Samuel Moreland v. Margaret Bradshaw

RECOMMENDED FOR FULL-TEXT PUBLICATION

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

File Name: 12a0384p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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SAMUEL MORELAND,

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Petitioner-Appellant,

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No. 09-3528

v.

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Respondent-Appellee. -

MARGARET BRADSHAW, Warden,

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Appeal from the United States District Court

for the Southern District of Ohio at Dayton.

No. 3:05-cv-334.

Thomas M. Rose, District Judge; Michael R. Merz, Magistrate Judge.

Argued: April 18, 2012

Decided and Filed: November 15, 2012

Before: BOGGS, ROGERS, and GRIFFIN, Circuit Judges.

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COUNSEL

ARGUED: Justin C. Thompson, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Columbus, Ohio, for Appellant. Charles L. Wille, OFFICE OF THE OHIO

ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Justin C.

Thompson, Melissa J. Jackson, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Columbus, Ohio, for Appellant. Charles L. Wille, OFFICE OF THE OHIO

ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

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OPINION

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ROGERS, Circuit Judge. Samuel Moreland, an Ohio death-row prisoner, appeals

a district court judgment denying his petition for a writ of habeas corpus. In 1986, a

three-judge panel convicted Moreland of killing his girlfriend Glenna Green, her adult

daughter, and three of her grandchildren. Moreland contends that his conviction is not

1

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supported by sufficient evidence, that the trial court did not conduct an adequate

evidentiary hearing on a child eyewitness’s competence to testify, that the trial court

wrongly excluded expert testimony concerning the child eyewitness, and that he was

denied effective assistance of counsel. For the following reasons, the district court

properly rejected Moreland’s claims and denied habeas relief.

I.

The facts of this case are taken largely from the opinion of the Supreme Court

of Ohio, Ohio v. Moreland, 552 N.E.2d 894 (Ohio 1990). At the time of the murders in

November 1985, Samuel Moreland lived with his girlfriend Glenna Green in a home

rented by Glenna’s daughter, Tia Talbott. Tia’s boyfriend Thurston Jones and Tia’s five

children also lived at the residence. On the night in question, Tia’s sister Lana Green

and Lana’s three children were spending the night at the residence.

At approximately 10:30 p.m. on November 1, 1985, Tia, her boyfriend Thurston,

and Lana’s son Gregory left the residence to go to the grocery store. Around the time

of their departure, Moreland and his girlfriend Glenna began arguing over Glenna’s

refusal to give him money for alcohol. Moreland left Glenna’s bedroom, went to his

own room, then returned and resumed the argument. Glenna continued to refuse

Moreland’s request. Moreland eventually left the house for about one-half hour,

returned, argued with Glenna a third time, and left again for about ten minutes.

Moreland returned to the home with a rifle and proceeded to shoot Glenna twice in the

head. He then shot Tia’s eleven-year-old son Dayron Talbott in the hand and face and

hit Dayron with the end of the rifle. When Tia, Thurston, and Gregory returned home

near midnight, they discovered the bodies of Lana Green, Violana Green, Glenna Green,

No. 09-3528 Moreland v. Bradshaw Page 3

Datwan Talbott, and Daytrin Talbott.1 Dayron, Tia Green, and Glenna Talbott were

injured but survived.2 Moreland had left the home by this time.

Later that night, Moreland met with Samuel Thomas. Together, the two

purchased alcohol and returned to Thomas’s home. While there, a car passed by the

home and Moreland commented, “I bet it was a cruiser pass.” Thomas looked out of the

window and saw a police cruiser passing by the residence. Moreland also commented

that he had shot a gun and the bullet hole “went in small and came out big.” Thomas

testified that he did not understand what Moreland meant by this comment. Thomas later

drove Moreland home, where police arrested Moreland.

While police read Moreland his Miranda rights, he told the arresting officer that

the officer was “too late.” Moreland later proved uncooperative when the police

attempted to swab his hands to perform an atomic absorption test to detect the presence

or absence of gunshot residue. During the test, Moreland commented that “[t]his isn’t

going to do any good anyway. I’ve been firing three to four hundred rounds at a range

in Vandalia.” When asked if he signed in and out at the range, Moreland changed his

story and stated that he had been firing the shots along a river bank. Moreland also made

a number of statements that were eventually used against him at trial, including, “I have

Fifth Amendment rights,” “In fact, the Constitution is written for guys like me,” and

“You don’t have any evidence against me, and I’ll be damned if I’ll help you.”

At trial, Moreland presented testimony from an expert who estimated that

Moreland would have had a blood alcohol level of between .30 and .36 around the time

the murders were committed, suggesting that he would have been too intoxicated to

carry out the acts as described. However, in addition to Samuel Thomas, other witnesses

reported seeing Moreland that night and called into question his intoxication defense.

1

Glenna Green was Moreland’s girlfriend; Lana Green was her adult daughter; Violana Green

was Lana’s daughter and Glenna’s granddaughter; Datwan Talbott and Daytrin Talbott were Tia Talbott’s

sons and Glenna Green’s grandsons.

2

Dayron Talbott is Tia Talbott’s son and Glenna Green’s grandson; Tia Green is Lana Green’s

daughter and Glenna Green’s granddaughter; Glenna Talbott is Tia Talbott’s daughter and Glenna Green’s

granddaughter.

No. 09-3528 Moreland v. Bradshaw Page 4

Bruce Shackleford saw Moreland at approximately 11:00 p.m. and testified that

Moreland did not appear to be drunk nor did he have difficulty walking or talking.

Richard Cunningham also saw Moreland and observed that Moreland did not seem to

have difficulty walking.

Police subsequently recovered what they believed to be the murder weapon—a

.22-caliber rifle. Because the rifle had been in an alley for weeks after the crime, it was

discolored, rusty, and broken. Police linked the rifle to the crime after determining that

bullets found in some of the victims’ bodies matched that of a .22-caliber rifle. When

police test-fired the rifle and compared the test bullets with the bullets found in the

victims’ bodies, they found that the two bullet types shared the same characteristics.

In April 1986, after Moreland waived trial by jury, a three-judge panel found

Moreland guilty of the aggravated murders of Glenna, Lana, and Violana Green, and

Daytrin and Datwan Talbott. Each of the five aggravated murders carried death penalty

specifications, and the panel ultimately sentenced Moreland to death. Further, the panel

found Moreland guilty of the attempted aggravated murders of Tia Green, Glenna

Talbott, and Dayron Talbott, and sentenced Moreland accordingly. The panel acquitted

Moreland of five counts of aggravated felony murder, three counts of attempted

aggravated felony murder, one count of aggravated robbery, and the death specifications

that the murders were committed to escape detection or apprehension and that they were

committed in conjunction with aggravated robbery.

Moreland appealed his conviction and sentence to the Ohio Court of Appeals,

which affirmed the decision of the trial court. See Ohio v. Moreland, No. 9907, 1988

WL 95894 (Ohio Ct. App. Sept. 16, 1988). The Ohio Supreme Court subsequently

affirmed that decision, and the United States Supreme Court denied certiorari. See

Moreland, 552 N.E.2d 894, cert. denied, 498 U.S. 882 (1990). Moreland next sought

relief in state post-conviction proceedings. The trial court granted the State’s motion for

summary judgment. Moreland appealed and the Ohio Court of Appeals affirmed in part,

but remanded the action for an evidentiary hearing to determine if Moreland had

knowingly, voluntarily, and intelligently waived his right to trial by jury. After remand,

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the trial court and the state court of appeals held that Moreland failed to prove that his

jury trial waiver was invalid. The Ohio Supreme Court declined to accept Moreland’s

appeal for review.

Moreland filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254, raising nine claims. The magistrate judge recommended that Moreland’s habeas

petition be denied on all grounds, but recommended certifying for appeal Moreland’s

claims (1) that his conviction for aggravated murder with prior calculation and design

was not supported by sufficient evidence, (2) that the trial court failed to conduct an

adequate evidentiary hearing into the competence of Dayron and the admissibility of his

testimony, (3) that the trial court wrongly excluded expert testimony about Dayron’s

susceptibility to suggestion, (4) that counsel were ineffective in failing to object to

gruesome photographs and in failing to object to Moreland’s statements concerning his

post-arrest assertion of Miranda rights, and (5) that counsel were ineffective at the

penalty phase of his trial. The district court adopted the magistrate judge’s

recommendations in full. Moreland v. Bradshaw, 635 F. Supp. 2d 680 (S.D. Ohio

2009); Moreland v. Bradshaw, No. 3:05-cv-334, 2010 WL 99263 (S.D. Ohio Jan. 6,

2010). Moreland timely appealed.

