# Henderson v. Collins

> District Court, S.D. Ohio · August 4, 1999 · 101 F. Supp. 2d 866

URL: https://www.frixlaw.com/law-library/cases/2510326

## Case

- **Full name:** Jerome HENDERSON, Petitioner, v. Terry COLLINS, Respondent
- **Court:** District Court, S.D. Ohio
- **Decided:** August 4, 1999
- **Citations:** 101 F. Supp. 2d 866; 1999 U.S. Dist. LEXIS 21947; 1999 WL 1953224
- **Precedential status:** Published
- **Opinion:** Opinion by Spiegel
- **Judges:** Spiegel
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated in part, on other grounds by Jerome Henderson, Petitioner-Appellee/cross-Appellant v. Terry L. Collins, Warden, Respondent-Appellant/cross-Appellee, 262 F.3d 615 (2001).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2510326

## How later opinions describe it (automated extraction)

- concluding that “neither the Murnahan decision nor Ohio App. R. 14(B) set an outer limit or absolute deadline that would have alerted Petitioner to a certain deadline for filing a Murnahan Application pursuant to the rule [announced in Murnahan ].”

## Opinion text

ORDER
SPIEGEL, Senior District Judge.
This matter is before the Court on Petitioner Jerome Henderson’s Petition for a Writ of Habeas Corpus (doc. 4); Respondent’s Return of Writ (doc. 12); and Petitioner’s Motion for Leave to File Traverse, Memorandum of Procedural Default, Motion to Expand the Record, and Motion to Compel Respondent to Complete the Record Instanter (doc. 77). The Court also takes into consideration Petitioner’s Post-Hearing Memorandum (doc. 94) and Respondent’s Post-Oral Argument Brief (doc. 97).
Table of Contents
I.Introduction.875
II. Factual Background.876
III. Standard of Review.878
IV. Applicability of the AEDPA..■.878
V. Analysis of Petitioner’s Claims.878
A. The Doctrine of Procedural Default .879
B. Petitioner’s Claim of Ineffective Assistance of Appellate Counsel.880
—Claims 13 & 27 .880
C. Other Claims Respondent Asserts Were Procedurally Defaulted .888
—Claim 2(A).880
—Claim 8.889
—Claim 10.890
—Claim 10(A).891
—Claim 10(B).892
—Claim 11.895
—Claim 12.896
*875
—Claim 14.896
—Claims 17(A) & 24.897
—Claim 19. 897
—Claim 25 .898
—Claim 26 .898
D. Claims That Must Be Addressed On The Merits .899
—Claim 1.899
—Claim 2.902
—Claim 3. 904
—Claim 4.905
—Claim 5.908
—Claim 6.910
—Claim 7.,.911
—Claim 9.913
—Claim 16.918
—Claim 17.919
—Claim 18.920
—Claims 20, 21, 22 & 23 .923
—Claim 26 (Merits).924
—Claims 10(A) and 10(B) (Merits).928
E. Conclusion.929
I. INTRODUCTION
This is a capital case. Petitioner Henderson has been sentenced to death by the State of Ohio.
Petitioner was convicted of aggravated murder and sentenced to death by the Hamilton County Court of Common Pleas for the murder of Mary Acoff in her home at 1944 Highland Avenue in Cincinnati, Ohio on or about March 3, 1985. The jury recommended the state court sentence Petitioner to death for the aggravated murder conviction. The jury also recommended that Petitioner be sentenced to consecutive prison terms of seven to twenty-five years for the aggravated burglary conviction and eight to fifteen years for the attempted rape conviction (Appendix to Return of Writ (“R.O.W.”), Vol. I, Ex. B). At his capital trial, Petitioner was represented by attorney Clayton Shea.
On July 22, 1986, Petitioner pursued a direct appeal of his conviction in the Ohio Court of Appeals, asserting fourteen assignments of error related to his trial proceedings
(Id.,
Ex. D). Additionally, after noting that issues of proportionality review could not be raised as an assignment of error, Petitioner objected to the adequacy of the court’s proportionality review in a separate section of his appeal
(Id.
at 48). Subsequent to the State filing its brief in opposition, Petitioner filed a
pro se
motion for leave to rebrief and file additional issues on Septembér 25,1986
(Id.,
Ex. NN).
1
In his
pro se
motion, Petitioner maintained that his appellate counsel failed to raise several issues that he believed should have been raised. The court denied Petitioner’s motion for leave to rebrief and file additional issues on October 15, 1986
(Id.,
Vol. IV, Ex. PP). The Court of Appeals also affirmed his conviction and sentence of death on January 14, 1987
(Id.,
Vol. I, Ex. F). In his direct appeals, Petitioner was represented by attorneys D. Shannon Smith and Timothy A. Smith.
Petitioner appealed to the Ohio Supreme Court
(Id.,
Ex. G). The Ohio Supreme Court affirmed his conviction and sentence on September 28, 1988
(Id.,
Ex. I).
State v. Henderson,
39 Ohio St.3d 24, 26 , 528 N.E.2d 1237, 1240 (1988). He was again represented by attorneys D. Shannon Smith and Timothy A. Smith. Petitioner then filed a Petition for Writ of Certiorari to the United States Supreme Court. However, the Supreme Court denied the Petition.
See Henderson v. Ohio,
489 U.S.
*876
1072, 109 S.Ct. 1357 , 103 L.Ed.2d 824 ,
reh’g denied,
490 U.S. 1042 , 109 S.Ct. 1947 , 104 L.Ed.2d 417 (1989).
Thereafter, Petitioner pursued post-conviction relief in the Ohio courts on November 15, 1989 (Appendix to R.O.W., Vol. II, Ex. L). The State moved to dismiss each of the claims in Petitioner’s post-conviction petition. Petitioner subsequently moved to amend his post-conviction petition to assert a claim of ineffective assistance of appellate counsel
(Id.,
Ex. O). Petitioner asserted that his counsel on appeal had failed to raise the claim of ineffective assistance of trial counsel. Petitioner also moved that the court hold an evidentiary hearing on the claim to address matters outside the record. The court dismissed each of Petitioner’s post-conviction claims on the grounds of
res judicata,
except for his eighth claim of ineffective assistance of trial counsel
(Id.,
Ex. Q). The court conducted an evidentiary hearing on December 17 and 18,1990, to address Petitioner’s claim of ineffective assistance of trial counsel. The court denied Petitioner’s motion to amend his post-conviction petition and struck the motion from the record
(Id.,
Ex. S).
Petitioner filed a notice of appeal to the Hamilton County Court of Appeals on February 22, 1991
(Id.,
Ex. T). On March 7, 1991, the court ordered the cause dismissed on the grounds that the notice of appeal was untimely
(Id.,
Vols. II & III, Exs. V
&
W). Petitioner next appealed to the Ohio Supreme Court; however, the Ohio Supreme Court "sustained the dismissal
(Id.,
Vol. IV, Ex. AA). The Ohio Supreme Court also denied a motion by Petitioner for a rehearing on September 18,1991
(Id.,
Ex. FF).
On December 5, 1991, Petitioner filed a Petition for a Writ of Habeas Corpus with this Court. However, on September 22, 1992, this Court dismissed the petition without prejudice to enable Petitioner to exhaust his claim of ineffective assistance of appellate counsel in the Ohio courts
(See
Order issued September 22,1992).
On November 23, 1992, Petitioner filed an Application for delayed Reconsideration in the Hamilton County Court of Appeals (R.O.W., Ex. GG). On March 12, 1993, the court of appeals denied Petitioner’s Application (R.O.W., Ex. HH). On May 7, 1993, Petitioner appealed the decision of the court of appeals to the Ohio Supreme Court. However, the Ohio Supreme Court affirmed the appellate court’s decision on October 27, 1993
(Id.,
Ex. MM).
Petitioner then filed the current Petition for a Writ of Habeas Corpus in this Court pursuant to Title 28 U.S.C. § 2254 on February 4, 1994 (doc. 4). Respondent filed his Return of Writ on June 10, 1994 (doc. 12). After a flurry of filings by the parties and orders by the Court, the Court held a hearing on the Petition for a Writ of Habe-as Corpus on December 3, 1997. Subsequent to the hearing, Petitioner filed a post-hearing memorandum on January, 12, 1998. Respondent also filed a post-hearing memorandum on January 16,1998.
II. FACTUAL BACKGROUND
The charges against Petitioner arose from events that occurred on March 3, 1985. The followdng factual background comes directly from the Ohio Supreme Court’s opinion in this case, in which the court affirmed the conviction and sentence of Petitioner.
Around 10:45 p.m., March 2, 1985, [Mary] Acoff left her basement-level apartment at 1944 Highland Avenue in Cincinnati and went to the apartment of her boyfriend, James Martin, who lived in the same building. Martin and Acoff engaged in sexual intercourse. Acoff left around midnight and returned to her apartment.
Tony Nixon, who lived in the apartment above Acoff, testified that around 4:50 a.m. on March 3, 1985, he heard sounds ‘like a commotion’ coming from below. After Nixon stepped into the hallway of the building to await his ride to work he
*877
heard a downstairs door open. However, he did not see anyone downstairs. Cheryl Turner testified that as she drove toward the building about 6:00 a.m. to pick up Nixon, she saw [Petitioner] standing on the street a little way up from the building. She stated that [Petitioner] was wearing a dark, knee-length coat.
Delrick Johnson testified that as he approached the Highland Avenue area around 5:30 a.m., he saw [Petitioner], whom he knew from school. Johnson honked his horn at [Petitioner], who responded by pulling his coat up around his ears. Johnson stated that [Petitioner] was wearing a long leather coat with a shorter coat underneath.
About 4:15 p.m., March 3, 1985, ten-year old Joann Acoff, Mary Acoffs daughter, and Sandra Simmons, a neighbor, found Acoffs body on the living room floor of the apartment. The front door was unlatched and a kitchen window was closed but unlocked.
The police found latent fingerprints, mud on the kitchen and living room floors, and blood stains on the outside kitchen windowsill. A blood-stained rock and fallen leaf were found on the ground outside the kitchen window. The ground beneath the kitchen window was muddy.
Acoff died as a result of hemorrhage due to multiple stab, incised and blunt injuries to the head, chest, neck and upper extremities. In addition to at least four fatal stab wounds, Acoff had been cut with the point of a sharp knife numerous times and her throat had been slashed at least thirteen times. Acoffs left hand had been cut and was wrapped in a towel.
Acoffs body was found nude, lying face up with legs spread apart. Semen was found in her vagina. The deputy coroner testified that the general pattern of bloodstains over the upper torso indicated that Acoff was killed while she was lying in a horizontal position.
The front door of the apartment building was kept locked. To gain entry without a key, one had to ring the doorbell of an apartment and have the occupant open the front door. On the day of the murder, Acoffs • doorbell was not working.
Apparently nothing was stolen from the apartment: Acoffs purse was undisturbed, á gold chain was found lying in a pool of blood on the floor and the stereo and television set were in place.
Upon learning of [Petitioner’s] presence in the neighborhood, police called him and he went to the police station to be interviewed. [Petitioner] denied being in the vicinity of Acoffs apartment at the time of the murder. He was permitted to leave the police station.
Shortly thereafter, police were told that a latent fingerprint lifted from the kitchen wall of Acoffs apartment had been identified as [Petitioner’s]. Police arrested [Petitioner] and informed him of the fingerprint, but [Petitioner] insisted that he had never been inside of Acoffs apartment and that he did not know her.
Police searched [Petitioner’s] residence pursuant to a warrant and seized a damp pair of gym shoes, a long black leather coat, a short black leather jacket, and an eight-inch paring knife discovered inside the pocket of the jacket. The soles of the shoes contained human blood but in an insufficient amount to determine its type. A bloody shoeprint from the floor of Acoffs apartment was consistent with the characteristics of the soles of the seized gym shoes. Bloodstains found on the coat were consistent with Acoffs blood type (type AB) and inconsistent with [Petitioner’s] (type 0). A piece of unidentifiable human tissue was discovered on the long coat. . Semen stains, consistent with type O secretor, were also found on the coat.
The rock outside of the kitchen window was stained with type AB blood and the fallen leaf with human blood, type unknown. -
*878
[Petitioner] was charged with two (2) counts of aggravated murder with specifications that: (1) [Petitioner], as a principal offender, purposely caused Acoffs death while committing or attempting to commit aggravated burglary; and (2) [Petitioner], as principal offender, purposely caused Acoffs death while committing or attempting to commit rape. The third and fourth counts charged [Petitioner] with aggravated burglary and rape.
[Petitioner] pled not guilty. The jury found [Petitioner] guilty of both counts of aggravated murder and the accompanying specifications. The jury also found [Petitioner] guilty of aggravated burglary and not guilty of rape but guilty of attempted rape. The jury recommended a penalty of death; the trial court followed the recommendation and imposed a death sentence. The court further sentenced [Petitioner] on counts three and four to consecutive terms of imprisonment.
Henderson,
39 Ohio St.3d at 24-25 , 528 N.E.2d 1237 .
III. STANDARD OF REVIEW
In the instant matter, Petitioner seeks relief under 28 U.S.C. § 2254 . Section 2254, Title 28 of the United States Code, provides that “a district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” Title 28 U.S.C. § 2254 (a) (1994).
