# Jamison v. Collins

> District Court, S.D. Ohio · December 21, 1998 · 100 F. Supp. 2d 521

URL: https://www.frixlaw.com/law-library/cases/2478155

## Case

- **Full name:** Derrick JAMISON, Petitioner, v. Terry J. COLLINS, Warden, Respondent
- **Court:** District Court, S.D. Ohio
- **Decided:** December 21, 1998
- **Citations:** 100 F. Supp. 2d 521; 1998 U.S. Dist. LEXIS 22864; 1998 WL 1543563
- **Precedential status:** Published
- **Opinion:** Opinion by Spiegel
- **Judges:** Spiegel
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2478155

## How later opinions describe it (automated extraction)

- finding Fourth Amendment claim not cognizable on habeas corpus review of capital case

## Opinion text

ORDER
SPIEGEL, Senior District Judge.
This matter is before the Court on Petitioner’s Amended Petition for a Writ of Habeas Corpus (doc. 94), Respondent’s Supplemental Return of Writ (doc. 95), and Petitioner’s Amended Traverse (doc. 96.)
I. INTRODUCTION
This is a capital case. Petitioner, Derrick Jamison, has been sentenced to death by the State of Ohio.
Petitioner was convicted of aggravated murder and sentenced to death by the Hamilton County Court of Common Pleas for the murder of Gary Mitchell at the Central Bar in Cincinnati, Ohio on August 1, 1984. Petitioner was represented by attorneys Calvin Prem and William Flax at trial. (Return of Writ, Ex. C.) Petitioner pursued direct appeal in the Ohio Court of Appeals and the Ohio Supreme Court; both courts affirmed his conviction and sentence.
(Id.,
Exs. E & H.) Petitioner was represented by attorneys Albert Ro-denberg and William Flax in the Court of Appeals.
(Id.,
Ex. D.) He was represented by attorneys Peter Pandilidis and William Flax in the Ohio Supreme Court.
(Id.,
Ex. F.) The Ohio Supreme Court affirmed Petitioner’s convictions and death sentence on March 7, 1990.
State v. Jamison,
49 Ohio St.3d 182 , 552 N.E.2d 180 (1990);
(Id.,
Ex. H.) The Ohio Supreme Court denied Petitioner’s Motion for Reconsideration on April 11, 1990.
(Id.,
Ex. I.) The United States Supreme Court denied Petitioner’s Petition for Writ of Certiorari on October 9,1990.
(Id.,
Ex. K.)
Petitioner pursued postconviction relief in the Ohio courts. He filed his postcon-viction petition on June 25, 1991. (Return of Writ, Ex. L.) Postconviction relief was denied at all stages.
(Id.,
Exs. N, Q, T & U.)
On August 28, 1992, Petitioner filed his Application for Delayed Reconsideration of his Direct Appeal with the Hamilton County Court of Appeals pursuant to App.R. 14(B), App.R. 26 and
State v. Murnahan,
63 Ohio St.3d 60 , 584 N.E.2d 1204 (1992), alleging ineffective assistance of appellate counsel before the Hamilton County Court of Appeals. (Return of Writ, Ex. V.) The Hamilton County Court of Appeals denied Petitioner’s Application for Delayed Reconsideration as untimely.
(Id.,
Ex. X.) Thereafter, Petitioner filed a Notice of Appeal from the decision denying his Application for Delayed Reconsideration. (State Court Appendix, Vol. X, Tab A.) The Ohio Supreme Court entered a decision on this appeal on April 14, 1993, dismissing the appeal
sua sponte
for the reason that no substantial constitutional question existed therein.
(Id.
at Tab F.) Petitioner also filed a Motion for Delayed Reinstatement of Direct Appeal as of Right in the Ohio Supreme Court. (State Court Appendix, Vol. XI, Tab A.) On October 27, 1993, the Ohio Supreme Court denied Petitioner’s motion without an opinion. (State Court Appendix, Vol. IX, Tab G.) On November
*530
8, 1993, Petitioner filed a Motion for Rehearing. (State Court Appendix, Vol. XI, Tab E.) On December 15, 1993, the Ohio Supreme Court denied Petitioner’s motion without an opinion. (State Court Appendix, Vol. IX, Tab F.)
On March 10, 1994, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 . (doc. 3.) Respondent filed his Return of Writ on April 2, 1994. (doc. 9.) On January 30, 1996, the Court granted Petitioner leave to conduct discovery to be completed within ninety days. (doc. 66.) Thereafter, on January 31, 1997, Petitioner filed an Amended Petition, which is the Petition currently before the Court, (doc. 94.) Respondent filed a Supplemental Return of Writ on March 3, 1997, arguing that the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) applies to Petitioner’s claims, that Petitioner’s claims are not entitled to a merits review because of various procedural defaults, that Petitioner’s claims lack merit, and that the Court is bound by the state courts’ findings of fact. (doc. 95.) Petitioner filed his Amended Traverse on May 2, 1997 in which he disputes all of Respondent’s arguments, (doc. 96.)
The Court held oral argument on the procedural default questions and the merits of the Amended Petition on December 22 and 23, 1997. Transcripts of that hearing were filed on March 23, 1998. (docs. 121 & 122.) Thereafter, the Parties submitted pre-hearing and post-hearing proposed findings of fact and conclusions of law and numerous notices of additional authority.
II. FACTUAL BACKGROUND
The charges against Petitioner arose from the events that occurred on August 1, 1984. The following factual background comes directly from the Ohio Supreme Court’s opinion in this case, in which the court affirmed the conviction and sentence of Petitioner.
On August 1, 1984, Gary Mitchell was alone, tending bar at the Central Bar. The Central Bar, located near downtown Cincinnati, had been owned by Mitchell’s family for forty years. When two patrons came into the bar, around 2:00 p.m., they found the bar empty and Mitchell unconscious, lying face down behind the bar. The cash register was open and empty. One patron called the police and an ambulance.
Soon thereafter the police and an ambulance arrived. When the ambulance crew carried Mitchell out, he had a large bruise on the side of his head. Upon arrival at the hospital, Mitchell was found nearly brain dead by treating physicians. Eight days later, Mitchell died from multiple brain bruises and bleeding caused by a traumatic blunt injury.
Cincinnati police found few clues to solve this crime. They did find a gym shoe print on the top of the bar. After photographing the print, they lifted an impression of it, discovering it was made by a Pony gym shoe. One bystander described two males that he saw running from the area of the bar at approximately the time of the crime as being in their mid-twenties, one, 6'2" to 6'4", weighing approximately two hundred pounds, and the other, shorter, 5'3" to 5'9".
Police investigated other robberies similar in pattern to the Central Bar homicide. Two earlier robbery victims had suffered severe head injuries, requiring extensive hospitalization. After the Central Bar homicide, other similar robberies continued to occur.
On October 12, 1984, the police, after being alerted by an automatic alarm, arrested appellant, Derrick Jamison, shortly after he had robbed a Gold Star Chili restaurant. A hidden automatic camera photographed appellant when he robbed Gold Star Chili. Appellant was arrested and taken into custody. Police found on his person marked money from Gold Star Chili, jewelry from another robbery, and a gun taken from a third robbery. In addition, appellant was wearing Pony gym shoes, the soles of
*531
which were similar to the shoe print found at the Central Bar two and one-half months earlier. Appellant, 6'3" tall, twenty-three years old, and weighing one hundred seventy pounds, fit the earlier general description of one of the suspects running from the Central Bar on August 1, 1984. Appellant, while being a suspect, was not charged with the Central Bar incident at that time since he could not be positively identified. Police continued their investigation.
In January 1985, police apprehended Charles Howell, appellant’s accomplice in the Central Bar homicide. Police discovered Howell through a Crime Stopper tip. Howell told police he and appellant were playing basketball at about noon on August 1st and on the spur of the moment, they decided to rob the Central Bar. Howell acted as the lookout. It was appellant who attacked the bartender. Appellant took the cash from the register, later giving Howell $80. Howell agreed to testify against appellant and pled guilty to aggravated robbery. Howell testified before a grand jury, which indicted appellant for aggravated robbery and the felony murder of Gary Mitchell.
Jamison,
49 Ohio St.3d at 182-183 , 552 N.E.2d 180 .
The specific claims raised in the state court proceedings can be found in the Appendix to this Order.
III. STANDARD OF REVIEW
Petitioner has sought relief under 28 U.S.C. § 2254 . Section 2254, Title 28 of the United States Code, provides that “a district court shall entertain an application of a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254 (a) (1994).
APPLICABILITY OF THE AEDPA
The Parties dispute what effect, if any, the recent amendments to 28 U.S.C. § 2254 set forth in section 104 of the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA” or the “Act”), Pub.L. 104-132, 110 Stat. 1214 (codified,
inter alia,
at 28 U.S.C. § 2244
et seq.),
have on this case. President Clinton signed the AEDPA into law on April 24, 1996. Because the law does not contain an effective date, it became effective on the date of enactment.
Zuern v. Tate,
938 F.Supp. 468, 470 (S.D.Ohio 1996).
1
The Act amends certain provisions of the preexisting habeas corpus statute that are codified in Chapter 153 of the Judicial Code and the Act creates a new Chapter 154 of the Judicial Code containing a set of “Special Habeas Corpus Procedures in Capital Cases.” The Act also adds a new § 2254(d), but this section does not apply to cases under Chapter 153 of the AEDPA pending on the date the Act became effective.
See Lindh v. Murphy,
521 U.S. 320 , 117 S.Ct. 2059, 2068 , 138 L.Ed.2d 481 (1997);
Groseclose v. Bell,
130 F.3d 1161, 1164 (6th Cir.1997);
Powell v. Collins,
No. 94-656 (S.D.Ohio June 15, 1998) (unpublished opinion). Therefore, the amended sections of the AEDPA under Chapter 153 do not apply in this case because Jamison’s Petition was filed prior to the enactment of the Act.
However, Chapter 154 specifically states that it shall apply to cases pending on or after the date of enactment of the Act. The special procedures in Chapter 154 provide a system of expedited review to
*532
states that qualify under the opt-in procedures, which are set forth in 28 U.S.C. § 2261 (1996)
2
and pertain to requirements for appointment of counsel for petitioners seeking postconviction review of their capital sentences in the state court system. Respondent argues that Chapter 154 applies to this Petition because Ohio meets the requirements set forth in § 2261 during the relevant times.
Accordingly, Chapter 154 will only apply to Petitioner’s case if Ohio has “opted-in” to the special provisions it sets forth. Because the issue of whether Ohio has opted-in has been addressed numerous times by other district courts, the Court does not find it necessary to undergo an extensive analysis on the issue. The Court adopts the reasoning of our sister courts finding that Ohio has not “opted-in,” and therefore holds Chapter 154 does not apply to this case.
See Scott v. Anderson,
958 F.Supp. 330, 332 (S.D.Ohio 1997);
Mills v. Anderson,
961 F.Supp. 198, 203 (S.D.Ohio 1997);
Zuern,
938 F.Supp. at 471-72 ;
Hamblin v. Anderson,
947 F.Supp. 1179, 1182 (N.D.Ohio 1996);
Landrum v. Anderson,
No. 96-641 (S.D.Ohio Dec. 9, 1996) (unpublished opinion). Accordingly, we conclude that pre-AEDPA law applies to Petitioner’s petition.
IV. ANALYSIS
The objective of this Order is to address the claims Respondent asserts are waived and thus cannot be reviewed on the merits. The Court notes that, in regards to certain claims, it cannot determine conclusively whether those claims are waived because they depend upon the outcome of a merits review of the ineffective assistance of appellate counsel claim, and they depend on further argument regarding “cause” and prejudice. Thus, where the Court explains for each of the claims below that Petitioner is entitled to raise an argument as to “cause” and prejudice, the Court will hold an evidentiary hearing on those issues at 10:00 a.m. on March 2, 1999.
See Ratliff v. United States,
999 F.2d 1023, 1026 (6th Cir.1993) (noting that a hearing on the issue of cause and prejudice would have been appropriate to determine whether a sufficient showing of ineffective assistance of counsel has been made);
Alcorn v. Smith,
781 F.2d 58, 59-60 (6th Cir.1986) (stating if “there are factual issues in dispute and an insufficient record upon which to resolve ... [a] legitimate claim[ ] [of ineffective assistance of counsel] advanced by the petitioner,” an evidentiary hearing on the issue of cause and prejudice is required). Once it is determined conclusively which other claims can be addressed on the merits, the Court will review those claims to determine whether the claims are entitled to an evidentiary hearing on the merits. The Court will schedule this hearing at a later date.
The Court notes that the Parties agreed that the Petition is not subject to dismissal on exhaustion grounds because all claims raised by Petitioner have either been raised properly in the Ohio courts or are excused from the exhaustion requirement on the ground of futility in light of the Ohio Supreme Court’s decision in
State v. Steffen,
70 Ohio St.3d 399 , 639 N.E.2d 67 (1994). (doc. 33.) Accordingly, the Court will proceed directly to the procedural default analysis.
A. PROCEDURAL DEFAULT IN GENERAL
Under the doctrine of procedural default, if a state court previously dismiss
*533
es a state prisoner’s federal claim on the grounds that the prisoner failed to comply with a state procedural rule, then a federal district court ordinarily cannot consider the merits of that federal claim.