II.

A. Sufficiency of the Evidence3

The Supreme Court of Ohio reasonably applied clearly established federal law

in deciding that sufficient evidence supported Moreland’s convictions for committing

aggravated murder with prior calculation and design. Moreland filed his federal habeas

petition after the effective date of the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”). The provisions of that act therefore apply in this case. Lindh v.

Murphy, 521 U.S. 320, 336–37 (1997). Under AEDPA’s deferential standard, a writ

3

Moreland did not argue before the district court that the State produced insufficient evidence of

attempted aggravated murder; nor did the district court certify this claim for appeal. We will therefore not

consider that claim. See Post v. Bradshaw, 621 F.3d 406, 415 (6th Cir. 2010) (citing Brown v. Marshall,

704 F.2d 333, 334 (6th Cir. 1983)).

No. 09-3528 Moreland v. Bradshaw Page 6

may be granted only if the state court’s decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1);

Williams v. Taylor, 529 U.S. 362, 404-05 (2000). We apply two layers of deference in

reviewing habeas claims challenging evidentiary sufficiency. McGuire v. Ohio, 619

F.3d 623, 631 (6th Cir. 2010) (citing Brown v. Konteh, 567 F.3d 191, 204-05 (6th Cir.

2009)). “First . . . we must determine whether, viewing the trial testimony and exhibits

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.” Brown, 567 F.3d at 205

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “Second, even were we to

conclude that a rational trier of fact could not have found a petitioner guilty beyond a

reasonable doubt, on habeas review, we must still defer to the state appellate court’s

sufficiency determination as long as it is not unreasonable.” Id. (citing 28 U.S.C.

§ 2254(d)(2)). The Ohio Supreme Court did not unreasonably determine the facts when

it held that sufficient time and opportunity existed for Moreland to plan and commit the

acts and that the circumstances of the crime showed a scheme to implement the

calculated decision to kill. See Moreland, 552 N.E.2d at 903. Thus, the district court

properly held that the Ohio Supreme Court’s rejection of this claim was neither contrary

to, nor an unreasonable application of, clearly established Supreme Court precedent.

The Ohio Supreme Court reasonably determined that, taking the evidence in the

light most favorable to the State, a rational trier of fact could have found that Moreland

killed the victims with prior calculation and design. Under Ohio law, “No person shall

purposely, and with prior calculation and design, cause the death of another.” Ohio Rev.

Code Ann. § 2903.01(A) (West 1996) (amended 1996). “Instantaneous deliberation is

not sufficient to constitute ‘prior calculation and design.’” Ohio v. Cotton, 381 N.E.2d

190, 192 (Ohio 1978). However, “[w]here evidence adduced at trial reveals the presence

of sufficient time and opportunity for the planning of an act of homicide to constitute

prior calculation, and the circumstances surrounding the homicide show a scheme

designed to implement the calculated decision to kill,” such a finding is justified. Id.

The Ohio Supreme Court reasoned that Moreland’s shooting of Glenna did not occur as

a result of an instantaneous deliberation but rather after Moreland had sufficient time and

No. 09-3528 Moreland v. Bradshaw Page 7

opportunity to plan the act. The argument began when Glenna refused to give Moreland

money for alcohol. After arguing with Glenna, Moreland left the house for

approximately one-half hour, returned, resumed the argument, then left the house again.

Thus, Moreland removed himself from not only the person with whom he was angry, but

the place where the argument occurred. About ten minutes after leaving, Moreland

returned with a rifle and killed Glenna before turning the rifle on Dayron. He then killed

or attempted to kill all the people in the household. According to the Ohio Supreme

Court, Moreland had sufficient time and opportunity to plan the acts. Moreland,

552 N.E.2d at 903. Additionally, the court determined that the circumstances of

Moreland’s killing or attempting to kill all the witnesses in the household showed a

scheme to implement the calculated decision to kill, which justified the finding of prior

calculation and design. Id.

The supreme court also held that the evidence was sufficient to show that

Moreland was not so intoxicated as to render him incapable of prior calculation and

design. Moreland claimed that he was incapable of formulating a scheme to kill in his

intoxicated state. Moreland’s expert presented evidence of Moreland’s estimated level

of intoxication at the time of the crimes, placing his blood-alcohol level between .30 and

.36. The expert testified that he would have been in a stuporous stage and on the verge

of a coma with a blood-alcohol level in that range. Yet as the Ohio Supreme Court

noted, the State presented contrary evidence on this point. Id. Bruce Shackleford, who

observed Moreland around the time of the murders, testified that Moreland did not

appear to be drunk or have difficulty walking or talking. Samuel Thomas testified that

he and Moreland drank alcohol after the murders. Finally, Dayron testified that

Moreland, at the time of the crimes, reloaded the rifle, suggesting he remained capable

of performing this act. Id.

The supreme court ultimately viewed the question of whether Moreland acted

with prior calculation and design as an issue of fact. Id. The supreme court found the

evidence sufficient to warrant the conclusions reached by the three-judge panel in the

panel’s weighing of the evidence and determinations of witness credibility. Id. at 903-

No. 09-3528 Moreland v. Bradshaw Page 8

04. The supreme court concluded by stating that the panel must have determined that

Moreland’s intoxication (if he was intoxicated at all) did not negate the finding of prior

calculation and design.

Moreland first attacks the supreme court’s determination on the ground that

Dayron’s testimony at trial was inconsistent, inaccurate, and unreliable when compared

with the story he told his father after the shooting happened. However, this argument

essentially concerns a credibility determination reserved for the trier of fact. Dayron

initially told his father that he fell asleep, he awoke to an argument between Moreland

and his grandmother, and the shooting happened immediately thereafter. At trial,

however, Dayron testified that he saw Moreland leave two or three times and return the

last time with a gun, providing the state with evidence of prior calculation and design.

Thus, the three-judge panel was left to make a credibility determination. “[U]nder

Jackson [v.Virginia], the assessment of the credibility of witnesses is generally beyond

the scope of [habeas] review.” Brooks v. Tennessee, 626 F.3d 878, 899 (6th Cir. 2010)

(Daughtrey, J., concurring) (quoting Schlup v. Delo, 513 U.S. 298, 330 (1995)).

Moreland also contends that the Ohio Supreme Court’s reasons for finding

sufficient evidence of the scheme to implement the calculated decision to kill were

objectively unreasonable. In Moreland’s view, the supreme court erred by basing its

analysis on “the circumstances of appellant’s killing or attempting to kill all the

witnesses in the household [which] showed a scheme to implement the calculated

decision to kill.” Moreland, 552 N.E.2d at 903 (emphasis added). Moreland argues that

this finding is inconsistent with the three-judge panel’s finding of not guilty on the

specifications alleging that Moreland killed the victims to escape detection. Moreland’s

reading confuses the issue. The three-judge panel could reasonably have found that, in

killing or attempting to kill everyone in the house, Moreland evidenced “a scheme to

implement the calculated decision to kill” without also finding that Moreland had the

specific purpose to prevent the victims from identifying him as the murderer. In any

event, the Ohio Supreme Court’s use of the word “witnesses” in its decision was not

objectively unreasonable.

No. 09-3528 Moreland v. Bradshaw Page 9

Finally, Moreland challenges his identification as the killer, albeit within the

context of his prior calculation and design argument. He claims that there is reasonable

doubt as to whether he was even the perpetrator, let alone that he acted with prior

calculation and design. In his brief to the Ohio Supreme Court on direct appeal,

Moreland divided this argument into two separate propositions of law. He argued in his

eighth proposition of law that there was insufficient evidence of prior calculation and

design, and he argued in his ninth proposition of law that the weight of the evidence did

not support his identification as the killer. After rejecting his prior calculation and

design argument, the supreme court rejected his argument that his conviction went

against the manifest weight of the evidence. The supreme court held that the evidence

established his guilt beyond a reasonable doubt. See id. at 904. In Moreland’s federal

habeas petition, he presented the claims as one issue involving prior calculation and

design. Moreland’s fifth ground for relief stated:

Samuel Moreland was found guilty of Aggravated Murder (counts) based

upon insufficient evidence. The only eyewitness to the killings was an

eleven year old boy who identified someone other than Mr. Moreland as

the perpetrator of these deaths. The identification of Mr. Hagans as the

perpetrator was made to the first person who encountered the child

witness at the scene. The child subsequently changed his statement and

implicated Mr. Moreland.

Petition, R. 14, Page I.D. 77. Although the district court considered testimony tying

Moreland to the crimes and testimony establishing that he acted with prior calculation

and design, the district court did not specifically address Moreland’s argument that

someone else committed the crimes.

