Appendix — Huffman, Warden v. Frazier

Supreme Court brief2004

Ask Donna

What actually matters in this document.

Text

seroma cansus( 22)

FILED

031382 MAR 26 2008

OPFICE OF THE CLEIIK

No.

—

In The Supreme Court Of The United States

STEPHEN J. HUFFMAN, Warden,

Petitioner,

Vv.

RICHARD M. FRAZIER,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

APPENDIX

JIM PETRO

Attorney General of Ohio

DOUGLAS R. COLE*

State Solicitor

*Counsel of Record

MICHAEL L. COLLYER

Assistant Attorney General

30 East Broad Street, 17th FI.

Columbus, Ohio 43215

614-466-8980

614-466-5087 fax

Counsel for Petitioner

nent 7 eenegutvtnnsnrittninmnnig mma ntcaettaanacantngmnenpaiaeniatasacataantsnsiiniaenmsiman iain tunes eet |

EE TO i og Ra eT of PR TR

car,

SOLOS ENE AINE EERO SD MPH

Sera aL a

No.

In The Supreme Court Of The United States

STEPHEN J. HUFFMAN, Warden,

Petitioner,

¥.

RICHARD M. FRAZIER,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

APPENDIX

JIM PETRO

Attorney General of Ohio

DOUGLAS R. COLE*

State Solicitor

*Counsel of Record

MICHAEL L. COLLYER

Assistant Attorney General

30 East Broad Street, 17th FI.

Columbus, Ohio 43215

614-466-8980

614-466-5087 fax

Counsel for Petitioner

TABLE OF CONTENTS

Page

Appendix A: Opinion of the United States Court of

Appeals for the Sixth Circuit, September 8, 2003................. la

Appendix B: Opinion of the United States Court of

Appeals for the Sixth Circuit, October 28, 2003................. 47a

Appendix C: Opinion of the United States Court of

Appeals for the Sixth Circuit, November 28, 2003............. 54a

Appendix D: Opinion of the United States District

Court for the Northern District of Ohio, Western

COTVighon, TOMMY 3, TONE anssinsiscvoncememmenenaininianead 55a

Appendix E: Opinion of the Supreme Court of Ohio,

PE 1 BIG. occsvcsscnssscertesnseaiepentgeaaenae anneal 165a

Appendix F: Opinion of the Court of Appeals of Ohio,

Eighth Appellate District, Cuyahoga County,

SPOT 20, FE ax sincvncccsncovanccnnuamereen agen 166a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 01-3122

RICHARD M. FRAZIER,

Petitioner-Appellant,

¥.

STEPHEN J. HUFFMAN, Warden,

Respondent-Appellee.

Appeal from the United States District Court for the

Northern District of Ohio at Toledo. No. 98-02098.

James G. Carr, District Judge.

Argued October 15, 2002

Decided and Filed September 8, 2003

Before: BATCHELDER, CLAY, and GILMAN, Circuit

Judges. GILMAN, J., delivered the opinion of the court, in

which CLAY, J., joined. BATCHELDER, J. (pp. 34-42),

delivered a separate opinion concurring in part

and dissenting in part.

COUNSEL

ARGUED: John B. Nalbandian, TAFT, STETTINIUS &

HOLLISTER LLP, Cincinnati, Ohio, for Appellant. Michael

L. Collyer, OFFICE OF THE ATTORNEY GENERAL OF

OHIO, Cleveland, Ohio, for Appellee. ON BRIEF: John B.

Nalbandian, Daniel F. Oberklein, James V. Schuster, TAFT,

STETTINIUS & HOLLISTER LLP, Cincinnati, Ohio, David

Paul Bradley, GALLAGHER, SHARP, FULTON &

NORMAN, Cleveland, Ohio, for Appellant. Michael L.

Collyer, OFFICE OF THE ATTORNEY GENERAL OF

OHIO, Cleveland, Ohio, Henry G. Appel, OFFICE OF THE

ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for

Appellee.

~ OPINION BY: RONALD LEE GILMAN

OPINION

RONALD LEE GILMAN, Circuit Judge. Tiffany Skiba

was stabbed to death on November 8, 1990. The grand jury

in Cuyahoga County, Ohio indicted Richard M. Frazier on

two counts of aggravated murder for the death of Skiba, each

with three death-penalty specifications, and on one count of

aggravated burglary. Frazier proceeded to trial in state court

on August 5, 1991. The jury convicted him on all counts and

subsequently recommended that he be sentenced to death.

That recommendation was adopted by the trial judge.

After exhausting his direct appeals and _ state

postconviction remedies, Frazier sought a writ of habeas

corpus in federal court pursuant to 28 U.S.C. § 2254. He

raised multiple grounds for relief, but primarily focused on

claims of evidentiary error, prosecutorial misconduct, and

ineffective assistance of counsel. The district court denied

Frazier’s petition, but granted him a certificate of

appealability on all issues. For the reasons set forth below,

we REVERSE in part the judgment of the district court,

GRANT Frazier a conditional writ of habeas corpus that will

result in the vacation of his death sentence unless the state of

Ohio commences a new penalty-phase trial against him

ee —_—_ —

within 180 days from the date that the judgment in this

matter becomes final, and REMAND the case for further

proceedings consistent herewith.

I. BACKGROUND

A. Factual background

Frazier married Susan Bednarski in 1980, thereby

becoming the stepfather of Bednarski’s eight-year-old

daughter from a previous relationship, Tiffany Skiba. In

February of 1988, Bednarski discovered that Skiba was

pregnant. Both women believed that Skiba’s pregnancy was

the result of sexual abuse by Frazier. Bednarski sought a

divorce. Skiba spoke to the local authorities in Medina

County, Ohio. In October of 1988, Frazier was indicted in

state court on two counts of rape and two counts involving

other sex crimes. One month earlier Skiba had given birth to

a son.

The state criminal court ordered Frazier to submit to a

blood test to determine the paternity of Skiba’s child. He

appealed that order to the intermediate state appellate court

and to the Ohio Supreme Court. After the Ohio Supreme

Court denied Frazier relief, he petitioned the United States

Supreme Court for a writ of certiorari. Frazier remained free

on bond during the pendency of these proceedings. The

United States Supreme Court declined to hear Frazier's case

on October 1, 1990. Dates for the blood test and the trial

were then set by the state criminal court.

Throughout 1989 and 1990, Skiba was terrified of Frazier.

She was visibly disturbed any time that she was in his

presence. Skiba confided in one friend her fear that Frazier

was going to kill her. She moved into her grandparents’

home and started sleeping with a knife under her pillow.

Skiba’s grandfather, Robert Skiba, followed his usual

practice on November 8, 1990 when, at 5:00 a.m., he drove

his wife to work at a nearby hospital and returned home

fifteen minutes later. Upon his arrival home, his dog was

barking and looking excitedly at the back door. Robert Skiba

apparently thought little of this unusual behavior at the time.

After calling upstairs for his granddaughter at 10:00 a.m. and

receiving no response, however, he went upstairs to check on

her. Upon entering Tiffany Skiba’'s bedroom to rouse her,

Robert Skiba was met with the ghastly sight of his

granddaughter's corpse lying in bed, covered in blood and

full of puncture wounds.

Police officers who arrived at the scene discovered a

broken steak knife next to Skiba’s body. The knife was part

of a set belonging to her grandparents. There was blood on

the knife, in the surrounding area, on the stairway heading

down from the second-floor bedroom, and on the first-floor

living room’s door frame. The police discovered that the

screen on a basement window had been removed and that one

of the panes of glass had been shattered. Although it was

normally kept closed, the door leading from the basement

into the rest of the house was open. One of Skiba’s uncles

had once shown Frazier how to gain access to the house

through the basement window when they had _ been

accidentally locked out. The neighboring yard contained

footprints that pointed away from the Skiba residence. A

study of the footprints revealed that they were made by

someone wearing size nine or ten boots in a style sold,

exclusively by K-Mart.

Also on the morning of November 8, 1990, Frazier

visited a medical clinic to get treatment for a one-inch cut on

his wrist. The cut was consistent with a stab wound. That

night, Frazier drove to the home of his friends, the Shamons,

in a car that he had rented at the airport two days earlier. The

- police arrested him at the Shamons' home on November 12,

1990. At the time of his arrest, Frazier had with him a letter

from the United States Supreme Court informing him that his

petition for certiorari had been denied. In Frazier’s apartment

the police discovered a receipt from K-Mart for a size-nine

boot of the same style found imprinted in the neighboring

yard near the Skiba residence.

Frazier was taken to the Medina County jail. He was

transported the next day from the jail to a clinic, where the

long-ordered paternity test was administered. The test

confirmed that Frazier had fathered Skiba’s son.

On November 14, 1990, Frazier telephoned Officer

James Svekric from the jail. Frazier had known Svekric for

many years, and Svekric was one of the police detectives

who had transported Frazier the previous day. Frazier asked

Svekric to bring him Frazier’s telephone book and

prescription medication. Svekric, accompanied by another

police officer, visited Frazier that day. According to Svekric,

Frazier waived his right not to incriminate himself and asked

the officers “what [they] could do for him, if [they] could get

him a definite sentence in Cleveland as to a flat time, how

much time he was going to do if he was to plead guilty.” The

police officers told Frazier that althoughthey could tell the

prosecutor and the judge that Frazier had cooperated, they

had no authority to negotiate a plea agreement, Frazier then

returned to his cell.

A short time later, however, the police officers conducted

a second interview with Frazier, this time in the presence of

the local prosecutor, Tim McGinty, who had been waiting in

an adjacent building. McGinty informed Frazier that he was

about to bring the matter of Skiba’s death before a grand jury

and that he intended to have Frazier indicted for murder.

Frazier offered to provide information about other crimes in

exchange for an agreement to allow him to plead guilty.

McGinty replied, however, that in order to establish his

credibility, Frazier would need to provide the details of

Skiba’s murder. Frazier was then asked whether he intended

to kill Skiba when he went to her grandparents’ home on

November 8, 1990. In Svekric’s recounting, “he shook his

head no, but he did not give us a verbal answer or explain

what his intent was that morning.” Svekric related the

remainder of the interview as follows:

And | asked him a question, “Do you want to tell

us exactly what happened on November 8th with

Tiffany Skiba, yes or no,” and his answer was, “Yes, |

will tell you everything you want to know.” But at

that time he also stated that he thinks his attorney

should be present... .

Frazier’s jailhouse interview was then terminated.

B. Procedural background

The Cuyahoga County grand jury returned a three-count

indictment against Frazier. Count One charged him with the

murder of Skiba. The first count contained three death-

penalty specifications—for felony murder, the murder of a

witness, and murder to escape accounting for another crime.

Count Two charged Frazier with the murder of Skiba during

the commission of a burglary. It also contained the three

identical death-penalty specifications enumerated in Count

One. The third count charged Frazier with burglary.

On August 21, 1991, the jury convicted Frazier on all

counts. The next phase of the trial concerned the appropriate

penalty, at the conclusion of which the jury recommended

that Frazier be sentenced to death. On August 29, 1991, the

trial court adopted that recommendation.

Frazier appealed his conviction and sentence without

success through the Ohio state courts, both on direct appeal

and through a petition for postconviction relief. He then

initiated federal proceedings for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 in September of 1998. The

district court denied his petition, but granted him a certificate

of appealability on all issues. This timely appeal followed.

Il. ANALYSIS

A. Standard of review

The Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr.

24, 1996), applies to Frazier’s case because he filed his

habeas corpus petition after the Act’s effective date. Lindh v.

Murphy, 521 U.S. 320, 336, 138 L. Ed. 2d 481, 117 S. Ct.

2059 (1997). A federal court is authorized to grant a writ of

habeas corpus to a person in custody pursuant to a state-court

judgment, but only if the adjudication of the claim

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or (2) resulted in

a decision that was based on an_ unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.

28 U.S.C. § 2254(d). All of Frazier’s claims are governed by

§ 2254(d)(1). |

A federal court may grant a writ of habeas corpus under

§ 2254(d)(1)’s “contrary to” clause “if the state court arrives

at a conclusion opposite to that reached by [the Supreme]

Court on a question of law or if the state court decides a case

differently than [the Supreme] Court has on a set of

‘Sree

materially indistinguishable facts.” Williams v. Taylor, 529

U.S. 362, 412-13, 146 L. Ed. 2d 389, 120 S. Ct. 1495 (2000).

Section 2254(d)(1)’s “unreasonable application” clause

provides two additional bases for habeas relief. Campbell v.

Coyle, 260 F.3d 531, 539 (6th Cir. 2001), cert. denied, 535

U.S. 975, 152 L. Ed. 2d 390, 122 S. Ct. 1448 (2002). The

first avenue of relief occurs if “the state court identifies the

correct governing legal principle from [the Supreme] Court’s

decisions but unreasonably applies that principle to the

facts....” Williams, 529 U.S. at 413. Second, relief is

available under this provision if the- state-court decision

“either unreasonably extends or unreasonably refuses to

extend a legal principle from Supreme Court precedent to a

new context.” Campbell, 260 F.3d at 539.

The Supreme Court has declared that ‘ta federal habeas

court making the ‘unreasonable application’ inquiry should

ask whether the state court’s application of clearly

established federal law was objectively unreasonable.”

Williams, 529 U.S. at 409. {n its elaboration on the meaning

of the term “objectively unreasonable,” the Court stated that

‘‘a federal habeas court may not issue the writ simply because

that court concludes in its independent judgment that the

relevant state-court decision applied clearly established

federal law erroneously or incorrectly. Rather, that

application must also be unreasonable.” /d. at 411.

In the present case, the district court applied the standards

set forth under AEDPA and determined that Frazier was not

entitled to habeas relief. We review de novo the district

court's denial of Frazier’s petition. Macias v. Makowski, 291

F.3d 447, 451 (6th Cir. 2002).

B. Certificate of appealability

Before reaching the merits of Frazier’s claims, we

address a procedural problem that has hindered our

consideration of this appeal. The district court in this case

granted a certificate of appealability on all issues, with the

following explanation:

Until such time as such precedent is submitted to

me, and, is shown to be applicable to a case at hand, |

expect that I shall, as I did in this case, grant

certificates of appealability in capital habeas cases as

a matter of routine.

Others may view this as an abdication of

responsibility; it is, rather, a manifestation of the

possibility of my own fallibility, and concern that |

may have erred. I do not believe that I have erred—

but doubt that I have,-no matter how strongly felt, is

not certainty that I have not.

This rationale is contrary to our decision in Porterfield v.

Bell, 258 F.3d 484 (6th Cir. 2001), which was also a capital-

murder case. Like here, Porterfield had been granted a

certificate of appealability on all issues. We noted in

| Porterfield that such a blanket grant conformed to neither the

commands of 28 U.S.C. § 2253(c) (providing in part that a

“certificate of appealability may issue... only if the

applicant has made a substantial showing of the denial of a

constitutional right... [and] shall indicate which specific

issue or issues satisfy the showing required”), nor the

Supreme Court's construction of the statute in Slack v.

McDaniel, 529 U.S. 473, 146 L. Ed. 2d 542, 120 S. Ct. 1595

(2000) (holding that the requirements of § 2253(c) applied

regardless of whether the district court rejected a

constitutional claim on the merits or on procedural grounds).

Because a blanket grant “undermines the gate keeping

function of certificates of appealability, which ideally should

separate the constitutional claims that merit the close

attention of counsel and this court from those claims that have

little or no viability,” and “because the district court [was]

Se A A AR ASE ang th ae ne an ne

10a

already deeply familiar with the claims raised by petitioner,”

we vacated the certificate of appealability in Porterfield and

remanded the matter “in order to permit the court to engage in

the reasoned assessment of each... claim as required by

Slack.” 258 F.3d at 487.

The language of § 2253(c) is mandatory. It was therefore

error for the district court to issue a blanket certificate of

appealability without any analysis. We recognize, however,

that the district court rendered its decision before our opinion

in Porterfield. In contrast to Porterfield, moreover, both

parties in the present case have already briefed the merits of

Frazier’s claims, so that vacating the certificate of

appealability would “further delay an already lengthy

process.” 285 F.3d at 485. For these reasons, we will excuse

the procedural error of the district court. This is an

appropriate time, however, to reiterate both that a certificate

of appealability may issue “on/y if the applicant has made a

substantial showing of the denial of a constitutional right,”

28 U.S.C. § 2253(c)(2) (emphasis added), and that any such

certificate “shall indicate which specific issue or issues

satisfy the showing required,” id. § 2253(c)(3) (emphasis

added).

To focus our consideration of the issues in the face of this

blanket certificate of appealability, we asked counsel for

Frazier at oral argument which claims he perceived to be his

strongest. He replied that his primary claims for habeas relief

were those premised upon the due process right to a

fundamentally fair trial and those based upon the ineffective

assistance of counsel. We agree, particularly in light of the

fact that the district court singled out “the remarkable and

unnecessary misconduct of the prosecutor” as a concern

regarding the petitioner’s right to a fair trial. Accordingly, we

devote our attention to these two issues first.

Oe Te ee eee Tey ne er Ee ne ee

lla

C. The right to a fundamentally fair trial

Frazier alleges that he was denied his due process right to

a fair trial, both because certain evidence was improperly

admitted and because of prosecutorial misconduct. “Cases in

[the Supreme] Court have long proceeded on the premise that

the Due Process Clause guarantees the fundamental elements

of fairness in a criminal trial.” Spencer v. Texas, 385 U.S.

554, 563-64, 17 L. Ed. 2d 606, 87 S. Ct. 648 (1967).

