Stojetz v. Ishee

OPINION AND ORDER

FROST, District Judge.

Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this Court a habeas corpus action under 28 U.S.C. § 2254 . This matter is before the Court upon respondent’s motion to dismiss procedurally defaulted claims, (Doc.# 23), petitioner’s memorandum in opposition, (Doc.# 34), and respondent’s reply, (Doc. #35).

I. Factual History

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

State v. Stojetz,

84 Ohio St.3d 452 , 705 N.E.2d 329 (1999):

On April 25, 1996, appellant, John C. Stojetz, Jr., along with five other adult inmates, ran across the prison yard of Madison Correctional Institution and toward the Adams Alpha Unit (“Adams A”), which houses many of the state’s juvenile offenders who had been tried as adults and convicted of criminal offenses. Appellant and the other five inmates were each armed with knives commonly known as “shanks.” Appellant and the others entered the Adams A unit, circled the control desk, and held corrections officer Michael C. Browning at knifepoint. Appellant then placed a shank to Browning’s throat and ordered him to give appellant the keys that opened the cell doors of the Adams A unit. Browning threw the keys down and was allowed to flee the unit.

Corrections officers immediately responded to Browning’s “man down” alarm and converged on Adams A. Officers were able to observe appellant and the other five inmates carrying shanks. The corrections officers, armed only with pepper mace, attempted to enter Adams A. However, appellant and the other inmates, wielding shanks, prevented the officers from entering.

Once inside Adams A, appellant and his accomplices proceeded to cell number 144, the cell of Damico Watkins, a seventeen-year-old juvenile inmate. Using the keys taken from Browning, appellant unlocked Watkins’s cell and appellant and the other adult inmates entered the cell and began attacking Watkins. After eluding the initial attack and escaping from his cell, Watkins was pursued throughout the Adams A unit and repeatedly stabbed by appellant and the other shank-wielding inmates. Watkins was able to escape his attackers several times only to be again cornered and subjected to repeated stabbings. Eventually, Watkins was cornered by appellant on the second floor of the Adams A unit. As Watkins pleaded for his life, appellant and inmate Bishop repeatedly stabbed Watkins and left him for dead.

During the attack on Watkins, correction officers had surrounded the exterior

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of the Adams A unit. Deputy Warden Mark Saunders arrived on the scene and began conversing with the inmates who had taken over Adams A. During this conversation, inmate Lovejoy stated that “they [the inmates who had taken over Adams A] would not cell with black inmates.” Also during the conversation, appellant stated, “we took care of things because you [prison officials] wouldn’t.” Subsequently, the inmates were ordered to surrender. The prison yard was cleared and appellant and the five perpetrators passed their shanks through a window in the foyer of Adams A. Once prison officials retrieved the weapons, appellant and the other adult inmates exited the Adams A unit and surrendered to prison authorities.

After prison authorities regained control of Adams A unit, the coroner arrived at the scene and declared Watkins dead.

In October 1996, appellant was indicted by the Madison County Grand Jury for the aggravated murder of Watkins. The single-count indictment charged appellant with purposely causing the death of Watkins with prior calculation and design in violation of R.C. 2903.01( [A]). The count also charged appellant with a (R.C. 2929.04[A][4]) death penalty specification of committing aggravated murder while a prisoner in a detention facility-

Appellant entered a plea of “not guilty” to the charges in the indictment, and the case proceeded to a trial by jury. Evidence submitted at trial indicated that appellant was known to be the head of the “Aryan Brotherhood” gang at the Madison Correctional Institution. Other evidence at trial indicated that appellant and other members of the Aryan Brotherhood did not want to be housed in the same cells as black inmates. Further testimony indicated that appellant and members of the Aryan Brotherhood wanted to be transferred from Madison Correctional to other penal institutions. In fact, following the murder, prison authorities conducted a search of appellant’s cell as well as the cells of his accomplices. During the search it was found that appellant and four of the other five inmates who had participated in the attack on Watkins had already packed their personal belongings.

At the conclusion of the trial, and after deliberation, the jury found appellant guilty of the charge and specification in the indictment. Following a mitigation hearing, the jury recommended that appellant be sentenced to death for the aggravated murder of Watkins. The trial court accepted the jury’s recommendation and imposed the sentence of death.

Stojetz,

84 Ohio St.3d at 452-54 , 705 N.E.2d at 333-35 .

II. State Court History

A. Direct Appeal

On October 10, 1996, petitioner was indicted by the Madison County Grand Jury on one count of aggravated murder in violation of Ohio Rev.Code § 2903.01(B), and with a death penalty specification under Ohio Rev.Code § 2929.04(A)(4),

ie.,

that petitioner committed the aggravated murder offense while petitioner was a prisoner in a detention facility. Attorneys James Doughty and Jon Doughty were appointed on October 17, 1996. The trial phase commenced on April 1, 1997 with voir dire, and concluded on April 8, 1997 when the jury found petitioner guilty as charged. The mitigation phase began on April 16, 1997, and, on April 17, 1997, the jury recommended that petitioner be sentenced to death. On April 18, 1997, the trial court issued a decision and entry sentencing petitioner to death.

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Represented by attorneys Joseph Wilhelm and Kelly Culshaw of the Ohio Public Defender’s Office, petitioner appealed to the Supreme Court of Ohio. In a merit brief filed on December 23, 1997, petitioner raised the following propositions of law:

Proposition of Law No. I:

During jury selection in a capital case, the trial court must ask each prospective sentencing juror whether the juror’s views on the death penalty would prevent or substantially impair the juror’s ability to consider a life sentence if the defendant is found guilty of aggravated murder and the aggravating circumstance. Life qualification of each prospective juror is required whenever the trial court death qualifies the jurors by asking them if their views on the death penalty would prevent of substantially impair their ability to consider the death penalty in the case before them.

Proposition of Law No. II:

John Sto-jetz’s death sentence is inappropriate. Damico Watkins’ death resulted from his own threats against Stojetz and Sto-jetz’s post-traumatic stress disorder.

Proposition of Law No. Ill:

When trial counsel fail to conduct an adequate voir dire, fail to object to inadmissible evidence, fail to request a separation of witnesses, fail to conduct an adequate investigation of the case, fail to object to victim impact evidence, present a confusing explanation of the mitigation weighing process, fail to adequately present evidence of a capital defendant’s post-traumatic stress disorder, and fail to adequately prepare defendant’s mitigation expert, a capital defendant is deprived of the right to the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, §§ 10 and 16 of the Ohio Constitution.

Proposition of Law No. IV:

A capital defendant is denied his rights to a jury verdict, to a fair trial, to due process, to the effective assistance of counsel, and to a reliable and nonarbitrary death sentence when the jury returns a general verdict of guilty for aggravated murder without a unanimous finding that the defendant was either the principal offender or an aider and abettor. U.S. Const. Amend. VI, VIII, XIV; Ohio Const. Art. I, §§ 5, 9,10,16.

Proposition of Law No. V:

The defendant who is death-eligible as either a principal offender or aider and abettor must have access to the grand jury’s testimony when there are five co-defendants and the defendant shows a particularized need for their testimony. U.S. Const. Amend. XIV; Ohio Const. Art. I, § 16.

Proposition of Law No. VI:

A defendant’s right to a fair and impartial sentencing jury is denied when the trial court overrules a challenge for cause against a prospective juror who is biased in favor of capital punishment.

Proposition of Law No. VII:

When improper identification evidence is presented during a defendant’s capital trial the defendant’s due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution and § 16, Article I, of the Ohio Constitution are violated.

Proposition of Law No. VIII:

Appellant’s right to due process is violated when the trial court admits improper testimony in violation of the Fourteenth Amendment to the United States Constitution and § 16, Article I, of the Ohio Constitution.

Proposition of Law No. IX:

Appellant’s due process and confrontation rights are violated when the trial court admits hearsay testimony in violation of the Sixth and Fourteenth Amendments to the United States Constitution and

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§§10 and 16, Article I, of the Ohio Constitution.

Proposition of Law No. X:

Ohio Rev. Code Ann. § 2929.03 (D)(l)(Anderson 1996) and Ohio Rev.Code Ann. § 2929.04 are unconstitutionally vague in violation of Appellant Stojetz’s right against cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution and §§ 9 and 16, Article I, Ohio Constitution.

Proposition of Law No. XI:

When prosecutors misrepresent witness testimony, argue victim impact evidence unrelated to the offense, deny a defendant individualized sentencing, mislead on the definition of mitigation, and shift the burden of proof to the defendant, a capital defendant is denied his substantive and procedural due process rights to a fair trial as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, as well as Article I, Sections 1, 9, 16, and 20 of the Ohio Constitution. He is also denied his right to reliable sentencing as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9 and 16 of the Ohio Constitution.

Proposition of Law No. XII:

A jury instruction that shifts the burden of proof on the mens rea element of aggravated murder to the accused is unconstitutional. U.S. Const. Amend. XIV; Ohio Const. Art. I, § 16. A jury instruction that makes the accused’s guilt or innocence the ultimate issue of fact is also unconstitutional. U.S. Const. Amend. XIV; Ohio Const. Art. I, § 16.

Proposition of Law No. XIII:

A capital defendant’s right to a reliable and non-arbitrary death sentence under the Eighth and Fourteenth Amendments is violated when the sentencing jury’s responsibility for its verdict is attenuated by the trial court’s instructions.

Proposition of Law No. XIV:

When a videotape is replayed for the jury, its significance is overemphasized and a capital defendant’s due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution and § 16, Article I, of the Ohio Constitution are violated.

Proposition of Law No. XV:

It is constitutional error for the trial court to consider victim impact evidence in capital sentencing in the form of an opinion by a victim’s family member about the defendant’s fate. U.S. Const. Amend. VIII, XIV.

Proposition of Law No. XVI:

When the trial court considers public policy matters, treats an institutional killing as requiring a mandatory death sentence, fails to weigh relevant mitigating evidence, and uses inappropriate standards in weighing proper mitigating evidence, a capital defendant is deprived of the right to individualized sentencing and of his liberty interest in the statutory sentencing scheme, thus violating rights guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and §§ 9 and 16, Article I, of the Ohio Constitution.

Proposition of Law No. XVII:

The accused’s right to due process under the Fourteenth Amendment to the United States Constitution is violated when the state is permitted to convict upon a standard of proof below proof beyond a reasonable doubt.

Proposition of Law No. XVIII:

The defendant in a capital case has a due process liberty interest in Ohio Rev.Code Ann. § 2945.25(C)(Anderson 1996). The defendant’s liberty interest in Ohio Rev. Code Ann. § 2945.25 (C) is infringed when the trial court fails to follow the revised code during voir dire on the issue of capital punishment.

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Proposition of Law No. XIX:

Ohio’s death penalty laws are unconstitutional. The Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution establish the requirements for a valid death penalty scheme. Ohio Rev.Code Ann. Sections 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04, and 2929.05 (Anderson 1996). Ohio’s death penalty statute does not meet the prescribed constitutional requirements and is unconstitutional on its face and as applied to Appellant Stojetz.

(App. Yol. II, at 48). On February 17, 1999, the Supreme Court of Ohio issued a decision rejecting petitioner’s propositions of law, finding petitioner’s death sentence to be appropriate and proportionate, and affirming the judgment of the trial court.

State v. Stojetz,

84 Ohio St.3d 452 , 705 N.E.2d 329 (1999); App. Vol. Ill, at 143. Petitioner filed a motion for reconsideration on March 1, 1999, (App. Vol. Ill, at 171), which motion the Supreme Court of Ohio summarily denied on April 7, 1999, (App. Vol. Ill, at 178).

On November 10, 1999, the United States Supreme Court denied petitioner’s petition for a writ of

certiorari.

(App. Vol. Ill, at 215).

B.

“Mumahan”

Application for Reopening

Represented by attorney John J. Gideon, petitioner on May 18, 1999 filed an application for reopening in the Supreme Court of Ohio, pursuant to Rule XI, Section 5 of the Rules of Practice of the Supreme Court and

State v. Murnahan,

63 Ohio St.3d 60 , 584 N.E.2d 1204 (1992)—Ohio’s procedure for raising claims of ineffective assistance of appellate counsel. Petitioner alleged that his attorneys performed unreasonably and to his prejudice on his direct appeal of right by failing to raise the following propositions of law:

Proposition of Law I:

Trial counsel render ineffective assistance of counsel under the Sixth Amendment to the United States Constitution by failing to object to the admission of the hearsay testimony of a corrections officer that juvenile inmates were yelling from their cells that the defendant was a murderer.

Proposition of Law II:

Trial counsel render ineffective assistance of counsel under the Sixth Amendment to the United States Constitution by failing to object to prosecutorial misconduct: (I) in misrepresenting testimony in trial phase closing argument; (ii) in drawing extraneous comparisons between the defendant and others and arguing public policy during sentencing phase closing argument; (iii) in misleading the jury on the definition of “mitigation” during sentencing phase closing argument; and (iv) in shifting the burden of proof to the defendant during sentencing phase closing argument.

Proposition of No III:

Trial counsel render ineffective assistance of counsel under the Sixth Amendment to the United States Constitution by failing to object to the admission of a crime scene videotape and for failing to object to the replaying of the videotape during trial phase deliberations.

(App. Vol. Ill, at 186). On August 18, 1999, the Supreme Court of Ohio issued a decision summarily denying petitioner’s application for reopening. (App. Vol. Ill, at 214).

C. Postconviction Proceedings

1. Trial Court

Represented by attorney John J. Gideon, petitioner filed a postconviction action in the trial court on March 4, 1998, pursuant to Ohio Rev.Code § 2953.21, while his direct appeal was still being litigated by the Ohio Public Defender’s Office. Peti

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tioner raised the following grounds for relief:

First Ground for Relief:

Actual Innocence.

Second Ground for Relief:

Ineffective Assistance Of Counsel With Respect To Pretrial Publicity.

Third Ground for Relief:

Ineffective Assistance Of Counsel With Respect to Trial Publicity.

Fourth Ground for Relief:

Ineffective Assistance Of Counsel In Failing To Investigate And Present A Defense.

Fifth Ground for Relief:

Ineffective Assistance Of Counsel In Failing To Call Witnesses.

Sixth Ground for Relief:

Withholding Of Evidence.

(App. Vol. TV, at 5).

On March 10, 1998, petitioner filed a first amendment to his postconviction action pursuant to Ohio Rev.Code § 2953.21(F), submitting the original affidavit of Diane Ash as Exhibit K to the original petition. (App. Vol. IV, at 213).

On March 19, 1998, petitioner then filed a second amendment to his postconviction action pursuant to Ohio Rev.Code § 2953.21(F), submitting additional exhibits supporting the first, fourth, and fifth grounds for relief set forth in his original petition. Specifically, petitioner submitted a sworn statement by Phillip Wierzgac as Exhibit EE. (App. Vol. IV, at 220).

On June 9, 1998, petitioner filed a third amendment to his postconviction action pursuant to Ohio Rev.Code § 2953.21(F), submitting additional exhibits supporting the first, fourth, 'and sixth grounds for relief set forth in his original petition. Specifically, petitioner submitted a copy of the 15-page Ohio State Highway Patrol Report of Investigation authored by Trooper R.A. Downey as Exhibit FF. (App. Vol. TV, at 254). Petitioner also submitted his own supplemental affidavit as Exhibit GG (App. Vol. IV, at 282); and another copy of Trooper R.A. Downey’s investigation report as Exhibit HH, (App. Vol. IV, at 286).

On August 19, 1998, petitioner filed a fourth amendment to his postconviction action pursuant to Ohio Rev.Code § 2953.21(F), adding two more grounds for relief and submitting a second supplemental affidavit by petitioner as Exhibit II in support of those new grounds. (App. Vol. TV, at 309). Petitioner added the following grounds for relief:

Seventh Ground for Relief:

Denial of Petitioner’s Right to Testify.

Eighth Ground for Relief:

Ineffective Assistance of Counsel for Failing to Advise Petitioner of His Right to Testify and for Failing to Call Petitioner to Testify.

(App. Vol. TV, at 310).

On February 26, 1999, petitioner filed a motion for leave to amend his postconviction action in an effort to preserve his ability to file a fifth amendment to his postconviction action. (App. Vol. IV, at 328). The trial court granted petitioner’s motion on March 5, 1999. (App. Vol. TV, at 333). Accordingly, on March 19, 1999, petitioner filed a fifth amendment to his postconviction action to add three more ground for relief and to supplement his sixth, ninth, tenth, eleventh grounds for relief with additional argument and exhibits,

i.e.,

a sworn statement by Phillip Wierzgac attached as Exhibit JJ, an article by Matthew Silberman for the annual meetings of the American Sociological Association in August 1993 entitled “The Demise of the ‘Hands-Off Doctrine: The Impact of Recent Court Decisions on Prison Administration,” attached as Exhibit KK; and a third supplemental affidavit by petitioner, attached as Exhibit MM; (App. Vol. IV, at 334). Petitioner added the following grounds for relief:

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Ninth Ground for Relief:

Ineffective Assistance of Counsel for Failing to Present Evidence to Rebut Prosecution Attempt to Portray Incident as Racist.

Tenth Ground for Relief:

Ineffective Assistance of Counsel for Failing to Present Mitigating Evidence that the Victim Induced the Offense and that Petitioner was Provoked.

Eleventh Ground for Relief:

Ineffective Assistance of Counsel

for

Failing to Move for a Separation of Witnesses.