IV. APPLICABILITY OF THE AEDPA
On April 24, 1996, President William Jefferson Clinton signed the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA” or the “Act”) into law. While the Act does not contain an effective date, we conclude that it became effective on the date of enactment.
Zuern v. Tate,
938 F.Supp. 468, 470 (S.D.Ohio 1996). Furthermore, even though the Act amends certain provisions of the preexisting habe-as corpus statute that are codified in Chapter 153 of the Judicial Code and creates a new Chapter 154 of the Judicial Code containing a set of “Special Habeas Corpus Procedures in Capital Cases,” the new subsection of 2254, namely § 2254(d), is inapplicable to cases under Chapter 153 that were pending on the date the Act became effective.
See Lindh v. Murphy,
521 U.S. 320, 322-23 , 117 S.Ct. 2059 , 138 L.Ed.2d 481 (1997);
Groseclose v. Bell,
130 F.3d 1161, 1164 (6th Cir.1997);
Powell v. Collins,
C-1-94-656 (S.D.Ohio June 15, 1998). Accordingly, the amended sections of the habeas corpus statute falling under the Act’s Chapter 153 do not apply to the instant Petition because the Petition was filed prior to its enactment.
As for Chapter 154 of the Act, it states that it shall apply to cases pending on or after the date of enactment of the Act. The special procedures in Chapter 154 provide a system of expedited review to states that qualify under the opt-in procedures set forth in Title 28 U.S.C. § 2261 (1996). These procedures pertain to requirements for the appointment of counsel for petitioners seeking post-conviction review of their capital sentences in the state court system. Having previously examined this topic, we again conclude that the State of Ohio has not “opted-in.” Therefore, we find that Chapter 154 does not apply to this case.
See Mills v. Anderson,
961 F.Supp. 198, 199 (S.D.Ohio 1997);
Scott v. Anderson,
958 F.Supp. 330, 334-35 (N.D.Ohio 1997);
Hamblin v. Anderson,
947 F.Supp. 1179, 1183 (N.D.Ohio 1996);
Landrum v. Anderson,
C-1-96-641 (S.D.Ohio Dec. 9, 1996). Accordingly, pre-AEDPA law applies to the instant petition.
V.ANALYSIS OF PETITIONER’S CLAIMS
As a preliminary matter, we must address each of the claims that Respondent asserts Petitioner procedurally defaulted. Once it is determined conclusively which, if
*879
any, of Petitioner’s claims have been waived, the Court will address all of the claims that can be heard on the merits. Accordingly, we now proceed directly to the procedural default analysis.
A. The Doctrine of Procedural Default
The principles of procedural default are triggered whenever the state argues that a habeas corpus petition is precluded due to a petitioner’s failure to comply with a state procedural rule. Generally, under the doctrine of procedural default, if the state court previously dismissed a state inmate’s federal claim on the grounds that the inmate failed to comply with a state procedural rule, a federal district court cannot consider the merits of the federal claim.
To determine whether the district court may consider the merits of an inmate’s federal claim, the court must engage in a complicated analysis. First, the court must determine whether a state procedural rule exists that is applicable to the petitioner’s claim and whether the petitioner failed to comply with the rule.
Maupin v. Smith,
785 F.2d 135, 138 (6th Cir.1986). Second, the court must decide whether the state courts actually enforced the state procedural violation.
Id.
In other words, the highest state court to rule on the claim must have clearly and unambiguously relied upon the procedural violation as the reason for rejecting the claim. Third, the court must decide whether the state procedural violation provided an “adequate and independent state ground” for denying the petitioner’s federal constitutional claim.
Id.; see also Harris v. Reed,
489 U.S. 255, 260-62 , 109 S.Ct. 1038 , 103 L.Ed.2d 308 (1989). The application of the “adequate and independent” state ground doctrine is grounded in concerns of comity and federalism because, without the rule, a federal district court would be able to do in habeas corpus what the state court could not do on direct appeal.
Coleman v. Thompson,
501 U.S. 722, 730 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991).
Once the federal district court determines that the petitioner failed to comply with a state procedural rule, that the rule was actually enforced by the state courts, and that the rule was an adequate and independent state ground, then the petitioner can still have the procedural default bar removed by either: 1) demonstrating that there was “cause” for him to not follow the procedural rule and that he was actually “prejudiced” by the alleged constitutional error, or 2) establishing that his case falls within a category of cases where the court’s failure to consider the claims will result in a' “fundamental miscarriage of justice.”
See Coleman,
501 U.S. at 750 , 111 S.Ct. 2546 ;
Murray v. Carrier,
477 U.S. 478, 485 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986);
Wainwright v. Sykes,
433 U.S. 72, 87 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977);
Maupin,
785 F.2d at 138 ;
Leroy v. Marshall,
757 F.2d 94, 99 (6th Cir.1986).
The Supreme Court has not precisely established the contours of the “cause” standard for courts to apply in the context of procedural default.
Amadeo v. Zant,
486 U.S. 214, 221 , 108 S.Ct. 1771 , 100 L.Ed.2d 249 (1988). Generally, a petitioner may show “cause” by demonstrating a substantial reason to excuse the procedural default.
Rust v. Zent,
17 F.3d 155, 161 (6th Cir.1994). As stated, once “causé” for the procedural default is demonstrated, the petitioner must still show that he was actually prejudiced by the claimed constitutional error.
United States v. Frady,
456 U.S. 152, 170 , 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982). The prejudice prong is not satisfied if there is strong evidence of the petitioner’s guilt and a lack of evidence to support his claimed constitutional error.
Rust,
17 F.3d at 162 .
We note that unless the last state court rendering a judgment in a case “clearly and expressly” states that its judgment rests upon a state procedural ground that has been violated, federal courts on habeas review typically presume
*880
that a procedural default does not bar consideration of federal claim.
Harris,
489 U.S. at 263 , 109 S.Ct. 1038 . This presumption, however, only applies to cases where the decision of the last state court rendering judgment in the case “fairly appears to rest primarily on federal law, or to be interwoven with federal law.”
Coleman,
501 U.S. at 734-40 , 111 S.Ct. 2546 ;
Ylst v. Nunnemaker,
501 U.S. 797, 802 , 111 S.Ct. 2590 , 115 L.Ed.2d 706 (1991). In a case where the last decision rendered by the state court is unexplained or unclear as to the grounds for the decision, a federal court may “look through” the unexplained order to the last reasoned state court order on the matter and presume that the later unexplained order rests on the same grounds as the explained order.
Ylst,
501 U.S. at 802-804 , 111 S.Ct. 2590 .
In this case, the claims for relief and particular sections therein that Respondent maintains Petitioner procedurally defaulted include: 2(A), 8, 10-15, 17(A), 19, 24-26,
2
and 27. We shall first review the claim of ineffective assistance of appellate counsel. Respondent asserts that this claim has been waived by Petitioner. Next, we shall review the other grounds Respondent maintains have been waived by Petitioner. Finally, we shall address the claims Respondent concedes can be heard on the merits. These claims include: 1-7, 9,16-18, and 20-23.
B. Petitioner’s Claim of Ineffective Assistance of Appellate Counsel
CLAIMS 13 & 27:
Petitioner was denied the effective assistance of counsel on direct appeal in violation of the Fifth, Sixth, and Eighth and Fourteenth Amendments. Petitioner was denied due process of law by the arbitrary refusal of the state appellate and supreme courts to allow him to access newly created procedure by which to raise his claims of ineffective assistance of appellate assistance on direct appeal.
In his thirteenth claim for relief, Petitioner argues that the Court of Appeals, First Appellate District of Hamilton County, Ohio erred when it denied his
pro se
motion to rebrief and raise seven (7) additional assignments of error and fourteen (14) additional issues in his appellate brief that his appellate counsel failed to identify. By not raising the 7 additional assignments of error and 14 additional issues, Petitioner argues that his counsel were ineffective on appeal.
Petitioner asserts that, during his post-conviction proceedings, he attempted to amend his post-conviction petition to raise the issue of ineffective assistance of appellate counsel as a thirteenth cause of action because his attorneys failed to raise the issue of ineffective assistance of trial counsel on direct appeal (Appendix to R.O.W., Yol. II, Ex. O). However, the State opposed Petitioner’s motion to amend his post-conviction petition. The court denied petitioner’s motion and struck it from the record
(Id.,
Ex. S).
In the instant matter, Petitioner maintains that the State violated his constitutional rights by first precluding him from raising the assignments of error and issues on direct appeal, and then subsequently denying him the ability to establish his appellate counsels’ ineffectiveness at the post-conviction proceeding. In particular, Petitioner contends that the failure of the State to provide a procedure by which to raise the issue of ineffective assistance of appellate counsel where such issue is based on facts outside the record violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
To the contrary, Respondent argues that there is no right under Rule 16 of the Ohio Rules of Appellate Procedure to hybrid representation, and that Petitioner failed
*881
to raise his claims in his appellate brief in accordance with state procedure. Respondent contends that it was not until after Petitioner’s counsel filed his appellate brief and the State filed its response that Petitioner then filed a
pro se
motion for leave to rebrief and file additional issues on September 25, 1986. On October 3, 1986, the State filed a memorandum in opposition to Petitioner’s motion, contending that the motion was not only late, but also that Petitioner did not have a right to hybrid representation. Thus, Respondent asserts that the appellate court appropriately denied his motion in accordance with Rule 16.
Respondent also points out that Petitioner’s first federal habeas petition was dismissed for failing to exhaust his ineffective assistance of appellate counsel claim. After the dismissal, Petitioner filed an application for delayed Reconsideration and raised a
Mumahan
claim. However, the appellate court denied his application for delayed Reconsideration and his
Muma-han
petition as being untimely. Subsequently, the Ohio Supreme Court affirmed the appellate court’s judgment. Respondent firmly maintains that Petitioner procedurally defaulted his claim of ineffective assistance of counsel on direct appeal because he failed to comply with an adequate and independent state procedural rule that was actually enforced. Furthermore, Respondent asserts that Petitioner cannot show cause for his failure to comply with the state rule, nor demonstrate actual prejudice. Although Respondent does not contest that the Fourteenth Amendment mandates the effective assistance of counsel on appeal, Respondent argues that the appellate counsel does not have a duty to raise nonfrivolous issues on appeal if that counsel, as a matter of professional judgment, decides not to raise an issue on appeal. In essence, Respondent asserts that Petitioner makes nothing more than bare assertions of his appellate counsels’ ineffectiveness in his Petition, and, thus, this claim should be denied.
We note that Rule 16(C) of the Ohio Rules of Appellate Procedure states that: '
The appellant may file a brief in reply to the brief of the appellee, and, if the appellee has cross-appealed, the appellee may file a brief in reply to the response of the appellant to the assignments of errors presented by the cross-appeal.
No further briefs may be filed except with leave of court.
Ohio App.Rule 16(C) (emphasis added). Under Rule 16(C), the court has discretion to determine whether to address the issues raised by Petitioner in his
pro se
brief upon appeal.
State v. White,
71 Ohio App.3d 550, 551 , 594 N.E.2d 1087 , 1088 n. 1 (1991). The court chose to decline reviewing Petitioner’s
pro se
brief. Such a rejection by the court is not improper because no federal or state right to this sort of “hybrid representation exists”.
United States v. Mosely,
810 F.2d 93, 97-98 (6th Cir.1987);
State v. Landrum,
53 Ohio St.3d 107, 119 , 559 N.E.2d 710, 725 (1990);
State v. Thompson,
33 Ohio St.3d 1, 6 , 514 N.E.2d 407, 413-14 (1987);
State v. Beaver,
119 Ohio App.3d 385, 401 , 695 N.E.2d 332, 343 (11th Dist.1997). Therefore, we find that the court did not abuse its discretion when it denied Petitioner’s
pro se
brief on direct appeal.
Petitioner argues that the court erred, when it did not allow him to amend his post-conviction petition to assert his ineffective assistance of appellate counsel claim. However, an accused may not use a post-conviction petition to raise a claim of ineffective assistance of his appellate counsel.
State v. Murnahan,
63 Ohio St.3d 60 , 584 N.E.2d 1204 (1992). In
Mumahan,
which was decided on February 19, 1992, after Petitioner filed his post-conviction petition, the Ohio Supreme Court stated:
1. Claims of ineffective assistance of appellate counsel are not cognizable in post-conviction proceedings pursuant to R.C. 2953.21.
*882
2. Claims of ineffective assistance of appellate counsel may be raised in an application for Reconsideration in the court of appeals or in a direct appeal to the Supreme Court pursuant to Section 2(B)(2)(a)(iii), Article IV of the Ohio Constitution.
3. Where the time period for Reconsideration in the court of appeals and direct appeal to the Supreme Court has expired, a delayed claim of ineffective assistance of appellate counsel must first be brought in an application for delayed Reconsideration in the court of appeals where the alleged error took place, pursuant to App.R. 26 and 14(B), and if the delayed Reconsideration is denied then the defendant may file for delayed appeal in the Supreme Court, pursuant to Section 8, Rule II of the Rules of Practice of the Supreme Court.