Whether a defendant acted with prior calculation and design and whether a

defendant in fact committed the crime at issue are two distinct arguments. This

challenge is arguably not within the scope of the certificate of appealability and therefore

not properly before this court. See Hill v. Mitchell, 400 F.3d 308, 329, 335 (6th Cir.

2005). However, granting Moreland the benefit of the doubt that he properly presented

the issue and that the issue fell within the scope of the certificate of appealability, his

claim still lacks merit. Multiple pieces of evidence, including eyewitness testimony,

No. 09-3528 Moreland v. Bradshaw Page 10

Moreland’s admission that he shot a gun near the time of the murders, the drops of blood

found on Moreland’s clothes that matched the blood types of two of the victims, and

evidence showing that Moreland argued with Glenna immediately before the murders,

support his identity as the killer.

First, the eyewitness, Dayron Talbott, identified Moreland as the shooter of

Dayron and his grandmother Glenna Green. Moreland, 552 N.E.2d at 901. An atomic-

absorption test performed on Moreland after his arrest indicated that he probably had

discharged a firearm. Id. at 899-901. In any event, Moreland admitted firing a gun. He

claimed that he had been firing three to four hundred rounds at a gun range. When an

officer asked if he signed in and out at the range, Moreland changed his story and said

that he had been firing the shots along a riverbank. Id. at 897, 901-02. Also, the

bloodstains on Moreland’s pants matched the blood types of two of the victims. Id. at

901.

The timing element also supports a finding that Moreland was the killer. When

Tia, Thurston, and Gregory left the home to go shopping, ten people remained in the

house. When the shoppers returned approximately ninety minutes later, only two of

the ten were still living and unwounded: four-year-old Daniel and Moreland, who had

left the residence. Viewing all the evidence in the light most favorable to the

prosecution, a rational trier of fact could have found beyond a reasonable doubt that the

unwounded, missing adult who had previously been in the house perpetrated the crimes.

Moreland challenges on several bases the conclusion that he committed the

crimes. Each argument ultimately fails. First, Moreland’s argument involving the lack

of blood found on him upon arrest—only a few drops were found on his pants and on the

right side of his shirt, but none on his hands, body, jacket, shoes, or socks—comes down

to a credibility determination. On one hand, Dayron identified Moreland, someone he

knew well, as the killer. On the other hand, Moreland points out, a great deal of blood

surrounded each victim and first-responders referred to the crime scene as a

“slaughterhouse.” The coroner testified that there would have been heavy bleeding and

blood spattering as the injuries were inflicted. Moreland argues that it is unlikely that

No. 09-3528 Moreland v. Bradshaw Page 11

(indeed, unfathomable how) he committed these crimes while getting so little blood on

himself. He likewise points to evidence that, at the time of the crimes, he was already

so intoxicated that he was in a stuporous stage, verging on a coma. In such a condition,

he argues, it is “incredibly unlikely” that he would have avoided being covered with

blood spatter or cleaned himself off so well afterward. He also points to evidence that

he put on mismatched socks, one green, one white, earlier that evening before the

crimes, yet he had those same socks on when arrested without blood on them.

Responding to an argument that the prosecutor made at trial—that Moreland might have

changed his clothes after the crimes—he contends that this is speculation not supported

by evidence. Instead, Moreland offers another explanation for the few drops on his

clothes: that night, while out with a companion, Moreland took a bloody $20 bill out

of the pocket of a man who had collapsed in the street. Finally, Moreland notes that no

forensic evidence or testimony connected him to the rifle police found in an alley weeks

after the crime that they believed to be the murder weapon.

The blood argument equates to an attack on the eyewitness’s credibility—a

determination that is exclusively the province of the trier of fact. United States v. Bond,

22 F.3d 662, 667 (6th Cir. 1994). In general, attacks on witness credibility are “simply

challenges to the quality of the government’s evidence and not to the sufficiency of the

evidence.” Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir. 2002) (quoting United States

v. Adamo, 742 F.2d 927, 935 (6th Cir. 1984)). The three-judge panel heard testimony

about the scarcity of blood on Moreland’s clothes, see Moreland, 552 N.E.2d at 902, but

chose to believe Dayron when he identified the man he saw attack him and kill his

grandmother. Likewise, the three-judge panel heard testimony regarding the lack of

physical evidence connecting Moreland to the murder weapon. The panel presumably

placed less emphasis on this evidence. These determinations appropriately rested with

the panel.

Further, the mismatched socks are irrelevant since, by Moreland’s own

admission, evidence that he put on the socks before the crimes were committed was not

presented until the penalty phase. This issue therefore does not factor into the analysis

No. 09-3528 Moreland v. Bradshaw Page 12

of whether sufficient evidence was presented at the guilt phase to justify conviction. Cf.

Herrera v. Collins, 506 U.S. 390, 402 (1993); Matthews v. Abramajtys, 319 F.3d 780,

788 (6th Cir. 2003).

Also, Moreland’s alternative explanation for the blood only means that the triers

of fact had before them conflicting inferences about the source of the blood. “[A] federal

habeas corpus court faced with a record of historical facts that supports conflicting

inferences must presume—even if it does not affirmatively appear in the record—that

the trier of fact resolved any such conflicts in favor of the prosecution, and must defer

to that resolution.” Jackson, 443 U.S. at 326; see Wright v. West, 505 U.S. 277, 296–97

(1992) (plurality opinion). Further, the prosecution is not under an affirmative duty to

rule out every hypothesis except that of guilt beyond a reasonable doubt. Jackson, 443

U.S. at 326.

Moreland’s primary argument in disputing his identity as the killer is that Eugene

Hagans, Tia’s ex-boyfriend, committed the murders. At the scene of the crime, a

firefighter asked Dayron (who had been shot and beaten) who did this to him. The

firefighter thought Dayron said “Higgins” or “Hagans.” In the ambulance, a paramedic

asked Dayron the same question and his answer sounded like “Liggins, Hagans,

Higgins.” In the emergency room, Dayron told the doctor he did not know who was

responsible. Dayron’s father and his great-grandmother also questioned Dayron in the

hospital before he saw police. Dayron identified the perpetrator as his “mother’s

boyfriend.” When asked if he meant his grandmother’s boyfriend—meaning

Moreland—Dayron responded yes. Further, Dayron’s mother Tia explained to police

that Hagans had called and threatened her and her family. The timing of these threats,

however, was not entirely clear. Tia had previously filed at least 14 criminal complaints

against Hagans, and on one occasion she shot Hagans in the chest after he refused to

leave her home. When police went to Hagans’ residence on the night of the murders,

they found him in his basement wearing only underwear and speaking with his brother.

Police recovered Hagans’ jacket, which had at least three human-blood stains on it, one

matching Hagans’ blood type and two others matching two of the victims’ blood types.

No. 09-3528 Moreland v. Bradshaw Page 13

The panel was entitled to hear testimony suggesting that someone other than Moreland

may have been responsible for the crimes but nevertheless conclude that the State

presented a more compelling case.

Finally, Moreland’s attempt to equate the facts of his case with those found in

McKenzie v. Smith, 326 F.3d 721 (6th Cir. 2003), misses the mark. The eyewitness in

McKenzie was three years old at the time of the incident and was deemed incompetent

to testify. Id. at 727–28. Aside from a statement the child made to her grandmother the

day after the assault, no other physical evidence or eyewitness testimony linked the

petitioner to the crime. Thus, the prosecution’s reliance on the statement of the child in

convicting the petitioner was deemed unwarranted. In Moreland’s case, the child

eyewitness was deemed competent to testify and other evidence connected Moreland to

the crime.

In the end, a rational trier of fact could have found beyond a reasonable doubt

that Moreland committed the murders with prior calculation and design. “[E]ven were

we to conclude that a rational trier of fact could not have found [the defendant] guilty

beyond a reasonable doubt, on habeas review, we must still defer to the state appellate

court’s sufficiency determination as long as it is not unreasonable.” Brown, 567 F.3d

at 205 (emphasis omitted). Because the Supreme Court of Ohio did not unreasonably

apply, or rule contrary to, Supreme Court law, the district court properly denied habeas

relief on this claim.

