James P. Frazier v. Charlotte Jenkins

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0269p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

JAMES FRAZIER, ┐

Petitioner-Appellant, │

│

│ No. 11-4262

v. │

>

│

CHARLOTTE JENKINS, Warden, │

Respondent-Appellee. │

┘

Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 3:09-cv-1208—Patricia A. Gaughan, District Judge.

Argued: November 18, 2013

Decided and Filed: October 27, 2014

Before: MOORE, GIBBONS, and SUTTON, Circuit Judges.

_________________

COUNSEL

ARGUED: David L. Doughten, Cleveland, Ohio, for Appellant. Brenda S. Leikala, OFFICE

OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: David

L. Doughten, Cleveland, Ohio, John B. Gibbons, Cleveland, Ohio, for Appellant. Brenda S.

Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

MOORE, J., delivered the opinion of the court, in which GIBBONS, J., joined, and

SUTTON, J. joined in part. SUTTON, J. (pp. 25–27), delivered a separate opinion concurring in

all but Section III.A of the majority opinion.

1

No. 11-4262 Frazier v. Jenkins Page 2

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. An Ohio state-court jury convicted

Petitioner-Appellant, James Frazier, of aggravated murder (with two death-penalty

specifications), aggravated burglary, and aggravated robbery. The jury recommended the death

penalty, and the state-trial-court judge sentenced him to die by lethal injection. After exhausting

his state appeals, Frazier filed a petition for a writ of habeas corpus in federal district court,

arguing inter alia that he is ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304

(2002), due to his intellectual disability, that his trial counsel provided ineffective assistance, and

that Ohio’s lethal-injection regime is unconstitutional. The district court denied Frazier’s

petition. Because the state courts’ decisions were not contrary to, nor an objectively

unreasonable application of, clearly established federal law as defined by the United States

Supreme Court, we AFFIRM the district court’s denial of Frazier’s petition.

I. BACKGROUND

A. Facts

Early in the morning of March 2, 2004, Frazier brutally murdered Mary Stevenson. The

police found Stevenson’s body at the foot of her bed later that evening. On March 3, the police

searched the dumpster used by Stevenson and other first-floor residents of the apartment

complex, found nothing, and proceeded to search the sealed dumpster used by Frazier and other

residents on the second through tenth floors. In this second dumpster, the police discovered

some of Stevenson’s belongings, as well as a bloody knife, which matched one missing from

Stevenson’s knife block. They also found a bloody t-shirt (size XXL) and pieces of mail

addressed to Frazier near Stevenson’s belongings. Based on this information, investigators

sought, obtained, and executed a search warrant for Frazier’s apartment where they confiscated

two t-shirts that matched the bloody one’s brand, style, and size.

On March 4, detectives William Seymour and Denise Knight interviewed Frazier in

connection with Stevenson’s murder. They read Frazier his Miranda rights, and he waived them.

No. 11-4262 Frazier v. Jenkins Page 3

See Joint Appendix (“J.A.”) Vol. 7 at 3252–54 (Seymour Test.); App’x to Writ Vol. 8 at 195

(Miranda waiver). Det. Seymour testified that Frazier appeared “clearheaded,” that he

understood his rights, and that he was not “under the influence of . . . crack cocaine or alcohol.”

J.A. Vol. 7 at 3252:21–3253:6 (Seymour Test.). During questioning, Frazier gave answers that

the detectives found to be inconsistent with other evidence in the case. Additionally, the police

conducted forensic tests on the knife, t-shirt, and various hairs and bodily fluid samples, which

implicated Frazier.

On March 9, a grand jury indicted Frazier for aggravated murder with two death-penalty

specifications, in violation of Ohio Revised Code § 2903.01(B); aggravated robbery, in violation

of § 2911.01(A)(3); and aggravated burglary, in violation of § 2911.11(A)(1). J.A. Vol. 1 at

294–95 (Indictment). The state trial court appointed counsel, and counsel, in turn, requested that

the court authorize funds for the employment of a psychologist and a mitigation expert. The

court granted this motion on December 30, 2004.

Frazier’s counsel hired Dr. Jeffrey L. Smalldon, a board-certified forensic psychologist

with death-penalty experience, to determine whether Frazier was mentally retarded.1 Dr.

Smalldon met with Frazier twice: on January 12 and May 2, 2005. J.A. Vol. 3 at 1075

(Smalldon Report). He administered a battery of tests, including the Wide Range Achievement

Test–Revision 3 (“WRAT–3”), the Wechsler Adult Intelligence Scale–Third Edition (“WAIS–

III”), the Bender Visual Motor Gestalt Test (“Bender”), the Trail Making Test (Parts A and B),

the Aphasia Screening Test, and the Rotter Incomplete Sentences Blank Test. Dr. Smalldon

considered administering several other tests, but he “concluded that [Frazier’s] limited reading

and comprehension abilities wouldn’t enable him to produce valid profiles on instruments such

as those.” Id. at 1075.

1

In 2013, the American Psychiatric Association (“APA”) changed its use of the term “mental retardation”

to “intellectual disability.” See Hall v. Florida, 134 S. Ct. 1986, 1990 (2014) (citing APA, Diagnostic and

Statistical Manual of Mental Disorders 33 (5th ed. 2013) (“DSM–5”)). The federal government has followed suit.

See id. (citing Rosa’s Law, 124 Stat. 2643 (changing terminology in United States Code)); Burbridge v. Comm’r of

Soc. Sec., --- F. App’x ---, 2014 WL 3409645, at *1 n.1 (6th Cir. July 15, 2014) (noting the change in Social

Security Administration regulations). The terms refer to the same condition. For the sake of clarity, we use the

older terminology in this opinion because it was the operative term at the time of the previous proceedings in this

case.

No. 11-4262 Frazier v. Jenkins Page 4

On the WRAT–3, which measures “an individual’s ability levels,” J.A. Vol. 8 at 3525:7–

8 (Smalldon Test.), Frazier scored “within the range . . . typically associated with either mild

mental retardation or borderline intellectual functioning,” J.A. Vol. 3 at 1083 (Smalldon Report).

He could not spell “circle,” “enter,” or “believe”; he could not do “fairly simple, two- and three-

column subtraction problems”; he could not “correctly read words like ‘lame’ and ‘split.’” Id.

On the WAIS–III, the standard IQ test, Frazier received a Verbal IQ score of 77, a

Performance IQ score of 72, and a Full Scale IQ score of 72.2 Id. On particular WAIS–III

subtests, Frazier struggled. He defined “yesterday” to mean “a day after”; “sentence” meant

“more than one word”; “confide” meant “to ask questions from someone else”; and “ballad”

meant “it’s approved!” Id. at 1083–84 (internal quotation marks omitted). As Dr. Smalldon

noted, Frazier “had no idea how to define words like ‘ponder,’ ‘tranqil’ [sic], ‘reluctant,’ [or]

‘plagiarize.’” Id. at 1084. In his report, Dr. Smalldon noted that Frazier’s scores suggested

“intellectual functioning at around the cusp of the ‘mildly retarded’ and ‘borderline intellectual

functioning’ ranges.” Id.

The Bender and Aphasia tests did not go well either. On Part B of the Trail Making Test,

Frazier made two errors and took seven minutes to complete a task that “the vast majority of

unimpaired subjects can easily complete—without sequencing errors—in 60–90 seconds.” Id. at

1085.

Dr. Smalldon also considered Frazier’s school records that had been gathered by the

court-appointed mitigation specialist. Frazier’s elementary school records note that his

scholastic achievement was “not too bad, but [he] is a B.A. pupil.” Id. at 1120 (Elementary

School Record). Dr. Smalldon guessed that “B.A.” stood for “below average.” J.A. Vol. 8 at

3579:16 (Smalldon Test.). According to Frazier’s high school records, he received exclusively

“D” grades, except for physical education class in which he received two “Cs” and one “F.” J.A.