Murnahan,
63 Ohio St.3d 60 , 584 N.E.2d 1204 at syllabi ¶¶ 1, 2, 3, 584 N.E.2d at 1205 (internal citations omitted). Thus, the appropriate place for raising a claim of ineffective assistance of appellate counsel is either through an application for reconsideration or delayed Reconsideration, or through a direct appeal to the Ohio Supreme Court.
Approximately eighth months after
Mumahan
was decided, Petitioner filed his Application for delayed Reconsideration of his Direct Appeal with the Hamilton County Court of Appeals pursuant to App.R. 14(B), App.R. 26, and
Mumahan
(Appendix to R.O.W., Vol. IV, Ex. GG). In this Application, Petitioner alleged that he had received ineffective assistance of appellate counsel and he listed and explained fifteen (15) errors that had occurred at Petitioner’s trial and six (6) issues that were not raised by previous appellate counsel, but that he argued are nonetheless substantial and meritorious.
(Id.)
The Hamilton County Court of Appeals denied Petitioner’s motion for delayed Reconsideration as being untimely, stating:
Appellant has failed to demonstrate good cause pursuant to App.R. 14(B) to justify the delay in applying for reconsideration beyond the time permitted by App.R. 26. In view of the settled law in this district with respect to the pursuit of claims of ineffective assistance of counsel,
see, e.g., State v. Rone
(Aug. 31, 1983), Hamilton App. No. C-820640, 1983 WL 5172 , unreported, we specifically reject, under the circumstances of this case, the proposition that good cause for the delay is provided by the Ohio Supreme Court’s decision in
State v. Murnahan,
(1992), 63 Ohio St.3d 60 , 584 N.E.2d 1204 .
(Id.,
Ex. HH). Thereafter, Petitioner filed a notice of appeal from the decision denying his Application for delayed Reconsideration and he requested leave to file an appeal as of right
(Id.,
Exs. II & JJ). However, on October 27, 1993, the Ohio Supreme Court affirmed the judgment of the court of appeals, ruling that “[t]his cause, here on appeal from the Court of Appeals for Hamilton County, was considered in the manner prescribed by law. On consideration thereof, the judgment of the court of appeals is affirmed”
(Id.,
Ex. MM). Consequently, Petitioner asserts that he was denied due process of law by the arbitrary refusal of the state appellate and supreme courts to allow him to access a procedure created in
Mumahan
by which to raise his claims of ineffective assistance of appellate assistance on direct appeal.
Respondent argues that Petitioner’s claim of ineffective assistance of appellate counsel is procedurally defaulted because he failed to timely raise this claim in state court pursuant to
Mumahan.
The Parties’ contentions raise the issue of whether the state procedural rules used to bar Petitioner’s claim of ineffective assistance of appellate counsel in the state courts were firmly established at the time Petitioner would have had to comply with them so as to constitute adequate and independent state procedural rules for the purposes of federal habeas review.
*883
As stated earlier, in
Mumahan,
the Ohio Supreme Court resolved the conflict in the Ohio courts of appeals and held that ineffective assistance of appellate counsel claims cannot be raised in post-conviction proceedings but rather should be raised in motions for delayed reconsideration in the court of appeals.
Murnahan,
63 Ohio St.3d at 65-66 , 584 N.E.2d at 1209 .
3
The Ohio Supreme Court established the following procedures:
in an individual case where a defendant has put forth a colorable claim of ineffective assistance of appellate counsel, where the circumstances render the application of
res judicata
unjust, and the time periods for Reconsideration in the court of appeals and direct appeal to this court have expired, he or she must: (1) apply for delayed Reconsideration in the court of appeals where the alleged error took place pursuant to App.R. 26 and 14(B), and if delayed Reconsideration is denied, then (2) file for delayed appeal in this court pursuant to Section 8, Rule II of the Rules of Practice of the Supreme Court.
Murnahan,
63 Ohio St.3d at 66 , 584 N.E.2d at 1209 .
At the time of the Court’s decision in
Murnahan ,
Ohio App.R. 26 provided,
[a]n application for Reconsideration of any cause or motion submitted on appeal shall be made in writing before the judgment or order of the court has been approved by the court and filed by the court with the clerk for journalization or within ten days after the announcement of the court’ decision, whichever is the later [sic],
Ohio App.R. 26 (Anderson 1975). At that same time, Ohio App.R. 14(B) provided that “[t]he court for good cause shown may upon motion enlarge or reduce the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time.... ” Ohio App.R. 14(B) (Anderson 1975). The Ohio Supreme Court specifically noted in
Mumahan
that, the state appellate rules as then written may be insufficient to provide the remedy set forth in its opinion. The Court stated:
[i]n light of the fact that Ohio has no statutory authority or court rules dedicated to the procedure to be followed by defendants who allege ineffective assistance of appellate counsel, we recommend to the Rules Advisory Committee appointed by this court to review whether an amendment to App.R. 14(B) or a new rule should be adopted to better serve claimants in this position.
Id.
at 66 n. 6, 584 N.E.2d at 1209 n. 6.
Thereafter, in response to Mumahan’s directive, Ohio App.R. 26 was amended, effective July 1, 1993, permitting a defendant in a criminal case to apply for reopening the appeal from the judgment of conviction and sentence based on a claim of ineffective assistance of appellate counsel and requiring such application to be filed in the court of appeals where the appeal was decided “within ninety days from jour-nalization of the appellate judgment unless the applicant shows good cause for filing at a later time.” Ohio App.R. 26(B)(1) (Anderson 1997).
Petitioner argues that the Hamilton County Court of Appeals’ conclusion that his Application for delayed Reconsideration was not timely is in error because
Mumahan, swpra,
had not even been decided when his case was on direct appeal. Petitioner cites to
State v. Rone,
App. No. C-920640, 1983 WL 5172 , at *1 (Hamilton Cty. Ct.App. Aug. 31, 1983), for the proposition that there did not exist a firmly established procedure for raising ineffec
*884
tive assistance of appellate counsel claims in the First Appellate District, let alone for raising an ineffective assistance of counsel claim based on facts outside the record. Additionally, Petitioner argues that the court of appeals ignored the fact that the same counsel that represented Petitioner on direct appeal were the same counsel he claims were ineffective. Furthermore, Petitioner asserts that he did attempt to raise the ineffective assistance of appellate counsel claim with the First Appellate District Court but was denied leave to do so. Thus, Petitioner asserts that
Rone
does not create a remedy at all or, even at the least, it does not create a remedy established by
Mumahan.
Petitioner contends that the Ohio Supreme Court erroneously adopted these errors and omissions when it declined jurisdiction in his case. In essence, Petitioner asserts that he has been denied a forum for raising his ineffective assistance of appellate counsel claim in the state courts in violation of his constitutional rights.
The concern of this Court centers around whether the procedural rule actually enforced by the state court is an adequate and independent state ground given the then-existing state of Ohio law concerning that procedural rule. Respondent argues that
Rone
is an adequate and independent state ground upon which the Hamilton County Court of Appeals relied in denying Petitioner’s motion for delayed Reconsideration. In
Rone ,
the Hamilton County Court of Appeals held that ineffective assistance of appellate counsel claims were not cognizable in post-conviction proceedings.
Rone,
1983 WL 5172 , at *4. Although not a part of the holding of the case, the court purported to describe three alternative ways to raise the claim. Two of the methods were “merely illustrations” of other methods employed by other state jurisdictions.
See Combs v. Anderson,
C-1-95-733, at 153 (S.D.Ohio Oct. 21, 1997). With respect to the third method, the court stated, “[w]e are further convinced that the appellate court in which counsel had been alleged ineffective could consider the issue upon a motion for Reconsideration of its own judgment.”
Id.
Contrary to Respondent’s assertion, we hold that
Rone
is not an adequate and independent state ground for the following reasons. First,
Rone
did not clearly establish a procedure for raising a claim of ineffective assistance of appellate counsel. It did nothing more than conclude that ineffective assistance of appellate counsel claims could not be raised in post-conviction proceedings.
See Sowell v. Colins, C-1
-94-237, at 62 (S.D.Ohio Feb. 18, 1998) (holding that, upon reviewing
Rone ,
there was no firmly established state procedure for raising ineffective assistance of appellate counsel claims prior to
Mumahan).
The
Rone
court merely suggested, without further guidance, the other means of raising a claim, but the court did not provide any analysis or consideration as to the viability of them suggestions. Despite its statement “there must be a viable means of recourse available to one who has been denied the effective assistance of appellate counsel,”
Rone,
1983 WL 5172 , at *3, the court’s suggested third remedy is hollow. Ohio App.R. 14(B)’s standard of “good cause” is too vague to alert a defendant as to a deadline beyond the ten days, and thus the rule does not give any reasonable certainty as to the procedure. The Ohio Supreme Court has recognized that often a defendant may not be able to identify without counsel the errors of his appellate counsel or the ineffectiveness of appellate counsel may not be discovered by a different attorney in the time allotted for motions to reconsider.
See Murnahan,
63 Ohio St.3d at 65-66 , 584 N.E.2d at 1209 . The time constraints applicable to the
Rone
court’s remedy do not take into account the considerations noted by the Ohio Supreme Court. And the
Rone
court did not explain how a defendant could either retain a new attorney within 10 days to challenge the effectiveness of appellate counsel or discover the ineffectiveness
*885
while still represented by same appellate counsel within the time allotted.
More significantly, the Ohio Supreme Court in its decision in
Mumahan
specifically recognized the lack of any statewide appellate rules in 1992 to deal with the situation where a defendant does not discover an appellate ineffectiveness claim until after the time for moving to recoiisider has expired. Thus, by the Ohio Supreme Court’s own analysis, until amended Ohio App.R. 26 became effective in 1993, pursuant to its decision in
Mumahan,
there was no viable method of raising a claim of ineffective assistance of appellate counsel where the time for moving to reconsider had already expired. Moreover,
Rone
could not have established a viable system for raising ineffective assistance of appellate counsel claims as it was decided approximately ten years prior to
Muma-han
and the effective date of Ohio App.R. 26. Thus,
Rone ,
did not establish a clear, viable method for alleging ineffective assistance of appellate counsel claims.
Secondly,
Rone
was not consistently applied by the Hamilton County Court of Appeals at the time Petitioner would have been expected to comply with the rule. The Hamilton County Court of Appeals confused the issue of how to raise ineffective assistance of appellate counsel claims by its decision three months after
Rone
in
State v. Campbell,
No. C-830221, 1983 WL 5302 , at *1 (Ohio Ct.App. Nov.9, 1983). In
Campbell ,
the court declined to apply
Rone
to an ineffective assistance of appellate counsel claim raised in a post-conviction petition. Instead, the court denied the claim on the grounds that it was not supported by evidentiary documents containing sufficient operative facts to demonstrate its validity.
Id.
Thirdly, looking at the decisions of a number of Ohio courts of appeals and the Ohio Supreme Court, it is readily apparent that, prior to
Mumahan,
Ohio law was not firmly established as to how to raise a claim of ineffective assistance of appellate counsel. Moreover, until
Mumahan
was decided in 1992, 'on a state-wide basis, the rules regarding how to raise an ineffective assistance of appellate counsel claim varied significantly.
Compare, e.g., State v. Howard,
42 Ohio St.3d 18, 23 , 537 N.E.2d 188, 193 (1989) (considering ineffective assistance of appellate counsel claim on post-conviction);
State v. Miller,
44 Ohio App.3d 42, 43 , 541 N.E.2d 105, 107 (Ohio App. 6 Dist.1988) (same);
State v. Sawyer,
No. CA85-12-160, 1986 WL 7116 , at *2 (Ohio App. 12 Dist., June 23, 1986) (same);
State v. Kaldor,
No. 83-B-12, 1985 WL 10432 , at *1 (Ohio App. 7 Dist., Apr.29, 1985) (same);
with, e.g., State v. Mitchell,
53 Ohio App.3d 117, 119 , 559 N.E.2d 1370, 1372 (Ohio App. 8 Dist.1988) (holding ineffective assistance of appellate counsel claims not cognizable on post-conviction);
State v. Fraley,
No. 88-AP-180, 1988 WL 55434 , at *2 (Ohio App. 10 Dist., May 17, 1988) (stating same);
see also Manning v. Alexander,
912 F.2d 878, 881-883 (6th Cir.1990) (finding that by 1990 the Ohio Supreme Court had not spoken clearly as to how to initiate claims of ineffective assistance of appellate counsel and that Ohio law appeared to permit an ineffective assistance of appellate counsel claim to be raised in post-conviction);
Sowell, supra,
at 61 (concluding that prior to
Mumahan
the procedure in Ohio for raising ineffective assistance of appellate counsel claims was unsettled and citing
Manning); Combs,
C-1-95-733, at 154 (recognizing that prior to
Mumahan
there was no procedure established
state-wide
to present ineffective assistance of appellate counsel claims) (emphasis in original).