B. Trial Court Error: Competency Hearing and Expert Testimony4

Moreland’s due process rights were not violated by the trial court’s failure to

conduct a competency hearing on Dayron Talbott or by the trial court’s exclusion of

4

Moreland did not procedurally default his claim that the trial court conducted an inadequate

evidentiary hearing on the competency and admissibility of eleven-year-old Dayron Talbott’s testimony;

nor did Moreland default his claim that the trial court erred in excluding expert-opinion testimony on

Dayron’s susceptibility to suggestion and the influence of others. The district court held that Moreland

procedurally defaulted these claims because he did not present the claims to the state courts as federal

claims. However, for both claims, Moreland argued in his brief to the Ohio Supreme Court that the alleged

errors violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution. That statement sufficiently preserved his argument to avoid default. See Sheppard v. Bagley,

657 F.3d 338, 347 (6th Cir. 2011).

No. 09-3528 Moreland v. Bradshaw Page 14

expert testimony by Dr. Michael Williams concerning Dayron’s susceptibility to

suggestion and influence. The Ohio Supreme Court rejected both claims on state-law

grounds. See Moreland, 552 N.E.2d at 898-99. The supreme court held that the trial

court’s decision to conduct an interview with Dayron without holding a full evidentiary

hearing did not amount to an abuse of discretion because under Ohio law eleven-year-old

Dayron was presumed competent to testify. See Ohio R. Evid. 601 (stating that every

person is competent to be a witness except: “(A) Those of unsound mind, and children

under ten (10) years of age, who appear incapable of receiving just impressions of the

facts and transactions respecting which they are examined, or of relating them truly.”).

The supreme court also concluded that the trial court’s exclusion of Dr. Williams’s

testimony was not in error because, under Ohio law, an expert may not testify as to the

expert’s opinion of the truth or falsity, or accuracy or inaccuracy, of the statements of

a child declarant. The supreme court, however, did not address Moreland’s argument

that the trial court decisions violated his due process rights. Because the Ohio Supreme

Court only considered the merits of these claims on state law grounds, AEDPA

deference arguably does not apply under this court’s holdings prior to Harrington v.

Richter, 131 S. Ct. 770 (2011), and Early v. Packer, 537 U.S. 3 (2002) (per curiam).

See Danner v. Motley, 448 F.3d 372, 376 (6th Cir. 2006) (citing Maples v. Stegall, 340

F.3d 433, 436 (6th Cir. 2003)). Richter and Packer appear to require AEDPA deference

where a federal issue has been raised but the state court has denied the claim with a

discussion solely of state law. See Childers v. Floyd, 642 F.3d 953, 968–69 (11th Cir.

2011). The Supreme Court has recently granted certiorari in a case that may definitively

resolve this issue. See Cavazos v. Williams, 132 S. Ct. 1088 (2012). We need not

anticipate the Supreme Court’s ultimate ruling on the issue, however, because even free

of AEDPA deference, Moreland has not established due process violations. His claims

are essentially state-law issues, which are not cognizable in federal habeas review.

First, the trial court’s failure to conduct a competency hearing for Dayron did not

deprive Moreland of his due process rights because the procedures followed by the trial

court were fundamentally fair. Although the Confrontation Clause guarantees a

defendant the right to be confronted with the witnesses against him, U.S. Const.

No. 09-3528 Moreland v. Bradshaw Page 15

amend. VI, and this right includes as one of its elements that those witnesses be

competent to testify, Maryland v. Craig, 497 U.S. 836, 851 (1990), the right does not

necessarily guarantee a defendant a hearing on a witness’s competence to testify. While

not required to do so under Ohio law, the trial court interviewed Dayron in chambers to

determine whether he could distinguish between truth and falsity. Moreland and all

counsel were present for the interview. The panel posed a series of questions to Dayron,

including, “Do you know what it means to take an oath to tell the truth?” and “Do you

know what the difference is between the truth and telling a lie?” Judge Porter also asked

Dayron his name, age, school, the meaning of a lie, and what happens when one tells a

lie. Judge Kessler then commented that Dayron “appeared to be alert, bright, [and]

intelligent.”

Moreland has not shown that this procedure was fundamentally unfair. In

general, alleged errors in evidentiary rulings by state courts are not cognizable in federal

habeas review. Collier v. Lafler, 419 F. App’x 555, 558 (6th Cir. 2011) (citing Coleman

v. Mitchell, 244 F.3d 533, 542 (6th Cir. 2001)). A federal court may nevertheless grant

relief in cases where “the state’s evidentiary ruling is so fundamentally unfair that it rises

to the level of a due-process violation.” Id. To show a due process violation under

AEDPA rooted in an evidentiary ruling, this court has typically required a Supreme

Court case establishing a due process right with regard to that specific kind of evidence.

Id. (citing Maldonado v. Wilson, 416 F.3d 470, 477 (6th Cir. 2005)). Moreland points

to no clearly established Supreme Court precedent governing how a state competency

hearing is to be conducted. Indeed, the Supreme Court has not set forth a definition of

witness competence required by the Due Process Clause, nor has the Court established

a precise age below which a competency hearing would be required. See Kentucky v.

Stincer, 482 U.S. 730, 741 n.11 (1987) (citing Wheeler v. United States, 159 U.S. 523,

524 (1895)). The Supreme Court has recognized that requirements for competency

determinations vary by state, with some states explicitly allowing children to testify

without requiring a prior competency qualification and others deeming all persons,

including children, competent unless otherwise limited by statute. Id. at 742 n.12. When

competency hearings with children are conducted, the questions generally focus on

No. 09-3528 Moreland v. Bradshaw Page 16

matters unrelated to the basic issues of the trial and instead include questions such as

“their names, where they go to school, how old they are, whether they know who the

judge is, whether they know what a lie is, and whether they know what happens when

one tells a lie,” id. at 741—the same questions posed to Dayron by the panel in

chambers.

Further, even though the three-judge panel did not permit Moreland’s attorney

to question Dayron during the interview, Moreland does not dispute that his attorney had

wide latitude in cross-examining Dayron at trial. In general, the right to confront

adverse witnesses is satisfied “if defense counsel receives wide latitude at trial to

question witnesses.” Pennsylvania v. Ritchie, 480 U.S. 39, 53 (1987) (citing Delaware

v. Fensterer, 474 U.S. 15, 20 (1985)).

In sum, Moreland has not shown that the failure to conduct a competency hearing

violated his due process rights. To the extent Moreland argues the trial court’s decision

violated state law, that claim is not cognizable on federal habeas review. Collier,

419 F. App’x at 558.

Next, Moreland’s due process rights were not violated by the trial court’s

exclusion of Dr. Williams’s expert opinion. Moreland sought to introduce the expert

opinion of Dr. Williams, a child psychologist, who would have testified that Dayron, a

“parentified” child, would more likely relate events in a way consistent with the

perspective of his mother Tia. This exclusion, claims Moreland, denied him the right

to present a defense, violated his right to due process, and violated his right to a fair and

reliable trial. However, “a habeas petitioner does not have a constitutional right to the

presentation of expert testimony on the reliability of eyewitness identification.” Buell

v. Mitchell, 274 F.3d 337, 359 (6th Cir. 2001); see Moore v. Tate, 882 F.2d 1107, 1110-

11 (6th Cir. 1989). Also, as the Ohio Supreme Court held on direct appeal, Moreland’s

challenge regarding expert testimony is essentially a state-law issue.5 Moreland,

5

Moreland re-raised the claim in post-conviction proceedings, where the state court of appeals

held it barred by res judicata. Moreland, 2000 WL 5933, at *5. The district court held the claim not only

procedurally defaulted, but meritless because it presented only an issue of state law.

No. 09-3528 Moreland v. Bradshaw Page 17

552 N.E.2d at 899. His claim is therefore not appropriate for federal habeas corpus

review.

Moreland argues that in the aftermath of the murders, Dayron’s family, police,

and prosecutors pressured Dayron to identify Moreland as the killer. For this reason,

Moreland claims an expert opinion was needed to explain that Dayron’s version of

events did not result from his own independent recollection. Moreland contends that

Dayron’s identification of Moreland contradicts Dayron’s preliminary identification of

his mother’s ex-boyfriend, Eugene Hagans, as the killer. In the five months leading to

trial, Moreland claims that Dayron’s family members repeatedly reinforced the idea that

Moreland was the killer. A social service worker, Carolyn Lander, testified that she

visited Dayron between twenty and twenty-five times during this period. She explained

that friends, relatives, and other people talked frequently about the crime in Dayron’s

presence. Lander also stated that these people told Dayron that he knew who had done

this to him and he would be able to say so when asked. Some individuals specifically

identified Moreland as the perpetrator of the crimes. In addition, Tia told Dayron that

the case rested on him. Moreland argues that these statements, combined with

questioning by police and prosecutors, reinforced the idea that he was guilty.