Vol. 3 at 1103 (High School Record). The records also reflect that the school classified Frazier

2

At trial, Dr. Smalldon admitted that “[t]here’s a little margin of error, so that, you know, maybe if a person

got a 70, maybe their real IQ is 67 or maybe it’s 73. There’s wiggle room that goes about five points either way. So

when I say 70 is the threshold that’s usually used, you have to be below that, you know, there’s a little gray area on

either side of 70.” J.A. Vol. 8 at 3535:10–16 (Smalldon Test.).

No. 11-4262 Frazier v. Jenkins Page 5

as a “slow learner,” that he attended special education classes, and that he withdrew from the

tenth grade at nineteen years old. Id. at 1103–04.

Despite these tests and records, Dr. Smalldon did not find Frazier to be mentally retarded.

Dr. Smalldon reported that Frazier could cash his disability check (which he received based on a

finding of mental retardation), use a phone card, cook for himself, and travel on public

transportation. Id. at 1085. These actions led Dr. Smalldon to believe that Frazier functioned

“not far above the upper threshold that’s typically used for demarcating the domain of ‘mild

mental retardation.’” Id. at 1086.

In anticipation of a hearing to determine Frazier’s mental capacity, Dr. Gregory Forgac—

a court-appointed clinical psychologist for the state—also met with Frazier for two hours and

fifteen minutes. Id. at 1092 (Forgac Report). Dr. Forgac found Frazier to be “attentive,” capable

of “express[ing] himself in a clear and effective manner,” and able to “maintain[] adequate eye

contact.” Id. at 1093. In his report, Dr. Forgac noted that Frazier had stated that he “couldn’t

learn when [he] went to school. Couldn’t get it right.” Id. at 1094 (internal quotation marks

omitted). Like Dr. Smalldon, Dr. Forgac administered the WAIS—III test. Frazier received a

Verbal IQ score of 81, a Performance IQ score of 73, and a Full Scale IQ score of 75. Id. at

1095–96. Dr. Forgac admitted a “95% confidence level” in the scores. Id. at 1096. Based on

these scores and Frazier’s ability to use the bus system and appear “neat and clean,” Dr. Forgac

found Frazier not to be mentally retarded. Id.

On the basis of Dr. Forgac’s report and discussions with Dr. Forgac and Dr. Smalldon,3

Frazier’s counsel withdrew the motion for a determination of mental capacity. See J.A. Vol. 3 at

1447–51 (May 3, 2005 Tr.). The court granted defense counsel’s request and admitted Dr.

Forgac’s report into evidence. Id. at 1450:8–13. The following week, the state-trial-court judge

had enough worries to review Ohio’s test for mental retardation, as stated in State v. Lott, 779

3

Dr. Smalldon did not release his report until May 14, 2005—after Frazier’s trial counsel withdrew the

motion for determination of mental retardation. See J.A. Vol. 3 at 1447 (May 3, 2005 Tr.). However, Dr. Smalldon

had completed his evaluations, and counsel had “lengthy discussions with Dr. Smalldon” prior to counsel’s

withdrawal of the motion. Id. at 1448:21–22. Presumably those discussions touched on Dr. Smalldon’s findings.

Dr. Smalldon would later testify during the mitigation phase of Frazier’s trial, and Frazier’s counsel admitted Dr.

Smalldon’s report into evidence. See J.A. Vol. 8 at 3503–72 (Smalldon Test.); id. at 3573:7–11 (admission of

report).

No. 11-4262 Frazier v. Jenkins Page 6

N.E.2d 1011 (Ohio 2002), with defense counsel and to question counsel and Frazier on the

record. Counsel stated that his decision to withdraw the motion was based upon both

psychologists finding (1) that Frazier had an IQ above 70; (2) that the Lott presumption against a

finding of mental retardation could not be rebutted based on Frazier’s “functional adaptation”;

and (3) that the psychologists’ findings would be useful at the mitigation phase. J.A. Vol. 4 at

1512–13 (May 9, 2005 Tr.). The trial court then engaged in a colloquy with Frazier during

which the defendant agreed to the withdrawal of the motion. Id. at 1513–14. At this time,

Frazier also rejected a plea agreement with the state in which he would plead guilty to a three-

judge panel and the state would tell the panel that it was not seeking the death penalty. Id. at

1505–1510.

Frazier went to trial. The state called numerous witnesses and introduced more than one

hundred exhibits into evidence. At the close of the state’s case, Frazier’s counsel moved for a

judgment of acquittal pursuant to Ohio Rule of Criminal Procedure 29. J.A. Vol. 8 at 3303 (May

17, 2005 Tr.). The court rejected this motion. Id. at 3305:22–23. The defense offered no other

evidence or witnesses during the guilt phase. On May 18, the jury convicted Frazier of all counts

and specifications. J.A. Vol. 2 at 558–68 (Verdicts).

During the mitigation phase, defense counsel called Dr. Smalldon to testify. Dr.

Smalldon testified that “consultation to domestic courts” in child-custody cases represents “80 to

85 percent” of his practice. J.A. Vol. 8 at 3513:2–4 (Mitigation Tr.). Dr. Smalldon also stated

that he had served as a consultant in “close to 200” death-penalty cases over thirteen years. Id. at

3513:16–19. He reviewed many of his findings from his report discussed above. Id. at 3517–37;

3552–59. He further described Frazier’s difficult upbringing, including his troubling family

situation, and his substance-abuse history. Id. at 3537–45; 3559. Dr. Smalldon described the

effects of crack-cocaine addiction, though he noted that commenting too much on the

physiological effects of crack cocaine “would take [him] beyond [his] expertise.” Id. at 3568:2.

Despite this testimony, the jury recommended the death penalty. J.A. Vol. 2 at 571 (State Ct. J.).

No. 11-4262 Frazier v. Jenkins Page 7

B. Procedural History

1. State-Court Proceedings

Frazier appealed to the Ohio Supreme Court, raising twenty-four propositions of law,

including (1) a claim that Frazier is not eligible for the death penalty under Atkins; (2) several

claims of ineffective assistance of counsel for (a) failure to present evidence of mental

retardation, including testimony from a mental-retardation expert, (b) failure to suppress pre-trial

statements and evidence collected pursuant to a search warrant, and (c) failure to retain a

substance-abuse expert; and (3) a claim that the death penalty, generally, and by lethal injection,

in particular, violates the Eighth Amendment. See J.A. Vol. 2 at 617–45 (Br. in Ohio S. Ct.);

J.A. Vol. 1 at 109–11 (D. Ct. Op.) (listing the twenty-four propositions). The court addressed all

twenty-four propositions in turn. In relevant part: for the first time, the Ohio Supreme Court

held that a defendant could waive an Atkins claim, which Frazier did by withdrawing the motion

to determine mental capacity, and that he subsequently failed to carry his burden of proving plain

error. State v. Frazier, 873 N.E.2d 1263, 1291 (Ohio 2007). Similarly, it denied Frazier’s

ineffective-assistance-of-counsel claim related to mental retardation because of Dr. Forgac’s and

Smalldon’s IQ test results and a lack of countervailing evidence. Id. at 1291–92.

The court also held that there was otherwise no ineffective assistance of counsel.

According to the Ohio Supreme Court, Frazier’s counsel did not err by failing to suppress

Frazier’s pre-trial statements to police because there was no evidence of police coercion or that

Frazier could not make a voluntary and knowing waiver. Id. at 1285. Likewise, it dismissed his

claim regarding failure to challenge evidence obtained according to a search warrant. Id. at

1286. The court rejected Frazier’s final ineffective-assistance claim based on a failure to retain a

substance-abuse expert because it found that Dr. Smalldon had done a sufficient job. Id. at 1301.

