Shank v. Mitchell

Full title: S. ADELE SHANK, ATTORNEY As next friend for KEVIN P. SCUDDER, Petitioner…

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

Date published: Sep 30, 2008

Case No. 2:00-CV-17 (S.D. Ohio Sep. 30, 2008)

Opinion

Case No. 2:00-CV-17.

September 30, 2008

OPINION AND ORDER

ALGENON MARBLEY, District Judge

Petitioner, a state prisoner sentenced to death by the State of Ohio, has pending before this Court a habeas corpus action pursuant to 28 U.S.C. § 2254. This matter is before the Court upon respondent's return of writ, petitioner's amended traverse, petitioner's supplemental traverse addressing procedural default, respondent's reply to the supplemental traverse, and petitioner's response to respondent's reply to his supplemental traverse. Also before the Court are the amended habeas corpus petition and the state court record. This Opinion and Order will address whether any of petitioner's claims for relief must be denied on grounds that they were procedurally defaulted during the course of the state court proceedings, and whether petitioner has successfully demonstrated the existence of cause sufficient to excuse that default.

I. Factual History

The facts and procedural history of this case were set forth by the Supreme Court of Ohio in State v. Scudder, 71 Ohio St. 3d 263 (1994):

On the evening of February 6, 1989, Kevin P. Scudder, appellant, met with two friends, Robert Muncy and Arnold James Dempsey, Jr., to celebrate appellant's birthday. At midnight, the men drove in appellant's Buick to the home of Muncy's friend, fourteen-year-old Tina Baisden. Appellant had promised to purchase Tina a new outfit at an all-night department store, and Tina was able to sneak out to join the trio.

After cruising around Columbus, the group decided to visit a friend in Circleville. On the way to Circleville, appellant asked Tina to pretend to be his girlfriend. On February 7, at approximately 2:30 a.m., appellant, Tina, Muncy and Dempsey left Circleville in appellant's Buick to return to Columbus. On the return trip, Tina suggested that she should be driven home first. Muncy agreed, but appellant vehemently disagreed. Appellant told Muncy, `I run this fucking boat, I pay for the gas, I pay for the party, if you don't like it, I'll put a .44 slug in between your lungs.' Appellant insisted that he (appellant) would take Tina home last.

In accordance with appellant's instructions, Dempsey, the driver, drove Muncy home first. Dempsey, appellant and Tina then drove to Dempsey's home. There, appellant left the car to urinate in an alley behind Dempsey's house. At that time, Tina told Dempsey that she was afraid of appellant. Dempsey knew that appellant had a `Deerslayer' hunting knife in the glove compartment of the Buick. Therefore, Dempsey gave Tina a pocket knife for her protection. At approximately 3:15 a.m., appellant and Tina drove away from Dempsey's home in appellant's Buick.

On February 7, 1989, at approximately 4:10 a.m., Gary E. Snyder, appellant's neighbor, saw appellant and appellant's Buick in the parking lot of an apartment complex. Approximately ten minutes later, Snyder saw appellant throw an object into a trash dumpster. According to Snyder, appellant then went to appellant's apartment and began screaming that he had been shot. Appellant also said something like `I hurt a little girl,' or `I want my little girl.' Another neighbor, Bonnie Fletcher, saw appellant covered with blood. Fletcher heard appellant say that `niggers' were chasing him and that the alleged pursuers had killed a girl named Tina. An emergency squad responded and transported appellant to Mt. Caramel West Hospital.

Dr. David Androw, a surgical resident physician, examined appellant. Appellant was covered with blood — more blood than could be attributed to his wounds. Appellant had a four-inch laceration on his right forearm, a small stab wound above his left eye, and a small stab wound in his upper back. Appellant's wounds were not life-threatening, his vital signs were normal, and hospitalization was therefore unnecessary. However, appellant claimed that he had been shot, and x-rays revealed a bullet lodged in appellant's upper thorax. Androw was confused, since all of appellant's wounds were stab wounds. Appellant was rude and uncooperative with doctors and police. He would not permit Androw to treat the wounds. Appellant told a security guard at the hospital that he had been attacked by two black men who had stabbed him and shot at him. Eventually, appellant was asked to leave the hospital. Later, Androw reviewed appellant's file from a previous hospital stay and discovered that the bullet lodged in appellant's body had been there about two years.

Later that morning, on February 7, 1989, appellant went to Grant Hospital, where he was admitted for treatment of his stab wounds and the alleged gunshot wound. That afternoon, appellant called police to report that he had been shot and robbed. That evening, appellant talked with police on two separate occasions. Appellant told police that he and Tina had picked up two male hitchhikers after leaving Dempsey's home. Appellant claimed that the hitchhikers had tried to rob him and had forced him to drive to a secluded field off Groveport Road. According to appellant, the robbers then shot and stabbed him and stabbed Tina while she was seated in the back seat of the Buick. Appellant stated that one of the robbers removed Tina from the passenger's side of the vehicle while appellant and the other robber exited the vehicle from the driver's side. At that time, according to appellant, he managed to escape in the Buick, leaving Tina in the field with the assailants. On the night of February 7, police began searching for Tina in the area where appellant claimed to have left her. On February 8, 1989, the search continued.

On February 9, a game warden accidentally discovered Tina's frozen body in a secluded field approximately five miles from where appellant claimed to have left her. The evidence at the scene indicated that Tina had been killed where her body was found. She had been stabbed or cut forty-six times. Her pants had been pulled down to her ankles, and her panties had been pulled down to midthigh. Bloody hand and finger smears were found on her legs, inner thighs, and near the vaginal area.

Tina's stab wounds were consistent with having been caused by a knife similar to the one appellant possessed on the night of the murder. Bloody impressions on Tina's clothing were of a size and shape that indicated they had been made with a knife similar to the `Deerslayer' knife. The murder weapon was never recovered by police.

Drops of blood other than Tina's were found on Tina's face, rib cage and thighs. Expert analysis of photographs taken at the crime scene revealed that the blood had dripped onto Tina's mostly nude body as her killer stood directly over her. DNA analysis revealed that it was highly probable the drops of blood, and other blood samples taken from Tina's clothing, had come from appellant.

A broken stick found at the murder scene matched a wood chip recovered from the emergency brake cable on the underside of appellant's car. The wood chip fit the broken stick `tongue-and-groove,' proving that appellant's Buick had been at the murder scene.

Forensic experts found blood in various locations within appellant's car, especially in the front seat. The bloodstains were inconsistent with appellant's claim that Tina had been stabbed in the back seat of the vehicle and dragged out the passenger's side. Blood splatter on the Buick, including bloodstains on the frame, wheel and brake drum, indicated that Tina had been stabbed to death while lying on the ground near the driver's side of the Buick. Additionally, Tina's bloody fingerprints were found on the outside driver's window of the Buick, as if Tina had gripped the glass from the interior of the vehicle while the door was open. The `Deerslayer' knife was missing from the glove box. Bloodstains on the glove box indicated that that compartment had been opened by someone with bloody hands.

Appellant became a suspect in the murder on February 10, 1989, when police spoke with Dr. Androw and learned that the bullet lodged in appellant's body was several years old. In May 1989, appellant was indicted on two separate counts for the aggravated murder of Tina. Count One charged appellant with the purposeful killing of Tina during the commission of an attempted rape. Count Two charged appellant with the purposeful killing of Tina during the commission of a kidnapping. Each of the two counts of aggravated murder carried death penalty specifications alleging that the murder had occurred during the commission of a kidnapping and attempted rape. Appellant was also indicted on one count of attempted rape and one count of kidnapping.

Appellant was tried before a jury. The jury found appellant guilty of all charges and specifications alleged in the indictment. Following a mitigation hearing, the jury recommended that appellant be sentenced to death for each of the two counts of aggravated murder. The trial court merged the two counts of aggravated murder and sentenced appellant to death. For the remaining offenses, appellant was sentenced in accordance with law. On appeal, the court of appeals affirmed appellant's convictions and sentences, including the sentence of death.

Scudder, 71 Ohio St.3d at 263-266.

II. State Court Procedural History A. Trial and Direct Appeal

Petitioner was indicted on May 31, 1989 by the Franklin County Grand Jury. Represented by Attorneys Karl Schneider and Thomas Erlenbach, petitioner entered a plea of not guilty and proceeded to a trial by jury. On November 16, 1990, petitioner was convicted of all counts. After a mitigation hearing, the jury returned a recommendation of death. On December 14, 1990, the trial court accepted the recommendation of the jury and sentenced petitioner to death. (App. Vol. I, Exs. B and C).

On January 14, 1991, petitioner filed a motion for a new trial, alleging that certain materials were submitted to the jury that were not in evidence. Specifically, petitioner argued that a wallet belonging to petitioner was inadvertently provided to the jury during deliberations, and that the wallet contained a prison ID card belonging to petitioner, as well as a document from the Ohio Adult Parole Authority indicating that petitioner was on parole. The motion also sought a new trial based on allegations of prosecutorial misconduct during the penalty phase of petitioner's trial. On March 27, 1991, the trial court overruled the motion for a new trial as untimely and without merit. (App. Vol. I, Ex. F).

Petitioner took a timely appeal of his convictions and sentence of death to the Court of Appeals for the Tenth Appellate District. Represented by Attorneys Scott Jelen and Nathan Ray, petitioner raised the following twenty-one assignments of error:

ASSIGNMENT OF ERROR NO. I: APPELLANT SCUDDER'S CONVICTION SHOULD BE REVERSED FOR THE REASON THAT THE TESTING PROCEDURES USED BY CELLMARK LABORATORY WERE NOT CONDUCTED PROPERLY.

A. THE PROCEDURES USED BY CELLMARK LABORATORY IN THIS CASE ARE NOT GENERALLY ACCEPTED BY THE SCIENTIFIC COMMUNITY AND ARE NOT CAPABLE OF PRODUCING RELIABLE RESULTS.

B. THE STATISTICAL METHOD USED BY CELLMARK LABORATORY TO ESTIMATE THE FREQUENCY OF THE DNA PRINT IN THE RELEVANT POPULATION WAS NOT RELIABLE.

ASSIGNMENT OF ERROR NO. II: APPELLANT SCUDDER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT HIS CAPITAL TRIAL FOR THE REASON THAT DEFENSE COUNSEL WAS INCOMPETENT WITH RESPECT TO THE DNA EVIDENCE.

ASSIGNMENT OF ERROR NO. III: THE PROSECUTOR'S REFERENCE TO DEFENSE EXPERT DR. LELAND AS DEFENSE COUNSEL'S `PET PSYCHOLOGIST' WAS PROSECUTORIAL MISCONDUCT WHICH WAS INTENDED TO PREJUDICE THE JURY AND THEREFORE, DENIED APPELLANT HIS RIGHT TO A FAIR AND IMPARTIAL JURY TRIAL.

ASSIGNMENT OF ERROR NO. IV: APPELLANT SCUDDER HAS BEEN UNFAIRLY PREJUDICED FOR THE REASON THAT OUTSIDE MATERIALS NOT ADMITTED INTO EVIDENCE WERE SUBMITTED TO THE JURY.

ASSIGNMENT OF ERROR NO. V: THE TRIAL COURT ERRED WHEN IT OVERRULED MR. SCUDDER'S MOTION FOR NEW TRIAL.

ASSIGNMENT OF ERROR NO. VI: APPELLANT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS OF LAW IN VIOLATION OF THE UNITED STATES CONSTITUTION AND OF HIS STATUTORY AND PROCEDURAL RIGHTS WHEN THE TRIAL COURT REFUSED TO ALLOW DEFENSE COUNSEL TO INSPECT PRIOR OUT-OF-COURT STATEMENTS MADE BY THE STATE'S WITNESSES TO POLICE OFFICERS. THE TRIAL COURT FURTHER ERRED BY NOT PRESERVING THE STATEMENTS AT ISSUE FOR PURPOSES OF APPEAL.

ASSIGNMENT OF ERROR NO. VII: THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT ALL OF ITS SENTENCING OPTIONS WERE `RECOMMENDATIONS.' ALLOWING THE PROSECUTOR TO USE LANGUAGE SAYING THE JURY ONLY `RECOMMENDS' THE DEATH PENALTY FURTHER ADDED TO THE ERROR.

ASSIGNMENT OF ERROR NO. VIII: APPELLANT SCUDDER WAS DENIED A FAIR TRIAL FOR THE REASON THAT THE PROSECUTION REPEATEDLY INTRODUCED IRRELEVANT AND INFLAMMATORY OTHER ACTS EVIDENCE.

ASSIGNMENT OF ERROR NO. IX: THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION; SECTIONS 9 AND 16, ARTICLE I OF THE OHIO CONSTITUTION AND SECTION 2945.25(C) OF THE OHIO REVISED CODE GUARANTEE AN ACCUSED A FAIR TRIAL AND IMPARTIAL JURY. THE TRIAL COURT'S EXCLUSION OF POTENTIAL JURORS BRIAN VIERLING AND BRENDA WINTERS DENIED APPELLANT THESE CONSTITUTIONAL GUARANTEES.

ASSIGNMENT OF ERROR NO. X: APPELLANT SCUDDER WAS DENIED A FAIR TRIAL AND HIS RIGHTS AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION DUE TO THE INEFFECTIVE ASSISTANCE OF HIS COUNSEL.

ASSIGNMENT OF ERROR NO. XI: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT SCUDDER BY GIVING ERRONEOUS INSTRUCTIONS OF LAW AT THE GUILT-INNOCENCE PHASE OF HIS CAPITAL TRIAL.

ASSIGNMENT OF ERROR NO. XII: THE JURY'S CONSIDERATION OF DUPLICATIVE MURDER COUNTS AND AGGRAVATING CIRCUMSTANCES TIPPED THE WEIGHING PROCESS AGAINST APPELLANT SCUDDER, DESTROYED THE RELIABILITY OF THE SENTENCING PROCESS AND RESULTED IN THE ARBITRARY AND CAPRICIOUS IMPOSITION OF THE DEATH SENTENCE IN VIOLATION OF 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. XIII: THE TRIAL COURT ERRED BY SUSTAINING THE STATE'S MOTION IN LIMINE TO PROHIBIT THE ADMISSION OF A STATEMENT MADE BY MR. SCUDDER TO THE POLICE.

ASSIGNMENT OF ERROR NO. XIV: THE TRIAL COURT ERRED IN ALLOWING OPINION EVIDENCE ON THE SUBJECT OF `BLOOD SPLATTER ANALYSIS' BY WITNESS YOUNG.

ASSIGNMENT OF ERROR NO. XV: KEVIN SCUDDER WAS DENIED HIS SIXTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS TO A FAIR TRIAL, DUE PROCESS AND A RELIABLE DETERMINATION OF HIS GUILT AND SENTENCE WHEN GRUESOME, PREJUDICIAL AND CUMULATIVE PHOTOGRAPHS WERE ADMITTED INTO EVIDENCE EVEN THOUGH THEIR PREJUDICIAL EFFECT OUTWEIGHED THEIR PROBATIVE VALUE.

ASSIGNMENT OF ERROR NO. XVI: THE TRIAL COURT ERRED BY ALLOWING THE ADMISSION OF A MODEL KNIFE INTO EVIDENCE IN DEROGATION OF MR. SCUDDER'S RIGHTS UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 2, 9, 10 AND 16, ARTICLE I, AND SECTION 26, ARTICLE II OF THE OHIO CONSTITUTION.

ASSIGNMENT OF ERROR NO. XVII: THE TRIAL COURT VIOLATED APPELLANT'S FUNDAMENTAL RIGHT TO THE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION WHEN IT FAILED TO MAKE SUFFICIENT INQUIRY INTO THE REASONS FOR APPELLANT'S REQUEST FOR SUBSTITUTE COUNSEL AND TO DETERMINE WHETHER THEY WERE ARBITRARY OR LEGITIMATE.

ASSIGNMENT OF ERROR NO. XVIII: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT SCUDDER IN FAILING TO DISMISS HIS CAPITAL INDICTMENT BASED ON THE PROPORTIONALITY PROCESS IN OHIO.

ASSIGNMENT OF ERROR NO. XIX: THE SENTENCE OF DEATH IMPOSED ON APPELLANT SCUDDER WAS UNRELIABLE AND INAPPROPRIATE. THE DEATH SENTENCE IN HIS CASE VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, SECTIONS 9 AND 16, ARTICLE I OF THE OHIO CONSTITUTION AND OHIO REVISED CODE, SECTION 2929.05.

ASSIGNMENT OF ERROR NO. XX: THE STATE FAILED TO INTRODUCE SUFFICIENT EVIDENCE TO PROVE ATTEMPTED RAPE BEYOND A REASONABLE DOUBT. APPELLANT SCUDDER WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS OF LAW UNDER THE STATE AND FEDERAL CONSTITUTIONS.

ASSIGNMENT OF ERROR NO. XXI: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT SCUDDER IN FAILING TO DISMISS HIS CAPITAL INDICTMENT BECAUSE THE CAPITAL STATUTORY SCHEME IN OHIO IS UNCONSTITUTIONAL.

(App. Vol. I, Ex. H). On October 20, 1992, the court of appeals issued a decision affirming petitioner's convictions and sentence. State v. Scudder, Case No. 91AP-506 (Ohio App. 10^th Dist. Oct. 20, 1992); (App. Vol. I, Ex. K).

Petitioner appealed to the Supreme Court of Ohio. Represented by Attorneys Lawrence Komp and Pamela Conger, petitioner raised the following propositions of law:

Proposition of Law No. I: Appellant Scudder was denied his right to a fair trial, effective assistance of counsel, equal protection, and due process by the state's improper introduction of surprise evidence in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution, Article I, Sections 2, 5, 9, 10 and 16 of the Ohio Constitution and Criminal Rule 16.

Proposition of Law No. II: Appellant was denied the right to his defense and to a reliable sentencing determination when the state was permitted to withhold discovery but also exonerate alternative suspects, in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 10 and 16 of the Ohio Constitution.

Proposition of Law No. III: The state's instruction to at least one witness not to talk to the defense team violated appellant Scudder's right to effectively prepare for his capital trial in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments of the United States Constitution, Article I, Sections 1, 2, 5, 9, 10, 16 and 20 of the Ohio Constitution and Criminal Rule 16(B)(1)(e).

