argues that Madrigal raises claims not cognizable in federal habeas review.

In this decision, the Court first describes the factual background of Madrigal’s crime.

Then, the Court describes Madrigal’s direct appeal and his later efforts at state-afforded post-conviction relief. The Court then discusses whether Madrigal exhausted his state court remedies and whether Madrigal defaulted certain claims under state procedural rules. Finally, the Court substantively reviews Madrigal’s claims that had not otherwise been defaulted.

All, save one, of Madrigal’s arguments fail. The Court finds that the admission of co-defendant Chris Cathcart’s statements that implicated Madrigal as the killer “had a substantial and injurious effect or influence in determining the jury’s verdict.” The Court grants the petition for habeas corpus for the reasons that follow.

I. Factual Background

On Friday, April 12, 1996, a robber killed Misty Fisher at a Kentucky Fried Chicken restaurant (“KFC”) in Toledo. During that evening, Misty Fisher, Eric Armstrong, Brian Conley, and Carrie Tracy worked at the KFC. Tracy was sixteen years old. Misty Fisher, Eric Armstrong and Brian Conley were eighteen years old. Fisher and Armstrong were both closing managers.

Around 8:15 p.m. that Friday night, a black male entered the restaurant. Working at the front counter, Tracy asked the person if she could help him. He said “No, no.” After looking around the restaurant, the black male exited.

At this time, Jeffrey Kerekes and Todd Corbett took their dinner break from work, and decided to go to the KFC for dinner. As they pulled into the drive-thru, they realized that the speaker was not working and they drove up to the window. Tracy came to the window to take their order.

At approximately the time that Kerekes and Corbett approached the drive-through window, the same black man who had previously been in the KFC returned. A loud crash caught everyone’s attention as the man jumped over the counter, shattering the glass on the refrigerated counter case. After vaulting the counter, the man hit Armstrong in the head and ordered everyone to the floor. The man asked who the closing manager was. Armstrong said he was. The man then ordered Armstrong to get up and get the money out of all the registers. Armstrong responded and put the money in a KFC bag on the counter. The man then told Armstrong to open the safe, but Armstrong told him he did not have the combination. Armstrong told the robber that Fisher had the combination. The man grabbed Fisher by her ponytail and took both her and Armstrong to the area near the safe.

As they approached the safe, the robber told Armstrong to get to the floor, and ordered Fisher to open the safe. Fisher knelt in front of the safe, while the man held a gun to the back of her head. Afraid and nervous, Fisher told the robber she could not get the safe open. In response, the man barked, “hurry up bitch.” Fisher asked Armstrong to help her, but as he got up, the man ordered him back to the floor. When Misty Fisher still could not get the safe open, the man said, “Now you’re playing, bitch,” and shot her in the back of the head. The man exited through the back

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door. Armstrong immediately got up and called 911.

While this was going on, Corbett and Kerekes waited for their order. While waiting for their order, customers Corbett and Kerekes saw a man jump over the counter and hit Armstrong. They saw a chrome-plated gun in the man’s hand. Realizing the man was robbing the KFC, they pulled through the drive-thru and drove around the front of the building. They noticed another man sitting on the driver’s side of an older maroon Buick with chrome Cragar SS rims, parked against the back fence of the KFC parking lot. The car was backed into the parking spot, and had no license plate.

Corbett and Kerekes pulled around to the alley behind the KFC parking lot. Kerekes got out and looked through the bottom and top of the fence, looking for a license plate on the back of the car. He saw none.

Kerekes returned to his car, and he and Corbett drove to a 7-Eleven Store and asked the clerk to notify the police that a robbery was in progress at the KFC. They then went back to the KFC.

As they pulled into the parking lot, they noticed that the maroon Buick remained parked in the same spot; however, the man who had been in the car had now moved to the passenger seat.

After observing the maroon Buick, Cor-bett and Kerekes drove through the parking lot. As they came near to the back door, the door opened and a black man came out carrying a brown paper bag in his hands. The man stopped momentarily, looked at them, then got into the maroon car and took off. Corbett and Kerekes again went through the drive-thru lane. This time Tracy was hanging out the window screaming that someone had been shot.

Corbett and Kerekes went into the KFC as the police and ambulance were arriving. Although the police and ambulance had quickly arrived, Fisher died en route to the hospital from her gunshot wound.

Although Corbett and Kerekes gave the police a description of the car and the direction it headed, the police were unable to find it that night. The police took statements from Corbett and Kerekes and then took the three employee witnesses, Armstrong, Conley, and Tracy, to the police station. At the police station, the officers received the employees’ statements. In their statements, the witnesses described the man as a black man, medium complexion, in his late teens or early twenties, medium build, short hair, wearing tan boots, a dark-colored hooded sweatshirt, and baggy pants. Kerekes described the baggy pants as jeans, while Tracy described them as brown “Dickies” brand pants with cuts on the legs.

The following day, Saturday, the police asked Corbett and Tracy to return to the police station to create a composite sketch to help generate leads in the case. Because of leads coming into the police station, the police arrested James Jordan.

On the Monday following the crime, the police asked the witnesses to come to the police station to participate in a lineup. Neither Corbett nor Kerekes picked anyone from the lineup. Tracy picked out Jordan, although she thought he was too short. She later said that she picked him only because she thought she was supposed to pick someone out.

Corbett and Kerekes identified a car type similar to the Buick they had seen. Police received a crime-stoppers tip that Jamie Madrigal had purchased such a car and the car was at a house on Alldays Street. On the Tuesday morning following the murder, Toledo police took Corbett to look at the vehicle at the Alldays address,

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and Corbett identified it as the car he saw in the KFC parking lot. The police obtained a search warrant and seized the car.

After receiving leads that Cathcart had spent the night of the murder with Madrigal, officers then brought Cathcart in for questioning. Cathcart gave two extensive statements to the police, both impheating Madrigal in the robbery of the KFC and the murder of Fisher. In those statements, Cathcart said that he was the person in the car, while Madrigal went into the KFC and, by implication, committed Fisher’s murder.

After Cathcart gave his statements, the police arrested him, issued an arrest warrant for Madrigal, and obtained a search warrant for the Alldays Street address. During the search of those premises, the police seized a pair of work boots, men’s maroon pants, and a blue hooded sweatshirt.

Thursday morning, Boyd told police that Madrigal was in Cleveland. Evidently, Madrigal left Toledo in the early morning hours after the murder and went to the home of Rodney Pettiway (his half-brother) and Pettiway’s girlfriend. He stayed there until early the following week. Madrigal saw the Toledo Blade newspaper at Pettiway’s house and commented to Petti-way that “he wanted to get it.” After his arrest, Madrigal contacted Pettiway from the county jail and asked him if he had “ratted him out.”

FBI agents and Cleveland police executed the arrest warrant on Madrigal while he was at the house of Tavio Burton. Police forcibly entered through the back door of the house. The law enforcement officials arrested Madrigal and took him into the kitchen area, where they searched him and advised him of his rights.

Burton gave police a written consent to search the house. The police seized a cloth suitcase and duffel bag. They also found several pairs of brown “Dickie” pants, with the cuffs cut, in one bag. When police opened another bag, they found a nickel-plated revolver resting on top, and a bullet in the bag.

The police returned Madrigal to Toledo. They photographed him when they “booked” him and the police put together a photo array including Madrigal and five other black males. The police took the photos to Corbett, Kerekes, and Tracy to see if they could make an identification. Both Corbett and Tracy picked Madrigal’s photograph out of the array. Kerekes did not pick out a photo, saying that he thought the quality of the photos was very poor. All three identified Madrigal in court.

The identity of the killer was the principal issue at trial. When the police arrested Madrigal, he had a mustache and a goatee. These features also appeared on his Ohio Identification Card, found in his coat pocket. Madrigal obtained the Ohio Identification Card several months before his arrest. When law enforcement officials interviewed the witnesses to the offense, none of the witnesses to the killing described the suspect as having a mustache or any facial hair.

During the investigation the police learned that both Madrigal and Cathcart had worked at the KFC that was robbed. They did not work at the KFC at the same time. Madrigal had worked the closing shift and knew the procedures for closing the store.

Law enforcement officials did not identify fingerprints taken at the KFC as those of Madrigal. Also, the state’s firearm experts could not state with certainty that the gun seized during Madrigal’s arrest was the murder weapon. But they also could not exclude it as the murder weapon.

At Madrigal’s trial, co-defendant Cath-cart asserted his Fifth Amendment right

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against self-incrimination and refused to testify. However, the trial court admitted his statements into evidence, over defense objection.

The jury deliberated over eight hours before finding Madrigal guilty on all charges. The jury recommended that Madrigal be put to death, and the trial court adopted the jury’s recommendation.

II. Procedural Background

On May 13, 1996, the Lucas County grand jury indicted Madrigal, charging him with two counts: one count of aggravated murder with the death specification that the aggravated murder occurred during an aggravated robbery and one count of aggravated robbery. Each count of the indictment contained a firearm specification.

On October 7, 1996, Madrigal’s trial began in the Lucas County Court of Common Pleas. The trial continued until October 22, 1996. On that date, the jury convicted Madrigal on all charges. After receiving the guilty verdicts, the trial court began the mitigation phase. On October 24, 1996, the jury recommended Madrigal be put to death. On November 25, 1996, the Lucas County Court of Common Pleas accepted the jury’s recommendation and sentenced Madrigal to death.

On January 15, 1997, Madrigal appealed to the Ohio Supreme Court. On January 5, 2000, that court affirmed the conviction and sentence.

See State v. Madrigal,

87 Ohio St.3d 378 , 721 N.E.2d 52 (2000). Madrigal then moved the Ohio Supreme Court to reconsider its order. On February 16, 2000, the court denied the motion for reconsideration.

Madrigal sought review by the U.S. Supreme Court through a petition for a writ of certiorari. On October 2, 2000, the Supreme Court denied Madrigal’s petition for certiorari.

After exhausting direct appeal, on September 21, 1998, Madrigal filed a post-conviction relief petition pursuant to section 2953.21 of the Ohio Revised Code, in the Lucas County Court of Common Pleas. On June 15, 1999, the common pleas court denied all but one of Madrigal’s claims finding that “a hearing must be held on the evidence

dehors

the record in support of Ground Five.” Madrigal’s fifth ground for relief in the state post-conviction petition alleged ineffective assistance of counsel.

On September 17, 1999, the trial court conducted an evidentiary hearing upon Madrigal’s claim that his trial counsel had been ineffective. On November 30, 1999, the trial court dismissed Madrigal’s entire petition including ground five.

Madrigal appealed the trial court’s decision to the Ohio Sixth District Court of Appeals. On November 17, 2000, the Sixth District appellate court affirmed the common pleas court’s decision.

On December 28, 2000, Madrigal appealed the denial of post-conviction relief to the Ohio Supreme Court and filed a memorandum in support of jurisdiction. On March 21, 2001, the Ohio Supreme Court dismissed Madrigal’s claim, finding that Madrigal’s appeal did not involve any substantial constitutional question.

On March 19, 2002, Madrigal petitioned this Court seeking a writ of habeas corpus under 28 U.S.C. § 2254 . The Court now considers Madrigal’s petition.

III. Exhaustion and Procedural Default A. Exhaustion

A habeas corpus petitioner must exhaust his state remedies before petitioning for a writ of habeas corpus.

See

28 U.S.C. § 2254 (b). To determine whether the petitioner has met the exhaustion requirement, the Court examines whether the petitioner “has the right under the law of the

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State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254 (c).

As explained above, Madrigal has pursued all opportunities for relief at the state level, both on direct appeal and in post-conviction proceedings. Madrigal has exhausted all state remedies.

B. Procedural Default

Federal courts “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.”

Coleman v. Thompson,

501 U.S. 722, 729 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991). As applied in the habeas context, this doctrine stops federal courts from reviewing claims that a state court has declined to address because of a petitioner’s noncompliance with a state procedural requirement.

See Wainwright v. Sykes,

433 U.S. 72, 87 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977). “In these cases, the state judgment rests on independent and adequate state procedural grounds.”