Coleman v. Thompson,
501 U.S. 722, 729-730 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991).
This procedural default doctrine bars federal habeas review of a state court ruling only if the following requirements have been satisfied:
(1) the petitioner actually violated an applicable state procedural rule;
(2) the procedural violation provides an “adequate and independent state ground” for denying the petitioner’s federal constitutional claim; and
(3) the state court actually enforced the procedural violation; that is, the highest state court to rule on the claim clearly and unambiguously relied upon the procedural violation as the reason for rejecting the claim.
See generally, Coleman,
501 U.S. at 750 , 111 S.Ct. 2546 .
However, the petitioner can excuse the procedural default by demonstrating either:
(a) that there was “cause” for the procedural default and actual prejudice by the alleged constitutional error;
or
(b) that the case falls within the category of cases considered “fundamental miscarriage of justice.”
See id.
(emphasis added);
Maupin v. Smith,
785 F.2d 135, 138 (6th Cir.1986);
Harris v. Reed,
489 U.S. 255, 260-62 , 109 S.Ct. 1038 , 103 L.Ed.2d 308 (1989);
Ylst v. Nunnemaker,
501 U.S. 797, 802 , 111 S.Ct. 2590 , 115 L.Ed.2d 706 (1991). For the cause and prejudice standard, the petitioner must provide a “substantial” reason that is “external” to the petitioner as the “cause” for the procedural default.
See Murray v. Carrier,
477 U.S. 478, 488 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986);
Rust v. Zent,
17 F.3d 155, 161 (6th Cir.1994). In addition, the petitioner must show that the alleged trial errors “not merely ... created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.”
United States v. Frady,
456 U.S. 152, 170 , 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982).
To demonstrate a “fundamental miscarriage of justice,” a petitioner must show that the alleged constitutional violation probably resulted in the conviction of one who is actually innocent.
Murray, 477
U.S. at 496, 106 S.Ct. 2639 . This exception applies only in “extraordinary cases.”
Id.
This standard requires a petitioner to show that he is “actually innocent.”
Schlup v. Delo,
513 U.S. 298, 327 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995). To establish a probability of innocence, “a petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.”
Id.
We will discuss these requirements in greater detail as they apply to the various claims.
B. REVIEW OF THE CLAIMS THAT RESPONDENT ARGUES ARE WAIVED BY PROCEDURAL DEFAULT
As a preliminary matter, we note that Respondent concedes that the shoe-print issue found in the following claims has not been waived in its entirety: Claim Nine, Claim Ten, Claim Thirteen, Claim Fifteen, and Claim Twenty-One. Therefore, we need not address those claims in this section.
CLAIM ONE
The State of Ohio failed to provide Jamison with all relevant, material and exculpatory evidence during pretrial discovery proceedings. This failure violated Jamison’s rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
Respondent argues that this claim is procedurally defaulted because Petitioner
*534
failed to raise this claim in the state court at any stage. Thus, Respondent contends, the state courts have been totally deprived of any opportunity to hear this claim. Reviewing the record, we find that this claim was not raised on direct appeal or in post-conviction in the Ohio courts; rather, Petitioner raised the claim for the first time in his Amended Habeas Petition. According to the Sixth Circuit, a petitioner’s failure to raise a claim on direct appeal in the Ohio Court of Appeals or in the Ohio Supreme Court constitutes procedural default.
Leroy v. Marshall,
757 F.2d 94, 97 (6th Cir.1985). Where, as here, Petitioner can no longer present the federal claim in state court, he has waived the claim for purposes of federal habeas review unless he can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional error.
Coleman,
501 U.S. at 750 , 111 S.Ct. 2546 ;
Murray,
477 U.S. at 485 , 106 S.Ct. 2639 ;
Wainwright v. Sykes,
433 U.S. 72, 87 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977);
Leroy,
757 F.2d at 97 .
Although the Supreme Court has not established conclusively the contours of the “cause” standard in the context of procedural default,
Amadeo v. Zant,
486 U.S. 214, 221 , 108 S.Ct. 1771 , 100 L.Ed.2d 249 (1988), generally speaking, a petitioner demonstrates “cause” where he presents a substantial reason to excuse the procedural default.
Rust,
17 F.3d at 161 .
The Supreme Court has explained that ineffective assistance of counsel may constitute cause.
Murray,
477 U.S. at 488 , 106 S.Ct. 2639 . However,
the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for procedural default.... So long as a defendant is represented by counsel whose performance under the standard established in
Strickland v. Washington,
[ 466 U.S. 668 , 104 S.Ct. 2052 (1984) ], we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default. Instead, we think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.
Id.,
at 486-89, 106 S.Ct. 2639 . In addition to constitutionally ineffective assistance of counsel, the Supreme Court has found the following constitute “cause:” (1) interference by officials that makes compliance with the procedural rule impracticable, and (2) a showing that the factual or legal basis for a claim was not reasonably available to counsel.
Id.
at 488 , 106 S.Ct. 2639 .
The court’s analysis does not end at a determination of cause, however. Once a petitioner demonstrates “cause” for the procedural default, he still must show that he was actually prejudiced by the claimed constitutional error.
Frady,
456 U.S. at 168 , 102 S.Ct. 1584 (concluding that a petitioner has “the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”);
see also, Rust,
17 F.3d at 161 (same). The prejudice prong is not satisfied “if there is strong evidence of a petitioner’s guilt and a lack of evidence to support his claim.”
Rust,
17 F.3d at 161-62 .
As stated above, Petitioner alleges for the first time in his Amended Petition that the Hamilton County Prosecutor’s Office did not disclose all the exculpatory and favorable information in its and the Cincinnati Police Department’s (“C.P.D.”) possession to Petitioner’s trial counsel before the Central Bar trial began. Specifically, in his affidavit, William Flax, one of Petitioner’s trial attorneys, attests that there are 35 documents that he did not receive from the prosecution. This fact is undisputed by Respondent.
In general, the alleged undisclosed evidence falls within the following groups:
*535
(1) Evidence relating to eyewitness James Suggs who provided identification information about the perpetrators of the Central Bar robbery/homicide to the C.P.D.
(2) Evidence relating to Charles Howell, Petitioner’s codefendant who plead guilty to aggravated robbery in connection with the Central Bar robbery/homicide and who testified in the Central Bar robbery/homicide against Petitioner.
(3) Evidence relating to the other eyewitnesses to the Central Bar robbery/homicide who provided descriptions of the two assailants.
(4) Evidence relating to other suspects for the Central Bar robbery/homicide identified by the C.P.D.
(5) Evidence relating to the cause of death of Gary Mitchell.
(6) Evidence relating to Petitioner’s waiver of his
Miranda
rights during police questioning.
(7) Evidence relating to pre-trial statements of eyewitnesses of the so-called similar robberies who testified at the Central Bar robbery/homicide trial.
(8) Evidence relating to other robberies investigated by the C.P.D. that occurred in the same geographical area of Cincinnati during the time Petitioner allegedly committed the so-called similar robberies that were introduced at trial.
The substance of the First Claim is based on the rule announced in
Brady v. Maryland,
373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963) and
Kyles v. Whitley,
514 U.S. 419 , 115 S.Ct. 1555 , 131 L.Ed.2d 490 (1995). These cases held that the suppression by the prosecution of favorable evidence to the accused in a criminal prosecution violates the Due Process Clause of the Fourteenth Amendment where the evidence is material either to the guilt or to the sentencing and regardless of the good or bad faith of the prosecutor.
Brady,
373 U.S. at 87 , 83 S.Ct. 1194 ;
Kyles,
514 U.S. at 432 , 115 S.Ct. 1555 . The trial prosecutor’s duty to disclose exculpatory evidence extends to information in the possession of the prosecutor’s office or in the possession of the law enforcement agency responsible for investigating the offense.
Kyles,
514 U.S. at 437-38 , 115 S.Ct. 1555 (indicating that the individual prosecutor “has a duty to learn of any favorable evidence known to the others acting on the government’s behalf ... including the police”). In making a decision whether the exculpatory evidence is material, the reviewing court must assess the cumulative effect of all such suppressed evidence.
Id.
at 436-37 , 115 S.Ct. 1555 . The favorable evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.
Id.
at 434-35 , 115 S.Ct. 1555 . The question is not whether the defense would more likely than not have received a different verdict with the evidence.
Id.
Rather, reasonable probability of a different result means that the net effect of the suppressed evidence would undermine the confidence in the outcome of the trial.
Id.
at 435 , 115 S.Ct. 1555 .
Petitioner argues that he was prevented from discovering the factual basis of this Claim because of the State’s withholding of evidence and the state court’s refusal to allow him an opportunity to conduct discovery. These facts, he argues, demonstrate “cause” for the procedural default.
Certainly, the withholding of evidence by the state that precludes an individual from discovering the factual basis of a claim constitutes “cause” for the procedural default.
Amadeo,
486 U.S. at 222 , 108 S.Ct. 1771 . In
Amadeo ,
the petitioner raised on direct appeal in state court a challenge to the composition of the juries that had indicted, convicted and sentenced him.
Amadeo,
486 U.S. at 218 , 108 S.Ct. 1771 . The state supreme court affirmed the convictions and sentences, rejecting his
*536
challenge on the ground that it should have been objected to before the indictment or voir dire.
Id.
at 219 , 108 S.Ct. 1771 . The basis of the challenge was a District Attorney’s memorandum discovered nine months after the petitioner’s state court trial that composed the figures for the number of African-Americans and women to be placed on the master jury list in order to ensure their under-representation on juries.
Id.
at 217-18 , 108 S.Ct. 1771 .
The petitioner in
Amadeo
argued that his claim was not waived because he did not have an opportunity to discover the purposeful discrimination before the time he discovered the memo.
Id.
at 218 , 108 S.Ct. 1771 . The federal district court, after holding an evidentiary hearing, found “cause” for the procedural default and granted the writ of habeas corpus.
Id.
at 220 , 108 S.Ct. 1771 . The district court found that the petitioner’s claim was reasonably unknown to the petitioner’s attorneys because it was concealed by the county officials and that the concealment, rather than a tactical consideration, was the reason for the failure to raise the challenge in state court.
Id.
at 220-21 , 108 S.Ct. 1771 . The Court of Appeals reversed the district court, reasoning that neither of the two factual predicates from the district court’s legal conclusion was adequately supported by the record. However, the United States Supreme Court stated that the facts found by the district court did constitute “cause” for the procedural default.
Id.
at 222 , 108 S.Ct. 1771 . The Court reversed the appellate court, holding that the factual findings of the district court were not clearly erroneous.
Id.
at 224, 228 , 108 S.Ct. 1771 .
Respondent asserts that the alleged undisclosed
Brady
information was actually known and used by Petitioner’s trial counsel during the trial. For the most part, Respondent relies solely on citations to the trial transcript to attempt to prove that trial counsel did in fact have the information. Respondent did not respond directly to Petitioner’s argument regarding “cause” for the procedural default; rather, Respondent argues that Petitioner cannot use ineffective assistance of counsel (“LAC”) as the basis for cause even though Petitioner does not argue this.
The peculiar aspect about the
Brady
claim is that the procedural “cause” for failing to raise it before in state court (i.e. the procedural default) is intertwined with, if not the same as, the substantive basis for the claim. The framing of the issue of “cause” relates to the Respondent’s analysis in this way: Respondent looks to see what defense counsel knew via the citations in the transcript, and if he did know of the same information contained in the documents that undisputedly were not disclosed to defense counsel, then Petitioner cannot say the State prevented him from knowing the facts upon which to base the
Brady
claim. To put it simply, Respondent’s argument is circular — there is no “cause” for failing to bring the
Brady
claim before because there is no
Brady
claim.
Rather than collapse the issue of “cause” for failure to raise the
Brady
claim into the merits of the
Brady
claim, we approach the “cause” inquiry by focusing first on whether Petitioner’s trial counsel knew or reasonably could have known of the alleged undisclosed evidence.
See McCleskey v. Zant,
499 U.S. 467, 498 , 111 S.Ct. 1454 , 113 L.Ed.2d 517 (1991) (stating the issue of “cause” as “whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim” at the first opportunity) (discussed more fully
infra
in Claim Two);
Fairchild v. Lockhart,
979 F.2d 636, 640 (8th Cir.1992) (finding “cause” for failure to bring
Brady
claim by analyzing what prosecution disclosed, what defense counsel knew, and whether anything disclosed to defense counsel would have alerted him to the new evidence).
As far as determining what defense counsel knew, the Court is unaware of the contents of the prosecutor’s file. We do
*537
know, however, that before the trial began, the Prosecution gave the defense counsel a pleading entitled “Discovery by State of Ohio.”
3
(doc. 103, vol.1, Attach.2) As is discussed below, for the evidence that defense counsel was either aware of, or could reasonably have been aware of, there is no “cause” for failing to raise the
Brady
claim with respect to that issue.
See, infra,
Section (1). For the evidence that Mr. Flax attests that he did not receive or know about, Mr. Flax’s affidavit is sufficient to establish “cause” for failing to raise the
Brady
claim on those issues, and an evidentiary hearing will be held on those issues for both “prejudice” and the merits.