1. Due process and evidentiary matters

Frazier’s first contention is that the trial court improperly

admitted (1) cumulative, gruesome photograhs of Skiba’s

corpse, (2) evidence that Skiba was terrified of Frazier, and

(3) evidence that Frazier raped Skiba. To the extent that this

is a challenge to the technical correctness of these evidentiary

rulings, we lack authority to consider the challenge. Coleman

v. Mitchell, 244 F.3d 533, 542 (6th Cir. 2001) (‘A state court

evidentiary ruling will be reviewed by a federal habeas court

only if it were so fundamentally unfair as to violate the

petitioner’s due process rights.”). Rather, Frazier must

demonstrate that the state court’s conclusion--that the

admission of the challenged evidence did not violate his due

process rights--was unreasonable, as those rights have been

articulated by the Supreme Court.

Frazier argues that the admission into evidence of

multiple photographs of Skiba’s corpse was excessive. He

notes that the Supreme Court has stated: “In the event that

evidence is introduced that is so unduly prejudicial that it

renders the trial fundamentally unfair, the Due Process

Clause of the Fourteenth Amendment provides a mechanism

for relief.” Payne v. Tennessee, 501 U.S. 808, 825, 115 L.

Ed. 2d 720, 111 S. Ct. 2597 (1991).

12a

The Ohio Supreme Court directly addressed this

evidentiary issue, concluding that the multiple photographs

“were introduced during the coroner’s testimony to illustrate

the testimony,” that “each photograph presents a different

perspective of the victim,” and that the photographs “were

used to illustrate’ the nature of the encounter that

immediately preceded Skiba’s death. State v. Frazier, 73

Ohio St. 3d 323, 1995 Ohio 235, 652 N.E.2d 1000, 1010

(Ohio 1995). It ultimately determined that the photographs’

“probative value substantially outweighed the danger of

unfair prejudice” to Frazier. Jd. We conclude that the Ohio

Supreme Court’s resolution of Frazier’s federal constitutional

claim concerning the admission of multiple photographs of

Skiba’s corpse was not an unreasonable application of federal

law as articulated by the Supreme Court. See Willingham v.

Mullin, 296 F.3d 917, 928-29 (10th Cir. 2002) (refusing to

grant relief on a habeas petitioner’s claim that the admission

of 22 photos of the victim’s body was so unduly prejudicial

as to render his trial fundamentally unfair, where the state

court provided a reasonable basis for concluding that the

photographs’ relevance outweighed the danger of unfair

prejudice).

Frazier next contends that the admission of evidence that

Skiba feared him rendered his trial fundamentally unfair. In

the opinion of the Ohio Supreme Court, such evidence was

admissible as a present-state-of-mind exception to the

hearsay rule. Frazier, 652 N.E.2d at 1013. The district court

concluded that evidence of Skiba’s fear “supported the

substantial evidence of [Frazier’s] likely motive.” Although

we find that the relationship between Skiba’s fear and

Frazier’s motive is tangential at best, we recognize the

existence of a logical argument that the relevance of such

evidence outweighed its potential prejudice. We are unaware,

moreover, of any Supreme Court precedent that establishes

that the admission of evidence that a murder victim feared

the defendant violates the defendant's due process rights.

13a

Frazier’s assertion that “several states have held

unambiguously that the state of mind of a murder victim is

irrelevant to the issue of the identity of the perpetrator” has

no bearing on our task under AEDPA. We therefore conclude

that the state courts’ resolution of this matter was not an

unreasonable application of federal law.

The third category of evidence challenged by Frazier

concerns his alleged rape of Skiba and paternity of her child.

He claims that the admission of the evidence without a

limiting instruction rendered his trial fundamentally unfair.

Before reaching the merits of this claim, we must first

consider the state's argument that this challenge was rejected

by the state courts on the basis of state procedural rules.

A federal court is generally barred from considering an

issue of federal law arising from the judgment of a state court

if the state judgment “rests on a state-law ground that is both

‘independent’ of the merits of the federal claim and an

‘adequate’ basis for the [state] court’'s decision.” Harris vy.

Reed, 489 U.S. 255, 260, 103 L. Ed. 2d 308, 109 S. Ct. 1038

(1989). The adequate-and-independent-state-ground doctrine

has been applied in refusing to address the merits of a federal

claim because of violations of state procedural rules, such as

the failure to make * timely objection at trial. Jd. at 261. An

adequate and inde ident finding of procedural default will

preclude habeas corpus relief “unless the prisoner can

demonstrate cause for the default and actual prejudice as a

result of the alleged violation of federal law, or demonstrate

that failure to consider the claims will result in a fundamental

miscarriage of justice.” Coleman v. Thompson, 501 U.S. tae

750, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991).

In determining whether a procedural default has occurred

and, if so, what effect the default will have on federal review

of a state conviction, the district court must consider whether

(1) a state procedural rule exists that applies to the

14a

petitioner’s claim, (2) the petitioner failed to comply with the

rule, (3) the state court actually applied the state rule in

rejecting the petitioner’s claim, and (4) the state procedural

rule is an adequate and independent ground upon which the

state can rely to deny relief. Reynolds v. Berry, 146 F.3d 345,

347 (6th Cir. 1998). The rule precluding federal habeas

corpus review of claims rejected by the state courts on state

procedural grounds applies only in cases where the rule

relied upon by the state courts involves a “firmly established

and regularly followed state practice.” Ford v. Georgia, 498

U.S. 411, 423-24, 112 L. Ed. 2d 935, 111 S. Ct. 850 (1991).

Furthermore, a procedural default does not bar consideration

of a federal claim on habeas corpus review unless the last

state court rendering a reasoned opinion in the case “clearly

and expressly states that its judgment rests on a state

procedural bar.” Harris, 489 U.S. at 263 (internal quotation

marks omitted).

In this case, the Ohio Supreme Court noted that Frazier

failed to object at trial to the omission of a limiting

instruction. It therefore analyzed his entitlement to the

inclusion of such a jury instruction using the “plain-error”

standard. But the larger issue was whether “the trial court

erred by admitting evidence of other crimes committed by

[Frazier].” Frazier, 652 N.E.2d at 1013. The Ohio Supreme

Court analyzed the claim on its merits, ultimately finding

Frazier’s argument to be “without merit.” /d. at 1013, 1014.

We therefore conclude that Frazier is not procedurally barred

from presenting the claim that the admission of evidence

about his rape of Skiba and the paternity of her child

rendered his trial fundamentally unfair.

Turning to the merits of the claim, we agree with the

Ohio Supreme Court that the evidence was directly relevant

to Frazier’s motive and to the death-penalty specifications.

The United States Supreme Court decision upon which

Frazier relies in pressing this claim held that the introduction

15a

of evidence of prior crimes, where relevant to prove death-

penalty specifications, is not unconstitutional. Spencer v.

Texas, 385 U.S. 554, 568-69, 17 L. Ed. 2d 606, 87 S. Ct. 648

(1967). We therefore conclude that the admission of evidence

that Frazier raped Skiba and fathered her child, even without

a limiting instruction, was not an unreasonable application of

Supreme Court precedent and did not deprive Frazier of his

due #rocess rights.

2. Due process and prosecutorial misconduct

Frazier’s next contention is that prosecutorial misconduct

deprived him of his right to a fair trial. Frazier identifies eight

examples of what he characterizes as prosecutorial

misconduct. Some of the conduct that he challenges took

place during the guilt phase of his trial, while other instances

occurred during the penalty phase. Our conclusion in Part

I1.D. below that Frazier must be given a new sentencing

hearing makes it unnecessary for us to consider the alleged

prosecutorial misconduct that occurred during the penalty

phase.

None of the alleged prosecutorial misconduct in the guilt

phase of the trial impinged upon a particular provision in the

Bill of Rights. The relevant question, therefore, is whether the

prosecutorial conduct “so infected the trial with unfairness as

to make the resulting conviction a denial of due process.”

Donnelly v. DeChristoforo, 416 U.S. 637, 643, 40 L. Ed. 2d

431, 94 S. Ct. 1868 (1974). To decide this question, we first

determine whether the conduct about which Frazier

complains was indeed improper. United States v. Carter, 236

F.3d 777, 783 (6th Cir. 2001). A four-factor test is then

applicable to any conduct that we find inappropriate: “(1)

whether the conduct and remarks of the prosecutor tended to

mislead the jury or prejudice the defendant; (2) whether the

conduct or remarks were isolated or extensive; (3) whether

l6a

the remarks were deliberately or accidentally made; and (4)

whether the evidence against the defendant was strong.” /d.

Frazier takes issue with the following instances of the

prosecutor's conduct during the guilt phase of the trial: (1)

using a photograph of Skiba taken before her murder in his

closing argument, (2) relying on Skiba’s fear of Frazier as

part of the state’s case-in-chief, (3) referring to Skiba’s

character during his closing and rebuttal argument, and (4)

placing an empty chair before the jury during his closing

argument to “represent” Skiba. The first instance, the use of a

photograph of Skiba during closing argument, has been

found by some courts to be within the bounds of acceptable

conduct. Nefstad v. Baldwin, 1995 U.S. App. LEXIS 25875,

No. 94-35714, 1995 WL 520050, at *2-*3 (9th Cir. Sept. 1,

1995) (finding no. error by the trial court in permitting a

“closing argument [wherein] the prosecutor asked the jury to

compare a photograph of the victim before the murder with

an autopsy photograph of the victim”); Lowe v. Abrahamson,

1995 U.S. App. LEXIS 8142, No. 92-2020, 1995 WL

150585, at *1-*2 (7th Cir. Apr. 6, 1995) (order) (finding

“nothing improper” about “the presentation at trial of a

photograph of the murdered victim wearing a hat from his

son's Little League baseball team’’). Other courts have found

such photographs of the victim improper. Cargle v. Mullin,

317 F.3d 1196, 1223-24 (10th Cir. 2003) (agreeing with the

state court’s determination that the trial court erred in

admitting ‘a number of photographs of the victims while

they were alive” because the photographs were “irrelevant

and prejudicial”). The state courts in this case determined

that the prosecutor’s use of Skiba’s photograph during

closing argument was not improper. In light of the split of

authority about the propriety of such conduct, we cannot say

that the state courts' determination was unreasonable.

The second instance of alleged prosecutorial misconduct

concerns the state’s reliance on Skiba’s fear of Frazier as part

17a

of its proof. As noted above in Part II.C.1., the state courts

ruled that such evidence was relevant and admissible. There

is nothing improper about a prosecutor’s reliance on a state

court’s evidentiary ruling, whether or not the ruling itself was

correct.

The third instance concerns the prosecutor’s references to

Skiba’s character during his closing and rebuttal argument in

the guilt phase of the trial. These references had no relevance

to any matter in issue and were therefore improper. The Ohio

Supreme Court reached the same conclusion. Frazier, 652

N.E.2d at 1015 (commenting that “the prosecutor’s remarks

were intemperate”). This leads us to the application of the

Carter factors. In this instance, the prosecutor’s remarks

were not limited to an isolated instance. On the other hand,

they did not form the centerpiece of the prosecutor’s

argument. But the prosecutor’s remarks were plainly

deliberate. Furthermore, the state’s case was not unusually

strong. The evidence was sufficient to prove the defendant

guilty beyond a reasonable doubt, but it was not

overwhelming. There were no witnesses and no confession

(only an ambiguous offer to plead guilty), and the state

produced no blood-type or DNA evidence.

Whether the references to Skiba’s character tended to

mislead the jury or prejudice the defendant is more difficult

to determine. Although the prosecutor’s remarks did not

misstate the evidence, they were in a sense misleading

concerning the law. The prosecutor’s explicit juxtaposition of

the defendant’s constitutional rights (like the presumption of

innocence) with the “rights” of the decedent (like “the right

to go on to college” or “the right to walk down the aisle”)

suggested to the jury that certain nonexistent rights of the

decedent somehow balanced or nullified the constitutional

rights of the defendant. On the other hand, although a defense

objection to the prosecutor’s remarks was overruled, the trial

ee |

ee ee ee

18a

court correctly instructed the jury on the law, specifically

stating: “You must not permit sympathy or bias, prejudice or

favoritism for either side to affect your judgments.”

A similar analysis applies to the fourth and final alleged

incident of prosecutorial misconduct during the guilt phase,

the placing of an empty chair before the jury during the

prosecutor’s closing argument to “represent” Skiba. We

again agree with the Ohio Supreme Court's conclusion that

this conduct was improper. Frazier, 652 N.E.2d at 1015

(“We agree with appellant that the use of the empty chair was

excessive.”) It was also deliberate. The empty chair,

however, was not the focus of the prosecutor’s argument, and

the state trial court properly instructed the jury not to be

influenced by sympathy, bias, or prejudice.

Were we to consider Frazier’s claim of prosecutorial

misconduct in the first: instance, after weighing all of the

pertinent factors, the possibility exists that we might be

persuaded that he was denied a fundamentally fair trial. But

that is not our task. Rather, our inquiry is limited to deciding

whether the Ohio Supreme Court’s contrary determination

was an unreasonable application of clearly established

federal law. Because the direction in which the Carter factors

point is neither obvious nor unambiguous, we conclude that

the Ohio Supreme Court’s resolution of Frazier’s

prosecutorial-misconduct claim was not unreasonable. See

Macias v. Makowski, 291 F.3d 447, 454 (6th Cir. 2002)

(holding that, although the court “might have concluded that

the prosecutor’s comments violated [the petitioner’s] due

process rights,” the state court of appeals’s contrary

conclusion was not unreasonable, where two factors weighed

in favor of the petitioner’s claim and two weighed against it).

19a

D. The right to the effective assistance of counsel

Frazier’s other major claim is that he was denied his right

to the effective assistance of counsel during the penalty phase

of the trial, a right guaranteed by the Sixth Amendment to the

United States Constitution. Strickland v. Washington, 466

U.S. 668, 684, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

Once a defendant has been convicted of a capital offense in

Ohio, the jury “shall consider, and weigh against the

aggravating circumstances proved beyond a_ reasonable

doubt, the nature and circumstances of the offense, the

history, character, and background of the offender” and seven

other factors, including “whether, at the time of committing

the offense, the offender, because of a mental disease or

defect, lacked substantial Capacity to appreciate the

criminality of the offender’s conduct or to conform the

offender’s conduct to the requirements of the law.” Ohio

Rev. Code § 2929.04(B). A sentence of death is appropriate

only if the jury is unanimously convinced beyond a

reasonable doubt that the aggravating factors outweigh the

mitigating factors. Jd. § 2929.03(D)(2).

The jury had already found Frazier guilty beyond a

reasonable doubt of the death-penalty-specification charges.

Because no mitigation proof was introduced by Frazier at the

guilt phase of the trial, he was therefore virtually guaranteed

a sentence of death unless he could produce sufficient

mitigation evidence at the penalty phase to generate

reasonable doubt in the mind of at least one juror about

whether the aggravating factors outweighed the mitigating

factors. But the sum total of the evidence presented on

Frazier’s behalf during the penalty phase of the trial was the

following unsworn statement: “Ladies and gentlemen, I know

you found me guilty, and in the past I have done things that

were wrong, but I am not guilty of this crime and I am asking

you to spare my life.”

20a

The test for establishing constitutionally ineffective

assistance of counsel is two-fold. A defendant must first

show that the performance of his or her counsel was “below

an objective standard of reasonableness.” Strickland, 466

U.S. at 688. In order to avoid second-guessing trial counsel’s

Strategic decisions, “a court must indulge a_ strong

presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered

sound trial strategy.” /d. at 689 (internal quotation marks

omitted). The second requirement of an ineffective assistance

claim is that “the 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.” /d. at 694.

Frazier’s ineffective-assistance claim was rejected by the

Ohio Court of Appeals on the basis of the first prong of

Strickland. The court explained: “From the record, it can

reasonably be concluded trial counsel were appraised of the

purported brain injury from their review of medical records;

however, as a matter of trial strategy counsel deemed this

avenue of defense unworthy of further pursuit.” State v.

Frazier, 1997 Ohio App. LEXIS 5531, No. 71746, 1997 WL

764810, at *6 (Ohio Ct. App. Dec. 11, 1997).

The “purported brain injury” referred to above is the

damage to Frazier’s brain that occurred as the result of a

1987 fall from a ladder. Affidavits from postconviction

experts on this matter indicate that Frazier suffers from a

functional brain impairment. According to one, Frazier has a

“significant history for head trauma” to the “frontal lobe” of

his brain, which is “the site of impulse control, social

judgment and reasoning.” Frazier himself has described “a

change in decision-making abilities after his head trauma.”

2la

These reports also suggest that a correlation could exist

between this injury and Frazier’s criminal conduct. The state

has not challenged the contention that Frazier’s trial counsel

could have developed this same information had they

conducted a reasonable investigation.

We can conceive of no rational trial strategy that would

justify the failure of Frazier’s counsel to investigate and

present evidence of his brain impairment, and to instead rely

exclusively on the hope that the jury would spare his life due

to any “residual doubt” about his guilt. This failure was not

due to counsel’s ignorance of Frazier’s brain injury. To the

contrary, the Ohio Court of Appeals acknowledged that trial

counsel were actually aware of Frazier’s brain impairment

because they saw his medical records, yet counsel failed to

investigate the matter or present any evidence regarding the

same.

Under Strickland, “strategic choices made after less than

complete investigation are reasonable precisely to the extent

that reasonable professional judgments support the

limitations on investigation.” 466 U.S. at 690-91. This court

has commented when evaluating facts similar to those here

that “the inadequacy of the attorney’s investigation ... was

manifest.” Campbell v. Coyle, 260 F.3d 531, 553 (6th Cir.