Thompson,

501 U.S. at 730 , 111 S.Ct. 2546 .

The Sixth Circuit uses a four-step analysis to determine whether a claim has been procedurally defaulted.

See Maupin v. Smith,

785 F.2d 135 (6th Cir.1986). Under this test, the Court determines: (1) whether the petitioner failed to comply with an applicable state procedural rule; (2) whether the state courts actually enforced the state procedural sanction; (3) whether the state procedural bar is an “independent and adequate” state ground on which the state can foreclose federal review, and if the previous elements are met; (4) whether the petitioner has demonstrated “cause” and “prejudice.”

See id.

at 138-39 .

Bagley contends that Madrigal procedurally defaulted on six of his fifteen claims for relief. Specifically, she says that Madrigal procedurally defaulted in part on Claim 11, and in whole on Claims 2, 5, 9, 12, and 15. Bagley acknowledges that there is no procedural default bar to consideration of Claims 1,3-4, 6-8, 10, 13-14, and portions of Claim 11. The Court considers each of these arguments in turn.

1. Claims Never Presented to State Courts:' Claims 2 & 15

Madrigal’s second claim contends that the trial court violated his constitutional rights when it denied his request for a lesser included offense instruction. With Claim 15, Madrigal alleges that he is actually innocent of capital murder. Bagley says Madrigal never raised Claims 2 and 15 in state court. Instead, Bagley asserts that Madrigal raised these claims for the first time in his federal habeas corpus petition.

Ordinarily, issues raised for the first time in a habeas corpus petition are remanded to the state court. However, Madrigal is barred from presenting these arguments in state court because he had the opportunity to raise them during his state court proceedings but faded to do so.

See Riggins v. McMackin,

935 F.2d 790, 793 (6th Cir.1991) (“A state prisoner generally must first give the state courts a fair opportunity to remedy any constitutional infirmity in the conviction before seeking relief in a federal court.”);

State v. Perry,

10 Ohio St.2d 175, 179 , 226 N.E.2d 104, 107 (1967) (holding that Ohio courts cannot consider a constitutional issue in post-conviction proceedings when that issue already had been or could have been fully litigated before judgment of conviction or on direct appeal from that judgment).

As a procedural matter, Ohio courts do not consider state or federal claims which were not timely asserted in State court proceedings.

State v. Perry,

10 Ohio St.2d 175 , 226 N.E.2d 104 (1967). In

Perry ,

the Ohio Supreme Court held that constitutional issues cannot be consid

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ered in post-conviction proceedings where the issues could have been fully litigated by the prisoner while represented by counsel, either before his judgment of conviction or on direct appeal from that judgment, and thus have been adjudicated against him.

Id.

at syl. para. 7.

The

Perry

res judicata rule causes a procedural default when a defendant fails to raise an issue upon direct appeal.

See Wainwright,

433 U.S. at 87 , 97 S.Ct. 2497 .

Here, Madrigal concedes that he did not raise Claim 2 in the state court upon direct appeal. Further, Madrigal had counsel both during the trial and on direct appeal. David Klucas and John Thebes defended Madrigal during the trial. Klucas and Thebes are certified to try capital cases in Ohio. On direct appeal, Jeffrey Gamso and James VanDeilen represented Madrigal. Because Madrigal had the opportunity to raise these claims in state court, but failed to do so, Ohio law establishes a procedural bar to these claims, absent a showing of cause and prejudice.

See Riggins,

935 F.2d at 793 .

a. Fundamental Miscarriage of Justice

Actual Innocence

Madrigal admits that he did not raise Claim 2 in state court. Madrigal does not allege cause and prejudice exist to overcome the procedural default. Instead, he says that the claim is not barred by the principles of procedural default because he meets the fundamental miscarriage of justice standard.

A finding of procedural default stops habeas corpus relief, unless the petitioner can show cause for the default and actual prejudice.

Thompson,

501 U.S. at 749-50 , 111 S.Ct. 2546 . A petitioner can also overcome procedural default if he can show that a failure to review his claims on their merits would be a fundamental miscarriage of justice.

See Murray v. Carrier,

477 U.S. 478, 496 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986);

Coleman v. Mitchell,

244 F.3d 533, 540 (6th Cir.2001).

To establish a fundamental miscarriage of justice based on actual innocence, “the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.”

Schlup v. Delo,

513 U.S. 298, 327 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995). Further, the court must “assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial.”

Schlup,

513 U.S. at 332 , 115 S.Ct. 851 .

While Madrigal raises the issue that the Court’s failure to review his proeedurally defaulted claims would work a fundamental miscarriage of justice, Madrigal does not show evidence to make the required showing under

Schlup .

With respect to his claim that the trial court should have given a lesser included offense instruction, Madrigal offers no new evidence in support of his actual innocence claim. Instead, he argues that failing to instruct the jury on the lesser included offense “has probably resulted in the conviction of one who is actually innocent” of the crime charged.

‘Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas

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court to reach the merits of a barred claim.”

Schlup,

513 U.S. at 316 , 115 S.Ct. 851 . “To be credible, such a claim [an actual innocence claim] requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.”

Id.

at 324 , 115 S.Ct. 851 . An actual innocence claim “must be based on ‘new reliable evidence.’ ”

Simpson v. Jones,

238 F.3d 399, 407 (6th Cir.2000) (quoting

Schlup,

513 U.S. at 324 , 115 S.Ct. 851 ). Therefore, because Madrigal fails to offer new evidence in support of his actual innocence claim as it relates to Claim 2, the claim fails.

Even if Madrigal had not procedurally defaulted Claim 2, the claim fails on the merits. The imposition of the death penalty is unconstitutional where a “jury [is] not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict.”

Beck v. Alabama,

447 U.S. 625, 627 , 100 S.Ct. 2382 , 65 L.Ed.2d 392 (1980). However, an instruction on a lesser included offense is required only where the evidence presented at trial reasonably supports both an acquittal on the crime charged and a conviction on the lesser included offense.

Schmuck v. United States,

489 U.S. 705 , 716 n. 8, 109 S.Ct. 1443 , 103 L.Ed.2d 734 (1989). A court need not give an instruction every time “some evidence” is presented on a lesser included or inferior degree offense.

State v. Shane,

63 Ohio St.3d 630, 632-33 , 590 N.E.2d 272 (1992).

Involuntary manslaughter, Ohio Rev. Code Ann. § 2903.04 , is a lesser included offense of aggravated murder with prior calculation and design, Ohio Rev.Code Ann. § 2903.01(A), aggravated felony murder, Ohio Rev.Code Ann. § 2903.01(B), and murder, Ohio Rev.Code Ann. § 2903.02.

State v. Thomas,

40 Ohio St.3d 213 , 533 N.E.2d 286 , syl. ¶ 1 (1988). As a lesser offense of these forms of murder, involuntary manslaughter is distinguished by the mental state involved in the act.

See Thomas,

40 Ohio St.3d at 216 , 533 N.E.2d 286 . “It is manifestly obvious that these two [mental] states are mutually exclusive and that in any given lolling the offender may be possessed of only one.”

Id.

(citing

State v. Johnson,

6 Ohio St.3d 420 , 453 N.E.2d 595 (1983)). Unlike murder, the offense of involuntary manslaughter does not require a showing of purpose or prior calculation and design.

Id.

at 216-17, 533 N.E.2d at 289-90 .

Here, the trial court did not err in failing to give the jury an involuntary manslaughter instruction. No sufficient evidence suggests that the shooting of Fisher was accidental or unplanned. Eric Armstrong testified that the robber shot Fisher point-blank in the head after she could not open the safe. Tr. Vol. VI (Trial), at 1175. This type of shooting reflects prior calculation and design.

See State v. Goodwin,

84 Ohio St.3d 331, 344-45 , 703 N.E.2d 1251, 1263 (1999) (holding that shooting in the head at point-blank range showed that the defendant killed the victim purposely despite defendant’s claim that the “gun just went off”). Further support for the purposefulness of the murder comes from Armstrong’s testimony that as the robber shot Fisher, he proclaimed, “Now you’re playing, bitch.” Tr. Vol. VI (Trial), at 1174r-75.

At trial the parties disputed the identity of the shooter, not whether the shooter purposefully killed Fisher. “[A]n instruction on the lesser included offense of involuntary manslaughter will be given in a murder trial only when, on the evidence presented, the jury could reasonably find against the state on the element of purposefulness and still find for the state on

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the defendant’s act of killing another.”

Thomas,

40 Ohio St.3d at 216 , 633 N.E.2d at 289. Accordingly, the trial evidence did not warrant an instruction on involuntary manslaughter even if Madrigal had not defaulted the claim.

As to claim 15, Madrigal makes a freestanding actual innocence claim. Such claims are not cognizable.

Herrera v. Collins,

506 U.S. 390, 404 , 113 S.Ct. 853 , 122 L.Ed.2d 203 (1993) (“[A] claim of ‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.”);

Appleman v. Turner,

52 F.3d 324 (6th Cir.1995) (“petitioner’s claim of actual innocence does not entitle him to habeas corpus relief absent an independent constitutional violation in the criminal proceeding”). The

Herrera

court further stated, in dicta, that an actual innocence claim might be cognizable “if there were no state avenue open to process such a claim.”

Id.

at 417 , 113 S.Ct. 853 . The Supreme Court noted, however, that even if such a claim were cognizable, “the threshold showing for such an assumed right would necessarily be extraordinarily high.”

Id.

Madrigal does not make such a showing.

Even if the claim was cognizable, Madrigal offers no new evidence to support this claim. Instead, he rehashes his argument that “had the jury in this case been provided with defense counsel’s requested instruction allowing for conviction of a lesser included offense, Petitioner may well not have been convicted of capital murder” when “Petitioner is innocent of capital murder.” Therefore, Madrigal’s freestanding actual innocence claim also fails.

2. Res Judicata

Next, Respondent Bagley argues that Claims 9, 11, and 12 are procedurally barred because the state court applied the doctrine of res judicata to dismiss the claims. In Claim 9, Madrigal asserts that his trial counsel denied him effective assistance when he failed to file a motion for a change of venue. With his eleventh claim, Madrigal complains that his trial counsel’s ineffective performance deprived him of adequate mitigation. Claim 12 alleges prosecutorial misconduct.

Under Ohio law, an issue that is not raised by a petitioner on direct appeal is subsequently barred based on the doctrine of res judicata.

See, e.g., State v. Combs,

100 Ohio App.3d 90, 97 , 652 N.E.2d 205, 209 (Ohio Ct.App.1994) (holding that res judicata stops post-conviction relief for claims that could have been raised on direct appeal);

Perry,

10 Ohio St.2d at 175-76 , 226 N.E.2d at 105-06 (syl.). Courts consider such issues waived for federal habeas purposes.

See Norris v. Schotten,

146 F.3d 314, 332 (6th Cir.1998) (quoting

Rust v. Zent,

17 F.3d 155, 160 (6th Cir.1994)).

But “where a state appellate court did not rely on the procedural default, but reached the merits of a claim, the [procedural] bar is inapplicable.”

Meeks v. Bergen,

749 F.2d 322, 325 (6th Cir.1984).

The Court examines each claim below to determine if the procedural bar applies,

a. Claim 9—Failure to Move for Change of Venue

With his ninth claim, Madrigal asserts that his trial counsel denied him effective assistance when he failed to file a motion for a change of venue. Madrigal first raised this claim in his post-conviction relief motion. The trial court reviewing the post-conviction petition found the res judicata doctrine barred the claim because Madrigal brought the claim for the first time in his post-conviction proceedings although he could have raised it on direct appeal. Alternatively, the trial court concluded that the claim failed on the merits.

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The state appellate court affirmed the judgment of the Lucas County Common Pleas Court. The Ohio Supreme Court declined to exercise jurisdiction over Madrigal’s subsequent appeal.