The court summarily rejected Frazier’s challenges to the death penalty and lethal

injection. Id. at 1302. Finally, after rejecting Frazier’s other, unrelated claims, the court

reweighed the evidence and affirmed the trial court’s imposition of the death penalty. Id. at

1305.

No. 11-4262 Frazier v. Jenkins Page 8

While Frazier’s direct appeal was pending in the Ohio Supreme Court, he filed an

application for post-conviction relief in the state trial court, asserting nine claims for relief. That

court rejected Frazier’s motion, finding that it was barred by principles of res judicata. He

appealed to the state court of appeals, arguing that (1) he was ineligible for the death penalty due

to being mentally retarded; (2) he was denied effective assistance of counsel because of failure to

(a) assert mental retardation, (b) present evidence related to his background at mitigation, and

(c) present testimony of a substance-abuse expert; and (3) the death penalty by lethal injection is

unconstitutional. J.A. Vol. 3 at 985–1002 (Br. in Ohio Ct. of Appeals); J.A. Vol. 1 at 111–12 (D.

Ct. Op.) (listing claims). As part of his submissions, Frazier included an affidavit from Dr.

Timothy Rheinscheld, asserting that Frazier could be mentally retarded based on the IQ test’s

margin of error, J.A. Vol. 2 at 773; affidavits from family members, id. at 793–98; a letter from

the Social Security Administration, stating that Frazier received benefits due to his mental

retardation, id. at 791–92; and an affidavit and report from a substance-abuse expert, id. at 799–

812. State v. Frazier, No. L-07-1388, 2008 WL 4408645, at *6–7 (Ohio Ct. App. Sept. 30,

2008). The Ohio Court of Appeals also rejected his claims. Id. at *15.

First, the court cited Ohio’s doctrine of res judicata, which prohibits a defendant from

raising arguments that were made or could have been made at trial or on direct appeal. Id. at *9

(citing State v. Perry, 226 N.E.2d 104, 108 (Ohio 1967)). On this standard, the state court of

appeals held that the Ohio Supreme Court had decided Frazier’s claims or that he could have

raised them on appeal; therefore, they were barred by res judicata. Id. at *10–11. The state court

of appeals, however, also recognized that an exception to this procedural bar exists if the

defendant can put forward material evidence outside the record. Id. (citing State v. Cowan, 783

N.E.2d 955, 958 (Ohio Ct. App. 2002)). However, it held that Frazier’s additional submissions

were cumulative and did not trigger the recognized exception to res judicata. Id. at *10–12.

2. Federal Habeas Proceedings

On September 11, 2009, Frazier filed a petition for a writ of habeas corpus in federal

district court. He asserted fifteen grounds for relief, including (1) an Atkins claim; (2) a claim of

ineffective assistance of counsel for (a) failing to raise an Atkins claim, (b) failing to request a

mental-retardation expert, (c) failing to move to suppress evidence, (d) failing to investigate

No. 11-4262 Frazier v. Jenkins Page 9

Frazier’s background during mitigation, and (e) failing to obtain a substance-abuse expert; and

(3) a challenge to lethal injection. See J.A. Vol. 1 at 34–95 (Pet. for Writ); id. at 113–15 (D. Ct.

Op.). The federal district court found that Frazier waived his Atkins claim, id. at 139 (D. Ct.

Op.); it also found that Frazier’s Atkins and Atkins-related ineffective-assistance-of-counsel

claims were barred by res judicata, id. at 141. Despite these procedural defaults, the court

evaluated Frazier’s mental-retardation claim de novo because the Ohio Supreme Court reviewed

Frazier’s Atkins claim only for plain error. Id. at 142. Nonetheless, the district court found that

Frazier could not satisfy his burden even under this standard. Id. at 150. It reviewed Frazier’s

other claims on the merits, but it rejected them as well.

This appeal followed. The district court granted a certificate of appealability on Frazier’s

Atkins claim, Atkins-based ineffective-assistance-of-counsel claim, and his failure-to-suppress-

evidence claim. Id. at 206. This court granted a certificate of appealability on three additional

claims: (1) ineffective assistance of counsel for failing to investigate Frazier’s background;

(2) ineffective assistance for failing to retain a substance-abuse expert; and (3) the

unconstitutionality of Ohio’s lethal-injection system. See Frazier v. Bobby, No. 11-4262

(6th Cir. June 13, 2012) (order).

II. STANDARD OF REVIEW

Prisoners may not be held “in violation of the Constitution or laws or treaties of the

United States.” 28 U.S.C. § 2254(a). Despite the simplicity of this command and the proud

history of the Great Writ, our review of state-court convictions is carefully circumscribed under

the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104–132,

110 Stat. 1214. First, for us to consider a state prisoner’s habeas petition in federal court, the

prisoner must clear two procedural hurdles. One, a petitioner must exhaust his state-court

remedies. 28 U.S.C. § 2254(b)(1)(A). Two, if a state court denies relief on adequate and

independent procedural grounds, a federal court may entertain those claims only if the petitioner

shows “cause and prejudice” for failing to comply with state procedures, Murray v. Carrier,

477 U.S. 478, 486 (1986), or if refusing to hear the claim would result in a “fundamental

miscarriage of justice,” id. at 495–96 (internal quotation marks omitted).

No. 11-4262 Frazier v. Jenkins Page 10

Second, provided that the petitioner exhausted his claims in state court and the state court

rendered a decision on the merits, we must defer to the state court’s decision of a claim unless its

decision “was contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States . . . .” 28 U.S.C. § 2254(d)(1).

“Clearly established law,” as the Supreme Court has reminded us, “includes only ‘the holdings,

as opposed to the dicta, of [the Supreme] Court’s decisions.’” White v. Woodall, 134 S. Ct.

1697, 1702 (2014) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). Moreover, “an

unreasonable application of” clearly established Federal law requires a state-court decision to be

“objectively unreasonable,” meaning that “a state prisoner must show that the state court’s ruling

on the claim being presented in federal court was so lacking in justification that there was an

error well understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Id. (internal quotation marks omitted).

These standards are “difficult to meet, . . . [and they were] meant to be.” Harrington v.

Richter, 131 S. Ct. 770, 786 (2011). The petitioner’s burden is made even heavier by the fact

that we, as a federal court, are “limited to the record that was before the state court that

adjudicated the prisoner’s claim on the merits.” Greene v. Fisher, 132 S. Ct. 38, 44 (2011)

(citing Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011)). We are also limited to the law as it

existed at the time of the state court’s decision if we are reviewing a state court’s merits

determination under § 2254(d). Id. at 44–45; see also Cunningham v. Hudson, --- F.3d ---, 2014

WL 2853721, at *8 n.4 (6th Cir. 2014) (noting that these restrictions apply only when federal

courts are reviewing state-court merits determinations).

In this case, the district court determined that none of Frazier’s claims cleared all of these

hurdles and, therefore, denied Frazier’s petition. We review this decision de novo. Murphy v.

Ohio, 551 F.3d 485, 493 (6th Cir. 2009).

III. ANALYSIS

A. Atkins Claim

Frazier’s first contention is that he is not eligible for the death penalty under Atkins v.

Virginia, 536 U.S. 304 (2002), and State v. Lott, 779 N.E. 2d 1011 (Ohio 2002), because he is

No. 11-4262 Frazier v. Jenkins Page 11

mentally retarded. In Atkins, the Supreme Court held that the Eighth Amendment bars execution

of the mentally retarded, 536 U.S. at 321, but it left “‘to the [s]tate[s] the task of developing

appropriate ways to enforce the constitutional restriction upon [their] execution of sentences,’”

id. at 317 (quoting Ford v. Wainwright, 477 U.S. 399, 405, 416–17 (1986)) (second and third

alterations in original). In Lott, the Ohio Supreme Court held that a defendant must prove—by a

preponderance of the evidence—three things to be ineligible for the death penalty:

“(1) significantly subaverage intellectual functioning, (2) significant limitations in two or more

adaptive skills, such as communication, self-care, and self-direction, and (3) onset before the age

of 18.” 779 N.E.2d at 1014. Additionally, the Lott court erected a “rebuttable presumption that a

defendant is not mentally retarded if his or her IQ is above 70.”4 Id.

