NO. 87-1674
IN THE SUPREME COURT OF OHIO
STATE OF OHIO
Plaintiff-Appellee
ROMELLBROOM
Defendant-Appellant
REQUEST TO TAKE JUDICIAL NOTICE OF UNREPORTED JUDICIAL OPINIONS
WILLIAM D. MASON Cuyahoga County Prosecutor
Matthew E. Meyer (#0075253) Assistant Prosecuting Attomey Counsel for Plaintiff-Appellee 1200 Ontario Street Courts Tower - Justice Center Cleveland, Ohio 44113 (216) 443-7800 (216) 443-7602 fax [email protected] email
Counsel for Plaintiff-Appellee
S. ADELE SHANK 3380 Tremont Rd., 2°a Floor Columbus, Ohio 43201 I TIMOTHY F. SWEENEY 820 W. Superior Ave. AIJO P '1 rl101l Cleveland, Ohio 44113 CLFRK oF COURT Counsel for Defendant-Appellant SUPf?E{UIE COURT ilrOHI® NO. 87-1674
IN THE SUPREME COURT OF OHIO
STATE OF OHIO
Plaintiff-Appellee
ROMELL BROOM
Defendant-Appellant
REQUEST TO TAKE JUDICIAL NOTICE OF UNREPORTED JUDICIAL OPINIONS
Now comes Cuyahoga County Prosecuting Attorney William D. Mason on behalf of the
State of Ohio, by and through his undersigned assistant, and respectfully submits the State's
Request to Take Judicial Notice of Unreported Judicial Opinions. The State requests that this
Honorable Court take notice of these unreported opinions pursuant to State e,r rel. Everhart v.
McIntosh, 115 Ohio St.3d 195, 874 N.E.2d 516, 2007-Ohio-4798, at ¶ 10. The opinions, which are attached hereto, are:
1. Broom v. Mitchell (N.D. Ohio, August 28, 2002), Case No. 1:99 cv 0030, unreported.
2. State v. Larkins (Ohio Ct. Com. P1, Dec. 13, 2002), Cuy. Ct. Comm. P1. CR 166827, unreported.
3. Apanovitch v. Houk (N.D. Ohio, August 14, 2009), Case No. 1:91-cv-02221, unreported
I Respectfully submitted,
WILLIAM D. MASON Cuyahoga County Prosecuting Attorney
r"^--^ foo72^E) ^Sr l^lAiC li^Iatthew E. Meyer (#0075253) Assistant Prosecuting Attomey Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 (216) 443-7821 (216) 443-7602fax [email protected] email
CERTIFICATE OF SERVICE
A copy of the foregoing Request to Take Judicial Notice of Unreported Judicial Opinions was sent by regular U.S. mail this day of August, 2009 to S. Adele Shank, Esq., 3380
Tremont Rd., 2"d Floor, Columbus, Ohio 43201 and Timothy F. Sweeney, Esq., 820 W. Superior
Ave., Suite 430, Cleveland, Ohio 44113. (oo z ;r }AEN) atthew E. Meyer (0075253) Assistant Prosecuting Attorney
2 L E'D IN THE COURT OF COMMON PLEAS I (\ ^ 1 DEC 13 20tl2
GERpLD. E. FUERST a Exx OF COURYS WyODUNTY, OHIO STATE OF OHIO ) CASE NO.: CR166827 & CR212083 ) Plaintiff, ) ) v. ) ) JOURNAL ENTRY Ronald Larkins, ) ) Defendant. )
Christine T. MeMonagle, Judge:
The Motion for New Trial filed by Defendant Larkins is granted.
Defendant Ronald Larkins moves this court for a new trial based upon
exculpatory evidence in the prosecution's possession that was not released to the
Defendant until thirteen years (13) after his original trial. That evidence is sufficient to
grant the Defendant a new trial (See Brady v. Maryland, 373 U.S. 83 (1963)). The Brady
Court set forth a three-part test to evaluate the possibility of a new trial based upon
prosecutorial misconduct. First, did the prosecution withhold evidence? Second, is that
evidence favorable to the Defendant? Third, is that evidence material to the guilt or
punishment of the Defendant?
The Court fmds that the Defendant's Brady claim is valid and warrants a new trial.
The Defendant received police reports via public records in 1999 that were not included
in discovery provided prior to trial. The evidence includes other witnesses and testimony
that does not describe the Defendant and throws doubt upon the credibility of the one
eyewitness (Henderson) presented at trial. The other witnesses describe a man of varying
Rood ^^►.^.. ^lb R^^. 0^ r1 /^- 3- 40OZ--' 3
height, weight, skin color and general appearance. Not only does this description not
depict the Defendant accurately, but these accounts differ from one another and that of
the one reported eyewitness. The ona witness previously divulged by the prosecution
gave differing reports to the police at different times and named the Defendant only after
the police told her that the Defendant was know by the nickname, Road Dog. The police
statement contradicted what Henderson said and believed prior to the police's suggestion
as to the identity of the perpetrator. Finally, the lack of the foregoing evidence materially
prejudiced the Defendant and his ability to cross-examine Henderson or call defense
witnesses to impeach Henderson's credibility and contradict her testimony.
The newly discovered evidence that was within the prosecution's possession at the
time of trial does not contradict the defense's case presented at that trial. In fact, the
Defendant presented no evidence at trial. The defense cross-examined witnesses without
the aid of the exculpatory evidence and presented a closing argument that questioned the
identity of the Defendant as the perpetrator. The exculpatory evidence withheld by the
prosecution was material to the Defendant's defense as to mistaken ide%ity and warrants
a new trial.
Date Case 1:91-cv-02221-JRA Document 155 Filed 08/14/09 Page 1 of 23
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION
ANTHONY APANOVITCH ) CASE NO. 1:91CV2221
Petitioner, ) ) JUDGE JOHN R. ADAMS v. ) ) MARC C. HOUK, WARDEN, ) MEMORANDUM OF OPINION AND ORDER Respondent. )
On December 14, 1984, Petitioner Anthony Apanovitch ("Petitioner" or "Apanovitch"), was
convicted of one count of aggravated murder in violation of Ohio Revised Code ("R.C.") § 2903.01,
one court of aggravated burglary in violation of R.C. § 2911.11, and two counts of rape in violation
of R.C. § 2907.02. Mary Anne Flynn was the victim of Apanovitch's crimes. Apanovitch was
subsequently sentenced to death and 45 to 47 years of imprisonment.
On November 1, 1991, he filed a Petition for Writ of Habeas Corpus (Doc. 1) pursuant to 28
U.S.C. § 2254 in the United States District Court for the Northern District of Ohio. On July 28, 1993,
the district court dismissed the Petition. (Doc. 48). Subsequently, on December 28, 1993, Petitioner's
and the Respondent Marc C. Houk's ("Respondent"or "State") Motions to Alter Judgment were
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denied. (Doc. 55). Petitioner filed his appeal from the district court's decision on January 26, 1994.
(Doc. 57). The Sixth Circuit Court of Appeals, on October 19, 2006, remanded the action for further adjudication as to Petitioner's claim under Brady v. Maryland, 373 U.S. 83 (1963), and the
Respondent's DNA request. Apanovitch v. Houk, 466 F.3d 460 (6th Cir. 2006). Per instructions from the Sixth Circuit, this Court ordered DNA testing. On February 26, 2009, a hearing was held on the admissibility of the DNA evidence. The matter now appears before the Court for adjudication.
I.FACTS
The following facts were taken from the opinion of the Ohio Supreme Court. State v.
Apanovitch, 33 Ohio St.3d 19, 19-20 (1987).
On August 23, 1984, after visiting family members, Mary Ann Flynn left to return home. At approximately 10:00 p.m., a neighbor saw Flynn get out of her car and walk toward the back door of her residence. Flynn owned a duplex on Archwood Road in Cleveland, Ohio, and was living in one portion of the unit while renting the other.
Within minutes of Flynn's exiting her car, her tenants and their guests heard a door slam in Flynn's half of the unit. At midnight, they heard a loud bang or thud. One person heard a high pitched noise between 11:30 p.m. and midnight. Thereafter, everything was quiet.
The following day a co-worker and friend, Christine Schenk, became concenred when Flynn failed to report for work at 4:00 p.m. at the Cleveland Metropolitan General Hospital, where she was employed as a nurse and midwife. Schenk telephoned Flynn's brother and together they gained access to Flynn's apartment through the tenants' side of the basement. Martin Flynn discovered the body of his sister in her second floor bedroom. Schenk, who was also a nurse, checked to see if Flynn was alive, and when it was determincd that she was not, the police were summoned.
The decedent was discovered lying face down on a mattress with her hands bound behind her back. What appeared to be a rolled-up bedsheet was tied around her neck and also tied to the headboard of the bed.
The cause ofdeath was determined to be asphyxia by cervical compression. Sperm was found in the victim's mouth and vagina. There were wood chips and slivers on the body consistent with pieces of wood found in the bedroom. A laceration was
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discovered on the back of the neck and slivers of wood were found in this wound. The body was badly beaten and bruised. The time of death was fixed between midnight and 6:00 a.m.
The police investigation quickly focused on appellant, Anthony Apanovitch. Apanovitch had painted portions of the exterior of the victim's home, and a copy of the contract for the painting was found on Flynn's kitchen table. He indicated to police that he was familiar with the apartment.
Six witnesses testified that Flynn was fearful of Apanovitch, although most of them could only describe him as "the painter" or "a big man" with a "wife that was pregnant." There was conflicting testimony as to what appellant said about the victim. A co-worker, Dawson D. Goetchius, allegedly told detectives that Apanovitch remarked that he would like to have sexual relations with Flynn. However, Goetchius claimed that he only reported that Apanovitch said that she was a nice lady. Appellant apparently asked out many women.
At the time of his arrest, appellant had a scratch on his face consistent with a scratch caused by fingernails. However, there was nothing of significance found in the scrapings taken from the victim's fingernails. Appellant gave conflicting stories as to how he received the scratch, first claiming that a bottle broke and glass flew up and scratched his face. Later, he stated that he was in a fight, although a police investigation failed to establish a fight having taken place where appellant claimed to have received the scratch.
Apanovitch claimed that he was at several bars throughout the evening during various time frames. Some witnesses testified that they did not see him at all at these bars. Others testified that Apanovitch was not in a particular bar or that they did not see him during the time frames he asserted. Appellant was dropped off at the Comet Bar at about 7:00 p.m., the night of the murder. The bartender at the Brookside hm remembered seeing him at 5:30 p.m. the day of the murder. Appellant left the Brookside hin between 9:15 and 10:00 p.m., returning to the Inn at approximately 12:45 a.m. the next morning. Apparently he then went to the Escape Lounge, where he arrived at 1:45 a.m.
Appellant's blood group was consistent with the blood group found on the oral and vaginal swabs taken from the victim.
Appellant was indicted on October 2, 1984, by the Cuyahoga County Grand Jury for aggravated murder pursuant to R.C. 2903.01, with two aggravating circumstances (rape and burglary), aggravated burglary pursuant to R.C. 2911.11 with an aggravated felony specification, and two counts of rape pursuant to R.C. 2907.02 with an aggravated felony specification.
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A jury trial was conducted and appellant was found guilty on all counts. During the penalty phase, appellant did not present any mitigating factors listed in R.C. 2929.04(B) or otherwise. Rather, appellant presented further testimony in an attempt to raise a reasonable doubt as to whether he committed the crime. The jury recommended the imposition of the death sentence, and the trial court concurred.