See, infra,
Section (2). Finally, there is a conflict between the documents Mr. Flax attests in his affidavit that he did not receive from the prosecution and the evidence asserted by Petitioner that Mr. Flax did not receive. We find, therefore, a question of fact as to whether Mr. Flax either knew of the evidence or documents or could have reasonably been aware of them, and the Court will hold a hearing on the issue of “cause” for that category.
See, infra,
Section (3).
(1)
For the following pieces of evidence that Petitioner alleges he did not receive prior to trial, we find that Petitioner’s trial counsel either did know or could have reasonably known of the evidence, and therefore there is no “cause” for failing to raise the
Brady
claim with respect to these issues.
(a) Petitioner alleges that his trial counsel was not informed that “Howell had previously been convicted of a theft offense involving a robbery in which the victim was struck in the head.” (doc. 100 at 4.) The affidavit of Mr. Flax states that “[i]n
1981,
Charles Howell was convicted of receiving stolen property and co-defendant Johnny O. Howell was convicted of robbery. Johnny O. Howell struck one of the victims in the head during the commission of the robbery.” (doc. 103 at 6.)
Petitioner is incorrect. The documentation provided by Petitioner for this point indicates that on June 24, 1980 Charles Howell was arrested for receiving stolen property. Charles Howell plead guilty to this offense on September 9, 1980. Mr. Flax has his date wrong in his affidavit; the crime that he describes in his affidavit is the same as that one to which Charles Howell plead guilty in 1980. Further, the prosecution informed the defense counsel that Charles Howell was convicted of receiving stolen property (“R.S.P.”) in
1980,
as indicated in the document entitled “Discovery by the State of Ohio,” which Mr. Flax admits to having received. Accordingly, this evidence was not withheld by the State to satisfy “cause” because it could have been discovered through the State’s discovery.
(b) Petitioner alleges that the prosecution failed to disclose reports indicating that the cause of Gary Mitchell’s death was by some other manner than stomping of a foot to his head as described by Charles Howell in his trial testimony, (doc. 100 at 7.) These reports are:
A. The Homicide Report dated August 10, 1984 which indicated that “the decedent was struck in the head several times with unknown object.”
B. The Investigative Summary of Officer Davis dated August 2, 1984, which stated “victim struck several times with blunt instrument perhaps a pistol or whatever.”
C. The Offense Report dated August 1, 1984 which states that “unknown
*538
suspects entered bar, apparently confronted bartender, struck him in the head and removed cash drawer from register.”
Mr. Flax attests that the defense counsel did not receive any of the above three reports.
Respondent argues that the defense counsel were aware of the information that indicated possible alternative causes of Gary Mitchell’s death. The transcript indicates that defense counsel asked Charles Howell how was it that Petitioner could have stomped on the decedent’s head if there were no shoe marks on the head. (Tr. at 1347-49.)
4
Also, one of the questions asked of Charles Howell by defense counsel alluded to a scientist’s statement that the victim died from some kind of blow from a blunt instrument.
(Id.)
Finally, Mr. Flax states, in a conversation with the court, that the coroner testified that the murder weapon was a blunt object. (Tr. at 2194.) Iri addition, the coroner testified that Gary Mitchell died as a result of a blow to the head. (Tr. at 956-66.) The immediate cause of death was the injury to the head, the contusions, and the skull and brain complications that ensued.
(Id.)
When defense counsel asked whether the coroner had any way of knowing what or how the head injury occurred, the coroner answered negatively, testifying only that “[i]t was a blunt injury, and precisely what caused it, I cannot say.”
(Id.)
Defense counsel knew of the coroner’s testimony before trial as the coroner was listed as a witness on the document provided to defense counsel by the prosecution. Therefore, defense counsel did know that the alleged cause of death was a blunt object, and it would appear that the above reports, which bolster the opinion testimony of the coroner, would not have added anything new or possibly favorable to the defense. Accordingly, we conclude that this evidence was not withheld by the State to satisfy “cause” because it could have been discovered through the State’s discovery.
(c) Petitioner alleges that his trial counsel did not receive information that “Howell had been arrested for a prior robbery offense at Pat’s Carryout in the same geographical location as the robbery/homicide at the Central Bar where the victim sustained head injuries.” (doc. 100 at 4.)
The document purportedly supporting this fact is a C.P.D. arrest record for Charles Howell that states, on November 12, 1981, Charles Howell was arrested for aggravated robbery of Pat’s Carryout, which is located on 1611 Central Ave. (doc. 100, Tab 1 at 23.) The arrest record is a part of a document Mr. Flax alleges he did not receive, (doc. 103, vol. 1 at 44.)
Respondent argues that Petitioner knew about the same information contained in the arrest record at trial. A review of the record shows that Respondent’s argument appears to be correct. At the trial, defense counsel questioned Charles Howell regarding whether he had ever been arrested for a robbery at Pat’s Carryout. (Tr. at 1297.) Before Charles Howell answered, the prosecution objected, causing the court to call a sidebar. At sidebar, Mr. Prem, one of Petitioner’s counsel, told the Court that he had recently found a copy of a complaint against Charles Howell signed by Officer Donald Campbell charging him with aggravated robbery on November 10, 1981 at Pat’s Carryout. (Tr. at 1300-1301.) Mr. Prem explained to the court his theory of relevance of the arrest:
[t]he relevance is this, a place less than a block away. It’s just past the corner on the next block. There was a robbery in which this witness was charged with aggravated robbery where the owner of this pony keg, delicatessen, whatever
*539
suffered a head injury during the course of the robbery.
(Tr. at 1299.) When the sidebar concluded, Mr. Preña did not ask Charles Howell to answer the question about his arrest, previously put to him. Rather, defense counsel asked whether Charles Howell was the same “Charles Howell” as in the document (presumably the copy of the complaint), and Charles Howell answered, “No.” (Tr. at 1373-74.)
With the exception of the date of the arrest, Petitioner’s trial counsel had the same information as that contained in the C.P.D. arrest record, which he claims was not disclosed to him. There is no substantial difference between the complaint and the arrest record. Accordingly, this evidence would only be cumulative to that information defense counsel had access to at trial, and therefore cannot establish “cause.”
(d) Petitioner also argues that the prosecution failed to disclose that, “[a]t the time he was sought for questioning as a suspect in the Mitchell homicide, Howell was arrested on January 22, 1985 for an outstanding rape charge and for questioning on the Central Bar homicide. Howell gave a fictitious name when arrested. (At Jamison’s trial, C.P.D. testified Howell was arrested on a traffic capias, and denied he was arrested on rape.... C.P.D. now acknowledged that Mr. Howell had in fact been arrested for rape when he provided his statements linking Jamison to the Mitchell homicide.)” (doc. 100 at 4.)
A Uniform Felony Arrest Report for Charles Howell, dated January 22, 1985, states that Charles Howell was arrested that day, that the “means of arrest” was “capias,” that the charges were “I.D. (rape,)” that the facts of the arrest were “traffic capias ... Hold for P.O. Wm. Davis Homicide Squad, for Investigation.” (Hoffman Dep.Ex. 28, doc. 85, vol. 3.)
At trial, the defense counsel had this report and used it in his questioning of Officer Davis. (Tr. at 1074). Officer Davis testified that the rape charge was “incorrectly” put there, and that he knew “for a fact that at the time he was not wanted for that particular offense.” (Tr. at 1086.) Howell testified that he did not remember being told about the traffic capi-as or rape when he was arrested. (Tr. at 1352-53,1355.)
During habeas discovery, Officer Hoffman at his deposition explained the January 22, 1985 Felony Arrest Report by stating, “actually, he was held for apparently an investigative detention arrest for rape but there was also an open traffic capias on him.” (Hoffman Dep. at 85.) Officer Kohus stated during his deposition that in regards to that arrest report, he remembered Officer Krabbe was looking for Charles Howell for a rape offense. (Kohus Dep. at 46, doc. 103 at 181.)
Petitioner does not allege that the prosecution failed to disclose a specific document, and therefore cannot argue that the “cause” for the procedural default was the State’s withholding of the factual basis of the claim. In fact, it appears that defense counsel had the document that indicates the rape charge. The only dispute is whether Officer Davis lied during the trial and whether the prosecution knew of the lie at the time of trial. Respondent does not refute the Officer’s current testimony or attempt to show that Officer Davis was mistaken at time he testified at trial. Nonetheless, Petitioner has not demonstrated conclusively that Officer Davis committed perjury and that the Prosecution suborned the perjury. Therefore, Petitioner has not demonstrated “cause” for failing to raise this as a basis of the
Brady
claim. Furthermore, Petitioner has not shown that a fundamental miscarriage of justice will result of the Court refuses to hear this claim.
(2)
We find that with respect to the evidence below, alleged to have been undisclosed to Petitioner’s trial counsel, the fact that Mr. Flax attests that he did not receive the documents from the Prosecu
*540
tion constitutes “cause” for failing to raise the
Brady
claim on those issues. Again, Respondent does not argue that Petitioner did in fact receive these documents. Respondent’s arguments relate to the merits of the claim, and we briefly describe below why there are factual issues disputed as to the merits of the claims and why it appears that the evidence would have been favorable to Petitioner. Respondent does not offer any other argument as to why there is no “cause” other than the fact that the claim is not meritorious. Therefore, for the following pieces of evidence, the Court will also need to determine after argument and a hearing whether there is actual prejudice to excuse the procedural default.
See Frady,
456 U.S. at 170 , 102 S.Ct. 1584 ;
Rust,
17 F.3d at 161 .
(a) Petitioner alleges that his trial counsel did not receive this information: “Mr. Suggs selected from a police photo array photos of individuals whom he identified as the taller and shorter of the perpetrators whom he had seen flee the Central Bar homicide. Neither of the photos he selected depicted Mr. Jamison.” (doc. 100 at 3-4.)
Respondent argues that Mr. Suggs never identified another suspect and was fully cross-examined with the same information that Petitioner is now suggesting is exculpatory. (doc. 124 at 12, ¶ 5.) Mr. Suggs testified on direct examination that “I seen a lot of pictures, but I was unable to identify.” (Tr. at 2054.) He restated on cross examination that he could not identify the individuals he saw the day of the robbery/homicide. (Tr. at 2058.) Also, Officer Davis testified that Mr. Suggs was shown photos, but he could not identify any of them. (Tr. at 1026,1144.)
The undisclosed documents to which Petitioner refers are photos, which are distorted because they are copies, and the individuals that the photos depict are unrecognizable. However, on the bottom of one of the photos is written, “picked by Mr. Suggs as a look-a-like for the taller suspect.” (doc. 100, Tab 1 at 16.) The other document, which is preceded in the record by a number of copies of photos that are completely distorted, appears to be the criminal record of Eugene Vassar.
(Id.
at 19-20) Handwritten on the record next to the name Eugene Vassar is “alias Charles Howell.”
(Id.)
On the following page, which appears to be a continuation of the criminal record for Eugene Vassar, is the statement, “James Suggs picked this photo out of 7 photos and said he thinks it was the shorter of the 2 suspects in the Central Cafe Robbery — Just passed over picture of Greg Ivory.”
(Id.)
Mr. Flax attached these documents to this affidavit and stated that they were among those not disclosed to him by the prosecution, (doc. 103, vol. 1, Aff. Flax 1HI8(A), 10(A).) At the hearing, Respondent argued that a look alike is not an identification because it is not a positive identification.
(b) Petitioner also alleges that the prosecution failed to disclose to Petitioner’s trial counsel other eyewitness statements about the Central Bar homicide that conflicted with the State’s theory that Charles Howell (6'1") and Petitioner (6'3"), both above average in height, were the assailants. “These eyewitness statements also contradicted Howell’s testimony at trial. These eyewitnesses saw and described two suspects who were seen ‘casing’ the Central Bar shortly before the homicide and fleeing from the Central Bar at the time of the murder. The suppressed statements make clear that one of the perpetrators was quite tall, and the other was significantly shorter.” (doc. 100 at 5.)
Respondent failed to respond to the following points in his proposed findings of fact and conclusions of law.
(i) Petitioner alleges that his trial counsel did not receive this information: “Ellen Hall, the cook at the Central Bar, told the C.P.D. that two African-Americans twice entered the bar just prior to robbery. One of the individuals was stocky and approximately 6'2" wearing a summer hat and the other individual was 5'5" and
*541
weighed between one hundred forty to one hundred fifty pounds.” (doc. 100 at 5.)
This information comes from the CJP.D.’s Investigative Summary, dated August 12, 1984. (doc. 103, vol.l, Attach.15.) Petitioner’s above statement is a correct summary of the information contained in that report, with the exception that the second individual was identified as 5'6". Mr. Flax attests that he did not receive this report. Howell testified that he and the other accomplice had not entered the bar prior the robbery. (Tr. at 1251-57.)
(ii) Petitioner alleges that his trial counsel did not receive this information: “Gene Martin, who was in the Central Bar just prior the robbery, described two African Americans who entered the bar — the taller individual as a ‘good size, 6' or over’ and the shorter individual as 5'7". He also stated that two African Americans ‘checked out’ the Central Bar twice prior to the robbery also contradicting Howell’s trial testimony.” (doc. 100 at 6.)
This information comes from the C.P.D.’s Investigative Summary dated August 12, 1984. (doc. 103, vol.l, Attach.15.) Mr. Flax attests that he did not receive this report. Petitioner’s above statement is a correct summary of the information contained in that report, with one exception: the report does not state that Mr. Martin said the two individuals “checked out the Central Bar twice.” Mr. Martin said that the taller one came in the Bar to use the phone. One can infer from the report that Ellen Hall saw them twice in the Bar.