The three-judge panel allowed Dr. Williams to testify about “parentification” and

precluded him only from offering his expert opinion on the accuracy of Dayron’s

testimony because, under Ohio law, “[a]n expert may not testify as to the expert’s

opinion of the truth or falsity, or accuracy or inaccuracy, of the statements of a child

declarant.” Moreland, 552 N.E.2d at 896 (citing Ohio v. Boston, 545 N.E.2d 1220

(Ohio 1989)). The panel heard testimony from Dr. Williams that a parentified child

views the parent more as an equal than as an authority figure, and seeks to please the

parent. The child tries to meet the parent’s needs more so than the parent meets the

child’s needs. Also, the parentified child is more inclined to do what he or she can to

reduce the pressures, stresses, and needs of the parent. Dr. Williams testified that Tia

told Dayron in his presence that “she’d be glad when the trial had come and gone and

Sam Moreland got what was coming to him.” The panel only excluded Dr. Williams’s

No. 09-3528 Moreland v. Bradshaw Page 18

opinion that Dayron’s version of events was more likely the product of influence from

his mother, detectives, prosecutors, and social workers. Dr. Williams proffered his

conclusion for the record, though the judges excused themselves from the courtroom

when he gave his remarks.

Moreland argues that the state-court determination to exclude this category of

testimony was so fundamentally unfair as to deny him due process. Moreland essentially

argues that the Constitution ought to require the admission of such evidence. However,

the Supreme Court has made clear that “state-court evidentiary rulings cannot rise to the

level of due process violations unless they ‘offend[] some principle of justice so rooted

in the traditions and conscience of our people as to be ranked as fundamental.’” Seymour

v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quoting Montana v. Egelhoff, 518 U.S. 37,

43 (1996)). The Supreme Court has also explained that an “accused does not have an

unfettered right to offer [evidence] that is incompetent, privileged, or otherwise

inadmissible under standard rules of evidence.” Egelhoff, 518 U.S. at 42 (quoting Taylor

v. Illinois, 484 U.S. 400, 410 (1988)). Considering the wide latitude afforded to states

regarding evidentiary matters under the Due Process Clause, and Moreland’s failure to

show that the trial court’s ruling violated a fundamental principle of justice, we cannot

say that Moreland’s due process rights were violated by the exclusion of this testimony.

Moreland argues that Buell v. Mitchell, 274 F.3d at 359, upon which we rely

above, did not categorically hold that no constitutional right exists allowing for the

presentation of expert testimony on the reliability of eyewitness testimony. He contends

that the reason we found no constitutional error in Buell in excluding the expert

testimony was that the evidence of Buell’s guilt was based primarily on physical

evidence, rather than identification testimony. Also, Buell never argued that the expert

testimony in question fell under an exception to the Ohio rule forbidding such evidence.

Moreland claims that, unlike in Buell, very little physical evidence connected him to the

crime. Moreland also argues that Dayron suffered from mental and physical

impairments affecting his ability to observe and recall events, and Ohio law permits

expert testimony about the credibility of an identification if the eyewitness suffers from

No. 09-3528 Moreland v. Bradshaw Page 19

a mental impairment that affected his or her ability to recall events. See Ohio v. Buell,

489 N.E.2d 795, 804 (Ohio 1986).

That identification testimony assumed a greater role in Moreland’s conviction

than in Buell’s does not mean that Moreland’s constitutional rights were violated. While

not extensive, physical evidence did connect Moreland to the murders. As for Dayron’s

physical and mental status, the three-judge panel conducted an interview with Dayron

in chambers to consider his competence (even though he was presumed competent under

Ohio law). Our recognition in Buell that a habeas petitioner does not have a

constitutional right to the presentation of expert testimony on the reliability of

eyewitness identification did not depend on the distinctions pointed out by Moreland.

Buell, 274 F.3d at 359 (citing Moore v. Tate, 882 F.2d 1107, 1110-11 (6th Cir. 1989)).

Moreland’s reliance on Ferensic v. Birkett, 501 F.3d 469 (6th Cir. 2007), and

United States v. Smithers, 212 F.3d 306 (6th Cir. 2000), to demonstrate that the

exclusion of eyewitness-identification expert testimony can violate a defendant’s right

to present a defense is also misplaced. Ferensic was concerned with a Michigan trial

court’s exclusion of otherwise admissible testimony as punishment for the defense’s

violation of a discovery order. 501 F.3d at 476, 478. The identity of the perpetrators

was the central issue in Ferensic, and Ferensic repeatedly told jurors that he would

present expert testimony on the inherent unreliability of eyewitness testimony. The trial

court nevertheless excluded the testimony because Ferensic failed to provide the

prosecution with a copy of the expert’s report in the time frame set by the court. The

expert, had he been permitted to testify, “would have informed the jury of why the

eyewitnesses’ identifications were inherently unreliable. This would have been a

scientific, professional perspective that no one else had offered to the jury.” Id. at 477.

We concluded that, by excluding the testimony, the trial court showed disregard for the

substantial rights of one party, Ferensic, in the absence of any prejudice to the other, the

prosecution. Id. at 478. In Moreland’s case, however, the panel permitted Dr. Williams

to testify about why Dayron’s version of events suffered from potential problems—Dr.

Williams diagnosed Dayron as a parentified child. The panel only precluded Dr.

No. 09-3528 Moreland v. Bradshaw Page 20

Williams from offering his opinion that Dayron would relate events in a manner more

consistent with that of his mother. This exclusion did not prevent Moreland from

presenting a defense or prejudice him as was the case in Ferensic. Further, while

eyewitness testimony was certainly an important factor in Moreland’s case as in

Ferensic, other evidence connected Moreland to the crime, and that was not the case in

Ferensic.

Smithers turned on whether the federal district court should have excluded the

evidence without first holding a hearing to determine, under the appropriate standard,

if the evidence met the requirements for admission. 212 F.3d at 314. Here, Moreland

does not argue that the three-judge panel applied the wrong standard in excluding Dr.

Williams’s opinion. Also, unlike in Moreland’s case, the district court in Smithers

excluded the expert testimony in its entirety. Finally, in neither Smithers nor Ferensic

did state law, or federal law in Smithers, forbid admission of the testimony. In

Moreland’s case, Ohio law does forbid such testimony. Moreland has thus not

sufficiently shown that the exclusion of Dr. Williams’s testimony impeded his right to

present a defense.

To the extent Moreland argues that the exclusion of Dr. Williams’s testimony

violated state law, Moreland’s claim is not appropriate for habeas review. We may not

issue a writ of habeas corpus “on the basis of a perceived error of state law.” Pulley v.

Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders, 848 F.2d 735, 738 (6th Cir. 1988).

C. Ineffective Assistance of Counsel

1. Guilt Phase Ineffectiveness

Moreland raises three separate ineffective-assistance-of-counsel claims based on

counsel’s performance at the guilt phase of his trial. He argues: 1) counsel should have

objected to the introduction of gruesome photographs, 2) counsel should have objected

to the prosecution’s use of Moreland’s post-arrest, post-Miranda silence as evidence of

his guilt, and 3) counsel should have objected to the use of Moreland’s post-arrest, post-

No. 09-3528 Moreland v. Bradshaw Page 21

Miranda statements as evidence negating his intoxication defense. Moreland has not

established that he is entitled to habeas relief on any of these grounds.

First, because the Ohio Supreme Court’s application of Strickland v. Washington,

466 U.S. 668, 687 (1984), was neither contrary to federal law nor an unreasonable

application thereof, Moreland cannot prevail on his claim of ineffective assistance of

counsel based on his counsel’s failure to object to gruesome photographs offered at his

trial. In general, § 2254(d) sets forth a “high threshold” that requires a federal court to

“ask whether it is possible [for] fairminded jurists [to] disagree that those [state court

opinions] are inconsistent with the holding in a prior decision of [the Supreme] Court.”

Cullen v. Pinholster, 131 S. Ct. 1388, 1402, 1403 (2011) (citing Harrington v. Richter,

131 S. Ct. 770, 786 (2011)). The standard is “doubly deferential” when AEDPA is

applied with Strickland. Pinholster, 131 S. Ct. at 1410. The question under § 2254(d)

is not whether counsel’s actions were reasonable, but “whether there is any reasonable

argument that counsel satisfied Strickland’s deferential standard.” Harrington, 131 S.

Ct. at 788. In this case, the Ohio Supreme Court reasonably concluded that Moreland

had not established prejudicial error satisfying the standard to succeed on his claim

under Strickland.

