LOZA v. MITCHELL

Full title: JOSE TRINIDAD LOZA, Petitioner, — v. — BETTY MITCHELL, Warden, Respondent

Court: United States District Court, S.D. Ohio, Eastern Division

Date published: Jun 11, 2002

C-1-98-287 (S.D. Ohio Jun. 11, 2002)

Opinion

C-1-98-287

June 11, 2002

James A. Wilson, Jr., Vorys Sater Seymour Pease — 2, Columbus, OH 43216-1008, Laurence E. Komp, 423 Madrina, Ballwin, MO 63021, Attorneys for Petitioner.

Norman E. Plate, Carol Ann Ellensohn, Ohio Attorney General — 2, Capital Crimes Section, Columbus, OH 43215-3428, Stuart Alan Cole [term 03/12/01], Ohio Attorney General, Corrections Litigation Section, Columbus, OH 43215-6001, Thomas Kenneth Lindsey [term 08/09/02], Upper Arlington City Attorney — 2, Upper Arlington, OH 43221, Attorneys for Respondent.

OPINION AND ORDER

EDMUND A. SARGUS, JR., United States District Judge.

Petitioner, a prisoner sentenced to death by the State of Ohio, has filed a habeas corpus action pursuant to 28 U.S.C. § 2254. This matter is before the Court upon the petition, return of writ, respondent's motion to dismiss claims on the basis of procedural default, petitioner's memorandum in opposition, and respondent's reply to petitioner's memorandum in opposition. Also before the Court is the joint appendix containing the state court record. This order will address the question of whether any of petitioner's claims for relief must be denied on grounds that they were procedurally defaulted during the course of state court proceedings, and that he has not successfully demonstrated the existence of cause sufficient to excuse that default.

I. Factual History

The details of this capital murder and aggravated robbery are set forth in numerous state court opinions, including the Ohio Supreme Court's published opinion in State v. Loza, 71 Ohio St.3d 61 (1994). That account is reprinted below verbatim.

On January 16, 1991, defendant-appellant, Jose Trinidad Loza, shot four members of the family of his girlfriend, Dorothy Jackson. The victims were shot in the head at close range while they slept in their home in Middletown, Ohio. Loza shot Jackson's mother, Georgia Davis; her brother, Gary Mullins; and her two sisters, Cheryl (Mullins) Senteno and Jerri Luanna Jackson. Mullins died almost immediately from his wound; Davis and Senteno survived several hours before dying. Jerri Jackson, six months pregnant at the time of the shooting, died on January 31, 1991.

On the afternoon of January 16, 1991, Gary Hoertt observed an individual in a white Mazda pick-up truck with California plates loading trash into his dumpster at his shop in Middletown. Having had previous problems with the unauthorized use of his dumpster, Hoertt searched the dumpster for something with which to identify the individual. Hoertt found a letter in the dumpster signed by Loza with a return address in Butler County. Hoertt read the letter, the contents of which indicated that Loza was involved in a drive-by shooting in Los Angeles and that he came to Ohio to avoid apprehension by the Los Angeles police.

After reading the letter, Hoertt called the Warren County Sheriff's Department to report his discovery. Hoertt was informed that it would take some time before a deputy could respond. During that time, Hoertt was informed by an employee that the individual, later identified as Loza, and a female companion were seen in the vicinity of the nearby Greyhound bus station. Hoertt then called Middletown police detective Roger Knable.

After Knable arrived at Hoertt's shop and read the letter, Knable and Hoertt went to the dumpster, where they retrieved other items that Loza had discarded, which included: a knife, an empty box for a .25 caliber Raven automatic handgun; a receipt signed by a Judy A. Smith for the purchase of the handgun on January 15, 1991; a woman's purse; a blank check on the account of Georgia L. Davis; a general money order made payable to Jose Loza; clothing; and some other personal items.

As Hoertt and Knable were going through the items in Hoertt's office, Hoertt saw Loza approach the dumpster. Knable went to his cruiser and requested his dispatcher to notify Warren County deputies that the individual had returned and that he was going to speak to him. Knable identified himself as a police officer, approached Loza with his gun in his hand, and instructed Loza to place his hands on the front of the car. Knable searched Loza and asked his name. At this time, Loza identified himself as "Jose Rodriguez." Knable told Loza the reason he was being stopped was because of what he put in the dumpster. Loza responded "yes." Knable said the letter indicated that Loza may have been involved in a drive-by shooting in Los Angeles. Loza again responded "yes." Knable then informed Loza that he was going to handcuff him and hold him until Warren County deputies arrived. Knable then went to locate the woman who had been seen with Loza earlier. Loza said that the woman's name was Cynthia Rodriguez, that she was his wife, and that they were headed to California.

Knable then went inside the bus station and approached Dorothy Jackson. He asked her name and she responded "Dorothy Jackson." When asked, Jackson stated that Loza's name was "Jose Rodriguez," and that they were not married. Within a short time after Knable's initial contact with Loza, Warren County deputies arrived. The deputies determined Jackson was under age and that she planned to travel to California with Loza. When asked, Jackson gave her mother's telephone number to the deputies. Knable was unsuccessful in reaching Davis, Jackson's mother, by phone. Detectives Knable and George Jeffery then went to Davis's home at 1408 Fairmont, but did not receive any response when they knocked at the door. A neighbor approached the detectives and said that she had been trying unsuccessfully all day to get someone from the house to respond.

Because police were unable determine if Jackson had permission to travel out of state, she was arrested for being an unruly minor and was taken to the Warren County Juvenile Detention Center. Loza was arrested for contributing to the delinquency or unruliness of a minor and was taken to the Warren County Justice Center.

When the detectives began questioning Jackson at the juvenile detention center, she did not initially tell them of the murders. Shortly into the questioning, she began crying. She said she did not want to go to jail, and that Loza had killed her family. Jackson then told the detectives what she knew about the murders.

Based upon Jackson's statement, Detective Knable obtained a search warrant for the house at 1408 Fairmont. When the police entered the house, they discovered the victims.

Knable and Jeffery then returned to the Warren County Justice Center and began questioning Loza. The detectives' interview with Loza was videotaped. At the beginning of the interview, Loza waived his Miranda rights. Initially, Loza said that he and Jackson were traveling to California with her mother's permission. The detectives told Loza they knew what had happened, and that it would be in his, Jackson's and the unborn baby's best interest if he just told the truth. About one hour into the interview, Loza confessed to the murders. Loza detailed the murders, including the order in which he shot the victims. Loza stated that Jackson was not in the house at the time of the murders, and that she did not know that he was going to kill her family members.

The detectives asked Loza when he began thinking about murdering Jackson's family members. Loza responded that he had been thinking about it since he had obtained the gun and particularly after Davis had threatened to have him arrested if he tried to leave the state with Jackson. Loza explained that he shot Davis because of her threats. When asked why he shot the others, he responded: "Knowing I had to do one, I had to do all. * * * Because if I only done one, they would have — they would have known it was me. If I would have done all of them, nobody would have found out."

Loza was indicted on four counts of aggravated murder, with three death penalty specifications and a gun specification added to each murder charge. Death specification number one alleged murder to escape detection and arrest, R.C. 2929.04(A)(3); death specification number two alleged "course of conduct" murders, R.C. 2929.04(A)(5); and death specification number three alleged murder during an aggravated robbery, R.C. 2929.04(A)(7). Appellant pleaded not guilty to all the charges.

Appellant waived his right to a jury trial and proceeded to trial before a three-judge panel. During cross-examination of the state's final witness, the defense moved for a mistrial on the basis that the state had failed to disclose certain exculpatory evidence during discovery. Over the state's objection, the court granted a mistrial without prejudice. The trial court denied appellant's subsequent motion to bar his retrial on double jeopardy grounds.

After the court denied appellant's pretrial motion to suppress all statements and evidence seized in this matter, a trial by jury commenced on October 21, 1991.

Prior to submitting the case to the jury, the court dismissed the aggravated-robbery specification with respect to the aggravated murder of Jerri Jackson. The jury found appellant guilty on all four counts of aggravated murder. The jury also found appellant guilty of all remaining specifications except for the R.C. 2929.04(A)(3) specification with respect to the aggravated murders of Senteno and Jerri Jackson.

At the conclusion of the penalty phase, the court merged the R.C. 2929.04(A)(3) and 2929.04(A)(5) specifications with respect to the aggravated murders of Davis and Mullins. The jury recommended the death sentence for the aggravated murders of Mullins, Senteno, and Jerri Jackson and thirty years to life imprisonment for the aggravated murder of Davis. The court accepted the recommendation and sentenced appellant to death for the aggravated murders of Mullins, Senteno, and Jerri Jackson. The court also sentenced appellant to thirty years to life imprisonment for the aggravated murder of Davis and imposed a three-year term of actual incarceration for the firearm specification. The court ordered the life and three-year firearm sentences to be served consecutively to appellant's death sentences.

Loza, 71 Ohio St.3d at 61-64; J.A. Vol. III, at 1232-1234.

II. State Court Proceedings A. Trial and Direct Appeal

Petitioner was indicted by the Butler County Grand Jury on March 13, 1991. Represented by two attorneys, petitioner waived his right to jury trial and his bench trial commenced on August 5, 1991. Three days later, that trial ended in mistrial over the state's objection. Following the trial court's denial of his motion to dismiss the indictment on double jeopardy grounds, petitioner then elected to be tried by a jury. His jury trial began on October 22, 1991, and concluded on October 31, 1991. The penalty phase of petitioner's trial commenced on November 6, 1991, and ended on November 7, 1991, with the jury returning a recommendation that petitioner be sentenced to death for the aggravated murders of Senteno, Mullins, and Jerri Jackson and to thirty years to life imprisonment for the aggravated murder of Georgia Davis. The trial court accepted the jury's recommendations and proceeded to sentence petitioner on November 12, 1991. Petitioner appealed.

Represented by new attorneys from the Ohio Public Defender's Office, as he would be throughout the remainder of his state court proceedings, petitioner appealed first to the Court of Appeals for the Twelfth Appellate District. Counsel for petitioner raised the following assignments of error:

Assignment of Error No. I: The trial court erred to the prejudice of Appellant Loza by disallowing testimony by psychologist Dr. Fisher relating to the voluntariness of appellant's confession.

1. Psychological testimony concerning the voluntariness of a confession must be allowed at the guilt phase of a capital trial. Any preclusion of such testimony violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 9, 10, and 16, Article I of the Ohio Constitution.

Assignment of Error No. II: The trial court erred to Appellant Loza's prejudice when it denied his motion to suppress a videotaped statement made by Mr. Loza to the Middletown police.

1. Appellant Loza's videotaped confession to the Middletown police was not voluntary. Appellant Loza's free will was overborne by psychologically coercive police tactics, by promises, by trickery, by a prior illegal seizure of Appellant Loza, and by Appellant Loza's personal susceptibility to police coercion. The coerced confession was admitted at the guilt and penalty phases of Appellant Loza's trial in violation of the due process clause of the Fourteenth Amendment of the United States Constitution, and Section 16, Article I of the Ohio Constitution.

2. Appellant Loza's acquiescence to a search of his purported effects was not voluntary. His free will was overborne by the coercive effects of an illegal arrest, his contemporaneously involuntary confession, and his personal susceptibilities to police coercion. The fruit of the coerced consent search, a .25 caliber pistol, was admitted at trial in violation of Mr. Loza's right to due process under the Fourteenth Amendment to the United States Constitution, and Section 16, Article I of the Ohio Constitution.

Assignment of Error No. III: The trial court erred to Appellant Loza's prejudice when it denied his motion to suppress all statements and all evidence derived from a warrantless seizure of Appellant Loza in Warren County by Middletown police detective Knabel.

1. Middletown police detective Knabel seized Appellant Loza outside the City of Middletown. That warrantless seizure was not authorized under R.C. 2953.03 and was thus illegal. Moreover, the illegal seizure violated Appellant Loza's rights under the Fourth and Fourteenth Amendments to the United States Constitution and Section 14, Article I of the Ohio Constitution.

2. Knabel seized Appellant Loza without an arrest warrant. The seizure was unreasonable because Knabel had neither probable cause nor a reasonable suspicion that Appellant Loza had committed a crime. Appellant Loza's subsequent confession and consent to a search of his effects were tainted by Knabel's unreasonable seizure. That evidence should have been suppressed by the trial court. Appellant Loza's rights under the Fourth and Fourteenth Amendments to the United States Constitution and Section 14, Article I of the Ohio Constitution were thus violated.

Assignment of Error No. IV: The trial court erred by allowing the state to introduce evidence against Mr. Loza concerning irrelevant and unproven other criminal acts.

1. When irrelevant and highly inflammatory evidence is presented at the guilt phase of a capital trial, it taints the guilt phase, has a prejudicial carry-over effect on the penalty phase and operates to deny the capital defendant a fair trial on the issues of both his guilt and sentence.

Assignment of Error No. V: The trial court erred by imposing three death sentences on Appellant Loza because the death sentences were inappropriate.

1. The sentences of death imposed on Appellant Loza were unreliable and inappropriate. The death sentences in his case violate the Eighth and Fourteenth Amendments to the United States Constitution, Sections 9 and 16, Article I of the Ohio Constitution and R.C. 2929.05.

Assignment of Error No. VI: The trial court erred when it denied Appellant Loza's motion to bar his retrial on double jeopardy grounds.

1. The trial court twice put Appellant Loza in jeopardy for the same offenses when it denied his motion to dismiss. Appellant Loza's motion should have been granted. The prosecutor intentionally provoked Appellant Loza into moving for a mistrial at the first proceeding. Appellant Loza's rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 9 and 10 of the Ohio Constitution were violated by his retrial.

Assignment of Error No. VII: The trial court erred to the prejudice of Appellant Loza by allowing the subject of appellant's future dangerousness to be introduced at the penalty phase of his capital trial.

1. The issue of a capital defendant's future dangerousness is irrelevant to any issue at the sentencing phase of a capital case in Ohio. Such evidence constitutes a nonstatutory aggravating circumstance and destroys any guided discretion of the jury in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 5, 9, and 16, Article I of the Ohio Constitution.

Assignment of Error No. VIII: The trial court erred to the prejudice of Appellant Loza by allowing Nevaline Halcomb to serve on appellant's capital jury.

1. A juror that believes the responsibility for determining punishment in a capital case rests with the trial court should not be permitted to serve on a capital jury. Any death sentence returned by a jury containing such a juror violates the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 9, 10, and 16, Article I of the Ohio Constitution.

Assignment of Error No. IX: The trial court erred to the prejudice of Appellant Loza by giving erroneous instructions at the guilt phase of appellant's capital trial.