Proposition of Law No. IV: The prosecutor's comments on appellant's failure to call witnesses, to explain, or otherwise rebut the state's case violated appellant's right to remain silent and to be presumed innocent in violation of the Fifth and Fourteenth Amendment[s] to the United States Constitution and Article I, Section 10 of the Ohio Constitution.

Proposition of Law No. V: Appellant Scudder was prejudiced by the admission of evidence obtained from illegal searches and seizures in violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9, 10, 14 and 16 of the Ohio Constitution.

Proposition of Law No. VI: The state elicited the testimony of Dr. Androw concerning a privileged x-ray interfering with appellant Scudder's substantive right of a patient-physician privilege in violation of the Fourth, Eighth and Fourteenth Amendments to the United States Constitution, Ohio Revised Code Section 2317.02(B) and Article I, Sections 2, 9 and 14 of the Ohio Constitution.

Proposition of Law No. VII: Appellant Scudder's tape-recorded statement to Robert Muncy was involuntary and inadmissible under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9 and 16 of the Ohio Constitution.

Proposition of Law No. VIII: An appellate court not having the entire record cannot adequately review the case pursuant to Ohio Rev. Code Ann. Section[s] 2929.05 and 2929.03(G) and the capital defendant is deprived of his rights to effective assistance of counsel, equal protection, due process of law and meaningful appellate review under the Eighth and Fourteenth Amendments of the United States Constitution and Article I, Sections 2, 10 and 16 of the Ohio Constitution.

Proposition of Law No. IX: The death sentence imposed on appellant Scudder is unreliable, inappropriate and violates the Eighth and Fourteenth Amendments to the United States Constitution, Article I, Sections 9 and 16 of the Ohio Constitution and O.R.C. Section 2929.05.

Proposition of Law No. X: A capital defendant's death sentence is unreliable and inappropriate when he is denied the procedural safeguard of a meaningful, independent review by the trial court and the appellate court under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution, Article I, Sections 9 and 16 of the Ohio Constitution, O.R.C. Sections 2929.03(F) and 2929.05.

Proposition of Law No. XI: The jury's and trial court's consideration of duplicative murder counts and aggravating circumstances tipped the weighing process against appellant Scudder, destroyed the reliability of the sentencing process and resulted in the arbitrary and capricious imposition of the death sentence in violation of 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. XII: Misconduct by the government's attorney during voir dire in appellant Scudder's trial, deprived him of his rights to due process, a fair trial and a fair and reliable determination of his guilt and sentence as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

Proposition of Law No. XIII: Appellant Scudder was denied his rights to a fair trial and due process by prosecutorial misconduct during the guilt phase of his trial in violation of 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.

Proposition of Law No. XIV: Substantial prosecutorial misconduct at the penalty phase violated appellant's rights to due process, and a fair and reliable sentence in violation of the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9 and 16 of the Ohio Constitution.

Proposition of Law No. XV: Appellant's jury was precluded from considering relevant, unrebutted mitigation evidence due to court-sanctioned prosecutorial misconduct in the form of attacks on the key mitigation witness, in violation of the Sixth, Eighth and Fourteenth Amendment[s] to the United States [Constitution] and Article I, Sections 9 and 10 of the Ohio Constitution.

Proposition of Law No. XVI: Prosecutorial evidence and argument on irrelevant and unproven other acts violates Ohio R.Evid. 404(B), O.R.C. Section 2945.59 and denies the capital defendant his rights to due process of law, a fair trial and trial by an impartial jury as guaranteed by the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 5, 9, 10, 16 of the Ohio Constitution.

Proposition of Law No. XVII: The admission of hearsay evidence violated appellant's right to confront witnesses and to due process under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.

Proposition of Law No. XVIII: The trial court's numerous errors and omissions regarding the penalty phase jury instructions violated appellant Scudder's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Section[s] 9, 10 and 16 of the Ohio Constitution.

Proposition of Law No. XIX: The trial court erred to the prejudice of appellant Scudder by giving erroneous instructions of law at the culpability phase of his capital trial.

Proposition of Law No. XX: The statements and service of biased jurors on the jury in Mr. Scudder's case violated his right to trial by a fair and impartial jury and to due process as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, Ohio Rev. Code Ann. Section[s] [2]945.25(B), (O) (Anderson 1988) and Ohio R.Crim.P. 24(B)(9), (14) and Article I, Sections 10 and 16 of the Ohio Constitution.

Proposition of Law No. XXI: The Eighth and Fourteenth Amendments to the United States Constitution; Article I, Sections 9 and 16 of the Ohio Constitution and Section 2945.25(C) of the Ohio Revised Code guarantee an accused a fair trial and impartial jury. The trial court's exclusion of potential jurors Vierling, Winters and Barnum denied appellant these constitutional guarantees.

Proposition of Law No. XXII: The trial court erred in denying Mr. Scudder's motion for mistrial based upon contamination of the jury panel during voir dire in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article I, Sections 5 and 16 of the Ohio Constitution.

Proposition of Law No. XXIII: The trial court erroneously excluded a statement made by Kevin Scudder to the Columbus police concerning the crime in violation of 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. XXIV: The trial court improperly refused to allow defense counsel to inspect prior out-of-court statements made by the state's witnesses to police officers and failed to preserve the statements at issue for purposes of appeal yet made available to the state defense informational summaries and an expert's file in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article I, Section 10 of the Ohio Constitution; and Ohio Criminal Rule 16(B)(1)(g).

Proposition of Law No. XXV: Appellant Scudder has been unfairly prejudiced for the reason that materials not admitted into evidence were submitted to the jury that revealed that appellant was a prior convict and may have been involved in a rape in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 9, 10 and 16 and Article II, Section 26 of the Ohio Constitution.

Proposition of Law No. XXVI: The trial court erred by allowing the admission of a model knife into evidence in derogation of Mr. Scudder's rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 9, 10 and 16 and Article II, Section 26 of the Ohio Constitution.

Proposition of Law No. XXVII: It is a violation of the right to due process, fair trial under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Article I, Section 16 of the Ohio Constitution, and Rule 401, 402, 403 and 702 of the Ohio Rules of Evidence to admit DNA evidence.

Proposition of Law No. XXVIII: The trial court erred in allowing opinion evidence on the subject of `blood spatter analysis' by a state's witness when the witness' analysis fell below the standards of the profession thereby violating Kevin Scudder's Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments rights of [sic] the United States Constitution and Article I, Sections 1, 10 and 16 of the Ohio Constitutions [sic].

Proposition of Law No. XXIX: The trial court violated appellant's fundamental right to the assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution when it failed to make sufficient inquiry into the reasons for appellant's request for substitute counsel and to determine whether they were arbitrary or legitimate.

Proposition of Law No. XXX: The Fifth, Eighth and Fourteenth Amendments to the United States Constitution, Article I, Sections 10 and 16 of the Ohio Constitution and Ohio Rev. Code Ann. Section 2929.05 (Anderson 1988) guarantee a convicted capital defendant a meaningful proportionality review of his death sentence with similar cases.

Proposition of Law No. XXXI: The ineffective assistance of counsel provided to appellant Scudder violated his rights to a fair and impartial jury 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.

Proposition of Law No. XXXII: Appellant Scudder was denied the effective assistance of appellate counsel in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 10 and 16 of the Ohio Constitution.

Proposition of Law No. XXXIII: The ineffective assistance of counsel provided to appellant Scudder during the mitigation phase violated his rights to a fair and impartial jury 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.

Proposition of Law No. XXXIV: The state denied appellant Scudder his right to a speedy trial in violation of the Sixth and Fourteenth Amendments to the United States Constitution, Article I, Section 10 of the Ohio Constitution and Ohio Revised Code Section 2945.401.

Proposition of Law No. XXXV: The state failed to introduce sufficient evidence to prove appellant's guilt beyond a reasonable doubt. Appellant Scudder was deprived of his right to due process of law under the state and federal constitutions.

Proposition of Law No. XXXVI: The trial court violated Mr. Scudder's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 2 and 10 of the Ohio Constitution, when it improperly denied appellant's motion that would permit him to ex parte request funding for experts and investigators.

Proposition of Law No. XXXVII: Admission at the guilt phase of irrelevant evidence concerning the victim to arouse the sympathy of the jury violated appellant's rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article I, Sections 5 and 10 of the Ohio Constitution.

Proposition of Law No. XXXVIII: Kevin Scudder was denied his Sixth, Eighth and Fourteenth Amendment rights to a fair trial, due process and a reliable determination of his guilt and sentence when gruesome, prejudicial and cumulative photographs were admitted into evidence even though their prejudicial effect outweighed their probative value.

Proposition of Law No. XXXIX: The prosecutor's and defense counsel's comments and the court's instructions to the jury that the sentencing verdict was only a `recommendation' diminished the jury's responsibility for its verdict and undermined the reliability of the death verdict in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 5, 9, 10 and 16 of the Ohio Constitution.

Proposition of Law No. XL: The Fifth, Eighth and Fourteenth Amendments to the United States Constitution, Article I, Sections 10 and 16 of the Ohio Constitution and Ohio Rev. Code Ann. Section 2929.05 guarantee a convicted capital defendant a fair and impartial review of his death sentence. The statutorily mandated proportionality process in Ohio is fatally flawed thereby denying Kevin Scudder the above rights.

Proposition of Law No. XLI: A death sentence based on commission of a felony murder, when the aggravating circumstance merely duplicates an element of felony murder, violates the Eighth and Fourteenth Amendments of the United States Constitution and Article I, Sections 2, 9 and 16 of the Ohio Constitution.

Proposition of Law No. XLII: 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's statutory provisions governing the imposition of the death penalty, contained in Ohio Rev. Code Ann. Sections 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05, (Anderson 1988), do not meet the prescribed requirements and thus are unconstitutional, both on their face and as applied to appellant Scudder.

Proposition of Law No. XLIII: Appellant Scudder was prejudiced by the state's failure to record the grand jury proceedings thereby violating the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 2 and 10 of the Ohio Constitution.

Proposition of Law No. XLIV: The court of appeals denied Mr. Scudder his constitutional right to appellate review when Judge Deshler failed to recuse himself from the appellate panel in violation of his [sic] Sixth, Eighth and Fourteenth Amendments of the United States Constitution, Article I, Sections 2, 9 and 10 of the Ohio Constitution, Canon 3C(1) of Ohio's Code of Judicial Conduct and Canon 3C of the Judicial Canons.

Proposition of Law No. XLV: A capital defendant's constitutional rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the federal constitution and Article I, Sections 2, 9, 10 and 16 of the Ohio Constitution are violated when the trial court refuses to instruct the jury that it can consider mercy in its sentencing decision.

Proposition of Law No. XLVI: The Fourteenth Amendment to the United States Constitution; Article I, Section 16 of the Ohio Constitution; and Ohio Rev. Code Ann. Section 2929.05 (Anderson 1988) require that the trial court keep a complete and full transcript of all proceedings occurring in the trial court. The trial court's failure to maintain such a record during the trial denied appellant his rights as guaranteed by the Ohio Revised Code, 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.

Proposition of Law No. XLVII: The trial court erred when it overruled Mr. Scudder's motion for new trial, in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article I, Sections 9, 10 and 16 of the Ohio Constitution, and Ohio Criminal Rule 33(B).

(App. Vol. II, Exs. M, N; Vol. III, Ex. O). On December 20, 1994, the Ohio Supreme Court rejected petitioner's propositions of law, determined after independent review that the aggravating circumstance outweighed the mitigating factors, and concluded that the death sentence was not disproportionate. State v. Scudder, 71 Ohio St. 3d 263 (1994); (App. Vol. IV, Ex. X).

On December 30, 1994, petitioner filed a Motion for Reconsideration asking the court to reconsider whether it conducted a meaningful review of his case and whether the court was correct in concluding that the trial court did not abuse its discretion by permitting the state to introduce testimony of three experts whose identities or reports were not disclosed to petitioner until after his trial had started. (App. Vol. IV, Ex. Y). On February 1, 1995, the Ohio Supreme Court denied petitioner's motion for reconsideration. (App. Vol. IV, Ex. AA). On June 26, 1995, the United States Supreme Court denied a petition for writ of certiorari. Scudder v. Ohio, 515 U.S. 1164 (1995); (App. Vol. IV, Ex. EE).

B. Postconviction Proceedings Under R.C. § 2953.21

On August 2, 1996, petitioner filed a petition to vacate or set aside his sentence pursuant to O.R.C. § 2953.21 in the Franklin County Court of Common Pleas. He was represented by Attorneys Barry Wilford and Richard Ketcham. The petition, which consisted of forty (40) consecutively numbered paragraphs, failed to set forth a concise ground for relief with respect to each numbered claim. (App. Vol. IV, Ex. FF). On September 3, 1996, Attorney Wilford moved to withdraw from the case, and the trial court granted that request. Subsequently, on June 11, 1997, petitioner filed a pro se motion to discharge counsel of record and proceed pro se. (App. Vol. IV, Ex. KK). On June 18, 1997, petitioner filed an amended petition prepared on his behalf by Attorney Terry Sherman. The Court of Appeals summarized the petition and amended petition for post-conviction relief as setting forth the following claims:

(1) that defendant was denied a fair trial due to the trial court's refusal to permit the presentation of additional mitigating evidence; (2) that defendant was denied effective assistance of counsel in regard to the admission of DNA evidence; (3) that defendant was denied a fair trial by virtue of the admission of unreliable DNA evidence; (4) that defendant was denied effective assistance of trial counsel as counsel failed to present the testimony of an alleged alibi witness; (5) that defendant was denied a fair trial by virtue of the state's failure to disclose exculpatory evidence; (6) that defendant was denied effective assistance of counsel as counsel failed to present the jury with accurate and competent evidence of defendant's alleged mental impairment; (7) that defendant was denied a fair trial by the admission of unreliable psychological evidence; and (8) that defendant was denied a fair trial by virtue of the trial court's incorrect jury instructions.

State v. Scudder, 131 Ohio App. 3d 470, 472-73 (10^th Dist. 1998); (App. Vol. IV, Ex. FF, LL). On November 21, 1997, the trial court issued findings of fact and conclusions of law denying petitioner post-conviction relief. (App. Vol. IV, Ex. PP).

Petitioner, represented by Attorney Keith Yeazel, filed a timely notice of appeal of the trial court's decision. However, on May 7, 1998, petitioner filed, pro se, a notice that he would not appeal the trial court's denial of post-conviction relief. (App. Vol. IV, Ex. QQ). On May 22, 1998, petitioner filed a notice of withdrawal of his pro se notice of withdrawal. (App. Vol. IV, Ex. RR). On June 1, 1998, petitioner filed a brief in the Ohio Court of Appeals for the Tenth Appellate District, presenting the following three assignments of error:

First Assignment of Error: The trial court erred when it violated Appellant's right to equal protection and due process right to effective assistance of counsel and his right to proceed pro se by failing to conduct an evidentiary hearing on Appellant's claim of ineffective assistance of post-conviction counsel and desire to proceed pro se.

Second Assignment of Error: The trial court erred in failing to hold a hearing on petitioner's ineffective assistance of counsel claim, thus violating his rights under the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 1, 2, 9, 10, 16 and 20 of the Ohio Constitution.

Third Assignment of Error: The trial court erred in dismissing the petition because the State post conviction scheme as applied offers an inadequate corrective process for the factual development, hearing and determination of claims in violation of State and Federal Constitutional guarantees.

(App. Vol. IV, Ex. SS); Scudder, 131 Ohio App. 3d at 473. On December 3, 1998, the court of appeals affirmed the decision of the trial court. (App. Vol. IV, Ex. VV); Scudder, 131 Ohio App. 3d at 478.

On December 14, 1998, petitioner filed a pro se notice indicating that he did not intend to pursue any further appeals. (App. Vol. IV, Ex. XX). On December 24, 1998, petitioner filed a pro se motion to set an execution date. (App. Vol. IV, Ex. YY). On January 20, 1999, petitioner, through Attorney Yeazel, filed a notice of appeal to the Ohio Supreme Court and a memorandum in support of jurisdiction. On April 21, 1999, the Ohio Supreme Court dismissed petitioner's appeal as not involving any substantial constitutional question. (App. Vol. V, Ex. DDD).

III. Habeas Corpus Proceedings

Petitioner initiated the instant proceedings on April 29, 1999, by filing a notice of intent and a motion for appointment of counsel. On June 1, 1999, the Court appointed Attorneys Frederick Benton and George Luther to serve as petitioner's counsel. On July 6, 1999, appointed counsel moved to withdraw, citing a lack of time to carry out their charge properly and noting that "Mr. Scudder has requested that Attorney Adele Shank be appointed to represent him." On August 20, 1999, the Court appointed S. Adele Shank as counsel of record. On December 1, 1999, the Court appointed Sharon Ovington to serve as co-counsel.

On January 10, 2000, proceeding as next friend for petitioner, Attorney Shank filed a petition for writ of habeas corpus. Although Attorney Shank signed the petition, petitioner refused to do so. On January 24, 2000, petitioner, proceeding pro se, filed a motion for voluntary dismissal of his habeas corpus petition, stating that he desired to "forego any and all further legal challenges to his conviction and death sentence. . . ." (doc. no. 18).

On February 4, 2000, the Court stayed all pending motions in this case and ordered an evaluation of petitioner's competency to waive further appeals of his death sentence. The Court appointed three expert psychiatrists to assist the Court in making said determination. On July 27, 2001, petitioner and Attorney Shank filed a Ratification of Habeas Corpus Petition by Kevin Scudder. Included in that pleading is an affidavit by petitioner stating, in part: "I desire to pursue my right to federal habeas relief and to have my death sentence and conviction set aside." (Doc. no. 91). On August 27^th and August 28^th, 2001, the Court held petitioner's competency hearing. The Court called its three expert witnesses as court witnesses and allowed counsel for both parties to examine the psychiatrists as if upon cross-examination. No other witnesses were called. On September 12, 2001, this Court issued a Competency Determination, finding petitioner incompetent to waive further legal challenges to his death sentence. (Doc. no. 99). Since that time, petitioner has filed several pro se motions to stop Attorney Shank from acting as next friend.

On October 17, 2002, the Court granted a motion to withdraw as counsel filed by Attorney Ovington, and the Court subsequently appointed Attorney Gary Crim as co-counsel in this matter.