(App. Vol. IV, at 334-349).

An evidentiary hearing scheduled for May 10, 1999 was continued until August 9, 1999. The hearing was again rescheduled for December 6, 1999. On March 13, 2000, the trial court, following the hearing and after reviewing the postconviction pleadings and state court record, issued an entry directing the parties to submit supplement briefs. (App. Vol. V, at 67). Petitioner submitted his post-hearing brief on April 11, 2000. On July 31, 2000, the state filed a motion for summary judgment. (App. Vol. V, at 145).

On September 14, 2000, the trial court issued a decision and entry considering and rejecting petitioner’s claims, and denying his petition for postconviction relief. (App. Vol. V, at 191-303).

2. Court of Appeals

Petitioner filed a notice of appeal in the trial court on October 13, 2000. (App. Vol. V, at 304). On May 2, 2001, petitioner sought a fourteen-day extension of time to file his appellate brief. On May 11, 2001, the appellate court granted petitioner’s request for an extension of time, directing him to file his appellate brief by May 28, 2001. (App. Vol. VII, at 26). On May 29, 2001, petitioner sought a six-day extension of time to file his appellate brief. (App. Vol. VII, at 27). On June 4, 2001, petitioner sought a seven-day extension of time to file his appellate brief. On June 5, 2001, the appellate court ruled on petitioner’s request of May 29, 2001 and directed him to file his appellate brief by June 4, 2001. (App. Vol. VII, at 35). On June 11, 2001, petitioner filed a motion requesting leave to file a sixty-five page brief, above the twenty-page limit. On June 25, 2001, the appellate court granted petitioner leave to file a brief not to exceed forty pages in length. (App. Vol. VII, at 40).

After being granted several extensions of time, as well as leave to file a brief in excess of twenty pages, counsel for petitioner apparently failed to file his appellate brief or to request an extension of time within the time permitted by the appellate court. Accordingly, the appellate court issued an order on September 10, 2001, directing counsel for petitioner to show cause why the appeal should not be dismissed. (App. Vol. VII, at 42). On September 24, 2001, counsel for petitioner responded to the show cause order, explaining that he had never received the appellate court’s entry dated June 25, 2001 granting him leave to file a brief in excess of twenty pages, since that entry, according to counsel, was sent to him at the Ohio Attorney General’s Office, though counsel for petitioner did not work at the Ohio Attorney General’s Office. (App. Vol. VII, at 44). On October 9, 2001, the appellate court issued an entry in response to counsel for petitioner’s “show cause” brief directing him to file his appellate brief before October 15, 2001. (App. Vol. VII, at 51). Counsel for petitioner apparently failed to file his appellate brief.

On January 10, 2002, the appellate court dismissed petitioner’s appeal with prejudice. (App. Vol. VII, at 53).

On January 23, 2002, represented by the Ohio Public Defender’s Office, petitioner filed a motion in the court of appeals to reopen his appeal, to allow the Ohio Public Defender’s Office replace John Gideon, and to allow new counsel to file an appel

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late brief by February 4, 2002. (App. Vol. VII, at 54). Petitioner explained that Ms previous counsel had failed to file the appellate brief due to mental health problems he had been experiencing and that the prosecuting attorney did not object to the Ohio Public Defender’s motion to re-open petitioner’s appeal. On February 4, 2002, the Ohio Public Defender’s Office filed a motion to file a brief instanter, pending the appellate court’s disposition of their motion filed on January 23, 2002. (App. Vol. VII, at 71).

On February 8, 2002, the appellate court issued an entry summarily denying petitioner’s motion to re-open his appeal. (App. Vol. VII, at 290). The appellate court also issued an entry on February 19, 2002, denying petitioner’s February 4, 2002 motion to file a brief instanter. (App. Vol. VII, at 292).

3. Supreme Court of Ohio

Represented by the Ohio Public Defender’s Office, petitioner appealed to the Supreme Court of Ohio on February 21, 2002. (App. Vol. VII, at 294). Petitioner filed a memorandum in support of jurisdiction on February 21, 2002, raising the following propositions of law:

Proposition of Law No. I:

When a capital appellant demonstrates that post-conviction counsel, due to apparent mental illness, failed to file his merit brief, the appellate court must re-open that appellant’s direct appeal. Failure to do so violates the appellant’s rights to effective assistance of counsel, due process of law, equal protection of the law, confrontation of the state’s evidence against him, and freedom from cruel and unusual punishment. U.S. Const. Amends. V, VI, VIII, IX, and XIV; Ohio Const. Art. I, §§ 1, 2, 5, 9,10,16, 20.

Proposition of Law No. II:

Where the evidence adduced at a post-conviction evidentiary hearing, in conjunction with post-conviction exhibits, showed that Stojetz was denied his right to the effective assistance of counsel, the trial court must grant relief on the post-conviction petition. U.S. Const. Amends. VI, XIV; Ohio Const. Art. I, § 1, 10, 16.

Proposition of Law No. Ill: A

defendant who is actually innocent of the death penalty may not be executed. U.S. Const. Amends. VIII, XIV; Ohio Const. Art. I, §§ 1,10,16.

Proposition of Law No. IV:

When a post-conviction petitioner demonstrates the state withheld material, exculpatory evidence, the trial court must reverse the petitioner’s conviction and sentence. U.S. Const. Amends. V, XIV; Ohio Const. Art. I, § 16.

(App. Vol. VIII, at 6). On May 15, 2002, the Supreme Court of Ohio issued a one-line entry summarily declining to accept jurisdiction over the appeal. (App. Vol. VIII, at 238).

D. Motion for a New Trial

On April 12, 2000, during the pendency of his postconviction action in the trial court, petitioner, represented by attorneys John J. Gideon and Cordelia Glenn, filed a motion for a new trial based on newly discovered evidence. (App. Vol. IX, at 5). Petitioner argued that the December 19, 1997 deposition testimony of Phillip Wierz-gac and the August 18, 1998 testimony of Wierzgac at the trial of James Bowling— neither of which were available within the one-hundred-and-twenty-day period following petitioner’s sentencing by the trial court — provided newly discovered evidence that: (1) John Stojetz is actually innocent of calculated murder; (2) Damico Watkins’ assault on Doug Haggerty and his threats against John Stojetz induced and provoked the actions of John Stojetz; (3) the actions of John Stojetz were not motivated by racism but by self-preservation and self-protection; and (4) defense counsel were

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constitutionally ineffective in failing to investigate and present evidence of John Stojetz’s actual innocence, evidence of Damico Watkins’ inducement and provocation of John Stojetz, and the protectionist motivation underlying John Stojetz’s actions. On April 17, 2000, the trial court issued an entry reserving judgment on petitioner’s motion until the completion of the trial court’s decision on petitioner’s postconviction motion. (App. Vol. IX, at 134). On March 22, 2002, following the trial court’s decision denying petitioner’s postconviction motion, the trial court issued a decision denying his motion for a new trial. (App. Vol. IX, at 135). The trial court noted that it had fully evaluated and rejected the claims set forth in his motion for a new trial — including the new testimony by Phillip Wierzgac — in rejecting petitioner’s postconviction motion.

On April 22, 2002, petitioner, represented by the Ohio Public Defender’s Office, filed a notice of appeal to the Ohio Court of Appeals for the Twelfth District. In a merit brief filed on June 14, 2002, petitioner raised the following assignments of error:

Assignment of Error No. I:

The trial court erred in denying Appellant Sto-jetz’s motion for a new trial.

Issues Presented for Review and Argument:

1. When the trial court bases its denial of a motion for a new trial in part on factual findings unsupported by the record below, the trial court abuses its discretion and deprives the appellant of his rights to due process and an adequate state corrective process.

2. When the trial court denies a motion for a new trial despite a wealth of evidence supporting an appellant’s request, the trial court abuses its discretion and deprives appellant of his rights to effective assistance of counsel, due process, and an adequate state corrective process.

Assignment of Error No. II:

The trial court erred in failing to find counsel rendered ineffective assistance.

Issues Presented for Review and Argument:

1. When trial counsel fail to interview witnesses and to present relevant testimony, ineffective assistance is rendered depriving the defendant to effective assistance of counsel.

(App. Vol. X, at 31). On December 2, 2002, the appellate court issued a decision affirming the trial court’s decision denying petitioner’s motion for a new trial. (App. Vol. X, at 110).

Petitioner appealed to the Supreme Court of Ohio and raised the following propositions of law in a memorandum in support of jurisdiction filed on January 15, 2003:

Proposition of Law No. I:

A trial court abuses its discretion when, despite a wealth of evidence supporting the request, it denies a capital appellant’s new trial motion. This error is compounded when the trial court’s decision is based on flawed factual findings. This violates the appellant’s rights to effective assistance of counsel, due process, and an adequate state corrective process. U.S. Const. Amends. VI, VIII, XIV.

Proposition of Law No. II:

Trial counsel render ineffective assistance of counsel when they fail to interview witnesses and present relevant testimony. This deprives the appellant of his rights to effective assistance of counsel and due process. U.S. Const. Amends. VI, XIV.

(App. Vol. XI, at 22). On April 2, 2003, the Supreme Court of Ohio issued a one-line entry summarily declining to accept juris

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diction over the appeal. (App. Vol. XI, at 63).

III. Habeas Corpus Petition

The instant proceedings began on July 1, 2003, when petitioner filed a notice of intention to file a habeas corpus petition, as well as a motion for appointment of counsel. (Doc.Nos. 1 and 3). In accordance with this Court’s Order of September 19, 2003, (Doc.# 7), the habeas corpus petition was filed on April 1, 2004. (Doc. # 14). Petitioner raises the following claims for relief:

First Claim for Relief:

Ineffective assistance of counsel.

A. Failed to Effectively Present a Defense or Defend Mr. Stojetz. (Petition, Doc.# 14-3, ¶¶ 95-218).

B. Voir Dire.

1. Pretrial Publicity (¶¶ 219-234).

2. Death Penalty Qualification (¶¶ 235-248).

C. Improper Opening Statements. (¶¶ 249-256).

D. Failed to Move for a Mistrial when the Jury was Exposed to Suppressed Evidence. (¶¶ 257-259).

E. Failed to Challenge Improper Jury Instructions. (¶¶ 260-267).

F. Failed to Object to Prosecutorial Misconduct. (¶¶ 268-280).

G. Failed to Object to the Admission of Evidence. (¶¶ 281-283).

H. Failed to Present the Testimony of Mr. Stojetz. (¶¶ 284-286).

I. Failed to Properly Prepare, Investigate, and Present a Mitigation Defense.

1. Failure to Investigate and Present a Defense. (¶¶ 288-301).

2. Failed to Hire Experts for Mitigation. (¶¶ 302-311).

J. Failed to Object to Victim Impact Evidence. (¶¶ 312-314).

K. Cumulative Impact. (¶¶ 315-319).

Second Claim for Relief:

Mr. Stojetz is actually innocent of aggravated murder and/or. innocent of the death penalty. (¶¶ 320-330).

Third Claim for Relief:

The voir dire conducted in Mr. Stojetz’s trial was inadequate to ensure a fair jury.

INTRODUCTION. (¶¶ 331-337).

PRETRIAL MATTERS. (¶¶ 338-351).

JURY VOIR DIRE AND DEATH

QUALIFICATION. (¶¶ 352-365).

A. Carla Stover.

B. Edward Banion.

C. Andre Porter.

D. Juror Suzanne Coffin.

E. Kathy Wolfe.

F. Sherry Leonard.

G. Juror Number Three, Michelle Kowalski.

H. Prospective jurors Ronald Smith, Lisa Morgan, Celia Browning, and Aleda Reed.

I. Terry Puckett and Ronald Daniels.

J. Dusty McCollum.

K. Thomas Herman.

L. Sandra Shaner and John Shilling.

M. Juror Number Ten, Harold Huffman.

N. Daniel Persinger, Juror Number Nine, and Daniel Puckett, Juror Number Six.

O. Tamara Cantrell.

P. Annabelle Biggs.

Q. David Little.

R. Richard Hirst, Juror Number Eleven.

S. Questions about belief in the right of self-defense or defense of another.

GENERAL VOIR DIRE BY DEFENSE COUNSEL. (¶¶ 366-373).

Counsel Failed to Ask Following Questions in a “Probing or Skillful Manner”:

A. Jurors’ preconceived notions about reasonable doubt;

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B. Whether any of the prospective jurors had been victims of crime;

C. Prior service on other juries.

D. Jurors’ knowledge of the Aryan Brotherhood.

E. Jurors’ expectations of the Petitioner testifying in his own behalf during trial.

F. Whether jurors would consider petitioner’s testimony under the same instructions on credibility as other witnesses;

G. Whether jurors would automatically believe law enforcement witnesses or whether they would view their testimony under the same tests for credibility as other witnesses as instructed by the trial court;

H. The effect on jurors of State’s evidence including graphic testimony and language, photographs, and video recordings, testimony about racist comments and beliefs, and testimony about prison gangs and prison violence;

I. Whether jurors had read or heard news accounts of the incident or had discussed the incident with others in the community or with other prospective jurors;

J. What opinions, if any, were held by the jurors due to the fact that Petitioner was at the

time of the

incident charged, and at the time of trial, an inmate in a state correctional facility;

K. Jurors’ familiarity with witnesses for the State;

L. Jurors’ understanding, if any, of the presumption of innocence;

M. Jurors’ opinions of the justice system as expressed in juror questionnaires, and in particular, opinions on notorious cases such as the McDonald’s Coffee Case and the O.J. Simpson Case.

N. Jurors’ overall perceptions of the justice system and especially the criminal justice system.

EXERCISE OF PEREMPTORIES. (¶¶ 374-382).

CONCLUSION.

Fourth Claim for Relief:

Erroneous Jury Instructions.

1. Trial Phase Instructions.

A. Reasonable Doubt Instruction. (¶¶ 389-395).

B. Purpose

to

Kill Instruction. (¶¶ 396-406).

C. Improper Instruction on Principal Offender or Aider and Abettor Element. (¶¶ 407-409).

D. Acquittal First Instruction. (¶¶ 410-414).

2. Mitigation Phase Instructions.

A. The jury improperly considered and weighed both the principal offender and aider and abettor findings. (¶¶ 415-418).

B. Acquittal of Death First Instruction. (¶¶ 419-427).

3. Conclusion.

Fifl/i Claim for Relief:

The lack of specific findings by the jury denied Mr. Stojetz his Sixth Amendment right to a unanimous jury verdict.

A. Jury Verdicts. (¶¶ 431-450).

B. Grand Jury. (¶¶ 451-456).

Sixth Claim for Relief:

During trial the jury was exposed to suppressed evidence inaccurately reported by the media as a confession of personal responsibility. (¶¶ 457-482).

Seventh Claim for Relief:

The jury was exposed to irrelevant, inadmissible, inflammatory, and unduly prejudicial material of personal responsibility. (¶¶ 483-518).

Eighth Claim for Relief:

The jury’s responsibility for the execution of Mr. Stojetz was improperly diminished. (¶¶ 519-534).

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Ninth Claim for Relief:

Prosecutorial misconduct throughout the trial deprived Mr. Stojetz of fair trial, a fair sentencing proceeding, due process, and equal protection.

A. Gender Discrimination in Voir Dire. (¶¶ 540-554).

B. Misrepresentation of Testimony. (¶¶ 555-561).

C. Victim Impact. (¶¶ 562-566).

D. Improper Mitigation Argument. (¶¶ 567-599).

E. Conclusion. (¶¶ 600-601).

Tenth Claim for Relief:

The state improperly withheld exculpatory, mitigation, and/or impeachment evidence from the defense. (¶¶ 602-624).

Eleventh Claim for Relief:

Ineffective assistance of counsel on his direct appeals.

Counsels’ Performance was Unreasonable, Deficient, and Failed to Meet Reasonable Standard of Care in Capital Cases.

Appellate counsel failed to raise the following non-exhaustive list of issues on direct appeal (¶ 628):

A. The prosecutor’s discriminatory use of peremptory challenges to exclude potential women jurors and death-qualified jurors and defense counsel’s failure to object to the prosecutor’s discriminatory use of peremptory challenges as to women and death qualified jurors.

See

Claim for Relief No. IX;

B. The failure of trial counsel to object to improper jury instructions including but not limited to the trial court’s improper instruction that mitigation verdicts must be unanimous.

See

Claim for Relief No. IV;

C. The failure of trial counsel to object to victim impact information.

See

Claim for Relief No. XV;

D. [Petition fails to set fort sub-part D].

E. The failure of trial counsel to object to improper, inflammatory, and prejudicial arguments by the prosecutors.

See

Claim for Relief No. IX;

F. The actual innocence of Mr. Stojetz of the charge of aggravated murder and/or the death penalty.

See

Claim for Relief No. II;

G. The failure of trial counsel to request a mistrial when the jury was exposed to suppressed, and incorrectly characterized, evidence.

See

Claim for Relief No. VI;

H. The failure of trial counsel to advise Mr. Stojetz of his right to testify and to put Mr. Stojetz on the stand.

See

Claim for Relief No. XVI;

I. The failure of trial counsel to rebut the state’s theory of racial animus.

See

Claim for Relief I;

J. The failure of trial counsel to present mitigation evidence that Watkins provoked the attack.

See

Claim for Relief No. I; and

K. The failure of trial counsel to seek sequestration of the jurors.

See

Claim for Relief No. III.