1. A trial court instruction given during the guilt phase that improperly and inaccurately refers to punishment violates the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 9, 10, and 16, Article I of the Ohio Constitution.

2. The trial court's instruction on the element of "purpose" created an unconstitutional conclusive presumption and relieved the State of its burden to prove this element beyond a reasonable doubt as required by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 9, 10, and 16, Article I of the Ohio Constitution.

Assignment of Error No. X: The trial court erred when it denied Appellant Loza's motion for a mistrial after the State's final argument.

1. Appellant Loza was deprived of his rights against self-incrimination, to a fair trial, and due process of law as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 9, 10, and 16, Article I of the Ohio Constitution, when prosecutorial misconduct prejudiced Appellant Loza's substantial rights during the guilt phase of his trial.

Assignment of Error No. XI: The trial court erred to the prejudice of Appellant Loza by failing to conduct any voir dire of Juror Zecher when it learned Mrs. Zecher's husband did not want her to serve on the jury.

1. A trial court must conduct a voir dire when it learns that a seated juror has a problem that might affect the juror's ability to be impartial. Failure to conduct such a voir dire violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 5, 9, and 16, Article I of the Ohio Constitution.

Assignment of Error No. XII: The trial court erred by replaying Appellant Loza's videotaped statement to the jury during both the guilt and penalty phases of the trial.

1. The trial court replayed Appellant Loza's videotaped statement to the jury, upon request at the guilt and penalty phases of trial. The trial court did so without first asking why the jury needed to re-view the videotape. The trial court's actions denied Mr. Loza's rights to a fair trial, to a reliable death sentence, and to due process under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 5, 9, and 16 of the Ohio Constitution.

2. The trial court failed to caution the jury at both the guilt and penalty phases that Appellant Loza's videotaped statement should not have been given undue weight simply because his statement was replayed to the jury. Without the cautionary instruction, the jury gave undue emphasis to Mr. Loza's unreliable videotaped confession. As a result, all of the relevant evidence in Appellant Loza's favor became obscured. Appellant Loza was thus denied his right to a fair trial, to a reliable death sentence, and to due process under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and Article I, Sections 5, 9, and 16 of the Ohio Constitution.

Assignment of Error No. XIII: The trial court erred when it allowed jurors to take notes during Appellant Loza's capital trial.

1. The trial court abused its discretion when it tacitly encouraged jurors to take notes. Neither party nor any juror requested that note-taking be allowed. The use of notes by jurors tainted their deliberations with matters not in evidence. Note-taking by jurors also prejudicially diverted their attention from the testimony offered at trial. Thus, the jurors ceased to perform their essential role as the finders of facts. Appellant Loza was denied his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and Article I, Sections 5 and 9 of the Ohio Constitution.

Assignment of Error No. XIV: The trial court erred to Appellant Loza's prejudice when it denied his motion to acquit based on insufficient state's evidence.

1. As the evidence was insufficient to convict Appellant Loza of aggravated murder, the trial court should have granted his motion to acquit. Appellant Loza's convictions based on insufficient evidence violated his right to Due Process under the Fourteenth Amendment to the United States Constitution, and Section 16, Article I of the Ohio Constitution. Appellant Loza's convictions on insufficient evidence also violated his right to a reliable death sentence under the Eighth Amendment to the United States Constitution and Section 9, Article I of the Ohio Constitution.

Assignment of Error No. XV: The trial court erred to the prejudice of Appellant Loza by failing to instruct on one of the offenses charged in the R.C. 2929.04(A)(3) specification.

1. The trial court failed to instruct the jury on the offense of contributing to the delinquency or unruliness of a minor as charged in the R.C. 2929.04(A)(3) specification. This failure to so instruct deprived Appellant Loza of his right to a jury trial, as guaranteed by the Sixth Amendment to the United States Constitution and Section 5, Article I of the Ohio Constitution, his right to have his guilt determined beyond a reasonable doubt as required by the Fourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution and his right to trial by indictment as guaranteed by Section 10, Article I of the Ohio Constitution.

Assignment of Error No. XVI: The trial court erred to the prejudice of Appellant Loza by failing to properly consider relevant mitigating evidence.

1. The trial court discounted certain mitigating evidence offered by Appellant Loza's because it was not relevant to the appropriateness of the death penalty. It was improper for the trial court to use this standard and it violated appellant's rights as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and Sections 9, 10, and 16, Article I of the Ohio Constitution.

Assignment of Error No. XVII: The trial court erred to the prejudice of Appellant Loza by admitting into evidence inflammatory and gruesome photographs and a videotape.

1. The admission of inflammatory and gruesome photographs and a videotape into a capital trial violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 9, 10, and 16, Article I of the Ohio Constitution.

Assignment of Error No. XVIII: The trial court erred to Appellant Loza's prejudice when it imposed the death penalty after misconduct by the prosecutor at the penalty phase.

1. The prosecutor's comments at the penalty phase of Appellant Loza's trial established a pattern of misconduct. The prosecutor's misconduct violated Mr. Loza's rights against self-incrimination, to a fair trial, against cruel and unusual punishment, and to due process under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, respectively, as well as Sections 5, 9, and 10 of the Ohio Constitution.

Assignment of Error No. XIX: The trial court erred to the prejudice of Appellant Loza by applying an erroneous standard in determining appellant's motion to suppress.

1. The trial court's comments in overruling the motion to suppress evidenced an erroneous standard for the constitutional principles at issue in violation of the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 9, 14, and 16, Article I of the Ohio Constitution.

Assignment of Error No. XX: The trial court erred to the prejudice of Appellant Loza by failing to state its essential factual findings on the record when it overruled Appellant's motion to suppress.

1. The trial court was required to state its essential factual findings on the record when it overruled Appellant Loza's motion to suppress. Its failure to do so violated Rule 12(E) of the Rules of Criminal Procedure, the Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 16, Article I of the Ohio Constitution.

Assignment of Error No. XXI: The trial court erred to the prejudice of Appellant Loza by giving an instruction pursuant to State v. Howard (1989), 42 Ohio St.3d 18, during the jury's guilt deliberations.

1. A trial court's supplemental instructions must respond to the question posed by the jury during its deliberations. Any instruction which exceeds this requirement improperly impinges on the jury deliberations in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 5, 9, and 16, Article I of the Ohio Constitution.

Assignment of Error No. XXII: The trial court erred to the prejudice of Appellant Loza by overruling a request by appellant to submit a questionnaire to prospective jurors.

1. The trial court's refusal to submit appellant's questionnaire to prospective jurors infringed upon Appellant Loza's right to due process and denied him a fair trial as guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 9 and 16, Article I of the Ohio Constitution.

Assignment of Error No. XXIII: The trial court erred to the prejudice of Appellant Loza by admitting, as scientific evidence, the opinion testimony of questioned document examiner Stephen Greene.

1. The field of questioned document examination lacks reliability and evidence based on questioned document examination must be inadmissible unless the proponent of the evidence demonstrates its reliability.

Assignment of Error No. XXIV: The trial court erred to the prejudice of Appellant Loza by failing to ensure that he received the effective assistance of counsel at his capital trial.

1. Defense counsel's actions and omissions at Mr. Loza's capital trial deprived him of the effective assistance of counsel as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 9, 10, and 16, Article I of the Ohio Constitution.

Assignment of Error No. XXV: The trial court erred to the prejudice of Appellant Loza by admitting his seized personal correspondence written while he was a pretrial detainee in the Butler County Jail.

1. Letters written by an inmate while awaiting trial cannot be seized, copied, and admitted at trial absent a legitimate penal interest or a substantial government interest. To admit such evidence without meeting these requirements violates the First and Fourteenth Amendments to the United States Constitution and Sections 11 and 14, Article I of the Ohio Constitution.

Assignment of Error No. XXVI: The trial court erred to the prejudice of Appellant Loza by imposing his life sentence and three year term of imprisonment consecutively to the death sentences in his case.

1. Pursuant to R.C. 2929.41 a term of imprisonment can be made consecutive only to another term of imprisonment. A death sentence is not a term of imprisonment. Therefore, a trial court cannot legally impose a life term and a three year term of imprisonment to be served consecutively to a sentence of death.

Assignment of Error No. XXVII: The trial court erred to the prejudice of Appellant Loza by instructing the jury at both the guilt and penalty phases on the statutory definition of reasonable doubt in R.C. 2901.05.

1. The statutory definition of reasonable doubt in R.C. 2901.05 reflects a clear and convincing evidence standard which allows jurors to return a conviction and death sentence based on a degree of proof be law that required by the Due Process Clause of the Fourteenth Amendment.

Assignment of Error No. XXVIII: The trial court erred to the prejudice of Appellant Loza in failing to dismiss his capital indictment based on the proportionality process in Ohio.

1. The Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, Sections 10 and 16, Article I of the Ohio Constitution and Ohio Revised Code, Section 2929.05 guarantee a convicted capital defendant a fair and impartial review of his death sentence. The statutorily mandated proportionality process in Ohio does not comport with this constitutional requirement and thus is fatally flawed.

Assignment of Error No. XXIX: The trial court erred to the prejudice of Appellant Loza in failing to dismiss his capital indictment because the capital statutory scheme in Ohio is unconstitutional.

1. The Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution establish the requirements for a valid death penalty scheme. Ohio Revised Code, Section 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04, and 2929.05, Ohio's statutory provisions governing the imposition of the death penalty, do not meet the prescribed constitutional requirements and are unconstitutional, both on their face and as applied.

On April 19, 1993, the appellate court issued an opinion affirming petitioner's convictions and sentences, and further finding that the aggravating circumstances outweighed the mitigating factors and that petitioner's death sentences were not disproportionate. State v. Loza, Case No. CA91-11-198 (Ohio App. 12 Dist.); J.A. Vol. I, at 556.

Represented again by the Ohio Public Defender's Office, petitioner pursued his second appeal of right to the Supreme Court of Ohio. Counsel for petitioner raised the following propositions of law:

Proposition of Law No. I: Psychological testimony concerning the voluntariness of a confession must be allowed at the guilt phase of a capital trial. To preclude such testimony violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 9, 10, and 16 of the Ohio Constitution.

Proposition of Law No. II: Where the State relies heavily on a defendant's coerced confession to convict, the admission of the defendant's confession at trial is plain error in violation of the defendant's right to due process under the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution.

Proposition of Law No. III: A defendant's right to due process under the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution is violated where he is convicted on insufficient evidence.

Proposition of Law No. IV: When the prosecutor knowingly withholds exculpatory and impeachment evidence from a defendant and the defendant is so prejudiced by that misconduct that the defendant must request [a mistrial], the Double Jeopardy Clause of Article I, Section 10 of the Ohio Constitution bars retrial regardless of the prosecutor's intent to provoke a mistrial. The prosecutor's intentional misconduct that is designed to invite a defendant's mistrial motion also creates a bar to retrial under the Double Jeopardy Clause of Article I, Section 10 of the Ohio Constitution and the Fifth and Fourteenth Amendments of the United States Constitution.

Proposition of Law No. V: Where a suspect's confession is coerced, his contemporaneous consent to a search of his purported effects is invalid and the fruits of the search must be suppressed in accordance with the Fourth and Fourteenth Amendments of the United States Constitution and Article I, Sections 14 and 16 of the Ohio Constitution.

Proposition of Law No. VI: A police officer's warrantless arrest of a suspect without probable cause is unreasonable in violation of the Fourth and Fourteenth Amendments of the United States Constitution and Article I, Section 14 of the Ohio Constitution, and all unattenuated fruits of the arrest must be suppressed.

Proposition of Law No. VII: A statement made by a suspect to a police officer during custodial interrogation, without the suspect having been warned of his rights, violates the suspect's rights against self-incrimination under the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Ohio Constitution.

Proposition of Law No. VIII: The trial court's comments in overruling the motion to suppress evidenced an erroneous standard for the constitutional principles at issue in the motion in violation of the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 9, 14, and 16 of the Ohio Constitution.

Proposition of Law No. IX: The trial court was required to state its essential factual findings on the record when it overruled Appellant Loza's motion to suppress. Its failure to do so violated Rule 12(E) of the Rules of Criminal Procedure, the Eighth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 9 and 16 of the Ohio Constitution.

Proposition of Law No. X: The trial court's refusal to submit appellant's questionnaire to prospective jurors infringed upon Appellant Loza's right to due process and denied him a fair trial as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 9 and 16 of the Ohio Constitution.

Proposition of Law No. XI: A juror that believes the responsibility for determining punishment in a capital case rests with the trial court should not be permitted to serve on a capital jury. Any death sentence returned by a jury containing such a juror violates the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 9, 10, and 16 of the Ohio Constitution.

Proposition of Law No. XII: A trial court must conduct a voir dire when it learns that a seated juror has a problem that might affect the juror's ability to be impartial. Failure to conduct such a voir dire violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 5, 9, and 16 of the Ohio Constitution.

Proposition of Law No. XIII: When irrelevant and highly inflammatory evidence is presented at the guilt phase of a capital trial, it taints the guilt phase, has a prejudicial carry-over effect on the penalty phase, and operates to deny the capital defendant a fair trial on the issues of both his guilt and sentence.

Proposition of Law No. XIV: The admission of inflammatory and gruesome photographs and a videotape into a capital trial violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 9, 10, and 16 of the Ohio Constitution.

Proposition of Law No. XV: The field of questioned document examination lacks reliability and evidence based on questioned document examination must be inadmissible unless the proponent of the evidence demonstrates its reliability.

Proposition of Law No. XVI: Letters written by an inmate while awaiting trial cannot be seized, copied, and admitted at trial absent a legitimate penal interest or a substantial government interest. To admit such evidence without meeting these requirements violates the First, Fourth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 14 of the Ohio Constitution.

Proposition of Law No. XVII: A defendant's conviction must be reversed where misconduct by the prosecutor deprives that defendant of a fair trial and violates the defendant's rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.

Proposition of Law No. XVIII: A defendant's right to a fair trial by a jury, his right to a reliable death sentence, and the right to due process under the Sixth, Eighth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 5, 9, and 10 of the Ohio Constitution are violated where the trial court encourages note-taking and permits the jury to deliberate with notes that were taken without the trial court having supervised the content of the notes.

Proposition of Law No. XIX: A defendant's right to a fair trial, to a reliable death sentence, and to due process under the Sixth, Eighth, and Fourteenth Amendments of the United States Constitution and under Article I, Sections 5, 9, and 16 of the Ohio Constitution are violated where the trial court replays an entire videotaped statement to the jury during its deliberations without first asking why the jury wants to review the videotape and without instructing the jury not to overemphasize the videotape simply because it was replayed.

Proposition of Law No. XX: A trial court instruction given during the guilt phase that improperly and inaccurately refers to punishment violates the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 9, 10, and 16 of the Ohio Constitution.