II. ANALYSIS
The Court has proceeded in accordance with the following instructions set forth by the Sixth
Circuit in Apanovitch, 466 F.3d at 489-90:
Apanovitch continues to raise objections to the state's request, arguing first that the test would be inaccurate and unreliable, and second, that the chain of custody is questionable. It is unclear to us whether any of the DNA material survived the testing, and the exact nature of the test results of the DNA evidence, as well as the chain of custody, remains murky. We suspect that the DNA evidence, should it be introduced and subjected to appropriate evidentiary challenges in court, might help resolve lingering questions of whether Apanovitch suffered actual prejudice when the state withheld the serological evidence, and whether Apanovitch's innocence claim can be verified. We note that Apanovitch could well benefit from any ambiguity or error in the results that might lessen the exact accuracy of any hypothetical match with his own DNA. But these are issues better suited to the district court. Therefore, we reverse the district court with respect to Apanovitch's ninth ground for habeas relief and the state's DNA request, and we remand for that court's further adjudication. In so doing, we note that the district court retains the inherent authority to conduct an evidentiary hearing with respect to the DNA evidence should it deem that course of action to be appropriate.
We also REVERSE the district court's denial of the state's motion to compare the DNA results to the petitioner's DNA, and, accordingly, REMAND on this issue as well.... On remand, we note that the district court retains the inherent authority to conduct an evidentiary hearing should it determine that further fact development is necessary and appropriate.
Furthermore, in footnote 10, the court stated:
Ofcourse, itwouldbe inappropriate for us to conduct an evidentiaryhearing ourselves, but we believe the district court retains ample inherent authority under a prc-AEDPA standard to conduct an evidentiary hearing on this matter if appropriate, taking the DNA evidence into consideration should that be deemed necessary.
Id. at 489. Pursuant to the Sixth Circuit's instructions in its Opinion of October 19, 2006, the Court
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ordered DNA testing. The results favored the State.
A. DNA TEST RESULTS
In 1984, during the autopsy of Flynn, the coroner took swabs from her oral and vaginal cavities which were used to create a number of slides. hi 2007, the DNA taken from Apanovitch was sent to
Forensic Science Associates ("FSA") for comparison with DNA placed on a slide containing spermatozoa removed from the victim's mouth. The Report from FSA signed by Edward T. Blake and
Alan Keel, dated July 20, 2007, stated:
Anthony Apanovitch cannot be eliminated as the source of the spermatozoa from the Mary Ann Flynn oral slide #190729 [Item 2]. The genetic profile shared by Anthony Apanovitch and the source of the spermatozoa from the Mary Ann Flynn oral slide #190729 [Item 2] is expected to occur in approximately one out of 285 million members of the population.
Doc. 106-1 at 9. The Report defines "population" as "Frequency in Caucasians." Id. at 10. Thus, only one in 285 million Caucasians have the same DNA profile as Apanovitch and the sperm found in
Flynn's mouth.
Apanovitch's expert, Dr. Norah Rudin, stated in the conclusion to her Report:
Although the partial DNA profile developed from the sperm cell fraction oral slide L90729 could have come from Anthony Apanovitch (assuming drop-out of an 11 allele at D16S539), the non-sperm fraction is more difficult to interpret. A plain read would suggest that Mary Ann Flynn could not be the source of a sample purportedly taken from her own mouth. However, the indication of a third contributor, as well as types foreign to both Flynn and Apanovitch, combined with the history of the sample, suggest contamination as an explanation for the foreign alleles. Alternate explanations would require a belief that this sperm sample were mixed with non-sperm cells from a woman other than Flynn.
Doc. 110-1 at 7. Dr. Rudin does not address the strength/frequency of the source determination, a calculation necessary in determining whether a comparison has been shown. Both experts agree that the DNA profile of Apanovitch and the spermatozoa taken from Flynn's oral slide are a match as the
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term is defined when making DNA comparisons.
Dr. Rudin contends that the oral slide contains no DNA from the victim so she could not be the source of a sample purportedly taken from her mouth. According to Dr. Rudin, two explanations exist. One would require a belief that the spermatozoa from this sample were mixed with non-sperm cells from a woman other than Flynn, i.e., crime scene or laboratory personnel; the second entails an assumptionthat historical handling of the slides introduced extraneous DNA, i.e., the chain of custody was broken as the slides were found in a desk drawer during a laboratory reorganization or the case number was marked in two slightly different ways. In other words, Rudin concludes that the slides must have been contaminated. Doc. 110-1 at 6-7.
The 2007 FSA report does not contain a discussion or an analysis of the non-sperm fraction and the reference from Flynn. However, an earlier report from FSA included a comparison of the non- sperm fraction of the oral slide and a DNA profile taken from Flynn's hair. Both contained Flynn's
DNA. The Report concluded that the non-sperm fraction of the oral slide, although containing several alleles not attributable to either Flynn or the male spermatozoa, contained DNA compatible with a mixture between Flynn and the spermatozoa source (Apanovitch). Doc 113-1 at 6, 28.'
The Court concludes that the weight of the evidence supports a detennination that DNA taken from Apanovitch is comparative to the DNA found on the oral sHde taken from the victim.
B. CHAIN OF CUSTODY
Apanovitch has challenged the chain of custody of the evidence, consisting of slides of evidence taken from the victim used to make the DNA comparison. The Court finds no merit in this challenge.
'These issues will be discussed in the next section.
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The Sixth Circuit has held that evidence is admissible "when the possibility of misidentification or alteration is `eliminated, not absolutely, but as a matter of reasonable probability."' United States v. Combs, 369 F.3d 925, 938 (6th Cir. 2004)(quoting United States v.
Allen, 106 F.3d 695, 700 (6th Cir. 1997)). The chain of custody is part of the authentication requirement set forth in Evid.R. 901. State v. Brown, 107 Ohio App.3d 194, 200 (Ohio Ct. App.
1995)? The burden of establishing a proper chain of custody is on the state. State v. Moore, 47 Ohio
App.2d 181, 183 (Ohio Ct. App. 1973). The prosecution has no duty to eliminate every possibillty that tampering or substitution occurred. Id. Proof of a perfect, unbroken chain is not necessary. State v. Keene, 81 Ohio St.3d 646, 662 (1998). The state need only show that it is reasonably certain that substitution, tampering, or alteration did not occur. Moore, 47 Ohio App.2d at 183. Any break in the chain of custody affects the weight of the evidence, not its admissibility. State v. Blevins, 36 Ohio
App.3d 147, 150 (Ohio Ct. App. 1987).
As noted above, this Court held a hearing on Apanovitch's challenge to the chain of custody surrounding the evidence slides. Elizabeth K. Balraj, pathologist and deputy coroner, Cuyahoga
County, Ohio, and Coroner at the time of investigation of Marianne Flynn's murder, was the first to testify at the evidentiary hearing. Balraj was the Coroner of Cuyahoga County from July 1987 to July
2007. Her testimony consisted of the general procedures used by the coroner's office when performing an autopsy, as well as her autopsy performance on Flynn's body. Balraj explained as follows. When a body arrives at the coroner's office, it is assigned an identification case number
2 Questions concerning the admissibility of evidence are usually determined by state law. Mitchell v. Renico, 2006 WL 1521752 * 14 (E.D. Mich. May 31, 2006)(citing Estelle v. McGuire, 502 U. S. 62, 67-68 (1991)). Therefore, the Court will use state law concerning the chain of custody issue.
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which remains with the body for any procedure and a case number. Doc. 149 at 16-17.3 In performing an autopsy, the pathologist obtains swabs from the mouth, referred to as oral swabs, from the rectum, referred to as rectal swabs, and from the vagina, referred to as vaginal swabs. Tr. 18. Balraj noted that in 1984, when Flynn's autopsy was performed, the Cuyahoga County Coroner's Office had no DNA technology. Id.
Balraj testifiedthat she collected swabs from Flynn. Id. She explained that after making smears ofthe swabs, she would etch the autopsy number on the slides and then etch the type of slide, e.g., "0" for oral. Flynn's case number was 190729 and her autopsy number was M-51883. Tr. 27. The swabs would then be rubbed on the glass slides to make a smear of the slides. Tr. 19. The swabs are then put in a paper envelope marked with the case number or autopsy number. Id. This envelope is placed in a large manilla envelope. After filling out a requisition form with the pertinent information, Balraj would send the large envelope to the trace evidence department, usually by dumbwaiter. On occasion, a trace evidence scientist would come into the autopsy room to see if there were any samples, leading to the swabs being directly handed to the scientist. Tr. 20-21. The trace evidence laboratory was at all times a secured department. Tr. 21.The public, therefore, did not have access to the lab. ld. Balraj testified that she sent the swabs taken from Flynn to the trace evidence laboratory. She did not see the swabs after that transfer. Id.
The trace evidence scientists perform tests to determine the presence of sperm. Tr. 22. The scientist assigned to Flynn's case was Barbara Campbell. Tr. 22. Campbell had been working at the coroner's office for eleven years when she worked on Flynn's case. In October 1989, she took a leave
3 Doe. 149 is the transcript of proceedings for the evidentiary hearing. Hereafter, it will be cited as Tr.
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of absence due to poor health. She had not been coming into work regularly. Tr. 24. Campbell resigned from her position in January 1990. Tr. 23. Campbell, in fact, passed away well prior to the evidentiary hearing in this matter.
On March 14, 1988, an assistant state public defender sought information about Flynn's laboratory reports. Balraj assigned Linda Luke to search for the requested information. Tr. 25. Luke was unable to fmd the requested information at that time. Id. However, on April 18, 1991, Luke notified Balraj that she had found the smears. Id. Luke asked permission to send the smears for DNA testing pursuant to a request that had been made. Tr, 26. Balraj granted permission and the slides were sent to FSA on April 29, 1991. Tr. 26.
On cross-examination, Balraj admitted as follows. In 1984, the coroner's office was not accredited by the American Society of Crime Laboratory Directors. Tr. 28. At that time, there were no written poficies or procedures regarding retention of evidence. Id. The coroner's office, however, became accredited in 2004. Tr. 29. Besides the slides made by Balraj, trace evidence scientists made their own slides. As a result, Balraj could not specify the exact number of slides made in Flynn's case.
Tr. 30-31. She also has no knowledge regarding where trace evidence slides were stored within the department nor the manner in which they were stored. Tr. 31. When asked about whether records were made concerning the removal of trace evidence from the department, Balraj answered that she could not speak to that and that Luke would have knowledge on that topic. Tr, 34.
On redirect, Respondent's counsel referred to the transcript of Barbara Campbell's testimony at Apanovitch's trial wherein she testified that she tested the swabs and found the presence of sperm.
Tr. 39. Trial Tr. pg. 826.
Linda Luke, the trace evidence scientist, testified as follows. Her duties involved the
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collection and examination of evidentiary material such as the analyzation of body fluids including blood and sperm. Tr. 43. Luke obtained evidence by walking into the autopsy room and taking it or by using the dumbwaiter system described above. Tr. 44. Luke described the procedure performed in examining evidence, how the evidence was retained, and the system used in 1984 for tracking or logging of items. Tr. 46.