Respondent Bagley contends that the Ohio trial and appellate court’s application of the state procedural bar stops the Court from considering this claim in federal ha-beas. Responding, Madrigal says that the trial court reached the merits of the claim instead of relying upon the res judicata doctrine. He further says that, even if the trial court did apply a procedural bar to the claim, the state appellate court did not enforce the procedural bar because the appellate court addressed the merits of the claim. Therefore, he claims that the state does not meet the second prong of the

Maupin

test.

Madrigal is partially correct. The Lucas County Common Pleas Court did deny Madrigal’s claim on the basis of res judica-ta. It said “Original appellate counsel has [sic] the opportunity to raise this matter on appeal. Even if the claims were not barred by res

judicata,

they would fail.” In accordance with its alternative holding, it then discussed the voir dire proceedings and concluded that “insufficient evidence of prejudice exists on the claim that Madrigal’s attorneys should have requested a change of venue.”

State v. Madrigal,

No. CR96-5761, *15 (Ct. Common Pleas, Lucas Co. June 15, 1999). The trial court’s alternative holding on the merits does not stop the application of the procedural bar. The trial court clearly stated that its merits examination was an alternative holding.

Harris v. Reed,

489 U.S. 255 , 264 n. 10, 109 S.Ct. 1038 , 103 L.Ed.2d 308 (1989) (noting that a federal court need not reach the merits of a habeas petition where the last state-court opinion clearly and expressly rested upon procedural default as an alternative ground).

However, the Ohio appellate court, the last state court rendering a judgment, did not clearly and expressly apply the res judicata doctrine to the claim.

In his appeal to the state appellate court of the denial of his post-conviction petition, Madrigal made two separate claims. First, he challenged the trial court’s dismissal of his petition without an evidentia-ry hearing. With this claim, Plaintiff Madrigal says he presented sufficient facts to require a hearing. He also objected to the trial court’s finding that res judicata stopped his claims. Specifically, he framed the issues as follows:

Did the trial court err in dismissing a post-conviction Petition where it was supported by sufficient operative facts to merit an evidentiary hearing and discovery?

Did the trial court err in applying the doctrine of res judicata to claims in a post-conviction Petition that were supported by evidence dehors the record?

App. to Return of Writ, Vol. VIII, (Post-conviction), Ex. 28 at 242.

In Ohio, courts may dismiss a post-conviction relief petition without an evidentia-ry hearing in two instances. First, courts may dismiss such a petition without an evidentiary hearing where the res judicata doctrine stops the claims.

Perry,

10 Ohio St.2d 175 , 226 N.E.2d 104 . “To overcome the res judicata bar, the evidence offered dehors the record must demonstrate that the petitioner could not have appealed the constitutional claim based upon information in the original [trial] record.”

State v. Lawson,

103 Ohio App.3d 307 , 659 N.E.2d 362, 367 (Ohio Ct.App.1995) (citation omitted). Therefore, in analyzing whether a trial court properly applied the res judica-ta doctrine, reviewing courts look to see if the petitioner’s evidence is new evidence that was unavailable in the original decision.

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More generally, even when the doctrine of res judicata does not apply, Ohio Rev. Code Ann. § 2958.21 (C) allows courts to dismiss a petition without an evidentiary hearing if no substantive grounds for relief exist. In pertinent part, Ohio Rev.Code Ann. § 2953.21(C) states:

Before granting a hearing on a petition filed under division (A) of this section, the court shall determine whether there are substantive grounds for relief

In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court’s journal entries, the journalized records of the clerk of the court, and the court reporter’s transcript. The court reporter’s transcript, if ordered and certified by the court, shall be taxed as court costs. If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal.

Ohio Rev.Code Ann. § 2953.21(C) (emphasis added).

In contrast to the res judicata review, section 2953.21(C) requires the state appellate court to determine if the trial court erred in determining that substantive grounds for relief did not exist. Here, the appellate court’s, discussion resolving Madrigal’s ninth claim blurs the res judicata and substantive merits analyses. On the one hand, the state court of appeals acknowledges that Madrigal challenges the post-conviction relief court’s application of the res judicata doctrine:

Appellant next argues that he received ineffective assistance of trial counsel because his attorneys did not ask for a change of venue after conducting voir dire. He says every juror had knowledge of the case prior to trial because of their exposure to media coverage.

He argues that the trial court erred when it ruled that res judicata applied became he could have raised the issue on direct appeal. He says that he could not litigate this issue on direct appeal because his argument relies on evidence outside the record.

He points to the evidence outside the record that he did file. The evidence includes an affidavit from his stepfather who averred that he heard a radio disc jockey from 92.5 FM say “burn the nigger” when commenting on appellant’s trial and copies of all the articles that appeared in the

Toledo Blade

relating to the robbery and murder, the description of the suspect sought by the police and appellant’s arrest and indictment. He says that he could not get a fair and impartial jury because of the extensive media coverage and that his trial was prejudiced because his trial attorneys did not seek a change of venue.

App. to Return of Writ, Vol. VIII, (Post-conviction), Ex. 31 at 488.

But then the appellate court reviewing the post-conviction court’s decision appears to reach the merits of the claim. Specifically, the appellate court examines both the

voir dire

evidence in the record and the evidence

dehors

the record, concluding that this evidence did not show that pretrial publicity had prejudiced Madrigal from getting a fair trial:

While the evidence dehors the record offered by appellant in this case certainly does provide more detail regarding the content of the media coverage of: 1) the crime; 2) the search for a suspect; and 3) appellant’s arrest and arraignment than the trial record showed, it does not, as appellant asserts,

show that he was prejudiced from having a fair trial.

While some jurors indicated that

*761

they did have some memory of reports about a robbery and murder at a Kentucky Fried Chicken restaurant, all of the jurors selected indicated that they could set aside all that they learned through media coverage and could base their verdict solely on the evidence heard at trial. Accordingly, the trial court did not err when it ruled that the evidence dehors the record was not sufficient to warrant an evidentiary hearing on the question of whether the appellant received ineffective assistance of counsel when his attorneys did not seek a change of venue due to pretrial publicity-

App. to Return of Writ, Vol. VIII, (Post-conviction), Ex. 31 at 489-90 (emphasis added).

As discussed, the standard for res judi-cata is whether, on direct appeal, the petitioner could have raised the issue with evidence available at the time of the direct appeal. The appellate court’s language does not directly address that standard. Instead, the appellate court’s language suggests that it gave substantive consideration to the claim.

The appellate court’s treatment of Madrigal’s other claims supports a finding that the appellate court gave substantive, not solely procedural, consideration of the change of venue claim. In rejecting Madrigal’s ineffective assistance claim relating to his trial counsel’s failure to object to a misleading jury instruction during the mitigation hearing, the appellate court clearly applies the res judicata standard:

Both of the exhibits referred to by appellant as essential proof outside the record present intellectual arguments

that could have been argued on direct appeal. Therefore, the exhibits were not substantial evidence that triggered an obligation on the part of the trial court to hold an evidentiary hearing on this claim.

App. to Return of Writ, Vol. VIII., (Post-conviction), Ex. 31 at 492. The appellate court then goes on to say that its merits holding is alternative, “in any event, appellant’s claim for ineffective assistance of counsel on that basis [the substantive merits] fails.” App. to Return of Writ, Vol. VIII., (Post-conviction), Ex. 31 at 493. Regarding Madrigal’s ineffective assistance claim relating to the failure to move for a change of venue, the reliance upon the procedural default is not apparent.

Finally, besides confusing the res judica-ta and substantive merit analyses, the appellate court makes no plain statement that it is resting its decision on the procedural bar.

Harris

extended the “plain statement” rule of

Michigan v. Long,

463 U.S. 1032 , 103 S.Ct. 3469 , 77 L.Ed.2d 1201 (1983), to federal habeas corpus review.

Harris,

489 U.S. at 263 , 109 S.Ct. 1038 . Under

Harris ,

“a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar.”

Id.

(citing

Caldwell v. Mississippi,

472 U.S. 320, 327 , 105 S.Ct. 2633 , 86 L.Ed.2d 231 (1985) (quotation omitted) (emphasis added)).

The state court inferred that its holding was based on the procedural bar by mentioning Madrigal’s res judicata argument. Nonetheless, the appellate court avoids explicit reliance on a state procedural bar. Further, the state appellate court appears to reject the federal ineffective assistance claim on the merits. And in doing so, it appears to have interwoven federal law with state law. “[T]he Harris presumption is to be applied only after it has been determined that ‘the relevant state court decision ... fairly appear[s] to rest primarily on federal law or is interwoven with [federal] law.’ ”

Ylst v. Nunnemaker,

501

*762

U.S. 797, 802, 111 S.Ct. 2590 , 115 L.Ed.2d 706 (1991) (quoting

Coleman,

111 S.Ct. at 2559 ). As a result, the reference to res judicata is insufficient to show the court intended to principally rely upon res judi-cata in dismissing the claim.

See Long,

463 U.S. at 1040-1041 , 103 S.Ct. 3469 .

In sum, the appellate court’s decision is ambiguous as to whether it rested its decision on the procedural bar. It made no plain statement that the procedural bar caused its decision. Since the state appellate court did not “clearly and expressly” state that its judgment rested on the state procedural bar and since its analysis involves both state and federal law, Madrigal’s claim 9 is ripe for federal habeas review.

b. Claim 11 — Ineffective Assistance of Counsel at Mitigation

Madrigal’s eleventh claim asserts that he had inadequate representation at the mitigation stage. He argues that his two defense attorneys should have requested more time to investigate his background; presented more witnesses during mitigation; prepared the witnesses better; hired different expert witnesses; and let him decide the dispute his counsel had over presentation of mitigation witnesses.

Respondent Bagley responds that portions of this claim cannot be raised in a federal habeas proceeding because they were procedurally defaulted when the Ohio appellate court applied the res judicata procedural bar. Specifically, she says that Madrigal’s ineffective assistance of counsel claims regarding the failure to request a continuance, failure to object to prosecuto-rial misconduct during the mitigation phase, and deficient performance during the mitigation phase are procedurally barred. As to other arguments in claim 11, Bagley concedes that the remaining arguments are not procedurally barred.

Madrigal argues that the claim was not procedurally defaulted because, while the state court discussed res judicata in connection with several of his other sub-claims, both the trial court and the state court of appeals addressed the merits of Madrigal’s eleventh claim.

Madrigal is partially correct. While the trial court applied the res judicata doctrine to stop Madrigal’s claims,

see State v. Madrigal,

No. CR96-5761, *12 (“Even if the claims were not barred by res judicata, they would fail.”), the appellate court made no “plain statement” that its decision rested on the state procedural bar.

First, in addressing Madrigal’s claim that his attorney rendered deficient performance during the mitigation hearing, the appellate court made no mention of the trial court’s use of the res judicata doctrine to stop this claim. In contrast, the appellate court expressly mentions the res judi-cata doctrine in connection with other of Madrigal’s claims. Instead, the court of appeals addressed the substantive merits of the ineffective assistance claim, stating:

Appellant also argues that the trial court erred when it ruled he was not entitled to an evidentiary hearing on his claims of ineffective assistance of counsel relating to the mitigation hearing portion of his trial_Appellant says that he presented sufficient evidence outside of the record to show that relevant information about his background was not discovered or presented at trial. He argues that the jury was given such an incomplete picture of his childhood, it could not reasonably decide if the mitigating evidence outweighed the aggravating circumstances of the crime.

He says his trial counsel fell below an objective standard of reasonable representation

because they did not completely investigate his background and did not adequately prepare the witnesses they did call on his behalf during the mitigation hearing.

He says his case

*763

was prejudiced,

since his trial attorneys had the chance to do the most good for him during the mitigation phase of the trial.

App. to Return of Writ, Vol. VIII, (Post-conviction), Ex. 31 at 482-83 (emphasis added).

After reciting the federal ineffective assistance of counsel standard, the appellate court discussed Madrigal’s evidence outside the trial court record and the trial court’s treatment of it:

The trial court ruled that the additional information offered by appellant’s relatives through affidavits was merely cumulative to the testimony that the jury heard during the mitigation portion of appellant’s trial. The court also said that the additional information about appellant’s dismal upbringing was of questionable mitigating value.