Twelfth Claim for Relief:

Ohio’s post-conviction process is an inadequate corrective remedy rendering the entire death penalty scheme arbitrary and capricious.

Ohio’s Postconviction Scheme is not an Independent and Adequate Mechanism to Protect the Constitutional Rights of Capital Defendants. (¶¶ 649-667).

Ohio’s Postconviction Scheme is an Ineffective and Inadequate Remedy as Conducted in Mr. Stojetz’s Case. (¶¶ 668-709).

Thirteenth Claim for Relief:

Denial of a fair proportionality review.

Ohio Created a Liberty Interest in Proportionality Review. (¶¶ 717-735).

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The Statutorily Mandated Proportionality Review Ensures Proper Protections Against Arbitrary and Capricious Death Sentences. (¶¶ 736-749).

The Statutorily Mandated Proportionality Review Ensures Proper Protections Against Arbitrary and Capricious Death Sentences. (¶¶ 750-763).

Deference must be Given to the Legislative Mandate of the Ohio Legislature. (¶¶ 764-766).

Fourteenth Claim for Relief:

John Sto-jetz’s death sentence is inappropriate, arbitrary, and capricious.

Arbitrary, Capricious, and Disproportionate to Other Cases. (¶¶ 772-781). Watkins’s Actions Prompted the Attack. (¶¶ 782-797).

Mr. Stojetz’s Post-Traumatic Stress Disorder Renders the Death Sentence Constitutionally Deficient. (¶¶ 798-812).

Fifteenth Claim for Relief:

The trial court relied on inadmissible, irrelevant, inflammatory, and unduly prejudicial victim impact evidence in sentencing Mr. Stojetz to death. (¶¶ 815-835).

Sixteenth Claim for Relief:

Mr. Stojetz was denied his constitutional right to testify in his own defense. (¶¶ 836-862).

Seventeenth Claim for Relief:

Unconstitutionality of the death penalty statute. (¶¶ 863-).

A. O.R.C. §§ 2929.022, 2929.03, and 2929.04 violate the defendant’s rights to effective assistance of counsel and to a trial before an impartial jury, as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (¶¶ 885-897).

B. O.R.C. §§ 2929.03, 2929.04, and 2929.022 violate the Eighth and Fourteenth Amendments to the United States Constitution by failing to provide adequate guidelines for deliberation, leaving the jury without proper guidelines in balancing the aggravating and mitigating circumstances. (¶¶ 898-924).

C. O.R.C. §§ 2929.022, 2929.03, and 2929.04 and Ohio R.Crim. P. 11(C)(3) place an unconstitutional burden on the defendant’s right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution and his rights to be free from compulsory self-incrimination under the Fifth and Fourteenth Amendments to the United States Constitution. (¶¶ 925-936).

D. O.R.C. § 2929.03 fails to provide a meaningful basis for distinguishing between life and death sentences, as it does not explicitly require the jury, when it recommends life imprisonment, to specify the mitigating circumstances found, or

to

identify its reasons

for

such sentence. This denies the accused his rights under O.R.C. § 2929.03(A), [and] the Constitution. (¶¶ 937-944).

E. O.R.C. §§ 2929.021, 2929.03, and 2929.05 fail to assure adequate appellate analysis of arbitrariness, excessiveness, and disproportionality of death sentences and the Supreme Court of Ohio fails to engage in a level of analysis that ensures against arbitrary death sentencing. (¶¶ 945-983).

F. The appellate review provision of O.R.C. § 2929.05 fails to specifically require inquiry and findings regarding arbitrariness, passion, or prejudice, and this is constitutionally inadequate under the Eighth and Fourteenth Amendments to the United States Constitution. (¶¶ 984-987).

G. The Ohio Death Penalty Statute im-permissibly mandates imposition of the death penalty and precludes a mercy option in the absence of mitigating evidence or when aggravating circumstances outweigh mitigating factors. The statute also fails to require a determination that death is the appropriate punishment. (¶¶ 988-998).

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H. O.R.C. §§ 2929.03, 2929.04, and 2929.05 violate the Eighth and Fourteenth Amendments to the United States Constitution by failing to require the jury to decide the appropriateness of the death penalty. (¶¶ 999-1008).

I. The Ohio Death Penalty Scheme permits imposition of the death penalty on a less than adequate showing of culpability by failing to require a conscious desire to kill, premeditation, or deliberation as the culpable mental state, by denying lesser offense instructions and by allowing affirmance of capital convictions on the basis of unconstitutional presumptions respecting the presence of intent to kill. (¶¶ 1009-1019).

J. The Ohio “beyond a reasonable doubt” standard of proof fails to meet the requirement of higher reliability for the guilt determination phase of a capital case. (¶¶ 1020-1034).

The statutes fail to require proof beyond all doubt as to guilt that aggravating circumstances outweigh mitigating factors, and the appropriateness of death as a punishment before the death sentence may be imposed.

Ohio’s definition of proof “beyond a reasonable doubt” results in a burden of proof insufficiently stringent to meet the higher reliability requirement in capital cases at the guilt phase, and this has not been cured by the appellate courts in their review of convictions or death sentences.

The Ohio death penalty statutes fail to require that the jury consider as a mitigating factor pursuant to O.R.C. § 2929.04(B) that the evidence fails to preclude all doubt as to the defendant’s guilt.

K. O.R.C. §§ 2929.03, 2929.04, and 2929.05 violate the Eighth and Fourteenth Amendments to the United States Constitution in failing to properly allocate the burden of proof during mitigation phase of trial. (¶¶ 1035-1041).

L. The definition of mitigating factors in O.R.C. § 2929.04(B)(7) creates an unreliable death sentence by creating non-statutory aggravating circumstances. (¶¶ 1042-1046).

M. Ohio’s statutory nature and circumstances mitigating factor is improperly used as a non-statutory aggravating circumstance. (¶¶ 1047-1050).

N. The Death Penalty violates international law. (¶¶ 1051-1068).

Eighteenth Claim for Relief:

The cumulative impact of the errors addressed in this petition render Mr. Stojetz’s conviction and sentence unreliable and unconstitutional. (¶¶ 1071-1077).

(Habeas Corpus Petition, Doc.# 14).

Pursuant to the Court’s December 22, 2004 Scheduling Order (Doc.# 22), respondent filed a motion to dismiss procedurally defaulted claims on January 3, 2005 (Doc. # 23). Petitioner filed a response in opposition on June 2, 2005 (Doc.# 34), and respondent filed a reply on June 16, 2005 (Doe.# 35). Respondent’s motion to dismiss procedurally defaulted claims is now ripe for disposition.

JV. Procedural Default Discussion

It does not appear that every claim petitioner has raised in his habeas corpus petition was presented to the Ohio courts either during the direct appeal or on collateral review. As a general matter, a defendant who is convicted in Ohio of a criminal offense has available to him more than one method of challenging that conviction. Claims appearing on the face of the record must be raised on direct appeal, or they will be waived under Ohio’s doctrine of

res judicata. State v. Perry,

10 Ohio St.2d 175 , 226 N.E.2d 104 (1967). Issues that must be raised in a postconviction action pursuant to Ohio Rev.Code

*882

§ 2953.21 include claims that do not appear on the face of the record and claims of ineffective assistance of trial counsel where the defendant was represented on direct appeal by the same attorney who represented him at trial.

State v. Cole, 2

Ohio St.3d 112, 443 N.E.2d 169 (1982). In 1992, a third procedure of review emerged. Claims of ineffective assistance of appellate counsel must be presented to the appellate court in a motion for delayed reconsideration pursuant to

State v. Murnahan,

63 Ohio St.3d 60 , 584 N.E.2d 1204 (1992) and Ohio R.App. P. 26(B).

In addition to raising each claim in the appropriate forum, a habeas litigant, in order to preserve his constitutional claims for habeas review, must also present those claims to the state’s highest court.

O’Sullivan v. Boerckel,

526 U.S. 838 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (1999). Thus, under Ohio law, the conviction and sentence must be appealed to the Supreme Court of Ohio on direct appeal. Further, any adverse decision rendered by the trial court in postconviction must be appealed to both the Ohio Court of Appeals and the Supreme Court of Ohio.

In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254 (b), (c). If he fails to do so, but still has an avenue open to him by which he may present his claims, then his petition is subject to dismissal for failure to exhaust state remedies.

Id.; Anderson v. Harless,

459 U.S. 4, 6 , 103 S.Ct. 276 , 74 L.Ed.2d 3 (1982)(per curiam);

Picard v. Connor,

404 U.S. 270, 275-76 , 92 S.Ct. 509 , 30 L.Ed.2d 438 (1971). But if, because of a procedural default, the petitioner can no longer present his claims to the state courts, then he has also waived those claims for purposes of federal habeas corpus review, unless he can demonstrate both cause for the procedural default, as well as actual prejudice from the alleged constitutional error.

Murray v. Carrier,

477 U.S. 478, 485 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986);

Engle v. Isaac,

456 U.S. 107, 129 , 102 S.Ct. 1558 , 71 L.Ed.2d 783 (1982);

Wainwright v. Sykes,

433 U.S. 72, 87 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977).

In the Sixth Circuit, the Court must undertake a four-part analysis when the state argues that a federal habeas claim is waived by the petitioner’s failure to observe a state procedural rule.

Maupin v. Smith,

785 F.2d 135, 138 (6th Cir.1986). “First, the court must decide that there is a state procedural rule that is applicable to the petitioner’s claim and that the petitioner failed to comply with the rule.”

Id.

Second, the Court must determine whether the state courts actually enforced the state procedural sanction.

Id.

Third, it must be decided whether the state procedural forfeiture is an adequate and independent state ground upon which the state can rely to foreclose review of a federal constitutional claim.

Id.

Finally, if the Court has determined that a state procedural rule was not complied with, and that the rule was an adequate and independent state ground, then the petitioner must demonstrate that there was cause for him not to follow the procedural rule, and that he was actually prejudiced by the alleged constitutional error.

Id.

This “cause and prejudice” analysis applies to failures to raise or preserve issues for review at the appellate level.

Leroy v. Marshall,

757 F.2d 94 (6th Cir.),

cert. denied,

474 U.S. 831 , 106 S.Ct. 99 , 88 L.Ed.2d 80 (1985).

Respondent alleges that many of petitioner’s grounds, in their entirety or in

*883

part, are subject to one or more procedural defaults. Respondent argues that these grounds are defaulted because they were never presented to the state courts, because they were not preserved at trial with a contemporaneous objection, because they were not fairly presented to the state courts, because they were not appealed to the court of appeals during petitioner’s postconviction proceedings, and/or because they were not presented in accordance with Ohio’s

res judicata

rule. Respondent also asserts a procedural default defense against several grounds “where it is impossible to tell whether Stojetz raised the claim or not.” (Doc.# 23, at 7).

The Court will address each of the grounds individually to determine whether each ground is subject to the procedural default alleged by respondent.

A.

Ground One, Sub-Part (A)

— Inef

fective Assistance For Failure To Present A Defense

In ground one, sub-part (A), petitioner argues that his trial attorneys performed deficiently and to his prejudice by promising, and then failing to deliver, a defense of petitioner during his trial. (Doc.# 14, at ¶¶ 95-218). Specifically, petitioner argues that his trial attorneys made no effort to investigate or present evidence on the defense theories that they had advanced during opening statements — namely, that petitioner believed that the victim had attacked another inmate named Doug Hag-gerty, that petitioner was aware that the victim had threatened to attack petitioner and others, that petitioner did not intend to cause the victim’s death and was not the leader of the Aryan Brotherhood that had planned the attack, and that the murder was not racially motivated but was incident to the culture of prison life.

Respondent argues in his motion to dismiss that petitioner’s claim is procedurally defaulted because petitioner raised the claim in his postconviction action, but subsequently failed to prosecute an appeal to the state court of appeals following the trial court’s decision denying his postcon-viction action. (Doc.# 23, at 20-21). Petitioner has countered with a number of responses, including the argument that he had preserved this constitutional claim by raising it in his motion for a new trial. (Doc.# 34, at 38-44).

Respondent agrees and, in his reply, expressly abandons his procedural default argument against ground one, sub-part (A). (Doc.# 35, at 32). Accordingly, respondent’s motion to dismiss ground one, sub-part (A) is DENIED.

B(l).

Ground One, Sub-Part

(B)(1)—

Ineffective Assistance During Voir Dire (Pretrial Publicity)

In ground one-sub-part, (B)(1), petitioner argues that his attorneys performed deficiently and to his prejudice by failing, during

voir dire,

to adequately explore with potential jurors the issue of whether they had been unduly influenced by pretrial publicity. (Doc.# 14, at ¶¶ 219-234). Respondent argues that petitioner’s claim is procedurally defaulted under Ohio’s doctrine of

res judicata

because petitioner raised the claim in his postcon-viction action instead of raising it on direct appeal and that the claim is subject to a second procedural default by virtue of petitioner’s failure to prosecute an appeal to the state court of appeals following the trial court’s decision denying petitioner’s postconviction action. (Doc.# 23, at 22-23).

Petitioner counters with several arguments in response. First, petitioner argues that this claim was raised on direct appeal in his third proposition of law and that the claim was addressed on the merits by the Supreme Court of Ohio. (Doc.# 34, at 44-45). Petitioner further argues that

*884

Ohio’s

res judicata

rule cannot provide the basis for a procedural default because the state courts in this instance did not clearly and expressly explain their enforcement of the

res judicata

rule, because his claim relied on evidence

dehors

the record, and because Ohio’s postconviction process in general does not provide a fair and adequate remedy.

(Id.

at 45). Finally, with respect to respondent’s argument that petitioner’s claim is subject to a second procedural default stemming from his failure to prosecute an appeal in postconviction, petitioner argues that the state waived that procedural default when the prosecution declined to oppose petitioner’s motion requesting the state court of appeals to reconsider its decision dismissing petitioner’s postconviction appeal with prejudice on the basis of petitioner’s failure to file a merit brief.

(Id.).

In a different section of his brief in opposition, petitioner raises numerous arguments generally against enforcement by this Court of the default stemming from his failure to prosecute an appeal during his postconviction proceedings. Although it is far from clear whether petitioner intended, in the section of his brief specifically addressing ground one, sub-part (B)(1), to incorporate all of those arguments against enforcement of the default from his failure to prosecute an appeal in postconviction, this Court will, out of an abundance of caution, address them anyway.

a. First Part of the

Maupin

test — Violation of State Procedural Rule

The first part of the

Maupin

test requires the Court to determine whether a state procedural rule is applicable to petitioner’s claim, and, if so, whether petitioner violated that rule. As noted above, claims appearing on the face of the record must be raised on direct appeal, or they will be waived under Ohio’s doctrine of

res judicata. See State v. Perry, supra.

Claims that do not appear on the face of the record are properly raised in a post-conviction action pursuant to Ohio Rev. Code § 2953.21.

Initially, the Court rejects petitioner’s assertion that this claim was raised and addressed on direct appeal. Petitioner asserts that this claim was raised on direct appeal to the Supreme Court of Ohio in his third proposition of law. This Court scoured those pages of petitioner’s appellate brief devoted to his third proposition of law — ineffective assistance of trial counsel — and found no mention whatsoever of trial counsel’s failure to ask potential jurors about their exposure to pretrial publicity. (App.Vol. II, at 113-34). In short, petitioner’s assertion that ground one, sub-part (B)(1) was raised on direct appeal is belied by the record.

Having determined that petitioner did not raise this claim on direct appeal, the Court turns its focus to whether petitioner violated Ohio’s

res judicata

rule when he instead raised the claim in his postconviction action. In determining whether

res judicata

applies, the Court focuses its inquiry on whether the claim relies on non-record evidence that supports the claim in a manner that no record evidence could. Petitioner raised this claim of trial counsel ineffectiveness as his second claim for relief in his postconviction action. He supported the claim with photocopies of more than twenty articles about the murder from local newspapers in the months and days leading up to his trial. (App. Vol. IV, at 187, Exh. DD). These newspaper articles were not part of the trial record, and, technically speaking, there was no evidence beyond the trial court’s general remarks during

voir dire

about the issue of pretrial publicity, (Tr. Vol. II, at 53-55), from which petitioner’s appellate counsel could have argued on appeal that the failure of trial counsel to probe prospective

*885

jurors on the extent to which they were exposed to pretrial publicity might have prejudiced petitioner. Thus, petitioner’s claim technically relied on and was supported by evidence outside the record. Moreover, the trial court, in rejecting petitioner’s claim, clearly addressed and rejected it on the merits. (App. Vol. Y, at 292). Under these circumstances, the Court is inclined to conclude that petitioner was not required under Ohio’s doctrine of

res judicata

to raise this claim on direct appeal and that petitioner did not violate the state rule by raising the claim in his posteonviction action. The is also inclined to conclude, under the second part of the

Mawpin

test, that the state trial court did not clearly and expressly enforce the

res judicata

rule against petitioner’s claim.

The Court need not resolve this issue, however, because petitioner subsequently defaulted this claim when he failed to prosecute an appeal to the state court of appeals following the trial court’s decision denying his postconviction action.