Luke worked with Campbell and was able to recognize her handwriting. Tr. 52. She identified
Campbell's handwriting in the record book. Tr. 52. It showed that Campbell found sperm on the vaginal and oral swabs taken from Flynn. Tr. 55-56. She recorded that the slides were "filed in a box, third drawer, left side comparison scope." Id. Luke explained that a comparison scope was located on a table which had drawers on both sides of the comparison scope and that slides were routinely stored in those drawers. Id. Luke admitted that in 1984, there were no rules or procedures about where slides were to be kept. Tr. 57. However, any items that were permitted to be stored at room temperature were always stored in the trace evidence department, which was always locked. Tr. 58. In 1991, the department hired two new people. When Luke was helping them move a typewriter away from
Campbell's desk, she found a key that she recognized in the bottom desk drawer. Luke used the key to unlock the file drawer near her boss's and found the records of Mary Ann Flynn. Tr. 60. The folder was filed with the name Mary Ann Flynn, and it had on it the case number 190729. Tr. 61. Upon opening the folder, she found a slide carrier that contained a vaginal and two oral slides. Id. The slides were marked with Flynn's case number with a diamond point pen. Tr. 62. After finding the slides,
Luke called an assistant Cuyahoga County prosecutor. Id. Balraj was also contacted, and it was decided to send the slides for DNA testing. Tr. 63. Luke packaged and shipped the slides to FSA. Tr.
64. FSA returned the slides to the coroner's office. Tr. 68. Since a profile was needed of the victim,
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a hair from Flynn was sent with the slides. Tr. 74.
Defense counsel elicited from Luke that the trace evidence department did not have a log in which a trace evidence scientist would make a notation every time the scientist handled a piece of evidence. Tr. 77. The defense also elicited the following testimony. Luke did not know where
Campbell kept the slides, nor did she have knowledge regarding who moved them. Tr. 78. There were no notations that indicated whether someone looked at the shdes. Tr.79. FSA referred to case number
L90729 instead of 190729. Tr. 82. Wherever the slides were stored, they were kept in locked places.
Tr. 84. No record of transfer of the sGdcs within the department was made, nor was there a registry for anyone signing out or returning a key. Tr. 90.
Respondent estabhshed on redirect that there was no record of the coroner's office ever receiving liquid semen from Apanovitch at any time. Tr. 91.
Apanovitch called Peter R. DeForest, a professor at the John Jay College of Criminal Justice in New York City, New York. He testified that the chain of evidence is an integral part of criminalistics. "Evidence has to have the integrity before it can be interpreted andexplained to others."
Tr. 101. DeForest was asked about the American Society of Crime Laboratory Directors which accredits laboratories. Its purpose is to promote the improvement of laboratories through management and the establishment of industry-wide standards. Tr. 102. In order to become accredited, a laboratory must maintain evidence integrity by ensuring that there are policies and procedures in place for handling evidence. Evidence must be properly documented and secured when it comes into the laboratory. Packages must be sealed, recorded and given attention. The final disposition must be documented. Tr. 103. A few states require crime laboratories to be accredited bythe American Society of Crime Laboratory Directors. DeForest could only name the State of New York as a state that has
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this requirement. Tr. 104,
The expertwitness testified that laaboratory keys assigned to anyone must be tracked. Id. When an employee assigned a key retires, the key must be returned and documented. Id. Also, a log of entry and exit should be kept. Tr. 104-05. DeForest then explained the importance of proper sealing and packaging. Tr. 106. Without evidence integrity, assumptions would be made about what happened to the evidence at various times, i.e., what might have been done to it, whether it could have been exposed to some untoward events, or whether it could have been compromised or altered in some manner or tampered with by someone. Tr. 109.
According to DeForest, the Cuyahoga County Coroner's Office's procedure for logging in evidence was inappropriate because it was not done chronologically. Tr. 113. Notations about the creation of slides were also allegedly inappropriate. Tr. 114. Further, the number of slides should be noted to create an accurate accounting of the existing evidence. Tr. 115. DeForest concluded that the chain of evidence involving the oral slides taken from Flynn did not meet professional standards in
1994 or today because 1) there are gaps in it, 2) it contained non-contemporaneous note-taking, 3) the insertion of things out of order, and 4) it was missing information about where certain objects were located. DeForest concluded that these four issues create a reliability problem. Tr. 126.
On cross-examination, Respondent elicited that the American Society of Crime Laboratory
Directors only began accrediting in the early 1980s. Tr. 129. The fact that the Cuyahoga County
Coroner's Office was not accredited in 1984, therefore, was not unusual. Tr. 128. DeForest admitted that he did not know if there had been any contamination or tampering of the slides in question. Tr.
129-30.
After consideration of all of the testimony elicited at the hearing on this issue, the Court finds
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that the Respondent has met its chain of custody burden. There is no evidence of tampering, and according to Apanovitch's expert, any claim of tampering would require significant speculation. Tr.
129-30. Luke testified that there is no indication that any sperm samples from Apanovitch were ever submitted to the Trace Evidence Laboratory. Tr. 91. In fact, Luke stated that she never received a liquid sperm sample from anyone during her time as a trace evidence scientist. Id.
Oral, vaginal and rectal slides were made in 1984, although only oral and vaginal slides were found in 1991. This fact is not important in the Court's decision because the rectal slides did not test positive for sperm. The testing was for the purpose of determining the presence of sperm. When sperm was found, a slide was created. If there is no sperm found in a specific location, there is no need to make a slide. Testimony in this regard was presented at the trial. Trial Tr. pg. 827. Accordingly, the lack of a rectal slide does not cause the Court to question the reliability of the slides that were located.
The slide was labeled 190729 at the coroner's offfce. Apanovitch claims a break in the chain of custody because FSA considered the slide as labeled L90729. Such discrepancy does not indicate a break in the chain of custody. The letter "I" or "L" and the number "1" are easily confused. The fact that only the first number is different and that the latter five numbers are consistent leads to the inescapable conclusion that the discrepancy was caused by a simple mistake, not some form of tampering.
The fact that the slides were found in a different locked drawer different than where slides were usually kept does not persuade the Court that tampering occurred. The record demonstrates that the Trace Evidence Department was always locked. Apanovitch's DNA was found on the slide. His argument regarding tampering would appear to hinge upon a conclusion that someone was able to enter the coroner's office, somehow deposit his sperm on the slide or switch slides that contained his
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sperm, and somehow know that Luke would be opening the drawer that contained the slides. This scenario is beyond belief.
At the present time, coroner's laboratories have specific procedures designed to protect the integrity of evidence. Such was not the practice when Flynn's case was active. The Cuyahoga County coroner's handling of the evidence fell within the standard operating procedures of the laboratory at that time. There is simply no evidence before the Court to show that any tampering occurred. While the Court has taken into account DeForest's testimony regarding the ideal manner in which evidence should be logged and preserved, the fact that this current-day ideal set of procedures was not followed does not support a finding that the chain of custody was not maintained.
Based upon the above, the Court finds that the evidence submitted at the February 26, 2009 hearing shows a reasonable probability that the chain of custody has not been altered. The DNA evidence taken from Apanovitch is comparative to the DNA found on the oral slide taken from the victim and is properly considered by this Court.
C. BRADY
I-Iaving found the DNA evidence to be properly considered, the Court examines Apanovitch's
Brady claim in light of that determination. In order to succeed on a Brady claim, the petitioner must show that: (1) evidence favorable to the petitioner; (2) was suppressed by the State; and (3) that he sufferedprejudice as aresult. Strickler v. Green, 527 U. S. 263, 281-82 (1999). The Sixth Circuit found that the Apanovitch satisfied the first two criteria with respect to the following three issues: (1) a document relating to a pohce report on statements made by Petitioner; (2) coroner notes concerning an unidentified hair on the victim's body; and (3) documents reflecting that the police knew that the victim was a blood type A secretor. Since the Sixtb Circuit held that this Court abused its discretion
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in refusing to grant Petitioner's third motion to expand the record regarding these claims, the materials in question are now part of the record. This Court is now required to determine the third factor, i.e., whether Petitioner suffered prejudice as a result of the State withholding this evidence.
Failure to disclose evidence is material and therefore prejudicial if there is a reasonable probability that had the material been submitted to the defense, the result of the proceeding would have been different. Id. at 280, 282. A reasonable probability of a different outcome occurs where the state's suppression of evidence undermines confidence in the outcome of the trial. Kyles v. Whitley,
514 U.S. 419, 434 (1995). The Court in Kyles stated: "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Id.
A petitioner need not show that introduction of favorable evidence would have rendered the overall evidence insufficient to convict. Id. at 434-35. Materiality is determined by considering the nondisclosed evidence collectively, not individually. Apanovitch, 466 F.3d at 475. The combined impact of all of the suppressed evidence must be considered against the totality of the circumstances.
See Kyles, 514 U.S. at 441. In Brown v. Head, 272 F.3d 1308, 1316 (1 lth Cir. 2001), the Eleventh
Circuit held:
The prejudice component of an ineffective assistance claim and the materiality component of a Brady claim both require the same thing: the petitioner must establish that but for the deficient representation or suppression, there is areasonableprobability of a different result in the proceeding. Compare Strickland, 466 U. S. at 694, 104 S.Ct. at 2068 with Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490 (1995). If the failure to use certain evidence does not result in prejudice for ineffective assistance purposes, the suppression of some ofthat same evidence will not be material for Brady purposes.
See Joseph v. Coyle, 469 F.3d 441, 462-623 (6th Cir. 2006), cert. denied, 549 U.S. 1280 ("prejudice"
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under Brady and Strickland is similar).
1. Police Report
At trial, an investigating officer testified that Apanovitch "asked me when he's indicated [sic] would I please contact him first rather than just go and arrest him. I guess his mother ha[d] a heart problem so that he could inform his mother first so she would know before he is arrested." Trial Tr. pg. 1446. The State prosecutor represented that there was no record of this conversation. Apanovitch,
466 F.3d at 477. In fact, a typed report existed conceming this phone call that indicated that
Apanovitch requested that "if' (rather than "ahen") he was arrested or indicted in connection with this crime, that he be contacted first. Id. at 478. Apanovitch argues that he was not anticipating his arrest and indictment. He called the police department to re-assert his innocence, and, in response to the detective's statement that he might be indicted, requested that if he was going to be arrested, that he be given reasonable notice. Apanovitch asserts that his actual statement is an affirmation of innocence, whereas the statement as heard by the jury through the detective served as the rough confession of a man resigned to being caught.
In closing arguments, the prosecutor stated, although not evidence, that Apanovitch, by saying
"when," had implicitly confessed. Trial Tr. pg. 2226. He also noted that the detective testified that he was stunned by Apanovitch's statement. Trial Tr. pg. 2488. The detective allegedlywould most likely not have made the statement if Apanovitch had or knew of the report. Alternatively, Apanovitch, having the report, would have been able to impeach him if he had made the false statements.
At the time of the alleged statement, Apanovitch knew that he was a suspect. The statement, therefore, standing alone, has little value. Knowing of the investigation, a suspect's use of "when I get indicted" would cause few if any negative inferences. However, the jury could find, based on the
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statement by the detective that he was stunned when Apanovitch said "when" and insisted that there was no written report, that Apanovitch was admitting some guilt. Apanovitch, therefore, did suffer some minimal prejudice from the withheld report.
2. Coroner Notes
During trial, a lab technician testified that she found a hair that was inconsistent with the victim's hair or Apanovitch's hair. Tr. pgs. 826, 836. On cross-examination, the lab technician, in answer to defense counsel's question as to where the hair was found, stated that it was found on the back of the hand. Trial Tr. pgs. 834-35. She provided more detail when asked if she personally found the hair.