The trial court concluded that there was no substantial evidence to show either that the representation provided by appellant’s trial counsel fell below an objective standard of reasonable representation or that appellant was prejudiced by the representation. The trial court therefore dismissed the claim without granting appellant an evidentiary hearing on the issue.

App. to Return of Writ, Vol. VIII, (Post-conviction), Ex. 31 at 484 (emphasis added).

Finally, the appellate court concluded: Our own careful review of the record and of the affidavits presented by appellant in support of his petition for post-conviction relief has led us to the same conclusions reached by the trial court. While the trial transcript does show that appellant’s stepparents were not as forthcoming as they might have been concerning the details of the difficulties appellant faced while growing up, the jury was provided with information that showed appellant’s upbringing was less than ideal_

like the trial court, we conclude that the evidence outside the record is only cumulative of the evidence that was presented to the jury, and that appellant was not prejudiced by his trial counsel’s failure to present the further evidence since it still would not have outweighed the aggravating circumstances of the

crime....

Therefore, appellant’s arguments that he received ineffective assistance of counsel relating to the mitigation hearing portion of his trial are not well-taken.

App. to Return of Writ, Vol. VIII., (Post-conviction), Ex. 31 at 487 (Emphasis added).

Nowhere in this discussion does the court mention res judicata or the standards that the reviewing courts apply to a trial court’s application of the res judicata doctrine.

Therefore, since the last state court to render a judgment did not clearly and expressly apply the res judicata doctrine, Madrigal did not procedurally default the portions of claim 11 relating to his attorneys’ failure: 1) to request more time to investigate his background; 2) to present more witnesses during mitigation; 3) to adequately prepare the witnesses; 4) to hire a competent expert witness; and 5) to let him decide a dispute they had over presentation of mitigation witnesses.

However, Madrigal did procedurally default a portion of claim 11 because he did not raise it in state courts. Specifically, he did not raise his claim that his attorney rendered ineffective assistance when he incongruously argued residual doubt as a mitigating factor while also expressing an unqualified acceptance of the jury’s guilty verdict. Under Ohio’s post-conviction statute, issues raised for the first time in post-conviction are procedurally defaulted on habeas corpus.

Engle v. Isaac,

456 U.S.

*764

107, 125 n. 28, 102 S.Ct. 1558 , 71 L.Ed.2d 783 (1982).

c. Claim 12 — Prosecutorial Misconduct

For his twelfth claim, Madrigal argues that the prosecutor violated his constitutional rights by improperly arguing a non-statutory aggravating factor of future dangerousness to the jury at mitigation. During the state post-conviction relief action, the trial court applied the res judicata rule to the claim. Alternatively, the court determined that the claim failed on the merits. The state appellate court affirmed the judgment of the Lucas County Common Pleas Court. The Ohio Supreme Court declined to exercise jurisdiction over Madrigal’s subsequent appeal.

Respondent Bagley contends that the Court cannot consider this claim in a federal habeas action because Madrigal could have raised it on direct appeal. By failing to raise this issue on direct appeal, Bagley claims Madrigal procedurally defaulted the claim. Responding to this argument, Madrigal claims that the procedural bar does not apply because the appellate court’s denial of the claim was based on its merits. Stated otherwise, Madrigal says the res judicata rule does not apply because the appellate court that reviewed the denial of post-conviction relief did not rely upon this argument.

During the post-conviction relief action, the trial court expressly applied the res judicata doctrine to Madrigal’s claim, concluding that Madrigal “failed to demonstrate that most of his claims could not have been fully addressed on appeal based on the original record and therefore res judicata applies.”

State v. Madrigal,

No. CR96-5761, *11. Besides its finding that res judicata applied to the claim, the Lucas County Common Pleas Court alternatively found that the claim failed on the merits. Specifically, the court addressed the comments made by the prosecutor in her closing argument. In its review, the trial court determined that “the Supreme Court of Ohio specifically allowed such comments to be made in closing argument” and “prosecutors are entitled to latitude as to what the evidence has shown and what inferences can reasonably be drawn from the evidence.”

Id.

When the state court reaches the merits of a claim, an alternative holding based on a procedural bar prevents federal courts from hearing the claim in a habeas corpus action, “as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision.”

Reed,

489 U.S. at 265 n. 10, 109 S.Ct. 1038 . However, under the

Harris

rule, procedural default does not apply “unless the last state court rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar.”

Id.

at 263 , 109 S.Ct. 1038 . In this case, the last state court rendering a judgment was the appellate court. The state court of appeals reached the merits of Madrigal’s claim that the prosecutor engaged in misconduct instead of clearly applying the state procedural bar. Specifically, the appellate court stated:

Likewise, appellant’s argument that the prosecutor engaged in prejudicial misconduct is unpersuasive.

The record shows that appellant presented testimony that he adjusted well to prison life and argued that should be considered a mitigating factor. In closing argument, the prosecutor argued that appellant’s adjustment to prison life was entitled to little weight in the view of the fact that he would still, at some point, be entitled to be released from prison if he did not receive the death penalty, and argued that he would still be dangerous because of his personality disorder. The Supreme Court of Ohio has said on at least two occasions that prosecutorial remarks regarding the future dangerousness of a

*765

criminal are permissible in a rebuttal closing argument, [citations omitted].

The future dangerousness of appellant was not presented as an aggravating factor to consider in the jury instructions. The trial court did not err when it ruled that appellant was not entitled to an evidentiary hearing on this claim.

App. to Return of Writ, Vol. VIII., (Post-conviction), Ex. 31 at 493-94 (Emphasis added). Further, the appellate court referenced the federal prosecutorial misconduct standard when it considered the prosecutor’s discussion of future dangerousness.

See Smith v. Phillips,

455 U.S. 209, 219 , 102 S.Ct. 940 , 71 L.Ed.2d 78 (1982). Therefore, the appellate court’s analysis is interwoven with federal law. Because the appellate court, the last court to make a reasoned decision, did not clearly and expressly rest its decision on the res judicata doctrine, Madrigal’s twelfth claim is not procedurally barred.

3. Plain Error Review

As his fifth claim, Madrigal asserts the trial court’s instruction on weighing aggravating and mitigating circumstances was unconstitutional. Therefore, he says his trial counsel rendered ineffective assistance of counsel when he failed to object to the weighing instructions.

In the post-conviction action, the trial court dismissed this claim based on the res judicata doctrine. The appellate court affirmed the dismissal based on the procedural bar. The Ohio Supreme Court conducted a plain error review and affirmed the lower state courts’ decisions.

Respondent Bagley argues that Madrigal’s fifth claim is procedurally defaulted because the Ohio Supreme Court rested its decision on a procedural bar though it also conducted a plain error review. Madrigal says that his trial counsel’s ineffectiveness in failing to object to the improper instruction constitutes cause to excuse the procedural default.

Plain error review by a state appellate court does not open a claim to consideration on federal habeas when the state court otherwise finds the claim procedurally barred.

Paprocki v. Foltz,

869 F.2d 281, 284-5 (6th Cir.1989). An ineffective trial counsel may be cause sufficient to excuse a procedural default, but the petitioner must show both cause and prejudice to excuse the default.

See Thompson,

501 U.S. at 750-51 , 111 S.Ct. 2546 .

The two part

Strickland

analysis governs Sixth Amendment claims of ineffective assistance of counsel.

Strickland v. Washington,

466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Under this standard, to succeed on an ineffective assistance of counsel claim, a petitioner must show:

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

Strickland,

466 U.S. at 687 , 104 S.Ct. 2052 .

The trial court instructed the jury:

[I]f the aggravating circumstances outweigh the mitigating factors, your sentence should be death. If the mitigating factors outweigh the aggravating circumstances, then your verdict may

*766

be life with parole eligibility after a term of twenty or thirty full years has been served. If the mitigating factors outweigh the aggravating circumstances, then your verdict shall be life with parole eligibility after a term of either 20 or 30 full years has been served.

Tr. Vol. XIII, (Mitigation & Sentencing) at 247-48 (Emphasis added). The instructions are not a correct statement of Ohio law. Ohio’s death penalty statute does not require mitigating factors to outweigh aggravating circumstances before a jury may impose a life sentence. Instead, Ohio Revised Code section 2929.03(D)(2) provides that a jury shall impose a life sentence absent a finding that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt.

Assuming that Madrigal’s attorney was deficient in failing to object to the weighing instruction, Madrigal does not show prejudice. The erroneous instruction in Madrigal’s case was harmless in light of numerous other correct instructions. This included at least four correct statements of the law in the jury charge. Notably, the trial court instructed the jury that “If you do not unanimously find that the aggravating circumstances outweigh the mitigating factors, you shall unanimously recommend ... a life sentence.” Tr. Vol. XIII, (Mitigation & Sentencing) at 247-248. This instruction tells the jury their verdict should be for the defendant if they find that the aggravating and mitigating circumstances are in equipoise. Additionally, the jury verdict forms correctly stated the weighing procedure. Furthermore, the jury only deliberated for two hours before returning with a sentence, and at no time during their deliberations did they reflect that were having difficulty reaching a decision. After reviewing the instructions as a whole, the Court concludes that Madrigal’s attorney’s failure to object to the improper instruction did not deprive Madrigal of a fair trial whose result is reliable.

Accordingly, Madrigal does not establish prejudice sufficient to excuse the procedural default of his fifth claim.

In sum, the Court finds that Madrigal procedurally defaulted several of his claims. He does not establish cause and prejudice to excuse the default. He also fails to meet the miscarriage of justice standard. Therefore, the Court does not consider Claims 2, 5, and 15, and portions of Claim 11 on federal habeas review.

Upon review of the record, the Court finds that Madrigal properly preserved for federal habeas review Claims 1, 3-4, 6-10, portions of claim 11, and Claims 12-14. Accordingly, the Court turns to the merits of these claims.

IV. Standard and Analysis

A. Antiterrorism and Effective Death Penalty Act of 1996

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) prohibits a federal court reviewing a state court adjudication from granting a habeas petition 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.A. § 2254 (d)(1). Specifically, the AEDPA states:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or

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

*767

tion of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254 (d).

All of Madrigal’s claims include mixed questions of law and fact for which 28 U.S.C. § 2254 (d)(1) provides the applicable standard of review. Further, for several of his claims, Petitioner Madrigal does not seek review of the state court’s description of the applicable legal principles, but instead, that court’s application of those principles to the facts of his case. Therefore, the Court considers those claims under § 2254(d)(l)’s “unreasonable application” clause.

The U.S. Supreme Court interpreted § 2254(d)(1) in

Williams v. Taylor,

529 U.S. 362 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). “In determining whether a decision is contrary to or involved an unreasonable application of clearly established federal law,” federal courts may only look to the “holdings, as opposed to the dicta, of the Supreme Court’s decisions as of the time of the relevant state-court decision.”

Bulls v. Jones,

274 F.3d 329, 333 (6th Cir.2001) (citing

Williams,

529 U.S. at 412 , 120 S.Ct. 1495 (2000)) (internal punctuation omitted).

A state court decision is “contrary to” clearly established federal law “if the state court applies a rule that contradicts the governing law set forth in Supreme Court cases,” or “if the state court confronts a set of facts that are materially indistinguishable from a [Supreme Court] decision ... and nevertheless arrives at a result different from [Supreme Court] precedent.”

Id.

(quoting

Williams,

529 U.S. at 405-06 , 120 S.Ct. 1495 ).

A decision is an “unreasonable application” of clearly established federal law “if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.”

Id.

However, “the term ‘unreasonable’ is not synonymous with ‘incorrect.’ ”

Schoenberger v. Russell,

290 F.3d 831, 834 (6th Cir.2002) Therefore, “ ‘a federal habe-as court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.’ ”

Schoenberger,

290 F.3d at 834 (quoting

Williams,

529 U.S. at 411 , 120 S.Ct. 1495 ). “Instead, the correct inquiry is ‘whether the state court’s application of clearly established federal law was objectively unreasonable.’”