Proposition of Law No. XXI: The trial court failed to instruct the jury on the offense of contributing to the delinquency or unruliness of a minor as charged in the Ohio Rev. Code Ann. Section 2929.04(A)(3) specification. This failure to so instruct deprived Appellant Loza of his right to a jury trial, as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 5 of the Ohio Constitution, his right to have his guilt determined beyond a reasonable doubt as required by the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution, and his right to trial by indictment as guaranteed by Article I, Section 10 of the Ohio Constitution.

Proposition of Law No. XXII: The trial court's instruction on the element of "purpose" created an unconstitutional conclusive presumption and relieved the State of its burden to prove this element beyond a reasonable doubt as required by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 9, 10, and 16 of the Ohio Constitution.

Proposition of Law No. XXIII: A trial court's supplemental instructions must respond to the question posed by the jury during its deliberations. Any instruction which exceeds this requirement improperly impinges on the jury deliberations in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 5, 9, and 16 of the Ohio Constitution.

Proposition of Law No. XXIV: A capital defendant's future dangerousness is irrelevant to any issue at the sentencing phase of a capital case in Ohio. Such evidence constitutes a nonstatutory aggravating circumstance and destroys any guided discretion of the jury in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 5, 9, and 16 of the Ohio Constitution.

Proposition of Law No. XXV: A death sentence must be reversed and the case remanded for the imposition of a life sentence where, in a jury trial, misconduct by the prosecutor denies a defendant his right to a fair and reliable penalty determination in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 5, 9, 10, and 16 of the Ohio Constitution.

Proposition of Law No. XXVI: The trial court discounted certain mitigating evidence offered by Appellant Loza because it was not relevant to the appropriateness of the death penalty. It was improper for the trial court to use this standard and it violated appellant's rights as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and Sections 9, 10, and 16, Article I of the Ohio Constitution.

Proposition of Law No. XXVII: Defense counsel's actions and omissions at Mr. Loza's capital trial deprived him of the effective assistance of counsel as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 9, 10, and 16 of the Ohio Constitution.

Proposition of Law No. XXVIII: Pursuant to Ohio Rev. Code Ann. Section 2929.41 a term of imprisonment can be made consecutive only to another term of imprisonment. A death sentence is not a term of imprisonment. Therefore, a trial court cannot legally impose a life term and a three year term of imprisonment to be served consecutively to a sentence of death.

Proposition of Law No. XXIX: The sentences of death imposed on Appellant Loza were unreliable and inappropriate. The death sentences in his case violate the Eighth and Fourteenth Amendments to the United States Constitution, Article I, Sections 9 and 16 of the Ohio Constitution and Ohio Rev. Code Ann. Section 2929.05.

Proposition of Law No. XXX: The review conducted of Appellant Loza's death sentence by the Twelfth District Court of Appeals failed to satisfy the dictates of Ohio Rev. Code Ann. Section 2929.05 and the Eighth and Fourteenth Amendments to the United States Constitution.

Proposition of Law No. XXXI: The statutory definition of reasonable doubt in Ohio Rev. Code Ann. Section 2901.05 reflects a clear and convincing evidence standard which allows jurors to return a conviction and death sentence based on a degree of proof below that required by the Due Process Clause of the Fourteenth Amendment.

Proposition of Law No. XXXII: The Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, Sections 10 and 16, Article I of the Ohio Constitution, and Ohio Revised Code, Section 2929.05 guarantee a convicted capital defendant a fair and impartial review of this death sentence. The statutorily mandated proportionality process in Ohio does not comport with this constitutional requirement and this is fatally flawed.

Proposition of Law No. XXXIII: The Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution establish the requirements for a valid death penalty scheme. Ohio Rev. Code Ann. Sections 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04, and 2929.05, Ohio's statutory provisions governing the imposition of the death penalty, do not meet the prescribed constitutional requirements and are unconstitutional, both on their face and as applied.

On November 30, 1994, the Ohio Supreme Court affirmed petitioner's convictions and sentences, and further concluded that the death sentences were appropriate and proportionate. State v. Loza, 71 Ohio St.3d 61 (1994); J.A. Vol. III, at 1223. On December 28, 1994, the Ohio Supreme Court summarily denied petitioner's motion for reconsideration. J.A. Vol. III, at 1263.

B. Postconviction Proceedings

On November 27, 1995, petitioner filed a postconviction action to vacate or set aside the judgment or his sentence pursuant to R.C. § 2953.21 He raised the following claims for relief:

First Claim for Relief. Petitioner Loza's convictions and/or sentence are void or voidable because his trial attorneys were deficient in failing to obtain the services of a cultural expert to testify at both the guilt and penalty phases of Loza's trial. During the guilt phase, a cultural expert could have provided important evidence as to why Loza's Hispanic culture and his unique situation within that culture influenced him to protect his unborn child and its mother. This evidence would have supported the claim that Mr. Loza's confession should have been suppressed because it was involuntary and coerced. In the alternative, this same evidence from a cultural expert would have encouraged the jurors to disregard or give very little weight to Loza's confession because outside pressures made it unreliable. Finally, a cultural expert would have provided Butler County, Ohio jurors with information about Mexican culture, the immigrant experience, as well as the realities of gang involvement in most Hispanic communities. This would have provided better understanding and a cultural context in which to consider available mitigating evidence from Jose's family. The failure to investigate and present the above was not a matter of trial strategy.

Second Claim for Relief. Petitioner Loza's convictions and/or sentences are void or voidable because his trial attorneys were deficient in failing to assert that Petitioner's statement should be suppressed and was involuntary due to the coercive atmosphere in which it was given. Expert psychological evidence in support of the argument was or could have been readily available.

Third Claim for Relief. Petitioner Loza's convictions and/or sentences are void or voidable because trial counsel were deficient in their presentation of mitigation witnesses from the Loza family. More specifically, trial counsel failed to present testimony from Mr. Loza's grandmother who raised him much of his life as well as testimony from his sister, Beatriz Loza and his brother, Jesus Loza.

Fourth Claim for Relief. Petitioner Loza's convictions and/or sentences are void or voidable because the Ohio death penalty is in violation of international laws and Article VI of the United States Constitution.

Fifth Claim for Relief. Petitioner Loza's convictions and/or sentences are void or voidable because trial counsel were deficient by failing to raise the international law issue when Mr. Loza was a Mexican citizen and Mexico was a signatory nation of the Organization of American States Treaty and the American Declaration of the Rights and Duties of Man.

Sixth Claim for Relief. Petitioner Loza's convictions and/or sentences are void or voidable because the death penalty is disproportionately meted out to those defendants who are racial minorities and/or those defendants who are accused of killing white victims. This disparity exists in Butler County, the State of Ohio, and all of the thirty-seven (37) states in the United States that have provisions for capital punishment.

Seventh Claim for Relief. Petitioner Loza's convictions and/or sentences are void or voidable because the jury selection utilized in Butler County results in petit juries that are racially biased. The racial composition of capital juries indicates that the jury selection process in Butler County is purposefully overrepresented by whites to an extent that is statistically very unlikely to have been random, given the demographic composition of the area. This skewing resulted in the selection of a biased petit jury which convicted and sentenced Petitioner to death.

Eighth Claim for Relief. Petitioner Loza's convictions and/or sentences are void or voidable because Mr. Loza is actually innocent of the crime of aggravated murder in the deaths of Georgia Davis, Cheryl Senteno, Gary Mullins, and Jerri Luanna Jackson. Although Mr. Loza sought to protect Dorothy Jackson at trial, letters which Mr. Loza wrote to Ms. Jackson shortly thereafter show that he acknowledged her involvement in the murders. These letters also provide evidence of Loza's motivation for confessing. Furthermore, Jose's confession was the result of coercion.

Ninth Claim for Relief. Petitioner Loza's convictions and/or sentences are void or voidable because the use of the electric chair to impose a death sentence constitutes cruel and unusual punishment.

Tenth Claim for Relief. Petitioner Loza's convictions and/or sentences are void or voidable because death sentences in Ohio are racially biased against Hispanics. Jose Loza was born in Mexico and remains a Mexican citizen to this day. In addition to Petitioner, other inmates on Ohio's death row are of Hispanic descent. Therefore, 3 out of the 134 death row inmates, or 2.23%, are Hispanic. In contrast, Hispanics made up only 1.2% of the population of the State of Ohio. Furthermore, Butler County, where the instant offense occurred has a total Hispanic population of only 1,467 persons, or .5% of the total population. Not a single inmate on Ohio's death row has been convicted of the murder of a Hispanic.

Eleventh Claim for Relief. Petitioner Loza's convictions and/or sentences are void or voidable because trial counsel were deficient in failing to investigate, present, and request factual development of claims regarding the racism which appears to be inherent in Butler County in its enforcement of th death penalty. An effective investigation would have uncovered the following items:

a. Minorities are underrepresented on petit juries;

b. Minorities are overrepresented on death row; c. The State does not seek death as often when a minority is the victim.

Twelfth Claim for Relief. Petitioner Loza's convictions and/or sentences are void or voidable because the State of Ohio used inaccurate and/or false testimony to convict Petitioner Loza and sentence him to death. Witness Dorothy Jackson testified at trial that Mr. Loza confessed to her that he killed her family. Evidence dehors the record shows that it was Jackson who confessed to Loza that she committed the murders on January 16, 1991.

Thirteenth Claim for Relief. Petitioner Loza's convictions and/or sentences are void or voidable because the cumulative effect of the errors and omissions as presented in this petition in paragraphs one (1) through eighty (80) have been prejudicial to the Petitioner and have denied the Petitioner his rights as secured by the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution.

On September 24, 1996, the trial court issued findings of fact and conclusions of law denying petitioner's postconviction action. J.A. Vol. III, at 1604.

Petitioner appealed to the Court of Appeals for the Twelfth Appellate District, and raised the following assignments of error:

Assignment of Error No. 1: The trial court erred in dismissing appellant's first, second, and third claims for relief in violation of the Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution.

1. A treaty signed by the United States Government is the law of the land.

2. A foreign arrestee is entitled to a new trial when his rights under the Vienna Convention have been blatantly ignored and violated.

3. A party alleging a violation of the Vienna Convention need not establish prejudice.

Assignment of Error No. 2: The ineffective assistance of counsel provided to Appellant Loza violated his rights to a fair and impartial trial and sentence, as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 5, 9, 10, and 16 of the Ohio Constitution.

1. Trial counsel are ineffective when they fail to investigate and present available cultural evidence.

2. Trial counsel are ineffective when they fail to investigate and present available evidence that a defendant's confession is coercive and unreliable.

3. Trial counsel are ineffective when they fail to investigate and present available mitigating evidence.

Assignment of Error No. 3: The trial court erred in denying appellant's sixth, seventh, tenth, and eleventh claims for relief in violation of the Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution.

1. A state may not base their charging decision on the race of the victim.

2. A state may not exclude minorities from sitting on juries in capital cases.

3. Ohio death sentences disproportionately affect Hispanics.

4. Trial counsel are ineffective when they fail to raise race claims with merit.

Assignment of Error No. 4: The trial court erred in denying appellant's requests for discovery concerning claims of racial discrimination in Butler County in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 1, 2, 9, 10, 16, and 20 of the Ohio Constitution.

1. An individual is entitled to discovery on a claim of racial discrimination when he pleads a colorable claim of racial discrimination.

Assignment of Error No. 5: The trial court erred in denying appellant's twelfth claim for relief in violation of the Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution.

1. The use of false evidence to obtain a conviction is recognized by the constitution.

2. A trial court errs when it denies a false evidence claim supported by cogent evidence dehors the record inappropriately relying on the hearsay rules.

Assignment of Error No. 6: The trial court erred in denying appellant's ninth claim for relief in violation of the Eighth Amendment of the United States Constitution and Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution.

1. Death by electric chair constitutes cruel and unusual punishment.

Assignment of Error No. 7: The trial court erred in denying appellant's eighth claim for relief in violation of the Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution.

1. A claim of actual innocence claim has a free-standing basis in the constitution.

2. A trial court errs when it denies an actual innocence claim supported by cogent evidence dehors the record inappropriately relying on the hearsay rules.

Assignment of Error No. 8: The trial court erred in denying appellant's requests for discovery in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 1, 2, 9, 10, 16, and 20 of the Ohio Constitution.

1. A general discovery request filed concurrently with a postconviction petition is not premature.

2. Steckman is not the controlling precedent when records have previously been released to a party.

Assignment of Error No. 9: Ohio does not provide an adequate corrective process in violation of the Due Process, the Equal Protection, and the Supremacy Clauses of the United States Constitution and Article I, Section 2, 10, and 16 of the Ohio Constitution.

1. A state must afford a criminal defendant an adequate corrective process.

Assignment of Error No. 10: The trial court erred in granting the state's motion to dismiss in violation of the Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution.

1. A "Motion to Dismiss" is improper when such motion does not conform to the Ohio Rules of Civil Procedure.

Assignment of Error No. 11: The trial court erred in failing to grant appellant's motion to strike and in alternatively applying the doctrine of res judicata to some of appellant's claims for relief, thus violating his rights under the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 1, 2, 9, 10, 16, and 20 of the Ohio Constitution.

1. Res judicata cannot be asserted by motion under Civil Rule 12(B).

2. The doctrine of res judicata cannot be applied alternatively to bar appellant's claims for relief when those claims were supported by evidence dehors the record.

Assignment of Error No. 12: The trial court erred when it denied appellant an evidentiary hearing on his petition for post-conviction relief, thus violating his rights under the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 1, 2, 9, 10, 16, and 20 of the Ohio Constitution.

1. A trial court cannot deny an evidentiary hearing to a postconviction petitioner when his petition is sufficient on its face to raise constitutional claims which depend on factual allegations that cannot be determined from the record.

Assignment of Error No. 13: The cumulative error of appellant's substantive claims merit reversal or a remand for a proper post-conviction process.

1. Cumulative error merits reversal.

On October 13, 1997, the court of appeals issued an opinion affirming the trial court's judgment denying petitioner's postconviction action. State v. Loza, Case No. CA96-10-214 (Ohio App. 12 Dist. Oct. 13, 1997); J.A. Vol. IV, at 1990-2012.

Petitioner sought discretionary review by the Supreme Court of Ohio and filed his memorandum in support of jurisdiction on November 26, 1997. In that memorandum, petitioner raised the following propositions of law:

Proposition of Law 1: When a death penalty is affirmed by denial of a petition for post-conviction relief, a post-conviction petitioner has an appeal as a matter of right to the Supreme Court of Ohio.

Proposition of Law 2: The trial court and court of appeals erred in finding that Ohio can ignore a federal treaty in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution.