A. Yes, the hands at the time when the body came in, the hands were bound behind the back, and they had been covered with plastic bags to protect any evidence that might be on them. After removing the plastic bags and looking at the hands is when I noticed the one on the back portion of the hand, which would have been the upper surface.
Trial Tr. pg. 835. Exhibit D, attached to Respondent's Memorandum in Opposition to Petitioner's Brady
Claims (Doc. 120-4), is a photograph of the victim that was introduced at trial showing that the hands were tied behind her back with her right palm facing out. Trial Tr. pgs. 761-63, State's Exh. 16. This exhibit shows that the hair was on the base of the right palm.
The State argued that the hair likely became lodged against the outer surface of the victim's hand during transport. Apanovitch contends that he was unable to refute this testimony because the State withheld the lab technician's trace evidence report and a police report apparently written after conversations with the lab technician and detectives. The documents indicated that the hair had been bound "under the [victim's] bound hands" and "behind the victims [sic] tied hands," Apanovitch, 466 F.3d at 479, which allegedly directly contradicted the lab technician's testimony and also the prosecution's assertion that the hair could have come from anywhere. Apanovitch further argues that the Sixth Circuit
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held that the State's failure to disclose that the hair was found underneath the victim's bound hands, between her bound hands and her back, is significant for the purposes of a Brady analysis.
There appears to be confusion about the location of this hair. Apanovitch contends that the hair was between the bound hands of the victim and her back. If so, it could only have been placed there by the actual perpetrator. However, the lab technician testified that she considered the backward facing palm of the victim to be the back portion of the hand which would have been the upper surface, Tr. pg. 835.
If the body were lying face up at the Coroner's office the hair would have been under her bound hands, i.e., the hair would have been behind the victim and her hands or between the hands and the gurney. The photographic evidence is consistent with this description. So the hair could have lodged on the hand during transport. Any discrepancies between the trial testimony and the reports would have easily been explained by the examining lab technician. The fact that the technician and or officer may have inartfully used the terms "back," "behind," and "under" does little to nothing to undermine the reliability of the verdict.
3. Information Concerning the Victim's Secretor Status
The prosecution failed to disclose that the victim was a blood type A secretor, as is
Apanovitch. Since Apanovitch and the victim were both type A secretors, there was no information concerning the blood type of the perpetrator because the recovered evidence could have originated from either of them.
An undisclosed document contains a single handwritten notation by an unknown detective which reads:
SPERM - VICTIM TYPE A SECRETOR
SUSP. TYPE A SECRETOR
Also, the State failed to provide the lab technician's laboratory notes stating that the victim was a
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secretor. Apanovitch argues that this information is material because it contradicts the lab technician's testimony that she had determined the blood type of the perpetrator. By testifying that the perpetrator and Apanovitch had the same blood type, she allegedly relied on this information to link him to the crime. The undisclosed information that both the victim and Apanovitch were blood type A secretors shows that the State did not have any information about the actual perpetrator, According to the testimony, 40-45 percent of the population have blood type A and 80 percent are secretors. Trial Tr, pgs. 828-29, 833-34, 845-47. The State court of appeals considered this issue stating:
We note the medical technician limited the importance of the blood type evidence by explaining to the jury that the test results merely failed to exclude Apanovitch from the forty percent of the population who, like the assailant, had type A blood. She expressly informed the jury she had no physical evidence linking Apanovitch to Flynn's death.
State v. Apanovitch, 70 Ohio App.3d 758, 760-761(Ohio App. 8th Dist. 1991).
Knowledge of the fact that the victim was a secretor would not have changed the outcome of the trial. The technician, in her testimony, stated that a large number of men had the same blood type and were secretors, but there was no physical evidence linking Apanovitch to the crime. The Sixth
Circuit noted that the evidence that the serological evidence linked Apanovitch to the crime was so
"extraordinarily weak" that it was "virtually no evidence at all." Apanovitch, 466 F3d at 481-82. The
Court's conclusion is consistent with the Circuit. Informing the jury that the victim was a secretor would have added little, if anything, to the defense in this matter.
4. Totality of the Circumstances
Whether or not Brady violations exist, the fact that the report from FSA showed the presence of Apanovitch's DNA on the oral slide taken from Flynn supports denial of his habeas. In considering the totality of the circumstances, the Court must consider the DNA test results. In the order granting
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the state's motion for DNA testing, this Court indicated the potential importance of such testing.
In the present case, the Court finds that the DNA test results - if a match resulted between DNA found on the victim and Apanovitch's DNA - would show that even ifBrady violations occurred, under the totality of the circumstances he has not shown that his trial was fundamentally unfair. The DNA test results would have the effect of making the Brady claims factually false resulting in a windfall to which Apanovitch is not entitled.
Doc. 88 at 5. Apanovitch, however, contests the authority of this Court to consider the DNA results.
From his argument, it is apparent that Apanovitch does not believe that this Court has the authority to consider the DNA results, in any manner, in resolving his petition. The Court disagrees.
The Circuit made clear that Apanovitch could not evade the revicw of the DNA results. "Apanovitch cannot first claim actual innocence before the district court, and subsequently drop those claims, simply to suit his tactical needs[.]"Apanovitch, 466 F.3d at 489, n. 10. Furthermore, other courts have considered the inculpatory nature of DNA test results based on tests that were conducted during a habeas proceeding. See In re Wright, 298 Fed. Appx, 342 (5th Cir. 2008).
If the Court were to accept Apanovitch's argument, it would be left in an untenable position.
Habeas petitioners would be free to seek additional testing of evidence without any fear of the test results. Inculpatory results would simply be disregarded in every analysis, yet exculpatory results would be considered in every analysis. The habeas system is not set up for such gamesmanship.
Instead, this Court is asked to determine whether Apanovitch received a trial that resulted in a verdict that is worthy of confidence. The DNA evidence serves as confirmation that the verdict is worthy of confidence and that Apanovitch suffered no material prejudice from the Brady violations.
Furthermore, the Court would deny Apanovitch's petition even without considering the DNA test results. The withheld information regarding Flynn's secretor status and the location of the hair
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have no exculpatory value. The jury was made aware that the hair did not belong to Apanovitch and was shown a picture of the location of the hair. Thus, like the secretor status, that withheld evidence adds nothing to the Court's review of the totality of the circumstances. The impact of the withheld police report is minimal. While the prosecution mentioned Apanovitch's "when" statement, it was an extremely minor part of the overall case. Instead, the state's case was build on circumstantial evidence. The Ohio Supreme Court reviewed that evidence as follows:
This evidence includes the facts that (1) appellant had the same blood type as the perpetrator; (2) he had a scratch on the left side of his face consistent with that of a scratch from a fingernail; (3) appellant could not adequately account for his whereabouts on the night in question; (4) appellant's signed agreement to paint a portion of the victim's house was found on the kitchen table the day after the murder was discovered; (5) appellant was familiar with the peculiar layout of the victim's house; (6) appellant knew the victim and had made statements to others about his desire to have sexual relations with her; (7) the victim was fearful and apprehensive of appellant; (8) appellant spoke with the victim for roughly ten minutes at approximately 4:00 or 4:30 p.m. on the day of the murder. (The subject of the discussion, according to appellant, was the offer to paint the windowsills. A portion of one ofthe sills was used to stab the victim in the neck.); (9) appellant told the police that it did not mean anything if they found his fingerprints in the house, even though he had painted only the exterior of the house; and (10) appellant offered a variety of inconsistent stories about his whereabouts on the night of the murder.
Apanovitch, 33 Ohio St.3d at 23. None of the above circumstantial evidence is altered by the withheld police report. Accordingly, the circumstantial evidence that fully supported Apanovitch's conviction remains unchanged and unimpeached by the withheld evidence. As such, Apanovitch has not demonstrated material prejudice stemming from the withheld evidence, irrespective of the DNA results. Accordingly, the petition is DENIED.
III. CONCLUSION
Pursuant to 28 U.S.C. § 2253, the Court must now determine whether to issue Apanovitch a
Certificate of Appealability ("COA"). See Castro v. United States, 310 F.3d 900, 903 (6th Cir.
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2003)(court may decide whether to issue a COA at the same time as the claims for relief are determined). 28 U.S. C. § 2253 provides:
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from--
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court
*»* (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
In Slack v. McDaniel, 529 U.S. 473 (2000), the Supreme Court stated:
[t]o obtain a COA under § 2253(c), a habeas prisonermust make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot, includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "adequate to deserve encouragement to proceed further."
Id. 529 U.S. at 483-84 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4(1983)).
The Court finds that jurists of reason would debate this Court's decision concerning the materiality ofthe withheld police rcport and the Court's ruling on the admissibility and weight ofthe
DNA evidence. Therefore, a COA will issue for the first Brady issue, i.e., the police report. Further, the Court concludes that jurists ofreason wouldnot debate its ruling as to the Brady issues concerning the coroner notes and the victim secretor status. A COA is denied as to those issues.
Accordingly, for the foregoing reasons, Apanovitch's Petition for Writ of Habeas Corpus is
DENIED. The Petition is hereby dismissed.
The Court hereby issues a COA pursuant to 28 U.S.C. §2253(c) as to the first Brady issue
(police report) as noted in the above certificate of appealability analysis. The Court finds that none of the other Brady issues are debatable among jurists of reason as no other issue comes close to
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presenting a federal constitutional or legal violation. The DNA and chain of custody issues do not require a COA as they are intertwined with the Brady issues. In the event that a COA is needed for the DNA issue, the Court finds that jurists of reason would debate whether the issue should have been resolved in a different manner.
IT IS SO ORDERED.
Date: August 14, 2009 /s/John R. Adams JUDGE JOHN R. ADAMS UNITED STATES DISTRICT JUDGE llNITi:',D STATL.S DIS'I'RICT COiJRT NORTHERN nISTRICT OF OHIO EASTERN DIVISION
ROMELL BROOM, Case No. 1:99 CV 0030
Petitioner, JUDGE O'MALLEY vs,
BETTY M1TCl-1LLL, Wardcn, . MP',MORANI}UM & ORD>F;12 Rcspondent.
Rwnell Broom petitions tlais Court fvr a writ of haboas corpus pursuent to 28 U.S.C. § 2254.
Broom cliallenp,es the constitutional sufficicncy of his conviction by a juiy for aggravated capital murdcr, and also challenges the constitutionality ofthe imposition of a scntence of'deatlt,
ror the reasons set forth bclow, 'I3rootn's petition for a writ of habeas corpus is 1)GN11?,D-
l. PROCRDURAL I-IISTORY
On 5csptonibct• 21, 1984,1'ryna iVliddletoti was kidnapped while walking home with two friends. Her body was found two hours later in Forest 1-]ills Park in Cleveland, Ohio. Four months later, on Januaty 8, 1985, pctitionor i3rootn was inctictcd ott eight counts: (1) aggravcaed niurdor, pursuant to Ohio Rev. Code § 290 1.01, with two spccifications tltat thc tnurdr.r was conunitted during the course of a kidnappin8, vid rape, pursuant lo Ohio Rev. Cocle § 2929,04(A)(7); (2) rape of Tryna Middleton, pursuant to Oliio Rev. Code k 2907.01; (3) kidnapping of Tryna Middleton, pursuant to Ohio Rev. Code § 2905.01; (4) kidnapping ofTatnmy Sims, pursuantto phio Rev. Code
§ 2905.01; (5) kidnapping of Bonita Callier, pursuant to Ohio Itev. Code § 2905.01; (6) kidnapping of Melinda Crrissotn, pursuant to Ohio Rev. Code § 2905.01; (7) kidnapping oi' Venita. MoKenney, pursuant to Ohio Rev, Code § 2905.01; and (8) felonious assault of Melinda Grissom, pursuant to
Ohio Rev, Code § 2903.11.