Schoenberger,

290 F.3d at 834 (quoting

Williams,

529 U.S. at 410 , 120 S.Ct. 1495 ).

V. Grounds For Relief

The Court now reviews Petitioner Madrigal’s grounds for relief. As explained below, the Court finds that, except for Claim 1, Madrigal fails to show that the state courts’ determination of the facts in light of evidence presented was unreasonable or that the state courts’ application of controlling law was unreasonable. As to his first claim, the Court finds that the Ohio Supreme Court’s conclusion that the admission of co-defendant Chris Cathcart’s statements did not have “a substantial and injurious effect or influence in determining the jury’s verdict” was objectively unreasonable. The Court therefore grants Madrigal a writ of habeas corpus.

ALLEGED TRIAL COURT ERRORS

With his petition, Madrigal makes six allegations of trial court errors (Claims 1-6). The Court examines each argument below.

A. Claim 1: Trial Court Violated the Confrontation Clause by Admitting Co-Defendant’s Statements

For his first ground for relief, Madrigal argues that the admission of two state

*768

ments by his co-defendant Chris Cathcart violated his constitutional rights under the Confrontation Clause. The statements, which various prosecutors read to the jury, exceed 70 pages of transcript testimony. In the first statement, Cathcart denied knowledge of a planned robbery at the KFC. In the statement, Cathcart said Madrigal asked him to visit a “girl’s” house with him. According to Cathcart’s statement, he fell asleep in the car and woke up at the KFC. After he woke up, Madrigal jumped in the car and they drove off. In his first statement, Cathcart said that he found out about the robbery the next day on the news.

Cathcart made his second statement four hours after his first statement. With this statement, Cathcart admitted that he knew Madrigal intended to rob the KFC. In the second statement, Cathcart acknowledged having agreed to ride along with Madrigal. According to Cathcart, Madrigal went into the KFC alone and returned three to five minutes later. Cathcart claimed in this statement that Madrigal did not tell Cathcart about the shooting. Madrigal and Cathcart returned to Madrigal’s house and counted the money.

At trial, Cathcart refused to testify, invoking his Fifth Amendment rights. The trial court, over defense counsel’s objections, allowed the prosecuting attorneys to read both of Cathcart’s entire statements into the record. In reading the statements into the record, one prosecuting attorney “played” the role of the police officer while another person assumed Cathcart’s role. The admission of the statements constituted 79 pages of the trial record.

The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. That guarantee includes the right to cross examine witnesses.

Pointer v. Texas,

380 U.S. 400, 404 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 (1965). Statements by a non-testifying accomplice “that implicate a defendant are presumptively unreliable and their admission violates the Confrontation Clause.”

Bulls,

274 F.3d at 334 (citing

Douglas v. Alabama,

380 U.S. 415, 419 , 85 S.Ct. 1074 , 13 L.Ed.2d 934 (1965));

See also Wainwright,

469 U.S. at 428 , 105 S.Ct. 844 (“[A] finding [of juror bias] is based upon determinations of demeanor and credibility that are peculiarly within a trial judge’s province.”). As the

Reynolds v. United States,

98 U.S. 145, 156-57 , 25 L.Ed. 244 (1878) court explained:

[T]he manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words. That is seen below, but cannot always be spread upon the record. Care should, therefore, be taken in the reviewing court not to reverse the ruling below upon such a question of fact, except in a clear case.

Id.

Here, the fact that the same prosecutor and police officer were involved in both Madrigal’s case and Michael’s prior crimi

*779

nal case is enough for a trial judge to remove the juror for cause.

See United States v. Redmond,

546 F.2d 1386, 1389 (10th Cir.1977) (upholding excusal of jurors who were acquainted with any attorneys in the case),

cert. denied,

435 U.S. 995 , 98 S.Ct. 1645 , 56 L.Ed.2d 83 (1978). Further, the trial court has the discretion to excuse a juror when it “is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.”

Witt,

469 U.S. at 426 , 105 S.Ct. 844 . “[Reviewing courts] give considerable deference to the court’s decision to excuse a juror on this basis, because such decisions are based in large part on its face-to-face credibility assessment of the prospective jurors.”

See id.

at 426-29 , 105 S.Ct. 844 (discussing universal reasons for deference). Although the trial court did not question Michael about his prior conviction or his experience with the prosecutor, it did question Michael face to face. Therefore, the trial court had the best opportunity to make a credibility determination.

Finally, Madrigal does not dispute that the prosecutor and police officer worked on both eases. Therefore, although the trial court did not strictly follow the proper voir dire procedure, it did not abuse its discretion in dismissing Michael for cause. Consequently, the Court denies Madrigal’s third claim.

D. Claim 4: Trial Court Improperly Instructed the Jury

With his fourth claim, Madrigal asserts that the trial court violated his Eighth and Fourteenth Amendment constitutional rights by failing to expressly tell the jury that a single juror could prevent the imposition of the death penalty. According to Madrigal, the trial court’s sentencing instruction improperly instructed the jury that a life sentence had to be by unanimous vote.

At trial, Madrigal’s attorney asked the court to give the jury a

Brooks

instruction. Specifically, Madrigal’s attorney asked the trial court to instruct the jury as follows:

It is not necessary that you, as a jury, unanimously reject death as the appropriate sentence before considering a life sentence. There is no presumption that death is the appropriate sentence. If any one of you find that the aggravating circumstance does not outweigh the mitigating factors beyond a reasonable doubt, then you must deliberate the appropriate life sentence.

App. to Return of Writ, Vol. IV, (Ohio Supreme Ct. Direct B), Ex. 11.at 135-138. In

State v. Brooks,

75 Ohio St.3d 148 , 661 N.E.2d 1030 (1996), the Ohio Supreme Court held that:

In Ohio a solitary juror may prevent a death penalty recommendation by finding that the aggravating circumstances in the case do not outweigh the mitigating factors. Jurors from this point on should be so instructed..

Id.

at 162 , 661 N.E.2d 1030 .

Instead of giving the jury the

Brooks

instruction verbatim, the trial court told the jury:

You shall recommend the sentence of death if all 12 jurors find beyond proof — by proof beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors. If you do not unanimously find that the aggravating circumstances outweigh the mitigating factors, you shall unanimously recommend either a life sentence with parole eligibility after 20 years of imprisonment or a life sentence with parole eligibility after serving 30 years of imprisonment.

Tr. Vol. XIII (Mitigation

Sentencing) at 247-248.

*780

On direct appeal, the Ohio Supreme Court rejected Madrigal’s claim and upheld the sentencing instruction. The Ohio Supreme Court reasoned that although the trial court’s instruction did not include the

Brooks

instruction verbatim, the instruction was consistent with Ohio Rev.Code Ann. § 2929.03(D)(2). In contrast, the Ohio Supreme Court noted that the error in

Brooks

involved a misstatement of Ohio law. Namely, in

Brooks ,

the court told the jury that they had to unanimously find that death was inappropriate before they could consider a life sentence. The Ohio Supreme Court stated that, unlike in

Brooks ,

in Madrigal’s case, the trial court did not tell the jury that it could not consider a life sentence until it decided that a death sentence was inappropriate. Therefore, the Ohio Supreme Court concluded that the trial court did not commit the

Brooks

error because, although the trial court did not give the exact

Brooks

instruction, it gave the substance of the

Brooks

instruction. Specifically, the instructions as a whole adequately apprized the jurors that a single juror could prevent a death sentence by finding that the aggravating circumstances did not outweigh the mitigating factors.

The Court decides whether the Ohio Supreme Court’s decision is contrary to or an unreasonable application of

Estelle v. McGuire,

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

In deciding whether an erroneous jury instruction deprived a defendant of his constitutional rights, the standard is “ ‘whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.’ ”

Estelle,

502 U.S. at 72-73 , 112 S.Ct. 475 (quoting

Cupp v. Naughten,

414 U.S. 141, 147 , 94 S.Ct. 396 , 38 L.Ed.2d 368 (1973)). The

Estelle

court further concluded that “in reviewing an ambiguous instruction ... [courts] inquire ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.”

Id.

(citation omitted). But the “fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief.”

Id.

at 71-72 , 112 S.Ct. 475 . Further, the jury must view the instruction “in the context of the instructions as a whole and the trial record.”

Id.

at 72 , 112 S.Ct. 475 (citing

Cupp,

414 U.S. at 147 , 94 S.Ct. 396 ). Finally, the Supreme Court “ha[s] defined the category of infractions that violated ‘fundamental fairness’ very narrowly.”

Id.

at 73, 112 S.Ct. 475 , quoting

(Dowling v. United States,

493 U.S. 342, 352 , 110 S.Ct. 668 , 107 L.Ed.2d 708 (1990)).

Madrigal objects to the trial court’s failure to give the

Brooks

instruction verbatim. He further alleges that the trial court’s instructions improperly led the jury to believe that the decision to opt for a life sentence as opposed to a death sentence was required to be unanimous. According to Madrigal, the instruction should have more clearly indicated that it only takes one juror to prevent a death sentence and instead impose a life sentence. Continuing, Madrigal says that this erroneous instruction created the risk that individual jurors might believe that their single vote could not affect the sentence. Madrigal relies on

Mapes v. Coyle,

171 F.3d 408 (6th Cir.1999) and

Mills v. Maryland,

486 U.S. 367 , 108 S.Ct. 1860 , 100 L.Ed.2d 384 (1988) as support for his assertion.

Madrigal is incorrect. First, Madrigal’s instructions were not incorrect under Ohio law. The Ohio Supreme Court has held that instructions that implicitly tell jurors that a single juror could prevent the death penalty are consistent with Ohio Rev.Code Ann. § 2929.03(D)(2).

See State v. Smith,

97 Ohio St.3d 367, 372 , 780 N.E.2d 221 (2002);

State v. Stallings,

89 Ohio St.3d 280, 293 , 731 N.E.2d 159 (2000).

*781

Additionally, the Constitution does not require an express “hold out” juror instruction that informs a jury of the consequences of its inability to reach a unanimous verdict.

See Coe v. Bell,

161 F.3d 320 at 339-340 (6th Cir.1998). In

Coe ,

the court upheld a sentencing instruction that read:

If you unanimously determine that no statutory aggravating circumstance has been proved by the State beyond a reasonable doubt; or if the Jury unanimously determine that [aggravating circumstances] have been proved by the State beyond a reasonable doubt; but that said [aggravating circumstances] are outweighed by one or more mitigating circumstances, the sentence shall be life imprisonment.

Id.

at 337 . The

Coe

court rejected the argument that the instructions were unconstitutional because they created a reasonable probability that the jurors believed that they could consider only those mitigating circumstances that they unanimously agreed were present.

Id.

at 338 . Specifically, the

Coe

court reasoned that the instructions did not require the jury to be unanimous “before it could even

consider

a particular mitigating factor.”

Id.

Although

Coe

dealt with the Tennessee death penalty statute instead of the Ohio capital statute and with unanimity as to mitigating factors, the underlying

Coe

reasoning applies here. Like the permissible

Coe

instructions that did not require the jury to be unanimous before considering a mitigating factor, Madrigal’s jury instructions did not require the jury to unanimously reject the death penalty before they could consider a life sentence. Instead, the instructions state that the jury had to be unanimous in

recommending

the death penalty. This is different from a requirement that the jury had to be unanimous in rejecting the death penalty before considering a life sentence.

Madrigal’s trial attorney acknowledged this distinction during the trial proceedings. In requesting the

Brooks

instruction, Madrigal’s attorney asked that the jury not be told that it had to “unanimously reject” the death penalty. In fact, when asked if Klucas didn’t “want them [the jury] told that you have to unanimously find?,” Klucas replied, “I don’t want them told that they have to unanimously reject.” Tr. Vol. XIII (Mitigation & Sentencing) at 20.

Further, the actual instructions stated

“If you do not unanimously find

that the aggravating circumstances outweigh the mitigating factors, you shall unanimously recommend either a life sentence_’’Al-though the instructions do not clearly say so, the phrase “If you do not unanimously find” adequately conveys the fact that the jurors could consider a life sentence if any one of them found that the aggravating circumstances did not outweigh the mitigating factors.