As discussed in more detail

supra

in Section II.(C)(2) of this Opinion and Order, after being granted several extensions of time, as well as leave to file a brief in excess of twenty pages, petitioner’s post-conviction counsel, John J. Gideon, apparently failed to file his appellate brief, or a request for an extension of time, within the time permitted by the appellate court. Accordingly, the appellate court issued an order on September 10, 2001, directing counsel for petitioner to show cause why the appeal should not be dismissed. (App. Vol. VII, at 42). On September 24, 2001, counsel for petitioner responded to the show cause order, explaining that he had never received the appellate court’s entry dated June 25, 2001 granting him leave to file a brief in excess of twenty pages, because that entry, according to counsel, was sent to him at the Ohio Attorney General’s Office, though counsel for petitioner did not work at the Ohio Attorney General’s Office. (App. Vol. VII, at 44). On October 9, 2001, the appellate court issued an entry in response to counsel for petitioner’s “show cause” brief directing him to file his appellate brief before October 15, 2001. (App. Vol. VII, at 51). Counsel for petitioner apparently failed again to file his appellate brief.

On January 10, 2002, the appellate court dismissed petitioner’s appeal with prejudice. (App. Vol. VII, at 53).

Turning to the first part of the

Maupin

test — whether petitioner violated a state procedural rule — the Court concludes that Ohio law could not be more clear that postconviction actions, even in death penalty cases and other felony cases, are civil in nature and must be appealed in accordance with the Ohio Rules of Appellate Procedure.

State v. Nichols,

11 Ohio St.3d 40 , 463 N.E.2d 375 , paragraphs one and two of the syllabus, 11 Ohio St.3d 40 , 463 N.E.2d 375 (1984). Rule 18(c) of the Ohio Rules of Appellate Procedure provides that an appeal may be dismissed for the failure to timely file an appellate brief. When petitioner failed to file his appellate brief in accordance with the appellate court’s scheduling order and as permitted by numerous extensions of time, he failed to prosecute an appeal in violation of the Ohio Rules of Appellate Procedure and

State v. Nichols.

Thus, the first part of the

Maupin

test has been met.

b. Second Part of

Maupin

Test — Actual Enforcement by State Courts

The second part of the

Maupin

test requires the Court to determine whether the state courts actually enforced the state procedural rule. In the instant case, the state court of appeals clearly and expressly dismissed petitioner’s appeal in his post-conviction proceedings on the ground that petitioner failed to file an appellate brief.

*886

(App. Vol. VII, at 53). Thus, the second part of the

Maupin

test has been met.

c. Third Part of

Maupin

Test — “Adequate and Independent” Requirement

The Court further finds that the third part of the

Maupin

test has been satisfied. The rule established by

State v. Nichols

as to appeals in postconviction proceedings, and the Ohio Rules of Appellate Procedure, are stated in unmistakable language, are consistently enforced, and, together, serve the state’s interests in finality and judicial economy by ensuring that postcon-viction appeals are adjudicated in a timely and orderly fashion. Moreover, they do not rely on or otherwise implicate federal law. For these reasons, the Court concludes that state rules at issue are an adequate and independent state ground upon which to deny relief.

Petitioner urges the Court not to enforce the procedural default on the ground that Ohio’s postconviction procedure is not an adequate and independent ground upon which to deny federal habeas corpus relief. (Doc.# 84, at 19-23). Specifically, petitioner argues that the Supreme Court of Ohio, beginning with the decision of

State v. Perry,

10 Ohio St.2d 175 , 226 N.E.2d 104 (1967), has severely restricted the application of Ohio’s postconviction statute,

ie.,

Ohio Rev.Code § 2953.21; that Ohio’s postconviction process offers little or no opportunity for factual development; that the doctrine of

res judicata

is applied to prevent effective review of constitutional claims; and that the remedy has essentially become futile. For all of these reasons, petitioner argues, a procedural default committed in connection with Ohio’s post-conviction process is not an adequate and independent ground upon which to deny relief. Petitioner’s argument has been considered and rejected by the Court of Appeals for the Sixth Circuit.

In

Coleman v. Mitchell,

268 F.3d 417 , (6th Cir.2001), the Sixth Circuit examined its previous decisions in

Keener v. Ridenour,

594 F.2d 581 (6th Cir.1979),

Riggins v. McMackin,

935 F.2d 790 (6th Cir.1991), and

Rust v. Zent,

17 F.3d 155 (6th Cir.1994), and concluded that “application of

res judicata

under § 2953.21 is an adequate and independent state ground for barring habeas review of constitutional claims.”

Coleman,

268 F.3d at 428-29 . In considering the petitioner’s argument “that

res judicata

was an inadequate procedural bar in this case because he was denied a reasonable opportunity to present his claims in state court,”

Coleman,

268 F.3d at 428 , the Sixth Circuit specifically considered the language from

Keener

cited by Petitioner Stojetz herein:

This Court in

Keener

cited several cases in support of its position that “because of the narrow interpretation placed on [Section] 2953.21 by the Ohio Supreme Court, collateral relief is often unavailable or ineffective as a State remedy.”

Keener,

594 F.2d at 590 . However, these cases concerned forgiveness of the exhaustion requirement for habeas review, not the adequacy of

res judicata

under § 2953.21 as a state ground justifying foreclosure of a federal constitutional claim.

Coleman,

268 F.3d at 428 . Thus, to the extent that petitioner is arguing that no procedural default committed in connection with Ohio’s postconviction process should be enforced because Ohio’s postcon-viction process is an inadequate remedy, his argument appears to be foreclosed by Sixth Circuit precedent.

In urging the Court not to enforce this procedural default, petitioner also argues that the State of Ohio disavowed any reliance on the procedural default. Specifically, petitioner explains that when attorneys with the Ohio Public Defender’s Office

*887

took over representation of petitioner during his state postconviction proceedings and planned to ask the state court of appeals to reconsider its decision dismissing petitioner’s postconviction appeal with prejudice, the county prosecutor, Stephen Pronai, advised them that he would not oppose their motion and that he did not oppose the state appellate court addressing the merits of petitioner’s appeal.

Petitioner argues that the prosecutor’s failure to object is tantamount to a waiver by the State of the procedural default. Citing

Baze v. Parker,

371 F.3d 310, 320 (6th Cir.2004), and

Sowell v. Bradshaw,

372 F.3d 821, 830 (6th Cir.2004), petitioner argues that once waived, a procedural default cannot be reasserted. Those cases do not support petitioner’s argument.

Baze

and

Sowell

both involved situations in which the respondent in the habeas corpus action neglected to raise a procedural default defense, thereby paving the way for the federal courts to address the merits of claims that appeared to have been subject to dismissal on the basis of procedural default. Those cases do not, in this Court’s view, stand for the proposition that a county prosecutor, by not opposing a motion for reconsideration of a state court’s decision enforcing a state procedural rule, effectively waives or forfeits the right of a warden-respondent in a subsequent habeas corpus proceeding to raise the issue of procedural default. The Court is not aware of any case law supporting such a proposition. The record before the Court indicates that the warden-respondent clearly asserted a timely procedural default defense against ground one, sub-part (B)(1). Petitioner’s argument that the state waived the issue of procedural default as to ground one, sub-part (B)(1), by virtue of the decision of the county prosecutor not to oppose petitioner’s motion for reconsideration during his state postconviction appeal, is not well taken.

d. Fourth Part of

Maupin

Test— Cause and Prejudice to Excuse Default

Once the Court determines that a claim is subject to procedural default and that the procedural default is an adequate and independent state ground upon which to deny relief, it is incumbent upon petitioner to demonstrate “cause” sufficient to excuse the procedural default. To that end, petitioner offers ineffective assistance of post-conviction counsel.

1

Specifically, petitioner argues that he had an Eighth Amendment and a due process right to the effective assistance of counsel in his state postcon-viction proceedings and that the failure of attorney John J. Gideon to file an appellate brief violated this right in contravention of

Evitts v. Lucey,

469 U.S. 387 , 105 S.Ct. 830 , 83 L.Ed.2d 821 (1985).

The circumstances surrounding Gideon’s failure to file an appellate brief during petitioner’s state postconviction appeal are as follows. (Doc.# 34, at 15-16). Gideon was contracted by the Ohio Public Defender’s Office to represent petitioner in

*888

connection with his state postconviction proceedings. Following the trial court’s decision denying relief, Gideon filed a notice of appeal and the other requisite paperwork to begin the appellate process. Then, after Gideon obtained several extensions of time and after the appellate court issued a “show cause” order, Gideon failed to file an appellate brief in petitioner’s case, resulting in the state court of appeals dismissing petitioner’s appeal with prejudice. Petitioner explains that at some point between the initiation of his appeal and the appellate court’s dismissal of his appeal, Gideon suffered a mental breakdown that left him incapable of representing petitioner and other clients, incapable of communicating with petitioner and others, and incapable of seeking assistance to protect petitioner’s rights. Petitioner notes that Gideon was sanctioned for misconduct for this and other dereliction of duties.

Disciplinary Counsel v. Gideon,

104 Ohio St.3d 418 , 819 N.E.2d 1103 (2004).

There is no constitutional right to counsel in a collateral attack upon a criminal conviction.

See Pennsylvania v. Finley,

481 U.S. 551, 555 , 107 S.Ct. 1990 , 95 L.Ed.2d 539 (1987). It is therefore well settled that ineffective assistance of post-conviction counsel cannot be asserted as cause to excuse a procedural default.

Coleman v. Thompson,

501 U.S. 722, 752-53 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991). In an effort to side-step this well-settled principle, petitioner asserts that he had a right to effective assistance of postconviction as a matter of due process and under the Eighth Amendment. Petitioner asserts that reliance on

Pennsylvania v. Finley

ignores the due process issue in this case. (Doc.# 34, at 23-28).

Petitioner asserts that the failure to file an appellate brief constitutes ineffective assistance of counsel under the two-part test set forth in

Strickland v. Washington,

466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), sufficient to establish cause and prejudice to excuse procedural default. That is true, petitioner concedes, only where there exists a constitutional right to counsel in the first place. Petitioner argues that the United States Supreme Court has consistently recognized that procedural mechanisms in place to review capital cases, such as state postconviction procedures, are essential components to Eighth Amendment protections for capital inmates.

See, e.g., Gregg v. Georgia,

428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976). Further, according to petitioner, once a State chooses to act, even where there is no obligation to act, due process protections vest to protect individuals’ rights in those state-created actions. (Doc.# 34, at 24, citing

Evitts v. Lucey,

469 U.S. 387 , 105 S.Ct. 830 , 83 L.Ed.2d 821 (1985)). Petitioner argues that this “vesting” of due process rights creates a right to counsel and, concomitantly, a right to the effective assistance of counsel, in post-conviction proceedings. (Doc.# 34, at 24).

Petitioner goes on to argue that guaranteeing a statutory right to and providing postconviction counsel, as Ohio does for death row inmates, creates for the death row inmate a liberty interest in the right to effective assistance of counsel.

(Id.

at 24-25). Because the Ohio postconviction statute provides for counsel and a process of review in capital cases, Ohio Rev.Code § 2953.21(I)(1), petitioner argues, some measure of due process extends to that right to counsel and the postconviction process.

(Id.

at 25, citing

Ohio Adult Parole Authority v. Woodard,

523 U.S. 272 , 118 S.Ct. 1244 , 140 L.Ed.2d 387 (1998)).

Thus, according to petitioner, “It is time for the Court to consider the direct issue of the due process right to the effective assistance of counsel in state post-conviction proceedings in capital cases.” (Doc. # 34, at 27). Petitioner continues:

*889

“The fact of the matter is that the State of Ohio guarantees every death row inmate competent representation in post-conviction proceedings, either through contract with the Office of the Ohio Public Defender or through appointment of counsel. O.R.C. § 2953.21(I)(1). Since the State guarantees every death row inmate an attorney, due process mandates that the attorney provide effective representation. To provide otherwise would render the provision of counsel, at best, illusory, at worst, fatal.* * *.”

(Doc.# 34, at 27). Petitioner’s arguments are not well taken.

In

Murray v. Giarratano,

492 U.S. 1 , 109 S.Ct. 2765 , 106 L.Ed.2d 1 (1989), a plurality of the United States Supreme Court held that neither the Eighth Amendment nor the Due Process Clause requires states to appoint counsel for indigent death row inmates. Petitioner argues that the plurality decision in

Murray,

just like the

Pennsylvania v. Finley,

fails to address the due process issue in this case. Petitioner cites an excerpt from Justice Kennedy’s concurring opinion in

Murray

as evidence that there are “circumstances where a system on its face or as applied may be unconstitutional, albeit not on the facts of

Murray.

” (Doc.# 34, at 26, citing

Murray v. Giarratano,

492 U.S. at 14-15 , 109 S.Ct. 2765 (Kennedy, J., joined by O’Connor, J., concurring in judgment)).

Petitioner’s argument urges the Court not to apply

Murray,

it does not, however, demonstrate or even suggest that

Murray

is distinguishable. Moreover, both

Pennsylvania v. Finley

and

Murray v. Giarratano,

appear to have addressed and rejected the due process argument raised by petitioner. In

Pennsylvania v. Finley,

the Supreme Court stated that “[sjtates have no obligation to provide [collateral] relief, [cite omitted], and when they do, the fundamental fairness mandated by the Due Process Clause does not require that the State supply a lawyer as well.”

Pennsylvania v. Finley,

481 U.S. at 557 , 107 S.Ct. 1990 . Subsequently, in

Murray v. Giarratano,

the plurality expanded:

[T]he rule of

Pennsylvania v. Finley

should apply no differently in capital cases. State collateral proceedings are not constitutionally required as an adjunct to the state criminal proceedings and serve a different and more limited purpose than either the trial or appeal. The additional safeguards imposed by the Eighth Amendment at the trial stage of a capital case are, we think, sufficient to assure the reliability of the process by which the death penalty is imposed. We therefore decline to read either the Eighth Amendment or the Due Process Clause to require yet another distinction between the rights of capital case defendants and those in noncapital cases.

Id.,

482 U.S. at 10, 107 S.Ct. 2211 . This Court is obligated to follow the letter and spirit of

Finley

and

Murray

holding that there simply is no Eighth Amendment or due process right to counsel during state collateral proceedings. From this, it follows that there is no right to the effective assistance of postconviction counsel. This is true even as to petitioner’s argument that, once counsel is provided, counsel’s conduct must meet the minimum guarantees of effectiveness.

This Court has carefully considered petitioner’s arguments for why he is entitled, under the Eighth Amendment and as a matter of due process, to effective assistance of postconviction counsel. None of those arguments, nor the cases cited in support, are sufficient to overcome the inescapable fact that there are two Supreme Court decisions stating unequivocally that there is no constitutional right to counsel

*890

during state collateral proceedings and that ineffective assistance of counsel cannot be asserted as “cause” to excuse a procedural default committed during a state collateral proceeding,

Coleman v. Thompson,

501 U.S. 722, 752-53 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991).

Petitioner argues that even though states are not required to provide collateral proceedings, once they elect to do so, they create a liberty interest in due process rights to protect individuals in connection with those collateral proceedings. Moreover, petitioner argues that the Ohio legislature, by providing for the appointment of posteonviction counsel for death row inmates, Ohio Rev.Code § 2953.21(1), created a liberty interest in, or due process right to, the effective assistance of posteonviction counsel. The fact of the matter is that petitioner has not cited, and the Court is not aware of, any case holding that this proposition entitles death row inmates as a matter of constitutional law to counsel in posteonviction proceedings, or to minimum guarantees of effectiveness once counsel is provided. Petitioner all but concedes as much by inviting this Court to make that leap: “It is time for the Court to consider the direct issue of the due process right to the effective assistance of counsel in state post-conviction proceedings in capital cases.” (Doc.# 34, at 27).

Petitioner’s reliance on

Ohio Adult Parole Authority v. Woodard,

523 U.S. 272 , 118 S.Ct. 1244 , 140 L.Ed.2d 387 , is misplaced. Petitioner argues that under

Woodard ,

“[d]ue process protections extend beyond the initial trial to the direct appeal of right, and even to a capital defendant in the pursuit of clemency.” (Doc. # 34, at 25, citing

Woodard,

523 U.S. 272 , 118 S.Ct. 1244 , 140 L.Ed.2d 387 ). In

Woodard ,

the Court split on the issue of whether clemency proceedings were subject to constitutional safeguards of the Due Process Clause.

See, e.g., Workman v. Bell,

245 F.3d 849, 852 (6th Cir.2001). Whatever else

Woodard

stands for with respect to the issue of what, if any, measure of due process rights extends to state collateral proceedings, it simply does not support the proposition that state prisoners enjoy an Eighth Amendment or due process right to effective assistance of counsel during state posteonviction proceedings, especially in light of the fact that there are two Supreme Court decisions stating that there is no such right.

See Pennsylvania v. Finley, supra,

and

Murray v. Giarratano, supra.