Respondent seems to rely
on
the fact that a decision by the Hamilton County Court of Appeals is binding on Petitioner and therefore it does not matter what the state of the law was as determined by other Ohio courts of appeals. However, the Court is not convinced that, in analyzing the state procedural rules so as to determine whether they are adequate and independent state ground to bar federal habeas review, we should be concerned
*886
only with the Hamilton County Court of Appeals decisions as opposed to the rules announced by the Ohio Supreme Court or state-wide appellate rules. For example, in determining the state of Ohio law in 1990 regarding how to raise ineffective assistance of appellate counsel claims, the Sixth Circuit did not look to only decisions of the court of appeals relevant to the petitioner in the case. Instead, the Sixth Circuit examined whether the Ohio Supreme Court had resolved the issue and to the fact that many courts of appeals were in conflict regarding the issue.
See Manning,
912 F.2d at 881-883 (holding that petitioner had exhausted his state remedies and that he had adequately presented ineffective assistance of appellate counsel claim in a post-conviction petition);
see also Reed v. Scott,
70 F.3d 844 , 846 n. 18 (5th Cir.1995) (reviewing several state courts of appeals decisions to determine whether a state procedural rule was firmly established so as to be an adequate state ground to bar federal habeas review).
We recognize that our sister court in
Combs
held contrary to us, but we find that case distinguishable. In
Combs,
the Hamilton County Court of Appeals did not rely upon
Rone
in denying the petitioner’s application for reconsideration, unlike what the court did in Petitioner’s case here. In other words,
Rone
was not the procedural bar enforced by a state court that the district court had to determine whether it was an adequate and independent state ground. Rather, the court of appeals relied upon amended Ohio App.R. 26(B) because, unlike here, the petitioner’s application was filed in 1994, after the effective date of the amendment to Ohio App.R. 26(B). Thus, the
Combs
’ discussion of
Rone
is irrelevant to its holding. Moreover, even though the
Combs
court states in its conclusion that the Hamilton County Court of Appeals consistently applies
Rone ,
none of the cases cited for support of the consistent application of
Rone
involve factual situations in which a defendant presents a claim of ineffective assistance of appellate counsel in a manner suggested by
Rone .
Rather, the holding of
Rone
—that ineffective assistance of appellate counsel claims are not cognizable in post-conviction — is what is consistently applied by the courts. All of the cases cited in
Combs,
C-1-95-733, at 155, denied a claim of ineffective assistance of appellate counsel raised in post-conviction on the basis of
Rone .
Finally, in
Combs,
the court is not concerned with whether there was an adequate and independent rule established by the Ohio Supreme Court or followed state-wide. Instead, the court in
Combs
was concerned only with whether there was a rule serving the Hamilton County Court of Appeals. As we stated earlier, we are not convinced that our concern should be focused merely on the court of appeals as opposed to the rules announced by the Ohio Supreme Court or recognized state-wide by the appellate courts.
Accordingly, we conclude that there was no firmly established Ohio rule regarding how to raise ineffective assistance of appellate counsel claims prior to
Mumahan.
Petitioner filed his Application for delayed Reconsideration on November 23, 1992, pursuant to
Mumahan,
but before the amended Ohio App.R. 26 became effective in 1993. Therefore, the only procedural rule to which Petitioner was subject was
Mumahan,
and thus the issue before the Court is whether Petitioner complied with the procedure set forth in
Mumahan.
The
Mumahan
Court directed Petitioner to Ohio App.R. 14(B) and 26 as the method for raising the ineffective assistance of appellate counsel claim in a motion for delayed Reconsideration. The court clearly indicated that those rules should be amended because of the difficulty in discovering and raising ineffective assistance of appellate counsel claims in time under the current rules.
Id.,
63 Ohio St.3d at 66 n. 6, 584 N.E.2d 1204 . Ohio App.R. 14(B), which governed the enlargement of time for filing a motion beyond the ten days from the original appellate judg
*887
ment, did not define “good cause.” Moreover, neither the
Mumahan
decision nor Ohio App.R. 14(B) set an outer limit or absolute deadline that would have alerted Petitioner to a certain deadline for filing a
Mumahan
Application pursuant to the rule. Petitioner filed the
Mumahan
Application eight months after
Mumahan
was decided.
Given that there was no firmly established rule in
Mumahan
or in Ohio App.R. 14(B) that would have alerted Petitioner to file sooner than eight months after
Mur-nahan
was decided, we conclude that Petitioner did not procedurally default his ineffective assistance of appellate counsel claim by raising it in his
Mumahan
Application.
See Sowell,
C-l-94-237, at 64 (holding that petitioner did not violate procedure set forth in
Mumahan
by filing motion for delayed Reconsideration in court of appeals three months after the
Mumahan
decision). Accordingly, we find that the claim of ineffective assistance of appellate counsel is not waived and can be heard on the merits.
Nonetheless, in order to establish a constitutional violation of ineffective assistance of counsel, the petitioner must satisfy the standard set forth by the United States Supreme Court in
Strickland v. Washington,
466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). More specifically, the petitioner must show both that his counsel’s representation fell below an objective standard of reasonableness and that his deficiencies prejudiced his defense.
Strickland,
466 U.S. at 698 , 104 S.Ct. 2052 ;
Bowen v. Foltz,
763 F.2d 191, 194 (6th Cir.1985). First, the petitioner must show that his counsel’s performance was deficient.
Id.
at 687, 104 S.Ct. 2052 . In other words, that his counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment of the Constitution.
Id.
Secondly, the petitioner must show that his counsel’s deficient performance prejudiced his defense.
Id.
A petitioner may establish the second “prejudice” prong of the
Strickland
test by showing that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.
Id.
at 693-94 , 104 S.Ct. 2052 . “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Id.; see also Darden v. Wainwright,
477 U.S. 168, 184 , 106 S.Ct. 2464 , 91 L.Ed.2d 144 (1986);
United States v. Morrow,
977 F.2d 222, 229 (6th Cir.1992);
Blackburn v. Foltz,
828 F.2d 1177, 1180 (6th Cir.1987). If the petitioner fails to satisfy either of the two prongs of the
Strickland
formula, it cannot be said that his conviction and/or subsequent death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Id.
at 687 , 104 S.Ct. 2052 .
Specifically, Petitioner asserts in his
Mumahan
Application that his appellate counsel was ineffective because they failed to raise the issues that: (1) his conviction for attempted rape was against the manifest weight of the evidence; (2) the trial court erred by instructing the jury to consider death before commencing deliberation of either of the two life imprisonments sentences; (3) his trial counsel was ineffective during the
voir dire,
trial, and sentencing stages of the proceedings; (4) trial court erred in admitting evidence that allowed the jury to consider non-statutory aggravating circumstances and weigh them against the mitigating factors established during the sentencing hearing; (5) The multiplicitous indictment returned in this case combined with the supplemental jury charge offered by the court during the trial phase of the deliberations was in violation of his constitutional rights; (6) the prosecutor used his peremptory challenges in a discriminatory manner; (7) the prosecutor used his peremptory challenges to exclude all jurors who expressed any scruples about the death penalty; (8) the policies and procedures employed by the Hamilton County prosecutor’s office in seeking and securing capital convictions and death sentences violated Petitioner’s constitutional rights; (9) the appellate re
*888
view conducted by the state courts was incomplete and failed to ensure that Petitioner’s sentence was not arbitrarily and capriciously applied; (10) the prosecutor’s actions of consistently calling for the jury to seek justice for the community was a violation of his constitutional rights; (11) the constitutionally mandated appellate review was conducted through reliance upon an incomplete record; and, (12) the prosecutor introduced evidence of the personal characteristics of the victim at trial and sentencing phase of the proceedings.
While the Court recognizes that, in effectuating the goal of “vigorous and effective advocacy,” the attorney need not advance every argument on appeal, regardless of merit, that is pointed out by the appellant in noncapital cases,
Jones v. Barnes,
463 U.S. 745, 751-52 , 103 S.Ct. 3308 , 77 L.Ed.2d 987 (1983), we believe that, in capital cases, appellate counsel should approach the traditional process of winnowing out claims with extreme caution. In other words, we believe that the advice espoused by Chief Justice Burger in
Jones
— namely that the appellate counsel’s duty is not to raise every “colorable” argument, but focus on one central issue if possible or at most a few key issues — is not pragmatic in light of the high stakes involved in capital case.
Moreover, it is Chief Justice Burger who reminds us in
Lockett v. Ohio,
438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978), that there is a “qualitative difference” between the death sentence and other penalties.
Id.
at 604 , 98 S.Ct. 2954 (“We are satisfied that this qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed.”). The difference that Chief Justice Burger intimated in
Lockett
certainly should apply to the manner in which counsel approach a capital case on appeal. In capital cases, appellate counsel should be cautious in winnowing out claims and asserting only those claims that
they
perceive are the best of those that are available. This does not mean that counsel on appeal should raise frivolous issues that are clearly without merit. Simply put, counsel on appeal should assert every conceivable claim that possesses some merit and some support in the trial record. This approach should be followed because: (1) like any case on direct appeal — issues abandoned by counsel cannot be reclaimed later, and (2) the stakes are much higher in capital than non-capital cases.
Reviewing the record, we conclude that the failure of Petitioner’s appellate counsel to raise the claims presented in his
Muniahan
Application constitutes cause as established in
Strickland .
Nevertheless, we conclude that Petitioner fails to demonstrate that, but for his counsels’ failure in bringing these claims, the overall outcome of the appellate court would have been different. Thus, Petitioner fails to undermine our confidence in the overall outcome of the appellate proceedings. Accordingly, we find that Petitioner’s claim of ineffective assistance of appellate counsel is without merit, and, thus, DENIED.
C. OTHER CLAIMS RESPONDENT ASSERTS WERE PROCEDURALLY DEFAULTED
CLAIM 2(A):
Petitioner Henderson’s conviction for attempted rape and the death penalty specification of attempted rape are against the manifest weight of the evidence in violation of the Fifth, Sixth, and Eighth and Fourteenth Amendments to the United States Constitution.
Petitioner asserts in this claim that his conviction of attempted rape and the conviction of aggravated murder during the course of an attempted rape and the accompanying specification that the aggravated murder was committed during the course of an attempted rape are against the manifest weight of the evidence.
*889
In contrast, Respondent argues that this claim has been waived because the claim was not raised in state courts. Instead of raising the claim that the death specification and his conviction for attempted rape are against the manifest weight of the evidence in the state courts, Respondent asserts that Petitioner merely attacked the sufficiency of the evidence. This is an entirely different claim according to Respondent. Respondent also argues that Petitioner cannot prove cause and prejudice existed for not raising this claim.
In order for the district court to consider a federal habeas petitioner’s claim, the petitioner must have “fairly presented” to the state courts the “substance” of the federal habeas corpus claim.
Anderson v. Harless,
459 U.S. 4, 6 , 103 S.Ct. 276 , 74 L.Ed.2d 3 (1982). A petitioner cannot simply make a bare assertion in his federal habeas review that all of the facts necessary to support the federal claim were before the state court or that “a some-what similar state-law claim was made.”
Id.
Failure of a petitioner to raise a claim on direct appeal or in the Ohio Supreme Court constitutes procedural default, and, thus a waiver of his claim for federal habeas review unless he can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional error.
Leroy,
757 F.2d at 97 .
In the instant matter, Petitioner did not fairly present this claim in the state courts. On direct appeal, Petitioner asserted as his Second Assignment of Error that the issue for review was “[whether proof that a victim was killed while she was naked is sufficient to prove that her killer attempted to rape her”
(See
Appendix to R.O.W., Vol. I, Ex. D at 11). In his appeal to the Ohio Supreme Court, Petitioner asserted in his Proposition of Law No. 3 that the evidence of Ms. Acoff being killed while naked was insufficient to prove that her killer attempted to rape her.
(Id.,
Ex. G at 16). Petitioner raised this claim for the first time in his post-conviction petition as his Second Cause of Action. However, the state court barred this claim on
res judicata
grounds. Barring a claim based on
res judicata
normally constitutes an adequate and independent state ground precluding federal habeas corpus review of Petitioner’s claim.
In his Petition, Petitioner now intertwines his argument regarding the sufficiency of the evidence with his argument that the conviction was against the manifest weight of the evidence in an attempt to bolster his argument that they are the same claim. However, even though Petitioner would have one believe that his sufficiency of the evidence claim raised in his brief to the court of appeals and Ohio Supreme Court is so similar to the instant claim that this Court should find that he did present the claim in the state courts, we disagree. Thus, because Petitioner failed to present this claim to the state courts, this Court may not consider the claim absent a showing of cause and prejudice by Petitioner.
Wainwright,
433 U.S. at 87 , 97 S.Ct. 2497 ;
Leroy,
757 F.2d at 97 . In his Traverse, Petitioner provides nothing in support of an argument for cause for his failing to raise this claim in the state courts. Although Petitioner maintains that the ineffective assistance of his appellate counsel is cause for failing to raise this claim, as we stated, Petitioner fails to satisfy the second prong of the
Strickland
analysis to sustain such an assertion. Finding that Petitioner failed present this claim to the state courts, and that a “fundamental miscarriage of justice” will not occur by not considering this claim, we conclude that part 2(A) of Petitioner’s second claim for relief is hereby waived.