1. A treaty signed by the United States Government is the law of the land.

2. Enforcement of the Rights in the Treaty is necessary to protect the accused's constitutional rights at trial.

3. The Middletown Police violated Jose Loza's rights under the Vienna Convention, and his confession was therefore inadmissible at trial.

4. Although a party alleging a violation of the Vienna Convention need not establish prejudice, Loza has shown that he was prejudiced by this violation.

5. A Treaty Violation is a cognizable constitutional claim and the Court of Appeals inappropriately considered and accepted the State's waived argument that the Vienna Convention violation is not cognizable in a post-conviction petition.

Proposition of Law 3: The ineffective assistance of counsel provided to Appellant Loza violated his rights to due process and a fair trial and sentence, as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 5, 9, 10, and 16 of the Ohio Constitution.

1. Trial counsel are ineffective when they fail to investigate and present available cultural evidence.

2. Trial counsel are ineffective when they fail to investigate and present available evidence that a defendant's confession is coerced and unreliable.

3. Trial counsel are ineffective when they fail to investigate and present available mitigating evidence.

Proposition of Law 4: The trial court and court of appeals erred in denying appellant's claims of racial discrimination in violation of the Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution.

1. A state may not base their charging decision on the race of the victim.

2. A state may not exclude minorities from sitting on juries in capital cases.

3. Death sentences [are] disproportionate for Hispanics in Ohio.

4. Trial counsel are ineffective when they fail to raise race claims with merit.

Proposition of Law 5: The trial court and court of appeals erred in denying appellant's requests for discovery concerning claims of racial discrimination in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 1, 2, 9, 10, 16, and 20 of the Ohio Constitution.

1. An individual is entitled to discovery on a claim of racial discrimination when he pleads a colorable claim of racial discrimination.

Proposition of Law 6: The trial court and court of appeals erred in denying appellant's false evidence allegation in violation of the Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution.

1. The use of false evidence to obtain a conviction is recognized by the Constitution.

2. A trial court errs when it denies a false evidence claim supported by cogent evidence dehors the record inappropriately relying on the hearsay rules.

Proposition of Law No. 7: The trial court and court of appeals erred in denying appellant's challenge to Ohio's use of the electric chair in violation of the Eighth Amendment of the United States Constitution and Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution.

Proposition of Law No. 8: The trial court and court of appeals erred in denying appellant's actual innocence claim in violation of the Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution.

1. A trial court errs when it denies an actual innocence claim supported by cogent evidence dehors the record inappropriately relying on the hearsay rules.

Proposition of Law No. 9: The trial court and court of appeals erred in denying appellant's requests for discovery in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 1, 2, 9, 10, 16, and 20 of the Ohio Constitution.

1. A trial court cannot summarily dismiss a postconviction petition without affording the petitioner the opportunity to conduct discovery of facts necessary to the petitioner's claims and to withstand a motion for judgment by the respondent.

2. Steckman is not the controlling precedent when records have previously been released to a party.

Proposition of Law 10: Ohio's post-conviction does not provide an adequate corrective process in violation of the Due Process, the Equal Protection, and the Supremacy Clauses of the United States Constitution and Article I, Sections 2, 10, and 16 of the Ohio Constitution.

1. A state must afford a criminal defendant an adequate corrective process.

Proposition of Law 11: The trial court and court of appeals erred in permitting the state to file a motion to dismiss in violation of the Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution.

1. A "Motion to Dismiss" is improper when such motion does not conform to the Ohio Rules of Civil Procedure.

Proposition of Law No. 12: The trial court and court of appeals erred in failing to grant appellant's motion to strike and in alternatively applying the doctrine of res judicata to some of appellant's claims for relief, thus violating his rights under the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 1, 2, 9, 10, 16, and 20 of the Ohio Constitution.

1. Res Judicata cannot be asserted by motion under Civil Rule 12(B).

2. The doctrine of res judicata cannot be applied alternatively to bar Appellant's claims for relief when those claims were supported by evidence dehors the record.

Proposition of Law 13: The trial court and court of appeals erred in denying appellant an evidentiary hearing on his petition for post-conviction relief, thus violating his rights under the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 1, 2, 9, 10, 16, and 20 of the Ohio Constitution.

1. A trial court cannot deny an evidentiary hearing to a post-conviction petitioner when his petition is sufficient on its face to raise constitutional claims which depend on factual allegations that cannot be determined from the record.

Proposition of Law 14: The cumulative error of appellant's substantive claims merit reversal or a remand for a proper post-conviction process.

1. Cumulative error merits reversal.

Memorandum in Support of Jurisdiction, J.A. Vol. IV, at 2016. On January 28, 1998, the Supreme Court of Ohio issued an entry summarily declining to accept jurisdiction over petitioner's appeal. State v. Loza, Case No. 97-2470 (Jan. 28, 1998), Vol. IV, Exh. KK, at 2199.

III. Habeas Corpus Petition

Petitioner initiated these proceedings on February 12, 1998 by filing an application to proceed in forma pauperis, a motion for the appointment of counsel, and a notice of his intention to file a habeas corpus petition. On March 24, 1998, counsel were appointed to represent petitioner and, represented by those new attorneys, petitioner filed his formal habeas corpus petition on April 17, 1998. Petitioner raises thirty-four claims for relief:

First Ground for Relief. The trial court erroneously deprived petitioner of his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution when it prohibited the introduction to the jury of defense evidence regarding the reliability and credibility of Loza's confession.

Second Ground for Relief. The admission of a coerced and involuntary statement at his capital trial denied petitioner of his rights as guaranteed by the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

A. Loza's statement was the result of coercion.

B. The trial court erred by denying petitioner's motion to suppress using an erroneous legal standard in deprivation of petitioner's rights as guaranteed by the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution.

C. The trial court failed to explain the suppression denial.

Third Ground for Relief. The State of Ohio ignored its international treaty obligations thereby depriving petitioner of his rights as guaranteed by the Supremacy Clause, and the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Fourth Ground for Relief. Petitioner was deprived of the right to the effective assistance of counsel as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

A. Trial counsel are ineffective when they fail to investigate and present available cultural evidence.

B. Trial counsel are ineffective when they fail to investigate and present available mitigating evidence.

Fifth Ground for Relief. The suppression of exculpatory, impeachment evidence that leads to the grant of a defense request for a mistrial creates a bar to retrial under the double jeopardy clause as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.

Sixth Ground for Relief. There is insufficient evidence to sustain petitioner's convictions and death sentences in violation of his rights as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution.

Seventh Ground for Relief. The trial court erred in failing to instruct the jury on the offense of contributing to the delinquency of a minor when that crime was the underlying specification to four aggravated murder counts thereby depriving petitioner of his rights to a trial by jury and to have his guilt determined beyond a reasonable doubt as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Eighth Ground for Relief. The trial court's purpose instruction created conclusive presumption of guilt and relieved the State of its burden to prove guilt beyond a reasonable doubt thereby depriving petitioner of his rights as guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.

Ninth Ground for Relief. The trial court's supplemental jury instructions improperly impinged on the jury deliberations thereby depriving petitioner of his rights as guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.

Tenth Ground for Relief. The trial court erred in instructing the jury on punishment at the culpability phase depriving petitioner of his rights as guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.

Eleventh Ground for Relief. The reasonable doubt instruction permitted the jurors in petitioner's case to return a verdict of guilty on a degree of proof below a reasonable doubt thereby depriving petitioner of his rights as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Twelfth Ground for Relief. The warrantless arrest of petitioner by the Middletown police in Warren County deprived him of his rights as guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution.

A. The police lacked probable cause to arrest Jose Loza.

B. Detective Knabel lacked a reasonable suspicion to seize Loza.

C. Detective Knabel's intrusive actions exceeded the boundaries of Terry.

D. The fruits of the illegal seizure must be suppressed.

Thirteenth Ground for Relief. The police failed to inform petitioner of his Miranda rights during a custodial interrogation in violation of his rights as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.

Fourteenth Ground for Relief. Petitioner was deprived of his rights as guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution when the police obtained a consent to search after eliciting a coercive confession.

Fifteenth Ground for Relief. Allowing a juror to sit in a death case who believes that the responsibility for imposing the death sentence rests solely with the trial court deprives petitioner's rights as guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.

Sixteenth Ground for Relief. The trial court erred in failing to conduct a voir dire of a juror when it learned that a seated juror had a problem that may impact the juror's impartiality in deprivation of petitioner's rights as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Seventeenth Ground for Relief. Invidious racial discrimination infects [the] death penalty in Ohio and in petitioner's case, thereby depriving petitioner of his rights as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

A. Racism in Butler County.

B. Death sentences disproportionate for Hispanics in Ohio.

C. Fair cross-section violation.

D. Equal Protection violation.

Eighteenth Ground for Relief. The seizure of letters written by petitioner while he was incarcerated without a legitimate penal interest deprived petitioner of his rights as guaranteed by the First, Fourth, and Fourteenth Amendments.

Nineteenth Ground for Relief. Prosecutorial misconduct during petitioner's culpability trial deprived petitioner of his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Twentieth Ground for Relief. The trial court erred by allowing the admission of irrelevant and inflammatory materials that impacted on the culpability and penalty phases in deprivation of petitioner's rights as guaranteed by the Sixth, Eighth, and Fourteenth Amendments

Twenty-First Ground for Relief. The trial court erred by allowing the admission of irrelevant and inflammatory gruesome materials that impacted on the culpability and penalty phases in deprivation of petitioner's rights as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Twenty-Second Ground for Relief. The trial court erred in replaying the entire videotape statement during the jury's deliberations without first inquiring of the jury why the statement needed to be replayed and instructing the jury not to overemphasize the statement thereby depriving petitioner of his rights as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Twenty-Third Ground for Relief. Petitioner was denied his right to the effective assistance of counsel as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

1. Failure to object to the opinion testimony of questioned document examiner Stephen Greene.

2. Failure to object to all irrelevant and unproven other criminal acts admitted against petitioner.

3. Failure to object to all gruesome photographs.

4. Failure to object to juror Nevaline Halcomb serving on Loza's jury.

5. Failure to object to letters written by Loza being admitted into evidence.

6. Failure to request a voir dire of juror Zecher.

7. Failure to object to definition of reasonable doubt used in the trial court's instructions.

8. Failure to object to the improper standard used by the trial court in overruling the motion to suppress.

9. Failure to object to the insufficient factual findings made by the trial court on the motion to suppress.

10. Failure to object to the trial court's reference to punishment at the guilt phase.

11. Failure to object to the trial court's failure to instruct on one of the offenses in Ohio Rev. Code Ann. Section 2929.04(A)(3) specification.

12. Failure to object to the issue of future dangerousness introduced at the penalty phase.

13. Failure to object to the admission of statements by Loza during custodial interrogation without Loza having first been warned pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).

14. Failure to move for acquittal on the basis of insufficient scientific evidence, Dorothy Jackson's legally insufficient testimony, Loza's lack of detailed information about the crimes, and because Loza's affirmative defense to the child stealing death specification was met.

15. Failure to object to the prosecutorial misconduct at the penalty phase.

Twenty-Fourth Ground for Relief. The presentation by the State of materially false evidence deprived petitioner of his rights as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Twenty-Fifth Ground for Relief. The jury considered the non-statutory aggravating circumstance of future dangerousness thereby depriving petitioner of his rights as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Twenty-Sixth Ground for Relief. Prosecutorial misconduct in the penalty phase [deprived] petitioner of his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Twenty-Seventh Ground for Relief. The trial court erroneously failed to give effect to presented mitigating evidence thereby depriving petitioner of his rights as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution.

Twenty-Eighth Ground for Relief. The death sentences are inappropriate and thereby deprive petitioner of his rights as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution.

Twenty-Ninth Ground for Relief. The appellate court failed to conduct the direct appellate review appropriately and thereby deprived petitioner of his rights as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution.

Thirtieth Ground for Relief. The proportionality review conducted in Ohio deprives petitioner of his rights as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution.

Thirty-First Ground for Relief. Executing an individual via the electric chair offends contemporary standard of decency in violation of petitioner's rights as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution.

Thirty-Second Ground for Relief. The Ohio Death Penalty statute on its face and as applied deprives petitioner of his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Thirty-Third Ground for Relief. The State of Ohio does not provide an adequate corrective process for the consideration of post-conviction claims in violation of petitioner's rights as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution.

Thirty-Fourth Ground for Relief. The cumulative effect of the errors visited upon petitioner's proceedings have deprived petitioner of his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Respondent file a return of writ on September 1, 1998 arguing that some of petitioner's claims are procedurally barred and that, in any event, all of his claims are without merit.

IV. Procedural Default Discussion

It does not appear that every claim petitioner has raised in his habeas corpus petition was presented to the Ohio courts either during the direct appeal or on collateral review. As a general matter, a defendant who is convicted in Ohio of a criminal offense has available to him more than one method of challenging that conviction. Claims appearing on the face of the record must be raised on direct appeal, or they will be waived under Ohio's doctrine of res judicata. State v. Perry, 10 Ohio St.2d 175 (1967). Issues that must be raised in a postconviction action pursuant to R.C. § 2953.21 include claims that do not appear on the face of the record and claims of ineffective assistance of trial counsel where the defendant was represented on direct appeal by the same attorney who represented him at trial. State v. Cole, 2 Ohio St.3d 112 (1982). In 1992, a third procedure of review emerged. Claims of ineffective assistance of appellate counsel must be presented to the appellate court in a motion for delayed reconsideration pursuant to State v. Murnahan, 63 Ohio St.3d 60 (1992) and Ohio R. App. P. 26(B).

In addition to raising each claim in the appropriate forum, a habeas litigant, in order to preserve his constitutional claims for habeas review, must present those claims to the state's highest court. O'Sullivan v. Boerckel, 526 U.S. 838 (1999). Thus, the judgment of conviction on direct appeal, and any adverse decision rendered by the trial court in postconviction, must be appealed to both the Ohio Court of Appeals and the Supreme Court of Ohio. Likewise, any adverse decision rendered by the Ohio Court of Appeals on a motion for delayed reconsideration must be timely appealed to the Supreme Court of Ohio.

In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present his claims, then his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971). But if, because of a procedural default, the petitioner can no longer present his claims to the state courts, then he has also waived those claims for purposes of federal habeas corpus review, unless he can demonstrate both cause for the procedural default, as well as actual prejudice from the alleged constitutional error. Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a federal habeas claim is waived by the petitioner's failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). "First, the court must decide that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule." Id. Second, the Court must determine whether the state courts actually enforced the state procedural sanction. Id. Third, it must be decided whether the state procedural forfeiture is an adequate and independent state ground upon which the state can rely to foreclose review of a federal constitutional claim. Id. Finally, if the Court has determined that a state procedural rule was not complied with, and that the rule was an adequate and independent state ground, then the petitioner must demonstrate that there was cause for him not to follow the procedural rule, and that he was actually prejudiced by the alleged constitutional error. Id. This "cause and prejudice" analysis applies to failures to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir.), cert. denied, 474 U.S. 831 (1985).