2001) (distinguishing the facts of Campbell, where trial

counsel had the defendant evaluated by a mental health

professional who did not find any mental illness, from those

of Seidel v. Merkle, 146 F.3d 750 (9th Cir. 1998), where trial

counsel had actual notice of the defendant’s mental health

problems but failed to investigate them). We do not believe

that any reasonable attorney who saw the medical records

indicating Frazier’s brain injury would have declined to

investigate the matter. At a bare minimum, a reasonable

attorney would have compared the records with the medical

literature on brain damage, elicited information from Frazier

22a

himself about the injury and its effects on him, or presented

the records on Frazier to someone who could competently

evaluate them. To do none of these things after seeing

Frazier’s medical records was unreasonable.

Our conclusion is bolstered by the Supreme Court’s

recent decision in the capital case of Wiggins v. Smith, 156 L.

Ed. 2d 471, 123 S. Ct. 2527 (2003). Trial counsel in Wiggins

knew from their client’s presentence report that he had lived

in “misery as a youth,” but they did not investigate his life

history any further. /d. at 2536. The Maryland Court of

Appeals was of the opinion that this performance comported

with Strickland, but the United States Supreme Court

disagreed and held that the state court's contrary conclusion

was unreasonable. /d. at 2538. In Wiggins, as in the present

case, “any reasonably competent attorney would have

realized that pursuing these leads”--in Wiggins’s case,

allusions to his horrible childhood; in Frazier’s, medical

records of his brain injury—‘“was necessary to ‘making an

informed choice among possible defenses.... Indeed,

counsel uncovered no evidence in their investigation to

suggest that a mitigation case, in its own right, would have

been counterproductive, or that further investigation would —

have been fruitless.” /d. at 2537.

Furthermore, as both this court and the Ohio Supreme

Court have noted, residual doubt is not a mitigating factor

under Ohio law. Coleman v. Mitchell, 268 F.3d 417, 447 (6th

Cir. 2001); State v. McGuire, 80 Ohio St. 3d 390, 1997 Ohio

335, 686 N.E.2d 1112, 1123 (Ohio 1997). This court

nevertheless concluded in Scott v. Mitchell, 209 F.3d 854,

881 (6th Cir. 2000), albeit in dicta, that the pursuit of a

residual-doubt strategy in that case was reasonable because

the defendant's extensive criminal history would have come

to light if the jury had heard about his background. Cf

Abdur'Rahman v. Bell, 226 F.3d 696, 707-08 (6th Cir. 2000)

(concluding that “trial counsel were ineffective in failing to

sete Ri rend SPARES tn abe oath ida Pe EL mateo § sai Tan its ere fascia

FRY FA 2c A POR BBLSTOR ABAS CO og ee an

23a

further investigate the background of the accused,” but

finding no prejudice where “it probably would not have been

the most prudent trial strategy to use proof of appellant’s

history of violent behavior and anti-social personality

disorders at either the guilt or innocence phase or at the

sentencing phase of the trial”). No such concerns could have

justified the approach in the present case, however, where the

jury had already heard considerable evidence about Frazier’s

rape of Skiba.

The prosecutor himself aptly summarized the strategy of

Frazier’s trial counsel during the penalty phase. After quoting

Frazier’s unsworn denial of guilt, the prosecutor stated:

“That’s it. Fifteen seconds of mitigation. New, we heard a

moment ago about factors of mitigation that you find.

Apparently they don’t know.” This summary strikes us as

accurate to the extent that it reflects the fact that Frazier’s

counsel failed to offer any evidence during the penalty phase

that is recognized under Ohio law as mitigation. Based on the

above factors, we conclude that Frazier’s trial counsel

performed below an objective standard of reasonableness.

The Ohio Court of Appeals, on the other hand, implicitly

held that Frazier’s trial counsel performed at or above an

objective standard of reasonableness when it opined that “as

a matter of trial strategy counsel deemed this avenue of

defense unworthy of further pursuit.” We have concluded the

opposite. The question under AEDPA, then, is whether the

state court applied the first prong of Strickland unreasonably,

or only erroneously. See Bell v. Cone, 535 U.S. 685, 122 S.

Ct. 1843, 1852, 152 L. Ed. 2d 914 (2002) (clarifying that the

question of whether a state court’s application of Strickland

is unreasonable is conceptually distinct from the underlying

question of whether counsel’s performance fell short of an™

objective standard of reasonableness).

24a

Three factors were cited by the Ohio Court of Appeals in

support of its conclusion:

1) counsel’s argument to the trial court that a

psychologist would be used merely to interpret the

mitigation expert’s findings; 2) counsel’s filing of the

motion requesting a limitation on references to

mitigation factors to only those upon which appellant

ultimately relied; and 3) the thorough and professional

manner in which counsel conducted appellant’s

defense during both the guilt and the penalty phase of

appellant’s trial.

Frazier, 1997 Ohio App. LEXIS 5531, [WL] at *6. The first

two factors, however, have no relevance in explaining how

the strategy ultimately pursued by Frazier’s counsel was

reasonable. Although the third factor is relevant in

determining whether the trial strategy was reasonable, it is

largely conclusory and again provides no theory upon which

trial counsel’s “strategy” could have been based. We do not

believe that it is reasonable to infer that a trial strategy, which

is on its face irrational and for which no justification has ever

been produced, becomes reasonable simply because of “the

thorough and professional manner” in which trial counsel

otherwise performed.

We note, moreover, that the theory of Frazier’s defense

during the guilt phase of his trial was that Frazier did not

commit the murder. He presented no insanity or diminished

capacity defense. The jury therefore did not hear any

evidence about Frazier’s brain injury during the guilt phase

of the trial. Indeed, it heard no evidence whatsoever during

the guilt phase of the trial that could bear on the issue of

mitigation. As the prosecutor accurately commented at the

opening of the penalty phase: “The State’s job is over. The

proof of the aggravating circumstances here is monumental,

unrebutted, and it is no mere allegation any longer. It is fact,

eT ee ee

;

25a

since the conclusion of this case. There has been absolutely

zero, zilch, nil evidence of mitigation.” This being the

situation, it appears to us that competent trial counsel for

Frazier would have realized that their client had everything to

gain and nothing to lose by introducing evidence of his brain

injury at the penalty phase of the case. Yet they sat on their

hands.

The instant case, therefore, is easily distinguishable from

the ruling in Be//, where the defendant's trial counsel also

introduced no evidence during the penalty phase of the trial.

122 S. Ct. at 1848. The state court concluded that this trial

strategy passed muster under Strickland, and the Supreme

Court held that the state court's conclusion was not

unreasonable. /d. at 1853-54. Crucial to this determination,

however, was the fact that the defendant had already

introduced his best mitigation evidence during the guilt phase

of the trial:

Because the defense’s theory at the guilt phase was

not guilty by reason of insanity, counsel was able to

put before the jury extensive testimony about what he

believed to be the most compelling mitigating

evidence in the case--evidence regarding the change

his client underwent after serving in Vietnam; his

drug dependency, which apparently drove him to

commit the robbery in the first place; and its

effects. ... Defense counsel advised the jury that the

testimony of the experts established the existence of

mitigating circumstances, and the trial court

specifically instructed the jury that evidence of a

mental disease or defect insufficient to establish a

criminal defense could be considered in mitigation.

Id. Frazier’s counsel, in contrast, introduced absolutely no

mitigating evidence during the guilt phase of the trial.

26a

In sum, no reason at all has been adduced to justify the

failure of Frazier’s trial counsel to investigate and present

evidence of his brain impairment, and to instead rely

exclusively on an argument of residual doubt. The state court

did not articulate one. Nor can we fathom one. Absent any

reason to explain or justify such a trial strategy, we conclude

that the state court’s determination that Frazier’s trial counsel

had performed in a competent manner during the penalty

phase was not simply erroneous, but unreasonable. See

Wiggins, 123 S. Ct. at 2538 (rejecting as unreasonable a state

court’s determination that trial counsel performed adequately

where, although no trial strategy could be articulated to

justify counsel’s unreasonable failure to investigate and

present evidence of their client’s terrible childhood, the state

court “merely assumed that-the investigation was adequate”).

Habeas relief is thus warranted if Frazier can show that

there is a reasonable probability that, but for his counsel’s

deficient performance, the result of the penalty phase would

have been different. See id. at *16 (“In order for counsel's

performance to constitute a Sixth Amendment violation,

petitioner must show that counsel’s failures prejudiced his

defense. .. . Our review is not circumscribed by a state court

conclusion with respect to prejudice, as neither of the state

courts below reached this prong of the Strickland analysis.”).

To make this showing, Frazier must direct us to mitigating

evidence that could have been presented and that is sufficient

to undermine our confidence in the outcome of the penalty

phase. Strickland v. Washington, 466 U.S. 668, 694, 80 L.

Ed. 2d 674, 104 S. Ct. 2052 (1984). Furthermore, AEDPA

requires Frazier to have developed the factual bases for his

claims during postconviction proceedings in state court. A/ley

v. Bell, 307 F.3d 380, 386 (6th Cir. 2002) (“These rules apply

both to entirely new legal claims and new factual bases for

relief; for a claim to be considered exhausted, the habeas

27a

petitioner must have fairly presented to the state courts the

substance of his federal habeas claim.”) (internal quotation

marks omitted).

We agree with the state that Frazier failed to develop any

facts concerning his general history, character, and

background in the state postconviction proceedings.

Accordingly, we cannot consider the facts that Frazier was

abandoned as a child or that he has an abnormal response to

stress. The state concedes, however, that Frazier presented

evidence concerning his brain injury to the state courts

during the postconviction proceedings. Although information

about the nature and severity of the injury was less

thoroughly developed in those proceedings than it is now,

sufficient facts were presented to indicate the existence of

evidence concerning Frazier's brain injury that could have

been developed and presented to the jury during the penalty

phase.

We must therefore examine whether the existence of this

evidence is sufficient to undermine our confidence in the

result of the penalty-phase proceeding. Frazier’s trial counsel

presented only his unsworn denial of guilt, which does not

amount to mitigating circumstances under Ohio law. This

virtually assured him a sentence of death. Had trial counsel’s

performance not been deficient, the jury could have heard

evidence of Frazier’s fall from a ladder and associated brain

injury, which could have correlated with his criminal

conduct. Such evidence would have constituted mitigating

circumstances under Ohio law. Ohio Rev. Code

§ 2929.04(B).

In concluding that Frazier had not shown prejudice, the

district court observed in a footnote “that the evidence of

record, in addition to enabling the jury to find the petitioner

guilty beyond a reasonable doubt, shows that he acted with

deliberation and forethought .... These acts do not manifest

28a

impulsive or uncontrolled behavior.” This analysis, however,

does not account for the probability that the jury would find

that a murderer who suffers from a functional brain

impairment is less morally culpable than one who does not,

even if the brain impairment did not “cause” Frazier to

murder Skiba.

Indeed, we think that the circumstances of the crime were

amenable to such mitigating evidence. Competent trial

counsel could have pointed out, for example, that the blood-

stained, broken knife found beside Skiba’s corpse came from

her grandparents’ silverware, and that Skiba had been

sleeping with a knife under her pillow. Furthermore, during

the jailhouse questioning of Frazier on November 14, 1990,

the police officers and prosecutor did not ask Frazie. whether

he murdered Skiba. They asked, instead, whether he intended

to kill her when-he went to her grandparents’ home on the

morning of the murder. Frazier shook his head no in response

to that question. Trial counsel could thus have depicted a

scenario in which Frazier went unarmed to Skiba’s

grandparents’ home to confront or threaten her, not to kill.

But when he encountered the knife-wielding Skiba, Frazier

succumbed to the stress of the moment, grabbed the knife

from her hands, and wildly stabbed Skiba far more times than

would have been necessary to kill her.

Such a scenario fits the facts of the crime and is made

plausible by the existence of a functional brain impairment,

which, although it might not have turned Frazier into a cold

and calculating murderer, could have impaired his ability to

deal with stressful or emotional situations, even ones of his

own making. This is but one example of how competent trial

counsel might have utilized the evidence of Frazier’s

functional brain impairment to generate reasonable doubt that

the aggravating circumstances outweighed the mitigating

circumstances in the present case. We are by no means

suggesting that the presentation of such evidence and

29a

argument would have assured Frazier the avoidance of the

death penalty, but we are saying that this outcome is within

the realm of reasonable probability as defined in Strickland.

466 U.S. at 694.

As the Supreme Court observed in Williams v. Taylor,

529 U.S. 362, 398, 146 L. Ed. 2d 389, 120 S. Ct. 1495

(2000): “Mitigating evidence unrelated to dangerousness may

alter the jury’'s selection of penalty, even if it does not

undermine... the prosecution’s death-eligibility case.” In

Williams, the Court recognized that “the reality that [the

defendant] was ‘borderline mentally retarded[ ]’ might well

have influenced the jury’s appraisal of his moral culpability.”

Id. We conclude that the same is true here. Had the jurors

been confronted with the mitigating evidence of Frazier’s

brain injury, the probability that at least one juror would not

have decided that the aggravating circumstances of the case

outweighed the mitigating circumstances beyond a

reasonable doubt “is a probcbility sufficient to undermine

confidence in the outcome.” Stricklara, 466 U.S. at 694; see

also Wiggins v. Smith, 156 L. Ed. 2d 471, 123 S. Ct. 2527,

2543 (2003) (“Had the jury been able to p! «2 petitioner’s

excruciating life history on the mitigating sie of the scale,

there is a reasonable probability that at least one juror would

have struck a different balance.”); Ohio Rev. Code

§ 2929.03(D)(2) (requiring jury unanimity for the imposition

of a death sentence). We therefore hold that Frazier hus

established that his right to the effective assistance of counsel

was violated at the penalty phase of his trial, and that the

State court’s conclusion to the contrary is an unreasonable

application of clearly established Supreme Court precedent.

The dissent does not quibble with the foregoing analysis

on the merits. It contends instead that “Frazier’s claim of

ineffective assistance of counsel is procedurally defaulted

and this court consequently has no business considering the

merits of that claim.” (Dissenting Op. at 34) According to the

30a

dissent, the Ohio Court of Appeals never reached the merits

because it held that the claim was barred by the state-law

doctrine of res judicata. (/d.)

This will surely come as a surprise to the state, which (1)

conceded in its brief that “Frazier did present his ‘brain

damage’ claim to the state courts,” and (2) then proceeded to

argue that “the Ohio court’s finding that trial counsel acted

competently in this regard is not an unreasonable application

of Strickland.” We therefore believe that the dissent

mischaracterizes the state’s argument by asserting that the

state raised a procedural-default defense to every instance of

ineffective assistance alleged by Frazier. Instead, the state

made clear its position that Frazier had forfeited any

ineffective-assistance claim premised upon his abandonment

as a child or his abnormal response to stress, and that his

preservation of the claim based upon his brain damage did

not permit him to revive his other instances of ineffective

assistance.

As the above-quoted language demonstrates, however,

the state did not contend that Frazier procedurally defaulted

his ineffective-assistance claim based upon his counsel’s

failure to investigate and present evidence of his brain

damage. The state’s failure to raise the issue of procedural

default with respect to this instance of ineffective assistance

is itself sufficient to dispense with our consideration of the

question. “A court of appeals is not ‘required’ to raise the

issue of procedural default swa sponte.” Trest v. Cain, 522

U.S. 87, 89, 139 L. Ed. 2d 444, 118 S. Ct. 478 (1997).

Even if the state had not waived its procedural-default

defense, moreover, we do not believe that the defense would

be applicable in this case. “[A] procedural default does not

bar consideration of a federal claim on either direct or habeas

review unless the last state court rendering a judgment in the

case clearly and expressly states that its judgment rests on a

heated

3la

State procedural bar.” Harris v. Reed, 489 U.S. 255, 263, 103

L. Ed. 2d 308, 109 S. Ct. 1038 (1989) (internal quotation

marks omitted). Contrary to the dissent’s interpretation of the

discussion by the Ohio Court of Appeals, we find no clear

and express statement in the opinion that the state procedural

doctrine of res judicata was the basis for the decision.

The Ohio Court of Appeals concluded its analysis of

Frazier’s ineffective-assistance claim as follows:

In view of the fact that appellant had the assistance of

at least three experienced attorneys during all phases

of the trial proceedings, and mindful that a reviewing

court will not second-guess what are essentially

matters of trial strategy, neither the record nor

appellant’s evidence provided dehors the record

supported his claim.

Frazier, 1997 Ohio App. LEXIS 5531, [WL] at *6. We do

not believe that the above statement can be fairly

characterized as a determination that Frazier had attempted to

present evidence that should have been presented on direct

appeal. Rather, the Ohio court’s conclusion goes to the

merits of Frazier’s claim.

Disposing of Frazier’s ineffective-assistance clai: on the

merits was also sensible as a matter of state law. The Ohio

Supreme Court has held that “where defendant, represented

by new counsel upon direct appeal, fails to raise therein the

issue of competent trial counsel and said issue could fairly

have been determined without resort to evidence dehors the

record, res judicata is a proper basis for dismissing

defendant’s petition for postconviction relief.” State v. Cole,

2 Ohio St. 3d 112, 2 Ohio B. 661, 443 N.E.2d 169, 170 (Ohio

1982) (syllabus). According to the dissent, the Ohio Court of

Appeals decided that Frazier’s claim was barred by res

judicata after concluding that the evidence provided by his

32a

postconviction experts was not new because trial counsel had

been “appraised of the purported brain injury.” (Dissenting

Op. at 36 (quoting Frazier, 1997 Ohio App. LEXIS 5531,

[WL] at *6)) Such a decision, however, would have been a

mistaken application of Cole, because, as our own analysis of

Frazier’s claim demonstrates, the simple fact that trial

counsel “had been appraised of the purported brain injury”

does not in and of itself establish ineffective assistance of

counsel. We thus conclude that the dissent's reading of the

decision by the Ohio Court of Appeals is plausible, but that it

is neither the only nor the best interpretation.