CLAIM 8:
The trial court’s instructions to the jury at the sentencing phase of the proceedings advised the jury that they must consider death first before commencing deliberation on either of the two life verdicts. This instruction is fundamentally unfair, and violates the
*890
Fifth, Sixth, and Eighth and Fourteenth Amendments to the United States Constitution.
In his eighth claim for relief, Petitioner contends that the trial court’s instructions to the jury at the penalty phase, namely that they must first consider death before addressing either of the two possible life verdicts under Ohio Rev.Code § 2929.03(D)(2), was erroneous. While Petitioner acknowledges in his Traverse that the instruction given by the trial judge in his ease was modeled after the Ohio pattern jury instructions, he asserts that the instruction was partial and biased in favor of death. Petitioner asserts that the error in the initial instruction was then compounded by the trial judge’s supplemental
Allen
charge
4
to the jury, discussed
infra
Section C, claim 9, which Petitioner argues resulted in him ultimately being sentenced to death.
Petitioner did not raise this claim on direct appeal or during his appeal to the Ohio Supreme Court. The only claims that were raised that are similar, albeit not to the point of being considered “fair presentations” of this claim, include his Fourteenth Assignment of Error in his direct appeal brief and his Proposition of Law No. 9 in his brief to the Ohio Supreme Court. In these claims, Petitioner sought relief based on the trial court sending the jury back to deliberate after giving an
Allen
charge.
The first time Petitioner raises this exact claim is in his post-conviction petition as his tenth cause of action. ■ However, the court barred Petitioner’s claims under the doctrine of
res judicata.
Other than through a demonstration of cause and prejudice, we do not believe that the state court’s finding should be disturbed.
Wainwright,
433 U.S. at 87 , 97 S.Ct. 2497 . In his Traverse, Petitioner makes no showing of cause for his failure to present this claim to the state courts. Petitioner also fails to show that the Court’s failure to consider this claim will result in a “fundamental miscarriage of justice.” We therefore conclude that Petitioner’s eighth ground for relief is hereby waived.
CLAIM 10:
Petitioner Henderson was denied a fair trial, due process, equal protection of the law and the effective assistance of counsel at the voir dire stage of his trial in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
In Petitioner’s tenth ground for relief, he cites nine (9) areas in support of his assertion that he was denied effective assistance of counsel during the
voir dire
stage of the proceedings. Those areas include:
(1) the trial court refused the appointment of co-counsel even though it was standard practice in the State of Ohio at the time to appoint two attorneys to represent an indigent defendant in a capital case;
(2) trial counsel failed to object to the hardship excusal of twenty (20) jurors with the end result being that potential jurors were drawn from a general pool;
(3) trial counsel failed to object to Petitioner being in prison clothing during
voir dire;
(4) trial counsel failed to rehabilitate five (5) jurors for cause;
(5) the trial judge limited
voir dire;
(6) the trial judge berated counsel in front of the jurors;
*891
(7) trial counsel failed to challenge potential jurors Sharon Mullin, Allen Ru-pard, and Ronald Meridy;
(8) trial counsel failed to exercise all twelve (12) of his peremptory challenges;
and,
(9) the trial court’s denial of the psychiatric evidence hurt trial counsel’s performance.
In the Return of Writ, Respondent concedes that Petitioner properly asserted the first, fifth, sixth, and ninth contentions of this claim, and therefore these contentions can be heard on the merits. However, Respondent maintains that the second, third, fourth, seventh, and eighth contentions are procedurally defaulted. As we stated earlier, our primary concern in this section is with those claims and contentions Respondent argues are procedurally defaulted. Consequently, the first, fifth, sixth, and ninth contentions of this claim will be dealt with later in section C.
Having reviewed the claims asserted on the record in the state court proceedings, we recognize that Petitioner did not raise these issues on direct appeal, in his appeal to the Ohio Supreme Court, or as causes of actions in his post-conviction petition. While Petitioner maintains that his counsel on appeal was ineffective, and that ineffectiveness constitutes cause for his failing to raise the claim in the state courts, we conclude that he has not shown that his proceedings were prejudiced by his counsel deficiencies. Moreover, we conclude that Petitioner cannot demonstrate that he was prejudiced by this claim not being raised in his state court proceedings. Furthermore, we do not believe that a fundamental miscarriage of justice will occur if this Court does not consider Petitioner’s claims. Accordingly, we conclude that the second, third, fourth, seventh, and eighth claims under Petitioner’s tenth ground for relief have been waived.
CLAIM 10(A):
Petitioner was denied the effective assistance of counsel at his trial in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Petitioner also asserts that he was denied effective assistance of counsel at his trial in violation of his constitutional rights. Specifically, Petitioner asserts that his counsel was ineffective in the following ways:
(1) the trial court failed to appoint co-counsel even though it was standard practice in the State of Ohio at the time to appoint two attorneys to represent an indigent defendant in a capital case;
(2) trial counsel failed to have a psychological evaluation conducted of Petitioner and also failed to prepare for mitigation;
(3) trial counsel failed to give an opening statement and preserve his right to do so;
(4) trial counsel failed to file a motion in limine or object to the testimony of Joann Acoff;
(5) trial counsel failed to object to the trial court’s
voir dire
of Joann Acoff in front of the jury;
(6) trial counsel failed to request an opportunity to
voir dire
Joann Acoff to establish her competency to remember and tell the truth;
(7) trial counsel failed to object to the testimony of Shirley Acoff;
(8) trial counsel failed to move that the hearsay testimony of Shirley Acoff be stricken and failed to raise the issue prior to the trial by a motion in limine;
(10) trial counsel failed to move that the statements of James Martin be stricken and failed to raise the issue prior to trial by a motion in limine;
(11) trial counsel failed to move that the hearsay statement of officer Thomas Cameron be stricken;
(12) trial counsel failed to cross-examine officer Cameron;
*892
(13) trial counsel failed to adequately prepare for and conduct the cross-examination of state serologist Barbara Heiz-man;
(14) trial counsel failed to request funds from the court to hire a psychologist or psychiatrist;
(15) trial counsel failed to precisely lay out for the trial court areas of insufficient evidence in the motion for acquittal;
(16) trial counsel failed to object to inflammatory statements by the state;
(17) trial counsel failed to object to the trial court’s jury instructions to bootstrap attempted rape on aggravated burglary;
(18) trial counsel failed to object to the
Allen
charge by the trial court;
(19) trial counsel failed to object to the submission of the attempted rape instruction;
(20) trial counsel failed to object to the court’s repeated instruction that the jury’s sentence was only a recommendation;
and,
(21) trial counsel failed to object to the aggravating circumstances on the aggravated burglary charge.
In the Return of Writ, Respondent submits that Petitioner presented the first, second, eighteenth, nineteenth and twentieth issues of ground 10(A) to the state courts. Thus, we will address these claims separately in our merits review. However, we note that the other claims were not raised in the state courts and therefore are procedurally defaulted. Moreover, a review of the record shows Petitioner did not present any of these claims in the state courts. While he has asserted that his appellate counsel was ineffective, and, that ineffectiveness constitutes cause for his failing to bring these claims, we disagree that his appellate proceedings were prejudiced by his counsel deficiencies. Moreover, we conclude that Petitioner cannot demonstrate that he was prejudiced by this claim not being raised in his state court proceedings. Finding that a fundamental miscarriage of justice will not occur by not addressing these claims, we hereby REJECT issues 3-17 and 21 of claim 10(A) in his Petitioner’s Petition for a Writ of Habeas Corpus.
CLAIM 10(B):
Petitioner was denied a fair trial, due process, and equal protection of the law as well as the effective assistance of counsel at the penalty phase of his trial in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments.
. Next, Petitioner asserts that he was denied effective assistance of counsel at the penalty phase of the trial due to a number of errors by the trial court and his counsel. Specifically, Petitioner asserts that his constitutional right to effective counsel at the penalty phase was violated by:
(1) the denial by the court to appoint co-counsel;
(2) denial by the court to authorize funds for Petitioner to employ a psychiatrist or psychologist in preparation of defense or mitigation;
(3) denial by court to defense counsel’s request for a two week continuance;
(4) trial counsel’s inability to effectively communicate with Petitioner;
(5) trial counsel’s opening statement was brief and pointless;
(6) trial counsel presented only the testimony of Petitioner, Petitioner’s grandmother, aunt, and brother;
(7) trial counsel failed to present any psychological or psychiatric testimony to explain Petitioner’s behavior on the night in question;
(8) trial counsel failed to conduct any investigation into Petitioner’s history;
(9) trial counsel failed to object to any of the prosecuting attorney’s closing arguments;
(10) trial counsel failed to object to the jury being allowed to separate and go home for the night in the middle of
*893
deliberations in contravention to Ohio law;
(11) trial counsel failed to object to the court’s giving of the supplemental
Allen
charge;
and,
(12) trial counsel failed to support and argue Petitioner’s
pro se
motion for a new trial.
Petitioner further argues that the jury was given no guidance by defense counsel as to why they should not sentence him to death. Specifically, Petitioner maintains that if his counsel had been given the resources requested, he would have conducted a reasonable investigation and the jury would have been presented with the following mitigation evidence:
Jerome Henderson is presently a 30 year old Black male. He was born in Montgomery, Alabama on January 29, 1959. His mother died during his childbirth leaving Jerome and his five siblings to be raised by their maternal grandmother, Minnie Lee Elsberry. To this day, Jerome feels responsible for his mother’s death. He has never been told the cause of death. According to Jerome, he was raised in a loving household. Everyone had chores and responsibilities. Both grandparents disciplined the children using a broom handle as a paddle.
Jerome’s biological father, Jesse Henderson, Sr., was sentenced to 20 years in prison for murder in Florida. Jerome briefly reunited with him upon his father’s release, but has had essentially no contact with him.
Jerome attended public schools and participated in sports (wrestling, football) in high school. He worked part time at the Elder-Beerman Department store. He quit school in the 12th grade in order to work more hours. He worked for the Chessie Railroad from 1979 until his arrest in 1985. Prior to Jerome’s incarceration he showed a remarkably good work record compared to other capitally charged defendants.
Jerome has had little involvement with drugs and alcohol. He stated that he would buy drinks for his friends, but rarely consumed alcohol himself. Jerome’s medical history reveals a gunshot wound in 1982 which occurred during an argument with a merchant over a box of Cracker Jacks. Jerome claimed that the Cracker Jacks were stale, but the store owner would not refund his money. He was also seen in the University of Cincinnati Hospital Emergency Room in 1982 for a penile abrasion resulting, according to Jerome, from intercourse.
Jerome has had difficulty in relationships with women for most of his adult life. He has been charged with domestic violence on several occasions. He has described himself as jealous, possessive, and obsessive with women. He could not tolerate his girlfriends looking at other men. This kind of pathological jealousy suggests serious impairment in relationships with women perhaps stemming from his unresolved feelings of abandonment by his own mother.
On the Weehsler Adult Intelligence Scale — Revised (WAIS-R), Jerome scored a verbal IQ of 96. This places him in the average range of intelligence. The verbal scores are somewhat higher than those tested by Dr. Schmidtgoess-ling (IQ 85) in July of 1985. The performance scores are the same as those tested previously. Current testing reveals a pattern of introtest scatter noted previously by Dr. Schmidtgoessling. He misses easy items, but passes more difficult ones. In the area of verbal comprehension (which measures social judgment), Jerome’s responses indicate that though his intellectual capacity' is at least average, he tends to make poor decisions given his ability. On performance tests, the results indicate that Jerome is keenly aware of his environment and very sensitive to any changes. He records near perfect scores on Picture Completion (a test designed to measure visual alertness and the ability to
*894
differentiate between essential and nonessential details). However, on Picture Arrangement (a test designed to measure nonverbal reasoning and planning ability), Jerome’s scores are somewhat lower. This suggests to me that though Jerome is keenly aware of his environment, he tends to respond without adequate planning or reasoning. In my opinion, the test results are a valid indication of his overall intellectual ability. On the Minnesota Multiphasic Personality Inventory (MMPI), Jerome’s test taking attitude is extremely guarded. He appears rigid, moralistic, and guarded. His profile appears to be that of a very defensive individual whose main ego defense mechanisms are repression and denial. He appears to have little awareness of the consequences to other people of his own behavior. This kind of profile is typical of paranoid individuals.
On the Rorshach Inkblot Test, Jerome’s responses are quite limited in number. He shows good form quality on the early cards, but his form quality deteriorates as the cards become more complex. Jerome’s profile is typical of individuals who are able to handle routine tasks quite well, but tend to become quite anxious and emotional (explosive) when the situation becomes stressful.
Based on the results of the psychological evaluation clinical interviews, and review of the various records, it is my opinion that Jerome Henderson is suffering from a paranoid personality disorder. He meets the diagnostic criteria for this disorder listed on page 339 of the Diagnostic and Statistical Manual of Mental Disorder (3rd Ed.Rev.). This disorder began during his childhood years and remains his predominant personality style. Paranoid individuals expect to be exploited by others, question the loyalty of close friends, bear grudges for long periods of time, question the fidelity of sexual partners, and have difficulty confiding in others for rear [sic] that the information will be used against them. Pathological jealousy is also an important feature in many paranoid individuals. All of these factors are true for Jerome Henderson. Absolute trust is often a requirement in relationships which logically results in great disappointment, frustration, and anger.