On February 10, 2003, counsel for petitioner filed an amended habeas corpus petition raising the following claims for relief:

FIRST CLAIM FOR RELIEF: Petitioner suffers from serious mental illness now and did so at the time of the crime. It violates the Fifth, Eighth and Fourteenth Amendments to the United States Constitution to execute the seriously mentally ill.

SECOND CLAIM FOR RELIEF: Petitioner was incompetent to stand trial or to go forward with any subsequent legal proceedings. No court evaluated his competency in compliance with federal constitutional standards.

THIRD CLAIM FOR RELIEF: Petitioner's trial lawyers provided ineffective assistance of counsel when they failed to exercise due diligence to develop a working relationship with Petitioner and thus failed to recognize his mental illness and consequently failed to act in his interests. As a result Petitioner was denied his rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

FOURTH CLAIM FOR RELIEF: Petitioner was denied his rights to Due Process and all other trial and sentencing rights protected by the United States Constitution when the State withheld from the Court and defense counsel evidence of Petitioner's incompetence to stand trial.

FIFTH CLAIM FOR RELIEF: Petitioner was denied the effective assistance of trial counsel guaranteed by the Sixth and Fourteenth Amendments when his lawyers failed to investigate and adequately challenge DNA evidence presented by the state.

SIXTH CLAIM FOR RELIEF: Petitioner was denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments when his trial lawyers failed to object to improper evidence, jury instructions and court procedures.

SEVENTH CLAIM FOR RELIEF: Petitioner was denied the effective assistance of counsel guaranteed by the Fifth, Sixth and Fourteenth Amendments when his lawyers failed to act as advocates throughout the trial.

EIGHTH CLAIM FOR RELIEF: Petitioner was denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments when his trial lawyers failed to investigate and prepare for the sentencing phase of trial.

NINTH CLAIM FOR RELIEF: Ineffective assistance of appellate counsel denied Petitioner his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

TENTH CLAIM FOR RELIEF: Trial Court errors denied Petitioner a fair trial and deprived him of his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

ELEVENTH CLAIM FOR RELIEF: Petitioner's car was illegally searched in violation of the Fourth Amendment. Admission of the illegally seized evidence and the fruits thereof violated his right to a fair trial and equal protection of the law.

TWELFTH CLAIM FOR RELIEF: Failure to record Grand Jury proceedings denied Petitioner a fair trial, effective review and a fair sentencing in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

THIRTEENTH CLAIM FOR RELIEF: The courts of appeals failed to conduct a constitutionally adequate review when it proceeded to judgment in the absence of a complete record.

FOURTEENTH CLAIM FOR RELIEF: Absence of a complete record denied petitioner the effective assistance of appellate counsel.

FIFTEENTH CLAIM FOR RELIEF: Petitioner's conviction is based on insufficient evidence.

SIXTEENTH CLAIM FOR RELIEF: Petitioner was denied his right to a speedy trial.

SEVENTEENTH CLAIM FOR RELIEF: Prosecutorial misconduct denied Petitioner his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

EIGHTEENTH CLAIM FOR RELIEF: Use of all forms of execution, including but not limited to the electric chair and lethal injection, is unconstitutional as is forcing the condemned to choose his own form of execution.

NINETEENTH CLAIM FOR RELIEF: Inaccurate and omitted jury instructions denied Petitioner his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

TWENTIETH CLAIM FOR RELIEF: Petitioner was denied fair appellate review when a judge failed to recuse himself.

TWENTY-FIRST CLAIM FOR RELIEF: Petitioner was denied his rights under the Fifth, Sixth and Fourteenth Amendments when the court refused to allow Petitioner to represent himself.

TWENTY-SECOND CLAIM FOR RELIEF: The post conviction court erred in denying Petitioner a hearing on his state post conviction claims.

TWENTY-THIRD CLAIM FOR RELIEF: A death sentenced prisoner is entitled to the effective assistance of counsel in state post conviction proceedings under the Sixth and Fourteenth Amendments to the United States Constitution.

TWENTY-FOURTH CLAIM FOR RELIEF: The death penalty imposed upon Petitioner is unreliable, inappropriate and violates the Eighth and Fourteenth Amendments to the United States Constitution.

TWENTY-FIFTH CLAIM FOR RELIEF: A capital defendant's death sentence is unreliable and inappropriate when he is denied the procedural safeguard of meaningful independent review by the Ohio courts as guaranteed by the Fifth, Eighth and Fourteenth Amendments to the United States Constitution.

TWENTY-SIXTH CLAIM FOR RELIEF: The statements and service of biased jurors on the jury violated Petitioner's right to a fair and impartial jury and to due process as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.

TWENTY-SEVENTH CLAIM FOR RELIEF: A death sentence based on commission of a felony murder, when the aggravating circumstance merely duplicates an element of felony murder, violates the Eighth and Fourteenth Amendments of the United States Constitution.

TWENTY-EIGHTH CLAIM FOR RELIEF: Consideration of duplicative murder counts and aggravating circumstances by both the jury and the trial court tipped the weighing process against Petitioner, destroyed the reliability of the sentencing process and resulted in the arbitrary and capricious imposition of the death penalty in violation of the Eighth and Fourteenth Amendments to the United States Constitution.

TWENTY-NINTH CLAIM FOR RELIEF: The Ohio Supreme Court's rubber stamp proportionality review of Petitioner's death sentence denied him his right to a fair and impartial review of his death sentence guaranteed by the Fifth, Eighth and Fourteenth Amendments to the United States Constitution.

THIRTIETH CLAIM FOR RELIEF: Ohio's statutory provisions governing the imposition of the death penalty contained in OHIO REV. CODE §§ 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05 (Anderson 1988) are unconstitutional both on their face and as applied to Petitioner.

(Amended Petition, doc. no. 121).

IV. Procedural Default Discussion

It does not appear that every claim petitioner has raised in his amended 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 post-conviction 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 post-conviction, 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, his petition is subject to dismissal for failure to exhaust state remedies. 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. 1985).

Respondent alleges that many of petitioner's claims, in their entirety or in part, are subject to procedural default. The Court will address each of the claims individually to determine whether those claims are subject to the procedural defaults alleged by respondent. Initially, the Court notes that respondent raises no procedural default arguments with respect to the following grounds for relief: ground five, ground fourteen, ground eighteen, ground twenty, grounds twenty-one through twenty-five, and grounds twenty-seven through thirty. Respondent also does not allege default with respect to portions of ground six, ground seven, ground nine, and ground ten. That being so, the Court need not address those claims, or those portions of the claims, in this procedural default order, and will regard those claims as properly before the Court.

At the outset, the Court will address two of petitioner's general arguments regarding procedural default. First, petitioner argues that the rules concerning procedural default should not apply in this case because "application of this rule is premised on the existence of a constitutionally adequate state system of post-conviction relief." (Am. Traverse, doc. no. 157, at 258). Petitioner continues that "[a] state system that does not provide the habeas petitioner with an adequate opportunity to discover a federal claim and present it to the state courts is an inadequate review system, and any state procedural default which is a product of that inadequate system should not be honored by the federal courts." ( Id.). Petitioner argues that Ohio's system of post-conviction review does not provide condemned prisoners with a constitutionally adequate system for reviewing their conviction and sentence, and that the post-conviction review process in Ohio has been "whittled away" to the point that it is a "meaningless exercise that provides no check against an unconstitutional conviction and sentence." ( Id. at 260). In sum, petitioner argues that procedural bars which are the product of a fundamentally flawed post-conviction system should not be recognized by this Court.

This Court is unaware of any authority, and petitioner has not presented this Court with any authority, that supports his position. Petitioner's arguments are insufficient to excuse his failure to include non-record claims in his post-conviction action. The Court notes that perhaps petitioner's criticisms of Ohio's post-conviction system would be more persuasive had he actually raised the allegations at issue in his post-conviction action and could now point specifically to a manner in which the various flaws he identifies in the system resulted in an unfair or ineffective adjudication of his allegations. But such is not the case, as petitioner merely alleges in generalities that Ohio's post-conviction system has become an exercise in futility. In any event, the United States Court of Appeals for the Sixth Circuit has consistently held that the failure to raise claims in Ohio's post-conviction system is an adequate and independent ground for foreclosing federal habeas corpus review. See, e.g., Mason v. Mitchell, 320 F.3d 604, 628 (6th Cir. 2003); Coleman v. Mitchell, 268 F.3d 417, 428-29 (6th Cir. 2001).

Second, petitioner argues that because both the intermediate appellate court and the Ohio Supreme Court were required to independently review the entire record for anything that made death an inappropriate sentence, the doctrine of res judicata should not apply between the first direct appeal and the second. (Am. Traverse, doc. no. 157 at 274). Specifically, petitioner argues that "the doctrine of procedural default in the usual sense is not applicable in Ohio to any claim that is apparent on the face of the record on appeal of a death penalty case" because "[b]oth the Ohio Supreme Court and the Ohio Courts of Appeals are required to review the entire record in every capital case." (Supp. Traverse, doc. no. 164, at 31). Petitioner's argument finds no support in the applicable law. The Supreme Court of Ohio has consistently applied Ohio's waiver rules in capital cases and determined that "`capital defendants are not entitled to special treatment regarding evidentiary or procedural rules.'" State v. Murphy, 91 Ohio St.3d 516, 532 (2001) ( citing State v. Greer, 39 Ohio St.3d 236, 244 (1988)).

A. First Ground for Relief — Serious Mental Illness Claim

In his first ground for relief, petitioner argues that the execution of those who are seriously mentally ill at the time of their crimes violates the United States Constitution. Petitioner argues that he currently suffers from borderline personality disorder, a serious mental illness, and that he suffered from borderline personality disorder at the time of the murder for which he was sentenced to death. According to petitioner, "[t]hose who suffer from severe mental illness, like juveniles and the mentally retarded, do not act with the degree of culpability that can justify the ultimate punishment." (Am. Pet., doc. no. 121, at ¶ 3). Petitioner seeks a ruling from this Court that "it is no longer permissible under the Eighth Amendment to the United States Constitution to execute persons suffering from a diagnosed severe mental illness." (Am. Traverse, doc. no. 157, at 67).

As support for this ground for relief, Petitioner cites this Court's finding that he is incompetent to waive his appeals, as well as the diagnosis by the Court's experts that he suffers from borderline personality disorder. Petitioner asserts that in the past, he has been found incompetent to stand trial, has been found not guilty by reason of insanity in other proceedings, and has been found incompetent to make medical decisions. (Am. Traverse, doc. no. 157 at 55-56). Petitioner argues that he has been receiving psychological and psychiatric treatment since he was in grade school.

Respondent argues that this ground for relief is procedurally defaulted because petitioner has never presented this claim to any state court either on direct appeal or during the post-conviction proceedings. As such, respondent contends that petitioner's serious mental illness claim is precluded by res judicata.

Petitioner argues that his serious mental illness claim is not subject to the rules of waiver and procedural default because severe mental illness is a complete bar to execution. Petitioner contends that "[t]he seriously mentally ill suffer from impaired perception, impaired judgment, and limited impulse control just as do juveniles and the mentally retarded." (Doc. no. 168, at 1). Petitioner argues that "[b]ecause serious mental illness is a status that constitutionally precludes execution, there is no waiver or procedural default applicable." (Supp. Traverse, doc. no. 164, at 2). Entwined in this argument is petitioner's contention that execution of the severely mentally ill falls within the "innocence of death" exception identified in Sawyer v. Whitely, 505 U.S. 333, 347 (1992), because it challenges certain elements which render a defendant eligible for the death penalty. (Am. Traverse, doc. no. 157, at 63-64).

The Court finds petitioner's argument that the rules of waiver and procedural default do not apply to his serious mental illness claim to be without merit. Petitioner has cited no authority, and this Court is unaware of any authority, that would support this position. To the contrary, in Scott v. Mitchell, 250 F.3d 1011 (6^th Cir. 2001), the Sixth Circuit invoked the doctrine of procedural default when it refused to consider a claim that the Eighth Amendment prohibits the execution of the seriously mentally ill. See also In re Woods, 155 Fed.Appx. 132, 136 (5^th Cir. 2005) (refusing to consider petitioner's claim that he could not be executed because he was mentally ill where petitioner "failed to raise this claim before the state courts of Texas."). Accordingly, the Court will now determine whether petitioner's first ground for relief is properly before the Court for consideration on the merits or whether it is procedurally defaulted.

Under the first part of the Maupin test, the Court must determine whether petitioner violated a state procedural rule. As noted above, 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. See Perry, 10 Ohio St. 2d 175. Similarly, claims which do not appear on the face of the record must be raised in a post-conviction action pursuant to R.C. § 2953.21. A review of the record reveals that petitioner's serious mental illness claim has never been presented to the Ohio courts.

Petitioner concedes that he did not present this claim to the state courts, but argues that this claim was not presented previously because the basis for this claim, i.e. the diagnosis of borderline personality disorder, was not known to him until the instant federal habeas corpus proceedings. According to petitioner, his expert witness at trial, Dr. Henry Leland, failed to properly diagnose his serious mental illness, and therefore, his "real and very serious mental illness was not recognized or considered in sentencing." (Supp. Traverse, doc. no. 164, at 4). Petitioner argues that the true extent of the serious mental illness that he suffered at the time of the offense did not become apparent until this Court conducted competency proceedings. Petitioner argues that Scott v. Mitchell, 250 F.3d 1011 (6^th Cir. 2001), stands for the proposition that a claim based on serious mental illness need not be raised until the mental illness is diagnosed.

In Scott, the petitioner was convicted by an Ohio jury of aggravated murder and aggravated robbery and sentenced to death. After Scott pursued all state court avenues of direct appeal and collateral review without success, he filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Ohio. That petition was ultimately denied, the Sixth Circuit affirmed the decision of the district court, and the United States Supreme Court denied Scott's petition for certiorari. After the Ohio Supreme Court set an execution date, Scott sought an evidentiary hearing in state court pursuant to Ohio Revised Code § 2949.28, claiming that he had been diagnosed as schizophrenic and the mental illness had progressed to the point that he was not competent to be executed.

The trial court held a hearing and determined that Scott was competent to be executed. The Ohio appellate courts affirmed the decision of the trial court. Scott filed a supplemental petition for a writ of habeas corpus in the federal district court, claiming that he was not competent to be executed, that Ohio's procedure for determining competency was unconstitutional, and that the Eighth Amendment prohibits the execution of someone who is seriously mentally ill. Scott argued that his additional claims for relief were not ripe when he filed his initial petition for habeas relief in the district court.

The district court denied Scott's supplemental petition on the merits. On appeal, the Sixth Circuit concluded that Scott's claims regarding his competency to be executed and Ohio's procedures for determining competency were properly before the Court but lacked merit. With respect to Scott's final claim — that the Eighth Amendment prohibits the execution of the severely mentally ill — the Sixth Circuit concluded that it was procedurally defaulted.

In finding that Scott's serious mental illness claim was barred, the Sixth Circuit determined that the claim had been available to Scott previously. Specifically, the Sixth Circuit held as follows:

We agree with the State that Scott's claim that the Eighth Amendment prohibits the execution of one who is severely mentally ill is barred. Although Scott was not specifically diagnosed as being schizophrenic until well after he filed his initial petition in 1996, his own pleadings make it clear that he had suffered from severe mental illness for years before that petition was filed. Any claim that his execution was prohibited by the Eighth Amendment because he was severely mentally ill was therefore ripe at the time that he filed that petition, but the petition makes no mention of such a claim. Accordingly, we conclude that the district court erred in considering this claim on the merits.

Scott, 250 F.3d at 1013. The Court held that Scott's competency to be executed claims were properly before the Court because his execution was imminent, and Scott alleged that his mental illness was progressive and that he had a declining mental state. Id. The Sixth Circuit concluded that although properly before the Court, Scott's competency claims lacked merit.

Looking to Scott for guidance, this Court concludes that petitioner could have presented this claim to the state courts on direct appeal. Contrary to petitioner's suggestion, there was evidence in the trial record upon which petitioner could have based this ground for relief. Even though petitioner had not been diagnosed with Borderline Personality Disorder at the time of his state court proceedings, the record, as well as his own pleadings, establish that he had suffered from severe mental illness for years prior to the crimes of which he was convicted. For example, Dr. Leland, petitioner's expert psychologist, testified during the mitigation hearing that petitioner suffered from a severe personality disorder. (Tr. Vol. 10, at 2660). Dr. Leland also testified that petitioner suffered from congenital brain damage, which became more severe throughout petitioner's life due to his substance abuse. ( Id. at 2660-2670). Dr. Leland testified that he conducted a psychological exam of petitioner on September 17, 1990, and that in addition to the actual evaluation of petitioner, he reviewed records dating back to petitioner's birth, and including extensive records of petitioner's mental health problems and treatment. ( Id. at 2614). Those records included information regarding a prior suicide attempt by petitioner, as well as a 1981 diagnosis that petitioner suffered from paranoid schizophrenia. ( Id. at 2632). Dr. Leland testified that petitioner experienced errors in understanding, had memory problems, and performed below his actual I.Q. ( Id. at 2625, 2647, 2651). Dr. Leland also testified that petitioner was admitted for psychiatric treatment at the Lima State Hospital on at least two occasions, and he received outpatient mental health treatment from the Central Ohio Psychiatric Hospital. ( Id. at 2633).

In addition, the record indicates that defense counsel had certified copies of entries from the Pickaway County Court of Common Pleas, going back to 1981, including a decree finding petitioner not guilty by reason of insanity. (Volume XII of XIII; trial volume 10, Ex. DD). There was also evidence in the record that petitioner was previously found to be incompetent to stand trial. These prior determinations caused petitioner's trial counsel to request a competency evaluation. Moreover, there was evidence in the record indicating that petitioner reported seeing and speaking with his deceased step-son. There was evidence in the record that although petitioner had been found competent by Riverside Hospital to make medical decisions regarding the amputation of his leg, "there was question at an outside hospital whether or not the patient may suffer some psychotic derangement." (Tr. Trans. Vol. XI, at 2564).

For the foregoing reasons, the Court concludes that the first part of the Maupin test has been met. Contrary to petitioner's suggestion, there was evidence in the trial record concerning his mental illness and upon which he could have based this ground for relief. Accordingly, the first part of the Maupin test is satisfied.