The Ohio Court of Appeals’s decision also contains no

express statement that its conclusion on the merits of

Frazier’s ineffective-assistance claim is an_ alternative

holding. This contrasts with that court’s disposition of

another argument raised by Frazier concerning “the trial

court’s failure to grant appellant’s motion for a psychological

expert in mitigation,” as to which the appellate court

specifically stated that “the trial court properly applied the

doctrine of res judicata.” Frazier, 1997 Ohio App. LEXIS

5531, [WL] at *6.

In sum, the state did not raise the issue of procedural

default with respect to the “brain damage” claim by Frazier

upon which we grant relief. Alternatively, we do not believe

that the Ohio Court of Appeals clearly and expressly rested

its decision regarding this claim on an independent state

procedural ground. We are therefore unpersuaded by the

thoughtful argument of the dissent.

E. Remaining claims

Frazier advances sixteen other claims on appeal that merit

substantially less discussion. Having concluded that the

penalty phase of Frazier’s trial was constitutionally defective,

we have no need to consider any other arguments concerning

;

33a

that portion of the trial. We therefore will not address

Frazier’s claim that he was entitled to the appointment of an

independent psychological expert for the penalty phase, or

his claim that the trial court’s instruction to the jury at the

penalty phase was unconstitutional.

Of the remaining fourteen claims, the only one that

deserves further discussion by this court is Frazier’s

argument that his rights under the Ex Post Facto Clause, U.S.

Const. art. I, § 9, cl. 3, were violated. As detailed in Part I.A.

above, Frazier, while in jail and without a lawyer, requested

and received a meeting with two police officers and

Prosecutor McGinty on November 14, 1990. Frazier

essentially offered to plead guilty to the rape and murder of

Skiba in exchange for a definite prison term. That offer

played prominently in the state’s presentation of its case.

Frazier argues that the admission of evidence concerning his

offer was made possible only by a change in the Ohio rules

of evidence that occurred after the offense but prior to trial,

resulting in a violation of the Ex Post Facto Clause.

In November of 1990, when Skiba was murdered, Rule

410 of the Ohio Rules of Evidence provided that evidence of

“an offer to plead guilty or no contest to the crime charged or

to any other crime, or statements made in connection with,

and relevant to, any of the foregoing... offers, is not

admissible in any . . . criminal proceeding against the person

who made the offer.” Rule 410 was revised in July of 1991.

The revised version, in effect during Frazier’s trial,

prohibited the introduction of evidence concerning “any

statement made in the course of plea discussions in which

counsel for the prosecuting authority or for the defendant was

a participant and that do not result in a plea of guilty or that

result in a plea of guilty later withdrawn.” Ohio R. Evid.

410(A)(5).

34a

Every court to have considered Frazier’'s ex post facto

claim has resolved it by concluding that, because the police

' officers and the prosecutor told Frazier that they could not

negotiate a plea bargain at that time, no plea discussions took

place on November 14, 1990. We find this analysis

problematic. Although current Rule 410 requires the

occurrence of plea discussions in order to activate the

prohibition, former Rule 410 does not. The former rule

instead references only “an offer to plead guilty.” Thus, were

we in a position to decide this question of state law in the

first instance, it would seem to us that Frazier’s offer to plead

guilty was admissible under current Rule 410, but not under

former Rule 410. Of course, it is the contrary judgment of the

Ohio Supreme Court that counts in construing the Ohio

Rules of Evidence. See Frazier, 652 N.E.2d at 1012 (“We

concur with the lower courts in their determination that the

interview that occurred on November 14, 1990 was simply

not a plea discussion. We would reach the same result

regardless of which version of Evid. R. 410 we applied.”)

(emphasis omitted).

We add, moreover, that the Ex Post Facto Clause is not

implicated by the change to Rule 410. Frazier argues that the

Clause is violated by “every law that alters the legal rules of

evidence, and receives less, or different testimony, than the

law required at the time of the commission of the offence, in

order to convict the offender.” Calder v. Bull, 3 U.S. (3 Dall.)

386, 390, 1 L. Ed. 648, 3 Dall. 386 (1798) (opinion of Chase,

J.). But the change to Rule 410 did not alter the quantum of

evidence necessary to convict Frazier. Rather, it expanded

the range of admissible testimony. The Supreme Court

explained the difference over a century ago:

Statutes which simply enlarge the class of persons

who may be competent to testify in criminal cases are

not ex post facto in their application to prosecutions

for crimes committed prior to their passage; for they

ee ee ee |

Oe Oe Pe SR Pe ee eT eo

eae

}

sid aves

i ae

rea

ee me

a latte P

35a

do not... alter the degree, or lessen the amount or

measure, of the proof which was made necessary to

conviction when the crime was committed.

Hopt v. Utah, 110 U.S. 574, 589, 28 L. Ed. 262, 4S. Ct. 202

(1884); see also Carmell v. Texas, 529 U.S. 513, 542-47, 146

L. Ed. 2d 577, 120 S. Ct. 1620 (2000) (explaining the

distinction). In addition to falling short under AEDPA,

therefore, Frazier’s ex post facto claim fails on the merits.

The district court disposed of Frazier’s thirteen remaining

claims in a careful and detailed manner. These claims range

from the contention that Ohio’s statutory scheme of capital

punishment is unconstitutional to the argument that the

instruction on reasonable doubt given by the trial court was

constitutionally deficient. Our discussion of these other

claims would be duplicative and serve no useful purpose. We

therefore adopt the reasoning of the district court as to all of

these remaining claims and find them without merit.

Iii. CONCLUSION

For all of the reasons set forth above, we REVERSE in

part the judgment of the district court, GRANT Frazier a

conditional writ of habeas corpus that will result in the

vacation of his death sentence unless the state of Ohio

commences a new penalty-phase trial against him within 180

days from the date that the judgment in this matter becomes

final, and REMAND the case for further proceedings

consistent herewith.

DISSENT BY: ALICE M. BATCHELDER (In Part)

36a

DISSENT

CONCURRING IN PART, DISSENTING IN PART

ALICE M. BATCHELDER, Circuit Judge, concurring in

part and dissenting in part. The majority entertains the

question of whether Frazier received the effective assistance

of counsel at the mitigation stage of his trial, despite the fact

that the Ohio courts never reached that question because,

they held, Frazier’s claim was barred by the state law

doctrine of res judicata. Because Frazier’s claim of

ineffective assistance of counsel is procedurally defaulted

and this court consequently has no business considering the

merits of that claim, | respectfully dissent from the majority’s

holding in Part II.D of its opinion. To the extent that the

claims addressed in Parts II.C and II.E are not waived or

procedurally defaulted, | concur in the majority's treatment of

those claims, see 28 U.S.C. § 2254(b)(2) (“An application for

a writ of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the

remedies available in the courts of the State”), as I do in the

remainder of its opinion.

Before addressing the legal arguments the majority

makes in Part II.D, it is important to understand the treatment

of Frazier’s ineffective assistance of counsel claim by the

Ohio courts. After his conviction and sentencing in state trial

court, Frazier appealed to the Ohio Court of Appeals, where

he raised fourteen assignments of error. In none of those

assignments did Frazier mention the issue of the

effectiveness of his trial counsel, despite the fact that

37a

Frazier’s attorneys on appeal were not the same lawyers that

represented him at trial. nl On appeal by right to the Ohio

Supreme Court, Frazier once again failed to raise his claim of

ineffective assistance of counsel.

nl Frazier did challenge the constitutionality of

several Ohio statutes on the basis that those statutes

worked to deprive him of the effective assistance of

counsel. However, he did not argue on direct appeal

that his counsel were ineffective.

After the United States Supreme Court denied Frazier’s

petition for a writ of certiorari, he brought a petition under

Ohio Rev. Code § 2953.21 (1997), n2 to vacate or set aside

his sentence in the Cuyahoga County, Ohio, Court of

Common Pleas, and asserted for the first time that his trial

counsel were ineffective because they failed to investigate

and present mitigating evidence at the sentencing phase of

his trial. The Court of Common Pleas, without addressing the

merits of this claim, stated as follows:

Consistent with the principles of res judicata, matters

which have been or should have been raised on direct

appeal may not be considered in post-conviction

proceedings. State v. Ishmail (1981), 67 Ohio St. 2d

16, 423 N.E.2d 1068. In addition, where a defendant,

represented by new counsel on direct appeal, fails to

raise the issue of competent trial counsel and said

issue could fairly have been determined without

evidence [beyond] the record, res judicata is a proper

basis for dismissing the defendant’s Petition for Post-

Conviction Relief. State v. Cole (1982), 2 Ohio St. 3d

112, 2 Ohio B. 661, 443 N.E.2d 169.

J.A. at 312 (Court of Common Pleas opinion). Because, the

court held, Frazier’s trial counsel were different from his

counsel on direct appeal, “any ineffective assistance of

38a

counsel [claim] concerning trial counsel’s performance

should have been raised on direct appeal in accordance with

Cole.” Id. The court therefore granted the State’s motion to

dismiss, and denied Frazier’s request for an evidentiary

hearing.

n2 Ohio Rev. Code § 2953.21 provides, when a

prisoner has filed for post-conviction relief, that

“unless the petition and the files and records of the

case show the petitioner is not entitled to relief, the :

court shall proceed to a prompt hearing on the

issues... .” § 2953.21(E) (1997). However,

before granting a hearing on a petition filed

under division (A) of this section, the court

shall determine whether there are substantive

grounds for relief. In making such a

determination, the court shall consider, in

addition to the petition, the supporting

affidavits, and the documentary evidence,

[and] all the files and records pertaining to the

proceedings against the petitioner . . . .

§ 2953.21(C).

The Ohio Court of Appeals affirmed. After examining the

“new evidence” of his “organic brain impairment” that

Frazier claimed was unavailable at trial, n3 the court held

that the evidence was not new, and hence did not permit

Frazier to overcome the bar of res judicata. The court noted

that “it can reasonably be concluded trial counsel were

appraised of the purported brain injury from their review of

the medical records; however, as a matter of trial strategy

counsel deemed this avenue of defense unworthy of further

pursuit.” n4 State v. Frazier, 1997 Ohio App. LEXIS 5531,

No. 71746, 1997 WL 764810, at *6 (Ohio Ct. App. Dec. 11,

1997). This conclusion, the court said, was “reubfirced” by

39a

three factors, namely, (1) counsel’s argument that a

psychologist would merely interpret the findings of the

mitigation expert; (2) counsel’s filing of a motion to limit

reference to mitigating factors; and (3) “the thorough and

professional manner in which counsel conducted appellant’s

defense ....” n5 /d. These statements by the Ohio Court of

Appeals were not made in the context of discussing the

merits of Frazier’s claim of ineffective assistance of trial

counsel, but in the context of determining whether that

ineffective assistance claim was barred by the state law

doctrine of res judicata. The Common Pleas Court, without

reaching the merits of that claim, had granted the state’s

motion to dismiss Frazier’s post-conviction petition, holding

that the claim was barred by res judicata. The Court of

Appeals affirmed that judgment, mentioning the merits only

to the extent of explaining their conclusion that the “new”

evidence of head injury Frazier urged the court to rely on in

order to get around the res judicata bar was not new at all.

n3 Ohio law provides that the procedural bar of res

judicata does not apply in this context if the petitioner

sets forth, in support of his newly raised claim,

evidence that was not available at trial or on direct

appeal, and without which the defense could not have

been expected to raise the new claim. See State v.

Cole, 2 Ohio St. 3d 112, 2 Ohio B. 661, 443 N.E.2d

169, 171 (Ohio 1982).

n4 The majority agrees with the Ohio courts’ factual

finding that Frazier’s trial attorneys knew enough

about his head injury to present that evidence for

mitigation purposes: “Although information about the

nature and severity of the injury was less thoroughly

developed in those [state postconviction] proceedings

than it is now, sufficient facts were presented to

indicate the existence of evidence concerning

a i

40a '

Frazier’s brain injury that could have been developed

and presented to the jury during the penalty phase.”

Supra, at 25.

n5 The majority correctly notes that “the first two

factors... have no relevance in explaining how the

strategy ultimately pursued by Frazier’s counsel was

reasonable.” Supra, at 22. But this statement indicates

that the majority misunderstands the legal analysis

that the Ohio Court of Appeals undertook. The Ohio

Court of Appeals was not seeking to support the

“reasonableness” of the trial counsel’s investigatory 4

tactics (or lack thereof); rather, the court was

explaining the basis for its conclusion that trial

counsel was aware of evidence Frazier claimed was

not available at trial, a matter to which the first two

factors are obviously relevant.

Respondent Huffman raises Frazier’s “failure to present

the [ineffective assistance of counsel] claim and the facts in

support of it to the state courts.” Huffman Br. at 49-50.

Notwithstanding the Supremacy Clause of the Constitution,

see Cooper v. Aaron, 358 U.S. 1, 3 L. Ed. 2d 5, 18-19, 78 S.

Ct. 1401, 79 Ohio Law Abs. 452 (1958), federal habeas

courts are not free to undertake a plenary review of all claims

brought pursuant to 28 U.S.C. § 2254. See, e.g., Wainwright

v. Sykes, 433 U.S. 72, 81, 53 L. Ed. 2d 594, 97 S. Ct. 2497

(1977) (“‘a state decision resting on an adequate foundation of

state substantive law is immune from review in the federal

courts”). Instead, this court must first consider whether

Frazier’s ineffective assistance of counsel claim is properly

before it prior to discussing the merits of that claim.

This issue “concerns the respect that federal courts owe

ihe States and the States’ procedural rules when reviewing

4la

the claims of state prisoners in federal habeas corpus.”

Coleman v. Thompson, 501 U.S. 722, 726, 115 L. Ed. 2d

640, 111 S. Ct. 2546 (1991). The Supreme Court has held

that “where the petitioner... failed properly to raise his

claim on direct review, the writ [of habeas corpus] is

available only if the petitioner establishes ‘cause’ for the

waiver and shows ‘actual prejudice resulting from the

alleged ... violation.’”” Reed v. Farley, 512 U.S. 339, 354,

129 L. Ed. 2d 277, 114 S. Ct. 2291 (1994) (quoting

Wainwright v. Sykes, 433 U.S. at 84). This rule applies when

a state court, relying upon a state rule of law, refused on

collateral appeal to consider a claim that the petitioner could

have raised on direct review, and the petitioner now raises

the same claim on habeas appeal. Teague v. Lane, 489 U.S.

288, 297-98, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989)

(holding that petitioner’s claim, which he failed to raise on

direct review in state court, was procedurally defaulted

_because the Illinois appeals court refused, on the basis of a

state law doctrine of res judicata, to consider the claim in a

state collateral proceeding); Coleman v. Mitchell, 268 F.3d

417, 428-29 (6th Cir. 2001) (Clay, J.) (holding that Ohio's

doctrine of “res judicata under § 2953.21 [is] an adequate

and independent state ground justifying foreclosure of

constitutional claims” in habeas proceedings); see generally

Coleman v. Thompson, 501 U.S. at 729-30 (“The

[independent and adequate state ground] doctrine applies to

bar federal habeas when a state court declined to address a

prisoner’s federal claims because the prisoner had failed to

meet a state procedural requirement. In these cases, the state

judgment rests on independent and adequate state procedural

grounds.”).

This court’s initial obligation with regard to Frazier’s

ineffective assistance of counsel claim, which the Ohio

courts held was barred by res judicata, is to determine

whether the claim is in fact procedurally defaulted. First, we

must consider whether Ohio’s procedural bar to Frazier’s

42a

raising his constitutional claim was “firmly established and

regularly followed” at the time the Ohio Court of Appeals

ruled. Ford v. Georgia, 498 U.S. 411, 424, 112 L. Ed. 2d

935, 111 S. Ct. 850 (1991). It clearly was. State v. Cole, 2

Ohio St. 3d 112, 2 Ohio B. 661, 443 N.E.2d 169 (Ohio

1982), the case on which the Court of Common Pleas relied,

and which was subsequently cited by the Ohio Court of

Appeals as support for its holding on res judicata, is not only

itself established, but relies directly upon the 1967 case of

State v. Perry, 10 Ohio St. 2d 175, 226 N.E.2d 104 (Ohio

1967). State v. Perry was cited by this court when we held

that “application of res judicata... is an adequate and

independent state ground for barring habeas review of

constitutional claims.” Coleman v. Mitchell, 268 F.3d at 429.

Secon’, we must determine whether the state’s

procedural rule barring review is an adequate and

independent state ground sufficient to foreclose review of

constitutional claims. I have already cited authority

establishing that Ohio’s doctrine of res judicata meets this

requirement. See id.; see also Mason v. Mitchell, 320 F.3d

604, 628 (6th Cir. 2003) (reaffirming Coleman v. Mitchell's

holding that Ohio’s doctrine of res judicata is an adequate

and independent state ground).