(iii) Petitioner alleges that his trial counsel did not receive this information: “George Richardson, who lived across the street from the Central Bar, provided a ‘description of the suspects’ that ‘matches the description given by the other witnesses’ one suspect 6'2" and the other suspect much shorter in medium 5' range.” (doc. 100 at 6.)
This information comes from an Investigative Summary Report of Officer Davis dated August 2, 1984 and Officer Davis’ deposition testimony, (doc. 103, vol. 1, Attach. 9; doc. 100, Tab 1 at 58-59.) Mr. Flax attests that he did not receive this report.
(iv)Petitioner alleges that his trial counsel did not receive this information: “Greg Mapp informed Officer Davis that he saw an individual flee the bar at the time of the homicide who was 5'7" to 5'9" and was carrying a brass pipe approximately one foot in length.” (doc. 100 at 6.)
This information comes from the Investigative Summary, dated August 5, 1984 of Officer Davis. Petitioner’s summary of the report is correct. Mr. Flax attests that he did not receive this report. Howell testified that there was no weapon. (Tr. at 1251-57.)
(c) Petitioner alleges that his trial counsel did not receive this information: “David Anthony, who was found in possession of one of the wallets from one of the victims of the Sav-All Drug Store, one of the so-called similar offenses, immediately after the robbery in the area behind the store. He was wearing a straw hat. Two eyewitnesses (Suggs and Richardson) stated that one of the Central Bar assailants was wearing a straw hat.” (doc. 100 at 7.)
This information comes from an arrest report on August 7, 1984 charging David Anthony with (“I.D. (trafficking in marijuana) (RSP over)).” (doc. 103, vol.l, Attach.24.) The arresting officer observed Anthony “rooting thru wallet taken in Agg. Robbery Offense at 120 W. Elder Street.”
(Id.)
Also, the arresting officer observed Anthony wearing a straw hat.
Additionally, there are photographs that state underneath them, “David Anthony; Suspect: Central Bar; 8-8-84.” (doc. 103, vol. 1 Attach. 21 at 49.) There is also a photo/sketch of a person wearing a straw hat with “Suspect # 1” written on top of it. The person depicted in the photo is unidentifiable. (doc. 103, vol.l, Attach.25.) There are handwritten notes, dated August 2, 1984, that have George Richard
*542
son’s name and address on the top of the sheet, and the description of the two individuals he saw run from the Central Bar, including that the second person was 5'11" and was wearing a tan straw hat. (doc. 103, vol. 1 Attach. 26.)
Mr. Flax attests that he did not receive the arrest report, photos or notes.
(d) Petitioner alleges that his trial counsel did not receive this information: “Robert Jordan and Percy Tait who had previously lived in the neighborhood of the Central Bar and matched the eye witness descriptions.” (doc. 100 at 7.)
There are photographs in the record, which Mr. Flax attests he did not receive, that show a black male wearing a straw hat, an unidentifiable photo with “Robt. Jordan, 2-12-64;
Q'2%"
165; 8-17-84; Davis” written under it, and another unidentifiable photo which reads “Percy Tait, 5'5 148 lbs, 8-12-84; lived across from_ with Robt. Jordan.” (doc. 103, vol. 1, At-tachs., 27 & 28.)
(e) Petitioner alleges that the prosecution failed to disclose to trial counsel that Petitioner after his arrest refused to waive his
Miranda
rights. Specifically, Petitioner alleges the prosecution failed to disclose the Notification of Rights/Waiver Form that indicated Petitioner’s refusal to waive his rights in writing. Mr. Flax attests that he did not receive this document. Although there is a dispute as to the effect of the document, that argument relates to the merits of the
Brady
claim. Respondent has not made any other argument as to why the non-disclosure does not constitute “cause.”
(3)
Finally, for the following evidence, alleged to have been undisclosed by the Prosecution, we find there is a question of fact as to whether Mr. Flax either knew of the evidence or documents or could have reasonably been aware of them, and the Court will hold a hearing on the issue of “cause” and prejudice, and if need be, on the merits, for that category.
(a) Petitioner alleges that the prosecution did not disclose the following information: James Suggs saw two individuals flee the Central Bar. The taller individual was ’23-25, 6'2" - 6'4" 200 lbs., brown pants, brown skin, and wearing a large brown hat (straw) and the shorter subject was “23-25, 5'9" 160 lbs., dark complexion, mustache, short Afro.” (doc. 100 at 3.)
Most of the above description allegedly undisclosed to the defense was included in the August 1, 1984 Investigative Summary prepared by Officer Hoffman.
5
(doc. 100, Tab 1 at 10.) Mr. Flax does not attest that the prosecution failed to disclose this document. For instance, the description of the two individuals that Mr. Suggs gave prior to the trial appears to be information about which the defense knew. At trial, Officer Davis testified that James Suggs told the officers that he observed two black males in their twenties run from the area of the bar, that one was 6'2" to 6'4" and 200 pounds and the other was shorter, 5'3" to 5'9". (Tr. at 1123.) Mr. Flax also elicited a similar description of the relative heights of the two individuals
from
Mr. Suggs at trial. (Tr. at 2052.)
Although the reference to the straw hat worn by the taller individual, which was not mentioned at trial, may have been important to defense counsel because it is mentioned by another witness in reference to one of the so-called similar robberies, Mr. Flax did not state in his affidavit that he did not receive this document. Consequently, we do not know whether he should have known of this information.
(b) Petitioner also alleges that his trial counsel did not receive this information: “On August 9, 1984, Officers Hoffman and Davis took James Suggs to several hat
*543
shops where he picked out the straw hat similar to that which Suggs saw the taller perpetrator wearing as he fled the Central Bar homicide.” (doc. 100 at 4.)
This information was included in the Investigative Summary of Officers Davis and Hoffman dated August 4, 1984. (doc. 100, Tab 1 at 14.) Again, according to his affidavit, Mr. Flax does not allege that the prosecution failed to disclose this document. And again, Respondent does not affirmatively state that it provided Petitioner’s trial counsel with this document.
(c) Petitioner alleges that the defense counsel were not informed that “Howell made two statements to the C.P.D. after his initial statement, both of which contradicted his initial statement. Initially, Howell stated that the robbery was unplanned, that he never jumped over the bar and that he never saw the victim lying on the floor. In his later statements, Howell stated that ‘this was a planned robbery’ and that ‘they went there with the intention of doing the robbery.’ He also stated that he jumped over the bar and saw a leg or shoe belonging to the victim.” (doc. 100 at 5.)
When any of the above statements were made is unclear. Also, the Parties have not specifically identified by date or content the statements to which they refer in their briefs. Consequently, the Court finds that there is a question of fact as to this part of the
Brady
claim and that there should be an evidentiary hearing as to “cause” and prejudice, and possibly on the merits, with respect to this issue.
The Court has been able to discern that, according to Mr. Flax’s affidavit and the documents that were attached to Petitioner’s brief, there were apparently three statements made prior to the testimony Howell gave at the grand jury hearing.
(1)Officer Davis wrote the following on his Investigative Summary dated January 28, 1985: Howell “states that himself and this DERRICK JAMISON went into the Central Bar. He said it was not a planned thing. He states he went to the back of the bar into th'e bathroom and that DERRICK went up to the bar where the victim was standing and when he came out of the restroom, out of the men’s room, the victim was lying on the floor and JAMISON was going through the cash register.... At this point it seems like we’re going to charge this CHARLES HOWELL with Aggravated Robbery, with the agreement that he testify before the Grand Jury and at Common Pleas against DERRICK JAMISON.” (doc. 103 at 19-20.)
(2) A handwritten document dated January 24, 1985, reads, “States he has a tape statement from his client. States his client went into the Bar to use the bathroom along with Jamison. States he came out of the bathroom, Jamison was going through cash register. His client jumped over the bar, saw a shoe or leg belonging to the victim. Left the bar and received some of the money from Jamison while running on the street.” (doc. 103 at 22.)
(3) Officer Davis wrote the following on his Investigative Summary dated January 29, 1985: “[pjrior to him [Howell] going into the Grand Jury, he gave us another statement as to what occurred, this was in the presence of his attorney, TOM MILLER. He stated that this was a planned robbery. That they went in there with the intentions of doing the robbing and he still insists that he went to the bathroom and when he came out DERRICK JAMISON was at the register getting the money. He says already jumped over the bar and he jumped back over and DERRICK JAMISON went over and started stomping on the deceased’s head.... TOM MILLER in his plan is agreed to plead guilty to Aggravated Robbery charges so as it appears now, we’re in real good shape.” (doc. 103 at 23.)
It is unclear whether all three of these statements are the ones that defense coun
*544
sel did not receive or if the first one on January 23, 1985 is the “initial statement” to which Petitioner refers. Respondent says that the defense cross-examined Howell on inconsistencies in his grand jury testimony at trial and that defense counsel was provided with a copy of Howell’s taped statement to the police at trial. Respondent also argues that defense counsel was aware that Howell had spoken to the police after Howell had spoken to Prosecutor R. Daniel Reif at the grand jury, and defense counsel knew that Howell made a second statement to the police after testifying. Finally, Respondent argues that Howell was cross-examined by defense counsel on inconsistencies in his version of the events that took place at the Central Bar. (doc. 124 at 12.)
Although the prosecution stated that it gave defense counsel a transcript of the taped statement made by Howell at trial (Tr. at 1399.), the defense counsel implied there may have been more than one taped statement because Howell testified on redirect that every time he gave a statement to the police it was taped.
(Id.)
In answering the defense’s questions, Howell testified that he spoke to the investigating officers after the time he spoke to the prosecution following his grand jury testimony. (Tr. at 1420-21.) However, Howell’s testimony as to this point is unclear because he later states that did not speak to the prosecution after testifying to the grand jury.
(Id.)
Mr. Flax did mention at trial the inconsistencies of Howell’s statements, comparing the statements originally made to the officers, the statements made at the grand jury, and the statements at trial.
(See
Tr. at 1320, 1340-50
&
1380-84.) In two questions, Mr. Flax identified those inconsistencies as relating to the time of day of the robbery/homicide, whether Howell went behind the bar in the Central Bar, whether Howell saw the attack on Gary Mitchell, and the number of times Petitioner allegedly “stomped” on the victim’s head.
(Id.)
Howell admitted to changing his story as between the time the officers first interviewed him and the testimony he gave at the grand jury.
(Id.)
Respondent’s citations to the transcript do not clearly support his position that Petitioner’s trial counsel knew of all the statements Howell made before trial. The transcript is unclear as to which statements the counsel are referring and the specific inconsistencies of Howell’s statements. The only time defense counsel attempt to detail the inconsistencies of Howell’s statements, they did so in the form of a statement or question that went unanswered. Further, if the statements Petitioner alleges were undisclosed occurred before the grand jury as it appears by the dates and the comments within the police reports, then the inconsistencies referred to at trial were not the ones that Petitioner is speaking about here. Rather, Petitioner would be referring to the inconsistencies among the three statements given prior to the grand jury testimony; if that is the case, then Respondent’s argument is incorrect.
It thus appears that Petitioner’s trial counsel did not receive at least one of the three above pretrial statements of Howell. However, because the transcript and the Parties are unclear, we will hold an eviden-tiary hearing on this issue for purposes of determining “cause” and prejudice and possibly the merits.
(d) Petitioner alleges that the Prosecution did not disclose the teletype from the C.P.D. officers who initially responded to the Mitchell homicide scene indicating that two individuals were involved in the offense — the first individual was 6'4" and weighed two hundred pounds and was wearing a large brown straw hat. The second individual was 5'3". (doc. 100 at 5.)
Mr. Flax does not attest in his affidavit that he did not receive this teletype. Thus, there is a question of fact whether Mr. Flax did not receive this document.
(e) Petitioner alleges that his trial counsel did not receive the following informa
*545
tion: Based upon the descriptions provided by the above witnesses, the Crime Stoppers Program at the direction of C.P.D. issued the following release for the week of August 14, 1984 concerning the description of the two assailants at the Central Bar: “The suspects are described as # 1 — a male/black, 25 years of age, 6'2" - 4" tall, 200 lbs., wearing brown pants and a brown straw hat # 2 — a male/black, 25 years of age, 5'3" tall, 160 lbs., wearing blue press pants and a mustache.”
Mr. Flax does not attest that he did not receive this report. Thus, there is a question of fact whether Mr. Flax received this document.
(f) Petitioner alleges that the prosecution did not disclose evidence relating to pre-trial statements of eyewitnesses of the so-called similar robberies who testified at the Central Bar trial.
Respondent did not respond at all to any of these alleged undisclosed facts. Mr. Flax attests that he did not receive any of the following evidence.
(i) Petitioner alleges that his counsel did not know that Jack West, the victim of the Metropolitan Gallery robbery, provided a physical description of the assailant as 5'10", 150 lbs. with a stocky build. Derrick Jamison’s physical appearance did not match the description. Derrick Jamison is 6'3" and very thin. (doc. 100 at 8.)
This description came from the August 4, 1984 Offense Report, which Mr. Flax attests he did not receive, (doc. 103, vol.l, Attach.34.) Petitioner’s statement that Mr. West described the assailant as stocky was incorrect; Mr. West described the assailant as thin.