Respondent alleges that six of petitioner's claims are procedurally defaulted, i.e., claims 4, 7, 19, 20, 26, and 33. The Court will address each of the six claims individually to determine whether those claims are subject to the procedural defaults alleged by respondent and, if so, whether petitioner can establish cause and prejudice to excuse the default.

A. Ground Four — Ineffective Assistance of Trial Counsel

In his fourth claim for relief, petitioner argues that he was denied his right to effective assistance of counsel. In the first of two components to his fourth ground, petitioner argues that his trial attorneys unreasonably failed to investigate and present available cultural evidence both to undermine the force of petitioner's confession during the guilt phase and to present a context within which the jurors could have viewed and weighed evidence in mitigation. In the second component, petitioner argues that counsel unreasonably failed to investigate and present other evidence in mitigation, i.e., testimony by petitioner's grandmother, sister Beatriz, and brother Jesus.

Respondent argued initially in her motion to dismiss procedurally defaulted claims that petitioner's claim was barred under Ohio's doctrine of res judicata because petitioner raised his claim for the first time in his postconviction action instead of raising it on direct appeal. Petitioner countered with three arguments in his memorandum in opposition.¹ In her reply to petitioner's memorandum in opposition, respondent conceded that after initially rejecting petitioner's claim on the basis of res judicata, the state courts during postconviction review actually rejected petitioner's ineffective assistance claim on the merits. As a result, respondent withdrew her motion to dismiss petitioner's fourth ground for relief. Accordingly, the Court construes petitioner's fourth ground for relief as fully preserved, and will address petitioner's fourth ground on the merits in a subsequent order.

1 First, petitioner argued that the Ohio courts did not impose the res judicata doctrine against this trial counsel ineffectiveness claim and instead rejected that claim on the merits. Second, petitioner argued that the trial counsel ineffectiveness allegations presented in his fourth claim for relief were properly raised in postconviction because they relied on evidence dehors the trial record. Finally, petitioner asserted that the Supreme Court of Ohio has explicitly held that claims of trial counsel ineffectiveness for the failure to present mitigation evidence are cognizable in Ohio's postconviction process.

B. Ground Seven — Failure to Instruct on Element of Death Penalty Specification

Petitioner argues in his seventh ground for relief that the trial court erred in not instructing the jury on the offense of contributing to the delinquency or unruliness of a minor. Petitioner argues that the offense of contributing to the delinquency/unruliness of a minor was an element of the first death penalty specification attached to each of his four aggravated murder counts.² The failure of the trial court to instruct on the offense invalidates the specification and resulting sentences, petitioner argues, because the jury was prevented from making a finding as to that element.

2 Petitioner was charged with four counts of aggravated murder. Each count contained three death penalty specifications. The first death penalty specification to each aggravated murder count was that petitioner committed the aggravated murder for the purpose of escaping detection, arrest, or punishment for other offenses. R.C. § 2929.04(A)(3). As to counts one, three, and four, the "other offenses" giving rise to the specification were child stealing and contributing to the delinquency or unruliness of minor. As to count two, the "other offenses" giving rise to the specification were child stealing, contributing to the delinquency/unruliness of a minor, and the aggravated murders of Georgia Davis, Cheryl Lynn Senteno, and Jerri Luann Jackson.
Petitioner was convicted of the "other offenses" specification as to counts one and two. He was acquitted of that specification as to counts three and four. Prior to sentencing, the trial court merged the "other offenses" specifications attached to Counts One and Two with another specification for which petitioner had been convicted as to Counts One and Two.

Respondent argues that petitioner's claim is procedurally barred because petitioner failed to make a contemporaneous objection at trial, as required by Ohio R. Crim. P. 30(A). Petitioner counters with several arguments, the first of which is that Ohio's "waiver doctrine" is not regularly followed or consistently enforced by Ohio's intermediate appellate courts or the Ohio Supreme Court. Petitioner goes on to argue that the plain error analysis employed by Ohio courts when reviewing an otherwise waived claim is not "independent" of federal law, thereby precluding the enforcement of a procedural default under the Sixth Circuit's Maupin test. Finally, petitioner argues in the alternative that he can demonstrate cause and prejudice to excuse any default — namely, ineffective assistance of trial counsel.

The first part of the Maupin test requires the Court to determine whether a state procedural rule was applicable to petitioner's claim, and if so, whether petitioner violated the rule. Under the second part of the Maupin test, the Court must determine whether the state courts actually enforced the procedural rule. In the instant case, petitioner violated Ohio's contemporaneous objection rule. "According to Ohio Criminal Rule 30(A), a party cannot raise a claim of error related to jury instructions on appeal unless the party entered a specific objection to the instructions before the jury retired to consider its verdict." Buell v. Mitchell, 274 F.3d 337, 365 (6th Cir. 2001) (citing State v. White, 85 Ohio St.3d 433 (1999)). It is undisputed that petitioner did not object to the trial court's omission of an instruction on the offense of contributing to the delinquency/unruliness of a minor, and that the state courts enforced this procedural rule by refusing to review petitioner's claim except for plain error. State v. Loza, 71 Ohio St.3d 61, 1103-4 (1994); J.A. Vol. III, at 1244-45.

The parties' dispute concerns the third part of the Maupin test, i.e., whether the procedural rule at issue is an adequate and independent state ground upon which to deny relief. To qualify as "independent," the procedural rule at issue, as well as the state court's reliance thereon, must rely in no part on federal law. See Coleman v. Thompson, 501 U.S. 722, 732-33 (1991). To qualify as "adequate," the state procedural rule must, among other things, be firmly established and regularly followed by the state courts. Ford v. Georgia, 498 U.S. 411 (1991). "[O]nly a `firmly established and regularly followed state practice' may be interposed by a State to prevent subsequent review by this Court of a federal constitutional claim." Id. at 423 (quoting James v. Kentucky, 466 U.S. 341, 348-351 (1984)); see also Barr v. City of Columbia, 378 U.S. 146, 149 (1964); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 297 (1964).

Petitioner argues that the procedural default at issue, i.e., his failure to make a contemporaneous objection at trial and the Ohio courts' enforcement of that waiver, is neither adequate nor independent. Petitioner argues first that the procedural rule at issue is not adequate because Ohio's intermediate appellate courts and the Ohio Supreme Court have been "paradigms of inconsistency" when it comes to enforcing Ohio's own procedural rules. (Petitioner's memo in opposition, doc. no. 18, at 16). In support of his argument, petitioner cites instances from his own appeal in which the Ohio Supreme Court, without explanation or justification, reviewed the merits of an otherwise waived claim. ( Id. at 17-18). Petitioner also cites other cases in which the Ohio Supreme Court, without explanation, declined to enforce the waiver doctrine against claims that appeared to have been waived. ( Id. at 16-17, and Exh. C). Petitioner also argues that Ohio's waiver doctrine is not independent, insofar as the plain error analysis applied by Ohio courts to otherwise waived claims requires those courts to determine whether the defendant has been denied a fair trial. That determination, according to petitioner, requires the courts to apply federal constitutional principles, thereby defeating the "independent" prong of the adequate and independent requirement set forth in the third part of the Maupin test. Both of petitioner's arguments appear to be foreclosed by the Sixth Circuit's decision in Scott v. Mitchell, 209 F.3d 854, 867-871 (6th Cir.), cert. denied, 531 U.S. 1021 (2000).³ See also Hinkle v. Randle, 271 F.3d 239, 244-45 (6th Cir. 2001) (reiterating that Ohio's contemporaneous objection rule is adequate and independent).

3 The Court is mindful of the fact that the parties did not have the benefit of the Sixth Circuit's decision in Scott v. Mitchell, supra, 209 F.3d 854, when they filed their pleadings regarding the issue of procedural default.

In Scott v. Mitchell, the Court of Appeals for the Sixth Circuit concluded that a procedural default based on the failure to make a contemporaneous objection in violation of Ohio Criminal Rule 30(A) is an adequate and independent state ground upon which to deny relief under the Maupin test. In so doing, the Sixth Circuit considered and rejected essentially the same arguments that petitioner makes here. First, the Sixth Circuit rejected the petitioner's argument that because Ohio's contemporaneous objection rule does not preclude state appellate courts from performing a plain-error review, the rule itself is dependent on federal law. Id., at 866-68. The Sixth Circuit stressed that in reviewing Scott's jury instruction claim, the Ohio Supreme Court had clearly and explicitly rejected the claim on the procedural ground that he had failed to make a contemporaneous objection, and that the Ohio Supreme Court's subsequent, cursory statement discounting the merit of petitioner's claim "did not amount to any type of review, much less one dependent on or intertwined with federal law." Id. at 866. Citing previous decisions that had upheld procedural defaults based on the failure to make a contemporaneous objection,⁴ the Sixth Circuit recognized that a state waiver doctrine that permitted reviewing courts to undertake a limited examination of an otherwise waived issue for manifest injustice furthered important interests.

4 The Sixth Circuit cited Engle v. Isaac, 456 U.S. 107, 124-29 (1982), and Paprocki v. Foltz, 869 F.2d 281, 284-85 (6th Cir. 1989).

What the state court of appeals did, as we understand it, was to enforce the procedural bar while reserving the right to excuse it if necessary to prevent manifest injustice. We would be loath to adopt an exception to the "cause and prejudice" rule that would discourage state appellate courts from undertaking the sort of inquiry conducted by the Michigan court, and we do not believe that the state court's explanation of why the jury instructions resulted in no manifest injustice can fairly be said to have constituted a waiver of the procedural default.

Paprocki v. Foltz, 869 F.2d 281, 285 (6th Cir. 1989); see also Scott v. Mitchell, supra, 209 F.3d at 868. In Scott, the Sixth Circuit concluded that the "plain error" review conducted by Ohio reviewing courts of an otherwise waived claim to ensure that the defendant received a fundamentally fair trial did not defeat the "independent" prong of the "adequate and independent" requirement set forth in the third part of the Maupin test. Scott, 209 F.3d at 868. This Court agrees with and is, in any event, bound by the Sixth Circuit's reasoning. That being so, this Court rejects petitioner's assertion that the Ohio Supreme Court's enforcement of the waiver doctrine against his jury instruction challenge was not independent of federal law.

Petitioner also argues that the procedural rule in question is not adequate because it is not consistently enforced. As noted supra, petitioner points to other cases, as well as instances in his own appeal, where the Ohio Supreme Court proceeded, without explanation, to address the merits of otherwise waived claims. The Sixth Circuit in Scott squarely rejected that argument. As does petitioner here, Scott pointed to several cases that purported to demonstrate that the Ohio Supreme Court had exercised "unfettered discretion" in ignoring the contemporaneous objection rule and had been "remarkably inconsistent" in applying the rule. Scott, 209 F.3d at 868. The Sixth Circuit examined four Ohio Supreme Court decisions and rejected Scott's argument.

[T]hese cases do indicate that the Ohio Supreme Court employs an abundance of caution in capital cases, and, on occasion, has relaxed its enforcement of default. They do not, however, indicate that Ohio reserves so much leeway in capital cases that we are justified here in ignoring its sovereign decision founded upon its own procedural rule. In cases where state procedural grounds have not been enforced by federal courts because they were not firmly established and regularly applied, the facts have been much more extreme than these isolated examples of discretion.

Id., 209 F.3d at 869. The Sixth Circuit went on to recognize the important state interests served by the contemporaneous objection rule — namely, permitting the development of the record with respect to a constitutional claim when recollections by the witnesses and observations by the trial court are freshest, and enabling the trial court to make the factual determinations that are necessary for proper resolution of constitutional claims. Id. at 869-871.

As the Court noted above, petitioner herein makes the precise argument that was rejected by the Sixth Circuit in Scott. That is, petitioner points to other cases, as well as instances in his own appeal, where the Ohio Supreme Court proceeded, without explanation, to address the merits of otherwise waived claims. Petitioner's argument that Ohio's contemporaneous objection rule is inadequate appears to be foreclosed by the Sixth Circuit's decision in Scott. Thus, for the reasons set forth by the Sixth Circuit in Scott v. Mitchell, supra, 209 F.3d at 868-871, the Court rejects petitioner's argument that procedural default based on the failure to comply with Ohio's contemporaneous objection rule is not an adequate state ground upon which to deny relief.

The Court concludes that Ohio's contemporaneous objection rule is an adequate and independent state ground upon which to deny relief. The rule is stated in unmistakable terms, both in Ohio Criminal Rule 30(A) and in countless decisions. See, e.g., State v. Landrum, 53 Ohio St.3d 107, 111 (1990); State v. Wade, 53 Ohio St.2d 182, 188 (1978). The rule furthers important state interests in developing a record for appeal and, under certain circumstances, giving the trial judge an opportunity to correct an error at the earliest possible opportunity. Finally, the rule is independent of federal law. After careful review, the Court is not persuaded that the procedural default itself, or the state courts' enforcement of that default, relied on or otherwise implicated federal law to the extent that it was not clear and unequivocal that the state courts' rejection of petitioner's jury instruction claim was based on the procedural rule.

The Court having concluded that the procedural default is adequate and independent, federal habeas corpus review is precluded unless petitioner can demonstrate cause and prejudice to excuse the default. Petitioner asserts ineffective assistance of trial counsel as cause, arguing that an attorney's failure to object to the omission of a required jury instruction could never be strategic and is deficient on its face.⁵ With respect to the prejudice prong, petitioner argues that the outcome of his trial would have been different, but for the trial court's error, because the omission of the instruction not only led to invalid verdicts, but also relieved the state of its burden of proof. Petitioner argues in the alternative that he is entitled to an evidentiary hearing to demonstrate cause and prejudice.

5 In Edwards v. Carpenter, 529 U.S. 446 (2000), the Supreme Court held that a habeas corpus petitioner cannot assert ineffective assistance of counsel as "cause" for a procedural default if the petitioner failed to properly present the same counsel ineffectiveness claim to the state courts. The counsel ineffectiveness claim offered as "cause" for the default of petitioner's seventh claim for relief was properly presented to the state courts on direct appeal. (Brief of appellant, J.A. Vol. II, at 859).
With respect to petitioner's claim of ineffective assistance of counsel for the failure to raise at trial the various issues that appear to be procedurally defaulted in this habeas corpus proceeding, the Ohio Supreme Court, after setting forth the Strickland standard, held:

Even though defense counsel did not raise at trial the issues in propositions of law three, seven through nine, eleven through eighteen, twenty and twenty-one, twenty-eight, and thirty-one, defense counsel's performance did not fall below an objective standard of reasonableness. Furthermore, Loza does not demonstrate that there is a reasonable probability that, but for the alleged errors, the result of the proceeding would have been different.