Third, we must be sure that the last state court to rule on

Frazier’s claim actually disposed of that claim on a state law

procedural ground. n6 Thompson, 501 U.S. at 734-35 “[A]

procedural default does not bar consideration of a federal

claim on either direct or habeas review unless the last state

court rendering a judgment in the case clearly and expressly

states that its judgment rests on a state procedural bar.”

Harris v. Reed, 489 U.S. 255, 263, 103 L. Ed. 2d 308, 109 S.

Ct. 1038 (1989) (internal quotations omitted). So long as the

state court does so, its finding of procedural default precludes

consideration by a federal court even when the state court

also analyzed the defaulted claim under federal law. /d. at

eee

wt ee tor

43a

264 n.10. In this case, the majority uses as its tenuous

springboard to launch into the merits of Frazier’s ineffective

assistance claim—without ever addressing whether the claim

was procedurally defaulted—a__ patently _ incorrect

characterization of the Ohio Court of Appeals’ ruling:

“Frazier’s ineffective-assistance claim was rejected by the

Ohio Court of Appeais on the basis of the first prong of

Strickland.” Supra, at 19. In fact, as I discussed above, the

Ohio Court of Appeals held that “the trial court properly

applied the doctrine of res judicata.” Frazier, 1997 Ohio

App. LEXIS 5531, [WL] at *6. That court never mentioned

Strickland or any other federal court precedents pertaining to

ineffective assistance of counsel (with the exception of one—

Glenn v. Tate, 71 F.3d 1204 (6th Cir. 1995}—upon which

Frazier relied but that contained facts “inapposite” to those of

the present case). Even if the Ohio Court of Appeals had

analyzed the merits of Frazier’s ineffective assistance claim,

its distinct holding based upon the state law doctrine of res

judicata is sufficient to bar our consideration of that claim

unless Frazier can show cause and prejudice.

n6 While the Ohio Supreme Court was actually the

last state court to rule on Frazier’s collateral appeal,

the Court summarily “declined jurisdiction to hear the

case and dismissed the appeal as not involving any

substantial constitutional question.” J.A. at 345 (Ohio

Supreme Court order). This court therefore looks to

the Ohio Court of Appeals decision as the final

reasoned state court decision for purposes of

considering procedural default. See Yist v.

Nunnemaker, 501 U.S. 797, 803-04, 115 L. Ed. 2d

706, 111 S. Ct. 2590 (1991) (holding that a federal

court looks through an unexplained order “to the last

reasoned decision,” and does not assume that the

unexplained order lifts the prior holding that the claim

at issue was procedurally barred).

44a

Finally, we must examine whether the Ohio Court of

Appeals, which applied the doctrine of res judicata and

rejected Frazier’s contention that his claim was based upon

evidence outside the record, actually “discussed any of that

evidence, made specific factual findings on the matter, or

provided any reasoned analysis” to uphold its decision.

Williams v. Coyle, 260 F.3d 684, 696 (6th Cir. 2001).

“Without such analysis, we are unwilling to rule that the

claim is procedurally barred.” /d. In this case, the Ohio Court

of Appeals discussed the “new” evidence put forth by

Frazier, including the affidavit of psychologist Sharon L.

Pearson, who opined that Frazier should have been examined

by a licensed psychologist as part of his mitigation defense.

Frazier, 1997 Ohio App. LEXIS 5531, [WL] at *6.

Moreover, the court explained—in the portion of its opinion

that the majority confuses for a Strickland analysis—the

basis for its conclusion that Frazier’s trial counsel were

aware of Frazier’s head injury and therefore why the

evidence dehors the record was not sufficient to overcome

the procedural bar of res judicata. Id. The Ohio Court of

Appeals’ analysis was more than sufficient to comply with

the requirements of Williams v. Coyle.

Therefore, this court is required to determine whether

Frazier can show both cause and prejudice for his failure to

comply with Ohio's procedural rule. Clearly, he cannot.

Frazier has not shown any cause for his failure to raise on

direct appeal his claim of ineffective assistance of counsel. In

his brief before this court, he fails to address the issue of

procedural default at all, and instead launches directly into a

discussion of the merits of his claim. “We... require a

prisoner to demonstrate cause for his state-court default of

any federal claim, and prejudice therefrom, before the federal

habeas court will consider the merits of that claim." Edwards

v. Carpenter, 529 U.S. 446, 451, 146 L. Ed. 2d 518, 120 S.

Ct. 1587 (2000). Frazier has not even attempted to make such

a demonstration, and any excuse Frazier might now present

45a

for his failure to raise his ineffective assistance claim

properly on direct appeal is waived. See Bickel v. Korean Air

Lines Co., 96 F.3d 151, 153 (6th Cir. 1996) (citing Fed. R.

App. P. 28 and noting that the court “normally declines to

consider issues not raised in the appellant’s opening briefs”).

The one means by which Frazier could bypass the

requirement that he show cause is extraordinary: “where a

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal habeas

court may grant the writ even in the absence of a showing of

cause for the procedural default.” Murray v. Carrier, 477

U.S. 478, 496, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986). The

present issue concerns whether Frazier was sentenced fairly,

and so “the ‘actual innocence’ recuirement must focus on

those elements that render a defendant eligible for the death

penalty, and not on additional mitigating evidence that was

prevented from being introduced as a result of a claimed

constitutional error.” Sawyer v. Whitley, 505 U.S. 333, 347,

120 L. Ed. 2d 269, 112 S. Ct. 2514 (1992). Since Frazier

only claims that the alleged ineffective assistance of his

counsel resulted in a failure to present available mitigating

evidence at the sentencing phase, and since the evidence of

his brain impairment does not call into question the jury’s

finding of aggravating factors, Frazier cannot use the

doctrine of “actual innocence of the death penalty” to excuse

his procedural default. Jd. Moreover, since Frazier does not

set forth any evidence which, if believed, might lead a trier of

fact to find him innocent of the murder of Tiffany Skiba, he

cannot meet Carrier's actual innocence standard, namely,

that the alleged constitutional error probably resulted in the

conviction of a defendant who was actually innocent. Sch/up

v. Delo, 513 U.S. 298, 322-27, 130 L. Ed. 2d 808, 115 S. Ct.

851 (1995).

Ill

46a

All means of circumventing the Ohio courts’ holding that

Frazier’s ineffective assistance claim was barred by res

judicata have been foreclosed; this court therefore has no

legal authority to consider the merits of that claim. In so

doing, the majority contravenes clearly established precedent

of the United States Supreme Court and this Circuit, and

“undermines the State’s interest in enforcing its laws.”

Coleman v. Thompson, 501 US. at 731. I therefore dissent.

47a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 01-3122

Richard M. Frazier,

Petitioner-Appellant,

Stephen J. Huffman, Warden,

Respondent-Appellee.

Filed: October 28, 2003

Before: BATCHELDER, CLAY, and GILMAN, Circuit

Judges.

COUNSEL

For Richard M. Fraxier, Petitioner - Appellant: John B.

Nalbandian, Taft, Stettinius & Hollister, Cincinnati, OH.

Daniel F. Oberklein, Taft, Stettinius & Hollister, Cincinnati,

OH. David Paul Bradley, Gallagher, Sharp, Fulton &

Norman, Cleveland, OH.

For STEPHEN J. HUFFMAN, Warden, Respondent-

Appellee: Michael L. Collyer, Office of the Attorney General

of Ohio, Cleveland, OH. Henry G. Appel, Attorney General's

Office of Ohio, Columbus, OH.

OPINION BY: RONALD LEE GILMAN

48a

OPINION

SUPPLEMENTAL ORDER

RONALD LEE GILMAN, Circuit Judge. Following the

issuance of this court’s opinion, found at 343 F.3d 780 (6th

Cir. 2003), Richard M. Frazier filed a petition to rehear. His

petition is based on the concern that the concluding

paragraph of our opinion could be interpreted as foreclosing

his right to argue in the state courts of Ohio that § 2929.06 of

the Ohio Revised Code, enacted in 1996, is not retroactive to

his offense, which occurred in 1990. We recognize that this 1s

still an open question under Ohio law. State v. Gross, 97

Ohio St.3d 121, 2002 Ohio 5524, 776 N.E.2d 1061, 1114-16

(Ohio 2002) (Resnick, J., concurring in part and dissenting in

part). |

Frazier’s right to argue this issue of state law in

the Ohio courts is not foreclosed by our opinion. To

remove any doubt on this point, however, we amend

our opinion by striking the concluding paragraph in

its entirety and substituting the following in lieu

thereof:

Ill. . CONCLUSION

For all of the reasons set forth above, we REVERSE in

part the judgment of the district court, GRANT Frazier a

conditional writ of habeas corpus that will result in the

_yacation of his death sentence unless the state of Ohio

commences a new penalty-phase trial against him within 180

days from the date that the judgment in this matter becomes

49a

final, and REMAND the case for further proceedings

consistent herewith. If the State does elect to initiate such a

proceeding, we presume that the state court will first have to

determine whether § 2929.06 of the Ohio Revised Code is

retroactive. Only if the state court resolves the issue in the

State’s favor would the prosecution be free to conduct a new

penalty phase proceeding if it chooses to do so.

Judge Batchelder, while continuing to adhere to her

dissent in all respects, concurs in this Supplemental Order for

the sole purpose of clarifying that Frazier’s right to challenge

the applicability of § 2929.06 of the Ohio Revised Code to

his case is not foreclosed by the majority's opinion.

In light of the foregoing revision, we find no reason to

have this case reheard. Frazier's petition to rehear is therefore

DENIED.

DISSENT BY: CLAY

DISSENT

CLAY, Circuit Judge, dissenting. | question the propriety of

Judges Gilman and Batchelder utilizing the vehicle of a

petition for rehearing to provide an advisory legal opinion

with respect to an issue that was never raised or briefed by

the parties below or on appeal when the parties fully had an

opportunity to do so. Such is not the proper use of a petition

for rehearing. “A petition for rehearing is intended to bring to

the attention of the panei claimed error of fact or law in the

opinion.” 6 Cir. I.0.P. 40(a). More importantly, Judge

Batchelder continues to abide by her previously filed

dissenting opinion in this matter. She has not relinquished

her dissent, either in full or in part, by joining the majority

50a

opinion and has not concurred even partially in the majority

opinion. | therefore do not believe it is proper for Judge

Batchelder to vote to grant the petition for rehearing by

voting to revise the majority opinion--in which she does not

join--by voting for the Supplemental Order. It is my

understanding that Judge Batchelder, by her dissent,

continues to dispute both the reasoning of the majority

opinion and the relief afforded in the form of a new penalty

phase trial. Although I have not found any Sixth Circuit

authority which directly addresses this situation, it certainly

seems contrary to our Court’s policies and procedures to

think that a judge can participate in redrafting an opinion that

she does not join, or participate in determining the relief to be

afforded, even on a petition for rehearing, when she rejects

the notion that there is any legal basis for the relief requested

by the petitioner. In other words, I do not see how a member

of the Court can dissent and participate in formulating the

relief afforded by an opinion that he or she dissents from. Put

another way, there is no legally cognizable majority vote for

the Supplemental Order, notwithstanding Judge Gilman’s

assertions to the contrary. As a result, the Supplemental

Order is of no force or effect. Notwithstanding my belief that

the Supplemental Order is of no legal import or guidance for

the parties or members of the public, out of an abundance of

caution, I will proceed to address the substantive points of

the Supplemental Order.

Although § 2929.06 of the Ohio Revised Code was

enacted in 1996, Petitioner never argued to the district court

or to this Court on appeal that this section applies

retroactively so as to preclude him from being subjected to a

second mitigation hearing upon remand. In fact, Petitioner

specifically sought a new guilt phase trial as well as a new

mitigation hearing before the district court and argued on

appeal that the district court erred in failing to grant his

application for the writ on either basis. Now, after being

provided the relief that he sought in the form of a new

Sla

mitigation hearing, Petitioner argues in a petition for

rehearing that, because this Court’s remand order failed to

consider his after-the-fact argument that § 2929.06 may

retroactively preclude him from being subjected to a new

mitigation hearing, his case should be reheard. The relief

Petitioner actually seeks from this Court for the first time by

way of his petition for rehearing is an adjudication to the

effect that the purely state law issue remains open in the Ohio

courts as to whether § 2929.06 applies retroactively. See

State v. Gross, 97 Ohio St. 3d 121, 2002 Ohio 5524, 776

N.E.2d 1061, 1114-16 (Ohio 2002) (Resnick, J., concurring

in part and dissenting in part).

Issues raised for the first time in a petition for rehearing

are generally not considered. See United States v. Perkins,

994 F.2d 1184, 1191 (6th Cir. 1993) (finding that the Court

will not consider issues which are raised for the first time on

appeal in a party’s reply brief); United States v. Cross, 308

F.3d 308, 314 (3d Cir. 2002) (finding that raising an issue for

the first time in a petition for rehearing en banc fails to

preserve the issue for subsequent review). Thus, this Court

should not consider Petitioner’s retroactivity issue at this

time, whether by issuing a supplemental order or otherwise.

Furthermore, there is no reason to address the retroactivity

issue as a part of the remand order since there is nothing in

the original opinion’s remand order to prevent the state court

from deciding to entertain, or not to entertain, the

retroactivity issue.

As to the § 2929.06 retroactivity issue, Petitioner’s case

is distinguishable from the petitioner’s case in DePew v.

Anderson, 311 F.3d 742 (6th Cir. 2002). In DePew, the

retroactivity issue was raised and squarely addressed by the

district judge such that it was necessary for this Court to

speak on it as well. Specifically, in the remand order in

DePew, we opined as follows:

- §2a

As a general rule, the relief given in a federal habeas case

challenging a death sentence is a conditional order vacating

the sentence unless the defendant is resentenced within a set

period of time, usually {80 days. The magistrate judge herein

recommended such a conditional order, but the district court

judge did not adopt that recommendation because the law of

Ohio, as it existed when defendant committed the crimes

herein, did not allow imposition of the death penalty upon

resentencing. On that basis, the district court instead granted

an unconditional writ, vacating the death sentence. However,

as recognized by the district court judge in his order, the

matter of resentencing is for the courts of Ohio to address

and we leave resolution of the state question to them.

For the foregoing reasons, the judgment of the district

court is affirmed in part as to the vacating of the death

sentence, reversed in part as to the grant of an unconditional

writ and remanded with instructions to conditionally grant

the writ unless the State of Ohio elects to initiate

resentencing proceedings within 180 days of the district

court’s order.

Id. at 754. Thus, unlike in this case, in DePew the

retroactivity issue was raised and addressed in the first

instance by the district court.

Significantly, even though the issue of whether DePew

could lawfully be resentenced to death was raised and

addressed, this Court’s remand order did not so much as

imply that the state court should consider the issue before

proceeding with the resentencing; rather, DePew's case was

remanded “with instructions to conditionally grant the writ

unless the State of Ohio elects to initiate resentencing

proceedings within 180 days of the district court's order.” /d.

Thus, since this Court in DePew did not suggest that the state

court could or should consider the retroactivity issue on

53a

remand when the issue had been raised by the petitioner, we

should not do so in this case where the issue was not

previously raised.

Of course, Petitioner is free to raise the retroactivity issue

before the state trial court, as he is free to raise any other

defense as to why he should not be subject to the death

penalty; however, where this issue was never raised by

Petitioner up until this point, this Court should not use its

heavy hand to urge the state court to consider it now. Indeed,

the state court should not interpret the Supplemental Order as

Suggesting that it should or should not consider Petitioners

retroactivity claim.

In summary, because the Supplemental Order appears to

be issuing on an improper basis procedurally and is

substantively unnecessary, | respectfully dissent.

54a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 01-3122

RICHARD M. FRAZIER,

Petitioner-Appellant,

STEPHEN J. HUFFMAN, WARDEN,

Respondent-Appellee.

Filed: November 28, 2003

BEFORE: BATCHELDER, CLAY, and GILMAN, Circuit

Judges.

OPINION

ORDER

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to the

original panel members but also to all other active judges of

this court, and no judge of this court having requested a vote

on the suggestion for rehearing en banc, the petition for

rehearing has been referred to the original panel.

The panel has further reviewed the petition for rehearing

and concludes that the issues raised in the petition were fully

considered upon the original submission and decision of the

case. Accordingly, the petition is denied.

55a

APPENDIX D |

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OHIO, WESTERN DIVISION

Case No. 3:98C V2098

Richard Frazier,

Petitioner,

Betty Mitchell, Warden,

Respondent.

Opinion Filed: January 5, 2001

Before: James G. Carr, United States District Judge.

COUNSEL

David Paul Bradley, Steuer, Escovar & Berk, Cleveland, OH,

for petitioner. Richard M. Kerger, Kerger & Kerger, Toledo,

OH, for petitioner. Michael L. Collyer, Office Of The

Assistant Attorney General, Cleveland, OH, for respondent.

Karhlton F. Moore, Office Of The Attorney General,

Columbus, OH, for respondent.

OPINION BY: James G. Carr

OPINION

ORDER

S6a

This is a capital habeas corpus case arising from the

petitioner’s conviction of two counts of aggravated murder

and one count aggravated burglary. The petitioner has

exhausted his state court remedies.

For the reasons that follow, the petition will be denied.

Introduction

A. Factual Background

The following summary of the evidence from the

petitioner’s trial is taken from the opinion of the Ohio

Supreme Court affirming the petitioner’s conviction on direct

appeal. State v. Frazier, 73 Ohio St. 3d 323, 323-26, 652

N.E.2d 1000 (1995).