The Court is not unsympathetic to petitioner’s plight. Petitioner is faced with the forfeiture of numerous constitutional claims due to a clear dereliction of duties on the part of the attorney appointed to represent him during his posteonviction appeal. However, petitioner’s arguments urging this Court to find that he has a constitutional right to effective assistance of posteonviction counsel find no support in controlling case law. Petitioner was entitled to counsel in posteonviction as a matter of Ohio statutory law, not because of constitutional compulsion. As a result, his posteonviction counsel was not bound by minimum guarantees of effectiveness. In the absence of authority holding that there is a constitutional right to counsel in state posteonviction proceedings, whether under the Eighth Amendment or as a matter of due process, this Court, however sympathetic it might be, cannot excuse the procedural default that occurred when petitioner’s counsel failed to file an appellate brief resulting in the with-prejudice dismissal of his state posteonviction appeal. Accordingly, petitioner has failed to demonstrate cause and prejudice sufficient to excuse the default of ground one, sub-part (B)(1).

e. Conclusion

The Court has concluded that ground one, sub-part (B)(1),

i.e.,

ineffective assis

*891

tance of counsel during

voir dire

regarding the issue of pretrial publicity, is procedurally defaulted due to petitioner’s failure to file an appellate brief during his postcon-viction appeal. The Court has concluded that it cannot consider petitioner’s claim of postconviction counsel ineffectiveness as cause to excuse the default, because there is no constitutional right to effective assistance of counsel in postconviction proceedings. Thus, applying the

Mawpin

test, the Court concludes that ground one, sub-part (B)(1) is procedurally defaulted. Respondent’s motion to dismiss ground one, sub-part (B)(1) as procedurally defaulted is GRANTED.

(B)(2).

Ground One, Sub-Part (B)(2) Ineffective Assistance During Voir Dire (Death Penalty Qualifications)

In ground one, sub-part (B)(2), petitioner argues that his trial attorneys completely ignored petitioner’s constitutional right to “life qualify” the potential jurors. (Petition, Doc.# 14, at ¶¶ 235-248). Instead, petitioner argues, defense counsel left it up to the trial court to occasionally ask potential jurors life-qualifying questions.

Respondent argues that petitioner’s claim is barred by procedural default, but, as petitioner points out, respondent’s argument is somewhat difficult to decipher. Petitioner clearly raises this particular allegation of trial counsel ineffectiveness as ground one, sub-part (B)(2), in paragraphs 235-248 of his petition. However, respondent asserts that this claim of trial counsel ineffectiveness — failure during

voir dire

to “life qualify” potential jurors — was raised in the petition as ground one, sub-part (E). (Doc.# 23, at 16-17). Even a cursory review of the petition reveals that ground one, sub-part (E), contrary to respondent’s assertion, alleges trial counsel ineffectiveness for the failure to challenge improper jury instructions. (Petition, Doc.# 14, at ¶¶ 260-267). Thus, this Court will refer to petitioner’s claim of trial counsel ineffectiveness for the failure during

voir dire

to “life qualify” prospective jurors as ground one, sub-part (B)(2).

In any event, respondent argues that this claim of trial counsel ineffectiveness is partially procedurally defaulted because petitioner challenged certain jurors and prospective jurors on direct appeal, but challenges various other jurors and prospective jurors in his habeas corpus petition herein. (Doc.# 23, at 16-17). Thus, respondent argues that, as to those jurors and prospective jurors whom petitioner challenged on direct

appeal

— i.e., jurors Coffin, Smith, Morgan, Daniels Thornsber-ry, Hirst, Lawhorn, McCollum, Porter, Flynn, and Wilson — ground one, sub-part (B)(2) is preserved for habeas corpus review. However, as to those jurors and prospective jurors whom petitioner challenges for the first time in his habeas corpus petition herein — Carla Stover, Edward Banion, Andre Porter, Kathy Wolfe, Sherry Leonard, Michelle Kowalski, Celia Browning, and Aleda Reed — respondent argues that ground one, sub-part (B)(2) is procedurally defaulted because it was not fairly presented to the Ohio courts on direct appeal.

Respondent’s arguments are not well taken. This particular allegation of trial counsel ineffectiveness — failure during

voir dire

to “life qualify” prospective jurors- — as set forth in the petition, (Doc. # 14, ¶¶ 235-248), does not identify any jurors or prospective jurors by name. However, this particular allegation of trial counsel, as set forth in the petition, incorporates by reference petitioner’s third ground for relief, wherein petitioner does, in arguing that his trial attorneys were ineffective for failing to ask “life qualifying” questions, identify jurors and pro

*892

spective jurors by name. (Petition, Doc. # 14, at ¶¶ 352-365). In any event, ground one, sub-part (B)(2) alleges generally that trial counsel failed during

voir dire

to ask “life qualifying” questions of the prospective jurors. That allegation of trial counsel ineffectiveness was clearly and unequivocally presented to the Supreme Court of Ohio on direct appeal as Proposition of Law No. Ill, (1.). (App. Vol. II, at 113-115).

Respondent is correct that the claim presented to the Supreme Court of Ohio set forth the names of prospective jurors who were not asked “life qualifying” questions' — jurors Coffin, Smith, Morgan, Daniels, Thornsberry, Hirst, Lawhorn, McCollum, Porter, Flynn, and Wilson— while the claim presented herein, by incorporating by reference allegations set forth in ground three, sets forth the names of additional prospective jurors who were not asked “life qualifying” questions. Contrary to respondent’s argument, this discrepancy is immaterial. It is clear from a reading of the claim in its entirety, both as presented to the Supreme Court of Ohio on direct appeal and as set forth in the habeas corpus petition, that the inclusion or omission of the names of prospective jurors simply is not an essential component of the claim.

See, e.g., Vasquez v. Hillery,

474 U.S. 254, 260 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986)(holding that additional facts or evidence may be considered by a federal habeas corpus court where that new information does not “fundamentally alter the legal claim already considered by the state courts.”);

see also Sampson v. Love,

782 F.2d 53, 55 (6th Cir.1986)(holding that additional facts or evidence may be considered by a federal habeas court where that new information does not place the claim in a “significantly different posture” than the claim considered by the state courts). Thus, under the reasoning set forth in

Vasquez v. Hillery,

the Court declines to find that petitioner’s claim is procedurally defaulted as to any prospective jurors whom he did not identify by name in his brief to the Supreme Court of Ohio on direct appeal. Respondent’s argument that this claim of trial counsel ineffectiveness is partially defaulted due to petitioner’s failure to fairly present it on direct appeal is not well taken.

It is well settled that, in order to satisfy the exhaustion requirement in ha-beas corpus, a petitioner must fairly present the substance of his constitutional claim to the state courts.

Anderson v. Harless,

459 U.S. 4, 6 , 103 S.Ct. 276 , 74 L.Ed.2d 3 , (1982);

Picard v. Connor,

404 U.S. 270, 275 , 92 S.Ct. 509 , 30 L.Ed.2d 438 (1971). A petitioner “fairly presents” the “substance of his federal habeas corpus claim” when the state courts are afforded sufficient notice and a fair opportunity to apply controlling legal principles to the facts bearing upon the constitutional claim.

Harless,

459 U.S. at 6 , 103 S.Ct. 276 . Even a cursory reading of petitioner’s brief to the Supreme Court of Ohio on direct appeal reveals that he fairly presented this claim of trial counsel ineffectiveness. Further, the Supreme Court of Ohio considered and rejected the claim on the merits, albeit, in cursory fashion. (App. Vol. Ill, at 148). Respondent’s motion to dismiss ground one, sub-part (B)(2)' — misidentified by respondent as ground one, sub-part (E) — is DENIED.

2

*893

C.

Ground One, Sub-Part

(C)—

Ineffective Assistance During Opening Statements

In ground one, sub-part (C), petitioner argues that his trial attorneys were ineffective for committing the “neophyte blunder” of promising a defense and explanation for the killing of Damico Watkins, and then failing entirely to deliver that defense. (Petition, Doc.# 14, at ¶¶ 249-256).

Respondent argues that petitioner’s claim is procedurally defaulted because it was never presented to any state court. (Doc.# 23, at 6). It is important to note, at this point, that respondent misidentified this allegation of trial counsel ineffectiveness as ground one, sub-part (F).

(Id.).

The claim, as set forth in the petition, clearly is set forth in ground one, sub-part (C), and the Court will address it as such.

Petitioner responds with a number of arguments. (Doc.# 34, at 55-57). First, petitioner insists that this claim of trial counsel ineffectiveness was raised on direct appeal and addressed by the Supreme Court of Ohio on the merits. In this regard, petitioner argues that the fact that this claim subsequently was raised in post-conviction and denied on the basis of

res judicata

is irrelevant, since the claim initially was preserved by virtue of having been raised on direct appeal. Petitioner goes on to argue that, even assuming the claim is subject to procedural default, petitioner can demonstrate cause and prejudice to excuse the default, or that the default should be excused under the “actual innocence” exception, or that the default should be excused to avoid a miscarriage of justice.

Initially, the Court rejects petitioner’s assertion that he raised this claim on direct appeal to the Supreme Court of Ohio. This Court has combed through petitioner’s brief to the Supreme Court of Ohio, (App. Vol. II, at 48), and nowhere did petitioner even arguably assert that his trial attorneys were ineffective for promising a defense during their opening statements, and then failing to deliver that defense.

1. Procedural Default Under The

Maupin

Test

Having determined that petitioner did not raise this claim on direct appeal, the Court turns its focus to respondent’s procedural default argument against this claim — that this claim was not presented to any state court. Careful review of the record confirms respondent’s assertion. Having reviewed not only petitioner’s brief to the Supreme Court of Ohio on direct appeal, but also petitioner’s postconviction petition, Rule 26(B)

“Mumahan”

application for delayed reopening, and petitioner’s motion for a new trial, this Court finds that he never raised a claim that trial counsel were ineffective for promising in opening statements a defense that ultimately they failed to deliver.

The first part of the

Maupin

test requires the Court to determine whether a state procedural rule is applicable to petitioner’s claim, and, if so, whether petitioner violated that rule. As noted above, claims appearing on the face of the record must be raised on direct appeal, or they will be waived under Ohio’s doctrine of

res judicata. See State v. Perry,

10 Ohio St.2d 175 , 226 N.E.2d 104 . Claims which do not appear on the face of the record are properly raised in a postconviction action pursuant to Ohio Rev.Code § 2953.21. A claim challenging defense counsel’s opening statement, by its very nature, appears on the face of the record. Thus, petitioner violated Ohio’s

res judicata

doctrine when

*894

he failed to raise this claim on direct appeal.

The second part of the

Maupin

test requires the Court to determine whether the state courts actually enforced the procedural rule. Since petitioner failed to present this trial counsel ineffectiveness claim to any state court, the state courts were never given an opportunity to enforce the res

judicata

rule. Consequently, the Court deems the second part of the

Mau-pin

test to have been met.

The Court further finds that the procedural rule is adequate and independent under the third part of the

Maupin

test. To be “independent,” the procedural rule at issue, as well as the state court’s reliance thereon, must rely in no part on federal law.

See Coleman v. Thompson,

501 U.S. 722, 732-33 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991). To be “adequate,” the state procedural rule must be firmly established and regularly followed by the state courts.

Ford v. Georgia,

498 U.S. 411 , 111 S.Ct. 850 , 112 L.Ed.2d 935 (1991). “[O]nly a ‘firmly established and regularly followed state practice’ may be interposed by a State to prevent subsequent review by this Court of a federal constitutional claim.”

Id.

at 423 , 111 S.Ct. 850 (quoting

James v. Kentucky,

466 U.S. 341, 348-351 , 104 S.Ct. 1830 , 80 L.Ed.2d 346 (1984)).

See also Barr v. City of Columbia,

378 U.S. 146, 149 , 84 S.Ct. 1734 , 12 L.Ed.2d 766 (1964);

NAACP v. Alabama ex rel. Flowers,

377 U.S. 288, 297 , 84 S.Ct. 1302 , 12 L.Ed.2d 325 (1964);

see also Jamison v. Collins,

100 F.Supp.2d 521, 561 (S.D.Ohio 1998).

The determination of whether a state procedural rule is an adequate ground for denying relief necessarily focuses on the procedural rule at issue, namely, the

Perry

rule. The Court of Appeals for the Sixth Circuit, as well as other courts within this district, have consistently held, and recently reaffirmed, that Ohio’s doctrine of

res judicata, i.e.,

the

Perry

rule, is an adequate ground for denying federal habeas relief.

Coleman v. Mitchell,

268 F.3d 417, 427-29 (6th Cir.2001);

Byrd v. Collins,

209 F.3d 486, 521-22 (6th Cir.2000);

Norris v. Schotten,

146 F.3d 314, 332 (6th Cir.1998). The doctrine of

res judicata

is stated in unmistakable terms in countless Ohio decisions, and Ohio courts have consistently refused, in reliance on that doctrine, to review the merits of claims.

See State v. Cole,

2 Ohio St.3d 112 , 443 N.E.2d 169 (1982);

State v. Ishmail,

67 Ohio St.2d 16 , 423 N.E.2d 1068 (1981). Further, the doctrine of

res judi-cata

serves the state’s interest in finality and in ensuring that claims are adjudicated at the earliest possible opportunity. That Ohio courts may on occasion elect to ignore or forgive non-compliance with its procedural rules has no bearing on the general question of whether the

Perry

rule is adequate. With respect to the independence prong, the Court concludes that

res judicata

does not rely on or otherwise implicate federal law. Accordingly, this Court is satisfied from its own review of relevant case law that the

Perry

rule is an adequate and independent ground for denying relief.

2. Cause And Prejudice

Once the Court determines that a constitutional claim is subject to procedural default, the Court may not address the merits of that claim absent a showing by petitioner that the default can be excused under either the cause-and-prejudice test or the narrow “actual innocence” exception. Petitioner asserts that he can demonstrate both, as well as that enforcing this procedural default would result in a miscarriage of justice.

With respect to cause-and-prejudice, petitioner states “there is simply nothing John Stojetz could to do ensure proper

*895

litigation of his claims.” (Doc.# 34, at 56). Petitioner incorporates by reference cause- and-prejudice arguments that he made in an earlier section of his brief,

(Id.

at 42-43). That section, however, set forth petitioner’s argument that ineffective assistance of postconviction counsel constituted cause and prejudice sufficient to excuse the default that was committed when petitioner’s postconviction counsel failed to file an appellate brief during petitioner’s post-conviction appeal. That eause-and-preju-dice argument does not logically apply to the default in the instant case,

i.e.,

petitioner’s failure to raise on direct appeal trial counsel’s ineffectiveness during opening statements for promising a defense that they did not deliver. Further, this Court has already determined that because there is no constitutional right to effective assistance of postconviction counsel, petitioner cannot assert ineffective assistance of postconviction counsel as “cause” to excuse any procedural default. In sum, petitioner has failed to demonstrate cause and prejudice to excuse the default of ground one, sub-part (C).

3. Actual Innocence Exception

The Court has concluded that ground one, sub-part (C) — ineffective assistance of counsel during opening statements for promising a defense that was never delivered — is procedurally defaulted due to petitioner’s failure to present that claim to any state court and, more specifically, petitioner’s failure to raise that claim on direct appeal. The Court has further concluded that petitioner has failed to demonstrate cause and prejudice sufficient to excuse the default. Thus, applying the

Maupin

test, the Court concludes that ground one, sub-part (C) is procedurally defaulted.

Beyond the four-part

Maupin

analysis, this Court is required to consider whether this is “an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent....”

Murray v. Carrier, supra,

477 U.S. at 496 , 106 S.Ct. 2639 . The “actual innocence” exception to procedural default applies whether the petitioner is asserting that he is actually innocent of the underlying crime for which he was convicted, or is challenging the aggravating circumstances that made him eligible for the death penalty. As the Sixth Circuit explained in

Williams v. Bagley,

380 F.3d 932, 973 (6th Cir.2004):

The “fundamental miscarriage of justice” gateway is open to a petitioner who submits new evidence showing that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.”

Schlup v. Delo,

513 U.S. 298, 327 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995)(quoting

Murray v. Carrier,

477 U.S. 478, 496 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986)). “To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.”

Id.

The gateway is also available to a petitioner who demonstrates that he is “actually innocent” of the sentence of death that has been imposed on him. To establish his “innocence” of the death penalty, a petitioner must “show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.”

Sawyer v. Whitley,

505 U.S. 333, 336 , 112 S.Ct. 2514 , 120 L.Ed.2d 269 (1992).

Williams v. Bagley,

380 F.3d at 973 .

Thus, the “actual innocence” exception to procedural default applies whether the petitioner is asserting that he is actually innocent of the underlying crime for which he was convicted, or is challenging the aggravating circumstances that made him eligible for the death penal

*896

ty. The standard of proof that he must satisfy depends upon the challenge he is making.

Calderon v. Thompson,

523 U.S. 538, 559 , 118 S.Ct. 1489 , 140 L.Ed.2d 728 (1998). Claims challenging the petitioner’s conviction for the underlying crime are governed by Schlup’s more lenient “more likely than not” standard.

Calderon,

523 U.S. at 559 , 118 S.Ct. 1489 . Claims challenging the petitioner’s eligibility for the death penalty are governed by Sawyer’s more exacting “clear and convincing” standard — -this is true even where the petitioner’s claim challenges an element of the underlying offense that has the effect of enhancing the underlying offense to a capital offense, thereby making the petitioner eligible for the death penalty.

Calderon,

523 U.S. at 559-560 , 118 S.Ct. 1489 . In

Calderon ,

the Supreme Court emphasized:

The

Sawyer

standard has a broader application than is first apparent. As the Court explained in

Schlup ,

when a capital petitioner challenges his underlying capital murder conviction on the basis of an element that “function[s] essentially as sentence enhancer,” the

Sawyer

“clear and convincing” standard applies to the claim.

Schlup, supra,

at 326 , 115 S.Ct., at 866-867 . Thus, to the extent a capital petitioner claims he did not kill the victim, the

Schlup

“more likely than not” standard applies. To the extent a capital petitioner contests the special circumstances rendering him eligible for the death penalty, the

Sawyer

“clear and convincing” standard applies, irrespective of whether the special circumstances are elements of the offense of capital murder or, as here, mere sentencing enhancers.