Frazier’s claim of mental retardation is complicated by the fact that there has never been

a determination on the merits of whether Frazier is mentally retarded because Frazier’s counsel

withdrew the motion before the state trial court to determine mental capacity. On direct appeal,

the Ohio Supreme Court held that a defendant could forfeit his rights under Atkins. In this case,

it concluded that Frazier had done so by withdrawing his request for a hearing on the issue and

by not complying with the contemporaneous objection rule. In any event, the Ohio Supreme

Court determined that “there [was] no error, plain or otherwise” in imposing the death penalty.5

Frazier, 873 N.E.2d at 1291–92. Moreover, on post-conviction review, the Ohio Court of

Appeals applied the doctrine of res judicata and refused on procedural grounds to consider

4

In Hall v. Florida, 134 S. Ct. 1986 (2014), the United States Supreme Court struck down Florida’s

implementation of Atkins because Florida required a valid IQ score of 70 or below (with no exceptions) for a

defendant to be considered mentally retarded. Hall, 134 S. Ct. at 2001. The Court noted that “Florida’s rule [was]

in direct opposition to the views of those who design, administer, and interpret the IQ test. By failing to take into

account the standard error of measurement, Florida’s law not only contradicts the test’s own design but also bars an

essential part of a sentencing court’s inquiry into adaptive functioning.” Id. Such an arrangement, the Court

concluded, “contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a

civilized world.” Id.

5

We have repeatedly held that plain-error review is not equivalent to adjudication on the merits, which

would trigger AEDPA deference. See, e.g., Girts v. Yanai, 501 F.3d 743, 755 (6th Cir. 2007) (“‘[P]lain error review

by a state appellate court does not constitute a waiver of state procedural default rules.’” (citation omitted;

alterations added and deleted)); Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006) (“[T]he Ohio Supreme Court’s

plain error review does not constitute a waiver of the state’s procedural default rules and resurrect the issue for [the

defendant].”); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006) (“Plain error analysis is more properly

viewed as a court’s right to overlook procedural defects to prevent manifest injustice, but is not equivalent to a

review of the merits.”); Scott v. Mitchell, 209 F.3d 854, 866–67 (6th Cir. 2000); see also Taylor v. McKee, 649 F.3d

446, 450 (6th Cir. 2011) (“[The] application of plain-error review prevented the state court from fully considering

the merits . . . .”).

No. 11-4262 Frazier v. Jenkins Page 12

Frazier’s argument.6 See Frazier, 2008 WL 4408645, at *10. The state now argues (and Frazier

agrees) that this claim is procedurally defaulted. See Pet’r Br. at 35; Resp’t Br. at 31.

Nonetheless, Frazier contends that we should review his substantive Atkins claim because

(1) Frazier lacked the capacity to waive his rights; (2) his trial counsel’s constitutionally

defective performance excuses the failure to comply with the contemporaneous-objection rule;

and (3) he is actually innocent of the death penalty—meaning that he is actually mentally

retarded. See Pet’r Br. at 35–39.

Frazier’s first argument fails because he did not assert in the district court that his waiver

was invalid due to his mental incapacity. See R. 24 (Traverse at 15–32) (Page ID #294–311).

Generally, we will not address arguments raised for the first time on appeal. See Bruederle v.

Louisville Metro Gov’t, 687 F.3d 771, 777–78 (6th Cir. 2012); Spengler v. ADT Sec. Servs., Inc.,

505 F.3d 456, 458 (6th Cir. 2007); J.C. Wyckoff & Assocs., Inc. v. Standard Fire Ins. Co., 936

F.2d 1474, 1488 (6th Cir. 1991). We decline to do so here.

Frazier’s second argument—that the procedural bar should be excused because his

counsel’s ineffective assistance caused the Ohio Supreme Court to enforce the contemporaneous-

objection rule and, thus, prejudiced his case—is beside the point because it does not show cause

and prejudice with regard to the Ohio Court of Appeals’ res judicata decision.

Frazier’s third argument—that he is actually innocent of the death penalty—cuts through

all of the potential procedural bars and is properly before us. McQuiggin v. Perkins, 133 S. Ct.

1924, 1928 (2013). In run-of-the-mill procedural-default cases, a defendant would need to show

that failing to address his claims, despite procedural bars, would result in a “miscarriage of

justice,” meaning that the defendant is actually innocent of the crime. Carrier, 477 U.S. at 496.

The United States Supreme Court, in Sawyer v. Whitley, 505 U.S. 333 (1992), extended this

exception to the death-penalty context, and as a result, a death-row prisoner can escape

procedural default if he can “show by clear and convincing evidence that, but for a constitutional

error, no reasonable juror would have found the petitioner eligible for the death penalty under the

6

As the last reasoned judgment on Frazier’s Atkins claim and in the absence of a merits determination, this

decision by the Ohio Court of Appeals is the relevant one for purposes of habeas review of this issue. Ylst v.

Nunnemaker, 501 U.S. 797, 805 (1991). Therefore, we consider the evidence put before this state court in

determining whether habeas relief is appropriate. Pinholster, 131 S. Ct. at 1398.

No. 11-4262 Frazier v. Jenkins Page 13

applicable state law.” Id. at 336. Here, Frazier needs to show that he satisfies Ohio’s definition

of mentally retarded under this heightened standard, which “is not a light burden and should not

be confused with the less stringent, proof by a preponderance of the evidence.” Elec. Workers

Pension Trust Fund of Local Union # 58 v. Gary’s Elec. Serv. Co., 340 F.3d 373, 379 (6th Cir.

2003). The district court found that Frazier could not make the necessary showing, and on the

record before us, we must agree with that conclusion.

1. Significantly Subaverage Intellectual Functioning

Frazier must first show that he has “significantly subaverage intellectual functioning,”

which Ohio and many states have defined as having an IQ of 70 or lower. Lott, 779 N.E.2d at

1014 (citing other state statutes). Dr. Smalldon and Dr. Forgac found that Frazier had Full Scale

IQ scores of 72 and 75, respectively. While these scores are slightly above the magic number of

70, Frazier contends that they are within the WAIS—III test’s standard error of measurement of

five points and that, as a result, he should be considered to have significantly subaverage

intellectual functioning. In support of this argument, Frazier submitted Dr. Rheinscheld’s

affidavit, see J.A. Vol. 2 at 774 (Rheinscheld Aff.), and importantly, Dr. Smalldon admitted this

fact during his testimony during the penalty phase of trial, see J.A. Vol. 8 at 3535 (“There’s

wiggle room that goes about five points either way.”).

In response, the state argues that Lott forecloses consideration of the standard error of

measurement given that the Ohio Supreme Court erected a presumption against finding a

defendant mentally retarded if his IQ scores are above 70. After Hall v. Florida, it is unclear

whether this argument holds much water. In Hall, the Supreme Court emphatically stated that

“[i]ntellectual disability is a condition, not a number” and that “[c]ourts must recognize, as does

the medical community, that the IQ test is imprecise.” 134 S. Ct. at 2001 (citations omitted).

We need not determine the precise reach of Hall in this case, however, because Frazier has not

carried his burden of showing that he meets the second Lott prong.