Paranoid individuals prefer rules and structure. His paranoid personality disorder provides a frame of reference towards the rest of the world. Unfortunately, this frame of reference is incorrect as are the prevailing beliefs and expectations that result from this perspective. He distrusts most people, including those working on this petition. Paranoid individuals typically follow a pattern of defensiveness that includes denial, projection, rationalization, and reaction formation (a justification for actions combined with a denial of wrongdoing). Jerome presents all of these defenses. Given this profile, Jerome’s relationships with women are likely to be greatly distorted with resulting violence or threats of violence distorted with resulting violence or threats of violence when Jerome perceives (misperceives) disloyalty. In my opinion, much of Jerome’s problems with women stem from an inadequate and underdeveloped sense of personal identity. Though he is intelligent and physically impressive, he functions much like a tragic figure who views the world as a threatening and hostile place. This, in spite of the fact that he actually had much going for him at one time and possesses many qualities which many defendants lack. This certainly does not excuse Jerome for his culpability. It appears that in certain situations with women, his personality disorder reaches a pathological, almost delusional level, in which reason and rational thinking disappear. His denial of his involvement is consistent with the dynamics of the paranoid personality disorder.
*895
(See
doc. 4: Petition for Habeas Corpus at 77-80 (referring to the Affidavit of James R. Eisenberg, Ph.D.)).
Upon review of the record, we agree that, aside from the claims Respondent concedes were presented to the state courts (1, 2, 3, 8 & 11), the other claims were not raised, and, thus, are procedurally defaulted pursuant to
Wainwright,
433 U.S. at 87 , 97 S.Ct. 2497 . We do not believe that Petitioner has demonstrated that his counsel on appeal was ineffective to constitute cause for failing to raise these claims in the state courts. Furthermore, he cannot demonstrate that he was prejudiced by these claims not being raised in his state court proceedings. Finding that a fundamental miscarriage of justice will not occur if this Court does not consider this claim.
We also find unpersuasive, if not speculative, Petitioner’s assertion that the jury would not have recommended the death penalty if it had been able to hear testimony similar to that in Dr. Eisenberg’s affidavit. Accordingly, the fourth, fifth, sixth, seventh, ninth, tenth, and twelfth issues for relief under Claim 10(B) are hereby REJECTED for lack of merit. Petitioner’s first, second, third and eighth issues for relief under claim 10(B) will be dealt with in the merits review of this Order.
CLAIM 11:
The trial court admitted evidence of and allowed the jury to consider non-statutory aggravating circumstances and weighed them against the mitigating factors established during the sentencing hearing. The presence of non-statutory aggravating circumstances during the sentencing process gives rise to an unacceptable risk of an arbitrary and capricious sentencing decision in violation of the Eighth Amendment as well as related violations of the Fifth, Sixth, Eighth [sic] and Fourteenth Amendments.
Petitioner asserts in his eleventh claim for relief that the trial court’s instructions to the jury at the sentencing phase of the proceeding allowed the jury to consider the nature of the crime itself and then afford it weight during the balancing of the aggravating and mitigating circumstances. Consequently, Petitioner contends that the trial court’s instructions made the “heinousness of the offense” a new aggravating factor in the balancing process. Petitioner argues that, in essence, the trial court’s actions undermined the reliability of the sentencing process in violation of his constitutional rights.
Respondent counters that, even though this claim was raised on direct appeal in Petitioner’s thirteenth assignment of error, the claim was raised on the grounds of “prejudicial error” (Appendix to R.O.WApp., Vol. I, Ex. D at 42). Respondent argues in the alternative that, regardless of the claim being brought on direct appeal, Petitioner waived the claim because he failed to subsequently raise the claim to the Ohio Supreme Court.
A constitutional claim for relief must be presented to the state’s highest court in order to satisfy the fair presentation requirement.
See Hafley v. Sowders,
902 F.2d 480, 483 (6th Cir.1990). Moreover, as we stated earlier, a petitioner who fails to present a claim on direct appeal or in the Ohio Supreme Court is deemed to have procedurally defaulted his claim unless he can demonstrate cause for the procedural default.
Leroy,
757 F.2d at 97, 99-100 . Thus, this Court finds Respondent’s argument persuasive in that, even though Petitioner did “fairly present” this claim on direct appeal, he failed to raise it to the Ohio Supreme Court.
See id.
Petitioner does not demonstrate any cause for his failure to raise the claim to the Ohio Supreme Court, and this Court will not impute cause. Furthermore, Petitioner has not demonstrated that the failure by this Court to consider his eleventh claim for relief will result in a “fundamental miscarriage of justice.” Accordingly, this Court is precluded from reviewing the merits of this claim as it is deemed waived.
*896
CLAIM 12:
The multiplicitous indictment returned in this case combined with the supplemental jury charge offered by the court during the trial phase of deliberations violates the Fifth Amendment Double Jeopardy Clause and created an unacceptable risk of arbitrary and capricious death verdicts thereby offending the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
In his twelfth claim for relief, Petitioner asserts that the indictment against him constitutes a multiplicitous indictment enabling single courses of conduct to be split by the State and then bootstrapped to other charges to enhance the crime. Specifically, Petitioner contends that the intent to commit the rape was also used as the intent necessary to constitute the aggravated burglary. Thereafter, Petitioner asserts the offense of aggravated burglary was erroneously elevated from murder to aggravated felony murder which served as the aggravating circumstance necessary to elevate the case to the level of a capital offense. Petitioner maintains that this is erroneous because aggravated burglary is charged out as a separate count in the indictment, and, thus, resulted in double jeopardy in violation of his constitutional rights
(See
Petition at 84-85). However, Petitioner did not submit this claim in the state courts. Rather he submitted a claim similar, but it was brought only on grounds of state law. Finding that Petitioner failed to raise this claim in the state courts, we conclude that it has been procedurally defaulted.
CLAIM 14:
The discriminatory use of peremptory jury challenges by the State of Ohio violated Petitioner’s rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
In his fourteenth claim for relief, Petitioner contends that, during the jury selection, the prosecutor exercised three peremptory challenges to excuse African-Americans from the jury. Petitioner asserts that when defense counsel objected to the challenges of each of the potential jurors as discriminatory, the prosecutor’s only explanation was that the victim, Ms. Acoff, was also African-American. Petitioner maintains that the prosecutor’s use of its peremptory challenges not only systematically stripped the jury of any African-Americans in violation of
Batson v. Kentucky,
476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), but also resulted in a death-prone jury in violation of his constitutional rights.
However, Petitioner did not raise this claim in either his direct appeal or his appeal to the Ohio Supreme Court. Petitioner raised this claim for the first time in his post-conviction petition as his twelfth cause of action. The court noted in its post-conviction order that:
During
voir dire
when an issue concerning the use of peremptories occurred, the trial court ruled:
I don’t know any reason for such a thing to be said so publicly, Mr. Shea. I don’t think there’s any indication, the record does not indicate that the prosecution is attempting to be prejudicial in its use of peremptory excuses. I want the record to show that.
And they have, just as you have used your peremptory excuses, I think you’ve used them logically. Just as they have used their peremptory excuses, I think that they have used theirs logically. (T.P. 862)
(Appendix to R.O.W., Vol. II, Ex. R at 16). The court then barred Petitioner’s twelfth cause of action on the grounds of
res judi-cata.
The doctrine of
res judicata
is an independent and adequate ground upon which a state may preclude the court from addressing a constitutional claim. Accordingly, Petitioner must show cause why he
*897
failed to present this claim to the state courts.
Having found that Petitioner’s appellate counsel was not ineffective under our review of Petitioner’s claims in his
Muma-hcm
Application, we find that Petitioner lacks “cause” to remove the bar of procedural default. We need not determine whether he suffered any actual prejudice. Furthermore, we do not believe that a fundamental miscarriage of justice will occur if we do not address Petitioner’s claim that the peremptory challenges were viola-tive of his constitutional rights. Accordingly, this claim is dismissed as being without merit.
CLAIMS 17(A) & 24:
The appellate review conducted by the state appellate court and Ohio Supreme Court was incomplete and failed to ensure that Petitioner’s sentence was not arbitrarily and capriciously applied. Petitioner’s sentence violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Petitioner Henderson’s sentence of death is in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution because the constitutionally mandated appellate review was conducted through reliance upon an incomplete record.
Petitioner asserts in both of these claims that the appellate review was incomplete as well as based on an incomplete record in violation of his constitutional rights. Specifically, in claim 17(A), Petitioner maintains that the review of the appropriateness of the death penalty was not done thoroughly enough by the court of appeals and the Ohio Supreme Court because there were a number of unrecorded trial court proceedings and exhibits and photographs missing from the record.
Petitioner also asserts that his counsel on appeal was ineffective and that ineffectiveness constitutes cause for his failing to raise the claim in the state courts. However, we conclude that he has not shown that his proceedings were prejudiced by his counsel’s deficiencies. Moreover, we conclude that Petitioner cannot demonstrate that he was prejudiced by this claim not being raised in his state court proceedings. Furthermore, we do not believe that a fundamental miscarriage of justice will occur if this Court does not consider Petitioner’s claims. Therefore, we find no cause for having failed to raise this claim. Accordingly, this claim is dismissed as being waived by Petitioner.
CLAIM 19:
Petitioner Henderson was deprived of a fair trial, due process, and equal protection of the law in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution due to the consistent calls by the prosecuting attorney to seek justice for the community and the consistent denigration of the constitutional rights of the Petitioner.
In his nineteenth claim for relief, Petitioner asserts that throughout the
voir dire
and trial proceedings the prosecuting attorney engaged in a pattern of denigrating Petitioner and using statements to inflame the passion and prejudice of the jury. Petitioner asserts that the jury was inflamed by the prosecution’s remarks and convicted and sentenced him to death.
Respondent asserts that this claim has been defaulted by Petitioner because he failed to present it to the state courts.
A review of the record reveals that Petitioner did not raise this claim on direct appeal or to the Ohio Supreme Court. Furthermore, Petitioner did not present this claim in his post-conviction petition. In his Traverse, Petitioner fails to demonstrate cause for his procedural default of this claim. Additionally, we do not believe that a fundamental miscarriage of justice will occur if the claim is not addressed by the Court. Nevertheless, even assuming that this Court found Petitioner’s appellate counsel was ineffective and that ineffec
*898
tiveness was the cause for the procedural default of his claim, Petitioner fails to show that he was actually prejudiced by the trial remarks. For the reasons set forth in our discussion of this claim earlier in this opinion, we hereby conclude that this claim is without merit. Thus, Petitioner’s nineteenth ground for relief for relief is hereby denied.
CLAIM 25:
Petitioner Henderson was denied his right to a fair trial as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution by the State of Ohio introducing evidence of the personal characteristics of the victim at the trial and sentencing phase of the proceedings.
In his twenty-fifth claim for relief, Petitioner asserts that throughout the trial and sentencing phase of the proceedings the prosecutor continuously introduced evidence related to the character of Ms. Acoff and that of her family. Petitioner argues that this evidence had no bearing on his guilt or innocence nor was it relevant to the sentence that the jury imposed. Petitioner submits that the introduction of victim character evidence and the evidence relating to Ms. Acoffs family background was nothing more than an under-handed ploy by the prosecutor to secure a conviction and death sentence.
Respondent asserts that Petitioner failed to present this claim in the state courts and thus this Court is precluded from hearing the claim because it has been waived.
We find that this claim has also been procedurally defaulted by Petitioner. First, Petitioner did not raise the claim on direct appeal, on appeal to the Ohio Supreme Court, or in his post-conviction petition. Secondly, Petitioner fails to demonstrate any cause as to why he procedurally defaulted this claim. Thirdly, no fundamental miscarriage of justice will occur by not addressing this claim on the merits.
As we stated earlier, even assuming that Petitioner’s appellate counsel was ineffective and that is cause for the procedural default of his claim, Petitioner makes no showing that he was actually prejudiced by the state’s .introduction of the personal character of Ms. Acoff. Moreover, for the reasons set forth in our discussion of this ground earlier in this opinion, we hereby conclude that this ground is without merit.
CLAIM 26:
Petitioner is entitled to have his conviction and sentence set aside due to the unconstitutionality of the Ohio death penalty statutes, sections 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04, and 2929.05. These sections and the entire death penalty scheme in Ohio are repugnant to the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as Article I, sections 1, 2, 5, 9, 10, and 16, of the Ohio Constitution.
Petitioner asserts a number of separate claims in his twenty-sixth claim for relief, many of which Respondent concedes can be heard by the Court on the merits. Of Claim 26, Respondent argues that 26, 26(C)(2), 26(C)(2)(a), 26(C)(2)(b), 26(C)(3), 26(C)(4), 26(C)(5), 26(C)(6), 26(C)(7) have been procedurally defaulted by Petitioner. On the other hand, Respondent argues that 26(A), 26(A)(1), 26(A)(1)(a), 26(A)(1)(b), 26(A)(1)(c), 26(B), 26(B)(1), 26(B)(2), 26(B)(3), 26(B)(a), 26(B)(3)(b), 26(B)(3)(c), 26(E)(3)(d), 26(B)(4), 26(B)(5), 26(B)(6), 26(C), 26(C)(1), 26(D), 26(E) have not been waived by Petitioner. In accordance with this Order, we will first address the claims Respondent asserts have been procedurally defaulted and then we will address the claims that can be heard on the merits.