The second part of the Maupin test requires the Court to determine whether the state courts actually enforced the procedural rule. Because petitioner failed to present this serious mental illness claim to any state court, the state courts were never given an opportunity to enforce the res judicata rule. Consequently, the Court deems the second part of the Maupin test to have been met.

Under the third part of the Maupin test, the Court must determine whether the state procedural rule is an adequate and independent ground upon which to deny relief. To be "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 be "adequate," the state procedural rule must 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).

The determination of whether a state procedural rule is an adequate ground for denying relief necessarily focuses on the procedural rule at issue, namely, the Perry rule. The Court of Appeals for the Sixth Circuit, as well as other courts within this district, have consistently held, and recently reaffirmed, that Ohio's doctrine of res judicata, i.e., the Perry rule, is an adequate ground for denying federal habeas relief. Norris v. Schotten, 146 F.3d 314, 332 (6^th Cir. 1998); see also Zuern v. Tate, 101 F.Supp.2d 948, 959-960 (S.D. Ohio 2000); Jamison v. Collins, 100 F.Supp.2d 647, 768 (S.D. Ohio 2000). The doctrine of res judicata is stated in unmistakable terms in countless Ohio decisions, and Ohio courts have consistently refused, in reliance on that doctrine, to review the merits of claims. See State v. Cole, 2 Ohio St. 3d 112 (1982); State v. Ishmail, 67 Ohio St. 2d 16 (1981). Further, the doctrine of res judicata serves the state's interest in finality and in ensuring that claims are adjudicated at the earliest possible opportunity. That Ohio courts may on occasion elect to ignore or forgive non-compliance with its procedural rules has no bearing on the general question of whether the Perry rule is adequate. With respect to the independence prong, the Court concludes that res judicata does not rely on or otherwise implicate federal law. Accordingly, this Court is satisfied from its own review of relevant case law that the Perry rule is an adequate and independent ground for denying relief.

Once the Court determines that a claim is subject to procedural default, and that the procedural default is an adequate and independent ground upon which to deny relief, it is incumbent upon petitioner to demonstrate both cause for his failure to comply with the state procedural rule, as well as actual prejudice from the constitutional error. The Supreme Court has refrained from establishing firm contours for the cause-and-prejudice standard that the Court adopted for excusing the default of constitutional claims during state court proceedings. Amadeo v. Zant, 486 U.S. 214, 221-22 (1988). As a general rule, though, "the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the state's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986).

Petitioner first argues that any delay in obtaining an accurate diagnosis of his serious mental illness at the time of the crime is attributable to the state. Petitioner contends that the state had relevant medical, psychological and psychiatric records of petitioner that were not made available to defense counsel, the court, or the appointed evaluator when petitioner's competency was being determined. Petitioner alleges that the state withheld these documents until the mitigation phase of his trial, and then used them to undermine Dr. Leland, petitioner's mitigation expert, and to mislead the jury regarding the nature of petitioner's mental illness. (Supp. Traverse, doc. no. 164, at 6).

Petitioner next argues that 28 U.S.C. § 2254(b)(1)(B) provides exceptions to the requirement that a claim must first be presented to the state courts. Petitioner argues that a claim need not be presented to the state courts when there is an absence of available state corrective process, or when circumstances exist that render the process ineffective to protect the rights of the applicant. Petitioner argues that these exceptions are applicable to his claim that executing the seriously mentally ill is unconstitutional.

Petitioner also argues that when a legal claim is so novel that its legal basis is not reasonably available or known to counsel, the novelty of the claim may serve as cause for a procedural default. (Supp. Traverse, doc. no. 164, at 6). Petitioner contends that "[r]ecognition of the mentally ill as exempt from execution was so novel" that the Ohio Supreme Court said in Scott that "`Scott cites no authority, and we are not aware of any authority, that supports Scott's claim.'" ( Id. at 70). Petitioner argues that the appropriate time for raising this claim was when standards of decency had evolved to give rise to it, and these standards had not yet evolved at the time of his state court proceedings. As such, there was no default because this claim has not previously been available to him.

Finally, petitioner argues, somewhat inconsistently, that it would have been futile to present this claim to the state courts. Specifically, petitioner argues that the Ohio Supreme Court rejected a claim identical to his in State v. Scott, 92 Ohio St.3d 1, 2 (2001). According to petitioner, when the highest court in the state has rejected the same claim, presentation to the state courts is not required in order to allow habeas review. In other words, a claim need not be presented to the state courts when exhaustion would be futile because the state supreme court has already rejected the same claim, and there is no indication that the court would decide any differently in another case. (Am. Traverse, doc. no. 157, at 69). Petitioner does not address the fact that the time for him to have raised this claim in state court came before the Scott case was decided.

The Court rejects all of petitioner's arguments and finds that he cannot establish cause for the procedural default of his first ground for relief. With respect to petitioner's argument that the state is at fault for his misdiagnosis, the Court finds that there was sufficient evidence in the record regarding petitioner's mental illness for petitioner to present this claim to the state courts on direct appeal even without the documents that were allegedly withheld by the State. Additionally, the Court rejects petitioner's argument that he could not have presented his first ground for relief to the state courts because the state courts failed to provide an adequate process through which he could present his claim. Petitioner fails to specify the manner in which any alleged inadequacy prevented him from presenting his claims.

In addition, petitioner cannot rely on the novelty of his legal claim as "cause" for noncompliance with Ohio's rules. Although cause can be shown in some circumstance where the factual basis of a claim was "reasonably unknown" to a petitioner's counsel, see Jamison v. Collins, 291 F.3d 380, 388 (6^th Cir. 2002), petitioner cannot rely on "novelty" in this case. At the time of petitioner's state court proceedings, the federal reporters were replete with cases involving various Eighth Amendment challenges to the death penalty. See, e.g., Ford v. Wainwright, 477 U.S. 399, 406 (1986) (" Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane."); Penry v. Lynaugh, 492 U.S. 302 (1989) (considering whether Eighth Amendment prohibits the execution of mentally retarded persons), abrogated by Atkins v. Virginia, 536 U.S. 304 (2002); see also Pruett v. Thompson, 771 F.Supp. 1428, 1456-57 (E.D. Va. 1991) (rejecting argument that Eighth Amendment prohibits execution of the mentally ill). Moreover, "the question is not whether subsequent legal developments have made counsel's task easier, but whether at the time of the default the claim was available at all." Smith v. Murray, 477 U.S. 527, 537 (1986).

The Court also finds petitioner's argument that it would have been futile to present his claim to the state courts to be without merit. Petitioner's argument is not supported by Supreme Court precedent. In Smith v. Murray, a habeas petitioner asserted as "cause" for a procedural default his counsel's perception that his claim had little chance of success in the Virginia courts. The Supreme Court opined that "a deliberate, tactical decision not to pursue a particular claim is the very antithesis of the kind of circumstance that would warrant excusing a defendant's failure to adhere to a State's legitimate rules for the fair and orderly disposition of its criminal cases." Id. at 534. The Court continued that "[i]ndeed, it is the very prospect that a state court may decide, upon reflection, that the contention is valid that undergirds the established rule that perceived futility alone cannot constitute cause." Id. Furthermore, if a petitioner "perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim." Scott v. Mitchell, 209 F.3d 854, 872 (6^th Cir. 2000) ( citing Engle v. Isaac, 456 U.S. 107, 130 (1982)).

Having found petitioner's specific "cause" arguments to be without merit, the Court will turn to petitioner's blanket argument in the Amended Traverse that ineffective assistance of trial or appellate counsel constitutes cause and prejudice to excuse any default that respondent has alleged. To the extent that petitioner offers the ineffective assistance of counsel as "cause" for his failure to raise his serious mental illness claim at trial or on direct appeal, this Court is prevented from considering that "cause" argument because petitioner never presented that ineffective assistance claim to the state courts. See Edwards v. Carpenter, 529 U.S. 446 (2000) (holding that an ineffective assistance of counsel claim offered as cause for the default of a substantive federal claim must itself have been properly presented to the state courts). Accordingly, petitioner's serious mental illness claim is barred from review in federal habeas corpus. The Court hereby dismisses petitioner's first ground for relief.

B. Second Ground for Relief — Competency to Stand Trial

Petitioner argues in his second ground for relief that he was incompetent to stand trial, and that the trial court's determination that he was competent did not meet federal constitutional standards for determining competency. Counsel for petitioner argue that the trial court found petitioner competent based on a single report rendered by a state forensic mental health center psychiatrist. They argue that petitioner was not provided with an independent evaluation, and that he was not given a fair opportunity to challenge the state's report. In addition, counsel contend that even though the trial court found petitioner competent, the court had an obligation to re-evaluate petitioner's competency as his demeanor deteriorated and it became apparent that petitioner was unable to work with his counsel. (Am. Pet., doc. no. 121, at ¶ 5). Counsel for petitioner argue that petitioner has been incompetent to proceed with his defense at every stage of these proceedings, and that because he is incompetent, petitioner has never been able to develop a working relationship with any attorney who has represented him.

Respondent argues that petitioner's second ground for relief is procedurally defaulted, because petitioner did not present this argument to the state courts either on direct appeal or during the state post-conviction proceedings. Respondent notes that petitioner's state post-conviction counsel actually presented the opposite argument — that petitioner should have been permitted to represent himself pro se.

In analyzing whether petitioner's second ground for relief is subject to procedural default, the Court must first determine whether a state procedural rule is applicable to petitioner's claim, and, if so, whether petitioner violated that rule. As noted above, 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. See State v. Perry, 10 Ohio St. 2d 175 (1967). Similarly, claims which do not appear on the face of the record must be raised in a postconviction action pursuant to R.C. § 2953.21. A review of the record reveals that petitioner's second ground for relief has never been presented to the Ohio courts. Petitioner does not argue otherwise. Furthermore, petitioner does not argue that the state failed to actually enforce the procedural rule, i.e. res judicata, or that the res judicata rule is not an adequate and independent ground upon which to deny relief. Thus, the Court deems the first three parts of the Maupin test to be met.

With respect to the fourth part of the Maupin test, petitioner argues that there is cause to excuse the default of this claim. Petitioner contends that the transcript of the pre-trial competency hearing was not included as part of the record on his direct appeal to the court of appeals, despite the fact that his initial appellate counsel ordered the entire trial record. Petitioner argues that he and his appellate counsel relied on the transcript provided to them to be complete because they requested that the record include pre-trial hearings, and the court reporter certified that the complete transcript had been filed. The omission was not discovered until his case was pending before the Ohio Supreme Court, and petitioner was represented by new appellate counsel. At that time, his new counsel ordered the missing transcript and filed a motion to supplement the record. The Ohio Supreme Court denied petitioner's request to supplement the record with the additional transcript.

Petitioner argues that the trial court's initial failure to transcribe the competency proceedings and provide them to counsel when they had been ordered is cause for his failure to challenge the competency determination during his direct appeals. Petitioner also asserts that the Ohio State Supreme Court's refusal to correct the record once the error was discovered constitutes additional cause for the default. (Am. Traverse, doc. no. 157, at 71). Finally, petitioner argues that he could not have presented this claim during post-conviction because it does not rely on evidence outside the record. Petitioner's argument is not well-taken. The lack of a transcript of the mental competency proceedings might ultimately have resulted in the court of appeals' ruling against him on the claim, but it did not prevent counsel from raising the claim in the assignment of errors presented to that court. If new counsel on appeal did not have a copy of the transcript, they were certainly put on notice by the trial court's docket sheet that competency proceedings had occurred. Perhaps they neglected to include such a claim because they did not conduct a sufficient review of the record to determine that they did not have the transcript of the hearing (a problem which they could then have remedied), but if that is so, the cause of the procedural default would not have been the trial court's failure to include the transcript as part of the appellate record. In short, the Court fails to grasp the connection between the incompleteness of the appellate record and counsel's failure even to raise an issue on appeal concerning petitioner's competency.

Finally, even if the Court were to find that the cause prong of the "cause and prejudice" test were met, the Court cannot conclude that petitioner was prejudiced by the omission of this claim from his direct appeal. Taking petitioner at his word that the only supporting evidence for this claim is found in the trial record, that record points unequivocally to a finding of competency. Only one expert report was presented to the trial court, and it concluded that petitioner was competent to stand trial. Trial counsel conceded that they had no contrary evidence. It is not reasonable to believe that the state appellate courts would have reversed the trial court's decision on this issue even if the missing transcript had been made a part of the record on appeal and counsel had made the appropriate assignment of error. For these reasons, the Court concludes that this claim was procedurally defaulted.

C. Third Ground for Relief — Failure to Develop a Working Relationship with Petitioner

In his third ground for relief, petitioner argues that his trial counsel were ineffective because they failed to develop a working relationship with him, and thereby failed to recognize his mental illness. Specifically, petitioner contends that counsel: (1) failed to meet with and consult him; (2) proceeded with the trial acting at odds with his best interests; (3) waived his speedy trial rights without his knowledge or consent; and (4) failed to vigorously litigate his incompetence, insist on a competency hearing, obtain an independent competency evaluation, enter a plea of not guilty by reason of insanity, and have him evaluated for sanity at the time of the offense. (Am. Pet., doc. no. 121, at ¶ 12). Petitioner also alleges in the Amended Traverse that counsel failed to understand the role drug use played in his life, and therefore, they failed to present drug use as a mitigating factor.

Respondent argues that this claim is procedurally defaulted. According to respondent, petitioner raised the speedy trial argument and the argument that a conflict existed between petitioner and counsel that destroyed the attorney client relationship for the first time before the Ohio Supreme Court. Respondent asserts that these allegations are procedurally defaulted because they were not first presented to the intermediate court of appeals, and that the remaining claims in petitioner's third ground for relief have never been presented to any state court.

Petitioner does not dispute that he failed to raise many of his ineffective assistance of trial counsel claims on direct appeal to the court of appeals. Rather, petitioner argues that his third ground for relief is not procedurally defaulted, because the Ohio Supreme Court addressed all of his claims of ineffective assistance of trial counsel on the merits, even those claims that had not been properly presented below. Petitioner argues that the only claim in his third ground for relief that was not presented to the Ohio Supreme Court and considered on the merits is the claim that counsel were ineffective for failing to recognize his insanity defense and his incompetence to stand trial. Petitioner argues that he has established cause to excuse this default, and cross-references the "cause" argument concerning the missing transcript that he presented to excuse the default of his second ground for relief.

The first part of the Maupin test requires the Court to determine whether a state procedural rule is applicable to petitioner's claim, and, if so, whether petitioner violated that rule. It has long been the rule in Ohio that the Ohio Supreme Court will not consider on appeal a claim or argument not presented to the court of appeals below. See State v. Williams, 51 Ohio St.2d 112, 117-118 (1977) ("It is an established rule of long standing in this state that a criminal constitutional question cannot be raised in the Supreme Court unless it is presented and urged in the court below."). With respect to claims of ineffective assistance of trial counsel, a criminal defendant who is represented by new counsel on direct appeal is required to raise claims of trial counsel ineffectiveness on direct appeal, so long as those claims do not involve evidence outside the trial record. See State v. Cole, 2 Ohio St. 3d 112 (1982); see also Combs v. Coyle, 205 F.3d 269, 275-77 (6^th Cir. 2000). Both the factual and legal basis for the claim must be fairly presented to the court below. See Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). Petitioner does not dispute that he failed to raise some of his "examples" of ineffective assistance of counsel on direct appeal to the intermediate court of appeals. As to those claims, the Court finds that the first part of the Maupin test has been satisfied.

Under the second part of the Maupin test, the violation of a state procedural rule will not preclude habeas corpus review unless the state courts actually enforced the procedural rule. Harris v. Reed, 489 U.S. 255, 261-62 (1989). After reviewing the decision of the Ohio Supreme Court on direct appeal, this Court agrees with petitioner that the Ohio Supreme Court considered all of petitioner's claims of ineffective assistance of trial counsel on the merits, and did not enforce any state procedural bars with respect to those claims.

On direct appeal, the Supreme Court of Ohio resolved petitioner's allegations of ineffective assistance of trial counsel as follows:

In his thirty-first through thirty-third propositions of law, appellant claims that he was deprived of the effective assistance of counsel throughout the trial and appellate proceedings. In considering appellant's arguments, we find that appellant has failed to meet his burden of establishing ineffective assistance under the standards set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Therefore, we reject appellant's thirty-first, thirty-second and thirty-third propositions of law.

Scudder, 71 Ohio St. 3d at 273-274.

Respondent argues that the decision of the Ohio Supreme Court was merely an alternative ruling, because the court stated at the beginning of its opinion that all of petitioner's propositions of law that had not been properly presented below were waived. This Court does not agree. The Ohio Supreme Court addressed only nine of petitioner's forty-seven propositions of law in opinion form. Of those nine propositions of law that the court actually addressed, the court made specific findings of waiver with respect to only a portion of them. For example, in his first proposition of law, petitioner argued that the state violated the rules of discovery by failing to notify him before the trial that the it would present expert witnesses concerning blood spatter and fingerprint evidence. In rejecting petitioner's arguments, the Ohio Supreme Court ruled as follows:

We reject appellant's arguments for two reasons. First, appellant did not raise these issues in the court of appeals. Thus, his arguments have been waived. Second, appellant has failed to demonstrate that the trial court abused its discretion by allowing the witnesses to testify.

Scudder, 71 Ohio St. 3d at 268. The Court finds the above statement of the Ohio Supreme Court to be an example of an express intention to reject a defaulted claim due to waiver, and to provide a merits decision only as an alternative decision. Likewise, the Ohio Supreme Court made two distinct and alternative rulings with respect to petitioner's claim in his third proposition of law that the state impeded his ability to adequately prepare for trial. The court stated unequivocally that "Appellant did not raise this issue in the court of appeals. Thus, this issue has been waived." Id. at 271. The court continued, stating that "[a]dditionally, a review of the record demonstrates that appellant's argument lacks merit." Id. To the contrary, the court made no mention of waiver when it summarily rejected petitioner's claims of ineffective assistance of trial counsel on the merits.

Having determined that the Ohio Supreme Court did not actually enforce any state procedural rules with respect to petitioner's allegations of ineffective assistance of trial counsel, this Court must now determine which of petitioner's instant arguments were actually presented to the Ohio Supreme Court on direct appeal, and considered on the merits, and which claims were not presented at that or any stage of the proceedings. For the reasons that follow, the Court finds that the only allegation contained in petitioner's third ground for relief that actually was presented to the Ohio Supreme Court is petitioner's argument that counsel waived his speedy trial rights without his knowledge or consent. Thus, the Court deems that allegation properly before the Court for a consideration on the merits.