Moreland identifies multiple photographs of the victims and autopsies to which

he claims his counsel should have objected. On direct appeal, Moreland argued that the

admission of the photographs constituted a trial court error; he also argued that his

counsel’s failure to object to the photographs constituted ineffective assistance of

counsel. The Ohio Supreme Court held that, even assuming deficient performance,

Moreland had not established prejudice. Moreland, 552 N.E.2d at 905. In analyzing

Moreland’s argument that the panel erred by admitting the photographs, the Ohio

Supreme Court noted that “a few slides and photographs could have been excluded as

cumulative or repetitive,” but the court did not “find any indication that the panel was

inflamed by the presentation of these photographs and slides.” Id. at 901. The supreme

court reasoned that the coroner’s slides were illustrative of the coroner’s testimony and

related to the issues of prior calculation and design, as well as the nature and

No. 09-3528 Moreland v. Bradshaw Page 22

circumstance of the murders. The court concluded that the probative value of the

evidentiary materials outweighed any possible prejudice.6

As the Ohio Supreme Court reasonably determined, even assuming counsel

performed deficiently, Moreland has not established that he was prejudiced. Nothing

indicated that the three-judge panel was inflamed by the presentation of the photographs.

The judges on the panel that heard Moreland’s case are presumed to know the law and

to apply it in making their decisions. See Lambrix v. Singletary, 520 U.S. 518, 532 n.4

(1997). Furthermore, judges are “presumed to base their judgment on relevant

evidence.” Smith v. Mitchell, 348 F.3d 177, 213 (6th Cir. 2003). These presumptions

may be overcome only upon an affirmative showing of prejudice. Id. at 206 (citing

United States v. Joseph, 781 F.2d 549, 552 (6th Cir. 1986)). Moreland has not made that

showing.

Moreland primarily relies on the three-judge panel’s sentencing opinion in

attempting to refute this conclusion. There, the panel stated:

The wounds and blunt force trauma sustained by all of the victims were

shocking. The Defendant not only shot several of the victims, he brutally

and intentionally followed a course of conduct whereby he actually

crushed the skulls of several of his victims, some of whom were children

under seven years of age.

Shocking and brutal though the violence revealed by the photographs may have been,

these comments are not evidence that the judges were inflamed into ignoring or

overstepping the law. These statements occurred in the context of the panel’s explaining

why aggravation outweighed mitigation. Moreland, 552 N.E.2d at 904-05. Although

under Ohio law the nature and circumstances of the offense do not qualify as aggravating

factors themselves, Fox v. Coyle, 271 F.3d 658, 669 (6th Cir. 2001), courts may consider

the nature and circumstances of an offense in determining whether the aggravating

6

The Ohio Supreme Court addressed the merits of Moreland’s argument about the photographs

in the context of a state-law evidentiary objection. Moreland, 552 N.E.2d at 900-01. In a separate section

of the opinion, the court held that, even assuming deficient performance, Moreland was not prejudiced.

Id at 905. Moreland agrees that the supreme court adjudicated this claim.

No. 09-3528 Moreland v. Bradshaw Page 23

factors outweigh the mitigating circumstances. Id.; see also Ohio v. Stumpf, 512 N.E.2d

598, 600 (Ohio 1987). That is what occurred in this case.

Our decision is in line with our previous decision in Smith v. Mitchell, 348 F.3d

at 206, in which we considered the effect of improper testimony by a prosecution witness

concerning the defendant’s lack of remorse and trial counsel’s failure to rebut the

testimony before a three-judge panel. We concluded that “any inflammatory effect [on

the judges] was de minimis.” Id. Moreland claims that, due to their graphic nature, the

photographs in his case must have had more than a de minimis effect. The panel’s

decision to acquit Moreland of multiple counts, however, demonstrates its ability to draw

distinctions and view the evidence in the appropriate light. The panel found Moreland

not guilty of five counts of aggravated felony murder, three counts of attempted

aggravated felony murder, and one count of aggravated robbery. The panel also

acquitted Moreland of the escaping-detection and felony-murder aggravators.

Moreland also argues that, because the supreme court assumed without

explaining that his counsel performed deficiently, we must review the performance

prong of his Strickland claim de novo. He concedes that the supreme court addressed

the prejudice prong of his Strickland claim. Even if we were to review counsel’s

performance under a de novo standard, we nevertheless defer to the supreme court’s

resolution of the prejudice prong and uphold its conclusion that Moreland cannot

establish prejudice for purposes of Strickland.

Thus, the Ohio Supreme Court’s rejection of this claim was neither contrary to,

nor an unreasonable application of, clearly established Supreme Court precedent.

Next, the Ohio Supreme Court’s rejection of Moreland’s ineffective-assistance-

of-counsel claim regarding the use of his post-arrest, post-Miranda silence as evidence

of his guilt was neither contrary to federal law nor an unreasonable application thereof.

According to Doyle v. Ohio, 426 U.S. 610, 611, 618-19 (1976), the prosecution may not

use the silence of a defendant to impeach him if that silence occurred after his arrest and

receipt of Miranda warnings. The supreme court assumed that Moreland proved

deficiency in his counsel’s performance but concluded that he failed to establish that he

No. 09-3528 Moreland v. Bradshaw Page 24

was prejudiced by that deficiency. Moreland, 552 N.E.2d at 905. We defer to that

conclusion.

At trial, the prosecution elicited testimony from a police officer that, after

Moreland had been arrested and given Miranda warnings, he did not ask what had

happened at the scene of the crimes, nor did he inquire about the well-being of anyone

in the house. The prosecution also questioned another police officer who testified that

Moreland did not ask questions about anyone in the house after he had been taken to the

police station. Moreland contends that the prosecution used this testimony to suggest

that his lack of curiosity stemmed from guilty knowledge: he did not need to ask,

because he already knew, and he already knew because he was the one who had done the

shootings.

On direct appeal to the Ohio Supreme Court, Moreland raised this argument as

a prosecutorial-misconduct claim and as an ineffective-assistance-of-counsel claim.

During oral argument before the supreme court, the State acknowledged that the

prosecutorial acts constituted Doyle violations. Because of this concession, the supreme

court reached the merits of what would otherwise have been a forfeited

claim—Moreland failed to object to one of the Doyle violations at trial and did not

object on constitutional grounds to the other violation. Nor did he present the issues to

the court of appeals. The supreme court nevertheless found that any Doyle violation was

harmless beyond a reasonable doubt.7 According to the supreme court, the evidence

presented, absent the claimed Doyle violations, constituted overwhelming proof of

Moreland’s guilt. Moreland, 552 N.E.2d at 901. The court considered Dayron’s

testimony that he saw Moreland shoot Glenna before being attacked himself. The

7

Moreland argues that, when a state court deems a constitutional error to be harmless, determining

whether an error is harmless on habeas review requires this court to ask whether the error “had [a]

substantial and injurious effect or influence in determining the jury’s verdict.” Ruelas v. Wolfenbarger,

580 F.3d 403, 411 (6th Cir. 2009) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). In

Moreland’s view, the Doyle violation was substantial and injurious, and as a result the Ohio Supreme

Court’s finding of harmlessness was objectively unreasonable. Therefore, Moreland argues, the supreme

court’s conclusion is not entitled to deference. The Ohio Supreme Court’s reasoning that the any Doyle

violation was harmless beyond a reasonable doubt occurred in the court’s analysis of Moreland’s

prosecutorial-misconduct claim—not in the court’s consideration of his ineffective-assistance claim. In

any event, we would reach the same conclusion on Moreland’s claim even reviewing his claim de novo.

No. 09-3528 Moreland v. Bradshaw Page 25

evidence also showed that the rifle recovered by the police was the rifle used in the

murders, and the butt-end of the rifle matched the imprint on Datwan Talbott’s forehead.

Further, the atomic absorption test performed on Moreland showed that he probably shot

a gun, and the bloodstains on his pants matched the blood types of two of the victims.

The court also considered Moreland’s changing stories about shooting a rifle at a range

and his odd statements to Samuel Thomas as further proof of guilt. Id. at 901–02. The

court next noted that, on the night of the murders, a witness saw and heard a man who

stated that he had killed his family, and evidence led to the conclusion that Moreland

made the statement. Finally, the court reasoned that the three-judge panel was

“presumed to have considered only relevant, material and competent evidence in arriving

at its judgment,” and the court could “find no evidence that the panel considered

[Moreland’s] post-Miranda silence in arriving at its verdicts.” Id. at 902.

That presumption disposes of this claim. Judges are presumed to know the law

and apply it in making their decisions, and to base their judgment on relevant evidence.