In the Return of Writ, Respondent argues that Petitioner failed to present sub-claims 26 and 26(c)(2) through 26(c)(7) to the state courts. Accordingly, Respondent asserts that these claims have been procedurally defaulted. These claims include:
*899
26: Petitioner is entitled to have his conviction and sentence set aside due to the unconstitutionality of the Ohio death penalty statutes, sections 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05. These sections and the entire death penalty scheme in Ohio are repugnant to the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as Article I, Sections 1, 2, 5, 9, 10, and 16, of the Ohio Constitution.
26(c)(2): 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.
26(c)(2)(a): The appropriate burden of proof in a capital ease should be proof beyond all doubt.
26(c)(2)(b): In the alternative, proof to a moral certainty should be required.
26(c)(3): Requiring proof of the aggravating circumstances during guilt reduces the reliability of the guilt determination procedure thereby violating due process and causing arbitrary and capricious results.
26(c)(4): The vagueness of sections 2929.03 and 2929.05 relating to the weighing of aggravating circumstances and mitigating factors leads to an arbitrary imposition of the death penalty.
26(c)(5): Lack of complete certainty about guilt must be considered as a factor in mitigation of sentence.
26(c)(6): The Ohio death penalty statute impermissibly mandates imposition of death upon proof that an aggravating circumstance merely outweighs any evidence in mitigation.
26(c)(7): The statutes fail to require the state to prove the absence of any mitigating factors and that death is the only appropriate penalty.
Reviewing the Petitioner’s briefs on direct appeal and to the Supreme Court of Ohio, we agree with Respondent that Petitioner failed to present any of these claims to the state courts. Furthermore, Petitioner has not demonstrated any cause for failing to raise any of these claims in the state courts. We also find that a fundamental miscarriage of justice will not occur if the Court refuses to review Petitioner’s claims. Therefore, we conclude that Claims 26 and 26(c)(2) through 26(c)(7) are procedurally defaulted.
D. CLAIMS THAT MUST BE ADDRESSED ON THE MERITS
Having considered each of the claims that Respondent asserts were waived, we will now consider those remaining grounds that may be heard on the merits. These claims include: Claims 1, 2, 3, 4, 5, 6, 7, 9, 16,17, 18, 20, 21, 22, and 23. Additionally, we note that there are separate claims in Claims 10, 10(A), 10(B), and 26 that must also receive a merits review by this Court.
CLAIM 1:
Petitioner’s right to due process and to an impartial jury were violated when his challenge for cause to juror Andrea Pferrman was overruled by the trial court in violation of the Fifth, Sixth, and Eighth and Fourteenth Amendments to the United States Constitution.
In his first claim for relief, Petitioner argues the trial court’s failure to remove potential juror Andrea Pferrman for cause violated his due process right to an impartial jury. Petitioner asserts that the answers given by Ms. Pferrman during the
voir dire
clearly evidenced her bias toward him. As a consequence of her alleged bias, Petitioner contends that he sought to have her removed fpr cause. However, the trial judge denied the request. Petitioner contends that he was then forced to use one of his peremptory challenges to excuse Ms. Pferrman. Petitioner argues that, had the trial judge excused Ms. Pferrman for cause, he would have used his last peremptory challenge to excuse potential juror James Nickerson.
*900
Petitioner proffers this colloquy of the
voir dire
examination of Ms. Pferrman as a reason why the trial judge should have struck her for cause:
Pferrman: I’m not real happy being here.
Q: Why not?
Pferrman: I feel as though I have always tried to be a law abiding citizen, and when someone breaks a law, I have to go out of my way. It may be selfish, but it’s part of the actual system. Everybody has to be part of it, and that’s how I feel, that since someone has broken the law I have to go out of my way. That’s the way I feel.
Q: Are you saying you’re assuming someone already broke the law and that’s why you’re here?
Pferrman: Yeah. Or why would they even be here.
Q: Are you assuming that this man broke the law?
Pferrman: Well, he hasn’t been convicted of it yet. He’s innocent until proven guilty. But eventually (sic) he’s done something.
Q: You’re assuming that he did something?
Pferrman: Yes.
('Voir dire
Tr., Vol. Ill at 591).
The court denied Petitioner’s request to have Ms. Pferrman removed because she stated that she would accept the law and accept the presumption of innocence. However, Petitioner disputes the court’s assessment of Ms. Pferrman, maintaining that the trial judge demonstrated his uneasiness with her serving on the jury when he addressed her again the following day about her acceptance of the law and acceptance of • the presumption of innocence. Further, Petitioner asserts that the trial judge’s true feeling regarding whether Ms. Pferrman should have been struck for cause is evidenced in his address to the court after the alternate jurors had been selected. The trial judge stated:
[Ms.] Pferrman, when she was here, she said she was upset about the judicial system, what 'was going on. Well it’s unfortunate she didn’t have an opportunity like you to go through it, and she would find out what’s going on. She has a strong opinion.
(Voir dire
Tr., Vol. IV at 658).
Petitioner asserts that, because it was clear during the
voir dire
proceedings that Ms: Pferrman was biased and should have been removed for cause, the court’s failure to excuse her violated Petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendment rights to the Constitution.
Respondent argues that the denial of Petitioner’s challenge for cause did not deprive him of an impartial jury, or a fair trial. Respondent argues that even though the record indicates that Ms. Pferrman held certain beliefs, she acknowledged that she could put those beliefs aside in this case. Respondent contends that the trial judge recognized that Ms. Pferrman could preside as a juror and adjudicate the case according to the law the court yrould provide. Therefore, Respondent maintains that Petitioner’s rights under the Constitution were not violated.
We agree that the record does not. show that the trial court’s decision denying Petitioner’s challenge for cause was, erroneous. The Sixth and Fourteenth Amendments to the Constitution guarantees a criminal defendant a right to a fair trial by a panel of impartial jurors.
Wainwright v. Witt,
469 U.S. 412, 418 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985);
Irvin v. Dowd,
366 U.S. 717, 722 , 81 S.Ct. 1639 , 6 L.Ed.2d 751 (1961);
see also Tinsley v. Borg,
895 F.2d 520, 523 (9th Cir.1990). The constitutional standard is “whether the juror’s views would ‘prevent or substantially impair the performance of his duties in accordance with his instruction and oath.’ ”
Witt,
469 U.S. at 424 , 105 S.Ct. 844 . Based on the trial judge’s impression of each of the prospective juror’s answers, the judge must decide whether each prospective juror can be impartial.
McQueen
*901
v. Scroggy,
99 F.3d 1302, 1321 (6th Cir.1996). That question is not one of law or fact, but of “historical fact.”
Id.
at 1320 (citing
Patton v. Yount,
467 U.S. 1025, 1036 , 104 S.Ct. 2885 , 81 L.Ed.2d 847 (1984));
Tinsley,
895 F.2d at 525 .
The Petitioner bears the burden of showing that a juror was unable to set aside any preconceived notions or opinions and render a verdict based solely upon the evidence presented in court.
Hammer v. Bowlen,
934 F.Supp. 911, 916 (M.D.Tenn.1996) (citing
Irvin,
366 U.S. at 723-24 , 81 S.Ct. 1639 ). Essentially, the trial judge’s determination is one of credibility.
Tinsley,
895 F.2d at 525 . In particular, the trial judge observes the prospective juror’s demeanor in light of the flow of the questions and answers.
Id.
In doing so, statements that may seem confusing and conflicting are made comprehensible.
Id.
In the end, the trial judge’s determinations as to juror impartiality are presumed correct, and can be rebutted only by convincing evidence.
Patton,
467 U.S. at 1038 , 104 S.Ct. 2885 . Moreover, the trial judge’s decision concerning whether a potential juror could put any biases aside is entitled to great deference.
McQueen,
99 F.3d at 1320 ;
see also Patton,
467 U.S. at 1038 , 104 S.Ct. 2885 ;
Tinsley,
895 F.2d at 525 ;
accord Knaubert v. Goldsmith,
791 F.2d 722, 727 (9th Cir.1986). Furthermore, not only do the findings of the state trial court deserve “a high measure of deference” on the question of juror impartiality, but the state appellate court’s findings do as well.
See Tinsley,
895 F.2d at 525 .
During the
voir dire
proceedings of the present case, the trial judge appropriately concluded, based on his impression of Ms. Pferrman’s answers and also her demeanor, that she could impartially preside over Petitioner’s state trial if she was required to do so. The trial judge specifically questioned Ms. Pferrman regarding her beliefs and whether, regardless of her beliefs, she could accept the law as provided by the court and accept the presumption of innocence
(Voir dire
Tr., Vol. III at 592). Ms. Pferrman answered the question in the affirmative. When she was also questioned by defense counsel on her impartiality, Ms. Pferrman answered that she would be a good juror because she was unbiased, “right in the middle of the road ... [and] not partial to anything”
(Voir dire
Tr., Vol. III at 588). Petitioner has not carried his heavy burden in this case. Mindful that the state court’s credibility findings and findings of a juror’s ability to be impartial deserve “a high measure of deference,” we conclude that the trial court did not abuse its discretion in denying Petitioner’s request to strike Ms. Pferrman for cause.
Secondly, other than his bare assertion, Petitioner makes no showing that had he would have been better off by striking Mr. James Nickerson. As the Sixth Circuit stated, “it is not enough for a defendant to say T would have been better off if....’ He must demonstrate that judicial or prosecutorial action (or inaction) resulted in a constitutional violation, not a tactical or strategic disadvantage.”
McQueen,
99 F.3d at 1320-21 . The Constitution is not designed to afford either party a right to the most advantageous tactical or strategic situation possible.
Id.
Rather, the Constitution is designed to ensure that a person receives a fair trial by an impartial jury.
Id.
Accordingly, we conclude that Petitioner was not deprived a constitutional right by the trial court’s decision to deny his request to excuse Ms. Pferrman for cause. In sum, peremptory challenges are a means to achieve the end that is an impartial jury. So long as the jury that sits is impartial, and Petitioner has made no showing otherwise in this case, the fact that he had to use his peremptory challenges to achieve that result does not show a violation of his constitutional rights. Thus, Petitioner’s first claim of relief is hereby DENIED.
*902
CLAIM 2:
Petitioner’s conviction for attempted rape and the death penalty specification of attempted raped are based upon insufficient evidence in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
In his second claim for relief, Petitioner argues that there was insufficient evidence used to convict him of aggravated murder during the course of an attempted rape of Ms. Acoff and the accompanying specification that the aggravated murder was committed during the course of an attempted rape of Ms. Acoff. Respondent counters that the evidence was constitutionally sufficient to sustain Petitioner’s conviction.
The Due Process Clause of the Fourteenth Amendment requires that the prosecution prove beyond a reasonable doubt every element necessary to constitute the crime charged.
In re Winship,
397 U.S. 358, 364 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970);
see also Jackson v. Virginia,
443 U.S. 307, 318-19 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979);
Harris v. Marshall,
687 F.Supp. 1166, 1168 (S.D.Ohio 1987). When a state prisoner challenges his conviction on the ground that the jury’s verdict is not supported by sufficient evidence, the standard of review is:
Whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson,
443 U.S. at 319 , 99 S.Ct. 2781 . In other words, the court does not ask itself whether it believes the record evidence at trial established guilt beyond a reasonable doubt or whether the instructions given the jury were proper. Instead, the court examines the evidence in a light most favorable to the government, and every inference from the evidence presented must be drawn in favor of the government.
Jackson,
443 U.S. at 319 , 99 S.Ct. 2781 ;
Johnson v. Louisiana,
406 U.S. 356, 362 , 92 S.Ct. 1620 , 32 L.Ed.2d 152 (1972);
Woodby v. I.N.S.,
385 U.S. 276, 282 , 87 S.Ct. 483 , 17 L.Ed.2d 362 (1966);
Brown v. Davis,
752 F.2d 1142, 1147 (6th Cir.1985).
We recognize that, at a minimum, “reasonable doubt” is one based upon “reason” created either from the evidence or a lack thereof.
Jackson,
443 U.S. at 317 & n. 9, 99 S.Ct. 2781 ;
see also Johnson,
406 U.S. at 360 , 92 S.Ct. 1620 . The evidence need not be absolute in convincing the trier of fact of the defendant’s guilt beyond a reasonable doubt.
Walker v. Engle,
703 F.2d 959, 969 (6th Cir.1983) (stating that “the inquiry as to sufficiency of the evidence does not require or permit a court ‘to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ”);
see also Coleman v. Edwards,
No. 96-3974, 1998 WL 791823 , at
*1
(6th Cir. Nov.4, 1998). Moreover, in federal habeas review, all possible interpretations of the evidence except guilt beyond a reasonable doubt need not be ruled out.
Harris,
687 F.Supp. at 1168 (citing
United States v. Vannerson,
786 F.2d 221, 225 (6th Cir.1986);
United States v. Stone,
748 F.2d 361, 363 (6th Cir.1984) (indicating that circumstantial evidence may be sufficient to sustain a conviction, and that such evidence need not remove every reasonable hypothesis except that of guilt)).