On direct appeal to the Ohio Supreme Court, petitioner argued, as part of his thirty-first proposition of law, that he was denied the effective assistance of counsel because counsel failed to maintain a good rapport with him throughout the proceedings. The factual basis underlying petitioner's "good rapport" argument is summarized below:

A) Attorney-Client Relationship

It is also important in any criminal case for defense counsel to maintain good rapport with their client. (Citation omitted). This is necessary so that the client will provide the information necessary for counsel to adequately investigate the case, so that the client can participate in formulating and presenting the proper defenses, and so the client and counsel can intelligently decide whether to seek and accept a plea offer from the prosecution. Rapport is even more important in a capital case, in which much additional information is needed to prepare for effective mitigation, and in which a client is often called upon to decide whether to accept a plea offer of life imprisonment rather than take the chance of receiving a death penalty.

A conflict existed between Mr. Scudder and his trial counsel. Trial counsel advised the court that they would withdraw. Consequently, it appears no relationship existed which would permit trial counsel to be effective.

(Brief of Appellant, Appendix Vol. II, Ex. N, at 245-246).

After reviewing the above factual basis for petitioner's "good rapport" ineffective assistance of counsel claim, the Court finds that it does not encompass the remaining allegations in petitioner's third ground for relief. Petitioner simply did not argue, as part of his "good rapport" claim before the Ohio Supreme Court, that counsel failed to meet with and consult him, that counsel proceeded to trial acting at odds with his best interests, or that counsel failed to vigorously litigate his incompetence, insist on a competency hearing, obtain an independent competency evaluation, enter a plea of not guilty by reason of insanity, and have petitioner evaluated for sanity at the time of the offense. Nor did his claim before the Ohio Supreme Court include any allegations that counsel failed to understand the role drug use played in petitioner's life. The factual basis for his claim before the Ohio Supreme Court was simply that a conflict existed between himself and his counsel that prevented them from having a good rapport. Petitioner did not contend that counsel failed to meet with and consult him — rather, petitioner argued that when counsel did meet with him, they did not have the kind of rapport that petitioner would have liked.

To summarize, the Court finds that, with the exception of petitioner' speedy trial allegation, petitioner did not present the claims of ineffective assistance of counsel contained in his third ground for relief to any state court. As noted above, 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. See State v. Perry, supra. Claims that do not appear on the face of the record must be raised in a timely postconviction action pursuant to Ohio Rev. Code § 2953.21. Because the state courts did not have an opportunity to enforce any state procedural rules concerning these specific allegations, the Court deems the second part of the Maupin test met. The Court has already determined that Ohio's doctrine of res judicata is an adequate and independent state ground upon which to deny relief. Thus, the only remaining determination is whether petitioner has established cause for the procedural default of these allegations.

Petitioner offers no "cause" arguments to excuse the default of his claim that his trial counsel failed to meet with and consult him. He also does not assert cause for his failure to raise the claim that counsel proceeded to trial acting at odds with his interests. Accordingly, the Court finds those claims to be procedurally defaulted.

With respect to the competency issues, petitioner cross-references the cause arguments that he raised to excuse the default of his second ground for relief regarding the missing transcripts and the Ohio Supreme Court's refusal to supplement the record. The Court has already considered and rejected this argument in the portion of this Opinion and Order dismissing petitioner's second ground for relief. Therefore, the Court finds that the only allegation contained in petitioner's third ground for relief that is properly before the Court is the allegation contained in paragraph 11 that counsel were ineffective for waiving petitioner's speedy trial rights without his knowledge or consent. All other allegations are dismissed.

D. Fourth Ground for Relief — The State Withheld Evidence of Petitioner's Incompetence

In his fourth ground for relief, petitioner argues that he was denied due process because the state withheld evidence of his incompetence to stand trial. Petitioner contends that either prior to trial or prior to the completion of the sentencing phase of his trial, the state uncovered evidence that petitioner had been declared incompetent to make medical decisions only a few months before the events giving rise to this case occurred. Petitioner argues that the state failed to provide this evidence, as well as some of petitioner's school records and records pertaining to his birth, to the trial court or defense counsel before using it to discredit petitioner's only expert mitigation witness.

According to petitioner, he was ambushed with the records when "the state used [the records] to undermine Petitioner's mitigation expert by piling the documents on the witness stand and then belittling expert psychologist Dr. Henry Leland for not having reviewed them." (Am. Traverse, doc. no. 157, at 87). Had this information been provided at an earlier time, petitioner argues, it "would have aided the trial court, defense counsel, and the state forensic center psychologist in assessing Mr. Scudder's competency" and the information "would have aided Mr. Scudder in the presentation of mitigation and would have helped his mitigation expert." ( Id.). Additionally, petitioner claims that those records might have led his trial counsel to pursue a defense of not guilty by reason of insanity. ( Id.). Petitioner contends that because the records pertain to his competency to stand trial, they are exculpatory in nature and the state violated its duty under Brady v. Maryland, 373 U.S. 83 (1963) by withholding them.

Respondent argues that this claim is subject to procedural default because petitioner has never presented it to any Ohio court. Petitioner appears to concede as much. What petitioner and respondent dispute is whether petitioner can establish cause and prejudice sufficient to excuse the default under the fourth part of the Maupin test.

Petitioner argues that he could not have presented this claim to the state courts because the state withheld the documents, and the files of the prosecutor are not public records. Petitioner claims that he had no opportunity to discover the contents of the records until his current habeas counsel found them in the prosecutor's office while preparing for the competency hearing held by this Court. (Am. Traverse, doc. no. 157, at 83). The prosecution's failure to disclose the records, petitioner argues, prevented him from discovering, developing, or presenting his fourth ground for relief prior to these proceedings. Stated differently, petitioner argues that the underlying allegation contained in this ground for relief excuses the default of this ground for relief. Furthermore, petitioner alleges that because he is mentally ill, he could not have assisted his lawyers in discovering or obtaining the records. ( Id. at 96). Petitioner argues that he was prejudiced by the state's failure to provide the records because that failure resulted in his standing trial for a capital offense while incompetent.

Respondent argues that petitioner cannot establish that the claimed evidence of incompetency was not known by himself, or could not have been discovered by his postconviction attorneys with the exercise of due diligence. (Return of Writ, doc. no. 124, at 48). Additionally, respondent contends that evidence regarding a petitioner's competency to stand trial is not material to guilt or punishment. ( Id.). Finally, respondent argues that petitioner cannot establish prejudice because even if the allegedly suppressed evidence had been presented to the trial court and the jury, there is no reasonable probability that petitioner would have been found incompetent, or that the jury would have recommended a life sentence. ( Id. at 50).

Although the Supreme Court has refrained from establishing firm contours for the cause-and-prejudice standard that the Court adopted for excusing the default of a constitutional claim, the withholding or concealment of evidence by state officials which prevents the petitioner from reasonably discovering the factual or legal basis of a claim generally constitutes cause sufficient to excuse the procedural default. See Amadeo v. Zant, 486 U.S. 214, 222 (1988) (concealment by county officials of scheme to underrepresent minorities and women in master jury pool sufficed as cause to excuse procedural default of that claim). With respect to the prejudice element of the cause-and-prejudice standard, the petitioner "must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original). In the context of a Brady claim, a petitioner satisfies the prejudice requirement by showing that "`there is a reasonable probability' that the result of the trial would have been different if the suppressed documents had been disclosed to the defense." Strickler v. Greene, 527 U.S. 263, 290 (1999) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)).

The Court must determine whether the alleged Brady violation itself can constitute cause-and-prejudice to excuse the default of petitioner's Brady claim. The Supreme Court has addressed the same scenario in Strickler v. Greene, 527 U.S. 263, 290 (1999), and at least one Judge within this district has also addressed the same scenario. See Jamison v. Collins, 100 F. Supp. 2d 647 (S.D. Ohio 2000) (Spiegel, J.), aff'd, 201 F.3d 380 (6^th Cir. 2002). The petitioner in Strickler, like petitioner herein, raised his Brady claim for the first time in his amended habeas corpus petition, after learning of the allegedly favorable, undisclosed evidence during habeas corpus discovery. Strickler, 527 U.S. at 278. The exculpatory evidence at issue in Strickler consisted of documents prepared by an eyewitness who testified at trial, as well as notes of police interviews with that eyewitness, which impeached significant portions of her trial testimony as to the abduction of the victim. Id. at 266. The Supreme Court began its analysis by revisiting the three components of a Brady claim — namely, (1) the existence of evidence favorable to the petitioner; (2) which was suppressed by state officials; and (3) which resulted in prejudice to the petitioner. Id. at 281-82 (citing Brady v. Maryland, 373 U.S. 83 (1963)). The Court explained:

Because petitioner acknowledges that his Brady claim is procedurally defaulted, we must first decide whether that default is excused by an adequate showing of cause and prejudice. In this case, cause and prejudice parallel two of the three components of the alleged Brady violation itself. The suppression of the [eyewitness] documents constitutes one of the causes for the failure to assert a Brady claim in the state courts, and unless those documents were "material" for Brady purposes, their suppression did not give rise to sufficient prejudice to overcome the procedural default.

Id. at 282. Thus, to determine whether petitioner can demonstrate cause and prejudice to excuse his failure to present his fourth ground for relief to the state courts, this Court must determine whether favorable evidence exists, whether that evidence was suppressed by the prosecution, and whether the evidence was so material as to either guilt or punishment that petitioner was prejudiced by its omission.

Because the determination of whether petitioner can establish cause and prejudice to excuse the default of this claim necessarily involves addressing the merits of the claim, the Court is of the opinion that additional merits briefing would aid the Court in making this decision. Although petitioner argues that the records filed as part of his Third Expansion of the Record were withheld by the state, he does not specify which specific parts of those records were material to the determination of his competency or to sentencing. Petitioner argues that the missing records would have aided the trial court and the jury, but he does not specify how those records would have had a reasonable probability of impacting the trial court's competency determination or the outcome of the mitigation hearing. Accordingly, the Court will not decide at this time whether petitioner can establish cause and prejudice to excuse the default of his fourth ground for relief. The Court will make this determination in a subsequent Opinion and Order resolving the merits of petitioner's remaining claims. The parties are directed to address, as part of the supplemental merits briefing, whether the records were suppressed, whether they were favorable, and, if so, whether they were material to the outcome of petitioner's trial.

E. Sixth Ground for Relief — Ineffective Assistance of Trial Counsel

In his sixth ground for relief, petitioner alleges several instances of ineffective assistance of counsel. Specifically, petitioner argues that he was denied the effective assistance of counsel when his trial lawyers failed to object to improper evidence, incorrect jury instructions and erroneous court procedures. Those claims are set forth in paragraphs 18 through 39 of the Amended Petition. In the Return of Writ, respondent argues that six of those claims are properly before the Court, and the remaining claims are procedurally defaulted. Respondent agrees that the following six claims are properly before the Court: (1) counsel failed to object to the introduction of DNA evidence, as alleged in paragraph 23 of the Sixth Ground for Relief; (2) counsel failed to object to the excusal of Juror Brenda Winters, as alleged in paragraph 22 of the Sixth Ground for Relief; (3) counsel commented to the jury that its sentencing verdict was only a recommendation, as alleged in paragraph 27 of the Sixth Ground for Relief; (4) counsel failed to object to the admission of "other acts" evidence, as alleged in paragraphs 21 and 33 of the Sixth Ground for Relief; (5) counsel failed to review the contents of petitioner's wallet, which contained evidence of petitioner's prior criminal record, before it was presented to the jury as a prosecution exhibit, as alleged in paragraph 19 of the Sixth Ground for Relief; and (6) counsel failed to object to the prosecutor's attack on Dr. Leland during closing arguments, as alleged in paragraph 37(f). (Return of Writ, doc. no. 124, at 56-57).

Respondent argues that petitioner's remaining claims of ineffective assistance of trial counsel were not properly presented to the Ohio courts, because only the above six claims were presented to the court of appeals. On direct appeal to the Ohio Supreme Court, petitioner expanded his claims of ineffective assistance of trial counsel and included allegations that were not first presented to the court of appeals. Respondent contends that the Ohio Supreme Court determined that those new claims were waived, and therefore, they are not properly before this Court for habeas review. Those claims include alleged ineffective assistance during: (1) voir dire, as alleged in paragraphs 24-26 and 28-30 of the sixth ground for relief; (2) the trial phase, as alleged in paragraphs 31, 32 with the exception of subpart j, and 34-36 of the sixth ground for relief; and (3) the penalty phase, as alleged in paragraphs 37 and 38 of the sixth ground for relief. (Return of Writ, doc. no. 124, at 57). Respondent argues that the allegation raised in paragraph 32(j) — that counsel failed to object to the opinion testimony of a hospital clerk regarding the amount of blood that could have been generated by petitioner's wounds — has never been presented to any state court.

This Court has already determined, in the portion of this Opinion and Order addressing petitioner's third ground for relief, that the Ohio Supreme Court did not actually enforce any state procedural rules with respect to petitioner's allegations of ineffective assistance of trial counsel. Respondent concedes that all but one of petitioner's current arguments in support of his ineffective assistance of counsel claim were presented to the Ohio Supreme Court. Accordingly, because the Ohio Supreme Court considered those claims on the merits, they are properly before the Court for review. The Court finds that the claim contained in paragraph 32(j) of the Amended Petition concerning the testimony of the hospital clerk is procedurally defaulted. Petitioner did not present this claim to the state courts on direct appeal, and he does not allege cause to excuse its default. Therefore, the Court dismisses that portion of petitioner's sixth ground for relief.

F. Seventh Ground for Relief — Failure to Act as Advocates

In his seventh ground for relief, petitioner asserts that he was denied the effective assistance of counsel guaranteed by the Fifth, Sixth and Fourteenth Amendments because his lawyers failed to act as his advocates throughout the trial. Petitioner provides several examples of this alleged ineffective assistance of counsel in paragraphs 40 through 51 of the Amended Petition.

Respondent contends that the allegations set forth in paragraphs 40, 45, 47, 48 and 49 in substance repeat the allegations set forth under petitioner's fifth and sixth grounds for relief. Respondent does not allege procedural default with respect to those claims. Accordingly, they are properly before the Court for a review on the merits.

With respect to the remaining claims contained in petitioner's seventh ground for relief, respondent argues that the allegations contained in paragraphs 41, 42, 43, 46, and 51 are procedurally defaulted because petitioner did not first present them to the intermediate appellate court on direct appeal before presenting them to the Ohio Supreme Court. Respondent contends that the allegation set forth in paragraph 44 is procedurally defaulted because petitioner raised it for the first time in state post-conviction and the trial court denied the claim on the basis of res judicata.

In paragraph 41, petitioner argues that trial counsel were ineffective for failing to present an opening statement and for failing to cross-examine Sylvia Acton regarding the collection of evidence for DNA testing. This claim was presented for the first time on direct appeal to the Ohio Supreme Court as Proposition of law XXXI (C). In paragraphs 42 and 46, petitioner argues that counsel were ineffective for withdrawing their motion to suppress and failing to challenge the admissibility of statements that petitioner made to Bobby Muncy, who was wearing a wire and surreptitiously acting on behalf of the police. Petitioner presented this claim for the first time on direct appeal to the Ohio Supreme Court as Proposition of law XXXI (B)(4). In paragraph 43, petitioner argues that counsel failed to challenge the warrantless searches of petitioner's car. This claim was presented for the first time on direct appeal to the Ohio Supreme Court as Proposition of law XXXI (B)(3). Finally, in paragraph 51, petitioner argues that trial counsel failed to adequately preserve the trial record by failing to require the trial court to record all proceedings, failing to have all reasons for objections placed on the record, and failing to require the trial court to preserve witness statements subjected to in camera review. Petitioner presented the portion of this claim alleging that trial counsel failed to have all reasons for objections placed on the record for the first time on direct appeal before the Ohio Supreme Court as Proposition of law XXXI (B). Petitioner did not present the remaining portion of this claim to the Ohio Supreme Court as an allegation of ineffective assistance of trial counsel. Rather, petitioner argued that appellate counsel were ineffective for failing to argue on direct appeal that the trial court erred when it did not preserve witness statements subjected to in camera review. This claim of ineffective assistance of appellate counsel was raised in proposition of law XXXII (13). Petitioner presented the argument that the trial court failed to record all proceedings as a claim of trial court error in Proposition of Law XXIV.

This Court has already concluded, in the previous section of this Opinion and Order addressing petitioner's third and sixth grounds for relief, that the Ohio Supreme Court did consider the merits of all of petitioner's ineffective assistance of trial counsel claims that petitioner raised on direct appeal, including those claims that were not first presented to the intermediate appellate court. After reviewing the substance of the allegations contained in paragraphs 41, 42, 43, and 46, the Court finds that petitioner raised each of those allegations as part of his thirty-first proposition of law before the Ohio Supreme Court. Accordingly, because the Ohio Supreme Court did not actually enforce any state law procedural bar with respect to those claims, they are properly before the Court for a review on the merits.

With respect to paragraph 51, the Court finds that petitioner presented only part of this claim as an allegation of ineffective assistance of trial counsel before the Ohio Supreme Court. The allegation that trial counsel failed to have all reasons for objections placed on the record was presented to the Ohio Supreme Court and considered on the merits. Therefore, the Court finds that it is properly before the Court for habeas review.

However, the Court finds the remaining allegations in paragraph 51 of petitioner's seventh ground for relief to be procedurally defaulted. Although petitioner argued before the Ohio Supreme Court that appellate counsel should have raised the trial court's failure to preserve the witness summaries, a claim of ineffective assistance of appellate counsel is legally distinct from a claim of ineffective assistance of trial counsel. To be sure, the two types of claims are related. However, the legal standards governing claims of ineffective assistance of appellate counsel, as set forth in Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999), are somewhat different from the standards governing ineffective assistance of trial counsel claims, and it is theoretically possible that a court could find merit to one but not the other. Additionally, a claim of trial court error is legally distinct from a claim of ineffective assistance of trial counsel. In order to be preserved for habeas review, "a claim must be presented to the state courts under the same theory in which it is later presented in federal court." Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). Accordingly, the Court finds the remainder of paragraph 51 to be procedurally defaulted because petitioner has never presented those allegations to the Ohio courts under the theory of ineffective assistance of trial counsel that he now alleges.¹

1 The Ohio Supreme Court summarily rejected, on the merits, petitioner's argument that his appellate counsel were ineffective for failing to argue on direct appeal that the trial court erred when it did not preserve witness statements subjected to in camera review. The court refused to consider petitioner's argument that the trial court erred by failing to record all proceedings on the basis of waiver.