State v. Loza, 71 Ohio St.3d 61, 83-84; J.A. Vol. III, at 1247.

Respondent argues that petitioner can demonstrate neither cause nor prejudice. Pointing out that counsel's failure to object to the absence of a jury instruction on the contributing to the delinquency/unruliness of a minor offense led to petitioner's acquittal on that charge, respondent asserts that counsel's "failure" was actually a sound tactical decision. Respondent further argues that petitioner suffered no prejudice, insofar as he was explicitly acquitted on the contributing to the delinquency/unruliness specification as to counts three and four, he received a sentence of thirty years to life on count one, and he saw the merger of that specification with a separate specification into a single specification as to count one. Thus, according to respondent, the outcome of petitioner's trial would not have been different, had counsel objected to the trial court's failure to give an instruction on the offense of contributing to the delinquency of a minor.

In order to qualify as cause for a procedural default, counsel ineffectiveness must rise to the level of an independent constitutional violation under the standard established in Strickland v. Washington, 466 U.S. 668, 687-89 (1984). "[T]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default. * * * So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, supra, we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default." Murray v. Carrier, 477 U.S. 478, 486-88 (1986). The standard for establishing a claim of ineffective assistance of counsel is twofold:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984). With respect to the first prong of the Strickland test, the Court notes that, "[b]ecause of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. To establish the second prong of the Strickland test, i.e., prejudice, a petitioner must demonstrate that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

A review of the facts shows that petitioner cannot establish cause and prejudice to excuse the default of his seventh claim for relief. As the Court noted earlier, the first specification to each of petitioner's four aggravated murder counts charged that petitioner committed the aggravated murder to escape detection or punishment for other offenses. R.C. § 2929.04(A)(3). In Counts One, Three, and Four, the other offenses listed were child stealing and contributing to the delinquency or unruliness of a minor. In Count Two, the other offenses listed were child stealing, contributing to the delinquency/unruliness of a minor, and the other three aggravated murders. When the trial court instructed the jury at the conclusion of the guilt phase, the trial court omitted altogether any mention of the offense of contributing to the delinquency/unruliness of a minor. Instead, as to Counts One, Three, and Four, the "other offenses" instructed upon in the first specification was only child stealing. As to Count Two, the "other offenses" instructed upon in the first specification were child stealing and the other three aggravated murders. The jury acquitted petitioner of the "escaping detection" specification as to Counts Three and Four. Although the jury convicted petitioner of the "escaping detection" specification as to Counts One and Two, the trial court, prior to sentencing, merged that specification with another specification and instructed the jury to consider those merged specifications as a single aggravating circumstance. J.A. Vol. VI, at 3530-31. Ultimately, the jury recommended that petitioner be sentenced to 30 years to life on Count One, and death on Counts Two, Three, and Four.

It is not clear why the trial court omitted any mention of the offense of contributing to the delinquency/unruliness of a minor. But the Court cannot discern any manner in which the omission, however inexplicable, prejudiced petitioner. To find "cause," this Court would have to find that trial counsel's failure to object to the missing jury instruction was objectively unreasonable, and that there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. Petitioner can demonstrate neither. With respect to the "deficient performance" prong of the Strickland test, it is unclear from the record whether trial counsel's failure to object was a calculated decision or an oversight. In any event, it tests the limits of credibility to suggest that petitioner was prejudiced by counsel's failure to object to the omitted instruction. The reasoning set forth by the Ohio Supreme Court more than adequately explains why petitioner was not prejudiced:

The jury acquitted Loza of the specification in Counts III and IV, pertaining to the aggravated murder of Cheryl Senteno and Jerri Jackson, and recommended life imprisonment as to Count I, pertaining to the aggravated murder of Georgia Davis. With regard to the charges, the argument is moot.

Because Count II contains multiple specifications, the finding of guilt on any other specification is sufficient to warrant the death penalty. (citations omitted). The jury convicted Loza of R.C. 2929.04(A)(3) (escape detection), (A)(5) (course of conduct), and R.C. 2929.04(A)(7) (felony murder) specifications. The trial court merged the R.C. 2929.04(A)(3) and the 2929.04(A)(5) specifications and instructed the jury "to consider those two circumstances as a single aggravating circumstance." Accordingly, even a finding of plain error would not affect the sentence. Therefore, we overrule appellant's twenty-first proposition of law.

State v. Loza, J.A. Vol.III, at 1244-45.

In certain cases, the failure of a trial court to instruct the jury on an essential element of a criminal charge would represent an irreparable breakdown in the proper functioning of criminal trials where that failure has the effect of relieving the state of its burden of proof or directing a verdict for the state on the only offense for which the defendant could have been convicted or sentenced. See e.g., Franklin v. Francis, 471 U.S. 307, 313 (1985). This is not such a case. The United States Supreme Court has held that in certain cases, the omission of a jury instruction on an essential element of a criminal offense can amount to an error that is not "structural" in nature as to make harmless-error review unsuitable. See California, et al. v. Roy, 519 U.S. 2, 5 (1997). In the instant case, the trial court's omission of an instruction on the offense of contributing to the delinquency or unruliness of a minor, which offense was one of several contained in the death penalty specification charging petitioner with the commission of aggravated murder for the purpose of avoiding detection for other offenses, did not relieve the state of its burden of proof or direct a verdict for the state on the only specification that could have formed the basis of jury's recommendation that petitioner be sentenced to death. Rather, the omission — however inexplicable — had the effect only of removing a factor from the jury's consideration that ultimately had no prejudicial effect whatsoever on the verdicts or death sentences against petitioner.

For the foregoing reasons, the Court finds that petitioner cannot establish cause and prejudice for the default of his seventh claim for relief because he cannot establish either that counsel was unreasonably deficient for failing to object to the omitted jury instruction or that he was prejudiced by counsel's inaction. Because petitioner cannot establish cause and prejudice, the Court concludes that his seventh claim for relief is procedurally defaulted and that respondent's motion to dismiss claim seven on the basis of procedural default should be granted.

C. Ground Nineteen — Prosecutorial Misconduct during Guilt Phase

Petitioner argues in his nineteenth ground for relief that prosecutorial misconduct during the culpability phase of his trial deprived him of his rights to due process and a fair trial. Specifically, petitioner contends that the prosecutor improperly commented on petitioner's failure to testify, made misleading comments about petitioner's request for a lesser included offense instruction, made inflammatory remarks calculated to inflame the passions and prejudices of the jury, made improper comments about defense counsel's closing argument, and made misstatements of law. (Petition, doc. no. 6, at ¶¶ 237-245). Respondent argues that petitioner's claim is procedurally barred because petitioner failed to raise a contemporaneous objection to the alleged misconduct during trial. Petitioner argues, as he argued with respect to his seventh ground, that Ohio's waiver doctrine is neither adequate, because the rule is not consistently enforced, nor independent, because the plain error review employed by Ohio courts when reviewing otherwise waived claims is interwoven with federal constitutional law. Petitioner also argues in the alternative that he can demonstrate cause and prejudice to excuse the default.

Applying the Maupin test, the Court finds that petitioner's nineteenth claim for relief appears to be procedurally defaulted. Ohio's contemporaneous objection rule applies to alleged incidents of prosecutorial misconduct, and petitioner violated that rule when he failed, until the close of all arguments, to object to the prosecutorial misconduct that he now seeks to challenge. The Ohio Supreme Court actually enforced the procedural rule, noting at the beginning of its discussion that petitioner had waived all but plain error and then concluding that the alleged prosecutorial misconduct did not amount to plain error because, despite the prosecutor's comments, the jury would have found petitioner guilty. ( Loza, 71 Ohio St.3d at 78-79; J.A. Vol. III, at 1243-44). The Court has already considered and rejected petitioner's argument that Ohio's waiver doctrine is not an adequate and independent ground upon which to deny relief. Since the first three parts of the Maupin test have been met, habeas corpus review of petitioner's nineteenth claim for relief is precluded unless petitioner can demonstrate cause and prejudice to excuse the procedural default.

Petitioner offers ineffective assistance of counsel as cause.⁶ As the Court discussed in more detail above, attorney error, in order to constitute cause for a procedural default, must rise to the level of a constitutional violation under the two-prong standard set forth in Strickland v. Washington, supra. Petitioner must demonstrate both that counsel's performance was unreasonably deficient and that petitioner was prejudiced by the deficient performance such that, but for counsel's error, there is a reasonable probability that the outcome of the proceedings would have been different. Strickland, supra, 466 U.S. at 687, 694. Petitioner argues that defense counsel's failure to object to improper arguments was an error only an incompetent attorney would make, since there is no strategic reason for allowing improper, prejudicial remarks to the jury to go unanswered. Petitioner argues that each of the prosecutor's violations gave rise to the possibility that the jury's verdicts would have been different had counsel contemporaneously objected to the violations. Petitioner further argues that there was more than a reasonable probability that a different outcome would have occurred, had counsel objected to the misconduct, due to the cumulative effect of the prosecutor's improper remarks. Respondent argues that petitioner has failed to demonstrate that he had ineffective assistance of counsel. Specifically, respondent argues that defense counsel did not perform deficiently in failing to object to the remarks in question because none of those remarks were improper. Respondent further argues that petitioner has failed to demonstrate how the outcome of the proceedings would have been different had counsel highlighted the prosecutor's arguments by lodging frivolous objections.

6 Petitioner presented this ineffective assistance of counsel claim to the Ohio Supreme Court on direct appeal as part of his twenty-seventh proposition of law. (Brief of appellant, J.A. Vol. II, at 859).

The Court concludes that petitioner has failed to demonstrate that he received ineffective assistance of counsel in this regard because it does not appear that, had counsel objected to various remarks from the prosecutor's guilt phase closing argument, the outcome of the proceedings probably would have been different. Initially, the Court notes that review of an allegation of ineffective assistance of counsel begins with a strong presumption that counsel was competent. Strickland, supra, 466 U.S. at 689; see also O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). It is within the realm of reasonable trial strategy not to repeatedly object during opposing counsel's closing argument, where counsel harbors doubts about the effectiveness of objections and curative instructions. See Werts v. Vaughn, 228 F.3d 178, 204-205 (3rd Cir. 2000), cert. denied, 532 U.S. 980 (2001); United States v. Necoechea, 986 F.2d 1273, 1278 (9th Cir. 1993); Drew v. Collins, 964 F.2d 411, 423 (5th Cir. 1992), cert. denied, 509 U.S. 925 (1993). But see Washington v. Hofbauer, 228 F.3d 689, 706 n. 11 (6th Cir. 2000) (suggesting that failure to object because counsel doubts effectiveness of objection and curative instruction is reasonable only where it is not clear that challenged conduct was actually improper). Moreover, proving prejudice under Strickland in this case involves an "exacting standard" of showing that, but for counsel's failure to object to the prosecutor's comments, there is a reasonable probability that the jury's verdicts would have been different. Hinkle v. Randle, supra, 271 F.3d at 245-46. This Court has reviewed the prosecutor's guilt phase closing argument in its totality. For the reasons set forth by the Supreme Court of Ohio in finding that the challenged comments from the prosecutor's closing argument did not amount to plain error, this Court concludes that there was no error in the prosecutor's closing argument so egregious that petitioner's attorneys were unreasonably deficient for failing to object or that the outcome of the proceedings probably would have been different had counsel objected.

With respect to petitioner's argument that the prosecutor improperly commented on his failure to testify, the Ohio Supreme Court stated:

The prosecutor quoted to the jury a portion of the videotaped confession, in which appellant stated, "I done it and I'm taking responsibility for it. It's the whole truth and this is the same thing I'll be saying in court." In the context in which this statement was given, the prosecution did not focus on Loza's prior statement that he would testify at trial, but rather, on Loza's admission of guilt.

Loza, 71 Ohio St.3d at 78; J.A. Vol. III, at 1243-44. This Court agrees with the Ohio Supreme Court's reasoning. The prosecutor's reference to petitioner's prior statement that he would testify at trial was fleeting. The Court is mindful that a prosecutor's comment on the failure of a criminal defendant to testify need not be flagrant or direct in order to violate the defendant's rights under the Fifth and Fourteenth Amendments. Byrd v. Collins, 209 F.3d 486, 533-34 (6th Cir. 2000) ("indirect references to the failure to testify also can violate the Fifth Amendment privilege."), cert. denied, 531 U.S. 1082 (2001). But in this case, the Court agrees with the Ohio Supreme Court's determination that the prosecutor's intent was to emphasize petitioner's admission of guilt, and that the prosecutor's reference to petitioner's prior statement that he would testify at trial was incidental. Thus, it cannot be said either that defense counsel were unreasonably deficient for failing to object to the comment, or that the outcome of the proceedings probably would have been different had defense counsel objected.

Petitioner also objected to the following comment made by the prosecutor with respect to defense counsel's request during his closing argument for an instruction on the lesser included offense of murder:

MR. HOLCOMB [prosecutor]: Mr. Shanks [defense counsel] gets up and tells you about murder, the lesser included offense . . . now, why would he tell you that? If his client's not guilty of anything, why would he be telling you anything about murder?

(J.A. Vol. VI, at 3256-57). The Ohio Supreme Court was not persuaded that the prosecutor's comment amounted to error, plain or otherwise:

[T]he prosecutor merely was responding to defense counsel's closing argument, in which defense counsel urged a guilty verdict on a murder charge as an alternative to the charge of aggravated murder. Both parties have latitude in responding to the arguments of opposing counsel.

Loza, 71 Ohio St.3d at 78; J.A. Vol. III, at 1243-44. The Court agrees with the Ohio Supreme Court's determination that the prosecutor's comment regarding defense counsel's request for a verdict on the lesser included offense of murder essentially was an invited response. Werts v. Vaughn, supra, 228 F.3d at 205 (holding that defense counsel was not ineffective for failing to object to prosecutorial remarks that were invited by defense counsel's closing argument). Thus, petitioner cannot establish either that his attorneys were deficient for failing to object to the comment, or that there is a reasonable probability that the verdicts would have been different had counsel objected.

Another aspect of the prosecutor's closing argument challenged by petitioner was the alleged attempt on the part of the prosecutor to inflame the passions and prejudices of the jurors, and to encourage them to convict petitioner on something other than the evidence and law.⁷ The Supreme Court of Ohio found no plain error:

7 The prosecutor's comments identified by petitioner as improper in this regard were:

MR. HOLCOMB: Now, look, you're accused of a horrible and despicable act that brings shame, dishonor, and humiliation to your family.