2. Significant Limitations in Two or More Adaptive Skills

Frazier must also demonstrate that he has “significant limitations in two or more adaptive

skills . . . .” Lott, 779 N.E.2d at 1014. The Ohio Supreme Court took this prong from the

No. 11-4262 Frazier v. Jenkins Page 14

American Association on Mental Retardation (“AAMR”) and the APA’s definitions of mental

retardation. Id. Adaptive skills include: “‘communication, self-care, home living,

social/interpersonal skills, use of community resources, self-direction, functional academic skills,

work, leisure, health, and safety.’” Atkins, 536 U.S. at 308 n.3 (quoting APA, Diagnostic and

Statistical Manual of Mental Disorders 41 (4th ed. 2000) (“DSM–4”)). In 2002, the AAMR

revised its definition, though there was little substantive change. See Pet’r Br. at 24 (citing

AAMR, Mental Retardation: Definition, Classification, and Systems of Supports (10th ed.

2002)); Resp’t Br. at 46 n.7 (same).

In the district court, Frazier argued that his subaverage intellectual functioning resulted in

limitations to his functional academic and work skills.7 J.A. Vol. 1 at 39 (Pet. for Writ). The

district court found Frazier’s arguments lacking, and we agree that Frazier has not shown by

clear and convincing evidence that his subaverage intellectual functioning caused significant

limitations in these skills. First, with regard to Frazier’s functional academic skills, the record is

mixed. In Frazier’s favor are the facts that he attended special-education classes, that he never

progressed beyond the tenth grade, that he earned two Cs, twenty-one Ds, and one F in high

school, and that he was labeled a “slow learner.” See J.A. Vol. 1 at 146–47 (D. Ct. Op.). Based

on this information and the tests conducted by Dr. Smalldon, Dr. Rheinscheld concluded that

Frazier “exhibit[ed] a significant deficit in the area of functional academics.” J.A. Vol. 2 at 775

(Rheinscheld Aff.). However, being placed in special-education classes does not necessarily

render someone mentally retarded. See, e.g., Sheeks v. Comm’r of Soc. Sec. Admin., 544 F.

App’x 639, 642 (6th Cir. 2013); Eddy v. Comm’r of Soc. Sec., 506 F. App’x 508, 510 (6th Cir.

2012). And failing to complete high school does not necessarily result from subaverage

intellectual functioning. The school records are also more muddled than Dr. Rheinscheld

suggests. For instance, Frazier’s elementary-school principal described his performance as “not

too bad” and noted that he was “working to his capacity” in response to a probation officer’s

request for information. J.A. Vol. 3 at 1120 (School Records). If Frazier needed to prove his

limitations only by a preponderance of the evidence, we might be inclined to agree with him;

7

In his briefing on appeal, Frazier claims to have significant limitations with regard to communications

skills and social/interpersonal skills. See Pet’r Br. at 26–30. Frazier, however, failed to raise these arguments in the

district court, and we decline to consider them for the first time on appeal. See Bruederle, 687 F.3d at 777–78;

Spengler, 505 F.3d at 458; J.C. Wyckoff, 936 F.2d at 1488.

No. 11-4262 Frazier v. Jenkins Page 15

however, at this stage of the litigation, Frazier’s proof must be clear and convincing. The limited

and muddled academic records make this impossible.

Second, the record before us does not clearly and convincingly demonstrate that Frazier’s

subaverage intellectual functioning resulted in a significant limitation with regard to his ability to

work. On this point, Frazier offers the Social Security Administration’s diagnosis of Frazier as

mentally retarded and his checkered work history. Courts will consider Social Security

Administration records and rulings on mental retardation, see, e.g., Newman v. Harrington,

726 F.3d 921, 932–33 (7th Cir. 2013), but those administrative determinations are not dispositive

for purposes of an Atkins finding. In this case, the Social Security Administration’s records

actually create doubt as to whether Frazier has a significant limitation due to his subaverage

intellectual functioning. None of the Social Security Administration’s records relate to its

mental-retardation finding (because they were purportedly destroyed), and the records that have

been submitted detail the Social Security Administration’s prior findings contrary to its

subsequent finding of mental retardation. See J.A. Vol. 3 at 1162–65 (Soc. Sec. Records) (noting

only “slight” limitations in “maintaining social functions” and “restriction of activities of daily

living”); id. at 1171 (Soc. Sec. Records) (“No evidence of a sign or symptom [of mental

retardation or autism].”). Furthermore, when Dr. Smalldon “asked [Frazier] whether he’s ever

been ‘fired from’ any of the jobs that he’s held as an adult, [Frazier] replied, ‘I’ve lost jobs

‘cause I’d get in trouble. I’d drink.’” Id. at 1082 (Smalldon Report). These statements and

evaluations potentially indicate that Frazier’s difficulties maintaining employment are the result

of his behavior—not his subaverage intellectual functioning. Again, were we to evaluate this

evidence under the preponderance-of-the-evidence standard, we might be inclined to hold that

Frazier has demonstrated a significant limitation in this adaptive skill. Under the clear-and-

convincing-evidence standard, however, the conflicting information in the record requires us to

side against Frazier here.8 As a result, we cannot conclude that Frazier is actually innocent of the

death penalty, and his substantive Atkins claim remains procedurally defaulted. Thus, we

AFFIRM the district court’s denial of his petition on this claim.

8

Because we conclude that Frazier has failed to show by clear and convincing evidence that his subaverage

intellectual functioning resulted in significant limitations with regard to two adaptive skills, we decline to address

whether he can show onset before age eighteen.

No. 11-4262 Frazier v. Jenkins Page 16

B. Ineffective-Assistance-of-Counsel Claims

Frazier next contends that his Sixth Amendment right to effective assistance of counsel

has been violated by counsel’s failure (1) to present evidence of mental retardation at an Atkins

hearing; (2) to move to suppress various pieces of evidence; (3) to investigate Frazier’s family

life and upbringing; and (4) to employ a substance-abuse expert. Our review of each of these

claims is governed by Strickland v. Washington, 466 U.S. 668 (1984), and its progeny. Under

Strickland, a convicted prisoner must make two showings. One, he “must identify the acts or

omissions of counsel that are alleged not to have been the result of reasonable professional

judgment. [We] must then determine whether, in light of all the circumstances, the identified

acts or omissions were outside the wide range of professionally competent assistance.” Id. at

690. Two, he “must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694. If the

state court adjudicates a prisoner’s ineffective-assistance claim on the merits, these requirements

become even more stringent under AEDPA, because a defendant must show that a state court’s

application of Strickland was unreasonable, meaning that fairminded judges would all agree that

the state court erred. Richter, 131 S. Ct. at 786. We evaluate each claim in turn, though we

ultimately find none of them successful under AEDPA.

1. Atkins-Based Claim

Frazier first contends that his trial counsel provided constitutionally defective assistance

by withdrawing the motion for an Atkins hearing despite record evidence indicating that Frazier

might be mentally retarded. In particular, Frazier argues that his IQ scores are within the

standard error of measurement, that the Social Security Administration’s finding that he was

mentally retarded is particularly persuasive, and that counsel should have employed a mental-

retardation expert. When Frazier raised this claim and these arguments on direct appeal, the

Ohio Supreme Court rejected them on the merits. Frazier, 873 N.E.2d at 1292. Specifically, it

held that counsel’s representation was not constitutionally defective because: (1) Dr. Smalldon

testified that Frazier’s Full Scale IQ score of 72 was “pretty accurate”; (2) Frazier failed to

present evidence that linked his Social Security benefits to his mental retardation claim; (3) there

was no evidence that Frazier’s attorney failed to consult with him prior to withdrawing the

No. 11-4262 Frazier v. Jenkins Page 17

motion, particularly given Frazier’s in-court statements before the motion was withdrawn; and

(4) counsel was permitted to rely on the judgments of Dr. Smalldon and Dr. Forgac. Id. The

Ohio Supreme Court adjudicated this claim on the merits, and thus, we afford that decision

substantial deference under AEDPA. Under this deferential standard, we cannot conclude that

the Ohio Supreme Court’s ultimate decision was objectively unreasonable.