The Sixth Circuit has applied the

Coe v. Bell

reasoning in other cases. In

Scott v. Mitchell,

209 F.3d 854, 873-77 (6th Cir.2000), the court noted that jury instructions that require unanimity as to the overall weighing process as opposed to an individual mitigating factor are constitutionally permissible.

Scott,

209 F.3d at 875-76 . In

Byrd v. Collins,

209 F.3d 486 (6th Cir.2000), the court held that an “instruction that a jury verdict recommending a life sentence must be unanimous was a proper statement of Ohio law.”

Byrd,

209 F.3d at 528 .

Madrigal contends that

Scott

and

Byrd

are distinguishable because both cases went to trial before the

Brooks

decision. This argument fails to persuade the Court. As the Sixth Circuit explained, “[t]he only reliance on federal constitutional law in

Brooks

... is its citation to

Mills

in explaining why it would thenceforth require

*782

that Ohio jurors be explicitly instructed that ‘a solitary juror may prevent a death penalty recommendation by finding that the aggravating circumstances in the case do not outweigh the mitigating factors.’ ”

Scott,

209 F.3d at 876 (quoting

Brooks,

75 Ohio St.3d at 162 , 661 N.E.2d at 1042 ). The

Scott

court went on to note that “our

Coe

decision ... explicitly held that unanimity instructions like those in this case do not violate

Mills.” Id.

at 877.

Here, Madrigal’s instructions do not violate

Mills .

Mills v. Maryland,

486 U.S. 367 , 108 S.Ct. 1860 , 100 L.Ed.2d 384 (1988), the Supreme Court held that the following instructions were unconstitutional:

You must conclude whether the aggravating circumstance number two has been proven beyond a reasonable doubt. If you unanimously conclude that it has been so proven, you should answer that question yes. If you are not so satisfied, then of course you must answer no.

Id.

at 378 , 108 S.Ct. 1860 . In reaching this conclusion, the

Mills

court reasoned:

We conclude that there is a substantial probability that reasonable jurors, upon receiving the judge’s instructions in this case, and in attempting to complete the verdict form as instructed, well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance. Under our cases, the sentencer must be permitted to consider all mitigating evidence. The possibility that a single juror could block such consideration, and consequently require the jury to impose the death penalty, is one we dare not risk.

Id.

at 384 , 108 S.Ct. 1860 .

The problem with this instruction is not a unanimity problem, but, rather, that it does not allow for the possibility of any mitigating factors. The Supreme Court has interpreted

Mills :

Mills

requires that each juror be permitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of a death. This requirement means that ... each juror must be allowed to consider all mitigating evidence ... whether aggravating circumstances outweigh mitigating circumstances and whether the aggravating circumstances, when considered with any mitigating circumstances, are sufficiently substantial to justify a sentence of death. Under

Mills ,

such consideration of mitigating evidence may not be foreclosed by one or more jurors’ failure to find a mitigating circumstance.

McKoy v. North Carolina,

494 U.S. 433 at 443 , 110 S.Ct. 1227 , 108 L.Ed.2d 369 (1990). The instruction in Madrigal’s case does not have the unconstitutional effect of foreclosing consideration of any mitigating factors.

Further, the

Brooks

court only required that the jurors be told that a single juror be told that it could prevent the death penalty. It did not require that the trial court give a verbatim

Brooks

instruction.

Madrigal also misplaces his reliance on

Mwpes.

Mapes v. Coyle,

171 F.3d 408 , the Sixth Circuit found that instructions which require the jury to unanimously reject the death penalty before considering a life sentence do not comport with Ohio Rev.Code Ann. § 2929.03(D)(2). Specifically, the

Mapes

court held that the following instruction is constitutionally impermissible because it creates a risk of erroneous imposition of the death penalty:

Now, as I have indicated, if all twelve jurors find by proof beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors, that is the aggravating circumstances

*783

which he was found guilty, Specification 4 in each count, then you must return a finding to the Court.

I instruct you, as a matter of law, that if you make such finding then you have no choice and must recommend to the Court that the sentence of death be imposed on the defendant, David Mapes.

On the other hand, if after considering all of the relevant evidence raised at trial, the testimony, the other evidence, the unsworn statement of David Mapes, the evidence of the State of Ohio, and the arguments of counsel, you find that the State of Ohio faded to prove that the aggravating circumstances which the defendant, David Mapes, was found guilty of committing outweigh the mitigating factors, then you will return your verdict reflecting your decision.

That is, you must unanimously find that the State has failed to prove beyond a reasonable doubt that the aggravating circumstances of which the defendant was found guilty of committing outweigh the mitigating factors. In this event you will then proceed to determine which of two possible imprisonment sentences to recommend to the Court.

Mapes,

171 F.3d at 416 (Emphasis added).

In finding this instruction unconstitutional, the

Mapes

court noted that “the Ohio death-sentence statute contains no requirement that a capital jury must unanimously reject a death sentence before considering life imprisonment.”

Id.

Therefore, the

Mapes

court reasoned that the instructions were contrary to the Ohio sentencing statute because they “required] the jury to unanimously reject the death penalty before considering a life sentence.”

Id.

In particular, the

Mapes

court found the inclusion of the phrase “you will then proceed” important because it resulted in the jury having to reject the death sentence before considering life imprisonment.

Id.

Madrigal argues that the

Mapes

reasoning applies to his case because he says, like the

Mapes

jury, his jury had the same dangerous understanding that a decision to opt for a life sentence as opposed to a death sentence had to be unanimous. He further claims that this misunderstanding led to the risk that individual jurors might believe that their single vote could not affect the ultimate result. However, Madrigal’s instructions do not require the jury to unanimously reject the death penalty before

considering

a life sentence. Instead, the instructions require the jury to unanimously

recommend

the death sentence. Additionally, Madrigal’s instructions do not contain the phrase “you will then proceed.”

Finally, the decision in

Davis v. Mitchell,

318 F.3d 682 (6th Cir.2003), does not alter the analysis. In

Davis ,

the court determined that “any instruction requiring that a jury must first unanimously reject the death penalty before it can consider a life sentence likewise precludes the individual juror from giving effect to the mitigating evidence and runs afoul of

Mills.” Davis,

318 F.3d at 689 . The

Davis

court then found the following sentencing instructions to be unconstitutional:

If all twelve members of the jury find by proof beyond a reasonable doubt that the aggravating circumstances which Wiley Davis, Jr. was found guilty of committing outweigh the mitigating factors, if any, then you must return such finding.

On the other hand, if after considering all of the relevant evidence raised at trial ... you find that the State of Ohio failed to prove beyond a reasonable doubt that the aggravating circumstances which the defendant, Whey

*784

Davis, Jr., was found guilty of committing, outweigh the mitigating factors, then you will return your verdict reflecting your decision; that is, you

must

find that the State has failed to prove beyond a reasonable doubt that the aggravating circumstances which the defendant was found guilty of committing outweigh the mitigating factors.

In this event you will then proceed

to determine which of the two possible life imprisonment sentences to recommend to the Court.

Id.

at 684-685 (Emphasis added).

In reaching this conclusion, the

Davis

court reasoned:

[TJhere is a reasonable likelihood that the jury believed that it could not render a verdict in favor of life imprisonment rather than death unless the jury was unanimous with respect to its reasoning on the presence of mitigating factors and unless the jury was unanimous in rejecting the death penalty. Instructions that leave a jury with the impression that juror unanimity was required to mitigate the punishment from death to life imprisonment clearly violate the Eight Amendment.

Id.

at 685 . The

Davis

court ties this problem to the fact that it would be unconstitutional to require unanimity for the finding of a mitigating factor, because that could mean that:

[I]f aggravating factors have been found by the jury, one or more jurors who — in disagreement with other jurors — find no mitigating factor, or find different mitigating factors, or find that the aggravating factors do not outweigh mitigating factors found by some (but not all) of the jurors, or find that no mitigating factor outweighs aggravating factors, could still produce a death verdict or a hung jury, depending on how state law treats the disagreement.

Id.

at 688 . Such a result would be unconstitutional. Under the Eighth Amendment, “the sentencer may not refuse to consider or be precluded from considering ‘any relevant mitigating evidence.’ ”

Skipper v. South Carolina,

476 U.S. 1 at 4 , 106 S.Ct. 1669 , 90 L.Ed.2d 1 (1986) (quoting

Eddings v. Oklahoma,

455 U.S. 104 at 114 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982)).

Madrigal, however, points to a different complaint regarding the instruction given in his case. Madrigal argues that a “holdout juror” — one who is the sole juror opposing the death penalty — might have changed his vote in favor of the death penalty because he or she mistakenly believes that a decision not to impose the death penalty must be unanimous. The Sixth Circuit Court of Appeals has held, however, that there is no constitutional requirement that the court explicitly instruct the jury of what will happen in a holdout juror situation.

See Coe,

161 F.3d at 339-340 .

Another factor in the

Davis

decision was the fact that the instruction in that case:

[Cjombined with the jury verdict form, not only ‘could’ but by its plain language ‘would’ lead a reasonable juror to conclude that the only way to get a life verdict is if the jury unanimously finds that the aggravating circumstances do not outweigh the mitigating circumstances, an entirely different instruction from one that clearly informs the jurors that a life verdict can be rendered by a jury that has not first unanimously rejected the death penalty.

Davis,

318 F.3d at 689 . The difference between the

Davis

instructions and Madrigal’s instructions is that the jury “would” have understood the instructions in

Davis

to require unanimity, while the jury in Madrigal’s case “could” have understood the instructions to require unanimity. For example, unlike the

Davis

instructions, Madrigal’s instructions do not contain the phrases “must find” or “in this event you

*785

will then proceed.” Madrigal’s instructions also did not expressly tell the jurors that they could not consider a life sentence until they determined that a death sentence was inappropriate.

Finally, although

Davis

is in conflict with

Coe, Roe,

and

Scott ,

these three cases remain controlling authority because “ ‘[a] panel of this [the Sixth Circuit] Court cannot overrule the decision of another panel. The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.’ ”

Taylor v. Mitchell,

— F.Supp.2d —, 2003 WL 1477010 (N.D.Ohio Mar.3, 2003) (discussing the effect of

Davis

and quoting

United States v. Smith,

73 F.3d 1414 (6th Cir.1996)).

In sum, it is possible that the jury in Madrigal’s case might have understood the challenged instruction to mean that a decision not to impose the death penalty had to be unanimous. But, this possibility is so remote that it does not rise to the level of being a “reasonable likelihood” as required in

Estelle .

Consequently, the Court denies Madrigal’s fourth claim.

E. Claim 5: Trial Court Improperly Instructed the Jury that Mitigating Factors Must Outweigh the Aggravating Circumstances

Madrigal procedurally defaulted his fifth claim. Even if he had not, the claim fails on the merits.

Madrigal’s fifth claim asserts that the trial court violated his Eighth and Fourteenth Amendment rights by improperly instructing the jury that to impose a life sentence, the mitigating factors must outweigh the aggravating circumstances. Respondent Bagley admits that the instruction in question was erroneous, but contends that, in light of the many other correct instructions given by the court, the error was harmless.

The Ohio Supreme Court denied this claim on direct appeal, agreeing with Bag-ley that the instruction, although erroneous, was harmless.

During preliminary instructions, the trial court instructed the jury:

Very briefly, if the aggravating circumstances outweigh the mitigating factors, your sentence should be death. If the mitigating factors outweigh the aggravating circumstances, then your verdict may be life with parole eligibility, after a term of twenty or thirty full years has been served.

Tr. Vol. XIII (Mitigation

Sentencing) at 47. Later, after the presentation of evidence in the penalty phase, the trial court instructed the jury:

If the mitigating factors outweigh the aggravating circumstances, then your verdict shall be life with parole eligibility after a term of either 20 or 30 full years has been served.

Tr. Vol. XIII (Mitigation

Sentencing) at 247.