The victim, Tiffany Skiba, lived with her grandparents,

Robert and Rita Skiba, in Cleveland, Ohio. On November 8,

1990, Mr. Skiba discovered Tiffany’s body in her upstairs

bedroom. Death had been caused by multiple stab wounds.

Four days later the petitioner, Richard Frazier, was arrested

and charged with the murder.

Petitioner had been married to the victim’s mother trom

1980 until 1989. In October, 1988, the Medina County,

Ohio, grand jury returned a four count indictment against the

petitioner. The indictment charged two counts of rape, one

count of sexual battery, and one count of gross sexual

imposition. The indictment named Tiffany as the victim of

each offense. She allegedly had been impregnated by the

petitioner.

The Medina County Court of Common Pleas ordered the

petitioner to submit a blood sample for DNA testing to

determine the paternity of Tiffany’s child. He appealed that

order to the state court of appeals and Ohio Supreme Court,

57a

which upheld the trial court’s order. The United States

Supreme Court denied petitioner’s writ of certiorari in

October, 1990. Thereafter, the Medina Court of Common

Pleas ordered petitioner’s blood sample to be taken on

November 13, 1990. Trial on the pending indictment was set

for December 5, 1990, and then continued to January 14,

1991.

While the petitioner was on bond, Tiffany and her

mother, Susan Bednarski, expressed fears that petitioner

might harm Tiffany. Bednarski had seen the petitioner

driving slowly past their house on numerous occasions. One

of Tiffany’s friends also saw the petitioner driving slowly by

their house. When the friend told Tiffany what she had seen,

Tiffany said, “Heather, oh, my God. He found me. He is

going to kill me.” Petitioner also was seen following

Tiffany’s school bus.

From September 1989 to May 1990 Tiffany received

counseling. Her counselor testified that Tiffany was suicidal

in October 1989. At a conference with her mother’s attorney

in October 1989, Tiffany was “petrified” during a discussion

concerning the appellant. At a later visitation hearing

attended by the petitioner, Tiffany appeared to be upset,

“pale, shaky,” and “very frightened.”

After Tiffany moved in with her grandparents, she told

her uncle that she was afraid of petitioner and of what he

might do to her. She also told him that she slept with a knife

under her pillow.

On several occasions the petitioner approached Tiffany’s

stepfather, David Bednarski. During one of these encounters,

the petitioner indicated that he wanted to resolve some legal

matters. After Bednarski stated, ““That’s up to the state and

58a

the attorneys,” the petitioner replied, “You use your

attorneys. I’m going to do it in an illegal way.” Petitioner's

friends later threatened David Bednarski.

One week before Tiffany’s murder, the petitioner sent her

a Halloween card asking her to call him. Two days before the

murder, the petitioner rented a car from the C leveland

airport.

On the day of the murder, Tiffany's grandfather, as was

his custom, drove his wife to work around 5:00 a.m. He

returied home about fifteen minutes later. On his return, Mr.

Skiba noticed the family dog barking loudly and looking

toward the back of the house. This behavior was unusual.

At approximately 10:00 a.m., he called to Tiffany to get

up to get ready for work. Receiving no response, he went

upstairs and found Tiffany’s body in her bed.

Next to the body, police found a steak knife belonging to

a set owned by her grandparents. The knife’s blade was

separated from its handle. Blood was on the bed and in the

surrounding area. Police found smears of blood matching

Tiffany’s blood type on the right side of the stairway leading

down from her second floor bedroom and on the door frame

leading to the living room. Officers found human blood on

the steak knife, bedroom ceiling, door frame to the rear door,

and stairwell landing leading upstairs. The quantity was

insufficient to determine blood type.

Entry to the house occurred through a basement window.

The screen had been torn from the window and the pane of

glass was broken. The window was partially open. The

ground near the window was disturbed, and the door,

normally closed, leading from the basement into the house

was ajar.

59a

Two footprints heading away from the murder scene were

found in the neighbor’s garlic bed on the other side of the

fence separating the Skiba residence from their neighbor’s

home. From plaster casts of the prints officers determined

that a size nine or ten boot sold exclusively by K-Mart had

made the footprints.

On the morning of the murder the petitioner went to a

medical clinic to have a one-inch cut on his right. wrist

treated. He appeared nervous and was pacing around the

room. He said that he cut his arm at approximately 7:00 a.m.

while working on his truck. The wound was consistent with a

stab wound.

Later that day the petitioner contacted a friend to ask him

to move his car. The friend declined, having heard a news

report that the petitioner was a suspect in the murder of his

former stepdaughter. Petitioner then contacted another friend,

Jeffrey Weisheit, about moving his car. While the friend was

driving the car, police stopped him and instructed the man to

get out of the car. Before the officer had the opportunity to

finish his commands, Weisheit exited the car with his hands

in the air and began shouting, “Don't shoot.”

The night of the murder, the petitioner drove his rental

car to Ned Shamon’s home in Sheffield Lake, Ohio. Shamon

and the petitioner returned in Shamon’s wife’s car to

petitioner’s apartment to collect various papers and articles of

clothing. The petitioner spent the ensuing weekend with the

Shamons.

On November 12, 1990, Shamon followed the petitioner

to a gas station, where he returned the rental car. A clerk,

recognizing the petitioner from news reports, called the

police. The clerk provided a description of the truck that had

60a

followed the petitioner and its license plate number. Police

found a human blood stain on the rental car's front passenger

seat. The amount was insufficient to be typed.

After receiving the information from the clerk, the police

went to Shamon's home and arrested the petitioner. Among

petitioner’s effects, police found a wristwatch with a human

blood stain on the band, a pry bar stained with human blood,

and a letter from the United States Supreme Court about the

denial of his petition for certiorari.

In addition, the police found a receipt from K-Mart for a

size nine boot with the same pattern on its sole as the boot

which had left the print in the Skibas’ neighbor's garlic

garden. A knife with human blood traces and a towel

smeared with petitioner’s blood were found in his apartment.

The blood on the knife was not suitable for typing.

Anthony Skiba, Tiffany’s uncle, testified that he had

shown the petitioner how to break into Skiba’s residence

through a basement window. The petitioner also was familiar

with the basement and its storage area because he had stored

personal items there while he and Tiffany's mother had been

married.

On November 12, 1990, police officers read the Miranda

warnings to the petitioner in the Medina County Jail. They

asked petitioner a series of questions about Tiffany's murder.

The officers noticed that petitioner had several bruises and

abrasions on his hands and arms and a sutured cut on the

outside of his right wrist.

On November 13, 1990, Cleveland police officers took

the petitioner for the blood test ordered by the Medina

County court. The test showed a 99.8% probability that

petitioner fathered Tiffany’s child.

6la

On Novernber 14, 1990, during a further interview with

law enforcement officers, petitioner made _ indirectly

inculpatory statements that were later introduced against him

at his murder trial. At one point, he offered to tell the officers

everything that happened, but wanted to do so only after he

talked with an attorney. The officers then terminated the

conversation.

B. Procedural Background

Count One of the indictment charged aggravated murder,

defined as a purposeful killing while committing, or

attempting to commit, or while fleeing immediately after

committing or attempting to commit aggravated burglary.

That Count contained three death specifications: 1) the

murder was committed while committing or attempting to

commit or fleeing immediately after committing or

attempting to commit aggravated burglary and the offender

was the principal offender or committed the murder with

prior calculation and design; 2) the victim was a witness and

was purposely killed to prevent her testimony; and, 3) the

murder was committed for the purpose of escaping trial

and/or punishment for another offense committed by him, to

wit, rape.

‘ Count Two also charged aggravated murder committed

purposely with prior calculation and design. Count Two

contained the same death specifications as Count One.

Count Three charged appellant with aggravated burglary.

Trial lasted from August 5 through August 14, 1991. On

August 16, 1991, the jury returned a verdict of guilty on all

three counts and also found that the three specifications

under Counts One and Two had been proven beyond a

reasonable doubt.

62a

At the mitigation hearing the petitioner made an unsworn

statement denying his guilt. On August 19, 1991, the jury

returned with a recommendation that petitioner be sentenced

to death. The court followed the jury’s recommendation,

making an independent finding that the aggravating

circumstances outweighed the mitigating factors beyond a

reasonable doubt. Petitioner was sentenced to death on

August 29, 1991.

The court of appeals affirmed the decision of the trial

court. The Ohio Supreme Court affirmed the conviction and

sentence. State v. Frazier, 73 Ohio St. 3d 323, 652 N.E.2d

1000 (1995).- The United States Supreme Court denied the

petitioner’s petition for a writ of certiorari. Frazier v. Ohio,

516 U.S. 1095, 133 L. Ed. 2d 763, 116 S. Ct. 820 (1996).

On July 31, 1996, the petitioner filed a post-conviction

relief petition in the trial court. Before doing so, he had filed

a Motion for Expert Assistance, seeking funds to hire an

investigator. The trial court denied that motion, which was

renewed and again denied after the petitioner filed his post-

conviction petition.

Finding that the petitioner’s claims were barred by the

doctrine of res judicata, the trial court dismissed the

petitioner’s post-conviction petition on November 26, 1996.

Thereafter, the petitioner filed a motion for relief from

judgment. He based that motion on a report from a

psychologist, who stated that testing should be undertaken to

determine whether the petitioner was brain damaged.

Petitioner also filed objections to the trial court's findings in

its dismissal of the petitioner’s post-conviction petition. On

December 13, 1996, the trial court overruled both motions

with a marginal entry.

63a

Petitioner appealed the denial of his post-conviction

petition to the court of appeals, which affirmed the trial

court’s decision on December !1, 1997. On April 1, 1998,

the Ohio Supreme Court declined to accept petitioner’s

appeal for review on the basis that the petitioner had

presented no substantial constitutional question.

The petitioner’s habeas corpus petition asserts thirty

grounds for relief, which will be discussed in the order in

which they appear in the petition.

1. Failure of the Trial Court to Give a Cautionary

instruction re. Evidence Admitted Under Ohio R.

Evid. 404(B)

Without objection at trial, evidence was admitted against

the petitioner about 1) his alleged rape of Tiffany; 2) the

pending state court indictment for rape; 3) the paternity of

Tiffany’s child; and 4) paternity testing procedures. In

addition, the state's opening statement referred to petitioner’s

alleged sexual abuse of Tiffany, his indictment for rape, the

paternity test, and the likelihood that petitioner was the father

of Tiffany’s child. The rape and paternity issues also were

discussed by the state during the guilt and penalty phases of

the trial.

The trial court ruled that the evidence was relevant to the

death specifications in the murder counts of the indictment.

Those specifications alleged that the murder was of a

witness, and that it was committed to avoid prosecution.

No limiting or cautionary instruction was given when the

evidence was admitted or discussed. In addition to not

objecting to the admissibility of the evidence, the petitioner

did not ask the court to give such instruction. As a result, the

Ohio Supreme Court ruled that this claim was procedurally

64a

defaulted. Accordingly that court declined to consider this

claim on its merits, except to examine it on the basis of a

possible manifest miscarriage of justice. Frazier, 73 Ohio St.

3d at 339. The court found no miscarriage of justice.

Review by a state supreme court of an otherwise

procedurally defaulted claim to determine whether the error,

if any, constituted a manifest miscarriage of justice does not

revive the defaulted claim for purposes of federal habeas

corpus review. Paprocki v. Foltz, 869 F.2d 281, 285 (6th

Cir. 1989); see also Scott v. Mitchell, 209 F.3d 854, 868 (6th

Cir. 2000) (“manifest injustice” review by Ohio Supreme

Court of defaulted claim does not constitute waiver of the

default).

In any event, even if the claim could be considered on its

merits, despite the default, it is without merit. The Ohio

Supreme Court has expressly declined to impose a duty on

Ohio’s trial judges to give a limiting instruction sua sponte

when, without a request for such instruction, evidence comes

in under Ohio R. Evid. 404(B). State v. Schaim, 65 Ohio St.

3d 51, 61-62 n.9, 600 N.E.2d 661 (1992). As the Ohio

Supreme Court has pointed out, “the decision not to request a

limiting instruction is sometimes a tactical one, and we do

not wish to impose a duty on the trial courts to read this

instruction when it is not requested.” /d. Thus, the trial court

in this case complied with state law when it did not sua

sponte give a limiting or cautionary instruction about this

evidence.

The foregoing discussion assumes, moreover, that

the petitioner properly characterizes this evidence as

having been admitted under Rule 404(B). His

characterization is incorrect.

The Ohio Supreme Court noted in its decision on

petitioner’s direct appeal that the evidence of the blood test

65a

was admitted properly under Rule 404(B) to show motive. In

addition, the Court stated that evidence about the rape

prosecution “is inextricably linked to the circumstances

surrounding [the] murder.” As the Ohio Supreme Court in

the context of a death penalty case has since made clear,

evidence of motive that is “inextricably linked” to the

circumstances of a charge offense is not governed by Rule

404(B). State v. Coleman, 85 Ohio St. 3d 129, 140, 707

N.E.2d 476 (1999). In Coleman, the Supreme Court, citing

its earlier decision in the petitioner’s direct appeal, stated:

The admission of the underlying facts regarding the

three separate drug sales tended to prove the essential

elements of the specification. R.C. 2929.04(A)(8)

requires that the state prove motive, and evidence was

introduced to demonstrate that [the defendant] was

the key witness against appellant and that her murder

would hinder the state’s case against him by

preventing her testimony, which explained appellant’s

motive and deep obsession with killing Stevens. Thus,

the drug sales are not considered “other acts”

evidence limited by Evid. R. 404(B); rather, they

were introduced to prove the R.C. 2929.04(A)(8)

death-penalty specification. ;

(citing State v. Frazier, 73 Ohio St. 3d 323, 338-339, 652

N.E.2d 1000 (1995)). Accord State v. Keene, 81 Ohio St. 3d

646, 661, 693 N.E.2d 246 (1998) (evidence that a victim was

murdered because she was a witness to a crime charged to

the defendant not Rule 404(B) evidence).

Even if the evidence came in under Rule 404(B), the

petitioner has not met his burden of showing that the federal

Constitution requires, as a matter of due process of law, that

the trial court sua sponte had to give a limiting instruction.

The petitioner, rather, simply argues that he was entitled to a

sua sponte limiting instruction under Spencer v. Texas, 385

66a

U.S. 554, 17 L. Ed. 2d 606, 87 S. Ct. 648 (1967), and Murray

v. Superintendent, Kentucky State Penitentiary, 651 F.2d

451, 453 (6th Cir.1981). Both cases involved habitual

offender prosecutions. In Spencer the Supreme Court noted

the efficacy and effectiveness of limiting instructions relating

to evidence of prior convictions in an habitual offender

prosecution. In Murray the court stated that, in such

prosecutions, “it is unfair—and violative of due process—if

evidence of other crimes is admitted without a limiting

instruction.” 651 F.2d at 453.

The statement in Murray was dictum. Neither it nor the

Supreme Court's decision in Spencer establishes, as a matter

of federal constitutional law, an entitlement to a sua sponte

instruction whenever evidence is admitted under the “other

acts” doctrine, as embodied in Ohio R. Evid. 404(B). As a

matter of federal evidentiary law, moreover, the Sixth Circuit

has held that no sua sponte instruction is required when

evidence is admitted under Fed: R. Evid. 404(b). United

States v. Cooper, 577 F.2d 1079, 1088-89 (6th Cir. 1978).

There is, accordingly, no constitutional right to a sua sponte

instruction limiting consideration of other acts evidence.

Having failed to show an established constitutional right

to such instruction, petitioner is entitled to habeas relief only

if the trial court's failure to give such instruction resulted in a

fundamentally unfair trial. See Smith v. Gibson, 197 F.3d

454, 460 (10th Cir. 1999). The failure to give a limiting

instruction about the rape, pending indictment, blood test,

and putative paternity did not result in a fundamentally unfair

trial in view of the direct connection between that evidence,

petitioner’s motive, and the killing. Cf Amos v. State, 849

F.2d 1070, 1073 (8th Cir. 1988) (no denial of right to a fair

trial when trial court did not sua sponte give a limiting

instruction about prior crimes evidence offered for

impeachment pursuant to state evidentiary rule).

67a

2. Admission of Evidence of Victim's Pre-Homicide

Fear

Several witnesses testified about Tiffany’s fear of the

petitioner and her concern that he might harm her. According

to Heather Vrutnski, Tiffany “appeared frightened, confused.

She was scared.” Kitty Keller testified that Tiffany was “very

frightened. She was pale, shaky. Her voice was quivering.”

Joseph Bruzas, Tiffany’s uncle, testified that “she said, ‘You

don’t understand.’ She goes, ‘I’m scared.’ [and] ‘I sleep with

a knife under my pillow.’” Tiffany's mother also related

Tiffany’s fear of the petitioner.

The state alluded to Tiffany’s fears in its opening

statement. The prosecutor told the jurors that “the evidence

will show that Tiffany Skiba was in fear of, was terrified of

one person in her short lifetime, and that person is sitting

right over there, and that’s Richard Frazier, the defendant.”

He also stated that “the evidence will show, ladies and

gentlemen, in November of 1990 that Tiffany was sleeping

with a knife under her pillow, that she was in obvious fear of

her life.”

The prosecutor returned to this theme in closing

argument. He referred explicitly to the testimony of Heather

and the victim’s uncle, Joseph Bruzas. The prosecutor also

commented that this “was a well-placed fear,” and noted that

Tiffany was “terrified” and “suicidal.”

Defense counsel objected frequently to evidence and

comments about Tiffany’s state of mind.