(ii) Petitioner alleges that according to the same Supplementary Offense Report, dated August 4, 1984, Officer Luken wrote that there were varying descriptions of the possible suspects. Three young male blacks gave the description of a young Caucasian male. Petitioner is African-American. (doc. 103, vol.l, Attach.34.)
(iii) Petitioner alleges that his counsel did not receive a composite drawing, which was prepared with the assistance of the victim at the Sav-All Drug Store robbery, depicted one of the assailants as slender, 6' to 6'1", light brown complexion, with a mustache. According to Petitioner, that physical description matched the physical description of Charles Howell.
The document, which Mr. Flax attests to having not received, is a picture of a man, who appears to be African-American, wearing a straw hat. (doc. 103, vol.l, Attach.25.)
(iv) Petitioner alleges that his counsel did not know that one of the victims at the Sav-All Drug Store selected Tommy Rachel as a look alike for one of the assailants.
The document, which Mr. Flax attests to having not received, is a handwritten note that reads, “also check prints of Tommy Rachel — per argo who showed picture to victim at Elder Street Robbery — Victim said look alike.” However, appearing right next to this line on the document is the comment, “eked 8/25/84 NEG.” and initialed “O.J.” (doc. 103, vol.l, Attach.35.)
(g) Petitioner alleges that his counsel was not informed that “[m]ost of these other robberies involved two perpetrators, including Ideal Furniture Co., Levine Furniture Co., Lafayette Hotel and Fashion Warehouse Outlet. There is no evidence linking Mr. Jamison to any of these other robberies.” (doc. 100 at 9.)
' The deposition transcript citations that Petitioner referred to only mention there were a number of robbery-type offenses that occurred in District One over a five month period, that one of the so-called similar offenses was the Lafayette Hotel, and Petitioner was not charged with that robbery. The deposition citations do not mention the other robberies, however. Respondent does not respond at all to these alleged undisclosed facts. Thus, there is a question of fact regarding whether there were documents that the
*546
prosecution did not disclose or whether this information was unavailable to Petitioner’s counsel because his counsel did not adequately investigate.
Accordingly, Petitioner has demonstrated “cause” for failing to raise the
Brady
claim with respect to the undisclosed evidence in Section (2), and the Court must now hear arguments on whether there is “actual prejudice” to Petitioner as a result of the alleged constitutional error. If that standard is met, then the Court will address the claim on the merits. The Court will hold an evidentiary hearing on “cause” as to the evidence in Section (3), and then analyze that evidence similarly to Section (2). With respect to the evidence in Section (1), Petitioner has not demonstrated “cause” for the procedural default nor established a miscarriage of justice, and the
Brady
claim based on that evidence is waived.
CLAIM TWO
The admission of Mr. Jamison’s statements at trial violated his rights as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.
Respondent argues that this claim is procedurally defaulted because Petitioner did not raise it at trial or on direct appeal.
6
This claim is based on Petitioner’s assertion that he did not waive his
Miranda
rights
7
prior to making an inculpatory statement during an interrogation by a Cincinnati police officer. The incul-patory statement was admitted at trial. Petitioner bases his non-waiver argument on a newly-discovered Notification of Rights/Waiver of Rights Form, executed on the day he was arrested for the Central Bar robbery/homicide, that indicates he refused to waive his rights in writing.
On October 12, 1984, around 3:00 p.m., Petitioner was arrested as he was fleeing the area of a Gold Star Chili Parlor that had just been robbed. (Tr. at 1931-33.) After his arrest, Cincinnati police officers transported Petitioner to the police station located on Ezzard Charles Drive. There, the police officers questioned Petitioner about a number of robberies that had occurred in the recent past, including the Gold Star Chili robbery, the Central Bar robbery/homicide and the Acres of Books robbery. (Luken Dep. II at 42-47; Tr. at 870, 1057 & 1537.) One of the officers provided Petitioner with a written Notification of Rights/Waiver of Rights Form (hereinafter “Waiver Form”) that advised him of his
Miranda
rights and included a place to sign if he agreed to make a statement and answer questions despite those rights.
8
(doc. 103, vol. 1, Attach. 33 at 80.) The Waiver Form, dated October 12, 1984, with an indication of the time at 15:30 hours, states “refused to sign” on the signature line and “Sgt. Charles J. Mullen” as witness, but does not mention Petitioner’s
*547
name.
9
(Id.)
The Waiver Form was not turned over to Petitioner until federal ha-beas discovery.
10
Sometime after advising Petitioner of his rights, Officer Luken questioned Petitioner about the Acres of Books robbery. (Tr. at 1537.) During that questioning, Petitioner made an inculpatory statement that he had never been in that establishment.
(Id.)
Petitioner now contends that he did not waive his
Miranda
rights, as evidenced by his refusal to sign the Waiver Form, and that his inculpatory statement was obtained and used against him at trial in violation of his Fifth Amendment rights.
Petitioner contends, as “cause” for the procedural default, that he was not able to raise this claim earlier because the Waiver Form was not disclosed until federal habeas discovery. In effect, then, Petitioner argues that the State’s interference by not disclosing the Waiver Form until federal habeas discovery prevented Petitioner from previously constructing and raising the
Miranda
claim in state court.
Central to Petitioner’s argument is this assumption: his refusal to sign the form equals refusal to waive his
Miranda
rights. Respondent contends, however, that even though Petitioner did not waive his
Miranda
rights in writing, he waived them orally by continuing the interrogation with the officer and answering the Officer’s questions. We need not resolve this dispute, however.
11
Even assuming Petitioner’s assumption is correct, the existence of the form does not constitute “cause” for failure to raise the claim previously. The Supreme Court’s opinion in
McCleskey,
499 U.S. at 497-501 , 111 S.Ct. 1454 , supports this conclusion.
In
McCleskey ,
the petitioner did not raise his Massiah
12
claim until his second federal habeas petition, and the issue was whether he had established “cause” for failing to raise that claim in his first federal habeas petition.
McCleskey,
499 U.S. at 497 , 111 S.Ct. 1454 . Even though
McCles-key
concerned the issue whether the claim constituted an abuse of writ, the same standard for excusing a state procedural default — showing “cause” and prejudice— applied to determine whether there had been an abuse of writ.
Id.
at 493 , 111 S.Ct. 1454 . The Petitioner’s
Massiah
claim was based on the following facts: at the petitioner’s trial, the petitioner renounced his earlier confession by taking the stand and asserting an alibi defense.
Id.
at 470 , 111 S.Ct. 1454 . To rebut this testimony, the State called a witness who had previously occupied a jail cell next to the petitioner’s.
Id.
The witness testified
*548
that the petitioner had admitted to him in a jailhouse conversation that he committed the crime with which he was charged.
Id.
The asserted basis for raising this claim in the second federal habeas petition was a written statement signed by the witness and given to the police two weeks before the petitioner’s trial. The statement delineated the related pretrial jailhouse conversations and the fact that the petitioner had participated in these conversations.
Id.
at 474 , 111 S.Ct. 1454 . The police did not furnish the document to the petitioner until one month before he filed his second federal petition.
Id.
The Court stated that the issue of “cause” is “whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue this matter through the habeas process.”
Id.
at 498 , 111 S.Ct. 1454 . The Court further explained that “[i]f what petitioner knows or could discover upon reasonable investigation supports a claim for relief in a federal habeas petition, what he does not know is irrelevant. Omission of the claim will not be excused merely because evidence discovered later might also have supported or strengthened the claim.”
Id.
The Court then held that the document previously unavailable to the petitioner did not establish “cause” for failing to raise the
Massiah
claim in the first petition.
Id.
Moreover, the court concluded that the petitioner had knowledge of the facts that would have put him on notice to pursue the
Massiah
claim: namely, based on the testimony at trial, he knew that he had confessed to the murder during the jail cell conversations with the witness, and he knew that the witness told the police about those conversations.
Id.
at 498-99 , 111 S.Ct. 1454 . In other words, because the petitioner participated in the conversations with the witness, he knew everything in the document, and therefore the document’s unavailability did not prevent him from pursuing the
Massiah
claim.
Id.
at 500 , 111 S.Ct. 1454 .
Similarly, in the instant case, Petitioner’s knowledge of the
Miranda
claim does not arise solely from the discovery of the Waiver Form. Petitioner participated in the conversation with Officer Luken and thus he and his trial counsel would know whether he orally waived his
Miranda
rights.
See Bannister v. Delo,
100 F.3d 610, 624-25 (8th Cir.1996) (affirming district court’s finding of no “cause” for procedural default in part because the factual basis of the claim that petitioner was not a hired killer was reasonably available to petitioner as he would know whether or not he was a hired killer) (citation omitr ted)
13
. Based on the testimony at trial, Petitioner’s counsel would have known that the officer advised Petitioner of his
Miranda
rights and that Petitioner subsequently gave the police officer an inculpa-tory statement. The Waiver Form arguably strengthens his claim that he did not waive his rights. However, the Waiver Form is inconclusive on the issue of whether Petitioner orally waived his rights after refusing to sign the Form.
In order to support the
Miranda
claim, Petitioner would have to prove he refused to sign the Waiver Form
and
refused to waive his rights orally. As stated, the Waiver Form would support the former but not the latter. Therefore, the Waiver Form does not wholly and conclusively support Claim Two, and the Waiver Form’s previous nondisclosure did not prevent Petitioner from pursuing the
Miranda
claim earlier. Accordingly, we find that Petitioner has not established “cause” for the procedural default of this claim, nor has Petitioner established that a fundamental miscarriage of justice will result if
*549
the Court refuses to hear this claim. Therefore, Claim Two is waived.
CLAIM THREE
The admission of in-courtroom and pretrial identification of Mr. Jamison by witnesses who identified Mr. Jami-son as the result of improper identification procedures denied Mr. Jamison his rights as guaranteed by the Fourth, Fifth, Sixth and Fourteenth Amendments of the United States Constitution.
At the Central Bar trial, several witnesses made in-court identifications of Petitioner as the person who was involved in other assaults and robberies that occurred before and after the Central Bar robbery/homicide. These witnesses also testified that they previously identified Petitioner during a line-up. Petitioner essentially argues that the pretrial identifications and subsequent in-court identifications were the result of unduly suggestive identification procedures in violation of his due process rights. Petitioner further argues that the line-up occurred in violation of his Sixth Amendment right to counsel.
This claim was not raised as a timely objection at the Central Bar trial
14
, nor was it raised on direct appeal. Petitioner did not raise this claim as written here in his postconviction petition but rather as an example of the ineffectiveness of his trial counsel who failed to file a motion to suppress the identification testimony. (Return of Writ, Ex. L.) The seventh cause of action in Petitioner’s postconviction petition states:
The judgments and sentences against Petitioner are void or voidable because Petitioner was denied his right to effective assistance of counsel as guaranteed him by the United States and Ohio Constitutions, because his counsel failed to seek the suppression and exclusion from evidence of identification of Petitioner by various “other acts” witnesses because such identifications were the product of unconstitutionally suggestive and tainted line up or show up procedures.
{Id.)
The Court of Common Pleas reviewing the postconviction petition found the claim of ineffective assistance of trial counsel barred by
res judicata.
(Return of Writ, Ex. N.) The Hamilton County Court of Appeals upheld the trial court’s finding. (Return of Writ, Ex. Q at 11.)
(1)
The first issue is whether the third federal habeas claim was fairly presented to the state courts by way of Petitioner’s postconviction petition. As a general rule, before a federal court can pass on the federal claim raised in habeas corpus, the petitioner must first adequately present the federal claim to the appropriate state court in a manner required by state law so as to afford the state court a “meaningful opportunity to consider allegations of legal error.”
Vasquez v. Hillery,
474 U.S. 254, 257 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986);
see also Picard v. Connor,
404 U.S. 270, 275-76 , 92 S.Ct. 509 , 30 L.Ed.2d 438 (1971) (stating “[o]nly if the state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies”). In other words, the federal court must determine that the substance of the federal habeas claim has been “fairly presented to the state courts.”
Picard,
404 U.S. at 275 , 92 S.Ct. 509 ;
accord Anderson v. Harless,
459 U.S. 4, 6 , 103 S.Ct. 276 , 74 L.Ed.2d 3 (1982) (per curiam);
Hannah v. Conley,
49 F.3d 1193, 1196 (6th Cir.1995). “[I]t is not sufficient merely that the federal habeas applicant has been through the state courts ... for the rule would serve no purpose if it could be satisfied by raising one claim in the state courts and another in the federal
*550
courts.”
Picard,
404 U.S. at 275-76 , 92 S.Ct. 509 . If the Petitioner fails to fairly present the claim, he may have waived the unraised claim for purposes of federal ha-beas corpus review.
Weaver v. Foltz,
888 F.2d 1097, 1099 (6th Cir.1989).
Here, we cannot say that the post-conviction claim of ineffective assistance of trial counsel for failing to object to the identification evidence fairly presented the substance of the federal habeas claim, the violation of Due Process and the Sixth Amendment right to counsel, to the state courts. A legal theory urged in a habeas petition that is different than what was raised in the state court briefs does not satisfy the “fair presentation” requirement.