Broom pleaded not l;uilty to the charges and procceded to trial on Scptcmber 16, 1985. 'I'he juiy returned a verdict ot'guilty on October 3, 1985. The trial court then held a sentencing hearing, pursuant to Oliio Rev. Code §§ 2929.022(A) & 2929.03. On October 10, 1985, the jury returncd with tltc rocomniendation that Broom be given the death penalty. The trial,judge accepted the_jury's recomn,endation and sentenced Brooin to death Por his murder canviction. The trial judge also sentenced Broom to serve fifty-four to eighty years of imprisonment for his convictions on counts two, three, four and five of the indicxment.'
Broam appcaled his convictions and sentence of death. The Ohio Court of Appwis affirmed,
State v. Broom, No. 51237,1987 WL 14401 (Ohio Ct. App. July 23,1987), as did the Ohio Suprenie
Court, State v. B roon7, 533 N.E.2d 682 (Ohio 1988). Brooni then liled a Petition for a Writ of
Certiorari in the Uniled States Supreme Court, which was denied. Broom v. Qhio, 490 U.S. 1075
(1989).
Broom also petitioned for post-conviction relief in state court, pursuant to Ohin Rev, Code
§ 2953.21. Thc trial court disinissed 13rootn's petition. St e v. ^-roni, No. CR 196643, slip op.
, The trial court had severed counts six, seven, and eight beforc thc trial began.
2 (Ohio Ct. Common Pleas Apr. 24, 1997). `fhe Court of Appeals aflimied the dismissal of Broom's petition. State v. Broom, No. 72591,1998 WL 230425 (Ohio Ct. App. May 7, 1998). Broottt thcn filed an appeal witli the Ohio Supreme Court, which declined to exercise jurisdiction. State v.
Broom, 699 N1.2d 946 (Oltic 1998).
While Brootn's post-conviction action was pcnding, he sued the City ol'Cleveland to obtain its investigation and arrest records. State ex rcl. Broom v. CitxofClevelan , No. 59571, 1992 WL
209575 (Ohio Ct. App. Aug. 27, 1992). Broom obtained some of the documents he sought. 'l'he
Ohio Supreme Court later dismissed this wse for wattt of prosecution. State ex rel. Brooni v. City of Cleveland, 605 N.E.2d 1263 (Ohio 1993). Broom did not file a second, or successor, petition for post-conviction relief:
11. FACTUAL HISTORI'
In its consideration of Brooin's direct appeal, the Ohio Supretne Court set out the factual history of this case, as revealed by the evidence adduced at Broom's trial. The facts surroundinl; the underlyin8, incident are as follows:
In the fall of 1984 in the Cleveland area, three separate but rolated incidents occurred involving five young girls. The first incident occurred on Scptamber 18, 19841xtween 8:15 and 9:00 p.m. Twelve-year-o1d Venita McKennc:y was walking to her bome on East 120th Street, Cleveland, after visiting her cousins, when a car drove past her, turned around and parked. Aftcr Venita walked past the car, the driver got out of the car, grabbed her.from behind, and threatened her with a knife. Wlten she stniggled and fell, !tc said, "Get up bitch, shut * * * up bitch, get up bitch " Fortunately, two residents in a nearby home overheard the incident, and openccl their door allowing Venita to escape fi•oin hcr assailant. One ofthesc residents identified appellttnt as the assailant in a 1in.eup and at trial. Sltie said his car was a four-door brown car. Also, an investigating police officer testified that a witness reported the car as a four-door brown "possibly a Fnrd Granada." '1`he second incident resulted in the rape and murder of fourtecn-ycaroid
3 Tryna Middleton late Friday and in the early morning hours of Saturday. Scpteniber 21 and 22, 1984[,] Tryna [Middleton], a ninth-gradc student at Shaw I-iigh School, attended a Friday niglit football gamc acconipanied by her friends ancl neighbors, Tanuny Sims and Bonita Callicr. Tammy had a midnight curfew, so aftcr tho game the girls started to walk home to l•icttderson Avenue, whcre they lived. They went froni Terrace Road, whicb runs alongsidc Shaw High, and southeast up Oakhill Road, where they saw a parkcd car whicli they thought looked suspicious because of the way it was parked "between the strcets." Neither Tamnty nor Bonita could identify the niake or color of the suspieious car. Thc girls retraced their steps down Oakhill to Terrace Road and then they went soutltwest on Terrace Road and tlicn south onto Lcc Road, which, like Oakltill, goes tip an incline. At the top of the hill, the girls stopped to rest !or a few minutes. The timc was between I 1:20 and 11:30 p.m. From Lee Road the girls turnod east onto Glyntt Road, wlvch is a lighted, level, tree-linad street nf homcs situatcd on latge lots. As the girls procceded eastward along Glynn on the sidewalk, a car without its lights on cttne toward them and parked about two houses in front of them. The driver got out of the car and ran past the girls to a spot a couple of houses behind them. '1'he girls had walked past the parked car when they hcard footsteps from behind, and the assailant tried to grab all three girls. During, the struggle, the assailant said, "[c]ome here bitch" and pulled a knifc. 'I'ryna, who was five feet tall and sliglrtly built, could not get free. '1'ammy and Bonita ran across the street where a homeowner let them in to call the policc and thcir mothers. The girls were unablc to get the license number of the car, but they described the car as "brown," "twi," or "a goldish color," and as a four-door Ford C'rranada, wit3t a littht-eolorcd top. 'Chey described the assailant as a young black male, possibly in his early twenties, weighing approximately onc hundred sixty pounds and five feet ninc inches in lieight, with a light to niedium complcxion and a tliin mustache, Approxiniately two bours later Tryna's body was found in a parking lot adjacent to an abandoned swinlming pool in Forest Hills Park in Cleveland. Sperm cells were found in tier rectum and vagina. Shehad been stabbed seven times in the chest and abdomen. Five oftho stabbings perforated Tryna's heartand lungs causing almost instantaneous death, Tryna had also incurrcd an incised wound on her right foreami which the coroner tesli I ied was tiie resuit ofTryna's effortsto defend hersell'. Tammy and Bonita e..ach exaniined hundreds of photographs, Iiut they were unable to identify any suspect utitil after the third incident described hereafter. On llacember 6, 1984 around 6:30 p.m., eleven-year-old Melinda Grissonr liad gone to a comer store close to her hontc on Chatnberlain Avenue in Cleveland. 'rhe day before it had snowcd and the side streets, such as Chamberlain, were still slippery. On her way ltome Melinda noticed a car following her. Thc car pulled onto Chamberlain. As Melinda tunted the corner from East 74th onto Chambcrlain, a man who was "going down in his pocket" as if to get sontcthing walkeci past hcr and without a word grabbed lrer neck from behind and startecl hitting her- She strugglcd
4 and scrcatned as she was throwa into the assailant's car. Once inside the car tltc assailant said, "[bjitch get your Peet off tne," Melinda's y0unger sister witnc:ssed the beating and abduction and called to her niotlier. Mrs. Grissom, who was barefoot, ran outside to tlte ear, and grabbed the locked door of the driver's side of the car in which Melinda had becn thrown. Mrs. Grissom hung on to the door while screaming fo.r help and for her dauplttcr to juntp from the car. The icy road made the car's wheels spin and slowed its travel, thus allowing Mrs. Grissan to hold on to the door and to pound the window and push the eeu• with her hip so that the car bumpvd into a parked ear. Melinda followed her mother's entreaties, and urtlocked the door on the passengcr'> side and jumped out, 'T'he commotion was witnessed by two youttg men who got the licanse number of the departing car and gave it to Mrs. Grissom. Melinda was taken to the hospital because her leg had been injured. Within an hour tlae car, a 1973 Buick, bad been traced to its owner, the father of the appellant. The engine was still warm when the police arrived. The appellant, who was at his father's house, admittcd that he had been driving the car. Fle was read his Miranda ri8lrts and voluntarily accoinpatticd the police to the hospital, wherc he was positively identified by Mrs. Grissom and ber daughter. T'he two other witnessas to the incident later picked appellant out of a lineup and at trial.
Police noticed the similarities between the three incidents, whicli occurred within several miles of each other. All the victims and witnesses of the lwo Septentber incidents independently picked the appellant out of lineups after Tammy and Bonita first idcntified his pliotograph in a photo array. Police investigation rcvcaled and defendant's witnesses contirmed that prior to November 6, 1984, when lie wreckcd it, appellant drove ltis girl friend's car, a goldish-brown Ford Gt.anada with a light top. Tammy identiftcd the ear at the police impound lot. Bonita said the car iaa the intpound lot was the same kind and color of car as that used by her assailant.
State v, F6room, 533 N.L 2d 682, 686-88 (Uhio 1988).
During trial, Simms and Callier both testified that Broont was their assailant. 'I'hc Cuyahoga
County Coroner's office also testitied that the sperm found in 'Pryna came from a persott whose bloodwastype f3,whichapproxintatelytwelvepen:entofthenationalpopulationpossesses. BroOm has type B blood. Additionally, several witnesses testified regarding Broom's suspected involvement in the two other attempted abductions in tho area. Terrylynn hlatnilton and Cherrylynn
C:obbs both testified that, on Septentber 18, 1984, tlrey witnessed Broom attemptinl; to abduct Vcnita
5 McKenney. JanetandMelindaCirissomalsotestifredregardingtheincidentoccurrhtgonpecember
6, 1984. Other relevant facts will be set forth when necessary during the Court's discussion or
Broonl's individual claims for relief.
111. FEDERAL HATiEAS PROCEEDING
On January 7, 1999, Broom filed a notice of intent to file a petition for a writ of habcas corpus, a motion for a stay of execution, a motion for appointment of counsel, and a motion to proceed in fornia pauperis. The Court granted the latter two motions and appointed attomeys
Timothy P. Sweeney as lead counsel and S. Adele Shank as co-counsel for Broom. The Cuurt also ordered a stay of execution until June 22, 1999, or during the pendency ofany proceedings initiated on or before tltat date.
On June 21, 1999, Broom filed 1us petition. Respondent kiled her return of writ on August
10, 1999. Broom filed his traverse on Lk:cember 20, 1999.
Broom also frlcd a motion to expand the record and a m.otion to conduct discovery. Broorn sought discovery relating to the foliowing claims and issues: (1) failure by the trial court to allocale funds for eyewitness and idcntification experts; (2) failure by the trial court to ailocate funds for a forensic pathologist; (3) introduction at trial of "other acts" evidenee; (4) suppression of material exculpatory evidence by the prosecution; (5) execution by clectraeution; and (6) actual innocence.
The Court permitted Brvom limited discovcry on sonic of these issttes, inoluding ordering DNA
testing on swabs taken from the victim and on Broom.