When a federal court is presented with a record that supports conflicting inferences, it must presume that the trier of fact resolved any conflict in favor of the prosecution.
Jackson,
443 U.S. at 326 , 99 S.Ct. 2781 . It was the jury’s duty to choose which of defendant’s statements it believed,
Scott v. Perini,
662 F.2d 428, 434 (6th Cir.1981), and not the district court’s responsibility to weigh the credibility of witnesses.
Walker,
703 F.2d at 970 . Furthermore, the district court is not permitted to overturn a conviction merely because it would have acquitted the defendant had it acted as the finder of fact.
Brown,
752 F.2d at 1147 ;
Walker,
703
*903
F.2d at 969. The Fourteenth Amendment imposes “no requirement that all other interpretations of the evidence except guilt of the defendant be ruled out.”
Delk v. Atkinson,
665 F.2d 90, 100 (6th Cir.1981).
Under Ohio law, in order to prove Petitioner attempted to rape Ms. Acoff before her death in March of 1985, the State had to prove that he purposefully or knowingly engaged in conduct that, if successful, would have constituted or resulted in Ms. Acoff being raped.
See
Ohio Rev.Code § 2923.02 (defining “attempt”).
5
At the time of the offense, Ohio law defined “rape” as:
(A) No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply: (1) The offender purposely compels the other person to submit by force or threat of force.
Ohio Rev.Code § 2907.02. Furthermore, § 2907.01(A) defines vaginal penetration as “sexual conduct.”
On August 5,1985, a jury convicted Petitioner of attempted rape, which supported his aggravated burglary conviction. Both of these specifications then elevated the murder of Ms. Acoff to felony murder, a capital offense under Ohio law. In his appeal to the Ohio Supreme Court, Petitioner asserted a challenge as his third proposition of law that the evidence was insufficient to find him guilty of attempted rape.
Henderson,
39 Ohio St.3d at 27 , 528 N.E.2d 1237 . The Court rejected Petitioner’s challenge based on an examination of the evidence. The Ohio Supreme Court made detailed findings of fact supporting the criminal conviction,
Id.
at 24-25 , 528 N.E.2d 1237 , which are set out verbatim above at pages 4-7.
In the instant matter, Petitioner maintains that the evidence at trial was insufficient to support his conviction, asserting that the fact that Ms. Acoffs body was found nude and lying face up is not enough to sustain a verdict of attempted rape. In compliance with the principles set forth in
In re Winship
and
Jackson ,
this Court’s analysis concerns only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. After reviewing the evidence, we answer this question affirmatively. Moreover, we find that the evidence is overwhelming that Petitioner attempted to rape Ms. Acoff before her death on that early morning in March.
Ms. Acoffs body was found in her apartment on the living room floor. She was nude and lying in an upward position. Her legs were spread apart. The cause of death was ruled to be multiple stab, incised, and blunt injuries to the head, chest, neck, and upper extremities. The deputy coroner testified that, in light of the general pattern of the bloodstains over the upper torso of Ms. Acoffs body, she was killed while lying in a horizontal, position. Additionally, even though a gold chain, television set and stereo were all within a close proximity of Ms. Acoffs, the State presented evidence at trial that nothing was stolen from the apartment.
Investigators also discovered semen in Ms. Acoffs vagina. While the discovery of the semen tends to corroborate the fact that Ms. Acoff engaged in sexual intercourse hours before her death with her boyfriend, James Martin, who is a type O secretor, the semen found in her vagina is also consistent with Petitioner’s blood type. The semen is also consistent with the semen stains found on Petitioner’s coat, which also bore bloodstains consistent with Ms. Acoffs blood type (AB). Petitioner attempts to discount the importance of the semen by pointing to the fact
*904
that Ms. Acoffs genital area was not injured. However, we find this suggestion fails to counteract the inference that an attempted rape occurred. This is especially true in light of the fact that Ms. Acoffs left hand had been cut and wrapped in a towel. This fact may have led the jury to infer that there was some lapse in time between the first aggressive act toward Ms. Acoff and her eventual demise. Coupling the inference of a break in the time of Petitioner’s first aggressive act toward Ms. Acoff with the coroner’s conclusion that she was eventually murdered in a horizontal position as well as the fact that her body was found nude with her legs spread apart, we believe that there was sufficient evidence from which a jury could conclude that Petitioner attempted to make Ms. Acoff submit by
force or
the threat of force to sexual intercourse regardless of whose semen was on Petitioner’s coat.
Thus, upon review of the record and facts therein, we conclude that there was sufficient evidence from which the court could find Petitioner guilty of attempted rape and therefore guilty of aggravated burglary, which raised the charge against him to felony murder, and thus, to a capital case. We hereby DENY Petitioner’s second claim for relief.
CLAIMS:
The aggravating circumstances charged as specifications to felony-murder counts in the indictment failed to narrow the class of death-eligible individuals. The aggravating circumstances allege conduct which is identical to the conduct charged in felony-murder felony, and fail to narrow the class at all. The failure to narrow the class of persons eligible for the death penalty denied Petitioner Henderson his rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
In his third claim for relief, Petitioner argues that Ohio’s capital sentencing scheme fails to narrow the class of individuals who become death-eligible. Petitioner asserts that a reading of Ohio Rev.Code §§ 2903.01(B)
6
and 2929.04(A)(7)
7
in light of one another shows that every aggravated felony murder in Ohio is automatically death-eligible. Petitioner contends that the statutory scheme enables the prosecution to bootstrap a murder committed during the course of a felony to the enumerated felonies in order to increase the charge from murder to aggravated murder to then make an individual death-eligible.
Respondent challenges Petitioner’s claim, asserting that, in order for a defendant to be sentenced to the death penalty in Ohio, they must first be found guilty of aggravated murder pursuant to Ohio Rev. Code § 2903.01 and then satisfy one or more of the eight statutory aggravating circumstances under Ohio Rev.Code § 2929.04. Although Petitioner contends that the unconstitutionality of the Ohio law exists in the fact the seventh statutory aggravating circumstance in § 2929.04(A)(7) overlaps with the underlying offense of the felony murder category, Respondent cites to
State v. Jenkins,
15 Ohio St.3d 164 , 473 N.E.2d 264 (1984), for the proposition that Ohio’s statute did suf
*905
ficiently narrow the class of death-eligible offenders.
The Ohio Supreme Court also reviewed this claim on appeal as Petitioner’s fourth proposition of law. Citing
Jenkins ,
the Ohio Supreme Court rejected Petitioner’s contention. Moreover, the Ohio Supreme Court stated:
R.C. 2929.04(A)(7), which' sets forth the aggravating circumstances of aggravated burglary and rape, fulfills that purpose by allowing the death penalty to be imposed for felony murder only when the defendant was the principal offender or when the murder was premeditated. By such a limitation, the Ohio General Assembly has complied with
Zant [v. Stephens,
462 U.S. 862, 877 , 103 S.Ct. 2733 , 77 L.Ed.2d 235 (1983) ], by narrowing the class of death-eligible aggravated murders.
Even if we assume, for the sake of argument that the aggravating circumstances for felony murder (set forth in R.C. 2929.04[A][7]) are identical 'to the elements of aggravated murder (set forth in 2903.01[B]), the Ohio death penalty scheme is constitutional.
Henderson,
39 Ohio St.3d at 28-29 , 528 N.E.2d 1237 .
In
Jenkins ,
the appellant argued that the aggravating factors for- felony murders duplicated the elements of the offense. According to the appellant, this was in stark contradistinction to the offense of murder by calculation and design because it required proof of a separate aggravating circumstance in order to justify the sentence of death.
See id.
at 177 , 473 N.E.2d 264 . The court in
Jenkins
concluded that, even assuming the aggravated conduct of felony murder set forth in R.C. § 2903.01(B) was functionally equivalent to the aggravating circumstance under R.C. § 2929.04(A)(7), no constitutional infirmities would arise.
Id.
at 178, 473 N.E.2d 264 . The
Jenkins
court declared that:,
On the contrary, any duplication is the result of the General Assembly having set forth in detail when a murder in the course of a felony rises to the level of a capital offense, thus, in effect, narrowing the class of homicides in Ohio for which the death penalty becomes available as a sentencing option.
Id.
•In 1988, the United States Supreme Court reaffirmed in
Lowenfield v. Phelps,
484 U.S. 231 , 108 S.Ct. 546 , 98 L.Ed.2d 568 (1988), the proposition that a state’s capital sentencing scheme must genuinely narrow the class of individuals eligible for the death penalty as compared to those found guilty of an underlying offense.
Id.
at 244 , 108 S.Ct. 546 . Immediately following the
Lowenfield
decision, the Ohio Supreme Court revisited the issue of whether a capital specification based upon § 2929.04(A)(7) narrows -the class of those charged with felony murder in
State v. Benner,
40 Ohio St.3d 301 , 533 N.E.2d 701 (1988). In
Benner ,
the Ohio Supreme Court reaffirmed its holding in
Jenkins
that “the aggravating circumstances of § 2929.04(A)(7) and the elements of aggravated murder under § 2903.01(B) are not duplicative, and, therefore, not constitutionally infirm.”
Id.
at 306-307, 533 N.E.2d 701 .
Accordingly, we conclude that no constitutional infirmity arises when the State of Ohio charges an individual with aggravated murder pursuant to § 2903.01(B) of the Ohio Revised Code and accompanied by a capital' specification based "on § 2929.04(A)(7). Thus, Petitioner’s third claim for relief is DENIED.
CLAIM 4:
The jury at Petitioner’s trial was repeatedly told that the responsibility for determining the appropriateness of the death sentence lay elsewhere, a statement which is incorrect under Ohio law as a matter of láw and fact. This violated the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution;
*906
In his fourth claim for relief, Petitioner argues that during the course of the
voir dire,
trial, and penalty phase of the proceedings, the court repeatedly informed the jury that its verdict was only a recommendation and that the court would be the final decisionmaker in the case. Petitioner asserts that the remarks of the court diminished the jury’s sense of responsibility and, in effect, encouraged the jury to render a verdict of death. Petitioner argues that the overall result of the jury’s diminished sense of responsibility is an arbitrary and capricious sentencing decision in violation of the Constitution.
Respondent disagrees with Petitioner’s assertions, arguing that even though the instruction presented by the presiding judge was not an instruction preferred by the Ohio Supreme Court, it has been held to represent an accurate and non-prejudicial statement of Ohio law.
The Supreme Court of Ohio found Petitioner’s argument to be without merit, reasoning that the court’s presentation of an instruction that accurately states Ohio law was sufficient to preclude reversible error.
Henderson,
39 Ohio St.3d at 30 , 528 N.E.2d 1237 .
In
Caldwell v. Mississippi
472 U.S. 320 , 105 S.Ct. 2633 , 86 L.Ed.2d 231 (1985), the Supreme Court recognized that there is an inherent danger in causing jurors in a capital ease to believe that the ultimate responsibility for the death sentence lies elsewhere instead of with them.
Id.
at 328-29 , 105 S.Ct. 2633 (declaring that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who had been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere”). The Supreme Court declared that the prosecutor in
Caldwell
sought to give the jury a view of its role in the capital sentencing procedure that was fundamentally incompatible with the Eighth Amendment’s heightened “need for reliability in the determination that death is the appropriate punishment in a specific case.”
Id.
at 340 , 105 S.Ct. 2633 (citation omitted).
In a later case, the Supreme Court indicated that a claim under
Caldwell
is relevant only to certain types of comments, namely those that lull the jury into feeling less responsible than it should for its sentencing decision.
Dugger v. Adams,
489 U.S. 401, 407 , 109 S.Ct. 1211 , 103 L.Ed.2d 435 (1989). In other words, in order to establish a violation of
Caldwell ,
the defendant must show that either the prosecutor or the trial judge improperly described the jury’s role under the state law in order to “water down” the jury’s responsibility.
Kordenbrock v. Scroggy,
919 F.2d 1091, 1101 (6th Cir.1990). However, if the jury instructions that are challenged by the defendant accurately describe the role of the jury under the state law, there is no basis for a
Caldwell
claim.
Dugger,
489 U.S. at 407 , 109 S.Ct. 1211 . Therefore, the defendant must show that the remarks to the jury that the defendant challenges improperly described the role assigned to the jury by the local law.
Id.
As set forth in this case, the law of Ohio states:
Upon consideration of the relevant evidence raised at trial, the testimony, other evidence, statement of the offender, arguments of counsel, and, if applicable, the reports submitted pursuant to division (D)(1) of this section, the trial jury, if the offender was tried by a jury, shall determine whether the aggravating circumstances the offender was found guilty of committing are sufficient to outweigh the mitigating factor’s present in the case. If the trial jury unanimously finds, by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on the offender. Absent such a finding, the jury shall recommend that the offender be sentenced to life impris
*907
onment with parole eligibility after serving twenty full years of imprisonment or to life imprisonment with parole eligibility after serving thirty full years of imprisonment.
If the trial jury recommends that the offender be sentenced to life impri

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2510326. Public record. Not legal advice.