Petitioner argues that this evidence was not relevant, and

that its introduction violated his rights under the

confrontation clause of the Sixth Amendment. In addition, he

argues that admission of this testimony and the prosecutor’s

comments violated his right to due process of law.

68a

To the extent that the petitioner challenges the trial

court’s ruling on relevance, his claim is not cognizable in this

proceeding, absent a showing of a denial of fundamental

fairness. Rulings on evidence involve state law, and

erroneous rulings on matters of state law cannot lead to

habeas corpus relief. Pulley v. Harris, 465 U.S. 37, 41, 104

S. Ct. 871, 79 L. Ed. 2d 29 (1984) (“federal court may not

issue the writ on the basis of a perceived error of state law’’);

Moore v. Tate, 882 F.2d 1107, 1109 (6th Cir. 1989) (“It is

well established that ‘while habeas review does not ordinarily

extend to state court rulings on the admissibility of

evidence . . . an erroneous evidentiary ruling which renders a

trial fundamentally unfair warrants a writ of habeas

corpus.””) (citing Fuson v. Jago, 773 F.2d 55, 59 (6th Cir.

1985)).

With regard to petitioner’s confrontation clause claim, the

Supreme Court described the showing he must make to

prevail in Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597,

100 S. Ct. 2531 (1980):

where a hearsay declarant is not present for cross-

examination at trial, the Confrontation Clause

normally requires a showing that he is unavailable.

Even then, his statement is admissible only if it bears

adequate indicia of reliability. Reliability can be

inferred without more in a case where the evidence

falls within a firmly rooted hearsay exception. In

other cases, the evidence must be excluded, at least

absent a showing of particularized guarantees of

trustworthiness.

The Ohio Supreme Court relied on the “state of mind”

exception to the hearsay rule, as embodied in Ohio R. Evid.

803(3), as a basis for upholding admission of the testimony

about Tiffany’s fear of the petitioner. Frazier, 73 Ohio St.

69a

3d at 337. The state of mind exception to the hearsay rule is

“firmly rooted.” Terrovona v. Kincheloe, 852 F.2d 424, 427

(9th Cir. 1988); United States v. Alfonso, 66 F. Supp. 2d 261,

267 (D. P.R. 1999); United States v. King, 1997 U.S. Dist.

LEXIS 16728, *33, 1997 WL 666778, *11 n.6 (S.D. N.Y.),

rev'd on other grounds, United States v. King, 126 F.3d 394

(2nd Cir. 1997).

Other courts have held that evidence of a victim’s fear of

a habeas corpus petitioner does not violate the confrontation

clause. Barber v. Scully, 731 F.2d 1073, 1074 (2d Cir. 1984)

(admission of statement by a friend of the murder victim that

on the day of her murder the victim had told the witness that

she was afraid of the defendant did not violate confrontation

clause); United States ex rel. Jacques v. Hilton, 423 F. Supp.

895, 899 (D. N.J.1976) (evidence that victim told witness

that he was in fear of defendant and expected to be killed was

within scope of state evidentiary rule; habeas confrontation

clause claim rejected).

Even if the “state of mind” exception is not a “firmly

rooted” hearsay exception, Tiffany’s statements had

sufficient indicia of reliability to be trustworthy. The

petitioner had been seen following her. For two years he had

resisted submitting to a blood test. She was substantially

younger than the petitioner, and had been the victim of an

emotionally traumatizing crime. nl As a result of that crime,

Tiffany had borne the petitioner's child. Tiffany’s

expressions of fear were repeated and consistent, rather than

isolated.

nl Following Tiffany’s murder, but before his trial for

that offense, the petitioner was convicted in Medina

County on the rape and related charges that had been

pending at the time of Tiffany’s death.

70a

Tiffany’s statements about her fears, like those of the

victim in Moore v. Reynolds, 153 F.3d 1086, 1107 (10th Cir.

1998), thus satisfy Sixth Amendment requirements. In that

case, as here, more than one witness testified about the

victim’s statements, which also were otherwise corroborated.

The “challenged statements supported each other, and [were]

in turn supported by other evidence,” so they could be

viewed as trustworthy. /d.; see also Hopkinson v. Shillinger,

866 F.2d 1185, 1201, rev'd on other grounds, 888 F.2d 1286

(10th Cir. 1989) (victim’s out-of-court statements, about

which five other witnesses testified, that habeas petitioner

threatened him and he feared the petitioner, possessed

sufficient “indicia of reliability” to satisfy the Confrontation

Clause).

Petitioner also claims that admission of testimony about

Tiffany’s fear of the petitioner violated his right to due

process of law because its prejudicial effect so substantially

outweighed its probative value as to cause the trial to have

been fundamentally unfair. In response to the petitioner’s

challenge to this evidence, the state appellate court stated that

the “evidence that Tiffany expressed fear when appellant

made bond, the testimony that she was physically upset when

he was seen driving by her home, and the fact that she slept

with a knife under her pillow were relevant to prove

appellant’s identity as the murderer.” State v. Frazier, 1994

Ohio App. LEXIS 598, 1994 WL 50703, *9 (Ohio App. 8

Dist.).

| agree with the state court’s assessment of the relevance

of this evidence. The identity of Tiffany’s murderer was the

critical issue in the trial. Her expressions of fear were

probative because they supported the substantial evidence of

petitioner’s likely motive. In addition, the testimony that she

said she was sleeping with a knife under her pillow pointed

to the source of the wound observed after the murder on the

petitioner’s arm.

Tla

Even if the evidence were erroneously admitted, habeas

relief would not be appropriate “unless the admission of the

evidence rendered the trial ‘so fundamentally unfair as to

constitute a denial of federal rights.’” Webster v. Rees, 729

F.2d 1078, 1079-80 (6th Cir. 1984) (citing Logan vy.

Marshall, 680 F.2d 1121, 1123 (6th Cir.1983)). Federal

courts sitting in habeas corpus proceedings are not concerned

with state court evidentiary rulings unless such rulings result

in a denial of due process. /d. I conclude that admission of

this evidence did not cause the petitioner’s trial to be

fundamentally unfair.

The petitioner cites United States v. Brown, 160 U.S.

App. D.C. 190, 490 F.2d 758 (D.C. Cir. 1973), to support his

challenge to the admission of evidence about Tiffany’s fears.

That case and its reasoning may well have provided support

for a decision not to admit that evidence. But its relevance to

the issues in this habeas proceeding is slight, because its

holding that evidence of a victim’s fear is inadmissible

except in limited circumstances is based on evidentiary

principles, rather than the constitutional requirements of due

process and fundamental fairness. It is, therefore, not

authority for finding that introduction of this evidence

violated the petitioner’s constitutional rights.

3. Description of Victim’s Character

At several points during closing argument, the prosecutor

referred to Tiffany’s character and background. These

-Teferences included a description of Tiffany as “this young,

innocent girl,” “a loving, caring individual,” “that little girl,”

and “beautiful young lady,” who, “in her death [was] a

carved-up cadaver.” The prosecutor also calied on the jurors

to remember Tiffany, and how she “was alive [and] had a

right to live on the day she died,” with the right, “which was

72a

taken away by this defendant, to life [and] her youth, [and]

her adolescence,” “to go to college,” “to walk down the

aisle,” and “to have a family.”

Not content with his verbal depiction of the victim, the

prosecutor used props to make his point. He placed an empty

chair in the middle of the courtroom to “be representative of

her.” He called on the jurors to “most importantly, remember

this girl right here, symbolically represented in this empty

chair.” After referring to Tiffany in death “as a carved-up

cadaver,” the prosecutor showed photographs to the jurors,

telling them, “Take a good look. May it live with you the rest

of your life.”

The Ohio Supreme Court stated that “use of the empty

chair was excessive.” Frazier, 73 Ohio St. 3d at 341. The

respondent does not dispute this characterization, which is

well-taken. Stunts like this have no place in a fair and

professional prosecutor’s presentation. To the extent that they

aid his cause, they increase the likelihood of reversal.

In determining whether the due process standard has been

met, a federal court, under the Anti-Terrorism and Effective

Death Penalty Act, 28 U.S.C. § 2254(d), must conclude that

the state court’s decision is contrary to clearly established

federal law. Williams v. Taylor, 529 U.S. 362, 120 S. Ct.

1495, 1521-23, 146 L. Ed. 2d 389 (2000) (O’Connor, J.

concurring). This showing is made only “if the state court

arrives at a conclusion opposite to that reached by this Court

on a question of law or if the state court decides a case

differently than this Court has on a set of materially

indistinguishable facts.” Jd. at, 120 S. Ct. at 1519.

Justice O’Connor’s concurring opinion further stated in

Williams that an “unreasonable application” occurs when

“the state court identifies the correct legal principle from this

Court’s decision but unreasonably applies that principle to

73a

the facts of the prisoner’s case.” /d. at, 120 S. Ct. at 1523.

A federal habeas court may not find a state adjudication to be

unreasonable “simply because that court concludes in its

independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or

incorrectly.” /d. at , 120S. Ct. at 1522. n2

n2 In Nevers v. Killinger, 169 F.3d 352, 371 (6th Cir.

1999), the Sixth Circuit held that the AEDPA did not

vitiate the standard of Brecht v. Abrahamson, 507

U.S. 619, 623, 123 L. Ed. 2d 353, 113 S. Ct. 1710

(1993), for determining harmless error. Under that

standard, prosecutorial misconduct does not justify

habeas corpus relief unless the misconduct had a

“substantial and injurious effect or influence in

determining the jury’s verdict.” The Supreme Court’s

decision in Williams appears to abrogate the ruling in

Nevers. Harris v. Stovall, 212 F.3d 940, 942 (6th Cir.

2000).

The result in this case is the same even if the

Brecht harmless error standard is applicable. As

troublesome, improper, unwarranted, and unnecessary

as the empty chair was, the petitioner cannot show

under Brecht that the prosecutorial misconduct was

“sO egregious so as to render the entire trial

fundamentally unfair.” 507 U.S. at 637.

The Ohio Supreme Court correctly concluded that the

prosecutor’s gratuitous misconduct did not influence the jury

and that his statements were not prejudicial. 73 Ohio St. 3d

at 341. The depiction of Tiffany as young, innocent,

beautiful, and caring do not appear either to have been

inaccurate, based on evidence outside the record, or beyond

inferences that fairly could have been drawn from the record.

See Byrne v. Butler, 845 F.2d 501, 511-12 (Sth Cir. 1988)

(description of victim as decent and hardworking and

74a

innocent of wrongdoing based on evidence before the jury

and not fundamentally unfair); Pierson v. O'Leary, 959 F.2d

1385, 1389-90 (1992) (prejudicial impact from improper,

irrelevant testimony about victim’s hard-working character

and effect of homicide on his family was minimal), Alley v.

Bell, 101 F. Supp. 2d 588, 649 (W.D. Tenn. 2000) (testimony

about victim’s education, desire to join the Marines, and

general friendliness and family’s last contacts with her and

decision not to have an open casket funeral did not have a

substantial and injurious effect or influence in determining

the jury’s verdict where guilt was overwhelmingly shown).

Likewise, the description of Tiffany as a “carved up cadaver”

was accurate and not fundamentally unfair.

4. Misapplication of State Law re. Excusal of Jurors

The petitioner claims that the trial judge misapplied the

standard of O.R.C. § 2945.25(C) for excusing jurors in a

capital case. This claim raises only an issue of state law,

which is not cognizable in a_ federal habeas corpus

proceeding. Estelle v. McGuire, 502 U.S. 62, 71, 116 L. Ed.

2d 385, 112 S. Ct. 475 (1991); see also Clemmons. v.

Sowders, 34 F.3d 352, 356 (6th Cir. 1994) (grant of excuse

for cause, though arguably improper under state law, did not

state a federal constitutional violation).

5. Excusal of Jurors for Views Against Capital

Punishment

Petitioner claims that two jurors, Algirdas Nasvytis and

Elisabeth Laskey, were excused improperly for cause on the

basis of their views against capital punishment. In

Wainwright v. Witt, 469 U.S. 412, 83 L. Ed. 2d 841, 105 S.

Ct. 844 (1985), the Supreme Court prescribed the standard

for determining when a prospective can be excused for cause

based on his or her views about capital punishment. That

standard, the court stated, “is whether the juror’s views

75a

would prevent or substantially impair the performance of his

duties as a juror in accordance with his instructions and

oath.” /d. at 424.

The trial judge’s finding that a juror is impartial is a

finding of fact entitled to the presumption of correctness

under § 2254(d). /d. at 429; Patton v. Yount, 467 U.S. 1025,

1028, 81 L. Ed. 2d 847, 104 S. Ct. 2885 (1984). Under

§ 2254(e)(1) the petitioner has the burden of rebutting this

presumption by clear and convincing evidence. Alley v. Bell,

101 F. Supp. 2d 588, 650-51 (W.D. Tenn. 2000). Review by

this court is limited to determining whether the state court

record “fairly supports” the trial judge’s finding on this issue.

Rushen v. Spain, 464 U.S. 114, 120, 78 L. Ed. 2d 267, 104 S.

Ct. 453 (1983). The trial judge need not have issued written

findings of fact, provided that the finding is evident from the

record. Witt, supra, 469 U.S. at 430.

In response to questions from the trial judge, Juror

Nasvytis initially stated that he had “no position” on the

death penalty. Tr. 234. Then, however, he stated that he

would have a problem in voting for the death penalty if the

law so required. /d. at 235. This was based on his personal

belief that he was “not sure—that capital punishment is

warranted,” and that he would be “more inclined toward life

imprisonment with no parole or something . . .” /d. at 235-36.

Mr. Nasvytis also acknowledged that he would have to

put his personal feelings aside and follow the law as given to

him by the court, even if it conflicted with his personal

feelings. /d. at 236.

On further questioning by the prosecutor, Mr. Nasvytis

Stated that he “tended to lean toward being against the death

penalty.” Jd. at 241. He stated that he could listen to the

testimony during the guilt phase and, based on_ that

testimony, return a verdict. Jd. When asked whether he

76a

“would be able to sign a piece of paper that authorizes the

imposition of death on this defendant,” he responded,

however, “it would be hard for me to do that.” /d. at 242). In

answer to a question about whether he could “do it,” he

stated, “Well, then I don’t know until I get there . . . it would

be hard for me to do it. I think that I probably would have to

do it... if I felt there was no doubt in my mind that the

individual was guilty of all the crimes... .” /d. at 242-43. He

stated that he “probably” would hold the state to a higher

standard of proof than beyond a reasonable doubt because of

the death penalty. /d.

Mr. Nasvytis said that it was not the case that he would

be unable to vote for the death penalty, no matter what the

evidence was. /d. at 243-44. When asked whether he would

be able to “sign a verdict imposing the death penalty,” he

stated, “I think so.” But when then asked whether there was

“any doubt in your mind that you could,” he responded,

“Yes, there is.” /d. at 244.

When asked by defense counsel whether he thought he

could be a fair and impartial juror during the guilt phase, Mr.

Nasvytis responded affirmatively. /d. at 248. After posing

questions, as to a number of which objections were sustained,

about the legal aspects of aggravating and mitigating factors,

the defense attorney asked Mr. Nasvytis if he could “fairly

consider all three options?” To which he responded, “Uh-

huh.” /d. at 249.

The defense attorney later asked Mr. Nasvytis whether he

“could follow the law” if it stated that he had to impose the

death penalty. To which Mr. Nasvytis responded, “it would

be difficult for me to do anyway.” Jd. at 252. After

reaffirming his ability to determine guilt or innocence, Mr.

Nasvytis, in response to a final question from defense

77a

counsel as to whether he “would follow the law and vote to

impose the death penalty,” stated, “Yes, | would say yeah.”

Id.

Thereafter, after a couple of preliminary comments by the

trial judge, the following colloquy ensued:

Judge: I need to know if you can make the

commitment to me that you will set aside your

personal feelings and you will follow the law as I give

it to you. In other words, if the law requires you to

vote for the death penalty, will you commit to me that

you will do so even if it violates your personal

feelings?

Juror: Well, if it violates my personal--my personal

- beliefs, my moral beliefs, | couldn't do it, no matter

what you said.... I can do everything up to that

point.

Judge: If the law requires that you vote for the death

penalty, will you, in fact, do so?

Juror: No, not if I don’t believe it is right.

Judge: What if the law says that under these

circumstances you must vote for the death penalty

and you find that those circumstances do exist?

Juror: Whose law?

Judge: Our law.

Juror: Not if I felt that it was morally incorrect, |

couldn’t do that, no.

PRA ee Sor

78a

Judge: So you cannot commit to me that you will

follow the law and impose the death penalty if the law

requires you to do so?

Juror: I can’t, because I don’t feel bound by that more

than I do by my own beliefs.

Id. at 253-54.

Thereafter, the defense attorney asked, “You are not

saying that there are no circumstances where you could vote

to impose the death penalty; is that a fair starting point?” In

response, Mr. Nasvytis stated, “I have never been put in a

situation where I had to be directly responsible for someone’s

death. So that I—for that reason I don't know what I would—

how I would respond if I was in that situation.” /d. at 254.

After acknowledging that his concerns had to do with his

moral principles, id. at 254-55, Mr. Nasvytis that “I don’t

care what the law is, okay, | am going to do what I think is

right.” /d. at 256. When asked if he could “follow the law

and do [the] weighing process,” Mr. Nasvytis stated,

“certainly my feelings against the death penalty would

affect... how I would weigh those, ....” /d. at 257-58. In

response to the defense attorney’s final question, “So that, in

a properly proven case,... you could follow the law and

impose the death penalty,” Mr. Nasvytis stated, “Depends—I

suppose I could.” /d. at 258.