* * *

MR. HOLCOMB: Leniency and moderation with wickedness only adds foolishness to the crime.

* * *

MR. HOLCOMB: Now, look, we all hear about, "They did this," or, "They did that down at the courthouse again." Well, now, today, my friend, the "they" is you . . . .

(Petition, doc. no. 6, at ¶ 242).

In the instant case, we conclude that a review of the prosecutor's closing argument in its totality discloses no prejudice to appellant. There are several references throughout the closing argument that the jury should decide the case based upon the evidence and the law. Further, the court instructed the jury to decide the case on the evidence. As has been previously stated, it is presumed that the jury will follow the instructions given to it by the judge.

Loza, 71 Ohio St.3d at 79; J.A. Vol. III, at 1243-44. The Court agrees with the Ohio Supreme Court's analysis — namely, that absent a patent constitutional violation which is not the case in this instance, a closing argument must be viewed in its entirety and not in bits and pieces that could be taken out of context when dissected from the argument as a whole. See Cargill v. Turpin, 120 F.3d 1366, 1379 (11th Cir. 1997) ("a reviewing court should not assess prosecutorial comments in isolation, shorn of their context."), cert. denied, 523 U.S. 1080 (1998); see also Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1355-56 (6th Cir. 1993) (in reviewing claim of prosecutorial misconduct, because focus must be on fairness of trial instead of culpability of the prosecutor, court must determine whether remarks were so egregious as to render entire trial fundamentally unfair), cert. denied, Serra v. Toombs, 510 U.S. 1201 (1994). Although the prosecutor's closing argument contained occasional pleas to the jury's emotion, the argument also included reminders to the jury that it should decide the case based on the evidence and the law. Viewed in its entirety, the prosecutor's argument does not strike this Court as improper, such that defense counsel can be faulted for not objecting to the occasional emotional remarks or that it can be said that the jury's verdicts might have been different had defense counsel objected.

Finally, petitioner argues that the prosecutor, during closing argument, gave an overly broad definition of an element of a "theft offense," thereby giving rise to the risk that petitioner was convicted of a theft offense on less proof than required by law. The Supreme Court of Ohio found no plain error:

[T]he statements made by counsel in closing arguments do not govern the law that should be applied in this case. The trial court gave the charge with regard to aggravated robbery and defined each term in the charge. The trial court defined "theft" as follows: "[T]he term `theft' as used in this case means knowingly obtaining property owned by another without the owner's consent and for the purpose of depriving the owner of that property." This is the law that governed this case. We presume that the jury followed the instructions of the judge.

Loza, 71 Ohio St.3d at 79; J.A. Vol. III, at 1244. It is the trial court, not counsel for the parties, who is responsible for instructing the jury on the law to be applied. Since, as noted by the Ohio Supreme Court, it is presumed that the jury will follow the instructions given by the trial court, Hofbauer, supra, 228 F.3d at 706 (citing Richardson v. Marsh, 481 U.S. 200, 211 (1987)), claims that a prosecutor misstated the law to be applied must be considered against the backdrop of whether the trial court gave the correct instruction as to the law to be applied. Cf. Roberts v. Bowersox, 61 F. Supp.2d 896, 920 (E.D. Missouri 1999) ("the jury was properly instructed at each stage of the proceedings, so any inaccuracies in the prosecutor's statements were corrected."). In the instant case, the trial court instructed the jury on each element of a "theft offense." Thus, even assuming that petitioner's defense attorneys could be faulted under the first prong of Strickland for not objecting to the prosecutor's definition of a "theft offense," this Court is no more persuaded than the Ohio Supreme Court was that the jury's verdicts probably would have been different had defense counsel objected.

After reviewing for plain error each instance of prosecutorial misconduct alleged by petitioner, the Supreme Court of Ohio concluded, "Without reservation, we can say beyond a reasonable doubt that, despite the prosecutor's comments, the jury would have found Loza guilty . . . ." Loza, 71 Ohio St.3d at 79; J.A. Vol. III, at 1244. After reviewing the prosecutor's guilt phase closing argument in its entirety, this Court agrees with the Ohio Supreme Court that there was no comment so improper or egregious as to persuade this Court either that petitioner's defense attorneys were unreasonably deficient for not raising a contemporaneous objection or that but for counsel's failure to object, there is a reasonable probability that the jury's verdicts would have been different. Because the attorney error alleged by petitioner does not rise to the level of a Sixth Amendment violation sufficient to constitute cause, the Court concludes that petitioner's nineteenth claim for relief is procedurally barred. Respondent's motion to dismiss claim nineteen on the ground of procedural default will be granted.

D. Ground Twenty — Trial Court's Admission of Irrelevant, Inflammatory Evidence

Petitioner argues in his twentieth ground for relief that the trial court erred in admitting into evidence materials that were irrelevant and inflammatory, tainting both the culpability and penalty phases of petitioner's trial. (Petition, doc. no. 6, at ¶¶ 246-257). Specifically, petitioner challenges the trial court's admission of evidence of unproven criminal acts, such as petitioner's alleged involvement in a drive-by shooting in California, participation in an assault of a man in California, and several juvenile arrests. Petitioner also challenges as irrelevant and prejudicial the admission of "other acts" evidence that he was involved in gang activities in California and letters reflecting a desire and willingness on his part to hurt other people. Respondent argues that at least one piece of other acts evidence challenged by petitioner, i.e., petitioner's participation in the assault of a man in California, (Petition, doc. no. 6, at ¶ 252), is procedurally defaulted because petitioner failed to raise a contemporaneous objection to the admission of that evidence during trial. Respondent raises no procedural default argument against the remaining pieces of "other acts" evidence that petitioner seeks to challenge. Accordingly, the Court will address the admission of those pieces of evidence on the merits in a subsequent order, and will confine its procedural default discussion herein to the evidence of petitioner's participation in the assault of a man in California.

Petitioner counters again that Ohio's waiver doctrine is neither adequate, because the rule is not consistently enforced, nor independent, because the plain error review employed by Ohio courts when reviewing otherwise waived claims is interwoven with federal constitutional law. Petitioner also argues in the alternative that he can demonstrate cause and prejudice to excuse the default.

Applying the Maupin test, the Court finds that paragraph 252 of petitioner's twentieth claim for relief appears to be procedurally defaulted. The evidence at issue apparently consists of a letter written by petitioner in which he mentioned having participated in the assault of a man in California.⁸ Defense counsel did not object to the reference to the assault. Ohio's contemporaneous objection rule applies to the trial court's admission of improper evidence, and petitioner violated that rule when he failed to object to evidence that petitioner had participated in the assault of a man in California. The Ohio Supreme Court actually enforced the procedural rule, noting that petitioner had waived all but plain error as to the admission of evidence about the assault, and then concluding that the challenged evidence did not amount to plain error because the testimony did not contribute to petitioner's conviction. ( Loza, 71 Ohio St.3d at 75; J.A. Vol. III, at 1240-41). The Court has already considered and rejected petitioner's argument that Ohio's waiver doctrine is not an adequate and independent ground upon which to deny relief. Since the first three parts of the Maupin test have been met, habeas corpus review of petitioner's nineteenth claim for relief is precluded unless petitioner can demonstrate cause and prejudice to excuse the procedural default.

8 The letter was one of several letters that petitioner wrote to Dorothy Jackson while incarcerated; the letters were photocopied and offered into evidence by the prosecution ostensibly because they contained incriminating admissions by petitioner. One of the letters, dated May 6, 1991, was excluded by the trial court because it contained references to prior uncharged homicides. The trial court admitted the remaining letters. Transcript, J.A. Vol. VI, at 3171-72.
In the letter at issue, petitioner apparently stated: "I fucked him up badly and I was going to burn his car but I felt sorry for the punk" (Petition, doc. no. 6, at ¶ 252). The letter in which petitioner mentioned the assault, dated March 23, 1991, is referred to by petitioner as State's Exhibit 18-E. (Petition, doc. no. 6, at ¶ 252). This Court has scoured the record in search of that exhibit, but has not been able to locate it.

Petitioner offers ineffective assistance of counsel as cause.⁹ As the Court discussed in more detail above, attorney error, in order to constitute cause for a procedural default, must rise to the level of a constitutional violation under the two-prong standard set forth in Strickland v. Washington, supra. Petitioner must demonstrate both that counsel's performance was unreasonably deficient and that petitioner was prejudiced by the deficient performance such that, but for counsel's error, there is a reasonable probability that the outcome of the proceedings would have been different. Strickland, supra, 466 U.S. at 687, 694. Petitioner argues that defense counsel's failure to object to the admission of evidence wherein petitioner admitted to having participated in the assault of a man in California amounted to ineffective assistance of counsel because there could not possibly be a strategic reason for allowing such evidence to be presented to a jury faced with determining whether petitioner was capable of committing four aggravated murders. Petitioner argues that the admission of evidence regarding an unrelated, uncharged assault gave rise to a reasonable probability that the jury's verdicts would have been different had counsel contemporaneously objected to the improper evidence. Respondent argues that petitioner has failed to demonstrate that he had ineffective assistance of counsel. Specifically, respondent argues that defense counsel did not perform deficiently failing to object to the remarks in question because none of those remarks were improper. Respondent further argues that petitioner has failed to demonstrate how the outcome of the proceedings would have been different had counsel highlighted the prosecutor's arguments by lodging frivolous objections.

9 Petitioner presented this ineffective assistance of counsel claim to the Ohio Supreme Court on direct appeal as part of his twenty-seventh proposition of law. (Brief of appellant, J.A. Vol. II, at 858).

The record does not demonstrate that petitioner's trial attorneys performed deficiently in not objecting to the assault comment or that there is a reasonable probability that the jury's verdicts would have been different had counsel objected. As the Court noted earlier, review of an allegation of ineffective assistance of counsel begins with a strong presumption that counsel was competent. Strickland, supra, 466 U.S. at 689; see also O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). The record does not demonstrate one way or the other whether counsel's failure to object was oversight or calculated strategy. That said, it would certainly be within the realm of reasonable trial strategy to decide not to draw unwarranted attention to an incriminating statement if there was a reasonable chance that the statement was isolated in nature and would go unnoticed. In any event, with respect to the prejudice prong, the Court simply cannot find that petitioner's passing reference to his involvement in an uncharged assault had an effect on the jury's verdicts, in light of the isolated nature of the statement and the overwhelming evidence that was presented supporting the jury's verdicts. To the extent that petitioner suggests that he was suffered prejudice from the cumulative effect of evidence of other prior bad acts and uncharged crimes, the Court rejects that argument because counsel objected to much of the evidence and the trial court gave curative instructions to the jury not to consider such evidence.

Because the attorney error alleged by petitioner does not rise to the level of a Sixth Amendment violation sufficient to constitute cause, the Court concludes that paragraph 252 of petitioner's twentieth claim for relief is procedurally barred, and that respondent's motion to dismiss that claim on the ground of procedural default should be granted.

E. Ground Twenty-Six — Prosecutorial Misconduct during Penalty Phase

In his twenty-sixth ground for relief, petitioner raises numerous episodes of prosecutorial misconduct during the penalty phase of his trial. Specifically, petitioner argues that the prosecutor exceeded the scope of proper argument by misleading the jury about the purpose of mitigation evidence, and by inviting the jury to consider non-statutory aggravating circumstances and to ignore relevant mitigating evidence. (Petition, doc. no. 6, at ¶¶ 296-310). Petitioner argues that the prosecutor misled the jury about the purpose of mitigating evidence, suggesting that none of the mitigating evidence offered by petitioner "justified" or "excused" his culpability. ( Id. at ¶ 297). Petitioner further complains that the prosecutor erred in telling the jury it did not have to consider petitioner's age as a mitigating factor, even though youth of the offender is a statutory mitigating factor and petitioner was 18-years-old at the time of the murders. ( Id. at ¶ 298). Similarly, petitioner argues that the prosecutor erred in telling the jury to disregard the abuse that Dorothy Jackson allegedly suffered at the hands of her mother, Georgia Davis, when, according to petitioner, that mitigation evidence was relevant to petitioner's perceptions and behavior under R.C. § 2929.04(B)(7).¹⁰ ( Id. at 299). Petitioner also complains that the prosecutor invited the jury to base its sentencing decision on extra-legal considerations such as the fact that one of the victims was pregnant, that petitioner had gang affiliations, that petitioner could have taken Dorothy to Los Angeles without having killed anyone, that the total combined potential life expectancy of victims was 250-300 years, that petitioner's boyhood friends who grew up under the same challenging circumstances had never been charged with capital crimes, and that petitioner had never really expressed remorse for the crimes. (Petition, doc. no. 6, at ¶¶ 301, 304). Petitioner argues that the prosecutor's improper argument regarding petitioner's lack of remorse was compounded when petitioner was prevented, due to an objection by the prosecutor, from introducing evidence that Dorothy had never expressed remorse or regret for the deaths of her family members. Finally, petitioner complains that the prosecutor appealed to the passions and prejudices of the jury by exhorting it to do its duty, equating a sentencing recommendation of death with the jury's "duty." ( Id. at ¶ 309).

10 R.C. § 2929.04(B)(7) requires the sentencer to consider, "Any other factors that are relevant to the issue of whether the offender should be sentenced to death."

Respondent argues that petitioner's claim is procedurally defaulted because he never objected to the prosecutor's comments. In response, petitioner reiterates his argument that the default should not be enforced because Ohio's waiver doctrine is not an adequate and independent state ground upon which to deny relief. Petitioner argues in the alternative that ineffective assistance of trial counsel constitutes cause for the default.

Applying the Maupin test, the Court finds that petitioner's twenty-sixth claim for relief appears to be procedurally defaulted. As the Court noted in connection with petitioner's nineteenth claim for relief, Ohio's contemporaneous objection rule applies to alleged incidents of prosecutorial misconduct. Petitioner violated that rule when he failed to object to the prosecutor's penalty phase closing argument. The Ohio Supreme Court actually enforced the procedural rule, noting that petitioner had waived all but plain error due to his failure to raise a contemporaneous objection during trial. ( Loza, 71 Ohio St.3d at 82-83; J.A. Vol. III, at 1245-46). The Court has already considered and rejected petitioner's argument that Ohio's waiver doctrine is not an adequate and independent ground upon which to deny relief. Since the first three parts of the Maupin test have been met, habeas corpus review of petitioner's twenty-sixth claim for relief is precluded unless petitioner can demonstrate cause and prejudice to excuse the procedural default.