Brooni also filed a motion for an evidontiary hearing. Specifically, Broom sought an evidentiary hearing witlt respect to claims 1-3 (relating to the trial eourt's fai lure to allow him the
6 assistance of certain expert witnesses), claim 4(relating to the adnaission at trial of "other acts" evidence), claim 5(allcging ineffective assistance of counsel at the mitigation phase of the procccdings) and claim 6 (I3rad claitn), claim 11 (regarding the trial coutt's alleged failure to keep a cotnplete and accurate rceord of the trial), claim 13 (ralating to clainis of prosecutorial misconduct), and claim 30 (Broom's claim of actual innocenco) of his petition. Broom also sought an evidentiary hearing with respect to his assertions of cause and prejudice with respect to every claim in his petition to which respondent asscrts a defense of procedural default. Rcspondent opposed Broom's n-iation in its entirety. Respondent argued that all of Broom's clainis could be resolved in the absence of an evidentiary hearing and that, as to certain ofhis oiaims, Broom's failure to presentevidence on those clainis atthe state court level precluded hinr from belatedly attenipting to develop a record as to those claims now,
The Court grantecl Broom's motion in part and denied it in part. Specifically, the Court denied Broom's request for an evideniiary hearing on claims 1-3, 4, 11, 13, and 30 ` Whilc the
Court agreed to entcrtain evidence on clainis premiud on the ineffectivo assistance of counsel at the mitigation phaso and on alleged Rr& violations, and agreed to hear evidence tending to establish cause for his failure to assert his Brady claim in state court, thc Court specifically rescrved the question of the impact, il'any, of any failure to present any prot'fered evidence to thc state courts and directed Broom's counsel to use thc vehicle of thc evidentiary hearing to explain, if possible, any
z As to Broom's actual innocence claim (claim 30), the Court found that Brooan had "failed to make a threshold showing of innoccnce or even point to facts that would subgest that ]te coald sustain such a claim." The C.onrt did, however, allow Brooni to expand lhe record to includc all discovery regarding this clainr adduced during the federal proceedings, and agrced to entertain oral argument on this claim.
7 such failure.'
The Court held the evidentiary hearing on January 15 and 16,2002. 'rhe hearing focused on only a few critical points, described below.
First, petitioner's habeas counsel focused on the elaint that certain allegedly critical police records were never disclosed to petitioner's trial counsel. Specifically, counsel pointed to certain records fmm the East Cleveland Police Department files that petitioner claims were wititheld from hini prior to trial. Thcse records, dovcloped during the Last Cleveland Police Department investigation into the kidnapping of Tryna Middleton, contained witness statemonts variously indicating: (1) a belief among some who had seen Middleton, Simms, and Collier on the night of the
Under the Anti-Terrorism and FtTective Death Penalty Act (hereinafter "AEDPA"):
(2) lf the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not lrold an evidentiary hearing oat thc claini unless the applicant shows that - (A) the claim rolies on - (i) a new rule of constitutional law, made retroactivc to cases on collateral review by the Suprentc Court, that was pt'cviously unavailablec or (ii) a factual predicate that could not ltave been previously discovered through the exercisc of due diligence; and (B) the facts underlying the claim would be sufticicnt to establish by clear and convincing evidence that but for the constitutional crror, no reasonable fact-Gndcr would have found the applicant guilty ofthe underlying offensc.
28 U.S.C. § 2254(e)(2)(emphasis added). For purposes of efficiency, the Court notified the parties that it would hear evidence on whether Broom diligelttly pursued his claims in state court concurrently with hearing evidence in support of Broont's claims. The Cotiut addresses its conclusions under § 2254(e)(2) in connection with its substantive consideration of IIroom's claims, below.
8 kidnappitis that the three girls wcre under dio in#luence of drugs or, perhaps, alcohol; (2) a belief that the tizrcc girls had, in the past, solicited or accept+:d rides froni strangers; and (3) that there was some evidenee that the victim was sexually active and, in fact, may have been sexually active within a day or two of the murder, Petitioner claimed that this inforniation was never disclosed and was highly material to his defense.
Next, petitioner's counsel also attempted to explain wliy the East Cleveland Police
Department records were never presented to the state court during post conviction proceedings even though petitioner's post-conviction counsel obtained those records well before the state post- conviction procccdings were concluded. Essentially, habeas counsel asserted that the trial court discouraged aggressive post-conviction efforts, that post-eonviction counsel was overburdencd witli other work at the time, and that changes in Oltio law ereated uncertaitities with respect to the ability to rcly on those records in support of a post-conviction request tinder state law.
Finally, petitioner focusa:d on his claim that trial counsel hnd been ineffective during [he mitigationphaseoftheproceedings. Whilehabeascounseldictnotexplainpreciselywhatadditional dovclopment of the record may liave been disclosed by way of mitigation, counsel emphasized trial counsel's failure to obtain a report 1'rom a mitigation specialist, to obtain a psychological asscssment of petitioner, or to search out additional witnesses to discuss the dy5functional fantily setting in which petitioner was raised.
To establish these various points, petitioner relied on tour witnesscs: Nathan Ray, Richard
Vickers, Kreig Brusnahan, anti Alan Rosstnan. Nathan Ray, Broom's post-conviction counsel,
testified about his rapresentation of Broom during post-conviction proccedinss. Fie stated that, during his representation of Srootn, the trial court ordered cotutsel to convene in chambers. Ray
9 testified that, during that conference, tlte court expressed dissatisfaction with counsel's 5ling of a post-conviction petition and, although not specitically ordoring, discouraged counsel from f'urtller filings. Ray also testified that he tiled a Freedom oC Iaiformation Act ("FOIA") and Ohio Public
Reeords Act request on Broom's behalf, tltough he was not ultimately charged with the responsibility to follow up on that request because responsibility for Broom's case was transferred to Richard
Vickers.
Richard Vickers, who also represanted Broom during post-conviction rcGefproceedings, generally corroborated Ray's account of the confcrence witlt the trial court. Vickers testified that, after his meeting with the trial court, he was left with the impression that further filings witli the trial court wotild be fruitless. Vickers conceded, however, that the trial court's attitude toward the post- conviction proccedings had no inipact on the actions Vickers ultimately took on Broom's behalf and that such indications from a trial court would never dissuade him from taking actions on a client's bahalfthat hc deemed appropriate.
Vickers also recounted his recollection of the FOIA and Oltio Public Records Act requests made on behalf of Broom. He recalled that these documents arrived in piecemoal fashion, with the first FOIA documents arriving on Septenlber 21, 1992 and the first f)hio Public Records Act documents arriving in 1993 or 1994. In 1996, significant changes in Ohio's post-conviction process occurred when Senate Bill 4 was passed. In light of these changes, the Public Defender's offioe reviewed its pending post-conviction case riles. It was at this point that Vickers clainis he lirst noticed that he could read some of tha redactcd material within Broom's rccords. Vickers and Ray decided, however, not to provide Broom with a copy of these readable records or even inform him of their existence. Vickers contended that this was due, in part, to how busy the oftice was and, in
10 part, to a belief that the Ohio Supreme Court's decision in State ex rcl. Steckman v. .lackson, 639
N. E.2d 83 (Ohio 1994), in whicli the Supreme Court held that defendants in criminal cases could not use Ohio's Public Records Act to obtain documents to usc in support of a petition for post- conviction relief, prohibited the use of the documents in state court. Vickers also conceded that lie thouglit the documents might be morc usel'ul in a federal habeas proceeding and was, thus, disinclined to disclose their existence before resort to Federal Court.
Vickers furtlrer testified that he was unaware whether Dr. Susan Schorr, a mitigation specialist presumably employed to prepare a mitigation file for Broom's case, indeed, failed to make sueh preparations. Finally, he testified that trial counset had told him ot' Broom's refusal to cooperate with an exaniining psychologist.
Kreig Brusnahan, one ofBroom's trial attorneys,testified thathe was appointed Broom's trial counsel in July 1985, after Broom's retained counsel filed a motion to withdraw. Althouglr the trial court continued the trial date after this appointment, Brusnahan testified tbat, despite one writton and several oral requests, the trial court would not further delay the September 1985 trial date.
Brusnahan acknowledged that, after completion ot'the guilt pliase o!'the trial, the trial court asked if six days was sutTicient for cottnsel to prepare for the mitigation phase and that, in response, counsel indicated to the trial court that they would need a#'ull six days, but nothing less, to prepare.
There is no evidence in the record that counsel informed the court at that point that something more than six days was needed before conimencement of the mitigation phase, however, aaid Bnisnahan concedod that no such request was made.
Brusnahan also testified that, although he relained Dr. Scliorr to collect mitigating evidence to present on Broom's behalf, she did not do so. Brusnahan indicated that he also sent a psychiatrist,
fl Dr. Kurt Bertschinger, to talk with Broom, but Broom refused to talk with Bertschinger. E3rusnahan testified that, in preparing for the niitigation phase, thoy spoke with Broom's parents, his brothcr
Randall, and his girlfriend, Dorothy Spruill. They also obtained records from the wclding school
Broont attended, as well as from prison officials at Mansfield Reformatory where Broom had once bcen houscd. I3rusnalian testified, however, that they did not obtain Broom's medical records or all ofhis school records, and they did not talk with any of Brooni's friends. Conscquently, Brusnahan stated, defense counsel's strategy during the mitigation phase of trial was to depict Broom as the
product of a severely dysfunctional faniily.
Brusnahan also indicated that, although defense counsel made a niotion for discovery, he does not recall the prosecutor's office providing connsel with any responsive documents' and he is
certain lie never received information indicating that Bonita Callier or 'farnmy Sims were using
drugs and/or alcohol on the night of the Middlcton tnurder or that they previously had entered cars
of individuals with whom they were not acquainted, infonnation lie now knows appears in certain records of the East Cleveland Police Department.
Alan Rossman, anoth.er ofBrootn's trial defense counsel, also testified, He stated he has no
recollection of ever personally meeting with thc prosecutors assigned to the case or viewing their
tiles. He indicated tliat he does recall rcceiving a bill of particulars, witness list, and copies of the
4 On this point, while Brusnahan did tipeci6cally deny personally receiving the East Cleveland Police Department documents that are at the heart of Petitioner's Eicayjy claim, he canoluded that he could not recall how discovery was provided in this case and could not say with any certainty whether or not the proscoutor provided discovery to any other member of the defense tuam; he simply stated that lie believed that the prosecutor did not provicte any discovery to anyone. 12 oral statements 13rootn mado fronr the prosecutor, but could not recall receivinp, other materials.'
He also testified extensively regarding how useful the East Ceveland Police DLparnnent rcports, which contained ini'orniation regarding the fact that certain witnesses suspected Callier and Sims of drug usage on the night of the kidnapping and allel;atiotzs of previous encounters with strangers in cars, would have becn to undercut the credibility of Callier and Sims, the key witnesses against
Broom. Rossman testified that the defense trial strategy was to develop a theoty of tnistaken identity and that, in his mind, the information in the Ea.st Cleveland Police Department files would have greatly aided that strategy.
Both Brusnahan and Rossnian explained that the lead trial cotmsol in Broom's case was an individual by the name of Floyd Oiiver. Mr. Oliver, unfortunately, passed away before Broom's federal habeas corpus proceedings were initiated and, tlius, was unavailable to discuss trial strategy or to explain what, if any discovery activities he may have initiated. By all accounts, Mr. Oliver was a highly taiented, experienced, and woll-respected trial attotitcy, specializing in crinunal defense work.
Four witncssus testified for tbc respondent: Judge Tiniotliy McGinty, Detective Arnold
I-lardee, .lim Svckric, attd Cristopher Frey, Judge McGinty, tho second-chair prosecutor in the casa, testiCed that he and the lead prosecutor, 7ack Httdson, pemlitted defense counsel to ittspcct their files in Mr. i•ludson's office, whicli woukk have included anything tlrcy had received from the Cleveland
Police Department, the county coroner, the county sheriff, and the East Cleveland Police
Rossnian did acknowledgo that hc had a more limited role in this case than citlier of his co-counsel, Brusnahan or l^ loyd qliver_ lt is significant, moreover, that he was not either lead counsel or second chair and that discovcry matters would not have been handled by him.
