# Appendix — Huffman, Warden v. Frazier

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 1095

## 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

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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,
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Appendix F: Opinion of the Court of Appeals of Ohio,
Eighth Appellate District, Cuyahoga County,
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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 &

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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

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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.

4a

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.

i

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,

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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

6a

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.

Ta

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

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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

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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]

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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.

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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

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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

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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

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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,

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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

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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

/
/
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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

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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.
I

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

Ce

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.

II

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,

V.

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,

Ws

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,

V.

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_1293%3A2. Public record. Not legal advice.