Calderon, supra,

523 U.S. at 560, 118 S.Ct. 1489 .

It is unclear whether that distinction is important in the instant case because petitioner appears to be arguing both that he is actually innocent of the murder of Dami-co Watkins, (Doc.# 34, at 31), and that he is actually innocent of the death penalty, (Petitioner’s Opposition, Doc.# 34, at 30).

3

In the end, petitioner focuses his arguments on Schlup’s “more likely than not” standard, arguing that he is actually innocent of the death penalty under the facts and law.

(Id.).

Specifically, in an effort to demonstrate the facts necessary to qualify for the “actual innocence” exception, petitioner argues that evidence of his mental state, his underlying motivation for the attack on Dam-ico Watkins, actions and threats by Watkins that provoked the attack against him, and the “culture” of prison life, demonstrate that petitioner is actually innocent of the death penalty specifications of which he was convicted. Petitioner points out that inmate Vandersommen testified during petitioner’s state postconviction hearing that he (Vandersommen) and inmate Bishop killed Watkins; that petitioner did not kill Watkins or even intend for Watkins to be killed; and that Watkins was killed because he (Vandersommen) “snapped” once the attack began. (Doc. #34, at 31, citing Tr. Vol. IX, at 31-51, deposition of William Vandersommen). Petitioner further argues that other witnesses corroborated Vandersommen’s account. (Doc.# 34, at 31, citing Tr. Vol. IX, at 15-20, deposition of David Hicks).

To satisfy the legal predicate of the “actual innocence” exception, petitioner argues that, under

Schlup ,

he need only demonstrate that it is more likely than not that a reasonable juror, in light of the new evidence described above, would not have

*897

found guilt beyond a reasonable doubt. (Doc.# 34, at 31-32). Petitioner further argues that the question is not whether sufficient evidence was presented at trial to sustain his conviction and death sentence.

(IcL).

Petitioner asserts that evidence in support of his claim that he is actually innocent of the death penalty is intricately tied to his habeas claims of ineffective assistance of counsel, prosecuto-rial misconduct, and violations of his rights under the Eighth Amendment.

(Id.).

Regardless of whether petitioner is arguing that he is actually innocent of the aggravated murder of Damico Watkins, to which Schlup’s more lenient “more likely than not” standard would apply, or whether petitioner is arguing that he is actually innocent of the death sentence that he received for the aggravated murder of Damico Watkins, to which

Sawyer’

s more exacting “clear and convincing” standard would apply, the Court is of the view that it would be ill-advised to address petitioner’s “actual innocence” claim at this time. In addition to offering an actual innocence claim as a “gateway” claim to revive otherwise defaulted claims, petitioner has raised a free-standing claim of actual innocence in his second ground for relief. Respondent has expressly conceded that petitioner’s free-standing claim of actual innocence — his second ground for relief — is not procedurally defaulted. As such, it is deserving of a full review on the merits and will be fully briefed by the parties at a later date. Although freestanding claims of actual innocence involve a different, and surely more exacting, standard of proof than gateway claims of actual innocence,

see Herrera v. Collins,

506 U.S. 390, 417 , 113 S.Ct. 853 , 122 L.Ed.2d 203 (1993)(noting that the “threshold showing” for a free-standing claim of actual innocence would be “extraordinarily high”);

Schlup v. Delo, supra,

513 U.S. at 313-315 , 115 S.Ct. 851 (distinguishing between a free-standing, substantive claim of actual innocence upon which the Court could grant habeas relief, and a gateway, procedural claim of actual innocence by which a Court could examine the merits of an otherwise defaulted claim), the facts supporting both claims — and both claims will involve a fact-intensive analysis — will be the same. Thus, this Court is of the view that it would be more prudent to address petitioner’s “gateway” claim of actual innocence when it considers his “freestanding” claim of actual innocence.

4. Miscarriage Of Justice

Beyond the four-part

Maupin

test and the narrow “actual innocence” exception, petitioner appears to argue that this procedural default should be excused to avoid a miscarriage of justice. Specifically, petitioner argues:

The State of Ohio has no interest in relying on or imposing a procedural default in this case. Imposing the default will reward the State for providing ineffective, incompetent, and even a mentally ill attorney to represent death row inmates. Failing to provide federal review fails to serve the purposes of comity and federalism. Given the magnitude of the errors and constitutional violations as well as the fact that death is different, the Court should refuse to impose the default and consider the merits of this Claim.

(Doc.# 34, at 56-57). With all due respect, petitioner has not cited, and this Court is not aware of, any case holding that there is a “miscarriage of justice” exception above and beyond the “actual innocence” exception discussed in

Schlup v. Delo

and

Sawyer v. Whitley.

That being the case, petitioner’s argument that the Court should refuse to impose the procedural default in this instance is not well taken.

*898

5. Conclusion

In sum, the Court concludes that ground one, sub-part (Q — promising a defense in opening statements that was never delivered at trial — is procedurally defaulted and that petitioner has not demonstrated cause and prejudice to excuse the default. The Court will defer consideration of petitioner’s argument that he can satisfy the “actual innocence” exception to procedural default until after the parties submit their merit briefs and the Court considers petitioner’s free-standing claim of actual innocence. For that reason, respondent’s motion to dismiss ground one, sub-part (C) as procedurally defaulted is GRANTED, subject to reconsideration once the Court addresses the claim of actual innocence set forth in petitioner’s second ground for relief.

D.

Ground One, Sub-Part (D)

— Ineffec

tive Assistance For Failing To Move For A Mistrial When The Jury

Was

Exposed To Suppressed Evidence

In ground one, sub-part (D), petitioner argues that his trial attorneys performed unreasonably and to his prejudice in failing to move for a mistrial after the jury was exposed, through a newspaper article, to evidence that the trial court had suppressed. (Petition, Doc.# 14, at ¶¶ 257-259, 457-482).

Respondent argues that petitioner’s claim is procedurally defaulted under Ohio’s doctrine of

res judicata

because it was raised for the first time in his postcon-viction action instead of on direct appeal, and that petitioner’s claim is subject to a second procedural default due to petitioner’s failure to file an appellate brief to the state court of appeals during his postcon-viction appeal. (Doc.# 23, at 23). It is important to note, at this point, that respondent misidentified this allegation of trial counsel ineffectiveness as ground one, sub-part (G).

(Id.).

The claim, as set forth in the petition, clearly is set forth in ground one, sub-part (D), and the Court will address it as such.

Petitioner responds with a number of arguments. (Doc.# 34, at 57-59). First, petitioner argues that his claim is not defaulted because he included it in his Rule 26(B)

“Mumahan”

application to reopen his direct appeal and because the Supreme Court of Ohio rejected the claim on the merits. Second, petitioner argues that he raised the claim as his third cause of action in his posteonvietion petition and that the claim is not subject to the

res judicata

bar because the state courts did not clearly and expressly state which aspect of the

res judicata

they were enforcing against petitioner’s claim, and because the imposition of the

res judicata

bar was improper in the first place, given the fact that the claim relied on and was supported by evidence outside the trial record. With respect to the alleged default committed when he failed to file an appellate brief to the state court of appeals during his posteonvietion appeal, petitioner argues that the state waived that procedural'default when the prosecution declined to oppose petitioner’s motion for reconsideration of the dismissal of his posteonvietion appeal. Petitioner further argues that ineffective assistance of posteonvietion counsel constitutes cause and prejudice sufficient to excuse the default committed when he failed to file the appellate brief. Finally, petitioner argues that any procedural default should be excused under the “actual innocence” exception or overlooked to avoid a miscarriage of justice. None of petitioner’s arguments are well taken.

Initially, this Court rejects for a number of reasons petitioner’s assertion that ground one, sub-part (D) is not procedurally defaulted because he raised it in his Rule 26(B)

“Mumahan”

application for reopening. First, under Ohio law, an appli

*899

cation for reopening pursuant to App. R. 26(B), or a

“Mumahan”

motion, is a procedural mechanism for raising claims of appellate counsel ineffectiveness, not for bootstrapping underlying constitutional claims that were omitted from the direct appeal in the first place. Fair presentment requires a petitioner to present his claims to the state courts in a procedure and manner that will provide the state courts with the opportunity to apply controlling legal principles.

Picard v. Connor,

404 U.S. 270, 276-77 , 92 S.Ct. 509 , 30 L.Ed.2d 438 (1971). To the extent petitioner is suggesting that raising a claim in a Rule 26(B) application is equivalent to raising that claim on direct appeal, he is in error. The notion that any constitutional claim raised in an application for reopening is fairly presented to the state courts in the same manner as if that claim had been raised in a timely direct appeal is untenable and unsupported by case law. The only claims that can be preserved in a Rule 26(B) application for reopening, therefore, are claims of ineffective assistance of appellate counsel.

Second, even assuming this Court could accept petitioner’s suggestion that an underlying constitutional claim could be preserved for review by being included in a Rule 26(B) application for reopening, the fact of the matter is that nowhere in his Rule 26(B) application for reopening did petitioner argue that his appellate attorneys were ineffective for failing to raise a claim challenging trial counsel’s failure to move for a mistrial after the jury was exposed, through a newspaper article, to evidence that was suppressed. That being so, petitioner did not even preserve a claim of appellate counsel ineffectiveness for the failure to raise the claim set forth in ground one, sub-part (D).

Having determined that petitioner did not raise this claim in his Rule 26(B) application for reopening, the Court turns its focus to respondent’s arguments, first, that petitioner’s claim is barred by

res judicata

because it was raised in postcon-viction, and second, that petitioner’s claim is barred because petitioner failed to file an appellate brief to the state court of appeals during his postconviction appeal. In determining whether

res judicata

applies, the Court focuses its inquiry on whether the claim relies on non-record evidence that supports the claim in a manner that no record evidence could. Petitioner raised this claim of trial counsel ineffectiveness as his third claim for relief in his postconviction action. He supported the claim with a photocopy of the April 7, 1997 newspaper article setting forth alleged statements by petitioner that had been suppressed, as well as affidavits by petitioner’s brother-in-law, sister, and maternal aunt detailing their efforts to persuade defense counsel to question jurors about whether they had seen the article. (App. Vol. IV, at 108-121, Postconviction Exhibits M, N, O, and P). These materials were not part of the trial record, and, technically speaking, there was no substantial evidence on the trial record from which petitioner’s appellate counsel could have argued on appeal that the failure of trial counsel to probe jurors about whether they had seen or heard about the April 7, 1997 newspaper article might have prejudiced petitioner. Thus, petitioner’s claim technically relied on and was supported by evidence outside the record. Moreover, the trial court, in rejecting petitioner’s claim, clearly addressed and rejected it on the merits. (App. Vol. V, at 292-93). Under these circumstances, the Court is inclined to conclude that petitioner was not required under Ohio’s doctrine of

res judi-cata

to raise this claim on direct appeal, and that petitioner did not violate the state rule by raising the claim in his post-conviction action. The Court is also inclined to conclude, under the second part

*900

of the

Maupin

test, that the state trial court did not clearly and expressly enforce the

res judicata

rule against petitioner’s claim.

The Court need not resolve this issue, however, because petitioner subsequently defaulted this claim when he failed to prosecute an appeal to the state court of appeals following the trial court’s decision denying his postconviction action.

As discussed in more detail

supra

in Section II.(C)(2) of this Opinion and Order, after being granted several extensions of time, as well as leave to file a brief in excess of twenty pages, petitioner’s post-conviction counsel, John J. Gideon, apparently failed to file his appellate brief, or a request for an extension of time, within the time permitted by the appellate court. Ultimately, on January 10, 2002, the appellate court dismissed petitioner’s appeal with prejudice. (App. Vol. VII, at 53).

Turning to the first part of the

Maupin

test — whether petitioner violated a state procedural rule — Ohio law could not be more clear that postconviction actions, even in death penalty cases and other felony cases, are civil in nature and must be appealed in accordance with the Ohio Rules of Appellate Procedure.

State v. Nichols,

11 Ohio St.3d 40 , 463 N.E.2d 375 , paragraphs one and two of the syllabus, 11 Ohio St.3d 40 , 463 N.E.2d 375 (1984). As discussed more fully

supra

in Section IV(B)(l)(a), when petitioner failed to file his appellate brief in accordance with the appellate court’s scheduling order and as permitted by numerous extensions of time, he failed to prosecute an appeal in violation of the Ohio Rules of Appellate Procedure and

State v. Nichols.

Thus, the first part of the

Maupin

test has been met.

The second part of the

Maupin

test requires the Court to determine whether the state courts actually enforced the state procedural rule. In the instant case, the state court of appeals clearly and expressly dismissed petitioner’s appeal in his post-conviction proceedings on the ground that petitioner failed to file a brief. (App. Vol. VII, at 53). Thus, the second part of the

Maupin

test has been met.

The Court further finds that the third part of the

Maupin

test has been satisfied. As the Court discussed in more detail

supra

in Section IV(B)(l)(c), the rule established by

State v. Nichols

as to appeals in postconviction proceedings and the Ohio Rules of Appellate Procedure are stated in unmistakable language, are consistently enforced, and, together, serve the state’s interests in finality and judicial economy by ensuring that postconviction appeals are adjudicated in a timely and orderly fashion. Moreover, they do not rely on or otherwise implicate federal law. Further, petitioner’s argument that Ohio’s postcon-viction process is an inadequate state remedy has been considered and rejected by the Court of Appeals for the Sixth Circuit. Finally, as discussed more fully

supra

in Section IV(B)(l)(c), the Court rejects petitioner’s argument that the state disavowed or waived this procedural default. Thus, the third part of the

Maupin

test has been satisfied.

Once the Court determines that a claim is subject to procedural default and that the procedural default is an adequate and independent state ground upon which to deny relief, it is incumbent upon petitioner to demonstrate “cause” sufficient to excuse the procedural default. To that end, petitioner offers ineffective assistance of post-conviction counsel. Specifically, petitioner argues that he had an Eighth Amendment and a due process right to the effective assistance of counsel in his state postcon-viction proceedings and that the failure of attorney John J. Gideon to file an appellate brief violated this right in contravention of

Evitts v. Lucey,

469 U.S. 387 , 105 S.Ct. 830 , 83 L.Ed.2d 821 (1985). The

*901

Court considered this argument in great detail in Section IV(B)(l)(d),

supra,

and concluded that there is no constitutional right to effective assistance of counsel during state collateral proceedings,

Pennsylvania v. Finley, supra,

and

Murray v. Giarratano, supra,

and that ineffective assistance of counsel cannot be asserted as “cause” to excuse a procedural default committed during a state collateral proceeding,

Coleman v. Thompson, supra.

In the absence of authority holding that there is a constitutional right to effective assistance of counsel in state postconviction proceedings, whether under the Eighth Amendment or as a matter of due process, this Court, however sympathetic it might be, cannot excuse the procedural default that occurred when petitioner’s counsel failed to file an appellate brief resulting in the with-prejudice dismissal of his state postconviction appeal. Accordingly, petitioner has failed to demonstrate cause and prejudice sufficient to excuse the default of ground one, sub-part (D).

Petitioner also argues that any default of ground one, sub-part (D) should be excused under the “actual innocence” exception to procedural default. (Doc.# 34, at 59). For reasons discussed more fully in Section IV(C)(3), the Court will defer consideration of petitioner’s “gateway” actual innocence claim until it considers petitioner’s “free-standing” actual innocence claim set forth in his second ground for relief.

Petitioner also argues that this Court should ignore any default of ground one, sub-part (D) to avoid a miscarriage of justice. (Doc.# 34, at 59). As this Court concluded in Section IV(C)(4), there is no “miscarriage of justice” exception to procedural default beyond the “actual innocence” exception noted above. That being so, petitioner’s argument in this regard must be rejected.

For the foregoing reasons, the Court concludes that ground one, sub-part (D) is procedurally defaulted and that petitioner has failed to demonstrate cause and prejudice to excuse the default. The Court will defer consideration of petitioner’s argument that he can satisfy the “actual innocence” exception to procedural default until after the parties submit their merit briefs and the Court considers petitioner’s free-standing claim of actual innocence. For that reason, respondent’s motion to dismiss ground one, sub-part (D) as procedurally defaulted is GRANTED, subject to reconsideration once the Court addresses the claim of actual innocence set forth in petitioner’s second ground for relief.

E.

Ground One, Sub-Part (E)

— Ineffec

tive Assistance For Failing To Challenge Improper Jury Instructions.

In ground one, sub-part (E), petitioner argues that his trial attorneys were ineffective for failing to object to certain jury instructions. (Petition, Doc.# 14, at ¶¶ 260-267). Petitioner identified those jury instructions to which trial counsel failed to object both by listing them within this ground for relief and by incorporating by reference his fourth (¶¶ 387-429), fifth (¶¶ 430-456), and eighth grounds for relief (¶¶ 519-534). (Petition, Doc.# 14, at ¶ 260). Specifically, petitioner argues that his trial attorneys were ineffective for failing to object to the trial court’s instructions: on reasonable doubt during the trial phase; that purpose could be presumed because a homicide had occurred; on both the principal offender and aider/abettor components of the aggravating circumstance, instead of one or the other; and telling jurors to acquit petitioner of capital murder before considering the life options — an “acquittal first” instruction or an instruction improperly telling jurors to be unanimous in rejecting capital murder before considering the life sentence options. (Petition, Doc.# 14, at ¶¶ 260-267). Respondent raises no procedural default ar

*902

guments against these components of ground one, sub-part (E).