After reviewing the trial record, the Ohio Supreme Court determined that the erroneous instruction in Madrigal’s case was harmless in the context of numerous other correct instructions. This included at least four correct statements of the law in the jury charge. Notably, at one point, the trial court instructed the jury that “If you do not unanimously find that the aggravating circumstances outweigh the mitigating factors, you shall unanimously recommend ... a life sentence.” Tr. Vol. XIII (Mitigation & Sentencing) at 247-248. This instruction resolves any juror confusion as to what their verdict should be if they find that the aggravating and mitigating circumstances are in equipoise. Additionally, the jury verdict forms correctly

*786

stated the weighing procedure. Furthermore, the jury only deliberated for two hours before returning with a sentence, and at no time during their deliberations did they ask any questions about the proper standard.

The Ohio Supreme Court determined that “[w]hen reviewing the jury instructions as a whole, it cannot be said that ‘but for the error, the outcome of the trial clearly would have been otherwise.’ ” App. to Return of Writ, Vol. IV. (Ohio Supreme Ct. Direct B), Ex. 11, at 138-141 (quoting

State v. Underwood,

3 Ohio St.3d 12 , 444 N.E.2d 1332 at syllabus (1983)).

The Court determines whether the Ohio Supreme Court’s denial of this claim was contrary to or an unreasonable application of

Estelle v. McGuire,

502 U.S. 62 , 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991). “[T]he fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief.”

Id.

at 71-72 , 112 S.Ct. 475 (citation omitted). Instead, the question is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.”

Id.

at 72-73 , 112 S.Ct. 475 (quoting

Cupp v. Naughten,

414 U.S. 141 at 147 , 94 S.Ct. 396 , 38 L.Ed.2d 368 (1973)). Additionally, in reviewing an ambiguous jury instruction, the standard is “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.”

Id.

at 72, 112 S.Ct. 475 (quoting

Boyde v. California,

494 U.S. 370 at 380 , 110 S.Ct. 1190 , 108 L.Ed.2d 316 (1990)). Finally, the

Estelle v. McGuire

court instructs that “the instruction ‘may not be judged in artificial isolation,’ but must be considered in the context of the instructions as a whole and the trial record.”

Id.

at 72, 112 S.Ct. 475 (quoting

Cupp v. Naughten,

414 U.S. 141 at 147 , 94 S.Ct. 396 , 38 L.Ed.2d 368 (1973)).

As the Ohio Supreme Court noted, the single jury instruction at issue was incorrect under Ohio law. However, when viewing that instruction in the context of the instructions as a whole, the error is harmless. A review of the record shows that the trial court properly instructed the jury as to the burden of proof applicable to aggravating circumstances and mitigating factors on numerous occasions. First, the trial court told the jury, “the prosecution has the burden of proving beyond a reasonable doubt that the aggravated — aggravating circumstances outweigh any mitigating factors which may be present.” Tr. Vol. XIII (Mitigation & Sentencing) at 246. The trial court further instructed:

You as jurors must balance the evidence. The existence of mitigating factors does not foreclose the death sentence, if the aggravating circumstances that the offense was committed during an aggravated robbery outweigh the mitigating factors by proof beyond a reasonable doubt. If the aggravating circumstances outweigh the mitigating factors your sentence shall be death.

Tr. Vol. XIII (Mitigation & Sentencing) at 246-47. Again, the trial judge gave the correct weighing instructions when it told the jury, “You shall recommend the sentence of death if all twelve jurors find by proof beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors.” Tr. Vol. XIII (Mitigation & Sentencing) at 247. Finally, the trial court stated, “If you do not unanimously find that the aggravating circumstances outweigh the mitigating factors, you shall unanimously recommend either a life sentence with parole eligibility after serving 20 years of imprisonment or a life sentence with a parole eligibility after serving 30 years of imprisonment.” Tr. Vol. XIII (Mitigation & Sentencing) at 247-48.

*787

Madrigal shows no reasonable likelihood that the jury applied the incorrect standard when it selected the death penalty as the appropriate punishment. Given the numerous correct instructions, along with the verdict forms containing the correct instructions, the error was harmless. Additionally, the erroneous instruction in Madrigal’s case did not, by itself, so infect the entire trial that the resulting conviction violates due process.

See id.

at 72, 112 S.Ct. 475 . Therefore, the Ohio Supreme Court’s denial of this claim was not contrary to or an unreasonable application of

Estelle v. McGuire.

F. Claim 6: Trial Court Decision was Contrary to the Weight of the Evidence Presented at Mitigation

In his sixth claim, Madrigal challenges four aspects of the trial court’s independent review of the aggravating and mitigating factors. First, he asserts that the sole aggravating factor, the occurrence of the murder during the course of an aggravated robbery, was insufficient to outweigh the many mitigating factors presented by his attorneys. Second, Madrigal claims that the trial court erred in not giving any weight to favorable evidence regarding Madrigal’s prison behavior. Specifically, Madrigal says the trial court should have given more weight to his good conduct while incarcerated, his adjustment to prison life, and his capacity for serving a long life sentence without disciplinary problems. Third, he argues that the trial court erred when it ruled that the circumstances of the crime had no mitigating features. Madrigal contends that the evidence suggests that, while Cathcart and he planned the robbery, the shooting was more likely an unplanned reaction. He says that he panicked when Misty Fisher had trouble opening the safe, and that these circumstances deserved weight in mitigation. Finally, Madrigal alleges that the trial court was incorrect when it determined at sentencing that the evidence did not leave any residual doubt about Madrigal’s identity as the shooter and principal offender in the aggravated robbery. Accordingly, Madrigal urges the Court to vacate his death sentence and remand the case to the state court for a new penalty phase.

After reviewing the trial court’s decision and conducting its own weighing of the aggravating and mitigating factors, the Ohio Supreme Court denied Madrigal’s claim. This Court now decides whether the Ohio Supreme Court’s denial of this claim was contrary to or an unreasonable application of

Tuilaepa v. California,

512 U.S. 967, 978-980 , 114 S.Ct. 2630 , 129 L.Ed.2d 750 (1994) (holding that sentencer has discretion to evaluate and weigh aggravating and mitigating factors in deciding whether to impose death penalty).

With regard to each of these claims, Madrigal argues that the trial court did not give sufficient weight to certain mitigating factors when it weighed mitigating and aggravating factors. However, the relevant inquiry is whether the trial court considered these factors, not whether the trial court gave any particular weight to a factor.

See

Ohio Rev.Code Ann. § 2929.03(D)(3) (“Upon

consideration

of the relevant evidence raised at trial, the testimony, other evidence, statement of the offender, arguments of counsel, and, if applicable, the reports submitted to the court pursuant to division (D)(1) of this section ... ”) (Emphasis added). So long as the trial court considered each of the appropriate mitigating factors, the trial court has discretion to afford no weight to individual mitigating factors.

See State v. Fox,

69 Ohio St.3d 183, 193 , 631 N.E.2d 124, 132 (1994).

As discussed below, the trial court considered the mitigating factors but permissibly afforded them little or no weight.

*788

Murder Committed in the Course of an Aggravated Robbery

Madrigal first claims that the trial court erred in concluding that the sole aggravating factor, the occurrence of the murder during the commission of an aggravated robbery, outweighed the mitigation evidence.

He is incorrect. First, the trial court properly considered and weighed all of the aggravating and mitigating circumstances. Additionally, as the Ohio Supreme Court noted in affirming the trial court’s decision, Madrigal’s death sentence is not disproportionate to other death sentences in aggravated robbery cases with similar mitigating and aggravating circumstances.

State v. Madrigal,

87 Ohio St.3d 378, 399-401 , 721 N.E.2d 52 (comparing Madrigal’s aggravating and mitigating factors to similar Ohio capital cases). Therefore, the Court concludes that the trial court did not unreasonably determine the facts in light of the evidence presented.

Good Behavior While in Prison

Second, Madrigal says that the trial court should have considered and given weight to his good behavior in prison. Courts may consider good behavior in prison as a mitigation factor.

State v. Smith,

80 Ohio St.3d 89, 121-122 , 684 N.E.2d 668 , 696 (1997);

State v. Bradley,

42 Ohio St.3d 136, 149 , 538 N.E.2d 373 (1989). Here, the trial court did take into account the mitigating factor of good behavior in prison. However, it determined that the factor added no weight to the cumulative weight of the mitigating factors. It held that “[i]nformation that Madrigal is capable of serving a long life term is not entitled to any weight.” Vol II., Ex. 6 at 205. That decision is within the discretion of the trial court judge.

Fox,

69 Ohio St.3d at 193 , 631 N.E.2d 124 . Therefore, it was not error for the trial court to afford no weight to this particular mitigating factor.

Even if the trial court had not properly considered the mitigating factor of good behavior in prison, the Ohio Supreme Court corrected that error when it reweighed the mitigating factors.

See Clemons v. Mississippi

494 U.S. 738 , 110 S.Ct. 1441 , 108 L.Ed.2d 725 (1990) (holding that appellate court can reweigh factors and impose death penalty itself). In its decision, the Ohio Supreme Court determined that “evidence that [Madrigal] conformed well to prison life ... is entitled to some mitigating weight.” Vol. IV., Ex. 11 at 149. Because both the trial court and the Ohio Supreme Court weighed this factor in making their decisions, the Court denies this portion of Madrigal’s claim arguing that the state courts did not consider his good behavior in prison.

Circumstances of the Crime

Madrigal also claims that the trial court should have taken into account the circumstances of the crime as a mitigating factor. He is correct. In

State v. Stumpf,

32 Ohio St.3d 95 , 512 N.E.2d 598 , the Ohio Supreme Court held that:

R.C. 2929.04(B) requires the jury, trial court, or three-judge panel to “consider and weigh against the aggravating circumstances proved beyond a reasonable doubt, the nature and circumstances of the offense” ... In a particular case, the nature and circumstances of the offense may have a mitigating impact, or they may not ... Either way, they must be considered.

Stumpf,

32 Ohio St.3d at 99 , 512 N.E.2d 598 (citing

State v. Steffen,

31 Ohio St.3d 111, 117 , 509 N.E.2d 383, 390 (1987)). However, Madrigal is incorrect in asserting that the trial court did not “ ‘consider and weigh’ ” the circumstances of the crime. The trial court discussed the nature and circumstances of the crime and held that “[t]here does not appear to be anything mitigating in the nature and eir-

*789

cumstances of this offense.” Vol II., Ex. 6 at 202. It rejected Madrigal’s interpretation of the circumstances: “The point blank shooting of Misty Fisher while Madrigal was committing an aggravated robbery with a firearm reveal circumstances with no mitigating features.” App. to Return of Writ, Vol II. (Trial), Ex. 6 at 202. Again, the trial court has discretion to determine that a particular factor is of no mitigating value. All that the court must do is consider and weigh each factor.

Even if the trial court had not properly addressed this mitigating factor, the Ohio Supreme Court considered the circumstances of the crime when it subsequently did its own weighing of the mitigating and aggravating factors. It held that “[t]he nature and circumstances of the crime offer nothing in mitigation for Madrigal.” App. to Return of Writ, Vol IV. (Ohio Supreme Ct. Direct B), Ex. 11 at 147. Because both the trial court and the Ohio Supreme Court properly considered the potentially mitigating factor of the nature and circumstances of the crime, the Court denies this portion of Madrigal’s sixth claim.

Consideration of Residual Doubt

Finally, Madrigal says that the court erred because it did not consider residual doubt as a mitigating factor. Alternatively, he says that the trial court erred in not giving any weight to residual doubt.

The trial court rejected residual doubt as a mitigating factor, concluding that “[t]he evidence forthcoming at trial did not create any residual doubt over the identity of Madrigal as the person who shot Misty Fisher and was the principal offender in the aggravated robbery.” App. to Return of Writ, Vol. II (Trial), Ex. 6 at 205. In reweighing the aggravating and mitigating factors, the Ohio Supreme Court reached the same conclusion.

Ohio law does not consider residual doubt ... as an acceptable mitigation factor.