See Wong v. Money,
142 F.3d 313, 321-22 (6th Cir.1998) (rejecting a federal habeas petitioner’s second ineffective assistance of counsel claim on the ground that it rested on a theory that was separate and distinct from the first theory that was itself rejected in the state court);
Franklin v. Rose,
811 F.2d 322, 325 (6th Cir.1987) (rejecting a petitioner’s assertion that a “catch-all” provision or generalized terminology in his petition for habeas corpus adequately apprized the state court of the constitutional theory to be relied upon at appellate review, where under the circumstances the only legal theory presented to the state courts was predicated entirely upon state evidentiary law);
Prather v. Rees,
822 F.2d 1418, 1421 (6th Cir.1987) (affirming the district court’s dismissal of the petitioner’s claim that he was entitled to the lesser-included offense jury instructions on the basis that he did not fairly present the substance of his constitutional claims to the state courts).
The basis for the objection in the state court would probably have been similar to the substance of the federal habeas claim. Federal habeas Claim Three and the state ineffective assistance of trial counsel claim, however, are predicated on distinct legal theories, and they require different elements of proof.
See Kimmelman v. Morrison,
477 U.S. 365, 374-375 , 106 S.Ct. 2574 , 91 L.Ed.2d 305 (1986) (rejecting perception of identity between a habeas petitioner’s Fourth Amendment and ineffective assistance of trial counsel claims in part because the two claims are distinct in nature and in requisite elements of proof);
Carsetti v. State of Maine,
932 F.2d 1007, 1011 (1st Cir.1991) (finding, for purposes of exhaustion inquiry, claim that the inclusion of erroneous information in a presen-tence report violated due process and claim that defendant received ineffective assistance of trial counsel because of his counsel’s failure to prevent inaccurate information about his criminal history from being considered during the sentencing hearing were conceptually different claims because they rested on different legal theories).
In order to prevail on the improper line-up claim (the substance of Claim Three), Petitioner would have to prove that (1) the Sixth Amendment right to counsel had attached at the time of the pretrial line-up, or (2) that the identification procedures were unduly suggestive and that the identification was unreliable viewed in the context of the totality of the circumstances.
See United States v. Wade,
388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967);
Ledbetter v. Edwards,
35 F.3d 1062 (6th Cir.1994). In contrast, in order to prevail on the ineffective assistance of trial counsel claim (the substance of the state postconviction claim), Petitioner would have to show (1) counsel’s representation fell below an objective standard of reasonableness — that' is, that the line-up claim was meritorious, and (2) there is a reasonable probability that the verdict would have been different without counsel’s errors.
See Strickland v. Washington,
466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Thus, the two claims would require different proof. Accordingly, we hold that Petitioner has not fairly presented Claim Three in the state courts. Where as here because of procedural default, a petitioner can no longer present his claims to a state court,
*551
he has waived them unless he can show “cause” for the procedural default and actual prejudice resulting from the alleged constitutional error, or that failure to consider the claim will result in a “fundamental miscarriage of justice.”
Coleman,
501 U.S. at 750 , 111 S.Ct. 2546 ;
Murray,
477 U.S. at 485 , 106 S.Ct. 2639 ;
Engle v. Isaac,
456 U.S. 107, 129 , 102 S.Ct. 1558 , 71 L.Ed.2d 783 (1982);
Wainwright,
433 U.S. at 87 , 97 S.Ct. 2497 .
(2)
Petitioner contends he can show “cause” and prejudice for this procedural default. First, Petitioner argues that the fact that trial counsel was also on the appellate counsel team precluded him from raising ineffective assistance of trial counsel on direct appeal, thereby establishing “cause” for the procedural default. Second, Petitioner also argues that ineffective assistance of appellate counsel is “cause” for failure to raise Claim Three on direct appeal.
(2)(a)
Petitioner’s argument that counsel was precluded from raising this claim on direct appeal because the claim involves ineffectiveness of counsel is unavailing. Petitioner made this argument only in the context where the claim was procedurally defaulted as a result of the
Perry
Rule,
15
which is not the case here. Thus, this argument for “cause” is irrelevant.
(2)(b)
Petitioner also argues that ineffective assistance of appellate counsel is “cause” for his failure to raise Claim Three properly in the state courts. Generally, ineffective assistance of counsel, either appellate or trial counsel, as defined by
Strickland,
466 U.S. at 698 , 104 S.Ct. 2052
16
, may satisfy the standard for “cause” under
Coleman,
501 U.S. at 750 , 111 S.Ct. 2546 .
Murray,
477 U.S. at 488 , 106 S.Ct. 2639 . In
Murray ,
the Court explained that the doctrine of exhaustion “requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.”
Id.
at 488-89 , 106 S.Ct. 2639 ;
see Jones v. Toombs,
125 F.3d 945, 947 (6th Cir.1997) (rejecting the petitioner’s argument that ineffective assistance provides “cause” for his procedural default because he never raised it as an independent issue in state court).
Contrary to Petitioner’s assertion, merely raising ineffective assistance of counsel in the state court, although satisfying the exhaustion doctrine, does not satisfy the
Murray
restriction unless the ineffective assistance of counsel claim is also not procedurally defaulted. In other words, “a petitioner may not bring an ineffective assistance of counsel claim as cause for a default when that ineffective assistance of counsel claim itself is procedurally barred.”
Reyes v. Keane,
118 F.3d 136, 140 (2d Cir.1997);
see also Harris v. Norris,
864 F.Supp. 96, 99 (E.D.Ark.1994) (holding that a petitioner must not procedurally default ineffective assistance of counsel claim in order to use it as a “cause” argument and citing cases with similar holdings in the Fourth, Seventh, and Eighth Circuits). Requiring a petitioner to not procedurally default an ineffective assistance of counsel claim in order to use it as “cause” for another procedural default advances the traditional concerns
*552
of comity and federalism.
Harris,
864 F.Supp. at 99 ;
see also Coleman,
501 U.S. at 731-32 , 111 S.Ct. 2546 (stating the concerns for the principles of comity associated with the exhaustion requirement apply to federal claims that have been procedurally defaulted in state court as well). The court in
Hams
made this incisive explanation for the rule:
In the overwhelming number of cases, exhaustion is not an issue because the time for pursuing additional avenues in state court has long since passed. Were the Court to .... restrict the
Murray
rule to those cases involving the exhaustion issue, the federal courts would be placed in a position of having to consider any claim raised for the first time in federal court and about which a litigant offered as cause the ineffectiveness of his attorney. It is a better rule of law because it does not construct an artificial distinction between a default in the exhaustion context and that in the procedural bar context.
Id.
Thus, our reading of
Murray ,
as informed by
Harris,
ensures that the state court has the first opportunity to hear the ineffective assistance of counsel claim before it can be used to excuse a procedural default on another claim.
Petitioner did include in his Application for Delayed Reconsideration of his Direct Appeal his claim — that he suffered a due process violation due to the improper lineup and identifications — as an example of one of the claims appellate counsel was ineffective for failing to raise. (State Court Appendix, Vol. IX, Tab A.) Therefore, Petitioner did raise the ineffective assistance of appellate counsel claim based on this issue independently for the state court to review first. Whether Petitioner has demonstrated “cause”, however, is dependent upon whether the ineffective assistance of appellate counsel claim (Claim Seventeen), which we hold is not waived, is meritorious. That determination requires a hearing on the merits of Claim Seventeen. In addition, assuming Petitioner can show “cause,” Petitioner also has to demonstrate prejudice.
See Frady,
456 U.S. at 170 , 102 S.Ct. 1584 ;
Rust,
17 F.3d at 161 . Once Petitioner has demonstrated both, then the Court can reach the merits of Claim Three.
(3)
Although we have found that Petitioner’s procedural default of Claim Three may be excused depending on the outcome of our merits review of Claim Seventeen, we address the rest of Petitioner’s arguments here because they apply to other claims for relief in his petition. Petitioner alternatively argues that this Court can reach the merits of this claim despite the procedural default. Petitioner argues that the inclusion of this claim in his Application for Delayed Reconsideration of Direct Appeal, filed with the Hamilton County Court of Appeals, and in his Application for Delayed Reinstatement of his Direct Appeal, filed with the Ohio Supreme Court, and the denial of those applications on the merits, enable the Court to review this claim on the merits.
This argument relates to Claim Seventeen of the Amended Habeas Petition, in which Petitioner contends he received ineffective assistance of appellate counsel. Pursuant to
State v. Murnahan,
63 Ohio St.3d 60 , 584 N.E.2d 1204 (1992), Petitioner raised his claims of ineffective assistance of appellate counsel in the above Applications.
(See
Return of Writ, Ex. V & State Court Appendix, Vol. X, Tab D.) In the Application for Delayed Reconsideration, filed with the Hamilton County Court of Appeals, Petitioner alleged that he had received ineffective assistance of appellate counsel and listed and explained twenty-nine (29) errors that had occurred at Petitioner’s trial that were not raised by previous appellate counsel in the Hamilton County Court of Appeals but that are nonetheless substantial and meritorious. (Return of Writ, Ex. V.) The Hamilton County Court of Appeals denied the Application as untimely. (Return of Writ, Ex. X.) For the reasons stated in the section
*553
discussing Claim Seventeen,
infra,
the procedural default enforced by the Hamilton County Court of Appeals with respect to Petitioner’s Application for Delayed Reconsideration of Direct Appeal is not an adequate and independent state ground to bar federal habeas review, and thus the Court can reach the merits of the ineffective assistance of appellate counsel claim.
(3)(a)
Petitioner thus contends that because the Court can reach the merits of the ineffective assistance of appellate counsel in Claim Seventeen, the Court is also permitted to reach the merits of the claims in the Amended Habeas Petition that correspond to any of the twenty-nine appellate errors contained within the Application for Delayed Reconsideration. As one of the twenty-nine alleged appellate errors is also Claim Three, Petitioner argues, the Court can reach the merits of Claim Three. This Court rejects Petitioner’s contention. The Application for Delayed Reconsideration raised only one claim— ineffective assistance of appellate counsel' — before the Hamilton County Court of Appeals. Petitioner’s brief lists the twenty-nine appellate errors merely as examples of the claims that Petitioner’s former appellate counsel either failed to raise or inadequately addressed on appeal before the Hamilton County Court of Appeals, thereby rendering constitutionally ineffective assistance of counsel. Thus, the twenty-nine appellate errors would have been reviewed in the context of the ineffective assistance of appellate counsel claim, which is a different legal standard than if the alleged appellate errors were reviewed as independent, substantive claims.
See supra
Claim Three at Section 1 (concluding that the claim was not fairly presented to the state courts by raising it as part of an ineffective assistance of trial counsel claim). Accordingly, we reject Petitioner’s argument that we can reach the merits of Claim Three on this ground.
(3)(b)
Petitioner also contends that he is entitled to a merits review of the twenty-nine “claims” raised in the Application for Delayed Reinstatement of his Direct Appeal, which was filed in the Ohio Supreme Court, because the Ohio Supreme Court issued a merits ruling when it denied the Application. Again, if we were to find that the Ohio Supreme Court addressed the merits of the claim raised in the Motion for Delayed Reinstatement, the Ohio Supreme Court would have only reviewed the merits of the ineffective assistance of appellate counsel claim, not the merits of the errors raised as examples of ineffective assistance of appellate counsel.
See supra
Claim Three at Section 3(a).
17
We, however, hold that the Ohio Supreme Court did not issue a merits ruling on the claim raised in the Motion for Delayed Reinstatement.
Under certain circumstances, a merits ruling by the last reviewing state court will “forgive” a procedural default finding made by the lower court, so as to permit federal court review of the claim.
See generally Ylst,
501 U.S. at 801, 111 S.Ct. 2590 ;
Harris,
489 U.S. at 262 , 109 S.Ct. 1038 ;
County Court of Ulster County, New York v. Allen,
442 U.S. 140 , 99
*554
S.Ct. 2213, 60 L.Ed.2d 777 (1979). We need not reach this argument because, for the reasons set forth below, we find that the Ohio Supreme Court did not issue a merits ruling.
From what we understand,
18
there were two “presentations” to the Ohio Supreme Court, one appealing the decision of the Hamilton County Court of Appeals denying the Application for Delayed Reconsideration, and the other concerning Petitioner’s Motion for Delayed Reinstatement of the Direct Appeal. The Court is unclear as to which presentation Petitioner refers when he argues that the Ohio Supreme Court has forgiven the procedural default enforced by the Hamilton County Court of Appeals. Therefore, we will address both decisions by the Ohio Supreme Court.
(3)(b)(i)
With respect to the first presentation, Petitioner filed a Notice of Appeal to the Ohio Supreme Court on January 29, 1993 from the Hamilton County Court of Appeals’ decision denying his Application for Delayed Reconsideration. (State Court Appendix, vol. X, Tab A.) Petitioner filed a Memorandum in Support of Jurisdiction
(Id.
at Tab C) and a Motion for Leave to File a Delayed Appeal as of Right
(Id.
at Tab D). The State of Ohio filed a Memorandum in Opposition to Jurisdiction.
(Id.
at Tab E.) The Ohio Supreme Court entered a decision on this appeal on April 14, 1993, stating that,
[u]pon consideration of the motion for leave to appeal from the Court of Appeals for Hamilton County, and the claimed appeal as of right from said court, it is ordered by the Court that said motion is overruled and the appeal is dismissed
sua sponte
for the reason that no substantial constitutional question exists therein.
(Id.
at Tab F.)