13 Department. Judge McGinty noted, however, that he does not recall ltaving received ntuch from the
Dast Cleveland Policc Department. Jucige McGinty recalled that there were several discovery meetings prior to trial in which the investigative files were disc:losed. He recalled that Floyd Oliver was presont for these meetings, and that Brootn's other attorneys were present for at least some of these meetings, though he did not specifically recall which nteetinss they attended. H.e very specifically denied baving any knowledbe that Ca€lier and Sims had been accused of being under thc intluence of drugs or alcohol on dtc night ol.'the kidnapping, or that acquaintances had discussed prior oc:oasions on which one or more of the girls ltad ontern:d cars of strangers. Judge McGinty also indicated very little knowledge rcgarding any history of sexual activity involving the victim.
Detective Fiardec was the first officer to speak witlt Callier and Sin,s after tlte initial call to police, and lte and his partner spent a significant atnount of time with both girls that night. He testified that his dispatcher sent his partner and him to Glynn Road to investigate a possible kidnapping. When they arrived at the scene, both girls ran up to their car and gave them a description of the suspect, the car he was driving, and what had just occurred. Fle also tcstilied that the girls displayed an excited, fl•iglitened derneanor and that neither appeared to be under the influence of drugs or alcohol.
Jini Svckric was an investigating police officer witit thc Clevcland Police Department assigned to investit;ate the Middleton niurder. I-Ic tcstifred that lie provided everything in thc
Department filcs to the prosecution. Hc had a specific recollcction of a nu•eting witlt Braom's defense counsel at Jack Hudson's office that lasted for Iot1y-five minutes to an hour in whieh the
prosecutor's etttire file was laid on a conference table for counsel to review. Hc testitied tltat, in
addition to hiniself and his partner, Greg Koontz, both I3rusnahatt and Judl;u McGinty were presont
14 at that ntecting. He could not recall whether or not Floyd Oliver also was at that meeting. Detective
Svekric was told to answer any ofdefensc counscl's questions, but not to voluntecr any information.
Detective Svekric 1'urther testified that the only L•ast Cleveland Police Department file repott he recalled being in the Cleveland Police Department tile was the initial abduction report and an eyewitness list. It was his recollection that, because tlle murder occurred in Cleveland, the involvement of the East Cleveland Police Departnient was limited to the initial kidnapping report; he believed the Cleveland Police took over the investigation as soon as the body was found. He further testificd that he was unaware that any further iavestil;ation Iznd been conducted by the laa.st
Cleveland Police Departnient
Christopher Frey, the head appellate attotarey fbr tho Cnyahoga County Prosecutor's Office, testified that several othercapital defendants, represeirtedby the Ohio Public Defender's Office, filcd successor post-conviction petitions supportcd by Federal Bureau of Investigations and policc department records during 1993-94. The post-conviction courts reviewed tliese materials in renderiug their decisions.
IV. BROOM'S GROUNDS FOR RCLILF
In his petition, Broom asserts thirty (30) scparate grounds for relicf:
Mr. Brooni was denied his wnstitutional rit;lit to due process and a I'air trial when the trial court denied him the tools necessary to construct a uieaningful defense (eye wituess identi tication expert).
Mr. Broom was denied his constitutional right to duc procoss and a fair trial when the trial court denied him the tools necessary to coatstruct a meaningful dcfonsc (cxpert in tbrensic pathology).
3. 'fhe state's failure to allow the defense to hire indopendent experts in eyewitness
15 identification and forensic pathology dircctly caused, in whole or in part, Mr. Broont to be denied the effective assistanco of counsel,
4. The trial court's admission of all of the "other acts" evidence during Broom's trial denied him a fair trial and duc process of law.
5. Mr. Broom was denied the effective assistance of counsel in the mitigation phase of his trial.
6. The state of Ohio failed to disclose material, exculpatory evidence, in violation of l3ray and its progeny, tltereby denying Mr. Broom his constitutional rights, including his ril;ltts to due process and a fair trial.
7. The state's failure to disclose material, exculpatory evidence directly eaused, in wliole or in part, Mr. Broom to be denied the effective assistance of counsel.
8. Mr. Broom's convictions and sentcncc are unconstitutional because they were obtained with insufficientevidence.
Pctitioner was denied his right to a fai; trial because the trial,judge provided the jury with a number of erroncous jury instructions in both the guilUinnocence and penalty phases of the trial.
10. The Petitioncr was denied his right to due process and a fair trial because the trial jud6e failed to give essential jury instructions,
I L The trial court failed to maintain a complete and accurate record ol'all proceedings in the Petitioiaer's case.
12. Tltc Petitioncr was denied his rigltt to due process and a fair trial because of the numerous other serious errors by the trial court during both pliases of the trial,
13. The Petitioner was denicd his rit;ht to a fair trial because of prosecutorial misconduct tltroughout both phases of the trial.
14. The Petitioner was denied his right to due process and a fair trial when the prosecutor prescnted, and the trial court allowed, the testimony of the victim's motlter.
15. The Pctitioncr was denied el'fective assistance oFcounsel during the guilt/innocence phase of his trial.
16. The Petitioner was dcnied effective assistauce of appellate counsel.
17. The Petitioner was denied the assistance of experts in preparing and presenting his defensc
16 at the mitigation phase.
18. Mr. Broom was donied a fair trial, a reliable sentencing procceding, and the effective assistance ofcounsel as a result ol'the trial court's f.lilure to allow his eounsel adequate tinre to prepare for trial,
19. Mr. Broom's right to due process and a fair trial was violated when the trial court failed to suppress the eyewitness identifications resulting from the improper and unduly suggestive "show up" identiAication of Broom.
20. Mr. Broom's conviction and sentence are void or voidable because he was denied his right to cowisel at the lineups, a critical stage in these proceedings because ofpae significance of eyewitness identification.
21. Mr. Broont's riglits to due process, to a fair trial, and to Uie privilege against self- incrimination were all deniod when his alleged statements to police werc used against hina at his trial.
22. The death sentence is constitutionally intirnt because the only statutory "aggravating circutnstaiiccs" Broom was charged with ntarely dup licate d elements of the un derlying dcath- eligible offense (murder in the course of conimitting a felony), and were unconstittdionally vaguo, overbroad, attd intprecise.
23. Mr. Broom's death sentence is furthor invalid because it was obtained throul;h thc use of aggravating circutn tances that worc impermissibly duplicativc and overlapping, to wit. kidnapping a»d rape.
24. Tho Ohio reviewing courts failed to I'ullill their obligation to mcuningfully review the proportionality of petitioner's dcalh scntcnce.
25. Interference through government action prevented petitioner form raising state and federal constitutional claims and issues at trial, on direct appeal, and in state post-conviction proccedings.
26. "l'he nrandatory nature of Ohio's eapi4il sentencing statute prohibited the jury from considering whettter death was the appropriate punislunent in this case.
27. Ohio's dcath penalty statute is unconstitutional in numerous other respects.
28. '1'he Ohio death penalty scheme is uncottstitutional as applied to the Petitionor.
29. The C'ctitioncr's conviction and sentence arc unconstitutional because of the cuniulative effect of the many errors that ocettrred during his trial aud in all subsequont procoedings.
17 30. Mr. Broom is inttocent of the crimes for which he was convicted, is innocent of the death penalty, and it would be a tniscarriage of justice to allow his conviction and sentcnce to remain itt effect.
V. THE ANTITP,I2ItOltIShl AND EFFECTIVE DEATH PENALTY ACT ("AEDPA")
Broom filed his Petition on Junc 21, 1999, well after the AEDPA's etkeotive date.
Consequently, the Court will utilize this standard when analyzing 13room's claims, The AEDI'A changed federal habeas corpus law in several important respocts. Among thc most significant of these changes is thc standard of review to be applied to state court legal and factual determinations.
Under the Act:
(d) An application for a writ of habeas corpus on behalf oC a person in custody pursuant to the judgment of a State court shall not be granted witlt respect to any claim that was adjudicated on the merits in State court proceedings unlcss the adjudication of the claim- (1) resulted in a decision that was contrary to, or involved an unroasonable application of, clearly established Pedcral law, as detennined by the Supreme Court of the United States; or
(2) resulted in a dccision lhat was based on an utueasonable determination of thc facts in light of tltc evidoncc presented in the State court proceeding.
28 U.S.C. § 2254(d).
Tlte Supreme Court, in (Tet7y1 Williams v. HI'a lor, 529 U.S. 362 (2000), recently set forth the standard of review a federal habeas court must apply under § 2254(d).° The Supreme Coutt provided delinitions for phrases "contrary to," "unrea.sonable application of," and "clearly
6 'T'his decision displuces the Sixth Circuit's previous efforts in Nevers v. Killinuer,169 P,3d 352, 361-62 (6th Cir, 1998) and Maurino v.lohnson, 210 F.3d 638, 643-44 (6th Cir. 2000) to clarify this aspect of the statute. See Harris v. Stovall, 212 C.3d 940, 942 (fith Cir. 2000). The Cotirt finds that, to the extent both pnrties cited this casc law in their briefs, it is inapplicable to this proceeding. 18 established federal law" in § 2254(d)(1). See i
The Supreme Court first pointed out that the pltrases "contrary to" and "unreasonable application of"must be given independent meanings. 5ee id at 404-05. A state court decision can be "contraty to" the Supreme Court`s clearly established precedent in two ways: (1) "if the state court arrives at a conclusion opposite to that rcached by this Cottrton a question of law," and (2) "i f the state court confronts faces that are materially indistinguishable from a relevant Sttprcme Court preccdent and arrives at a result opposite to" tltat decision. id.
The Court in Williams also stated tliattlie word "contrary""is conimonly understood to mean
`diametrically different' 'opposite in character or nature,' or `mutually opposed.`U. Thus, § 2254
"suggests that the state court's decision must be substantially dillerent from the relovant precedent of [the Supreme Court]." Id,, 'rlte Suprenie Court suSgested that this phrase would be applicable if the state court applies a rule that contradicts the governing law set fortb in prior Suprome Court cases, sucll as if a state eottrt were to llold that, In order tO establish an 1nef1L'Ctlve assistanee of counsel claim, a del'endant inust prove by a preponderance of the evidence, instead oP only a
"reasonable probability," that the results of the trial would have been difTerent. Td at 405-06.