Because petitioner does not allege cause and prejudice to excuse this particular default, the Court dismisses all allegations contained in paragraph 51 except the argument that trial counsel failed to have reasons for objections placed on the record.

The only remaining claim for the Court to consider is the allegation contained in paragraph 44. In paragraph 44, petitioner alleges that his trial counsel were ineffective because they failed to call David Bonner, a potential alibi witness, during the guilt phase of petitioner's trial. Petitioner alleges that Bonner would have testified that he saw the victim with individuals other than petitioner at a time that precluded petitioner's presence at the murder. Petitioner presented this claim for the first time in his state post-conviction proceedings. Respondent argues that the trial court denied this claim under the doctrine of res judicata, and that this decision was affirmed by the court of appeals. In response, petitioner argues that the trial court did not rely on res judicata, but dismissed this claim on the merits for failure of proof. (Am. Trav., doc. no. 157, at 114). Petitioner alleges that the court of appeals also considered this claim on the merits.

The first part of the Maupin test requires the Court to determine whether petitioner violated a state procedural rule. As noted above, 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. See State v. Perry, 10 Ohio St. 2d 175 (1967). Claims which do not appear on the face of the record are properly raised in a postconviction action pursuant to R.C. § 2953.21. This Court need not resolve whether or not this allegation should have been raised on direct appeal because the record confirms that the Ohio courts addressed this claim on the merits during the post-conviction proceedings.

On August 2, 1996, petitioner filed a petition for post-conviction relief in the trial court. He alleged that his counsel provided ineffective assistance due to their handling of the DNA evidence and because counsel failed to secure the testimony of David Bonner, a witness that petitioner claims had exculpatory information. On June 18, 1997, petitioner, represented by new post-conviction counsel, filed an amendment to his petition and added three additional claims for relief. Two of those claims for relief alleged the ineffective assistance of counsel. First, petitioner added a claim asserting that trial counsel were ineffective during mitigation because they failed to establish, through additional interviews and testing, that petitioner suffered from organic brain impairment and that the impairment was linked to the nature and circumstances of the crime. Second, petitioner alleged that counsel were ineffective during mitigation because they presented the testimony of a mental health expert whose examination and opinions fell below the accepted standard of practice in the psychological community.

In resolving petitioner's claims, the trial court relied on the doctrine of res judicata to dismiss petitioner's allegations of ineffective assistance of counsel concerning the handling of the DNA evidence, the failure of counsel to present additional evidence regarding petitioner's organic brain impairment, and counsel's decision to use Dr. Leland. However, the trial court did not make specific reference to the doctrine of res judicata in resolving petitioner's claim that his trial counsel were ineffective for failing to call David Bonner as an alibi witness. The trial court made no indication that petitioner should have raised that claim on direct appeal. Rather, the court found that petitioner failed to properly support the claim pertaining to Bonner with any evidence, affidavit or otherwise. The trial court dismissed the claim for failure of proof, concluding that "[g]iven the lack of support for this claim, the most which can be determined is that defense counsel, for tactical reasons, chose not to call Bonner." (App. Vol. IV, Ex. PP at 1).

Petitioner appealed the decision of the trial court to the court of appeals. The court of appeals considered each of petitioner's arguments and affirmed the trial court's decision. With respect to petitioner's claim involving the potential alibi witness, the court of appeals held: "we agree with the trial court that such claims were not supported by affidavit or other competent evidence outside the record. In addition, we have found no error in the trial court's application of res judicata to bar these claims." Scudder, 131 Ohio App.3d 470, 477 (10^th Dist. 1998). Petitioner argues that the appellate court erroneously affirmed a decision with respect to res judicata that the trial court did not make.

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 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 McBee, it appears that the state appeals court expressly applied the procedural default rule, and proceeded to only a limited review of the merits in order to determine whether the fundamental miscarriage of justice exception was applicable. Id. at 266. The Sixth Circuit enforced the state court procedural default, holding that the state courts had clearly and expressly relied upon two alternative grounds, procedural default or substantive lack of merit, in rejecting the petitioner's claim. Id. at 267.

In the instant case, the last state court to address petitioner's post-conviction claims was the Ohio Court of Appeals for the Tenth Appellate District. That court clearly rejected this particular trial counsel ineffectiveness claim on the merits, finding that it had "reviewed these claims" and "such claims were not supported by affidavit or other competent evidence." Scudder, 131 Ohio App.3d at 477. The court of appeals did mention the doctrine of res judicata, finding that it "agreed" with the trial court's application of res judicata to bar this claim. Petitioner is correct that the trial court never made such a finding of res judicata with respect to this particular claim. In any event, the Court cannot conclude that the reference to res judicata by the court of appeals constitutes a clear and express statement that its judgment rested on that procedural bar, or that the merits decision by the court of appeals was merely an alternative decision. Therefore, the Court finds that the allegation of ineffective assistance of trial counsel for failing to present an alibi witness contained in paragraph 44 of petitioner's seventh ground for relief is properly before the Court.

G. Eighth Ground for Relief — Ineffective Assistance of Counsel During Mitigation

In his eighth ground for relief, petitioner alleges that his trial counsel failed to investigate and prepare for the sentencing phase of his trial. The gist of this claim is that counsel failed to obtain competent expert psychological assistance in mitigation. Petitioner argues that his counsel failed to locate and provide Dr. Leland with all relevant records, psychological reports, and petitioner's family history, including the impact of petitioner's mixed racial heritage. (Am. Pet., doc. no. 120, at ¶ 52). Petitioner also contends that trial counsel failed to insure that Dr. Leland understood the purpose of mitigation and conducted appropriate tests. ( id. at ¶ 54). Petitioner argues that his trial counsel failed to provide information to Dr. Leland that would have resulted in more favorable expert testimony for the defense.

Respondent argues that petitioner did not present this claim to the court of appeals, but instead raised it for the first time before the Ohio Supreme Court as Proposition of Law No. XXXIII. Respondent contends that the Ohio Supreme Court found the claim to be waived. Respondent goes on to argue that petitioner attempted to revive the claim in post-conviction by alleging that his trial counsel ineffectively prepared and presented expert psychological testimony, and the trial court and the court of appeals refused to consider the claim on the basis of res judicata.

In reviewing the record, the Court finds that petitioner presented all of the ineffective assistance of trial counsel claims contained in his eighth ground for relief to the Ohio Supreme Court. As discussed in previous sections of this Opinion and Order, the Ohio Supreme Court considered the merits of all of petitioner's ineffective assistance of trial counsel claims that petitioner raised before it on direct appeal. Before the Ohio Supreme Court, petitioner argued as part of his thirty-third proposition of law that his trial counsel were ineffective during the mitigation phase of his trial. In support of that proposition of law, petitioner alleged that his trial counsel failed to adequately prepare for mitigation, failed to object to instances of prosecutorial misconduct, and failed to object to certain jury instructions. (Brief of Appellant, Vol. II, Ex. N, at 268-274). With respect to counsel's alleged failure to prepare for mitigation, petitioner argued that counsel failed to conduct an extensive and thorough investigation into petitioner's background, including his family and medical history, and failed to adequately prepare mitigation witnesses. ( Id. at 269-270). With respect to Dr. Leland, petitioner argued that counsel failed to provide him with all necessary information concerning petitioner and his medical history, and that counsel failed to request additional testing of petitioner that Dr. Leland felt was necessary. ( Id. at 271). In essence, those claims are identical to the claims that petitioner presents in his eighth ground for relief before this Court. Because the Ohio Supreme Court considered the merits of all of petitioner's claims of ineffective assistance of trial counsel, the Court finds that petitioner's eighth ground for relief is not subject to procedural default and is properly before the Court for consideration on the merits.

H. Ninth Ground for Relief — Ineffective Assistance of Appellate Counsel

In his ninth ground for relief, petitioner argues that he was denied the effective assistance of appellate counsel on direct appeal to the intermediate court of appeals in violation of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. According to petitioner, his appellate counsel failed to raise before the court of appeals thirty-five "meritorious issues," and counsel's assistance was rendered ineffective by the absence of a complete trial record. Respondent concedes that thirty-four of the thirty-five allegations of ineffective assistance of appellate counsel set forth in the Amended Petition are properly before the Court, because they are "substantially identical" and correspond to the thirty-five allegations of ineffective assistance of appellate counsel presented to the Ohio Supreme Court on direct appeal. (Return of Writ, doc. no. 124, at 76). Respondent's only allegation of default pertains to the sixteenth "meritorious issue" that petitioner argues his appellate counsel should have raised on direct appeal. That allegation is set forth in paragraph 56(p) of the Amended Petition. In paragraph 56(p), petitioner alleges that his appellate counsel were ineffective because they did not raise on direct appeal the trial court's failure to conduct a proper competency hearing. Respondent argues that petitioner did not present this allegation of ineffective assistance of appellate counsel to the Ohio Supreme Court.

In the Supplemental Traverse Addressing Procedural Default, petitioner argues that the claim of ineffective assistance of appellate counsel set forth in paragraph 56(p) is not defaulted because even though he did not present the allegation to the Ohio Supreme Court, "the matter was fairly before the court as an extension of the specific issues of ineffective assistance of counsel raised and the court's obligation to review the entire record." (Doc. no. 164, at 37). Petitioner appears to argue that his appellate counsel's failure to challenge the competency proceedings was included as part of his allegation that his appellate counsel were ineffective because they did not raise the trial court's failure to maintain a complete trial record. Before the Ohio Supreme Court, the later allegation was raised as the thirtieth of the thirty-five "meritorious issues" petitioner contends his counsel should have raised before the court of appeals.

After reviewing the thirtieth allegation of ineffective assistance of appellate counsel presented to the Ohio Supreme Court, this Court cannot conclude that petitioner's argument concerning his appellate counsel's failure to raise competency issues was fairly presented as part of that allegation. In his merit brief before the Ohio Supreme Court, petitioner argued that his appellate counsel should have raised as error the trial court's failure to preserve information for appeal and the court's failure to record all proceedings. Specifically, petitioner argued that the trial court should have ordered the prosecutor's file sealed to allow for adequate appellate review, should not have resolved any issues off the record in chambers or at sidebars, and should have recorded all pre-trial proceedings, the grand jury proceedings, and the events of the jury view. Even assuming the truth of these alleged inadequacies, petitioner has not demonstrated, and it is not otherwise apparent to the Court, how any of these inadequacies has any bearing on his failure to raise before the Ohio Supreme Court the claim of ineffective assistance of appellate counsel that he now seeks to raise in paragraph 56(p). There simply is no nexus between the thirtieth allegation of ineffective assistance of appellate counsel presented to the Ohio Supreme Court and the allegation contained in paragraph 56(p) of the Amended Petition. Therefore, Petitioner has failed to demonstrate that this claim is not barred by procedural default. All other allegations in support of petitioner's ninth ground for relief are properly before the Court for consideration on the merits.

I. Tenth Ground for Relief — Trial Court Error

In his tenth ground for relief, petitioner argues that he was denied a fair trial and a fair sentencing proceeding due to the multiple errors and omissions of the trial court in violation of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (Am. Pet., doc. no. 121, at 20). In the Return of Writ, respondent argues that petitioner has made "no attempt in his petition to ground his allegations by subject or otherwise organize them in a coherent, logical fashion." (Return of Writ, doc. no. 124, at 79). This Court agrees, and like respondent, will do the best it can to decipher the categories of trial court error to which petitioner complains.

Respondent does not allege default with respect to the allegations contained in paragraphs 61-69, 72, 73, 75, 76, 77, 79 or 81. Therefore, the Court finds that those claims are properly before the Court for habeas review. Respondent does assert default with respect to the allegations set forth in paragraphs 59, 60, 70, part of 71, 74, 78, 80 and 82. Respondent contends that petitioner either failed to present those allegations to any Ohio court, or that he failed to first present them to the court of appeals on direct appeal. The Court will now consider respondent's allegations of procedural default.

In paragraphs 59, 60 and 70, petitioner argues that the trial court failed to conduct an adequate inquiry into his competency to stand trial. Specifically, in paragraph 59, petitioner alleges that "[t]he trial court failed to provide Petitioner an opportunity to challenge the competency findings of the state psychiatrist." (Am. Pet., doc. no. 121, at 20). In paragraph 60, petitioner asserts that "[t]he trial court failed to hold a competency hearing in compliance with state law and federal constitutional standards." ( Id.). In paragraph 70, petitioner argues that "[t]he trial court failed to revisit the question of Petitioner's competency when it became apparent that he was unable to work with counsel and showed other signs of mental incompetence including failing to understand court proceedings." ( Id. at 22).

Respondent argues that petitioner's allegations have never been presented to the state courts, and that they merely repeat the allegations set forth in petitioner's second ground for relief. This Court agrees and finds those claims to be procedurally defaulted for the reasons set forth in the portion of this Opinion and Order dismissing petitioner's second ground for relief. The Court hereby dismisses the allegations contained in paragraphs 59, 60 and 70 of petitioner's tenth ground for relief.

Respondent argues that petitioner failed to present the allegations contained in paragraphs 74, 78, 80, 82 and part of 71 to the Ohio court of appeals on direct appeal prior to presenting them to the Ohio Supreme Court. Respondent argues that the Ohio Supreme Court considered those claims waived because petitioner failed to present them to the intermediate appellate court. Petitioner argues that the Ohio Supreme Court did not find those claims to be defaulted because it made only an ambiguous reference to waiver.

Under the first part of the Maupin test, the Court must determine whether a state procedural rule is applicable to petitioner's claims and if so, whether petitioner violated that rule. It is well settled that claims appearing on the face of the record must be raised on direct appeal. It is also well settled that the Ohio Supreme Court will not consider claims appearing on the face of the record that were not presented to the appellate court below. See State v. Williams, 51 Ohio St.2d 112, 117-118 (1977) ("It is an established rule of long standing in this state that a criminal constitutional question cannot be raised in the Supreme Court unless it is presented and urged in the court below."); see also State v. Phillips, 27 Ohio St.2d 294, 302 (1971) ("the Supreme Court will not consider or determine claimed errors which were not raised and preserved in the Court of Appeals").

In paragraph 71, petitioner alleges that the trial court erred "when it failed to take any corrective action when the prosecutor attacked Petitioner's mitigation witness, Dr. Leland, and instead demonstrated its own bias against the defendant and witness by chiding the witness during his testimony." (Am. Pet., doc. no. 121, at 22). Respondent concedes that the first part of this paragraph alleging that the court erred by failing to take corrective action during the prosecutor's "attack" of the witness is properly before the Court. However, respondent argues that the latter part of this paragraph alleging that the court demonstrated bias against Dr. Leland is defaulted because petitioner did not first present it to the court of appeals. The Court finds that this claim was presented for the first time before the Ohio Supreme Court as proposition of law XV. (App. Vol. II, Ex. M, at 135-143).

In paragraphs 74 and 78, petitioner argues that the trial court made erroneous evidentiary rulings. Specifically, in paragraph 74, petitioner alleges that "[t]he admission of victim impact evidence denied Petitioner a fair trial. The prosecutor argued speculative victim impact when he theorized about the victim's last thoughts. The victim's mother was allowed to testify about her daughter's character when it was irrelevant to the proceedings and not necessary for any purpose other than to invoke pity for the victim and her family." (Am. Pet., doc. no. 121, at 23). The Court finds that this allegation was presented for the first time before the Ohio Supreme Court as proposition of law XXXVII. (App. Vol. II, Ex. N, at 294-295). In paragraph 78, petitioner argues that "[t]he admission of hearsay evidence denied Petitioner a fair trial." ( Id.). Petitioner raised this claim for the first time before the Ohio Supreme Court as proposition of law XVII. (App. Vol. II, Ex. N, at 150-155).

In paragraph 80, petitioner alleges that "[t]he trial court denied Petitioner the right to seek expert funding in ex parte proceedings." (Am. Pet., doc. no. 121, at 23). The Court finds that petitioner presented this argument for the first time on direct appeal to the Ohio Supreme Court as proposition of law XXXVI. (App. Vol. II, Ex. N, at 291-293).

Finally, in paragraph 82, petitioner argues that "[t]he admission of Petitioner's involuntary and unwarned statement made to Bobby Muncy, who approached Petitioner wearing sound recording equipment on behalf of the police while Petitioner was in his hospital room recovering from surgery and under the influence of medication," was improper. (Am. Pet., doc. no. 121, at 23). This claim was presented for the first time before the Ohio Supreme Court as proposition of law VII. (App. Vol. II, Ex. M, at 48-54).

In reviewing the allegations contained in paragraphs 71, 74, 78, 80, and 82, it is apparent to the Court that those claims are all claims appearing on the face of the record. It is also apparent to the Court that petitioner failed to present those claims to the court of appeals prior to raising them before the Ohio Supreme Court. Therefore, the Court finds that the first part of the Maupin test has been met. Petitioner does not appear to argue otherwise.

Petitioner argues that respondent cannot satisfy the second part of the Maupin test — that the state courts actually enforced the procedural bar. Petitioner contends that even though those claims were not presented to the intermediate appellate court, the Ohio Supreme Court did not actually enforce any procedural rules with respect to the claims. Petitioner argues that the Ohio Supreme Court ambiguously stated that any claims not raised below were waived, and that the court did not make any specific findings of default. Therefore, petitioner argues that the claims contained in his tenth ground for relief are properly before this Court for a review on the merits. (Supp. Traverse, doc. no. 164, at 29).

Under the second part of the Maupin test, the violation of a state procedural rule will not preclude habeas corpus review unless the state courts actually enforced the procedural rule. Harris v. Reed, 489 U.S. 255, 261-62 (1989). In order to determine whether the state courts relied on a state procedural default, this Court must look to the last state court decision rendering a judgment in the case and determine whether that court "`clearly and expressly' states that its judgment rests on a state procedural bar." Harris, 489 U.S. at 263 (quoting Caldwell v. Mississippi, 472 U.S. 320, 327 (1985)); see also McBee v. Abramajtys, 929 F.2d 264, 267 (6th Cir. 1991).