After this answer, the trial judge asked, “What does that

mean, sir, you suppose you could?” To which Mr. Nasvytis

answered, “Well, I think it means depending on—let’s say

that one of my relatives was the—the individual, the victim,

let’s say, I would suppose that in that case my—my

vacillating would vacillate toward the more serious choice.”

Id.

79a

At sidebar, the trial judge stated that, “This gentleman

has indicated that under some circumstances, if a relative

were a victim, he would follow the law; in other

circumstances, he would not follow the law. He does not

believe he is bound by the law.” /d. at 259-60.

On questioning by the prosecutor, Mrs. Laskey stated that

she had “serious reservations about” the death penalty and

“reservations that it serves a useful purpose.” /d. at 386.

Asked if she had “serious doubts,” she said, “Yeah.” /d.

When asked if she would “be able to pick up the pen, sign

your name on that death penalty verdict,” she stated, “I really

don’t know,” and “I think I would have so many reservations

I may not be able to do it.” /d. at 387-88.

Mrs. Laskey indicated that her reservations were based

on her belief that the death penalty, in effect, was “like

saying | am going to murder you to teach you not to murder.”

Id. at 388. Asked if she thought “it is wrong to execute or

wrong to murder, whether the state is doing it or whether

someone else is doing it,” she replied, “Yes,” and

acknowledged that she did not want to be a part of it. (/d.).

When the time came to sign her name on a death verdict, she

repeated, she would “probably have really sincere

reservations.” /d.

Mrs. Laskey also indicated, however, that “the law has to

be obeyed regardless of my personal feelings.” /d. at 389. On

then being asked, “would you follow the instructions of the

law,” she responded, “I am still not sure, I guess. Seriously, |

am not sure. Maybe I wouldn't. I better not. I better say no, |

couldn’t follow the law.” /d. In conclusion, she stated, “1

don’t think I could take that responsibility. I think my

feelings about the death penalty being a deterrent is too

deeply engraved. I don’t think it is a deterrent. I don’t think it

80a

solves anything, to kill someone or killing someone.” /d. at

390. These feelings, she stated, were not religiously based,

though she thought “it ethically makes sense.” /d.

When questioned by defense counsel, Mrs. Laskey stated

that she did not have a problem sitting in judgment as to the

guilt or innocence of a person charged with a crime. /d. at

390-91. She acknowledged that there might be “times |

probably would feel” that a crime had been “so heinous |

probably would” be able to return a death verdict. /d. at 392.

Asked later that if “the law says in this circumstance [you]

have to follow the law, that you would follow the law,” Mrs.

Laskey answered, “I can probably follow the law and put my

personal bias against the death penalty aside, if I had to make

that decision what the law says had to be done.” /d. at 395-

96.

The following colloquy then ensued between the trial

judge and Mrs. Laskey:

Judge: ... I need a commitment... that you will

follow the law, even if the law requires you to sign

you name to a verdict in which you are voting for the

death penalty.

Will you make that commitment to me or can you

make that commitment to me?

Juror: No, | don’t think I could.

Judge: You cannot?

Juror: | don't think I could.

* *K *K OX

8la

Judge: ... So, what I am telling you is, ma’am, you

may be personally against death, but you would have

to set aside your personal feelings, and even if you

believe in your heart that, no, I really don’t want to

impose death in this case but the law tells me I have

to, | am asking you, will you set aside what your heart

tells you and do what the law says? And I need to

know if you will make that commitment to me. |

know we are not asking you easy questions, but |

think you can appreciate we need the answers.

Juror: Yeah, that I need to follow the law-instead of a

personal feeling regarding—

Judge: What I need to know is can you make that

commitment to me?

Juror: No, I don’t think I could. I couldn't say I could.

Judge: You cannot say unequivocally you will follow

the law even if it is against your personal feelings?

Juror: Probably not.

Judge: If it is against your personal feelings, that’s

what I should have said.

Juror: No, I probably couldn’t.

* * * *

Judge: That’s what it really comes down to.

Juror: No, I think probably my feelings against the

death penalty would be so strong I couldn’t follow the

law. I will not follow the law, would be better, no

probably won’t follow the law.

82a

Id. at 396-98.

When questioned further by the defense attorney, as to

whether “it would take a lot to convince you that the

aggravating circumstances outweighed beyond a reasonable

doubt the mitigating factors,” Mrs. Laksey acknowledged

that that was “fair.” Jd. at 399-400. In response to the

question, “you couldn’t say under no circumstance would

you follow the law and impose the death penalty; isn’t that a

fair statement,” Mrs. Laskey answered, “Yes.” /d. at 400. She

gave the same answer to the question, “you have said there

are circumstances where you could consider it.” Jd. Asked,

“can you follow the law and apply the law in this case even if

the law said that you had to impose the death penalty,” Mrs.

Laskey answered, “Yes, I know the law would take

precedence over my personal feelings about the death

penalty.” /d. at 402.

Mrs. Laskey again was asked by the court, “are you now

making the commitment that you will, in fact follow the law,

and if the law requires you to vote for death, you will do so,

even if it is against your personal feelings, even if your heart

tells you differently.” In response, Mrs. Laskey stated, “I

think | would have to follow the law until it was changed.”

Id. To this, the court responded, ““Ma’am, I need something

stronger than I think I might have to. You understand, I need

something stronger than I think I might, probably | will. I

need a commitment. This is too important. I need a

commitment that you will follow the law even if it is totally

against your heart.” This, in turn, led to the response by Mrs.

Laskey, “No I don't think I can give you that commitment.”

Id.

The petitioner claims that the trial judge improperly

asked the prospective jurors to make a commitment to follow

the law and the court’s instructions. Such questions from the

83a

court are not improper, as Justice Kennedy noted in his

dissenting opinion in Mu’Min v. Virginia, 500 U.S. 415, 451,

114 L. Ed. 2d 493, 111 S. Ct. 1899 (1991) (Kennedy, J.,

dissenting). A trial judge, Justice Kennedy stated, can

properly “evaluate impartiality by explaining the trial

processes and asking general questions about the juror’s

commitment to follow the law and the trial court’s

instructions.” Indeed, here, as in Zuern v. Tate, 101 F. Supp.

2d 948, 988 (S.D. Ohio 2000), “the Petitioner has not cited a

single case which would support the proposition that the

Eighth Amendment or any other provision of the United

States Constitution is violated, when... such a commitment

from potential jurors” has been secured.

Voir dire of each juror was extensive. Both expressed

reservations, based strongly held personal beliefs, about their

ability to impose capital punishment. Although some

portions of the jurors’ responses may be viewed as

expressing a willingness to follow the law, the totality of

their responses provides ample support for the trial judge’s

decision to excuse them for cause.

The petitioner has, in any event, failed to overcome the

presumption of correctness applicable to the state judge’s

findings of inability to follow and apply the law. In addition,

applying the rigid standard of AEDPA, it is clear that the

decision to excuse these jurors was neither “contrary to, nor

involved an unreasonable application of clearly established

federal law” and was not “based on an unreasonable

determination of the facts.” 28 U.S.C. § 2254(d).

6. Denial of Defense Challenges to Jurors

The petitioner claims that the trial judge applied different

standards when considering defense challenges to jurors, and

improperly denied defense challenges to two of the jurors for

cause. The finding that the jurors could disregard their

84a

personal beliefs favoring the death penalty and return a

verdict consistent with the law is subject'to the presumption

of correctness. Patton, supra.

The first juror whom the petitioner claims should have

been excused for cause due to her beliefs regarding capital

punishment was Judy Ballard. When asked by the trial judge

whether she had a “position for or against the death penalty,”

Ms. Ballard stated, “For.” Tr. 653. After Mrs. Ballard stated

that she would vote for the death penalty if the law so

required, the trial judge asked her if she wouid likewise

“follow the law that says you cannot vote for death . . . [and]

must vote for a lesser penalty.” To which she responded,

“Yes.” Id.

Then the trial judge asked her if she could “commit to us

that you will set aside your personal feelings regarding the

death penalty and simply follow the law, even if it is in

conflict with your personal feelings.” Ms. Ballard again

answered, “Yes,” as she did when asked, “You will follow

the law?” /d.

The prosecutor, after asking if Ms. Ballard could return a

death sentence, also asked, “if the law required a different

penalty, the penalty or the other option of life imprisonment

with the possibility of parole after serving a full 20 or 30

years, if that’s what the law required, you would be able to

do that, also.” /d. at 658. Ms. Ballard answered affirmatively.

Id.

When asked by defense counsel whether “in some cases

she might feel it was more appropriate for capital

punishment,” Ms. Ballard responded, “Most cases, yes.” Jd.

at 660. She answered, “Yes,” to the question, “if someone

has been proven to have killed somebody, do you generally

feel that capital punishment should be imposed?” /d. at 660-

61. “Would you say,” the defense attorney then asked, “that

85a

if a person has been proven to have killed somebody, that he

should be put to death?” In response, Ms. Ballard stated, “If

he has been proved to kill someone, yes.” /d. at 661. Ms.

Ballard also answered, however, “No,” when asked, whether

she had a “problem” with moving on to “some other penalty”

if the “death penalty may not have been proven.” /d.

Ms. Ballard stated that she could consider, as a possible

sentence, thirty years before parole eligibility. But, when

asked if she would “have any problem with that,” she

answered affirmatively. /d. at 663. Her problem was that “the

person shouldn’t be paroled. It should be a life sentence.” /d.

She agreed with the defense attorney’s statement, “that

because of the possibility of parole that maybe there should

be a death penalty,” and acknowledged that “that would be

on [her] mind.” /d. She also stated that she did not agree with

the possibility of parole after twenty years. /d. Asked if it

were a fair statement “that if the defendant is found guilty of

aggravated murder, that you would impose the death penalty

because you don’t agree with the 30 years or the 20 years,”

Ms. Ballard said, “Yes, that's correct.” Jd. at 660-61.

Next the trial judge asked Ms. Ballard, “would you

automatically impose the death penalty without consideration

of the law?” To which Ms. Ballard responded, “No.” /d. at

661. When asked what her earlier answers meant, Mrs.

Ballard stated that, “anyone who is killing someone shouldn’t

be out.” /d.

At this point, the following colloquy occurred:

Judge: What if I were to tell you that our law does not

believe that, that that’s not how our law is set up?

Would you set aside that personal feeling?

Juror: I could. It would be hard, but I could.

86a

Judge: It may very well be hard. But I need to know--

and there are no right or wrong answers here, ma’am.

I need to know if you will commit to al! of us that you

will set aside your personal feelings being in favor of

the death penalty and if you will foilow the law, and

if the law tells you that you have to consider certain

factors that I will give to you, you will consider those -

factors. Will you make that commitment to me?

Juror: Yes.

Judge: And will you make the commitment to me that

if the State doesn’t meet their burden of proof of the

aggravating circumstances outweighing the mitigating

factors, will you commit to me that you will not vote

for death?

Juror: Yes.

Judge: Even though you may not like it, you have to

make that commitment to me. If you can’t make that

commitment to me, you have got to tell me now.

Juror. | could make that commitment.

Judge: Okay. And on the other hand, if the State does

meet its burden of proof in the penalty phase, you will

vote for death?

Juror: Yes.

Judge: Do you understand my concern here is | think

I have heard two different answers from you, and I

need to know—I know you are in favor of the death

penalty, and I know you believe that if you take a life,

your life should be taken. But I cannot stress enough,

ma’am, that is not our law.

87a

Will you accept the law or will your personal feelings

override what I have told you?

Juror: | will accept the law and put my personal

feelings aside.

Judge: You are sure you can do that?

Juror: Yes.

Judge: You are positive?

Juror: Yes.

Id. at 664-66.

When asked by the defense attorney if she could put aside

her feelings, Ms. Ballard stated that “I have to put aside my

feelings.” /d. at 666. During the course of further questioning

of Mrs. Ballard by defense counsel, the court interjected, and

asked, “But as you sit here now, do you have an open mind

to various possibilities, or, as you sit here now, are you

definite that if he is found guilty, I am going to vote for

death?” Jd. at 670. Mrs. Ballard answered, “I don't know. It

depends. It might not be the rule . . . The death penalty might

not be the rule.” /d. at 671.

This, in turn, led to some further questions by the court:

Judge: ... If I tell you you can consider A, B, C, D,

E, okay, if I list of things that you can consider, that

negate the death penalty, will you consider them?

Juror: Yeah. I have no choice.

88a

Judge: Okay. So you will consider them and

determine, according to the law, whether or not you

should impose the death penalty or a lesser penalty?

Juror: Yeah.

Judge: Do you have an open mind as you sit here

right now?

Juror: Yes.

Id. 671-72.

After this series of questions from the trial judge,

petitioner’s attorney asked that, if she didn’t agree with the

list of mitigating factors given by the judge, “would you still

feel that you should have to give the death penalty?” Mrs.

Ballard answered, “No.” The defendant attorney’s final

question was, “You could set aside your own personal

feelings and move on to one of these other areas?” To which

Mrs. Ballard responded, “Yes.” /d. 672.

Defense counsel initially passed for cause. He then

reversed himself, and objected. The court denied the

challenge. /d. 673.

The other juror who, according to the petitioner, should

have been dismissed for cause was Harold M. Wills. As the

outset of his voir dire the court asked, “Do you have a

position for or against or no position at all as to the death

penalty,” to which Mr. Wills responded. “No.” Id. at 730.

But then he said, “No. If he deserves it, give it to him, that’s

what | say.” /d. at 731.

After explaining the two distinct phases of the trial and

the weighing of the aggravating and mitigating factors, the

89a

court asked, “Will you, in fact, follow the law that would

require you to vote for death?” /d. Mr. Wills answered, “I

think I would.”

In response to the next couple of questions, Mr. Wills

indicated that he was confused. This led to the following

exchange:

Judge: Under certain circumstances the law requires

you to vote for death. Would you follow that law that

would require you to vote for death?

Juror: Oh yeah.

Judge: You would vote for death, if you had to?

Juror: Sure, yeah.

Judge: On the other hand, if other circumstances

exist, the law says you may not vote for death, you

must consider a lesser penalty of life imprisonment

with parole eligibility after 30 years or 20 years.

Would you follow the law that says no, you cannot

~vote for death, you have to vote for lesser penalty?

Juror: I would follow the law.

Judge: So if the law says you can’t vote for death,

would you follow that law?

Juror: Yes.

Judge: ... Will you put aside all of your personal

feelings regarding the death penalty, put them all

aside, and just simply follow the law, even if the law

is different than your personal feelings?

90a

Juror: | would have to.

Id. at 732-33.

When asked by the prosecutor if he could “vote for the

imposition of death in this case,” Mr. Wills responded, “I

think | would.” /d. at 736. After being told by the prosecutor,

“We need something more than that. We need either you can

or you can’t do that. We need to know now,” Mr. Wills

repeated, “I think I can do it.” /d. When asked if he could

“sign your name... if the law says it is an appropriate

penalty,” Mr. Wills agreed he could do so. /d.

Mr. Wills also agreed with the prosecutor, when asked

about his initial statement (“If he deserves it, give it to him”),

that he meant to express that if the law says death is

appropriate, he could follow the law. /d. He reconfirmed his

ability to set aside his personal feelings and acknowledged

his ability to follow the law regarding alternative

punishments and impose a lesser sentence. /d. at 736-37.

After some initial questions from the defense attorney,

Mr. Wills expressed incomprehension about the fact that a

person convicted a year and a half earlier of murder of a

police officer was still alive. Jd. at 739. Asked if he thought

that person should be put to death for what he did, Mr. Will

stated, “Sure I do, sure.” /d. He agreed with the statement

that if someone “kills another person, that he should be put to

death.” /d. at 739-40.

At this point, the following colloquy occurred

between defense counsel and Mr. Wills:

Attorney: Now, the law in Ohio says that if the

prosecutor proves these aggravating circumstances

and that they outweigh mitigating factors that the

9la

defense would put on, and they prove this beyond a

reasonable doubt, that the jury should return a death

penalty verdict. Do you agree with that?

Juror: Sure.

Attorney: Now, the law also provides that there are

certain mitigating factors or factors that would lessen

against the death penalty to make a lesser penalty.

Can you think of anything in your own mind that

would cause you, in relying on these mitigating

factors as defined by the law, to change from the

death penalty verdict?

Juror: No.

Attorney: So that because of the fact that there was

this type of a murder or there was a murder, the

taking of somebody else’s life, you would feel—or

you would vote for the death penalty?

Juror: I sure will.

Attorney: You would not be able to consider any

other—

Juror: Huh-uh.

Attorney: —wmitigating factors?

Juror: No.

Attorney: How much has this to do with [that other]

case or is this your own—

Juror: That’s my own feeling.

92a

Attorney: This is your own feeling overall?

Juror: All you have to do is look at the state of

Michigan, Detroit, Michigan. They don’t have a death

penalty.

Attorney: And what are you saying about the state of

Michigan and the city of Detroit?

Juror: I got a daughter that lives in Michigan. I don’t

like to go to Michigan.

Attorney: So you are saying that your personal

feelings because of your own daughter’s situation, the

state of Michigan and everything that’s going on in

Detroit—

Juror: Yeah.

Attorney: —that you would not be able to put these

aside—

Juror: No.

Attorney: —and that you would not be able to follow

the law with respect to mitigating factors?

Juror: Yeah, | would be able to follow the law.

Attorney: Well, you are saying you can follow the

law, but the law

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.