Buell v. Mitchell,

274 F.3d 337, 358-59 (6th Cir.2001) (citation omitted) As the Ohio Supreme Court explained:

Our system requires that the prosecution prove all elements of a crime beyond a reasonable doubt. Therefore, it is illogical to find that the defendant is guilty beyond a reasonable doubt, yet then doubt the certainty of the guilty verdict by recommending mercy in case a mistake has occurred. Residual doubt casts a shadow over the reliability and credibility of our legal system in that it allows the jury to second-guess its verdict of guilt in the separate penalty phase of a murder trial.... Residual doubt is not an acceptable mitigating factor under R.C. 2929.04(B), since it is irrelevant to the issue of whether the defendant should be sentenced to death.

State v. McGuire,

80 Ohio St.3d 390 , 686 N.E.2d 1112, 1123 (1997).

Therefore, the trial court did not unreasonably apply clearly established federal law, or unreasonably determine the facts in light of the evidence presented in the State court proceeding. Accordingly, the Court denies this portion of Madrigal’s Claim 6.

In sum, the trial court did consider the mitigating factors cited by Madrigal in Claim 6. It gave those factors different weight than Madrigal believes it should have, but the trial court has discretion to determine how much weight to give each factor. Furthermore, the Ohio Supreme Court’s consideration of these facts on direct appeal corrected any error by the trial court. Specifically, the Ohio Supreme Court considered each of the factors and concluded that the single aggravating circumstance, murder during the course of an aggravated robbery, outweighed the mitigation factors. Because the state courts properly considered each of these factors, the Court denies Madrigal’s sixth claim.

*790

INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

Madrigal makes five ineffective assistance of counsel claims (Claims 7-11). The state courts denied all five claims. The two part

Strickland

analysis governs Sixth Amendment claims of ineffective assistance of counsel.

Strickland,

466 U.S. at 687 , 104 S.Ct. 2052 . Under this standard, to succeed on an ineffective assistance of counsel claim, a petitioner must show:

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

Strickland,

466 U.S. at 687 , 104 S.Ct. 2052 .

Accordingly, the Court examines each claim to determine if the state courts’ decisions were contrary to or unreasonable applications of

Strickland v. Washington.

G. Claim 7: Failure to Present Testimony by Eyewitness Expert

Madrigal argues in his seventh claim that his attorneys failed to provide effective assistance at trial when they did not present testimony by an eyewitness expert. Much of the prosecution’s case relied on eyewitness identifications of Madrigal. Madrigal contends that the strength of the state’s case was based on false assumptions about the accuracy of eyewitness testimony. He further asserts that he could have revealed the fallacies of these assumptions if his counsel had hired an expert on eyewitness testimony.

Bagley responds that failing to hire an eyewitness expert is not

per se

ineffective assistance of counsel. She further says that Madrigal’s attorneys made a tactical decision to hire a ballistics expert rather than an eyewitness expert, relying instead on cross-examination of the eyewitnesses to refute the eyewitness identifications. Finally, she contends that no prejudice resulted from counsel’s failure to hire an eyewitness expert.

The state courts rejected this claim holding that Madrigal’s counsel were not deficient in relying on cross-examination to impeach the eyewitnesses’ identifications rather than hiring an expert. This Court determines if the state trial and appellate courts’ decisions are contrary to or an unreasonable application of

Strickland v. Washington,

466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

The first prong of the

Strickland

test requires Madrigal to establish deficient representation by counsel. This requires a showing that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Id.

According to the Court in

Strickland :

Judicial scrutiny of counsel’s performance must be highly deferential.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption

*791

that, under the circumstances, the challenged action might be considered sound trial strategy.

Strickland,

466 U.S. at 689 , 104 S.Ct. 2052 (quoting

Michel v. Louisiana,

350 U.S. 91, 101 , 76 S.Ct. 158 , 100 L.Ed. 88 (1955)). Thus, to constitute deficient representation, counsel’s actions must be more than failed tactical decisions.

Under Ohio law, defense counsel does not have to hire an expert identification witness. Instead, he may rely on cross-examination and closing arguments to impeach eyewitness testimony.

See State v. Pattin,

No. L-91-339, unreported (Lucas Cty Ct.App. Aug. 7, 1992). Many federal courts have also held that cross-examination of eyewitnesses is a sufficient method of attempting to deal with the issues presented by eyewitness testimony.

See United States v. Christophe,

833 F.2d 1296, 1300 (9th Cir.1987) (holding that “skillful cross examination of eyewitnesses, coupled with appeals to the experience and common sense of jurors, will sufficiently alert jurors to specific conditions that render a particular eyewitness identification unreliable”);

Hughes v. Hubbard,

2000 WL 1728113 , 2000 U.S.App. LEXIS 297324 (9th Cir.2000) (holding that “cross examination of witnesses is sufficient to alert jurors to specific conditions that render eyewitness identification unreliable”).

Here, Madrigal’s lead counsel, Klucas, believed that cross-examination and summation would be sufficient to deal with the issue of eyewitness unreliability. Klucas Depo. at 10. In his cross-examinations and closing arguments, he highlighted the inconsistencies in the eyewitness descriptions of Madrigal.

Klucas also explained that he did not request funding for an eyewitness expert because he needed funding for a ballistics expert and did not think that the court would fund both experts:

Q.: Why did you not request funding for an eyewitness expert?

A.: At the time of this trial the judges weren’t quite as loose with the money as they are now. We had received a fair amount of money up to that point. I felt that I needed the money for a ballistics expert which we secured and I was confident that I could accomplish what needed to be accomplished with the eyewitness through cross-examination.

Klucas Dep. at 10.

In hindsight, the eyewitness testimony may have been more important to the prosecution than ballistics evidence, but the best strategy is not always clear beforehand. Further, “[t]here are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.”

Strickland,

466 U.S. at 689 , 104 S.Ct. 2052 . Therefore, the Court concludes Madrigal’s attorneys were not deficient for strategically deciding to call one type of expert rather than another, and relying on cross-examination to impeach the eyewitness identifications.

In sum, Madrigal does not satisfy the first prong of the

Strickland

test. Klucas determined that the best use of his client’s limited resources was to hire a ballistics expert and to deal with the issue of eyewitness unreliability on cross-examination and at summation. Madrigal now argues that counsel ought to have done the opposite, that he should have relied on cross-examination and summation to deal with the ballistic issues and hired an expert witness on eyewitness testimony. This type of retrospective strategizing does not form the basis of a legitimate claim for ineffective assistance of counsel. In evaluating the first prong of the

Strickland

test, courts “should keep in mind that counsel’s function, as elaborated in prevailing pro

*792

fessional norms, is to make the adversarial testing process work in the particular case.”

Strickland,

466 U.S. at 690 , 104 S.Ct. 2052 . Counsel’s actions preserved that adversarial process at Madrigal’s trial. Counsel did not leave the testimony of the eyewitnesses unchallenged. Accordingly, Madrigal’s counsel was not deficient as necessary to satisfy the first prong of the

Strickland

test.

Assuming

arguendo

that Madrigal had shown deficient performance, which he has not, he does not establish prejudice. Klu-cas used cross-examination to highlight the inconsistencies in the eyewitnesses’ descriptions and Madrigal’s appearance. During cross-examination, Klucas established that no eyewitness described Madrigal as having a beard, mustache, goatee, or any type of facial hair even though Madrigal has facial hair. He also brought out the fact that one eyewitness chose another individual in a police lineup before the police arrested Madrigal. Additionally, Klucas focused on the severe stress that the eyewitnesses underwent at the time they formed their impression of what the shooter looked like. He showed that the eyewitnesses had limited time to see the assailant and an obstructed view of the assailant’s face. Finally, Klucas established that many witnesses spent more time looking at the gun than the criminal’s face. Klucas also reiterated all of these points in closing argument.

The Court accordingly denies Madrigal’s seventh claim.

H. Claim 8: Failure to File Motion to Suppress

With his eighth claim, Madrigal challenges his trial counsel’s failure to file a motion to suppress evidence taken from a closed container without Madrigal's consent during his arrest. The evidence included clothing, a gun, and bullets. In preparation for trial Madrigal’s two attorneys disagreed about whether to file such a motion. Initially, his counsel filed the motion, but they then withdrew the motion to suppress. Madrigal contends that his attorneys should not have withdrawn the motion to suppress.

After reviewing this claim, the Ohio Supreme Court found no constitutional error, holding that counsel’s decision not to file a motion to suppress was a permissible tactical decision.

The Court evaluates whether the Ohio Supreme Court’s decision was contrary to or an unreasonable application of

Strickland v. Washington

and

Kimmelman v. Morrison,

477 U.S. 365, 384 , 106 S.Ct. 2574 , 91 L.Ed.2d 305 (1986).

The United States Supreme Court bars Fourth Amendment claims in habeas proceedings.

Stone v. Powell,

428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976). However, petitioners may claim their trial counsel was ineffective in failing to file a motion to suppress physical evidence.

Kimmelman,

477 U.S. at 382-383 , 106 S.Ct. 2574 . Therefore, Madrigal’s claim is cognizable. However, Madrigal must still show deficient performance and prejudice under the

Strickland

standard. For the reasons discussed below, he fails to do so.

Failure to file a motion to suppress evidence does not constitute

per se

ineffective assistance of counsel.

Kimmelman,

477 U.S. at 384 , 106 S.Ct. 2574 . To constitute deficient representation, counsel’s actions must be more than failed tactical decisions.

Strickland,

466 U.S. at 689 , 104 S.Ct. 2052 . The decision to withdraw the motion to suppress appears to have been a tactical decision by Madrigal’s attorneys, Klucas and Thebes. Klucas and Thebes disagreed regarding the motion to suppress. In a letter from Thebes, the second-chair attorney, to Klucas, the first-chair attorney, Thebes said:

*793

I must make one final pitch to you regarding the motion to suppress (Cleveland) and my belief that we could benefit from a hearing. I feel that the benefit of a hearing, i.e. keeping out the gun and clothing, far outweighs the risk of having the hearing. Also, I further feel that a continuance would allow us more time to consolidate an even better defense than we currently possess.

I understand the reasons for your position, however I feel that if the state does not know presently of what we fear, they will never know, and it is worth the risk of having the motion heard and getting a continuance if necessary.

Please understand that I realize that the final decision rests with you and I also realize that for all intent and purposes the final decision has been made per our discussions concerning this matter. However, my experience as a criminal attorney, which has placed me in this position of defending Mr. Madrigal, motivates me to detail my thoughts for you in this regard.

App. to Return of Writ, Yol V., Ex. 1 at 102-103 (Emphasis added). The letter shows that tactical considerations motivated the decision to withdraw the motion to suppress. Thebes alludes to a tactical benefit to keeping the case going forward to trial: “the state does not know presently of what we fear.” After considering the advantages and disadvantages of the motion to suppress, Klucas determined that the benefit of withdrawing the motion to suppress outweighed the risk. This is a tactical decision. As the Ohio Supreme Court reasoned, “the fact that counsel filed a motion for leave to file a motion ■ to suppress, and later withdrew that motion, is compelling evidence of a tactical decision. It is not mere speculation to presume that defense counsel obtained information concerning the suppression motion that led to its withdrawal.” App. to Return of Writ, Vol. IV (Ohio Supreme Ct. Direct B), Ex. 11 at 127.

Even if Madrigal met the deficient representation prong, Madrigal’s claim still fails the

Strickland

test because he does not show prejudice. To establish prejudice, the petitioner must show that the alleged error was “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

Strickland,

466 U.S. at 687 , 104 S.Ct. 2052 . But as Justice Powell has observed, Fourth Amendment claims, by their very nature, do not affect the reliability of the proceedings. Instead, the suppression of evidence usually hurts the reliability of the proceedings by excluding relevant and probative evidence of the defendant’s guilt or innocence.

Kimmelman,

477 U.S. at 396 , 106 S.Ct. 2574 (Powell, J., concurring) (noting that “exclusion of illegally seized but wholly reliable evidence renders verdicts less fair and just” and “the harm suffered by respondent in [an illegal search and seizure] case is not the denial of a fair and reliable adjudication of his guilt, but rather the absence of a windfall”);