The above presentation is what
Muma-han
described. In
Murnahan ,
the Ohio Supreme Court instructed the petitioner to file a direct appeal to the Supreme Court pursuant to Section 2(B)(2)(a)(iii), Article IV of the Ohio Constitution, which would be treated according to Sections 3(B) and 8, Rule II of the Practice of the Supreme Court of Ohio.
Murnahan,
63 Ohio St.3d at 65-66 , 584 N.E.2d 1204 . Section 2(B)(2)(a)(iii), Article IV of the Ohio Constitution, confers upon the Ohio Supreme Court appellate jurisdiction from the court of appeals as a matter of right in cases involving questions arising under the Constitution of the United States or of Ohio.
Id.
at 65 n. 4, 584 N.E.2d 1204 . Section 3(B), Rule II of the Rules of Practice of the Supreme Court of Ohio, describes how the court will treat an appeal as of right: “the Supreme Court will,
sua sponte,
consider the case as on a motion to dismiss the appeal as one not involving any substantial constitutional question and will consider such motion to dismiss at the same time that it considers any motion to certify or motion for leave to appeal in the case.”
Id.
at 65 n. 5, 584 N.E.2d 1204 . Section 8, Rule II of the Rules of Practice of the Ohio Supreme Court, concerns cases where the time has expired for the filing of the notice of appeal in a . felony case and requires that the appellant demonstrate adequate reasons for the delay.
Id.
at 66 n. 8, 584 N.E.2d 1204 .
The Ohio Supreme Court’s decision on April 14, 1993 is not a merits ruling but rather a jurisdictional review. Ohio Supreme Court Rule II was amended in 1994, but it is analogous to the new Ohio Supreme Court Rule III. Ohio S.Ct.R. Ill (ed. note.1998). Rule III concerns the de
*555
termination of jurisdiction on claimed appeals of right, referred to in
Mumahan.
Rule III describes the procedure by which the court determines whether to accept a claimed appeal of right. Ohio S.Ct.R. Ill (Staff and Committee Notes). The Staff and Committee Notes explain that,
[a]s with the former rules, this rule provides for the filing of jurisdictional mem-oranda to address whether the Court should allow or dismiss the appeal.
í{í ❖ ❖ ifc Jfc
[T]he primary focus of the memoranda should be why the Supreme Court should accept the case for a merit review. [A page limitation] will ... discourage attorneys from filing what amount to full merit briefs, considered inappropriate at this stage of the proceeding.
Id.
Thus, these rules clearly indicate that the initial filings with the Ohio Supreme Court are jurisdictional in nature and not briefs on the merits. Petitioner followed these rules by filing the jurisdictional memorandum, and the Ohio Supreme Court denied the appeal according to these rules. Accordingly, the Ohio Supreme Court did not address the merits of the claims raised in the Application for Delayed Reconsideration that was filed in and denied by the Hamilton County Court of Appeals.
(3)(b)(ii)
Regarding the second presentation, on the same date he filed the Notice of Appeal, January 29, 1993, Petitioner also filed a Motion for Delayed Reinstatement of Direct Appeal as of Right in the Ohio Supreme Court. (State Court Appendix, Vol. XI, Tab A.) The State filed a brief in Opposition to the Motion for Delayed Reinstatement of Direct Appeal, styled as a “Motion to Dismiss Application for Delayed Reinstatement of Appeal.”
(Id.
at Tab B.) On October 27, 1993, the Ohio Supreme Court issued the following Entry:
This cause came on for further consideration upon appellant’s request for delayed reinstatement. Upon consideration thereof,
IT IS ORDERED by the Court the motion for delayed reinstatement be, and the same is hereby, denied.
(State Court Appendix, Vol. IX, Tab G.) On November 8, 1993, Petitioner filed a Motion for Rehearing, (State Court Appendix, Vol. XI, Tab E), to which the State filed a motion in opposition,
(Id.
at Tab G). On December 15, 1993, the Ohio Supreme Court issued the following Entry:
IT IS ORDERED by the Court that rehearing of this Court’s denial of appellant’s motion to reinstate appeal be, and the same is hereby, denied.
(State Court Appendix, Vol. IX, Tab F.)
The October 27, 1993 ruling is not a merits ruling either. The filings in the Ohio Supreme Court by Petitioner in this presentation were not contemplated by
Mumahan.
Petitioner’s counsel in the Motion for Delayed Reinstatement of Direct Appeal admitted as such. Essentially, Petitioner argued that the “first presentation” motion concerned ineffective assistance of appellate counsel before the Hamilton County Court of Appeals, but that the “second presentation” motion concerned the ineffective assistance of appellate counsel before the Ohio Supreme Court. In his Motion for Delayed Reinstatement of Direct Appeal, Petitioner explained that:
Mumahan
did not concern the method for review of appellate ineffectiveness claims in
capital
cases when the ineffectiveness occurred during a direct appeal as of right in th[e Ohio Supreme] Court.
Mumahan
was a non-capital felony case. In such cases, the defendant is afforded only one direct appeal as of right in the court of appeals. Any subsequent direct review by this Court is wholly discretionary, as the Court recognized in
Mumahan.
Thus, there was no occasion in
Mumahan
to deal with the situation in a capital case, where the defendant has a second direct appeal to
*556
this Court which is not discretionary but rather is an appeal of right. R.C. 2929.05(A). The defendant in a capital case is therefore also entitled to the effective assistance of counsel on direct appeal in this Court under the Due Process Clause of the Fourteenth Amendment.
Evitts v. Lucey
(1985), 469 U.S. 387, 401 , 105 S.Ct. 830 , 83 L.Ed.2d 821 (1985).
(State Court Appendix, Vol. XI, Tab A.) (emphasis in original.) Thus, Petitioner urged the Ohio Supreme Court to extend
Mumahan
to the context of a capital case and create a procedure for raising claims of ineffective assistance of appellate counsel that are based on counsel’s performance on appeal before the Ohio Supreme Court. In his brief, Petitioner also reiterated the twenty-nine appellate errors that occurred before the Ohio Supreme Court. The State responded by arguing that there was no authority for the Ohio Supreme Court to hear the action according to
Mumahan.
(State Court Appendix, Vol. XI, Tab B.) Then, the Ohio Supreme Court issued its two-sentence Entry on October 27, 1993.
19
Thus, given the arguments made to the Ohio Supreme Court by Petitioner in his Motion for Delayed Reinstatement and his Motion for Rehearing, namely that the court should create a new procedure because one did not exist to address Petitioner’s situation, the Ohio Supreme Court’s October 27, 1993 Entry can only be read as denying the Motion on procedural grounds as opposed to a merits review. In fact, Petitioner’s counsel understood the October 27, 1993 Entry in much the same way, stating in his Motion for Rehearing:
[t]his Court should grant rehearing to establish a definitive procedure for fully addressing claims of ineffective assistance of appellate counsel arising before this Court and then permit Mr. Jamison to invoke the newly established procedure so that he may be afforded a full review of his appellate ineffectiveness claim which is consistent with the Eighth and Fourteenth Amendments to the United States Constitution and O.R.C. 2929.05.
(Id.
at Tab E.) Accordingly, we hold that the Ohio Supreme Court did not review the merits of the claim contained in his Motion for Delayed Reinstatement.
(4)
In conclusion, Petitioner is permitted to use the argument that the ineffective assistance of his appellate counsel is the “cause” for his procedural default of Claim Three because he raised this claim in his Application for Delayed Reconsideration of his Direct Appeal as an example of ineffective assistance of appellate counsel.
See Murray,
477 U.S. at 488-89 , 106 S.Ct. 2639 ;
Toombs,
125 F.3d at 947 . Whether ineffective assistance of appellate counsel actually constitutes “cause” is dependent upon whether the Court finds the ineffective assistance of appellate counsel claim meritorious. If so, then Petitioner must demonstrate prejudice caused by the alleged constitutional violation.
See Frady,
456 U.S. at 170 , 102 S.Ct. 1584 ;
Rust,
17 F.3d at 161 .
CLAIM FOUR
The actions of trial counsel deprived Petitioner Jamison of his right to the effective assistance of his counsel during the innocence-guilt phase of his case in violation of his Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
This claim was not raised on direct appeal, but it was raised in the state courts in Petitioner’s postconviction petition. In
*557
his postconviction petition, Petitioner maintained that he was denied the effective assistance of counsel at the trial court level during the innocence-guilt phase and the penalty phase.
20
For each of those claims asserting ineffective assistance of counsel during the innocence-guilt phase, the Court of Common Pleas found that “[t]he claims in this cause of action either were or could have been made on direct appeal” and concluded that “[t]his cause of action is barred by the doctrine of
res judicata
under authority of
State v. Sowell,
[No.] C-900413 (June 26, 1991).”
(See, e.g.,
Return of Writ, Ex. N. at 3.) The Court of Appeals affirmed the trial court’s dismissal of these ineffective assistance of trial counsel claims.
State v. Jamison,
No. C-910736, 1992 WL 333011 , at *5 (Ohio App. Nov. 10, 1992);
see also
Return of Writ, Ex. Q.
Respondent argues that Petitioner’s Fourth Claim in his Amended Petition is procedurally defaulted because the claim was improperly raised on postconviction instead of on direct appeal.
Thus, Respondent contends that the state court’s determination that Petitioner failed to comply with
State v. Perry,
10 Ohio St.2d 175 , 226 N.E.2d 104 (1967), constitutes an adequate and independent state ground on which to bar federal habeas review.
In
Perry,
10 Ohio St.2d at 176 , 226 N.E.2d 104 (syllabus ¶ 8), the Ohio Supreme Court announced that it will apply the doctrine of
res judicata
to claims raised in a postconviction petition.
21
Specifically, the court stated that:
[constitutional issues cannot be considered in postconviction proceedings under Section 2953.21
et seq.,
Revised Code, where they have already been or 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.
Under the doctrine of
res judicata,
a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on appeal from that judgment.
Id.
(syllabi ¶¶ 7, 9) Thus, “the
Perry
Rule” is this: all claims which were raised at trial or that could have been raised at trial must be presented on direct appeal, and the Ohio court’s final decision on direct appeal is
res judicata,
barring further consideration by the Ohio courts in a postcon-viction proceeding.
Petitioner makes a number of arguments that this claim is not waived. First, he argues that this claim is not procedurally defaulted because appellate counsel, one of whom was also Petitioner’s trial counsel, were precluded from raising the ineffective assistance of trial counsel issue on direct appeal. Second, he contends that the state trial court did not determine that any of the ineffective assistance of trial counsel claims were barred by the
Perry
Rule because the state trial court adopted the findings of fact and conclusions of law of the Hamilton County Prosecutor verbatim. Third, Petitioner argues that the
Perry
Rule is an inadequate state ground to bar federal habeas review. Fourth, he asserts that the Ohio postconviction system is inadequate. Fifth, he asserts that, even if the claim is procedurally defaulted, he can demonstrate “cause” and prejudice. Sixth, Petitioner contends that he is entitled to a merits ruling on this claim because it was contained in his Application for Delayed
*558
Reconsideration filed with the Hamilton County Court of Appeals and in his Motion for Delayed Reinstatement of his Direct Appeal filed with the Ohio Supreme Court. We address each of these arguments separately.
(1)
In his first contention, Petitioner argues he could not raise the ineffective assistance of trial counsel claim on direct appeal to avoid the procedural default because it would have required one of his appellate counsel to raise on direct appeal his own ineffectiveness at trial.
This issue involves the Ohio Supreme Court’s decision in
State v. Cole,
2 Ohio St.3d 112 , 443 N.E.2d 169 (1982). In the syllabus of
Cole ,
the Ohio Supreme Court stated that,
[w]here defendant, represented by new counsel upon direct appeal, fails to raise therein the issue of competent trial counsel and said issue could fairly have been determined without evidence
de-hors
the record,
res judicata
is a proper basis for dismissing defendant’s petition for postconviction relief.
Cole,
2 Ohio St.3d at 112 , 443 N.E.2d 169 . Furthermore, the court held that where on direct appeal the defendant was represented by “new counsel who was in no way enjoined from asserting the ineffectiveness of [his] trial counsel and as such question of effective counsel could fairly be determined without examining evidence outside the record,” the doctrine of
res judicata
announced in the
Perry
Rule would apply.
Id.
at 114, 443 N.E.2d 169 .
Petitioner was represented by two attorneys at trial, Mr. William Flax and Mr. Calvin Prem. Mr. Flax also served with Mr. Albert Rodenberg as counsel for Petitioner on direct appeal to the Ohio Hamilton County Court of Appeals. Mr. Flax and Mr. Peter Pandilidis represented Petitioner on appeal to the Ohio Supreme Court. Thus, Petitioner argues that, under the authority of
Cole
and contrary to the postconviction court’s interpretation of
Cole ,
Mr. Flax’s conflict was imputed to his co-counsel on direct appeal. He argues that neither Mr. Rodenberg nor Mr. Pan-dilidis could have reasonably been expected to raise an assignment of error that Mr. Flax himself could not plead or raise because of the
Cole
conflict. Thus, Petitioner concludes, these claims are not barred by procedural default under the
Cole
standard.
The Hamilton County Court of Appeals found that Petitioner violated the procedural rule of
Cole
and
Perry
with respect to the ineffective assistance of trial counsel claims and relied on that procedural default in dismissing those claims in the post-conviction petition.