Lambrix, 520 U.S. at 532 n.4. Hence, judges are likewise presumed to recognize

constitutional violations and disregard any evidence that was unconstitutionally

obtained. In the words of the Ohio Supreme Court, there is “no evidence that the panel

considered appellant’s post-Miranda silence in arriving at its verdicts.” Moreland, 552

N.E.2d at 902 (emphasis added). Moreland points to no evidence to the contrary.

Moreland argues that the judges would have excluded the evidence sua sponte

if they realized that it derived from a constitutional violation, but he misconstrues the

law. The judges were not under an obligation to make Moreland’s objections on his

behalf. The failure to act (for example, to instruct the jury on a certain point of law) is

not evidence of ignorance of the law. Even in a situation where a trial judge gave jurors

an incorrect instruction on aggravating factors and then later imposed a death sentence

after weighing the aggravating factors and mitigating circumstances, the Supreme Court

presumed that the judge knew the law. In Lambrix v. Singletary, 520 U.S. 518 (1997),

the state supreme court had already given a facially vague aggravator a limiting

construction that rendered it constitutional. Despite this, the trial judge did not instruct

No. 09-3528 Moreland v. Bradshaw Page 26

Lambrix’s jury on that narrowed definition. The Supreme Court was thus confronted

with the argument: because the trial judge had not given the jurors the narrowed

construction, there was no reason to believe he had applied it himself when

independently weighing aggravation against mitigation. The Supreme Court, however,

refused to accept the contention that failure to instruct on a law displayed ignorance of

it. Instead, the Supreme Court applied the presumption that trial judges are presumed

to know the law and to apply it in making their decisions. Id. at 532 n.4. The

presumption that the judges knew the law applies in this case.

The Ohio Supreme Court’s conclusion that Moreland failed to establish that he

was prejudiced by his counsel’s performance is neither contrary to, nor an unreasonable

application of, clearly established Supreme Court precedent. Accordingly, Moreland is

not entitled to habeas relief on this ground.

Finally, Moreland challenges the Ohio Supreme Court’s rejection of his claim

that his counsel were ineffective in failing to object on the basis of Wainwright v.

Greenfield, 474 U.S. 284, 292, 295 (1986), to the prosecution’s use of Moreland’s

invocation of his right to silence as evidence that he was not intoxicated. According to

Greenfield, “silence” means not only muteness, but also “the statement of a desire to

remain silent, as well as of a desire to remain silent until an attorney has been

consulted.” Id. at 295 n.13. Moreland claims that his statements regarding his right to

remain silent were used against him and that counsel should have objected. The supreme

court held that, even assuming deficient performance, Moreland had not established

prejudicial error that in any way undermined the integrity of his convictions and

sentence. Moreland, 552 N.E.2d at 905. We defer to the Ohio Supreme Court’s

determination, as it did not contravene or unreasonably apply Supreme Court precedent.

After Moreland was arrested and given his Miranda warnings, the police tried

to swab his hands so that they could perform an atomic-absorption test for gunshot

residue. According to the Ohio Supreme Court, Moreland acted in an “uncooperative”

manner. Moreland, 552 N.E.2d at 897. Moreland made the following statements during

this time: “I have Fifth Amendment rights,” and “In fact, the Constitution is written for

No. 09-3528 Moreland v. Bradshaw Page 27

guys like me.” He also stated, “You don’t have any evidence against me, and I’ll be

damned if I’ll help you.” Id. In closing arguments, the prosecutor relayed these

statements when arguing that Moreland had not been so intoxicated as to be incapable

of acting with prior calculation and design, contrary to his defense. Moreland argues

that the prosecutor’s use of his statements violated Greenfield and that his counsel

should have objected.

The Ohio Supreme Court addressed Moreland’s Greenfield argument in the

context of his prosecutorial-misconduct claim. The court reasoned that Moreland’s

post-Miranda statements, not his silence, were used against him by the prosecution in

negating his intoxication defense and that he had not established prosecutorial

misconduct. Id. at 902. However, in the court’s discussion of Moreland’s ineffective-

assistance claim, the supreme court stated: “Assuming arguendo that [Moreland] has

proved a deficiency in counsel’s performance, [Moreland] has failed to establish that he

was prejudiced by the deficiency.” Id. at 905.

We need not address whether Moreland’s counsel were ineffective in not

objecting to the alleged Greenfield violation, because the Ohio Supreme Court’s

determination on the prejudice issue, which was sufficient to reject the claim, was not

an unreasonable application of Supreme Court precedent.

In Strickland, the Supreme Court explained that, to establish prejudice, a

“defendant must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” 466 U.S. at 694. It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, counsel’s

errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result

is reliable.” Id. at 687. Moreland has not made that demonstration in this case.

Moreland was tried by a panel of three judges who are presumed to know the law

and apply it in their decisionmaking. Lambrix, 520 U.S. at 532 n.4. He has not

affirmatively shown that this presumption should not apply here. Nothing indicates that

No. 09-3528 Moreland v. Bradshaw Page 28

the three-judge panel relied on Moreland’s statements when they evaluated his

voluntary-intoxication defense. Indeed, the panel heard other evidence undermining

Moreland’s defense. Although Moreland’s expert testified that his blood-alcohol level

would have been between .30 and .36 at the time of the murders and that he would have

been in a stuporous stage and on the verge of a coma, the State presented contrary

evidence on this point. Id. Bruce Shackleford, who observed Moreland around the time

of the murders, testified that Moreland did not appear to be drunk or have difficulty

walking or talking. Samuel Thomas testified that he and Moreland drank alcohol after

the murders. Finally, Dayron testified that Moreland, at the time of the crimes, reloaded

the rifle, suggesting that he remained capable of performing this act. Thus, the State had

already called into doubt Moreland’s intoxication defense before relaying Moreland’s

statements to the three-judge panel. Again, nothing suggests that the panel considered

those statements in their decisionmaking. Hence, Moreland has not shown that there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.

As a fallback argument, Moreland argues that the cumulative effect of counsel’s

errors should be considered in determining whether he has demonstrated a reasonable

probability of a more favorable outcome. However, “post-AEDPA, not even

constitutional errors that would not individually support habeas relief can be cumulated

to support habeas relief.” Hoffner v. Bradshaw, 622 F.3d 487, 513 (6th Cir. 2010)

(quoting Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005)). This argument therefore

lacks merit.

2. Sentencing Phase Ineffectiveness

Finally, Moreland has not established that he is entitled to habeas relief based on

the Ohio Court of Appeals’ rejection of his ineffective-assistance-of-counsel claim at the

sentencing phase of his trial. Under 28 U.S.C. § 2254(d), “we review the last state-court

decision to reach the merits of the particular claims being considered.” Davis v. Lafler,

658 F.3d 525, 531 (6th Cir. 2011) (en banc). “Claims of ineffective assistance of

counsel as to the penalty phase of a capital proceeding are analyzed under the same

No. 09-3528 Moreland v. Bradshaw Page 29

two-part Strickland standard described above, and in the context of capital sentencing,

the Supreme Court has made clear that counsel’s Sixth Amendment responsibilities

include a duty to engage in a reasonable investigation concerning aspects of the

defendant’s background that would support a mitigation case.” Jackson v. Houk, 687

F.3d 723, 743 (6th Cir. 2012) (citing Wiggins v. Smith, 539 U.S. 510, 522–23 (2003)).

Moreland argues that his counsel (1) did not engage in a reasonable investigation and

failed to obtain the services of a social worker in preparing for mitigation, (2) failed to

interview and prepare his family members to testify, (3) failed to research Moreland’s

background and the effects of inner-city culture on his upbringing, and (4) failed to

obtain his medical and school records. In rejecting Moreland’s first three arguments in

his petition for post-conviction relief, the Ohio Court of Appeals did not contravene or

unreasonably apply Supreme Court precedent. The court of appeals did not address

Moreland’s claim that his counsel were ineffective in failing to obtain his school and

medical records even though Moreland presented this claim. Regardless of whether we

review that claim de novo or accord it AEDPA deference, Moreland has not established

prejudice.

First, in rejecting Moreland’s argument that a social worker was needed to assist

trial counsel as a “mitigation specialist,” the Ohio Court of Appeals did not contravene

or unreasonably apply federal law. Ohio v. Moreland, No. 17557, 2000 WL 5933, at

*10-11 (Ohio Ct. App. Jan. 7, 2000). Moreland claims that a social worker would have

assisted in Moreland’s penalty phase defense by: identifying, interviewing, and

preparing witnesses; collecting all pertinent records; researching specific cultural factors

that influenced Moreland’s personality development; identifying and locating expert

witnesses; and assisting in the penalty phase strategy. According to the court of appeals,

an affidavit submitted by the social worker did not identify any discovery or evidentiary

issue that the social worker would be more capable of researching than would a certified

death penalty attorney. Id. at *11. Further, the court reasoned that counsel are presumed

to be capable of preparing for trial on their own. Id. As a result, the court of appeals

rejected this claim.