In the instant case, the last and only state court given an opportunity to address the specific allegations of trial court error at issue was the Ohio Supreme Court on direct appeal. Before the Ohio Supreme Court, petitioner raised a litany of arguments that he failed to present, in any manner, to the intermediate appellate court below. The Ohio Supreme Court noted that it was not required, pursuant to Ohio Revised Code § 2929.05, to address and discuss, in opinion form, every proposition of law raised by the parties in a capital case. The Ohio Supreme Court then made the following general finding at the outset of its opinion:

Here, appellant presents a number of arguments which have previously been addressed by this court, and which have been resolved in a manner unfavorable to appellant. Many of the matters raised by appellant merit no discussion given the events at trial and the governing law. Moreover, a number of appellant's arguments have been waived, since appellant failed to preserve the alleged errors at either the trial court or appellate level. Upon review of appellant's propositions of law, we fail to detect any errors that would undermine our confidence in the outcome of appellant's trial. We address in detail only those issues that merit some discussion.

Scudder, 71 Ohio St.3d at 267. The Ohio Supreme Court subsequently only addressed nine of petitioner's forty-seven propositions of law in opinion form.

In reviewing the record in this case, the Court concludes that the Ohio Supreme Court considered the challenged allegations contained in petitioner's tenth ground for relief to be waived and subject to procedural default due to petitioner's failure to raise and preserve them in the appellate court below. Because petitioner failed to present his claims of trial court error contained in part of paragraph 71, and in paragraphs 74, 78, 80, and 82 to the intermediate appellate court, those claims fall within the category of cases that the Ohio Supreme Court did not address in opinion form because of waiver. The Court draws a distinction between claims that the Ohio Supreme Court failed to consider in their entirety because they were not presented below, and claims that were not presented below but the court expressly considered on the merits, such as petitioner's claims of ineffective assistance of counsel. Accordingly, the Court determines that the second prong of the Maupin test has been satisfied.

Under the third part of the Maupin test, the Court must determine whether the state procedural rule at issue is an adequate and independent ground upon which to deny relief. The Courts of this Circuit have consistently found Ohio's procedural rule requiring claims to be presented in the lower appellate court prior to being presented to the Ohio Supreme Court to be an adequate and independent state ground upon which the state can rely to foreclose review of a federal constitutional claim. See, e.g., Fornash v. Marshall, 686 F.2d 1179, 1185 n. 7 (6th Cir. 1982) ("The Ohio Supreme Court has stated that it will not consider constitutional claims not raised and preserved in the Ohio Court of Appeals.") (citing State v. Phillips, 27 Ohio St.2d 294 (1971)); Tanner v. Wolfe, 2006 WL 3452414, No. 2:05-CV-00076, *11 (S.D. Ohio, Nov. 29, 2006) ("the Ohio Supreme Court does not ordinarily consider claims not raised in the Court of Appeals below"); Hilton v. Anderson, 2006 WL 3423873, No. 5:05 CV 2010, *6 (S.D. Ohio Nov. 28, 2006) ("in Ohio, the failure to present a claim to either a Court of Appeals or to the Ohio Supreme Court constitutes a waiver of the claim"); Eley v. Bagley, 2006 WL 2990520, No. 4:02CV1994, *7 (N.D. Ohio Oct. 18, 2006) (same).

The Court must now consider the fourth part of the Maupin test and determine whether cause and prejudice exists to excuse the default or whether the fundamental miscarriage of justice exception applies. In the Amended Traverse, petitioner makes a blanket argument that ineffective assistance of trial or appellate counsel constitutes cause and prejudice to excuse any default that respondent has alleged. With respect to this ground for relief, the Court will interpret petitioner's "cause" argument as an argument of ineffective assistance of appellate counsel on direct appeal to the court of appeals, because that is where this ground for relief should have been raised.

The ineffective assistance of counsel is commonly offered as cause to excuse a procedural default. In order to qualify as cause, the alleged 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).

Thus, to establish a claim of ineffective assistance of counsel sufficient to constitute cause for the default of part of his tenth ground for relief, petitioner must show both deficient performance on the part of his appellate attorneys and prejudice from the deficient performance:

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 reliable.

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.

To the extent that this Court must determine whether petitioner's first appellate counsel performed unreasonably and to his prejudice in failing to challenge on direct appeal the allegations of trial court error challenged by respondent as defaulted, the Court notes that this is an issue that the Court will be deciding in its subsequent order addressing the merits of petitioner's claims. Petitioner alleges in his ninth ground for relief that his appellate counsel were ineffective for failing to raise several meritorious issues on petitioner's first direct appeal. The instant cause arguments are included in the list of meritorious issues that petitioner asserts his appellate counsel should have raised. Because the Court will be addressing petitioner's cause arguments in its subsequent Opinion and Order addressing the merits of his ninth ground for relief, the Court will refrain from deciding whether those allegations serve as cause and prejudice to excuse the default of part of petitioner's tenth ground for relief. The Court will make the cause and prejudice determination in its Opinion and Order addressing the merits of petitioner's remaining claims.

J. Eleventh Ground for Relief — Fourth Amendment Violation

Petitioner alleges in his eleventh ground for relief that his car was illegally searched in violation of the Fourth Amendment. Specifically, petitioner argues that his car was searched on February 7, 1989 and again on February 11, 1989. Petitioner asserts that both searches were conducted without his permission and without a warrant. With respect to the first search, petitioner argues that no exigency existed to justify a warrantless search of his car, as he was confined to a hospital bed and his car was parked at his home. (Am. Pet., doc. no. 121, at ¶ 85). With respect to the second search, petitioner argues that no exigency existed in light of the fact that his car had been impounded and was in the possession of law enforcement officers during said search. ( Id. at ¶ 86). Petitioner contends that the admission of evidence seized as a result of the unconstitutional searches of his automobile violated his right to a fair trial and equal protection of the law.

Respondent argues that this ground for relief is not cognizable in federal habeas corpus. Citing Stone v. Powell, 428 U.S. 465, 474-95 (1976), respondent argues that where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted habeas corpus relief on the ground that evidence obtained through an unconstitutional search and seizure was introduced into evidence at his trial. (Return of Writ, doc. no. 124, at 89). In the alternative, respondent argues that this ground for relief is procedurally defaulted because petitioner failed to present it to the court of appeals on direct appeal. Respondent argues that petitioner raised this claim for the first time before the Ohio Supreme Court as Proposition of Law No. V, and the Ohio Supreme Court summarily rejected the claim as both meritless and waived.

A federal habeas court cannot ordinarily review a habeas petitioner's claim that evidence obtained in violation of the Fourth Amendment should have been excluded at his trial if the prisoner had an opportunity for full and fair litigation of that claim in the state courts. Stone, 428 U.S. at 489-90. In determining whether a habeas petitioner is entitled to habeas review of a Fourth Amendment claim, this Court must first determine whether the state has a procedural mechanism "which in the abstract presents an adequate opportunity to raise a Fourth Amendment claim." Riley v. Gray, 674 F.2d 522, 526 (6th Cir. 1982). The Court must then consider "whether presentation of that claim is frustrated because of the failure of the procedural mechanism." Id. "All that Stone v. Powell requires is an `opportunity' for full and fair consideration of the claim for suppression; it is up to the claimant and his counsel to decide what use, if any, is to be made of the opportunity." Jennings v. Rees, 800 F.2d 72, 77 (6th Cir. 1986).

Although the propriety of a state court's suppression decision is generally not available for habeas review, a district court can address a Fourth Amendment issue contained within a claim of ineffective assistance of counsel. In Kimmelman v. Morrison, 477 U.S. 365, 383 (1986), the Supreme Court held that restrictions on federal habeas review of Fourth Amendment claims announced in Stone do not extend to Sixth Amendment claims of ineffective assistance of counsel, and "federal courts may grant habeas relief in appropriate cases, regardless of the nature of the underlying attorney error." Id.

In the present case, petitioner does not assert the Fourth Amendment claim contained in his eleventh ground for relief as a claim of ineffective assistance of appellate counsel. Additionally, petitioner does not contest either the existence or the functioning of Ohio's procedural mechanisms, and he does not allege that the State of Ohio failed to provide him with a full and fair opportunity to litigate the constitutionality of the searches of his car. Rather, petitioner argues that he "recognizes the ruling in Stone v. Powell," and "reserve[s] the right to litigate this matter further if the law changes and urges this Court to exercise its inherent authority to review it now." (Am. Traverse, doc. no. 157, at 133).

For the foregoing reasons, the Court finds that petitioner's Fourth Amendment claim is non-cognizable in federal habeas corpus. As such, the Court need not address whether petitioner's eleventh ground for relief is procedurally defaulted. The Court hereby dismisses petitioner's eleventh ground for relief as non-cognizable on habeas corpus review.

K. Twelfth Ground for Relief — Failure to Record Grand Jury Proceedings

In his twelfth ground for relief, petitioner argues that the state's failure to record the Grand Jury proceedings in his case denied him a fair trial, effective review and a fair sentencing in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Prior to trial, petitioner's counsel made a motion to compel disclosure of the grand jury testimony. The prosecutor informed the court that the grand jury testimony had not been recorded, and the trial court denied petitioner's motion. (Am. Traverse, doc. no. 157, at 134). Petitioner argues that there was a particularized need for the grand jury transcripts in his case because witnesses Dempsey and Muncy, who petitioner describes as "suspects-turned-state witnesses," both testified against petitioner before the Grand Jury and at trial. (Am. Pet., doc. no. 121, at ¶ 90). Petitioner argues that by failing to record the grand jury testimony, the state denied him access to a portion of the proceedings in his case, and violated his constitutional rights to due process and a fair trial.

Respondent argues that this ground for relief is procedurally defaulted because petitioner did not present it to the Ohio Court of Appeals on direct appeal. Rather, respondent contends that petitioner raised this claim for the first time before the Ohio Supreme Court as Proposition of Law No. XLIII. Respondent argues that the Ohio Supreme Court found this claim to be both meritless and waived.

Petitioner does not challenge respondent's assertion that he failed to present this claim to the court of appeals, and after reviewing the record in this case, it is apparent to this Court that petitioner raised this claim for the first time before the Ohio Supreme Court. Petitioner's claim challenging the state's failure to record the grand jury testimony is a claim appearing on the face of the record that should have been raised on direct appeal to both the intermediate court of appeals and the Ohio Supreme Court. Accordingly, the Court finds that the first part of the Maupin test is satisfied because petitioner violated a state procedural rule by failing to first present this claim to the court of appeals. See Williams, supra.

Petitioner argues that his twelfth ground for relief is not subject to procedural default because the second prong of the Maupin test has not been satisfied. Petitioner contends that the Ohio Supreme Court did not actually enforce the state procedural sanction, and failed to clearly and expressly reject this claim on the basis of a state procedural bar. In reviewing the decision of the Ohio Supreme Court, the Court finds, for the reasons set forth in the portion of this Opinion and Order addressing petitioner's tenth ground for relief, that the Ohio Supreme Court considered this claim waived because it had not been presented below. Although petitioner made a motion for the grand jury transcripts at trial, he failed to raise this argument before the intermediate appellate court in any manner. Therefore, this ground for relief falls within the category of claims that the Ohio Supreme Court did not address in opinion form because of waiver. Again, the Court draws a distinction between claims that the Ohio Supreme Court failed to consider in their entirety because they were not presented below, and claims that were not presented below but that the court expressly considered on the merits, such as petitioner's claims of ineffective assistance of counsel. Accordingly, the Court determines that the second prong of the Maupin test has been satisfied.

Having already determined that the state procedural rule at issue is an adequate and independent state ground upon which the state can rely to deny relief, the Court must now consider the fourth part of the Maupin test and determine whether cause and prejudice exist to excuse the default. In the Amended Traverse, petitioner makes a blanket argument that ineffective assistance of trial or appellate counsel constitutes cause and prejudice to excuse any default that respondent has alleged. With respect to this ground for relief, the Court will interpret petitioner's "cause" argument as an argument of ineffective assistance of appellate counsel on direct appeal to the court of appeals, because that is where this ground for relief should have been raised.

As stated previously, a claim of ineffective assistance of appellate counsel cannot serve as "cause" sufficient to excuse a procedural default if the specific allegation of ineffective assistance has itself not been preserved for habeas review. See Edwards v. Carpenter, 529 U.S. 446 (2000). In the instant case, petitioner, represented by new appellate counsel, presented thirty-five allegations of ineffective assistance of appellate counsel before the Ohio Supreme Court. The claim that appellate counsel were ineffective because they did not challenge the state's failure to record the grand jury proceedings was presented on direct appeal to the Ohio Supreme Court as one of the allegations of ineffective assistance. Accordingly, this claim of ineffective assistance of appellate counsel is not itself defaulted, and can be alleged as cause to excuse the default of petitioner's twelfth ground for relief.

To the extent that this Court must determine whether petitioner's first appellate counsel performed unreasonably and to his prejudice in failing to challenge on direct appeal the state's failure to record the grand jury proceedings, the Court notes that this is an issue that the Court will be deciding in its subsequent order addressing the merits of petitioner's claims. The instant "cause" argument is set forth in paragraph 56(ff) of petitioner's ninth ground for relief as one of the meritorious issues that appellate counsel should have raised. Because this is a claim that the Court will be addressing in its subsequent Opinion and Order on the merits, the Court will refrain from deciding whether this allegation serves as cause and prejudice to excuse the default of petitioner's twelfth ground for relief. The Court will make the cause and prejudice determination in its Opinion and Order addressing the merits of petitioner's remaining claims.

L. Thirteenth Ground for Relief — Inadequate Review of Conviction and Sentence

In his thirteenth ground for relief, petitioner argues that the Ohio Court of Appeals and the Ohio Supreme Court failed to conduct a constitutionally adequate review of his conviction and sentence when those courts proceeded with the direct review of his case without a complete record. Petitioner alleges that pre-trial transcripts, pleadings and certain exhibits were missing from the record. Specifically, petitioner argues that the record did not contain the transcript of his competency hearing, as well as several exhibits, including the model knife, a police sketch of the scene, a wood chip, the stick from which the wood chip purportedly came, the coroner's chart, slides of the autopsy, the cellmark inventory sheet and correspondence, a DNA diagram, and a cellmark log form. (Am. Pet., doc. no. 121, at ¶ 92). Petitioner claims that the absence of a complete trial record, and in particular the missing transcript of the competency hearing, denied him a constitutionally adequate review of his convictions and sentence.

Respondent argues that petitioner's thirteenth ground for relief is procedurally defaulted. Respondent contends that petitioner failed to raise this incomplete record claim before the court of appeals on direct appeal, and instead raised it for the first time before the Ohio Supreme Court as Proposition of Law No. VIII. Respondent argues that the Ohio Supreme Court refused to consider petitioner's claim because it had not been properly presented below, and therefore, petitioner's thirteenth ground for relief is procedurally defaulted. This Court does not agree.

It is well settled that a claim of error must be presented at the first available opportunity. See State v. Roberts, 1 Ohio St.3d 36, 39 (1982) (applying doctrine of res judicata to claims that were not raised "at earliest possible time"). With respect to petitioner's argument that the intermediate court of appeals reviewed his sentence without a complete record, the Court finds that petitioner presented this allegation at the first available opportunity. Petitioner could not have presented this claim to the court of appeals, because the alleged error did not occur until the court of appeals reviewed petitioner's case and then issued a final decision affirming his convictions and sentence. Thus, because the error is alleged to have occurred at the court of appeals, the first opportunity that petitioner had to present this claim was before the Ohio Supreme Court, and petitioner presented it there as his eighth proposition of law. Petitioner also filed a motion to supplement the record with the missing transcripts. The Ohio Supreme Court denied petitioner's request.

With respect to petitioner's argument that the Ohio Supreme Court should have allowed him to supplement the record and should not have reviewed his convictions and sentence without a complete record, that alleged error did not occur until the Ohio Supreme Court conducted its review of petitioner's convictions and sentence and issued its final decision. Petitioner could not have raised this claim of Ohio Supreme Court error in post-conviction proceedings before the trial court for the reasons expressed in State v. Murnahan, 63 Ohio St.3d 60, 65 (1992). Raising such claims in post-conviction would result in a situation where trial courts would be asked to "second-guess superior appellate courts." Id.

The doctrines of exhaustion and fair presentment presuppose the existence of an established and available remedy. Because trial courts are not empowered to render an appellate court decision void or voidable, petitioner had no available opportunity until the instant habeas action to challenge the review conducted by the Ohio Supreme Court. Therefore, the Court finds that the first available opportunity that petitioner had to raise this claim of Ohio Supreme Court error was before this Court, and accordingly, petitioner's thirteenth ground for relief is properly before the Court for consideration on the merits.

M. Fifteenth Ground for Relief — Sufficiency of the Evidence

In his fifteenth ground for relief, petitioner argues that his convictions are based on insufficient evidence. Petitioner contends that the state failed to present sufficient evidence that he was the perpetrator of the crimes, that he had a specific intent to kill, or that an attempted rape took place as an independent charge and as an aggravating circumstance. (Am. Pet., doc. no. 121, at ¶ 100).

Respondent argues that before the court of appeals, the only conviction that petitioner challenged was his conviction for attempted rape. Before the Ohio Supreme Court, petitioner expanded his insufficiency claims to include challenges to all of his convictions. Although the Ohio Supreme Court addressed the merits of all of petitioner's insufficient evidence claims, respondent argues that this ground for relief is partially defaulted because the Ohio Supreme Court noted in a separate portion of its opinion that petitioner waived all claims not preserved for review at the appellate court below. Therefore, respondent argues that only petitioner's conviction for attempted rape may be reviewed for sufficiency of the evidence.

With respect to the first part of the Maupin test, the Court must determine whether petitioner violated a state procedural rule. Petitioner does not dispute respondent's contention that he should have presented all of his sufficiency of the evidence arguments before the court of appeals on direct appeal. Accordingly, the Court finds the first part of the Maupin test to be satisfied, as sufficiency of the evidence claims are claims appearing on the face of the record that should be raised before the court of appeals.