Petitioner also asserts in his petition that he argued in ground four, sub-part (2)(C), that trial counsel should have objected to a reasonable doubt instruction during the mitigation phase that had the effect of creating a mandatory death penalty. (Doc.# 14, at ¶ 263). However, a review of ground four, sub-part (2)(C) reveals no such argument in the petition. (Doc.# 14, at ¶¶ 415^127). Although no such claim appears in the petition, respondent argues that this component of petitioner’s claim, which respondent confusingly designated as ground one, sub-part (L), is procedurally defaulted because it was never presented to the state courts. (Doc. # 23, at 6). In arguing that this particular claim is defaulted, respondent generally references the reasonable doubt instruction without distinguishing between the instruction given during the trial phase and the instruction given during the mitigation phase. Regardless, any claim challenging trial counsel’s ineffectiveness for failing to object to the mitigation-phase instruction on reasonable doubt appears to be procedurally defaulted.

Petitioner offers no arguments in response because, according to petitioner in his Opposition, respondent conceded that ground one, sub-part (E) was not procedurally defaulted. (Doc.# 34, at 59). Petitioner is not entirely correct. As noted above, respondent raised a procedural default defense against one component of ground one, sub-part (E)—that trial counsel were ineffective for failing to object to the trial court’s reasonable doubt instruction. (Doc.# 23, at 6; Doc.# 35, at 8). According to respondent, that particular trial counsel ineffectiveness claim was never presented to the state courts. Respondent is correct. This claim is procedurally defaulted because it was never presented to the state courts and now, no longer can be.

This Court reviewed petitioner’s appellate brief to the Supreme Court of Ohio on direct appeal, petitioner’s Rule 26(B)

“Mumahan”

application to reopen his direct appeal, and petitioner’s postconviction action. Nowhere did petitioner present an allegation that his trial attorneys were ineffective for failing to object to the trial court’s mitigation-phase instruction on reasonable doubt as allegedly creating a mandatory death penalty.

Turning to the

Mcmpin

test, as noted above, claims appearing on the face of the record must be raised on direct appeal, or they will be waived under Ohio’s doctrine of

res judicata. See State v. Perry, supra.

This applies to claims of ineffective assistance of trial counsel, so long as petitioner is represented by different counsel on direct appeal.

State v. Cole, supra.

A claim challenging trial counsel’s failure to object to a mitigation-phase jury instruction is, in this Court’s view, capable of being resolved without resort to evidence

dehors

the trial record. That being so, petitioner violated Ohio’s

res judicata

rule when he failed to raise on a direct appeal a claim challenging trial counsel’s ineffectiveness for failing to object to the trial court’s mitigation-phase jury instruction on reasonable doubt.

Because the state courts were never given the opportunity to enforce the procedural default, due to petitioner’s failure to raise this claim anywhere, the Court deems the second part of the

Maupin

test to have been met. Further, the Court has already determined that Ohio’s

res judica-ta

rule is an adequate and independent state ground upon which to deny relief. Due to his erroneous conclusion that respondent raised no procedural default arguments against ground one, sub-part (E), petitioner offered no arguments that the default identified above should be excused

*903

under either the “cause and prejudice” or “actual innocence” exceptions. Accordingly, the Court concludes that ground one, sub-part (E) is proeedurally defaulted

only

as to petitioner’s claim that his trial attorneys were ineffective for failing to object to the trial court’s mitigation-phase instruction on reasonable doubt. Respondent’s motion to dismiss ground one, sub-part (E), which respondent designated as ground one, sub-part (L), is GRANTED only to the extent specified above.

F.

Ground One, Sub-Part (F)-

— Ineffec

tive Assistance For Failing To Object To Prosecutorial Misconduct.

In ground one, sub-part (F), petitioner argues that trial counsel were ineffective for failing to object to numerous instances of alleged prosecutorial misconduct. (Petition, Doc.# 14, at ¶¶ 268-280). Petitioner identified those instances of prosecutorial misconduct to which trial counsel failed to object both by listing them within this ground for relief and by incorporating by reference to his ninth and tenth grounds for relief. (Petition, Doc.# 14, at ¶ 268).

Respondent argues that just two of those trial counsel ineffectiveness claims are proeedurally defaulted because they were never presented to the state courts. According to respondent, petitioner’s claim that his trial attorneys were ineffective for failing to object to the prosecutor’s mis-eharacterization of Barbara Sears’ testimony is proeedurally defaulted because it was never raised. Respondent designates this claim as ground one, sub-part (M). (Doc. # 23, at 6). It is actually paragraph 269 of ground one, sub-part (F) in the habeas corpus petition.

(See also

Petition, Doc. # 14, at ¶¶ 556-561). Also according to respondent, petitioner’s claim that his trial attorneys were ineffective for failing to object to the prosecutor’s arguments regarding the public policy supporting the sole aggravating circumstance and comments minimizing petitioner’s mitigation evidence is proeedurally defaulted because it was never raised. Respondent designated this claim as ground one, sub-part (Q). (Doc.# 23, at 6). It is actually paragraph 271 of ground one, sub-part (F) in the habeas corpus petition.

(See also

Petition, Doc.# 14, at ¶¶ 567-592). The Court will refer to them as they were designated in the petition.

Petitioner offers a number of arguments in response. (Doc.# 34, at 59-60). First, petitioner argues that the claims of trial counsel’s ineffectiveness for failing to object to the two instances of prosecutorial misconduct set forth above were presented to the state courts as Proposition of Law Number II in his Rule 26(B)

“Mumahan”

application to reopen his direct appeal. Petitioner also notes that the prosecutorial misconduct claims themselves, as opposed to the claims of trial counsel ineffectiveness for the failing to object to those instances of prosecutorial misconduct, were presented to the Supreme Court of Ohio on direct appeal in Proposition of Law No. XI(1). Petitioner goes on to argue that, assuming these claims are found to be proeedurally defaulted, ineffective assistance of postconviction counsel constitutes cause and prejudice to excuse the default. Finally, petitioner argues that any procedural default should be excused under the “actual innocence” exception and/or the “miscarriage of justice” exception. Petitioner’s arguments fall short.

It is important, at this point, to stay focused on the precise claims that are at issue — namely, ineffective assistance of trial counsel for failing to object to the prosecutors’ alleged misrepresentation of Barbara Sears’ testimony and the prosecutors’ alleged improper arguments regarding the public policy behind the sole aggravating circumstance and diminishing the mitigation evidence presented by petitioner.

*904

Not at issue are the prosecutorial misconduct claims themselves. For this reason, petitioner’s remark that he presented the underlying prosecutorial misconduct claims to the Supreme Court of Ohio on direct appeal, (Doc.# 34, at 60, n. 23), is immaterial. The Court now turns its attention to petitioner’s assertion that he presented the trial counsel ineffectiveness claims at issue to the state courts in his Rule 26(B)

“Mur-nahan”

application for reopening.

In the second proposition of law in his Rule 26(B) application for reopening, petitioner argued that his appellate counsel were ineffective for failing to raise on direct appeal trial counsel’s ineffectiveness in not objecting to the prosecutors’ alleged misrepresentation of Barbara Sears’ testimony or the prosecutors’ alleged improper arguments regarding the public policy behind the sole aggravating circumstance and diminishing the mitigation evidence presented by petitioner. (App. Vol. Ill, at 186). However, as the Court discussed more fully

supra

in section IV.(D), under Ohio law, an application for reopening pursuant to App. R. 26(B), or a

“Mumahan”

motion, is a procedural mechanism for raising claims of appellate counsel ineffectiveness, not for bootstrapping underlying constitutional claims that were omitted from the direct appeal in the first place. The only claims that can be preserved in a Rule 26(B) application for reopening, therefore, are claims of ineffective assistance of appellate counsel. Thus, all that was preserved in petitioner’s Rule 26(B) application were claims of appellate counsel ineffectiveness for the failure to raise the two distinct trial counsel ineffectiveness claims set forth in ground one, sub-part (F) that are alleged to be defaulted.

Having found that petitioner did not preserve these trial counsel ineffectiveness claims on direct appeal or in his Rule 26(B) application for reopening, the Court turns its attention to the

Maupin

test. As noted above, claims appearing on the face of the record must be raised on direct appeal, or they will be waived under Ohio’s doctrine of

res judicata. See State v. Perry, supra.

Claims which do not appear on the face of the record are properly raised in a post-conviction action pursuant to Ohio Rev. Code § 2953.21. A claim challenging defense counsel’s failure to object to on-the-record instances of prosecutorial misconduct, by its very nature, appears on the face of the record. Thus, petitioner violated Ohio’s.

res judicata

doctrine when he failed to raise these trial counsel ineffectiveness claims on direct appeal.

The Court deems the second part of the

Maupin

test to have been met because petitioner failed to present these trial counsel ineffectiveness claims to the state courts in a manner that allowed the state courts to enforce the

res judicata

rule. The only place that petitioner presented these claims of trial counsel ineffectiveness to the state courts was in his Rule 26(B) application for reopening. As discussed above, a Rule 26(B) application for reopening is the procedure in Ohio for raising claims of appellate counsel ineffectiveness. Thus, when the Supreme Court of Ohio considered petitioner’s Rule 26(B) application for reopening, the only issues properly before it, and, therefore, the only issues it considered and rejected, were petitioner’s claims of appellate counsel ineffectiveness. The Supreme Court of Ohio was never given the opportunity, in considering petitioner’s Rule 26(B) application for reopening, to hold that petitioner had violated Ohio’s

res judicata

rule by failing to raise on direct appeal the two claims of trial counsel ineffectiveness at issue herein. Thus, the Court deems the second part of the

Maupin

test — whether the state courts actually enforced the procedural rule, to have been met.

*905

The Court has already determined that Ohio’s

res judicata

rule is an adequate and independent state ground upon which to deny relief. Thus, the third part of the

Maupin

test has been satisfied.

Once the Court determines that a claim is subject to procedural default and that the procedural default is an adequate and independent state ground upon which to deny relief, it is incumbent upon petitioner to demonstrate “cause” sufficient to excuse the procedural default. To that end, petitioner appears to offer ineffective assistance of postconviction counsel as “cause” to excuse the default. (Doc.# 34, at 60 (incorporating by reference arguments set forth at 42-43)). To the extent that petitioner is offering ineffective assistance of postconviction counsel as cause, his argument is not well taken. First, the Court already determined in section rV.(B)(l)(d),

supra,

that there is no constitutional right to effective assistance of postconviction counsel and, therefore, no way that petitioner can assert ineffective assistance of postconviction counsel as cause to excuse procedural default. Further, and perhaps more to the point, an allegation of ineffective assistance of postconviction counsel cannot logically serve as cause to excuse a procedural default that occurred on direct appeal.

To the extent that petitioner is offering ineffective assistance of appellate counsel as cause, his argument is without merit. Petitioner presented this claim of appellate counsel ineffectiveness to the Supreme Court of Ohio in his Rule 26(B)

“Muma-han”

application to reopen his direct appeal. The Supreme Court of Ohio issued a one-line summary dismissal of the application on its merits. Considering the two-part test for ineffective assistance of counsel set forth in

Strickland v. Washington,

466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), as well as the factors for considering a claim of ineffective assistance of appellate counsel set forth by the Sixth Circuit in

Mapes v. Coyle,

171 F.3d 408, 427-28 (6th Cir.1999), the Court cannot find that the Supreme Court of Ohio’s decision was contrary to clearly established Supreme Court precedent, or that this Court would have reached a different result in the Supreme Court of Ohio’s place. The trial counsel ineffectiveness claims at issue,

ie.,

in failing to object to two distinct allegations of prosecutorial misconduct, were not obviously and significantly stronger than the issues that were raised on petitioner’s direct appeal. Put simply, considering those claims against the claims that were raised, and, when viewing the record as a whole, it tests the limits of credulity to suggest that, had appellate counsel raised the trial counsel ineffectiveness claims at issue herein, there is a reasonable probability that the outcome of petitioner’s direct appeal would have been different. This Court’s conclusion is bolstered by the fact that the Supreme Court of Ohio, in reviewing the alleged instances of prosecutorial misconduct on direct appeal for plain error, concluded after a thorough review of the record that none of the instances of prosecutorial misconduct alleged by petitioner, singularly or taken together, amounted to plain error. (App. Vol. Ill, at 153-54).

Where alleged attorney error falls short of an independent constitutional violation, it cannot suffice as cause to excuse a procedural default.

Murray v. Carrier,

477 U.S. 478, 486-88 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986)(“[T]he 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 a procedural default.”). For these reasons, petitioner has failed to demonstrate that appellate counsel ineffectiveness constitutes cause and prejudice to excuse the default of ground one, sub-part (F), paragraphs 271 and 269.

*906

Beyond the cause-and-prejudice test, petitioner argues that the default of these two trial counsel ineffectiveness claims should be excused under the “actual innocence” exception or to avoid a “miscarriage of justice.” For reasons discussed more fully in Section IV(C)(3), the Court will defer consideration of petitioner’s “gateway” actual innocence claim until it considers petitioner’s “free-standing” actual innocence claim set forth in his second ground for relief. Further, as this Court concluded in Section IV(C)(4), there is no “miscarriage of justice” exception to procedural default beyond the “actual innocence” exception noted above. That being so, petitioner’s argument in this regard must be rejected.

For the foregoing reasons, the Court concludes that ground one, sub-part (F), paragraphs 269 and 271, is procedurally defaulted and that petitioner has failed to demonstrate cause and prejudice to excuse the default. The Court will defer consideration of petitioner’s argument that he can satisfy the “actual innocence” exception to procedural default until after the parties submit their merit briefs and the Court considers petitioner’s free-standing claim of actual innocence. For that reason, respondent’s motion to dismiss ground one, sub-part (F), paragraphs 269 and 271, as procedurally defaulted is GRANTED, subject to reconsideration once the Court addresses the claim of actual innocence set forth in petitioner’s second ground for relief.

G.

Ground One, Sub-Part (G)

— Ineffec

tive Assistance For Failing To Object To Admission Of Evidence.

Petitioner argues in ground one, sub-part (G) that his trial attorneys were ineffective for failing to object to the admission

of

certain evidence. (Petition, Doc. #14, at ¶¶ 281-283, 483-518). Of relevance to the instant discussion is petitioner’s argument that his defense attorneys failed to object to the admission of a videotape of the crime scene created by a corrections officer, which videotape purported to recreate the path of escape attempted by the victim and portrayed, graphically, the victim laying prone where he died.

(Id.

at paragraphs 485-494).

Respondent argues that only this aspect of petitioner’s trial counsel ineffectiveness claim is subject to procedural default. Specifically, respondent argues that this particular claim of trial counsel ineffectiveness — failure to object to the admission and replaying of the crime scene videotape — is procedurally defaulted because it was never presented to the state courts. (Doc.# 23, at 6). The Court hastens to clarify once again that respondent misidentified this claim in his motion to dismiss as ground one, sub-part (V). In the petition, this claim clearly is designated as ground one, sub-part (G), and the Court will address it as such.

Petitioner raises a number of arguments in urging the Court to reject respondent’s procedural default defense. (Doc.# 34, at 61-62). First, petitioner argues that the claim of trial counsel’s ineffectiveness for failing to object to the admission of the videotape was presented to the state courts as Proposition of Law Number III in his Rule 26(B)

“Mumahan”

application to reopen his direct appeal. Petitioner also notes that the claim challenging the trial court’s admission of the videotape, as opposed to the claim of trial counsel ineffectiveness for the failing to object to the admission of the videotape, was presented to the Supreme Court of Ohio on direct appeal in Proposition of Law No. XIV. Petitioner goes on to argue that, assuming these claims are found to be procedurally defaulted, ineffective assistance of postcon-viction counsel constitutes cause and prejudice to excuse the default. Finally, petitioner argues that any procedural default

*907

should be excused under the “actual innocence” exception and/or the “miscarriage of justice” exception. Petitioner’s arguments fall short.

It is important, at this point, to stay focused on the precise claim that is at issue — namely, ineffective assistance of trial counsel for failing to object to the admission and replaying of the crime scene videotape. Not at issue is a claim challenging the trial court’s admission of the videotape. For this reason, petitioner’s remark that he presented the underlying claim challenging the admission of the videotape to the Supreme Court of Ohio on direct appeal, (Doc.# 34, at 61, n. 25), is immaterial. The Court now turns its attention to petitioner’s assertion that he presented the trial counsel ineffectiveness claim at issue to the state courts in his Rule 26(B)

“Mumahan”

application for reopening.

In the third proposition of law in his Rule 26(B) application for reopening, petitioner argued that his appellate counsel were ineffective for failing to raise on direct appeal trial counsel’s ineffectiveness in not objecting to the admission and replaying of the crime scene videotape. (App. Vol. Ill, at 186). However, as the Court discussed more fully

swpra

in section IV.(D), under Ohio law, an application for reopening pursuant to App. R. 26(B), or a

“Mumahan”

motion, is a procedural mechanism for raising claims of appellate counsel ineffectiveness, not for bootstrapping underlying constitutional claims that were omitted from the direct appeal in the first place. The only claims that can be preserved in a Rule 26(B) application for reopening, therefore, are claims of ineffective assistance of appellate counsel. Thus, all that was preserved in petitioner’s Rule 26(B) application was a claim of appellate counsel ineffectiveness for the failure to raise the trial counsel ineffectiveness claim set forth in ground one, sub-part (G), paragraphs 485^494.