No. 09-3528 Moreland v. Bradshaw Page 30

Moreland is correct that under Wiggins v. Smith, 539 U.S. at 524, counsel should

make efforts to discover all reasonably available mitigating evidence. He nevertheless

has not shown what evidentiary issue a social worker would have been better able to

address than his own attorneys. As the court of appeals reasonably concluded, each of

the tasks identified by the social worker in her affidavit were tasks capable of being

performed by Moreland’s own attorneys. Applying the doubly deferential standard of

AEDPA and Strickland to the Ohio Court of Appeals’ resolution of this claim, we agree

that Moreland is not entitled to relief.

Second, the Ohio Court of Appeals did not contravene or unreasonably apply

federal law when it rejected Moreland’s claim that counsel were ineffective in failing to

interview several family members who could have provided relevant testimony

regarding the intergenerational history of alcohol abuse and violence in Moreland’s

family. In resolving this claim, the Ohio Court of Appeals noted that the only two

people who presented affidavits in which they claimed they were not interviewed were

Moreland’s father and his maternal aunt. Moreland, 2000 WL 5933, at *13. Moreland’s

father’s affidavit essentially recited facts regarding Moreland’s history that indicated his

mother was a violent alcoholic. Id. Moreland’s aunt’s affidavit covered this same topic.

Also, the court noted that Moreland’s counsel’s affidavit specifically stated that

Moreland’s father was interviewed. Id. at *13 n.3. Further, the court of appeals

explained that Moreland’s father testified about Moreland’s mother’s history of

alcoholism and violence during the mitigation phase of trial—the very topics addressed

in his affidavit. Finally, even though Moreland’s aunt did not testify, the court of

appeals concluded that the averments contained in her affidavit were covered by the

father’s testimony. As a result, the court concluded that the failure to interview

Moreland’s aunt did not prejudice Moreland and his claim was properly denied.

In objecting to the court of appeals’ analysis, Moreland argues that counsel failed

to prepare his father to testify, but Moreland’s father’s assertions to that effect were

contradicted by Moreland’s counsel’s affidavit. Moreland’s father averred that he had

no prior contact with Moreland’s trial attorneys before testifying and that he did not

No. 09-3528 Moreland v. Bradshaw Page 31

know what was expected of him. Yet Moreland’s counsel claim that they interviewed

his father. Further, even if Moreland’s counsel did not adequately prepare Moreland’s

father for testifying, as his father claimed in his affidavit, the court of appeals concluded

that Moreland’s father’s testimony at trial established the salient facts contained in his

affidavit. Id.

Also, while Moreland is correct that contacting, in his words, “a handful of

family members before trial” does not automatically render counsel’s investigation

constitutionally adequate, see Johnson v. Bagley, 544 F.3d 592, 602-03 (6th Cir. 2008),

the additional testimony of the identified family members would have been cumulative

and added little or no extra mitigating value, as was the case in Sutton v. Bell, 645 F.3d

752, 760 (6th Cir. 2011). Moreland’s trial counsel confirmed that, in addition to his

father, the only other family members they spoke with were Moreland’s two brothers.

But, as the court of appeals noted, the affidavit of Moreland’s aunt essentially discussed

the alcohol abuse and violence in Moreland’s family—topics addressed by Moreland’s

father in his testimony. The affidavits submitted by Moreland’s other relatives,

including those of Kenny Obie, Mattie L. Willams, and Otis Ayers, add nothing new to

this picture.

Moreland reads the court of appeals’ analysis as addressing only whether there

was prejudice under Strickland, and not as addressing whether counsel’s performance

was deficient. Even so read, the prejudice analysis was sufficient to support the court’s

rejection of the claim, and was not an unreasonable application of federal law under

AEDPA.

Third, the Ohio Court of Appeals also did not contravene or unreasonably apply

federal law in rejecting Moreland’s argument that counsel were ineffective by failing to

obtain a cultural expert to explain Moreland’s background and the effects of inner-city

culture on his development. Moreland claims that the three-judge panel never heard

about “the psychological and psychosocial limitations with which he entered adulthood

and which had their clear beginnings in a chaotic childhood, his alcohol dependence and

drug usage and the severity of those conditions, and his dysfunctional and avoidant

No. 09-3528 Moreland v. Bradshaw Page 32

pattern of coping with interpersonal conflict.” Moreland submitted an affidavit of a

social worker who would have testified that Moreland’s upbringing in an inner-city

environment helped to shape his development and that Moreland was, as the court of

appeals noted in reviewing the affidavit, “locked into the culture totally.” Moreland,

2000 WL 5933, at *10. According to the social worker, Moreland’s background made

him into a “maximum underachiever” who maintained his own level of integrity and

ethics. Id. This information, he contends, would have assisted him in establishing the

complexity of his relationships with the victims. Moreland also contends the evidence

would have provided him with evidence of “strong provocation” for mitigation purposes.

The court of appeals held that it could not “conclude from this affidavit that the

failure to procure such testimony at the guilt/innocence phase of trial fell below a

reasonable standard or that it would have changed the outcome of the trial.” Id. The

court also saw this issue as one of strategy. The record indicated that trial counsel

employed a strategy during the penalty phase emphasizing that Moreland’s chronic

alcoholism caused him to lack the substantial capacity to appreciate the criminality of

his conduct or to conform his conduct to the requirements of the law. Moreland’s

counsel contended that they emphasized this factor because they believed it to be

Moreland’s strongest argument. Counsel nevertheless stated that they also raised other

mitigating factors, including provocation, but chose not to emphasize those factors as

they were weaker arguments. The court of appeals held that the emphasis of one trial

strategy over another did not rise to the level of ineffective assistance of counsel. Id.

The court of appeals’ reasonably concluded that the failure to introduce this

evidence did not fall below a reasonable standard and would not have changed the

outcome of the trial. Moreland argues that the ABA standards in effect at the time of his

trial required counsel to “explore all avenues leading to facts relevant to the merits of the

case and the penalty in the event of conviction.” Bobby v. Van Hook, 130 S. Ct. 13, 17

(quoting 1 A.B.A. Standards for Criminal Justice 4-4.1, p.4-53 (2d ed. 1980)); see also

Wiggins, 539 U.S. at 524. But “Strickland does not require counsel to investigate every

conceivable line of mitigating evidence no matter how unlikely the effort would be to

No. 09-3528 Moreland v. Bradshaw Page 33

assist the defendant at sentencing.” Wiggins, 539 U.S. at 533. Moreland’s counsel

believed that emphasizing the effect of Moreland’s chronic alcoholism on his capacity

to appreciate the criminality of his conduct constituted Moreland’s strongest argument.

Counsel nonetheless presented additional mitigating evidence, including evidence that

addressed the statutory mitigating factor of its being “unlikely that the offense would

have been committed, but for the fact that the offender was under duress, coercion, or

strong provocation.” Ohio Rev. Code Ann. § 2929.04(B)(2).

The court of appeals alternatively concluded that the failure to introduce this

evidence was not prejudicial. This separate conclusion, while not supported by

articulated reasons, appears reasonable. We need not discuss it further, however,

because the state court’s adequate performance analysis is both reasonable and sufficient

to uphold its decision.

Finally, Moreland has not shown that he is entitled to habeas relief on the ground

that counsel failed to obtain his medical and educational records. Although Moreland

presented this issue in his petition for post-conviction relief, the court of appeals did not

address it. We need not determine whether AEDPA deference applies because the

contention fails even on de novo review. Moreland has not established prejudice with

respect to this claim. Although in Poindexter v. Mitchell, 454 F.3d 564, 578–79 (6th Cir.

2006), the failure to request medical, educational, and governmental records supported

our conclusion that counsel failed to conduct a constitutionally adequate investigation,

it is unclear how Moreland’s counsel’s failure to uncover these records would have

presented any significant factors in assessing Moreland’s background. The three-judge

panel heard testimony from Dr. Arthur Schramm about Moreland’s history of alcohol

abuse. Moreland identifies no other relevant medical conditions about which the panel

should have been informed. He also does not explain how his school records would

have assisted the panel in understanding his background. Aside from claiming deficient

performance on the part of counsel, Moreland leaves the court to speculate about what

might be included in his records and how those records would have had any bearing on

the outcome at sentencing. Strickland prejudice has not been shown.

No. 09-3528 Moreland v. Bradshaw Page 34

III.

The judgment of the district court is affirmed.