Petitioner argues that respondent cannot satisfy the second prong of the Maupin test, because the Ohio Supreme Court did not clearly and expressly rely on a state procedural bar in rejecting his claims. After reviewing the substance of the allegations contained in petitioner's fifteenth ground for relief, as well as the opinion of the Ohio Supreme Court, the Court agrees with petitioner. The Ohio Supreme Court considered the merits of all of petitioner's claims challenging the sufficiency of the evidence used to convict him. Accordingly, the Court finds that petitioner's fifteenth ground for relief is properly before the Court for habeas review.

In section VII of its opinion, the Ohio Supreme Court addressed petitioner's arguments regarding the sufficiency of the evidence. In analyzing petitioner's claims, the Ohio Supreme Court made findings with respect to the strength of the evidence against petitioner establishing his identity as the perpetrator of the crimes, that he had a specific intent to kill, and that he committed an attempted rape. In reviewing the evidence, the Court made no mention of waiver or default. The Ohio Supreme Court ruled as follows:

In his thirty-fifth proposition of law, appellant contends that the evidence was not sufficient to establish his identity as the perpetrator of the crimes. Appellant's argument is not well taken.

In the case at bar, appellant had a knife and desperately wanted to be alone with Tina. . . . DNA evidence linked appellant to the killing. Evidence was also presented which, if believed, established that Tina was killed with a knife similar to the one appellant possessed on the night of the murder. Further, a broken stick found at the murder scene matched a wood chip recovered from the underbody of appellant's vehicle.

Upon a thorough review of the record, we find that the direct and circumstantial evidence in this case, and the reasonable inferences that can be drawn therefrom, was more than sufficient to establish appellant's identity as the perpetrator of the offenses.

Appellant also contends that the state failed to produce sufficient evidence to show that appellant purposely killed Tina. However, the number and nature of Tina's stab wounds clearly established appellant's purpose to kill. Further, the jury could have reasonably concluded that appellant had the mental capacity to form a purpose to kill Tina despite what appellant may have had to drink or smoke on the night in question.

Additionally, appellant suggests that the evidence was insufficient to support a finding of attempted rape. We disagree. Appellant's sexual interest in Tina was apparent. The evidence indicated that appellant desperately wanted to be alone with Tina. Tina was found with her pants at her ankles and her panties at midthigh. The evidence indicated that Tina had been forcibly undressed. The killer had apparently raked his fingers over Tina's stomach and downward toward the pubic region. Bloody hand marks were found on Tina's thighs, indicating that the killer had tried to force Tina's legs apart. Appellant's blood was found on Tina's body and clothing. A drop of appellant's blood had apparently dripped onto Tina's face while she was still alive, and while appellant was standing directly above her. This evidence was clearly sufficient for a reasonable jury to conclude that appellant attempted to rape Tina. Accordingly, we reject appellant's thirty-fifth proposition of law.

Scudder, 71 Ohio St.3d 263, 274 (1994) (emphasis added).

It is apparent from the findings of the Ohio Supreme Court that the court did not actually enforce any state law procedural bar with respect to petitioner's sufficiency of the evidence claims. Again, the Court draws a distinction between claims that the Ohio Supreme Court failed to consider in their entirety because they were not presented below, and claims that were not presented below but the court expressly considered on the merits, such as petitioner's claims of ineffective assistance of counsel. The Court finds that petitioner's fifteenth ground for relief is properly before the Court for a review on the merits.

N. Sixteenth Ground for Relief — Speedy Trial Violation

Petitioner argues in his sixteenth ground for relief that he was denied the right to a speedy trial because "without his knowledge or consent," his trial did not take place until "one year and five months after indictment." (Am. Pet., doc. no. 121, at ¶ 102). Respondent argues that this ground for relief is procedurally defaulted, because petitioner did not present it to the court of appeals on direct appeal, but raised it for the first time before the Ohio Supreme Court as Proposition of Law No. XXXIV. Respondent contends that the Ohio Supreme Court refused to consider petitioner's claim and found that it was waived because it had not been presented to the lower appellate court.

With respect to the first part of the Maupin test, the Court must determine whether petitioner violated a state procedural rule. Petitioner does not dispute respondent's contention that this claim should have been raised on direct appeal to the court of appeals and that he failed to do so. Accordingly, the Court finds the first part of the Maupin test to be satisfied, as this is a claim appearing on the face of the record that should have first been presented to the court of appeals.

Petitioner claims that respondent cannot satisfy the second prong of the Maupin test, arguing that even though there may be an applicable state procedural bar, the Ohio Supreme Court did not clearly and expressly rely on the state procedural bar in rejecting his claim. Petitioner argues that the Ohio Supreme Court's general statement that "a number of appellant's arguments have been waived, since appellant failed to preserve the alleged errors at either the trial court or appellate level" is not a clear and express reliance on a state procedural rule.

After reviewing the record in this case, this Court cannot agree with petitioner. Although the Ohio Supreme Court did not identify which claims were waived and which claims had no support under controlling case law, the court's general pronouncement about waiver, coupled with its decision not to address this claim on its merits, is a clear and express intention by the Ohio Supreme Court to reject this claim on the basis of procedural default. Petitioner's argument that his speedy trial rights were violated should have been raised at trial, or to the extent that petitioner is alleging ineffective assistance of trial counsel for waiving his rights without consultation, it should have been raised in his first direct appeal to the court of appeals. It was not raised, in any manner, at either juncture. Therefore, the Court concludes that this claim falls within the category of cases that the Ohio Supreme Court refused to consider based on waiver, and the Court deems the second part of the Maupin test to be satisfied.

With respect to the third part of the Maupin test, the Court has already determined that Ohio's procedural rule requiring that claims of constitutional error be preserved at the lower appellate court is an adequate and independent state ground upon which the state can deny relief. Therefore, petitioner's sixteenth ground for relief is subject to procedural default and the Court must now consider whether petitioner can establish cause and prejudice to excuse the default.

Pursuant to his blanket assertion of ineffective assistance of counsel as cause for any default alleged by respondent, petitioner appears to argue that ineffective assistance of appellate counsel satisfies the cause-and-prejudice prong of the Maupin test. To the extent that petitioner argues that his first appellate counsel should have asserted a violation of his speedy trial rights on direct appeal, the Court finds that this argument is not itself defaulted and can be alleged by petitioner as cause. On direct appeal to the Ohio Supreme Court, petitioner raised this precise allegation in support of his claim of ineffective assistance of appellate counsel. In the instant habeas proceeding, petitioner raises this argument as part of his ninth ground for relief. Respondent concedes that petitioner's cause argument is properly before the Court for a review on the merits in its own right.

As discussed more fully in the portion of this Opinion and Order addressing petitioner's twelfth ground for relief, a petitioner must show both deficient performance on the part of his appellate attorneys and prejudice from the deficient performance in order to establish a claim of ineffective assistance of appellate counsel sufficient to constitute cause for the default of a claim. Accordingly, the issue before the Court is whether appellate counsel's performance was deficient and resulted in prejudice to petitioner when they failed to raise his speedy trial claim on direct appeal. This is a determination that the Court must necessarily make in a separate opinion addressing the merits of petitioner's ninth ground for relief. Therefore, the Court will not decide in this Opinion and Order whether this allegation of ineffective assistance of appellate counsel excuses the default of petitioner's sixteenth ground for relief.

O. Seventeenth Ground for Relief — Prosecutorial Misconduct

In his seventeenth ground for relief, petitioner asserts that prosecutorial misconduct denied him his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Petitioner cites several instances of prosecutorial misconduct in support of this ground for relief. However, as respondent correctly notes, these alleged instances are presented in no logical order.

In analyzing petitioner's seventeenth ground for relief, respondent argues that the claims contained in paragraphs 105, 108, 109, 112, 113, 114, 115, 116, and 117 are procedurally defaulted, as they were not presented on direct appeal to the court of appeals but were raised for the first time before the Ohio Supreme Court. Petitioner argues that the Ohio Supreme Court reviewed all of his claims of prosecutorial misconduct and did not enforce any procedural bars with respect to his claims, including those that had not been presented to the court of appeals.

The allegations of prosecutorial misconduct that respondent claims are defaulted can be summarized as follows: the prosecutor engaged in a pattern of leading the witnesses, (paragraph 105); the prosecutor misstated the law and made inappropriate comments during voir dire and mitigation, (paragraphs 108-109); the prosecutor withheld discoverable evidence and failed to disclose the names of expert witnesses until after the trial had begun, (paragraph 112); the state bolstered the credibility of alleged co-conspirators, (paragraph 113); the state failed to disclose that potential witness David Bonner had exculpatory evidence, (paragraph 114); the state commented on petitioner's exercise of his right to remain silent, (paragraph 115); the state introduced privileged medical testimony against petitioner in the absence of a waiver, (paragraph 116); and the prosecutor referred to the jury's sentencing verdict as a recommendation, (paragraph 117).

In considering the allegations contained in paragraph 113 — that the state attempted to exonerate Muncy and Dempsey as alternative suspects and unfairly bolstered their credibility during the trial — the Court finds that the Ohio Supreme Court considered this claim on the merits. Without mentioning waiver, the Ohio Supreme Court held that "we find that the facts of record, the evidence at trial, and even appellant's own initial statements to police exonerated Muncy and Dempsey from any involvement in these crimes. Contrary to appellant's assertions, the record in this case does not implicate anyone but appellant in the aggravated murder of Tina." Scudder, 71 Ohio St.3d at 271. Therefore, the Court finds that respondent cannot satisfy the second prong of the Maupin test, and this allegation is properly before the Court.

With respect to paragraph 114, the Court finds that petitioner presented this claim to the trial court in post-conviction, and that the trial court considered the claim on the merits. Specifically, petitioner argued in his fifth ground for relief in his post-conviction petition that he was denied a fair trial by virtue of the state's failure to disclose exculpatory evidence obtained from David Bonner. Petitioner also argued in his fourth ground for relief that his trial counsel were ineffective for not calling Bonner as an alibi witness after Bonner told a defense investigator that he had observed the victim with other individuals shortly before the murder. In rejecting those claims on the merits, the trial court found that petitioner failed to present any evidence outside the record, affidavit or otherwise, to support his claims. The trial court also held that "[t]he fact that a defense investigator spoke with Bonner refutes Scudder's own assertion that the prosecution did not disclose Bonner." (App. Vol. IV, Ex. PP, at 10). The court of appeals affirmed, finding that petitioner presented no proof in support of his claims. Because the state courts issued a decision on the merits with respect to this claim, the Court finds that it is properly before the Court for consideration.

After reviewing the record, the Court finds that the allegations contained in paragraphs 105, 108, 109, 112, 115, 116, and 117 are all claims appearing on the face of the record that should have been presented to the intermediate appellate court on direct appeal. The Court finds that petitioner failed to do so, and instead raised those claims for the first time before the Ohio Supreme Court, and the Ohio Supreme Court considered the claims waived pursuant to its statement regarding waiver at the beginning of its opinion. The Ohio Supreme Court did not mention or address the merits of those claims in its opinion.

With respect to the allegation contained in paragraph 112 — that the prosecutor failed to disclose the names of its expert witnesses until after the trial had started — the Court finds that although the Ohio Supreme Court ruled on the merits of this claim, it did so in the alternative after making a clear and express finding of default. Specifically, the Ohio Supreme Court stated: "First, appellant did not raise these issues in the court of appeals. Thus, his arguments have been waived. Second, appellate has failed to demonstrate that the trial court abused its discretion by allowing the witnesses to testify." Scudder, 71 Ohio St.3d at 268.

With respect to the third prong of the Maupin test, the Court has already found Ohio's procedural rule requiring that claims of constitutional error be preserved at the lower appellate court to be an adequate and independent state ground upon which the state can deny relief. Thus, the only issue before the Court is whether petitioner can establish cause and prejudice sufficient to excuse the default.

Petitioner asserts ineffective assistance of appellate counsel as cause to excuse the default of his claims of prosecutorial misconduct. With respect to each of the allegations contained in paragraphs 105, 108, 109, 112, 115, 116, and 117, the Court finds that there is a correlating allegation of ineffective assistance of appellate counsel contained in petitioner's ninth ground for relief. Because the Court will be considering the merits of petitioner's cause arguments in its subsequent Opinion and Order considering the merits of petitioner's ninth ground for relief, the Court will conduct its analysis of petitioner's cause and prejudice arguments at that time.

P. Nineteenth Ground for Relief — Jury Instructions

In his nineteenth ground for relief, petitioner argues that the trial court gave a number of erroneous jury instructions during both the guilt and sentencing phases of his trial that violated his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Specifically, petitioner argues that the trial court failed to give a mercy instruction, that the court's instructions during voir dire skewed the proceedings, that the credibility instruction bolstered the state's case, that the court gave an inaccurate instruction regarding reasonable doubt, erroneously instructed the jury regarding lesser offenses, and failed to include an involuntary manslaughter instruction.

Respondent argues that this claim is partially defaulted because petitioner presented only a portion of this ground for relief to the court of appeals on direct review, and then expanded the allegations on appeal to the Ohio Supreme Court. Respondent concedes that the following claims are properly before the Court: (1) the trial court erred by instructing the jury that their sentencing verdict was merely a recommendation; (2) the instruction on witness credibility was erroneous; and (3) the trial court's definition of reasonable doubt during the guilt phase was improper. Respondent argues that the remaining allegations contained in this ground for relief are defaulted.

The Court finds that respondent satisfies the first three parts of the Maupin test with little difficulty. It is apparent to the Court that petitioner presented several allegations of instructional error to the Ohio Supreme Court without first presenting them to the court of appeals below. It is also apparent to the Court that the Ohio Supreme Court did not consider petitioner's additional claims of instructional error pursuant to its statement regarding waiver at the beginning of its opinion, and its failure to address the additional claims on their merits. This particular state procedural rule constitutes an adequate and independent state procedural rule upon which the state can rely to deny relief. Thus, the only issue before the Court is whether petitioner can establish cause and prejudice to excuse the default of the remaining portion of his nineteenth ground for relief.

After reviewing petitioner's additional allegations of instructional error, the Court is of the opinion that it would be premature to conduct the cause and prejudice analysis in this Opinion and Order. As with many of his other defaulted claims, petitioner argues that ineffective assistance of appellate counsel constitutes cause and prejudice sufficient to excuse the default. In order to determine whether petitioner can establish cause and prejudice, the Court would have to make a determination regarding the merits of petitioner's underlying ineffective assistance of counsel claims set forth in his ninth ground for relief. Because the Court will be resolving petitioner's ninth ground for relief on the merits in its subsequent Opinion and Order, the Court will make the instant cause and prejudice determination simultaneously with its merits decision.

Q. Twenty-Sixth Ground for Relief — Biased Jurors

In his twenty-sixth ground for relief, petitioner argues that the statements and service of biased jurors on the jury violated his right to a fair and impartial jury, and to due process as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Petitioner contends that Juror Dreisbach failed to disclose during voir dire that he had a relationship with a police officer who testified in the case. Additionally, petitioner argues that his constitutional rights were violated when two jurors made prejudicial comments during group voir dire regarding their disagreement with the law. Specifically, petitioner argues that "[o]ne juror commented on her prior jury experience where she voted to acquit a person only to find out afterward that they had a `big long' criminal record." (Am. Pet., doc. no. 121, at 51). Petitioner also challenges the statement by another juror that "if a person has been arrested there must be a reason for it, i.e., guilt." ( Id.)

According to respondent, petitioner did not present his juror bias claims to the court of appeals on direct appeal, but raised them for the first time before the Ohio Supreme Court. Respondent argues that the Ohio Supreme Court refused to consider petitioner's claims on the basis of waiver, and therefore, they are procedurally defaulted.

A review of the record reveals that petitioner failed to present any juror bias claims to the court of appeals. Instead, petitioner raised them for the first time before the Ohio Supreme Court as proposition of law XX. Further, the Court finds that the Ohio Supreme Court considered petitioner's juror bias claims waived pursuant to its general statement of waiver, because the court did not address the merits of petitioner's claims in its opinion. Having already determined that the state procedural rule at issue is an adequate and independent state ground upon which the state can rely to foreclose review, the Court must now consider whether petitioner can establish the existence of cause and prejudice to excuse the default of his twenty-sixth ground for relief.

Petitioner does not specifically allege cause and prejudice to excuse the default of this ground for relief. Rather, petitioner references the section of his amended traverse arguing that any default alleged by respondent can be excused due to ineffective assistance of counsel. With respect to this ground for relief, the Court interprets petitioner's argument as one of ineffective assistance of appellate counsel on direct appeal to the court of appeals.

Before the Ohio Supreme Court, petitioner argued in his thirty-second ground for relief that his first appellate counsel were ineffective for failing to argue before the court of appeals that petitioner's rights were violated when the trial court permitted biased jurors to hear petitioner's case. (App. Vol. II, Ex. N, at 263). Likewise, in the instant matter, petitioner sets forth the same claim as part of his ninth ground for relief. (Am. Pet., doc. no. 121, at 17 ¶ 56(c)). Because the Court must determine whether appellate counsel were ineffective for failing to raise the juror bias claims in its subsequent Opinion and Order resolving the merits of petitioner's ninth ground for relief, the Court will make the instant cause and prejudice determination at that time.

V. Conclusion

For the foregoing reasons, the Court hereby DISMISSES petitioner's entire first and second grounds for relief as procedurally defaulted. The Court also DISMISSES all but paragraph 11 of petitioner's third ground for relief, paragraph 32(j) of petitioner's sixth ground for relief, part of paragraph 51 of petitioner's seventh ground for relief, and paragraph 56(p) of petitioner's ninth ground for relief on the basis of procedural default. In addition, the Court DISMISSES petitioner's entire eleventh ground for relief because it is non-cognizable in habeas corpus proceedings. The Court DENIES respondent's motion to dismiss petitioner's eighth, thirteenth, and fifteenth grounds for relief. The Court finds that those grounds for relief are not procedurally defaulted, and they are properly before the Court for consideration on the merits.

The Court finds that all or part of petitioner's fourth, tenth, twelfth, sixteenth, seventeenth, nineteenth, and twenty-sixth grounds for relief are subject to procedural default, and require a determination of whether ineffective assistance of appellate counsel constitutes cause and prejudice to excuse the default. Because those allegations of ineffective assistance of appellate counsel are properly before the Court for a review on the merits as part of petitioner's ninth ground for relief, the Court will make the requisite cause and prejudice determination in its subsequent Opinion and Order resolving the merits of petitioner's remaining claims.

IT IS SO ORDERED.