Jamison,
No. C-910736, 1992 WL 333011 , at *5 (Ohio App. Nov. 10, 1992). The Court of Appeals noted that:
[i]n
Sowell, supra
at 679, 598 N.E.2d at 141, we stated that [a] claim of ineffective assistance of counsel presented in a postconviction petition may be dismissed under the doctrine of
res judicata
when the petitioner, represented by new counsel on direct appeal, has failed to raise on appeal the issue of trial counsel’s competence and the issue could fairly have been determined without evidence dehors the record.
See, also, State v. Cole
(1982), 2 Ohio St.3d 112 , 443 N.E.2d 169 . Jamison’s counsel on direct appeal consisted of one of the two attorneys who represented him at trial and a new attorney. Because the phrase ‘new counsel’ includes new counsel as well as new independent counsel, the doctrine of
res judicata
may be invoked to bar assertion of Jamison’s claims of ineffective assistance of counsel which do not rely on evidence dehors the record.
See Zuem, supra.
Id.
The issue thus is whether this determinátion of procedural default is based on an “adequate and independent state procedural rule” so as to bar federal habeas review. Indeed, federal habeas review is barred where the state prisoner has
*559
defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, unless certain exceptions apply.
Coleman,
501 U.S. at 750 , 111 S.Ct. 2546 . A state procedural rule that was not firmly established
at the time it should have been complied with
by the petitioner, and therefore is applied retroactively, is not an adequate state ground that bars federal habeas review.
Ford v. Georgia,
498 U.S. 411, 423-24 , 111 S.Ct. 850 , 112 L.Ed.2d 935 (1991);
Warner v. United States,
975 F.2d 1207, 1213-14 (6th Cir.1992) (holding that where
Cole
was decided in 1982 and the petitioner’s time for direct appeal was in 1980, there was no clearly established precedent requiring ineffective assistance of trial counsel claims to be raised on direct appeal at the time the petitioner would have filed a direct appeal and therefore the procedural bar based on
Cole
was inadequate);
accord Reynolds v. Berry,
146 F.3d 345, 349 (6th Cir.1998);
Rogers v. Howes,
144 F.3d 990, 994 (6th Cir.1998).
The Hamilton County Court of Appeals provided no analysis to support its conclusion that Mr. Rodenberg and Mr. Pandili-dis could have raised the claims of ineffective assistance of Mr. Flax on direct appeal. Rather, the court only cited to
Cole,
2 Ohio St.3d at 112 , 443 N.E.2d 169 ,
Sowell,
73 Ohio App.3d at 679 , 598 N.E.2d 136 , and
State v. Zuern,
Nos. C-900481, C-910229, 1991 WL 256497 (Ohio Ct.App. Dec. 4, 1991). Neither
Cole
nor
Soivell,
however, addressed the situation here where there are co-counsel on direct appeal, one of whom was one of Petitioner’s trial attorneys. Only
Zuern
applied
Cole
to that situation, stating,
[u]nless we presume, as Zuern would have us, that new co-counsel entering upon a criminal case at the appellate level would deliberatively not exercise his professional judgment or duty to assert the ineffectiveness of his co-counsel at trial if the record demonstrated a basis for such a claim, a presumption we adamantly reject, we perceive no reason why the reference in
Cole
to ‘new counsel’ would not embrace new co-counsel as well as new independent counsel. Thus, we conclude that
Cole
is applicable to the case
sub judice,
and that the doctrine of
res judicata
may be invoked to bar assertion of his claims of ineffective assistance of counsel which do not rely on evidence dehors the record.
State v. Zuern,
1991 WL 256497 , at *12.
The Court finds the procedural rule announced in
Z%tem
requiring counsel to raise the ineffective assistance of trial counsel claims of his co-appellate counsel on direct appeal is not an adequate and independent state ground. It was not firmly established at the time Petitioner would have been required to comply with the rule. Moreover,
Zuern
had not been decided at the time Petitioner would have been expected to comply with its procedural rule on direct appeal.
Zuem
was decided on December 4, 1991; however, Petitioner’s direct appeal was completed over a year earlier.
22
Although
Cole
had been decided prior to Petitioner’s direct appeal, it did not expressly state the procedural rule announced in
Zuem. Cole
left room for interpretation by its limiting phrase “new counsel who was
in no way
enjoined from asserting the ineffectiveness of appellant’s trial counsel,” 2 Ohio St.3d at 114 , 443 N.E.2d 169 (emphasis added), such that it was uncertain until
Zuem
how Cole’s holding would be applied to a situation where one of the trial attorneys was also co-appellate counsel. On one hand, prior to
Zuem,
it may have been a reasonable interpretation of
Cole
that appellate counsel would be loathe to criticize a co-appellate counsel for the co-appellate coun
*560
sel’s performance at trial. On the other hand, prior to
Zuem,
one might argue that
Cole’s
application reasonably would depend upon whether trial/appellate counsel alone had been assigned the duty of choosing the claimed trial errors that should be raised on appeal. Therefore, at the time when Petitioner should have complied with
Zuem
and its interpretation of
Cole,
which would have been on direct appeal where the ineffective assistance of trial counsel claims based on evidence in the record should have been raised,
Zuem
had not been decided. Accordingly, we find there was no clearly established precedent requiring Petitioner to raise ineffective assistance of trial counsel on direct appeal where one of his trial attorneys was also his appellate counsel. Therefore, Petitioner did not violate a state procedural rule which is an adequate and independent state ground upon which to bar federal habeas review, and this Court can reach the merits of Claim Four.
Although we have found that Petitioner’s procedural default is excused for the reasons stated above, we address the rest of Petitioner’s arguments here because they apply to other claims for relief in his petition.
(2)
Secondly, Petitioner argues that because the state trial court adopted
in toto
the findings of fact and conclusions of law submitted by the Prosecutor, the state trial court itself did not determine that any of Petitioner’s claims were barred by the
Perry
Rule. Petitioner contends that the trial court abdicated its duty to issue findings of fact and conclusions of law prior to granting or denying a postconviction petition under O.R.C. § 2953.21(C) and (E).
23
The Prosecutor submitted the proposed findings of fact and conclusions of law upon his own initiative, and the trial court accepted the findings without providing Petitioner the opportunity to respond. According to Petitioner, the findings of fact contain legal and factual errors, including “misspellings and malaprops [sic]”, although Petitioner did not point out any specific error. Arguing that this Court must not accept the findings of fact and conclusions of law, Petitioner relies on
United States v. El Paso Natural Gas Co.,
376 U.S. 651 , 656 n. 4, 84 S.Ct. 1044 , 12 L.Ed.2d 12 (1964), which states that allowing the prevailing party to write the factual findings is “an abandonment of the duty and the trust that has been placed in the judge,” and
Morrison v. Char,
797 F.2d 752 , 755 n. 3 (9th Cir.1986), which states “[w]hen a district court adopts findings of fact that were ‘suggested’ by the ‘successful attorney’ in a summary judgment motion, those findings are not particularly useful on review.”
We agree that it is not the preferred practice for courts to adopt the “successful” party’s findings of fact and conclusions of law verbatim. Nonetheless, we can find no state or federal law requiring a trial judge to prepare his or her own findings of fact and conclusions of law.
See El Paso Natural Gas Co.,
376 U.S. at 656-57 , 84 S.Ct. 1044 (criticizing but stating the trial court’s adoption of the findings of fact and conclusions of law of the successful party will not be rejected if the findings are supported by the record);
Johnson v. United States Dep’t of Health and Human Servs.,
30 F.3d 45, 48 (6th Cir.1994) (Spiegel, J. sitting by designation) (holding that it is not an abuse of discretion for the district court to adopt one of the party’s proposed findings of fact and conclusions of law). In fact, two other courts in this district have rejected this very argument of Petitioner’s in reviewing
*561
a petition for writ of habeas corpus under § 2254 in capital cases.
Sowell v. Collins,
No. 94-237 at 46-47 (S.D.Ohio Feb. 18, 1998) (Sargus, J.) (finding no Ohio case that denounces the practice of a state court adopting the findings submitted by a party and stating that even though the trial court repeated the typographical errors in adopting the prosecutor’s submitted findings, this does not suggest that the trial court did not independently review the findings before adopting them);
Combs v. Anderson,
No. 95-733 at 92-93 (S.D.Ohio Oct. 21, 1997) (Beckwith, J.) (finding no requirement under federal or Ohio law that a judge prepare his or her own findings of fact and conclusions of law or to “carefully review and revise findings and conclusions submitted by counsel”). Here, the trial court did not abandon its judicial function by adopting the findings of fact and conclusions of law submitted by the prosecutor. However, it does seem unfair that the court does not permit the defendant to respond to the States’ findings of fact and conclusions of law before adopting them. Nonetheless, we reject Petitioner’s argument that we should not honor the procedural default findings made by the trial court.
(3)
Thirdly, Petitioner contends that, assuming we find that Petitioner violated the
Perry
Rule, the
Perry
Rule, nonetheless, is not an adequate procedural rule for purposes of procedural default such that this Court should not recognize it as a bar to reviewing this claim on the merits.
A default of a state procedural rule will bar federal habeas corpus review only when the rule is “firmly established and regularly followed.”
James v. Kentucky,
466 U.S. 341, 348-49 , 104 S.Ct. 1830 , 80 L.Ed.2d 346 (1984). The Sixth Circuit has consistently recognized Ohio’s procedural rule that claims that could have been raised at trial or on direct appeal, but were not, are barred from subsequent review on the basis of
res judicata. See, e.g., Norris v. Schotten,
146 F.3d 314, 332 (6th Cir.1998) (recognizing procedural default of a claim in habeas petition where appellant never raised the claim on direct appeal to the Ohio Court of Appeals and the Ohio Supreme Court);
Rust,
17 F.3d at 160-61 (finding adequate and independent state procedural rule where new claims raised in his second motion for leave to file a delayed direct appeal were barred by the Ohio Court of Appeals as
res judicata
because the petitioner had opportunity to raise constitutional claims during delayed direct appeal but failed to do so);
Leroy v. Marshall,
757 F.2d 94, 100 (6th Cir.1985) (holding as adequate and independent state grounds the procedural default of claims raised for the first time in a petition for writ of habeas corpus on the basis of
res judicata
where petitioner failed to raise those claims in his direct appeal to the Ohio Court of Appeals and to the Ohio Supreme Court).
Moreover, courts in this district have upheld the
Perry
Rule as an adequate procedural ground on which to bar merits review in federal habeas cases under § 2254.
See Sowell, supra,
at 41-42 (stating “[petitioner’s contention that Ohio courts have failed to consistently enforce the
Perry
Rule is untenable. Even a cursory review of Ohio law reveals a zealous commitment on the part of Ohio courts to enforce the
Perry
doctrine of
res judica-ta.”); Combs, supra,
at 96-97 (stating “[n]one of the arguments advanced by Petitioner has sufficient weight to cause this Court to reconsider its long adherence to enforcing the
Perry
procedural bar ... ”). Finally, Ohio case law is replete with decisions applying the doctrine of
res judicata. See, e.g., Cole,
2 Ohio St.3d at 112 , 443 N.E.2d 169 ;
State v. Ishmail,
67 Ohio St.2d 16, 18 , 423 N.E.2d 1068 (1981);
Perry,
10 Ohio St.2d at 175-76 , 226 N.E.2d 104 .
Petitioner presents three arguments why this Court should hold that the
Perry
Rule is an inadequate state procedural ground to foreclose federal habeas review.
*562
We address the arguments separately below.
(3)(a)
Petitioner first argues that the
Perry
Rule is inadequate because Ohio courts inconsistently apply procedural rules, like the
Perry
Rule, in capital and postconviction cases. We first address Petitioner’s arguments regarding capital cases on direct review.
(3)(a)(i)
Petitioner argues that the Ohio Supreme Court treats capital cases on direct appeal differently. In
State v. Zuern,
32 Ohio St.3d 56, 63 , 512 N.E.2d 585 (1987), the State asserted that a procedural default barred review of the defendant’s constitutional challenges to Ohio’s capital sentencing scheme, and the Hamilton County Court of Appeals agreed. The Ohio Supreme Court, however, forgave the procedural default, stating,
because of the nature of the case and the exacting review necessary where the death penalty is involved, we reserve the right to consider the constitutional challenges in particular cases.
Id.
(affirming defendant’s conviction and sentence). Petitioner also cites to cases in which the Ohio Supreme Court purportedly addressed an issue neither raised nor briefed by the parties.
See State v. Huertas,
51 Ohio St.3d 22 , 553 N.E.2d 1058 (1990);
State v. Buell,
22 Ohio St.3d 124 , 489 N.E.2d 795 (1986). Finally, Petitioner asserts that sometimes the Ohio Supreme Court considers an issue on the merits
sua sponte
even though it could have been found procedurally barred.
See State v. Lawrence,
44 Ohio St.3d 24 , 541 N.E.2d 451 (1989);
State v. Coleman,
45 Ohio St.3d 298 , 544 N.E.2d 622 (1989);
State v. Williams,
38 Ohio St.3d 346 , 528 N.E.2d 910 (1988);
State v. Hamblin,
37 Ohio St.3d 153 , 524 N.E.2d 476 (1988);
State v. Ho

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2478155. Public record. Not legal advice.