Petitioner offers ineffective assistance of counsel as cause.¹¹ Petitioner argues that defense counsel's failure to object to improper remarks in the prosecutor's penalty phase closing argument was an error no reasonable attorney would make, since there is no strategic reason for allowing improper, prejudicial remarks to the jury to go unanswered. Petitioner argues that he was prejudiced by counsel's failure to object because the prosecutor's improper remarks undermined the fairness of the sentencing proceedings. Petitioner insists that there was more than a reasonable probability that a different outcome would have occurred, had counsel objected to the misconduct, because petitioner was deprived of the opportunity to present relevant mitigation evidence and because the jury was misguided.

11 Petitioner presented this ineffective assistance of counsel claim to the Ohio Supreme Court on direct appeal as part of his twenty-seventh proposition of law. (Brief of appellant, J.A. Vol. II, at 859).

Respondent argues that petitioner has failed to demonstrate that he had ineffective assistance of counsel. Specifically, respondent argues that defense counsel did not perform deficiently failing to raise futile objections to the remarks in question because the remarks were properly directed to the weight to be given to the mitigating evidence petitioner had offered. Respondent further argues that defense counsel may very well have made a tactical decision not to object, in order to avoid highlighting the powerful arguments. Finally, respondent argues that petitioner failed to demonstrate how the outcome of the proceedings would have been different had counsel objected to the comments in question.

The Court of Appeals for the Sixth Circuit "has on several occasions found that a counsel's failure to object to prosecutorial misconduct constitutes deficient performance when that failure is due to clear inexperience or lack of knowledge of controlling law, rather than reasonable trial strategy." Washington v. Hofbauer, supra, 228 F.3d at 702 (citing Gravley v. Mills, 87 F.3d 779, 785-86 (6th Cir. 1996); Rachel v. Bordenkircher, 590 F.2d 200, 204 (6th Cir. 1978)). When the failure to object to prosecutorial misconduct is a calculated decision based on counsel's doubts about the effectiveness of objections and curative instructions, the omission will fall within the realm of reasonable trial strategy only when it is unclear that the challenged conduct was improper in the first place. See Hofbauer, supra, 228 F.3d at 706 n. 11. Accordingly, the Court turns its attention to those segments of the prosecutor's penalty phase closing argument in question to determine whether any of the remarks were so egregious that defense counsel were unreasonably deficient in failing to object and that there is a reasonable probability that, had counsel objected, the outcome of the sentencing proceedings would have been different.

The Supreme Court of Ohio made several conclusions about the propriety of the challenged remarks in determining that no plain error existed, and the Court begins its analysis with those conclusions. The Ohio Supreme Court began its analysis by noting:

[A] prosecutor can freely argue the weight to be given to potentially mitigating factors. The weight to be given such evidence is up to the individual decision-maker, who must be allowed to freely decide whether to give any weight to the mitigating evidence. (citation omitted). The prosecution's remarks were properly directed to the weight to be given to the mitigating factors presented by Loza.

Loza, supra, 71 Ohio St.3d at 82; J.A. Vol. III, at 1246. The Court agrees with this reasoning. Although a sentencer cannot be precluded from considering or refuse to consider relevant mitigating evidence, see, e.g., Eddings v. Oklahoma, 455 U.S. 104 (1982) (vacating a death sentence because the trial court, and court of appeals on review, had refused, as a matter of state law, to consider as a mitigating circumstance the petitioner's unhappy upbringing and emotional disturbance), there is a critical difference between a sentencer determining that certain mitigation evidence deserves little weight, and a sentencer refusing to consider that evidence at all. In the instant case, since the prosecutor's remarks were properly directed at how much weight the jury should accord the mitigating evidence, petitioner's trial attorneys were not ineffective for failing to object to those remarks.

The Ohio Supreme Court went on to review for plain error petitioner's complaint that the prosecutor invited the jury to consider non-statutory aggravating circumstances.

[A]ppellant also contends the prosecutor sought to inject non-statutory aggravating circumstances into the case by making comments about one of the victims being pregnant, by stating that there were four victims, and by mentioning Loza's gang affiliations. It is true that the nature and circumstances of an offense are not a statutory aggravating circumstance. However, R.C. 2929.04(B) requires the jury, trial court, or three-judge panel to consider, and weigh against the aggravating circumstances proved beyond a reasonable doubt, the nature and circumstances of the offense. (internal quotation marks and citation omitted) (emphasis in original).

Loza, supra, 71 Ohio St.3d at 82; J.A. Vol. III, at 1246. Upon review, the nonstatutory aggravating circumstances complained of by petitioner strike this Court more as reasons why the aggravating circumstances outweighed the mitigating factors, rather than as additional aggravating circumstances to be weighed against the mitigating factors. See e.g., Smith v. Anderson, 104 F. Supp.2d 773, 819-820 (S.D. Ohio 2000). In that regard, the prosecutor's remarks were arguably correct and, therefore, counsel cannot be faulted under Strickland for not objecting to them.

Finally, the Ohio Supreme Court considered petitioner's argument that the prosecutor improperly injected victim-impact evidence into the jury's deliberations.

[A]ppellant also contends that his death sentence should be reversed because the prosecution's comments about the murder of a pregnant woman and the loss of many expected years of life allegedly violates Ohio law as improper victim-impact evidence. Although reliance upon victim-impact evidence in arguing for the death penalty is improper and constitutes error in the sentencing phase of a capital trial, the same evidence may be admissible, relevant evidence in the guilt phase of the proceedings.

Loza, supra, 71 Ohio St.3d at 82; J.A. Vol. III, at 1246. While the Ohio Supreme Court acknowledged that offering victim-impact evidence in seeking the death penalty is improper during the sentencing phase of a capital trial, the court made no conclusions about whether the prosecutor had transgressed that bar in this case, and, if so, whether the transgression operated to petitioner's prejudice by incurably tainting the jury's sentencing verdicts. After careful review of the law governing victim-impact evidence in capital cases,¹² and the closing arguments delivered by both prosecuting attorneys,¹³ (J.A. Vol. VI, at 3488-3504, 3522-3525), the Court concludes that the comments challenged by petitioner were not so unduly prejudicial that any competent attorney would have been prompted to object and demand a curative instructions or that the outcome of the proceedings might have been different had counsel objected.

12 Booth v. Maryland, 482 U.S. 496 (1987), overruled in part by, Payne v. Tennessee, 501 U.S. 808 (1991).

13 Mr. Powers, who gave the first closing argument at the conclusion of the penalty phase and essentially summarized the evidence supporting the aggravating circumstances, stated with respect to the aggravated murder of Jerri Jackson: "This is the pregnant girl who stayed away from [the fights that were going on], who had a fairly decent relationship with Dorothy Jackson, and yet even she too was killed as part of this plan." J.A. Vol. VI, at 3501.
Mr. Holcomb, who spoke last after defense counsel had made their closing argument, opened his short argument by stating: "The price of life for each of us is death, so that makes life especially in this country as opposed to, let's say, Vietnam where my friend was, that makes life in this country precious, and if you — if you consider that four victims in this case were going to live to be 70, 75-years-old, this Defendant in a few minutes of hatred and violence obliterated between 250 and 300 years of human life from existence." J.A. Vol. VI, at 3523.

In sum, considering the prosecution's closing arguments in their totality, and the comments challenged by petitioner, the Court cannot find that petitioner's trial attorneys fell below objective standards of reasonableness in not objecting to the comments in question, or that there is a reasonable probability that the jury's sentencing verdicts would have been different had counsel objected. Petitioner having failed to demonstrate cause and prejudice, the Court finds that his twenty-sixth claim for relief is procedurally defaulted, and that respondent's motion to dismiss the claim on that basis should be granted.

F. Ground Thirty-Three — Inadequate Postconviction Process

Petitioner argues in ground thirty-three that Ohio does not provide an adequate corrective process for consideration of post-conviction claims in violation of his rights under the Eighth and Fourteenth Amendments. Respondent argues that petitioner's claim is procedurally defaulted because he failed to present the claim to the trial court during post-conviction proceedings, but instead presented it for the first time on appeal from the trial court's dismissal of his postconviction action. Respondent argues that all of the Maupin criteria have been satisfied, emphasizing that the appellate court enforced the waiver doctrine against petitioner's claim. Respondent further argues in summary fashion that petitioner cannot establish cause and prejudice to excuse the default.

Petitioner counters with several arguments. He argues in the first instance that the state appellate court interwove its discussion on waiver and its discussion on the merits, thus precluding a finding that the state court clearly and expressly relied on a state procedural rule in rejecting the claim. Petitioner further argues that there was no state procedural rule requiring him to raise this claim in the trial court. Finally, petitioner argues that his claim could not have been raised in the trial court because his claim that he suffered a lack of process did not become ripe until the trial court summarily denied his postconviction petition. After reviewing the record and relevant case, the Court must reject each of petitioner's arguments and hold that his thirty-third claim is procedurally defaulted.

The first part of the Maupin test requires the Court to determine whether a procedural rule is applicable to petitioner's claim and, if so, whether petitioner violated the rule. Petitioner argues that there is no state procedural rule requiring claims of this nature to be raised at the trial court level. Petitioner's argument is belied by case law. In State v. Awan, 22 Ohio St.3d 120, syllabus (1986), the Supreme Court of Ohio held that the failure to raise at the trial court level the issue of the constitutionality of a statute or its application, so long as the issue is apparent at the time of trial, constitutes a waiver of such issue when raised for the first time on appeal. A number of appellate courts in Ohio, following Awan, have held that the failure of a petitioner to raise at the trial court level the constitutionality of R.C. § 2953.21 constitutes a waiver of that issue on appeal. State v. McNeill, 137 Ohio App.3d 34, 30-31 (Ohio App. 9 Dist. 2000); State v. Awkal, 1998 WL 827585, No. 73267 (Ohio App. 8 Dist. Nov. 25, 1998), at *3; State v. Schmidt, 1998 WL 351871, No. E-98-002 (Ohio App. 6 Dist. Jun. 19, 1998), at *1; State v. Benner, 1997 WL 549605, No. 18094 (Ohio App. 9 Dist. 1997). Thus, the Court is satisfied that there was a state procedural rule requiring petitioner to raise his claim challenging the constitutionality of Ohio's postconviction remedy at the trial court level.

Petitioner argues that, even assuming such a rule existed, he did not violate the rule because his claim did not become ripe until the trial court summarily dismissed his postconviction petition. Petitioner reasons that he could not challenge the lack of process afforded by Ohio's postconviction process until he had suffered the lack of process. Petitioner's argument is belied by his very own postconviction petition. A review of petitioner's ninth assignment of error, wherein he raised his claim challenging the adequacy of Ohio's postconviction process, reveals that he was not challenging an error or omission from his own postconviction proceeding at the trial court level, but was challenging the manner in which capital postconviction actions had been addressed in the Ohio courts over a period of fifteen years. (Brief of appellant, J.A. Vol. IV, at 1676-77). Thus, petitioner will not be heard to argue that the basis of his challenge to the constitutionality of Ohio's postconviction remedy was not apparent to him until after the trial court denied his postconviction petition. The Court concludes that there was a state procedural rule requiring petitioner to raise his claim challenging the constitutionality of Ohio's postconviction remedy in the trial court, and that petitioner violated the rule.

The second part of the Maupin test requires the Court to determine whether the state courts actually enforced the procedural rule. In Harris v. Reed, 489 U.S. 255, 265-66 (1989), the Supreme Court held that a procedural default will not preclude consideration of a federal claim in federal habeas corpus unless the last state court rendering judgment in the case clearly and expressly stated that its judgment rested on that procedural bar. The Supreme Court explained, though, that state courts could reach the merits of a federal claim without sacrificing the procedural default, so long as the merits review is expressed as an alternative holding. Id. at 264 n. 10. In order to determine whether the state courts clearly and expressly relied on a state procedural default, this Court must look to the last state court disposition providing reasons for its decision. See McBee v. Abramajtys, 929 F.2d 264, 267 (6th Cir. 1991). In the instant case, the last state court to address petitioner's postconviction claims was the Ohio Court of Appeals. Petitioner argues that the state appellate court interwove waiver and a discussion of the merits, thereby precluding a finding that the state courts clearly and expressly relied on a procedural rule as a basis for rejecting the claim. The Court disagrees. Even indulging every presumption in petitioner's favor, the Court cannot find any ambiguity in the state appellate court's decision rejecting petitioner's claim:

A review of the record reveals that Loza did not assert this claim in his petition for postconviction relief and failed to raise this issue at the trial court level. Generally, an appellate court will not consider an issue regarding the constitutionality of a statute where the issue was not raised in the trial court. (citation omitted). Although the "waiver doctrine" is discretionary, (citation omitted), the present case does not present plain error or special circumstances that warrant an exception to the waiver doctrine. A constitutional challenge to R.C. 2953.21 has previously been found to be waived where a postconviction petitioner failed to raise the issue in the trial court. (citation omitted). Further, R.C. 2953.21 has been found to be constitutional. (citation omitted). Accordingly, Loza's ninth assignment of error is overruled.

( State v. Loza, J.A. Vol. IV, at 2010-11). This Court concludes that the state appellate court clearly and expressly rejected petitioner's claim under the waiver doctrine; one sentence at the conclusion of the appellate court's discussion indicating that Ohio's postconviction remedy had been found constitutional does not persuade this Court otherwise.

The Court further finds that the procedural rule is an adequate and independent state ground. The rule emerged as early as 1986 and is stated in clear terms. Having since been adopted by multiple courts, the rule has been consistently enforced in Ohio. The rule serves important state interests in judicial efficiency by encouraging litigants to raise claims challenging the adequacy of Ohio's postconviction process at a time and in a forum where such claims can most effectively be heard and remedied.¹⁴ Finally, the Court concludes that the procedural rule, i.e., requiring claims challenging the adequacy of Ohio's postconviction process to be raised at the trial court level, does not rely on or otherwise implicate federal constitutional law.

14 When petitioner raised this claim on appeal from the trial court's dismissal of his postconviction action, he requested that his case be remanded back to the trial court for an evidentiary hearing.

The Court having determined that petitioner's thirty-third claim appears to be procedurally defaulted, and that the procedural default is an adequate and independent state ground upon which to deny relief, habeas corpus review is precluded absent a showing by petitioner of cause and prejudice to excuse the default. Petitioner has shown neither. Accordingly, the Court concludes that petitioner's thirty-third claim for relief is procedurally barred, and that respondent's motion to dismiss the claim on the basis should be granted.

V. Conclusion

For the foregoing reasons, the Court concludes that the following claims are procedurally defaulted: 7, 19, 20 (paragraph 252), 26, and 33. Accordingly, respondent's motion to dismiss is GRANTED as to claims 7, 19, 20 (paragraph 252), 26, and 33, and DENIED as to claim 4. The parties are DIRECTED to contact the Magistrate Judge within ten (10) days of the date of this order to schedule a status conference.