Frazier’s main assignment of error is that his attorney failed to present evidence of mental

retardation at an Atkins hearing. His counsel claimed that they skipped the Atkins hearing

because Frazier’s Full Scale IQ scores were above 70, and on the advice of Dr. Smalldon and Dr.

Forgac, they did not believe that the Lott presumption could be overcome. J.A. Vol. 4 at 1512–

13. Given the record in this case, we find counsel’s performance troubling for two reasons.

First, the Ohio courts have found defendants mentally retarded even though their IQ

scores exceeded 70. See, e.g., State v. Gumm, 864 N.E.2d 133 (Ohio Ct. App. 2006). Here,

there is plenty of evidence that suggests Frazier had a chance to overcome the Lott presumption

that he was not mentally retarded. Frazier had a well-documented history of academic struggles;

for instance, the top of his high school records read, “Frazier, James (Slow Learner).” His IQ

scores were within the standard error of measurement, and Dr. Smalldon could not complete

various tests because Frazier’s limited abilities “wouldn’t enable [Dr. Smalldon] to produce valid

profiles [from those tests].” J.A. Vol. 3 at 1075 (Smalldon Report). Moreover, the Social

Security Administration had been paying Frazier disability benefits for years based on a finding

of mental retardation. As we explained above, it is not clear from this evidence that Frazier

could have overcome the Lott presumption, but there is a non-frivolous chance that the state trial

court would have concluded that Frazier met the standard for mental retardation.

Second and more fundamentally, we fail to see the downside in having a non-frivolous

Atkins hearing, and it is difficult to ascertain a strategic reason for withdrawing the motion in this

case. These hearings are before the judge, not the jury, see Lott, 779 N.E.2d at 1015, and thus,

no potentially prejudicial material would be kept from the jury by foregoing the hearing.

Moreover, to the extent that the evidence is helpful to Frazier, nothing bars counsel from

presenting the same information to the jury during the mitigation stage of trial (as happened

during Frazier’s trial). By choosing to withdraw the motion for an Atkins hearing, counsel

No. 11-4262 Frazier v. Jenkins Page 18

deprived Frazier of the best opportunity to create a full record on the issue and to allow the state-

trial-court judge—the judicial officer with the best sense of Frazier’s actual abilities—to decide

whether he met the Lott definition of mental retardation.

While we find counsel’s performance questionable, the Ohio Supreme Court’s

application of Strickland in this case was not objectively unreasonable. Lawyers are permitted to

rely upon qualified experts, see Murphy, 551 F.3d at 500–01 (citing Hill v. Mitchell, 400 F.3d

308, 319 (6th Cir. 2005)), and in this case, Frazier’s own expert found him not to be mentally

retarded. Fairminded jurists could find that counsel’s reliance upon Dr. Smalldon’s opinion was

consistent with professional norms.

Frazier also argues that counsel should have retained a mental-retardation specialist, but

as the district court noted, Dr. Smalldon had consulted in about 200 capital cases over thirteen

years, many of them involving issues of mental retardation. J.A. Vol. 1 at 145 (D. Ct. Op.).

Certainly, Dr. Rheinscheld may have testified differently, but Frazier has not shown that Dr.

Smalldon is unqualified. More importantly, Dr. Smalldon actually met Frazier, while Dr.

Rheinscheld merely relied upon Dr. Smalldon’s reports and other materials available at trial. See

J.A. Vol. 2 at 773 (Rheinscheld Aff.). Therefore, Dr. Rheinscheld’s analysis is merely another

interpretation of Dr. Smalldon’s data. Given that Frazier has not shown that Dr. Smalldon’s

interpretation was unreasonable or that he was unqualified, counsel could rely upon Dr.

Smalldon’s recommendation—or so a reasonable jurist could find. As a result, we do not need to

determine whether counsel’s performance prejudiced Frazier, and we AFFIRM the denial of

Frazier’s petition on this claim.

2. Failure-to-Suppress-Evidence Claim

Frazier next claims that his trial counsel provided constitutionally defective

representation by not moving to suppress oral statements that Frazier made to the police.9

Specifically, Frazier argues that his counsel should have objected because Frazier lacked the

9

Frazier also offers a single statement, arguing that counsel should have moved to suppress evidence

gathered pursuant to various search warrants. See Pet’r Br. at 51. He offers no further elaboration on this point, and

therefore, we decline to consider it. Barany-Snyder v. Weiner, 539 F.3d 327, 331 (6th Cir. 2008) (“This cursory

argument has been waived, for issues adverted to in a perfunctory manner, unaccompanied by some effort at

developed argumentation, are deemed waived.” (internal quotation marks and alterations omitted)).

No. 11-4262 Frazier v. Jenkins Page 19

mental capacity to waive his Miranda rights knowingly and intelligently. On direct appeal, the

Ohio Supreme Court rejected this claim, holding, in part, that “there [was] no evidence of police

coercion or overreaching rendering Frazier’s statement involuntary” and that “there [was] no

evidence that Frazier was incapable of making a voluntary statement.”10 Frazier, 873 N.E.2d at

1285. This conclusion was not objectively unreasonable, and we must therefore affirm the denial

of Frazier’s petition on this claim.

In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court recognized that the Fifth

Amendment grants suspects in custody “[the] privilege against self-incrimination and [the] right

to retained or appointed counsel.” Id. at 475 (citing Escobedo v. Illinois, 378 U.S. 478, 490 n.14

(1964)). If the government interrogates a suspect “without the presence of an attorney and a

statement is taken, a heavy burden rests on the government to demonstrate that the defendant

[voluntarily,] knowingly[,] and intelligently waived his [rights].” Id. Determining whether a

waiver is valid requires a two-part inquiry.

First, the relinquishment of the right must have been voluntary in the sense that it

was the product of a free and deliberate choice rather than intimidation, coercion,

or deception. Second, the waiver must have been made with a full awareness of

both the nature of the right being abandoned and the consequences of the decision

to abandon it. Only if the “totality of the circumstances surrounding the

interrogation” reveals both an uncoerced choice and the requisite level of

comprehension may a court properly conclude that the Miranda rights have been

waived.

Moran v. Burbine, 475 U.S. 412, 421 (1986) (quoting Fare v. Michael C., 442 U.S. 707, 725

(1979)).

Frazier does not dispute that his Miranda waiver was made voluntarily; rather, he argues

that his mental retardation (or diminished mental capacity) precluded him from knowingly or

intelligently waiving his rights. The problem for Frazier is that he cites no cases holding that

10

A valid waiver must be “made voluntarily, knowingly, and intelligently.” Colorado v. Spring, 479 U.S.

564, 566 (1987) (citation omitted). The Ohio Supreme Court, however, discusses only voluntariness explicitly.

Nevertheless, we conclude that the Ohio Supreme Court evaluated whether Frazier’s waiver met all three

requirements because it considered “the totality of the circumstances, including the age, mentality, and prior

criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical

deprivation or mistreatment; and the existence of threat or inducement.” Frazier, 873 N.E.2d at 1285 (internal

quotation marks omitted). Moreover, the Ohio Supreme Court engaged with Frazier’s argument that his “low

intelligence” rendered his waiver invalid. See id. (“[Frazier’s] videotaped statements show that Frazier

comprehended the investigators’ questions, and he was able to express his thoughts and recall his actions in a

rational manner.”).

No. 11-4262 Frazier v. Jenkins Page 20

mental retardation or a diminished mental capacity necessarily renders a person’s waiver

unknowing or unintelligent. To the contrary, this court and other courts have concluded that

“diminished mental capacity alone does not prevent a defendant from validly waiving his or her

Miranda rights.” Garner v. Mitchell, 557 F.3d 257, 264 (6th Cir. 2009) (en banc). Nor does

Frazier give specific reasons for why his particular intellectual disabilities made his waiver

invalid. As a result, we cannot conclude that there is a reasonable probability that a motion to

suppress would have succeeded, and therefore Frazier has failed to demonstrate that he was

prejudiced by his attorney’s failure to file such a motion. Consequently, we AFFIRM the denial

of Frazier’s petition on this point.