Having found that petitioner did not preserve this trial counsel ineffectiveness claim on direct appeal or in his Rule 26(B) application for reopening, the Court turns its attention to the

Maupin

test. As noted above, claims appearing on the face of the record must be raised on direct appeal, or they will be waived under Ohio’s doctrine of

res judicata. See State v. Perry, supra.

Claims which do not appear on the face of the record are properly raised in a post-conviction action pursuant to Ohio Rev. Code § 2953.21. A claim challenging defense counsel’s failure to object to the admission of evidence, by its very nature, appears on the face of the record. Thus, petitioner violated Ohio’s

res judicata

doctrine when he failed to raise this trial counsel ineffectiveness claim on direct apr peal.

The Court deems the second part of the

Maupin

test to have been met because petitioner failed to present these trial counsel ineffectiveness claims to the state courts in a manner that allowed the state courts to enforce the

res judicata

rule. The only place that petitioner presented this claim of trial counsel ineffectiveness to the state courts was in his Rule 26(B) application for reopening. As discussed above, a Rule 26(B) application for reopening is the procedure in Ohio for raising claims of appellate counsel ineffectiveness. Thus, when the Supreme Court of Ohio considered petitioner’s Rule 26(B) application for reopening, the only issues properly before it, and, therefore, the only issues it considered and rejected, were petitioner’s claims of appellate counsel ineffectiveness. The Supreme Court of Ohio was never given the opportunity, in considering petitioner’s Rule 26(B) application for reopening, to hold that petitioner had violated Ohio’s

res judicata

rule by failing to raise

*908

on direct appeal the claim of trial counsel ineffectiveness at issue herein. Thus, the Court deems the second part of the

Mau-pin

test—whether the state courts actually enforced the procedural rule, to have been met.

The Court has already determined that Ohio’s

res judicata

rule is an adequate and independent state ground upon which to deny relief. Thus, the third part of the

Maupin

test has been satisfied.

Once the Court determines that a claim is subject to procedural default and that the procedural default is an adequate and independent state ground upon which to deny relief, it is incumbent upon petitioner to demonstrate “cause” sufficient to excuse the procedural default. To that end, petitioner appears to offer ineffective assistance of postconviction counsel as “cause” to excuse the default. (Doc.# 34, at 61 (incorporating by reference arguments set forth at 42-43)). To the extent that petitioner is offering ineffective assistance of postconviction counsel as cause, his argument is not well taken. First, the Court already determined in section IV.(B)(l)(d),

supra,

that there is no constitutional right to effective assistance of postconviction counsel and, therefore, no way that petitioner can assert ineffective assistance of postconviction counsel as cause to excuse procedural default. Further, and perhaps more to the point, an allegation of ineffective assistance of postconviction counsel cannot logically serve as cause to excuse a procedural default that occurred on direct appeal.

To the extent that petitioner is offering ineffective assistance of appellate counsel as cause, his argument is without merit. Petitioner presented this claim of appellate counsel ineffectiveness to the Supreme Court of Ohio in his Rule 26(B)

“Muma-han”

application to reopen his direct appeal. The Supreme Court of Ohio issued a one-line summary dismissal of the application on its merits. Considering the two-part test for ineffective assistance of counsel set forth in

Strickland v. Washington,

466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), as well as the factors for considering a claim of ineffective assistance of appellate counsel set forth by the Sixth Circuit in

Mopes v. Coyle,

171 F.3d 408, 427-28 (6th Cir.1999), the Court cannot find that the Supreme Court of Ohio’s decision was contrary to clearly established Supreme Court precedent, or that this Court would have reached a different result in the Supreme Court of Ohio’s place. The trial counsel ineffectiveness claim at issue,

ie.,

failing to object to admission and replaying of the crime scene videotape, was not obviously and significantly stronger than the issues that were raised on petitioner’s direct appeal. Put simply, considering that claim against the claims that were raised, and, when viewing the record as a whole, the Court simply is not persuaded that, had appellate counsel raised the trial counsel ineffectiveness claim at issue herein, there is a reasonable probability that the outcome of petitioner’s direct appeal would have been different. This Court’s conclusion is bolstered by the fact that the Supreme Court of Ohio, in reviewing petitioner’s claim challenging the trial court’s admission of the videotape, concluded that there was no error. (App. Vol. Ill, at 154-55).

Where alleged attorney error falls short of an independent constitutional violation, it cannot suffice as cause to excuse a procedural default.

Murray v. Carrier,

477 U.S. 478, 486-88 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986)(“[T]he 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 a procedural default.”). For these reasons, petitioner has failed to demonstrate that appellate counsel ineffec

*909

tiveness constitutes cause and prejudice to excuse the default of ground one, sub-part (G), paragraphs 485-494.

Beyond the cause-and-prejudice test, petitioner argues that the default of these two trial counsel ineffectiveness claims should be excused under the “actual innocence” exception or to avoid a “miscarriage of justice.” For reasons discussed more fully in Section IV(C)(3), the Court will defer consideration of petitioner’s “gateway” actual innocence claim until it considers petitioner’s “free-standing” actual innocence claim set forth in his second ground for relief. Further, as this Court concluded in Section IV(C)(4), there is no “miscarriage of justice” exception to procedural default beyond the “actual innocence” exception noted above. That being so, petitioner’s argument in this regard must be rejected.

For the foregoing reasons, the Court concludes that ground one, sub-part (G), paragraphs 485-494, is procedurally defaulted and that petitioner has failed to demonstrate cause and prejudice to excuse the default. The Court will defer consideration of petitioner’s argument that he can satisfy the “actual innocence” exception to procedural default until after the parties submit their merit briefs and the Court considers petitioner’s free-standing claim of actual innocence. For that reason, respondent’s motion to dismiss ground one, sub-part (G), paragraphs 485-494, as procedurally defaulted is GRANTED, subject to reconsideration once the Court addresses the claim of actual innocence set forth in petitioner’s second ground for relief.

H.

Ground One, Sub-Part (H)—Ineffective Assistance For Failing To Present Testimony of Petitioner Stojetz.

In ground one, sub-part (H), petitioner argues that his trial attorneys were ineffective for failing to put him on the stand to testify. (Petition, Doc.# 14, at 282-286; 836-862).

Respondent, misidentifying this claim as ground one, sub-part (S), argues in his motion to dismiss that petitioner’s claim is procedurally defaulted because it was never presented to the state courts. (Doc. # 23, at 6).

Petitioner argues in response that he did present this claim to the state courts as the eighth claim for relief in his postcon-viction petition, and that the state trial court not only addressed the claim on the merits, but did so after conducting a full evidentiary hearing. (Doc.# 34, at 62). Petitioner’s argument in this regard is well taken. A review of petitioner’s fourth amendment to his postconviction action clearly reveals that he raised this precise claim in his postconviction action. (App. Vol. IV, at 310). Thus, respondent’s argument that ground one, sub-part (H) is procedurally defaulted because it was never presented to the state courts clearly fails. But the inquiry does not end here.

In his Opposition, petitioner argues that the fact that his postconviction counsel subsequently failed to prosecute an appeal to the state court of appeals following the trial court’s decision denying his postcon-viction action does not constitute a procedural default in this instance because respondent did not raise that argument against this claim in his motion to dismiss. (Doc.# 34, at 62). The only procedural default defense raised by respondent against this claim, as noted above, was that the claim had never been presented to the state courts. And, as noted above, that argument is belied by the record. Petitioner goes on to argue that, in the event the Court elects to enforce the procedural default that respondent failed to assert— petitioner’s failure to file an appellate brief to the state court of appeals during post-conviction—that procedural default should

*910

not be enforced because the state waived the defense during those state postconviction proceedings, because Ohio’s postcon-viction process is an inadequate remedy, because ineffective assistance of postcon-viction counsel renders the procedural default inadequate, because petitioner can demonstrate cause and prejudice to excuse the default—ineffective assistance of post-conviction counsel—because petitioner can demonstrate the “actual innocence” exception to procedural default, and/or because enforcement of the procedural default would be a miscarriage of justice. (Doc. # 34, at 63-64). All of petitioner’s arguments fall short.

It is true that, as a general rule, procedural default is an affirmative defense that must be raised by the state at the first possible opportunity, or it will be waived.

Trest v. Cain, 522

U.S. 87, 89, 118 S.Ct. 478 , 139 L.Ed.2d 444 (1997)(holding that state’s failure to raise procedural default normally constitutes waiver of the default);

Gray v. Netherlands

518 U.S. 152, 166 , 116 S.Ct. 2074 , 135 L.Ed.2d 457 (1996)(holding that procedural default is normally an affirmative defense that will be waived if not raised). While federal courts are not required to raise procedural default

sua sponte, Trest v. Cain, supra,

522 U.S. at 89 , 118 S.Ct. 478 , neither are they precluded from raising or recognizing a procedural default that was not expressly raised by the state. That is especially true where, as here, petitioner has been given the opportunity to respond to the procedural default.

Howard v. Bouchard,

405 F.3d 459, 476 (6th Cir.2005),

r’hng and r’hng en banc denied

July 6, 2005, citing

Lorraine v. Coyle,

291 F.3d 416, 426 (6th Cir.2002);

Elzy v. United States,

205 F.3d 882, 886 (6th Cir.2000).

The procedural default stemming from the failure of petitioner’s postconviction counsel to file an appellate brief to the state court of appeals, even if not initially raised by respondent with respect to this particular claim of trial counsel ineffectiveness, has been exhaustively briefed by the parties and thoroughly considered by this Court. Thus, petitioner was on notice that any claim raised in his postconviction action would be subject to this particular procedural default and, when petitioner argued in his opposition that he had, in fact, raised the instant claim of trial counsel ineffectiveness in his postconviction petition, he surely was aware that the claim would be subject to the procedural default stemming from the failure of his postcon-"viction counsel to prosecute his appeal. Respondent raised this procedural default argument in his reply to petitioner’s opposition, and petitioner, obviously anticipating that respondent would do so, offered numerous arguments in response as to why this Court should not enforce the default. Thus, in the interests of common sense and because it will not unfairly prejudice petitioner, the Court will recognize the procedural default stemming from the failure of petitioner’s postconviction counsel to file an appellate brief, even though respondent did not initially raise that procedural default argument in his motion to dismiss.

Turning to the first part of the

Maupin

test, the Court finds, for reasons discussed more fully

supra

in section IV(B)(1), that when petitioner failed during his postcon-viction appeal to file his appellate brief in accordance with the appellate court’s scheduling order and as permitted by numerous extensions of time, he failed to prosecute an appeal in violation of the Ohio Rules of Appellate Procedure and

State v. Nichols.

Further, the state court of appeals clearly and expressly dismissed petitioner’s appeal in his postconviction proceedings on the ground that petitioner failed to file a brief. (App. Vol. VII, at 53). Thus, the second part of the

Maupin

test has been met.

*911

The third part of the

Maupin

test requires the Court to determine whether the state procedural rule at issue is an adequate and independent ground upon which to deny habeas corpus review. The Court has determined that it is. Petitioner argues that the default at issue fails the adequate and independent requirement because the State waived reliance on the default when the prosecutor declined to oppose petitioner’s motion asking the state court of appeals to reopen his postconviction appeal and because Ohio’s postconviction remedy is inadequate. The Court, after careful consideration, has already rejected those arguments in Section IV(B)(l)(c).

To the extent that petitioner offers ineffective assistance of postconviction counsel as cause and prejudice to excuse the default, this Court determined in section IV(B)(l)(d) that there is no right to effective assistance of postconviction counsel and that, as a result, ineffective assistance of postconviction counsel cannot constitute cause and prejudice to excuse a procedural default.

Finally, petitioner argues that the procedural default should be excused under either the “actual innocence” exception or to avoid a “miscarriage of justice.” For reasons discussed more fully in Section IV(C)(3), the Court will defer consideration of petitioner’s “gateway” actual innocence claim until it considers petitioner’s “freestanding” actual innocence claim set forth in his second ground for relief. Further, as this Court concluded in Section IV(C)(4), there is no “miscarriage of justice” exception to procedural default beyond the “actual innocence” exception noted above.

For the foregoing reasons, the Court concludes that ground one, sub-part (H) is procedurally defaulted and that petitioner has failed to demonstrate cause and prejudice to excuse the default. The Court will defer consideration of petitioner’s argument that he can satisfy the “actual innocence” exception to procedural default until after the parties submit their merit briefs and the Court considers petitioner’s free-standing claim of actual innocence. For that reason, respondent’s motion to dismiss ground one, sub-part (H) as procedurally defaulted is GRANTED, subject to reconsideration once the Court addresses the claim of actual innocence set forth in petitioner’s second ground for relief.

1.(1)

Ground One, Sub-Part (I)(l)—Ineffective Assistance For Failing To Properly Prepare, Investigate, And Present Mitigation Evidence.

In ground one, sub-part (1), petitioner argues that his trial attorneys were ineffective for failing to properly prepare, investigate, and present mitigation evidence. (Petition, Doc.# 14, at ¶¶ 287-311). Specifically, in ground one, sub-part (I)(l), petitioner argues that defense counsel failed to interview and present witnesses in support of their mitigation theory that the murder had stemmed not from racial animus, as asserted by the prosecution, but from petitioner’s emotional reaction to the victim’s earlier attack on inmate Doug Haggerty, the victim’s stated intention to kill petitioner, the fact that petitioner had been ordered by his Aryan Brotherhood leader to fight the victim, the fact that petitioner was suffering from post-traumatic stress disorder, and the culture of prison life.

{Id.

at ¶¶ 288-301).

Respondent, inexplicably identifying this claim as ground one, sub-part (C), argues in his motion to dismiss that this claim is procedurally defaulted because, to the extent it was raised in postconviction, petitioner failed to prosecute an appeal to the state appellate court. (Doc.# 23, at 20-21).

*912

Petitioner’s argument in response, though equally difficult to follow due to respondent’s misidentification of the claim, appears to be that the claim of trial counsel ineffectiveness for the failure to investigate and present mitigation evidence was raised on direct appeal as Proposition of Law No. 111(4-8). (Doc.# 34, at 64).

After carefully reviewing petitioner’s arguments in his appellate brief on direct appeal to the Supreme Court of Ohio, and indulging petitioner every benefit of the doubt, this Court is constrained to conclude that he did not present on direct appeal the arguments he raises in ground one, sub-part (I)(l). In his appellate brief to the Supreme Court of Ohio on direct appeal, petitioner argued that his trial counsel were ineffective for failing to investigate (though this discussion was confined to the inadequate cross examination of Walt Ashbridge), for presenting a confusing opening statement during the mitigation phase, for failing to develop and present evidence of petitioner’s post-traumatic stress disorder, and for failing to prepare Dr. Eimer more thoroughly. (App. Vol. II, at 121-128). These allegations, construed singularly or as a whole, simply are not the same as, or similar enough to, the arguments set forth in ground one, sub-part (I)(l) — that defense counsel failed to interview and present witnesses in support of their mitigation theory that the murder had stemmed not from racial animus, as asserted by the prosecution, but from petitioner’s emotional reaction to the victim’s earlier attack on inmate Doug Haggerty, the victim’s stated intention to kill petitioner, the fact that petitioner had been ordered by his Aryan Brotherhood leader to fight the victim, the fact that petitioner was suffering from post-traumatic stress disorder, and the culture of prison life. (Petition, Doe.# 14, at ¶¶ 288-301). That being so, the Court is constrained to reject petitioner’s assertion that the allegations set forth in ground one, sub-part (I)(l) were presented to the Supreme Court of Ohio on direct appeal.

Turning to the

Maupin

test, the Court finds that, to the extent that the failings of defense counsel in investigating and presenting mitigation evidence as set forth in ground one, sub-part (I)(l) appeared on the face of the trial record, petitioner violated Ohio’s

res judicata

rule by failing to raise those trial counsel ineffectiveness claims on direct appeal. The Court deems the second part of the

Maupin

test to have been met because the state courts were never given an opportunity to enforce the default, due to petitioner’s failure to present those claims to any state court. The Court has already determined that Ohio’s res

judicata

rule is adequate and independent, thereby satisfying the third part of the

Maupin

test.

To the extent that petitioner argues that this default should be excused either the cause and prejudice test, the “actual innocence” exception, or to avoid a “miscarriage of justice,” his arguments are not well taken. Petitioner cannot offer ineffective assistance of appellate counsel as cause for the default of these trial counsel ineffectiveness claims because he never presented that allegation of appellate counsel ineffectiveness to the state courts.

See Edwards v. Carpenter,

529 U.S. 446, 452-53 , 120 S.Ct. 1587 , 146 L.Ed.2d 518 (2000)(holding that an ineffective assistance of counsel claim offered as cause for the default of a substantive federal claim must first be properly presented to the state courts). Further, for reasons discussed more fully in Section IV(C)(3), the Court will defer consideration of petitioner’s “gateway” actual innocence claim until it considers petitioner’s “free-standing” actual innocence claim set forth in his second ground for relief. Finally, as this Court concluded in Section IV(C)(4), there is no “miscarriage of justice” exception to proce

*913

dural default beyond the “actual innocence” exception noted above.

To the extent that petitioner argues that the trial counsel ineffectiveness claims set forth in

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