3. Failure-to-Investigate Claim

Frazier next claims that his trial counsel provided ineffective assistance by failing to

make “a full and adequate investigation into [his] background” prior to the penalty phase of his

trial. Pet’r Br. at 58. In particular, Frazier objects to his counsel’s failure to interview his

siblings and have them testify. Frazier asserts that his siblings would have “humanized him to

the jury,” id. at 60, and his siblings submitted affidavits regarding Frazier’s upbringing, trouble

in school, and general demeanor, see J.A. Vol. 2 at 793–98 (Affs.). The Ohio Court of Appeals

denied this claim on the merits, holding that “the mitigation evidence proposed by [Frazier] is

not sufficient to overcome the presumption that the decision not to ask [Frazier’s] siblings to

testify at the mitigation hearing was anything other than a tactical trial strategy.” Frazier, 2008

WL 4408645, at *12. Because the state court adjudicated this claim on the merits, we again

review Frazier’s assignment of error under AEDPA’s deferential standard.

“The Eighth Amendment requires that the jury be able to consider and give effect to all

relevant mitigating evidence offered by petitioner.” Boyde v. California, 494 U.S. 370, 377–78

(1990). Under the Sixth Amendment, “counsel has a duty to make reasonable investigations” in

an attempt to find such evidence. Strickland, 466 U.S. at 691; see also Wiggins v. Smith,

539 U.S. 510, 521–22 (2003). “[T]horough investigation[s] of law and facts relevant to plausible

options are virtually unchallengeable,” but “a particular decision not to investigate must be

directly assessed for reasonableness in all the circumstances, applying a heavy measure of

deference to counsel’s judgments.” Strickland, 466 U.S. at 690–91. After all, “reasonably

No. 11-4262 Frazier v. Jenkins Page 21

diligent counsel may draw a line when they have good reason to think further investigation

would be a waste.” Rompilla v. Beard, 545 U.S. 374, 383 (2005). Even if counsel’s failure to

investigate was proven to be unreasonable, a prisoner must also “establish a reasonable

probability that a competent attorney, aware of the available mitigating evidence, would have

introduced it at sentencing, and that had the jury been confronted with this mitigating evidence,

there is a reasonable probability that it would have returned with a different sentence.” Wong v.

Belmontes, 558 U.S. 15, 20 (2009) (internal quotation marks, alterations, and ellipses omitted).

On this record, we cannot conclude that Frazier has offered proof demonstrating that the Ohio

court’s application of this test was objectively unreasonable.

First, Frazier’s counsel received the assistance of a court-appointed mitigation specialist

that uncovered Frazier’s school records, juvenile records, health records, and records from the

Social Security Administration. See J.A. Vol. 3 at 1103–1331 (various records). These records

provide the basis for most of Frazier’s claims and cover a wide range of years and topics.

Furthermore, Dr. Smalldon interviewed Frazier, in part, regarding his upbringing. See id. at

1075–87 (Smalldon Report). Despite this information, which was introduced at trial, Frazier

argues that counsel should have also interviewed his siblings and called them to testify. The

problem for Frazier is that two of his three siblings, who Frazier argues should have been

interviewed, admitted to speaking with Frazier’s counsel. See J.A. Vol. 2 at 796 (Jean Frazier

Aff.); id. at 797 (Nathaniel Frazier Aff.). Moreover, counsel has discretion over deciding which

witnesses to call and how to examine them. Gonzalez v. United States, 553 U.S. 242, 249

(2008). As a result, we cannot hold that the Ohio Court of Appeals was objectively unreasonable

in concluding that counsel performed an adequate investigation.

Second, even if counsel’s investigation was lacking, Frazier has failed to demonstrate that

the Ohio Court of Appeals made an objectively unreasonable decision by holding that Frazier

was not prejudiced by such deficient performance. The affidavits submitted by Frazier’s siblings

state that they would have testified that Frazier grew up in poverty and that Frazier attended

special-education classes. J.A. Vol. 2 at 793 (John Frazier Aff.); see also id. at 795–96 (Jean

Frazier Aff.). Dr. Smalldon, however, testified to these facts. See, e.g., J.A. Vol. 8 at 3532:19–

22, 3539:1–3540:8, 3569:16–3570:19 (Smalldon Test.). Perhaps the jurors would have been

No. 11-4262 Frazier v. Jenkins Page 22

more sympathetic to Frazier if his siblings testified to these facts directly, but as noted above,

from whom a jury learns certain information is a decision for trial counsel. Gonzalez, 553 U.S.

at 249. We agree with the Ohio Court of Appeals that the information to which Frazier’s siblings

allude in the affidavits is cumulative, and therefore, Frazier was not prejudiced by counsel’s

decisions. As a result, we AFFIRM the district court’s denial of Frazier’s petition on this issue.

4. Failure-to-Retain-Substance-Abuse-Expert Claim

Finally, Frazier claims that his counsel provided ineffective assistance by failing to retain

a substance-abuse expert for the penalty phase of trial. Frazier argues that a substance-abuse

expert would have explained to the jury how “Frazier’s limited cognitive functioning and drug

abuse ha[d] a synergistic effect . . . [that each one] exacerbated the effects of the other, further

impairing Frazier’s cognitive functioning.” Pet’r Br. at 62. For support, Frazier submits an

affidavit from Dr. Robert Smith, testifying to the same. See J.A. Vol. 2 at 799–807 (Smith Aff.).

The Ohio Supreme Court rejected this claim on the merits, holding that Dr. Smalldon adequately

testified to Frazier’s prior drug and alcohol abuse. Once again, we apply AEDPA deference, and

we conclude that the Ohio Supreme Court’s decision was not objectively unreasonable.

The record shows that Dr. Smalldon testified regarding Frazier’s drug and alcohol abuse,

particularly his crack-cocaine use. See J.A. Vol. 8 at 3566:10–3569:3 (Smalldon Test.) He

explained the behavioral effects of “acute crack cocaine intoxication.” Id. at 3567:3 (Smalldon

Test.). Additionally, Dr. Smalldon hypothesized that Frazier’s drug use may have led to

“hyperarousal, . . . extreme aggressiveness, irritability, . . . restlessness[,] and agitation.”11 Id. at

3567:18–20 (Smalldon Test.). As before, the jury might have been more receptive to a different

messenger, but who testifies is generally a decision for counsel. Because Dr. Smalldon

testified—at length and in detail—to the effects of crack-cocaine abuse, the Ohio Supreme Court

was not unreasonable to conclude that counsel did not provide ineffective assistance by failing to

employ a substance-abuse expert and that Frazier was not prejudiced by counsel’s failure to

11

Dr. Smalldon did state that discussing the “physiology of addiction . . . would take [him] beyond [his]

expertise,” id. at 3568:1–2 (Smalldon Test.), but the state court would not be unreasonable in concluding that he had

sufficient knowledge, based on his experience and the detailed testimony that he gave, to inform the jury adequately

of the effects of drug abuse on individuals.

No. 11-4262 Frazier v. Jenkins Page 23

introduce cumulative evidence. Therefore, we AFFIRM the denial of Frazier’s petition on this

claim.

C. Challenge to Ohio’s Lethal-Injection Regime

Finally, Frazier contends that Ohio’s administration of the death penalty is

unconstitutional. The Ohio Supreme Court summarily rejected this claim on the merits, and the

district court denied Frazier’s petition. Frazier admits that the United States Supreme Court, in

Baze v. Rees, 553 U.S. 35 (2008), held that execution by lethal injection is not per se

unconstitutional, but he contends that “the implementation of the method of execution could

implicate the Eighth Amendment prohibition against cruel and unusual punishment.” Pet’r Br. at

67. In his briefing on appeal, Frazier does not offer an argument on the merits of his Eighth

Amendment claim; instead, he asks us to “remand this case back to the district court to permit

Frazier to join in the lethal injection litigation at the district court level or await the result of

Judge Katz’ findings in Case No. 1:03-cv-1192.” Pet’r Br. at 68.

At oral argument, Frazier’s counsel notified our panel that Frazier is a party to an

ongoing action, filed under 42 U.S.C. § 1983, challenging Ohio’s lethal-injection regime. See

Docket, In re Ohio Execution Protocol Litigation, Case No. 2:11-CV-01016-GLF-MRA (S.D.

Ohio) (Frost, J.). We think that that litigation is the proper avenue for Frazier to bring this

constitutional challenge. As we stated in Scott v. Houk, --- F.3d ---, 2014 WL 3702438 (6th Cir.

July 28, 2014), “in order to obtain relief from his sentence, [Frazier] would first have to gather

facts showing that Ohio is unable to administer lethal injection in a constitutionally permissible

manner. And this is precisely the type of discovery that [Frazier] can pursue in his § 1983

litigation.” Id. at *12. Therefore, we AFFIRM the district court’s denial of Frazier’s petition on

this claim.

IV. CONCLUSION

Frazier’s substantive Atkins claim remains procedurally defaulted because he has not

shown by clear and convincing evidence that he is mentally retarded. Under applicable law, the

Ohio courts were not objectively unreasonable in rejecting his ineffective-assistance claims, and

Frazier’s constitutional challenge to Ohio’s lethal-injection protocol requires the accumulation of

No. 11-4262 Frazier v. Jenkins Page 24

evidence in another court. Therefore, we AFFIRM the district court’s denial of Frazier’s petition

for a writ of habeas corpus.

No. 11-4262 Frazier v. Jenkins Page 25

___________________________

CONCURRENCE IN PART

___________________________

SUTTON, Circuit Judge, concurring in part and concurring in the judgment. I join all of

the Court’s thorough opinion, save Section III.A. When Frazier procedurally defaulted his claim

under Atkins v. Virginia, 536 U.S. 304 (2002), by withdrawing it during the trial, that prompted

two questions: Does AEDPA deference apply to the Ohio Supreme Court’s subsequent plain-

error ruling with respect to Frazier’s Atkins claim? Does the nature of an Atkins claim

necessarily excuse any default? Section III.A of the majority opinion answers no and yes. I

would answer yes and no.

1. The majority reasons that state-court plain-error decisions never receive AEDPA

deference. That cannot be squared with Harrington v. Richter, 562 U.S. 86 (2011), and Johnson

v. Williams, 133 S. Ct. 1088 (2013), which tell us to presume that state courts adjudicate federal

claims on their merits in ambiguous situations. This claim is not even ambiguous. The Ohio

Supreme Court found “no error, plain or otherwise” on direct review, clearly rejecting the federal

claim on the merits. State v. Frazier, 873 N.E.2d 1263, 1291–92 (Ohio 2007).

As I understand the majority’s contrary position, it is premised on the intuition that a

federal habeas claim cannot be two things at the same time: procedurally defaulted under state

law and adjudicated on the merits under federal law. But intuition and federal habeas law do not

always go together, and this is one of those occasions. In the course of enforcing a state-law

procedural-default rule, a state court may well address the merits of the federal claim, as this case

illustrates. Prong one of plain-error review under Ohio law, as under the law of other States,

allows a state court to consider the merits of the forfeited claim. While the Ohio Supreme Court

did not have to address this prong of the inquiry, it did, creating an adjudication on the merits.

Claims like this one thus may be rejected on two grounds: that no cause and prejudice exists to

excuse the procedural default or that the claim fails to satisfy AEDPA deference (even if the

default is excused).

No. 11-4262 Frazier v. Jenkins Page 26

We have been down this road before, and Fleming v. Metrish, 556 F.3d 520 (6th Cir.

2006), tells us how to navigate it. It makes clear as day that a state court’s plain-error review of

an issue may receive AEDPA deference when the state court addresses the merits of the federal

claim. Id. at 530–32. As it reminds us, the question of procedural default is “independent of the

question of whether Congress requires deference pursuant to AEDPA.” Id. at 530. The one

question concerns whether we can review the claim at all; the other concerns how we review it.

The majority’s approach not only conflicts with our precedent but also with precedent from other

circuits. Lee v. Comm’r, Ala. Dep’t of Corrs., 726 F.3d 1172, 1207–10 (11th Cir. 2013);

Douglas v. Workman, 560 F.3d 1156, 1170–71, 1177–79 (10th Cir. 2009).

One other thing. The majority sidesteps this approach in part by treating the Ohio Court

of Appeals’ post-conviction decision as the key state-court judgment at issue instead of the Ohio

Supreme Court’s decision on direct appeal. In habeas proceedings, however, we review the last

reasoned state-court judgment. See Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991). The Ohio

Court of Appeals did not issue a reasoned judgment because it declined to review Frazier’s

Atkins claim on state-law res judicata grounds. See Cone v. Bell, 556 U.S. 449, 465–67 (2009).

By declining to treat the Ohio Supreme Court’s decision on direct review as the relevant one, the

majority permits consideration of new evidence put before the Ohio Court of Appeals (the Social

Security records and the Reinscheld affidavit). That is inconsistent with conventional habeas

principles. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398, 1400 n.7 (2011).

2. The majority separately concludes that procedural defaults do not apply to Atkins

claims on “actual innocence” grounds. See Herrera v. Collins, 506 U.S 390, 404 (1993); Sawyer

v. Whitley, 505 U.S. 333, 336 (1992). Because Atkins establishes that the Constitution prohibits

the imposition of capital sentences on the mentally disabled, the majority reasons, an inmate who

can show by clear and convincing evidence that he was mentally disabled at the time of the

crime will always be “actually innocent” of the death penalty and thus be excused from

traditional cause-and-prejudice requirements for overcoming the default.

Two responses. First, this argument does not solve the problem identified above—that

AEDPA deference applies to the Ohio Supreme Court’s adjudication on the merits of the Atkins

No. 11-4262 Frazier v. Jenkins Page 27

claim. Frazier cannot show that the state court’s ruling was unreasonable, as the majority surely

agrees because it rejects that claim even without applying deference.

Second, the majority places more weight on Sawyer and Herrera than they can bear. The

death-row inmate in Sawyer sought to avoid procedural default of potential Brady and Strickland

claims by arguing that, but for the alleged violations, he could have introduced evidence negating

a state-law element of death-penalty eligibility. The Supreme Court agreed with his logic but

held that he failed his own test. Sawyer, 505 U.S. at 352. That test, the Court later explained,

requires the petitioner to “seek excusal of a procedural error [i.e., a procedural default] so that he

may bring an independent constitutional claim challenging his conviction or sentence.” Herrera,

506 U.S at 404 (emphasis added). That is not this case. Frazier offers a gateway claim of actual

innocence (that he was actually innocent of the death sentence given his mental acuity) but no

“independent constitutional claim” attached to it. Without the one, he cannot bring the other.

Otherwise, the concept of procedural default would never apply to Atkins claims—a remarkable

irony given the Court’s decision to delegate to state courts the best way to implement and

enforce Atkins, 536 U.S. at 317 (“[W]e leave to the States the task of developing appropriate

ways to enforce the constitutional restriction upon their execution of sentences.” (internal

quotation marks omitted)), and a remarkable irony given the “well-established principle of

federalism that a state decision resting on an adequate foundation of state substantive law is

immune from review in the federal courts,” Wainwright v. Sykes, 433 U.S. 72, 81 (1977).

For these reasons, I join all but Section III.A of the majority opinion.