The Supreme Court hold that an "unreasonable application" occurs whcn "the state iclentifies the correct legal principle from this Court's decision but unreasonably applics that principle to the facts of the prisoner's case:'' ld. at 410,413 ("For purposes of today's opinion, the most important
7 The Supreme Court also discussed a second aspect oi'the Pourtli Circuit's test to determine wliethcr the state court "unreasonably applied" applicable precedent. See Williams 529 U.S. at 406, 'rhe second part of the F'ourth Circuit's test provides that a state court "utu•easonably applies" Supreme Cotirt preeedent "if the state court either unreasonably eatends a lcgal principle frcnn our preccdent to a new contr:xt wliere it should not apply or unreasonably refitses to extend that priiiciple to a ncw context whcre it should apply." ld. The Supreme Court had reservations about this protig of 19 point is 4iat an unreasonable application of fccleral law is different froni an incorrect application of federal law.") (eniphasis in origin, (liolding tltat, for petitioner to succeed on a habeas claini, "he must do more than show that he would have satisfied [thc applicable Suprente Court] test if ltis claim were being analyzed in the first instance, because under 2254(d)(l), it is not enough to convince a federal habeas court that, in its independent judgment, the state court applied [Supreme Court precedent] incorrectly, .... Ratlter, he ntust show that the [state court] applied [Supreme Couri precedent] to the facts of his case in an objectively unreasonable manner."). '1'he Supreme Court also pointed out that, to determine the reasonableness of tlu: state court's decision, a court must eniploy an objcetive test, not a subjective one, The Supretne Court, thus, rejected the Fourth Circuit's holding that a state court's application of federal law was only unreasonable "if the state court has appiiecl federal law in a manner that reasonable jurists woulcl all agree is tutreasonable:" Sce illiams 529 U.S. at.376. The Court reasoned that this test was too subjective because a court might "rest[] its detenitination ... on tltc sintple fact that at least one ot' the Nation's jurists has applied the relevant federal law in the saune nianner the state court did in the habeas petitioner's case." ]d at 410. Tbe Couit in Willi< n also provided further guidance for the phrase "clearly established by ltoldings of the Supronie Court " 3ee _Li at 412. The Court stated that this statutory phrase "refers to the holdings as opposed to its clicta, ol'this Court's decisions as of the lime of the relevant state- the test, because it was imprecise and could be difficult to apply. The Court stated that, "altliough tliat holding may perhaps be correct, that elassification does have sonic problems of precision." Id. at 408. Finding that the case in front of it did not require the Court to reach this isstu;, tbc: Court in Williams decided to leave for another day how such "extension of legal principle" cases should be treated. 20 court decision." Id. 'I'he Sixth Circuit has notcd that "this provision nlarks 'significant change' and prevcnts the district court from looking to lower federal court decisions in detennining whether the state court decision is contrary to, or an unreasonable application of clearly estAblished federal taw, _.° Harris v. Stovall, 212 F.3d 940, 944 (Gth Cir. 2000) (quoling 1-krhert v. Rillv, 160 F.3d 1131, 1135 (6th Cir. 1998)). The Courtin Williarns referred to tlte jttrisprudeaace it has developed under Tcqc v. l.ane, 489 U.S. 288 (1989), to help guide fcderal courts as to what qualifies as "clearly established Federal law." Set, Willianu 529 U.S. at 412. '1'he Court stated "[w;Ihatevcr would qualify as an 'old rule' under Tea ue will constitute `clearly established Federal law, as determined by [this] Court."' id. UnderT a uc,"acascannouncesanewrulewhcnitbreaksne.wgroundorimposesanewobligation on the States or the Federal Govcmment." Tca+tic v. Lanc, 489 U.S. 288, 201 (1989), "'I'o put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction bocame (inal:" ld. "ln determining wlzetlier the rclief requested would cottstitute a new rule, the questions hccomes, `whether a state court considering [thc petitioner's] claini at the time his conviction becatne futal would have felt compelled by existing precedent to conclude that the rule [he] socks was required by the Constitution. "' Harris v. Stoval l, 212 F.3d at 944 (quoting Ca.tipari v, Rohlen, 510 U,S. 383, 390 (1994)). See s115o Saftle v. Parks, 494 U.S. 484, 488 (1990). In addition to reciting the standard the Court will omploy in this case, the Court is compelled to address the argtunents raised in both petitioner's and respondent's briefs on the standardofreview. First, Broom argues that, to the extent the AEDPA attachcs ncw.legal consequences to the outcomc ofBroom'spetition,itisunconstitutionallyretroactive. Thus,Broomclaims,theAEDPA'salteratit,n 21 of the existing habeas cotpus statutes must be subjected to a retroactivity analysis pursuant to Landgrafy, i.JSI Film Produets, 511 IJ.S. 244 (1994). Broom asseits that he is entitled to a i.,:mdara analysis because his conviotion, direct appeal, and filing for post-conviction relief all bccame final prior to the AL151'A's enactment. Thus, ciairns. Brooin, this Court's usage of the AEDPA amendments creates new legal consequences for hini. TheCourtwillnotundertakea and rafretroactivity analysisbecauseBarkerv Yukins,199 F.3d 867 (6th Cir. 1999), cert. denied, 530 U.S. 1229 (2000), dispenses with this issue. In that case, the petitioner's appeals were completed prior to the AEDPA's passage and the petitioner claimed applying the AEDPA amendments to her case would result in an unconstitutional, retroactive appiication of new legislation to her case, 1d. at 871. 'fhe Sixth Circuit disagreed, and, citimg Lindh v ur i, 521 U.S. 320, 336 (1997), dotcrntined that "tlxe fact that [petitioner's] state criminal appeals were completed prior to the effective date of the AEDPA is of absolutely no consequence in ascei4aining whether the AEDPA is or is not applicable " Id. Instead, the court opined, the date on which the petitioner filed her petition for habeas relief is detcrminative. Accordingly, Brooin's retroactivity argument must I'ail. Respondent's assertion that this Court should apply the standards contained in Chapter 154 are equally unpersuasive. As this Court proviously has determined, the statutorily-required represontation of indigent petitioners in state post-canvictioti proceedings, 28 U.S.C. § 2261, prevents Ohio from "opting-in" to the expedited proccdures of Chapter 154, Thus, the Court will refrain front utilizing any standarcls set fortli under those provisions. 22 VI. PROCEDURAL DFFAUL'1' Respondent argues that Broonr is precluded from pursuing memy oi'his stated t;rounds for iasuance of the writ on the grounds of procedural default.K 'rhe Court will addreys the question of procedural default witlt respmct to those individual grounds respondent attacks on that basis 4 As an initial inatter, however, the Court here sets out the applicable law and addresses Brooni's mon; general argutnents regarding the application of procedural default. A. Legal Stattdards Norntally, a federal court may not consider "contentions of tederal law wltich are not resolved on the merits in the state proceeding due to petitioner's failure to raise them as required by state procedure." Wainwright v. Sykes, 433 U.S. 72, 87 (1977). If a "state prisoner has defaulted his federal clauns in state court pursuant to an independent and adequate state procedural rule, fcderat Respondent does not contend any oI'Broom's claints arc unexhausted. Although the state's failure to raise exhaustion does not invariably waive the def'ense, CrranbcKa v. Cit^ecr, 481 U.S. 129, 133-34 (1987), and it ia petitioner's burdcn to prove exhaustion, Rust v. Zcnt, 1717.3d 155, 160 (1994), the Court sees no obvious exhaustion problems with the petifion in this case attd does not engage in a s^ sPQnte analysis of exttaustion where respondent has failcd to raise it. T)tc Court is not required to engage in a st, s on analysis oP procedural defiult whcre respondent lias declined to raise: the issue. "[I' Irocedural default is normally a defensc that the State is obligated to raise and proscrvc if it is not to lose the right to asserttite detense thereafter." '1'restv. Cain, 522 U.S. 87, 89 (1997) (internal quotatiou marks and citations omitted). Thus, a habeas cotu-t may forego a procodural defitult tmalysis turd address the merits of a claim whcn the respondent fails to raise this defense. S;e, lWison y- _Collins, 100 F. Supp. 2d 521, 597 (S.D. Ohio 1998) (addressing merits of claint whcn respondent failed to raise procedural default defense in return of writ or suppletnent to return of writ). The Court does, howcver, have discretion to apply this procedural bar sia sppntc in some eircumstances. Seo Lorraine v. C:oylo, 291 F.3d 416, 426 (6th Cir. 2002); r1w v, Clnitcd 5tatcs, 205 F.3d 882, 886 (6th Cir. 2000). 23 habeas review of the claints is barred tmless the prisoner can demonstrate cause for the def'ault and actual prejud"ice as a result ot'the alleged violation of fulernl law, or demonstrate that the failure to consider the claims will resuli in a fundatnental miscarriage of,justice " Coleman v. Thomnson. 501 U.S. 722, 749 (1991). In Maupin v. Srnith, 785 F.2d 135 (6th Cir. 1986), the Sixth Circuit Court of Appeals set out the analytical framework for determining claims of procedural default. "When a state argues that a habeas claim is precluded by the petitioner's failure to observe a state procedural rule, the federal court must go through a complicated [four-prong] analysis." W at 138. First, the court must detemiine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply witli the rule.... Second, the court must decide whether the state courts actually enforecd the state procedural sanction.... Third, the court must decide whether the state proecdural forfeiture is an "adequate and independent" state ground on which the state can rely to foreclose review of a Pederal constitutional claini. [And fourth, if] the court detern.tines that a state procedural rule was not complied witli and tltat the rule was an adequate and independcnt state ground, then the petitioner must demonstratc ,.. that there was "cause" for him to not follow the procedural rule and that he was actually prejudiced by the alleged constittttional error. id, (citations omitted). B. Broom's Challences to the Application of 1'rocedurail Dcfault Broom attacks respondont's procedural bar arl;umcnts in thrce ways: First, T3room argues that, because Ohio's post-conviction relief system is constitutionally inadequatc, this court should not honor any post-conviction cotut's procedural default detertninations or any dePault that would arise from Broom's Failure to raise issues in that procu;ding. Second, Brvom asserts that respondent has failed to establish the four-pronbed Mati. in test in sevcral ways. Broom asserts that he did not 24 fail to comply with any state procedural rtde. Broom also asserts that Ohio courts inconsistently enforce procedural bars and that these statc taw procedural rttlcs are not adequate and independent state grounds upon which to deny relief as defined by hlaunin. Third, P;rooni conteittls that, to the extent that the Court determines any of his claints are subject to a procedural bar, he can establish cause and prejudice to overcome it.1D 1 Oltirt 's Post-Conviction Relief SYSstcm Is CQnet; utionitllv lnadnqpaie Broom argue+that Ohio's post-conviction relicf systetn does not mect federal constitutional requirements becausc of the Ohio Supremc Court's interpretation of the post-conviction statutes in State v Perrv, 226 N.E.2d 104 (Ohio 1967). Under the Perry doctrine, a final judgment of conviction bars a convicted defendant from raising attd litigating in any proceeding; except an appeal l:rom that,jud8ment, any defense or any claimed lack of due process t.hat was raised m• could have been raised by the defendant at ttte trial on the tnorits, or on appeal f'rom that underlying judgment. ld. at 108; su- alsn Statc v. ttoberts, 437 N.E.2d 598, 601 (Ohio 1982) (holding policy behind Perr Uars post-conviction petitioners from raising issues that could have been raised on direct appeal in a collateral proceeding to avoid reversal of conviction based on collateral, ratlter than constitutional, issues). Thus, unless a claini is based on evidence dehors (outsicle ol) the record, it mttst be raised during dircct appeal, or be dcemcd waived. 10 Broom also alleges, in a cursory fashion, that he cati overcome any procedural hurdle through the miscarriage of justice exception, noted above, As Broom presents this argtuncnt in his thirticth ground for rolicf, the Court will address the ntcrits of that argumcnt whon it addrosscs that p,round. 25 Broom contcnds the EM decision rendered the post-conviction process in Ohio a virtual nullity for the sake of judicial convenience. Moreover, IIroom complains that the restriction prolii biting a petitioner from discovery before granting a hearing, yct not pcrntitting a hearing wiUtout sufficient documentation to warrant one, renders the post-eonviction petition an exercisc in ftttility. Finally, 13room contends that the Ohio post-conviction review process "failed" hint becatise he awaited the trial court's decision for seven years, attd, when f inally issued, that decision was littlc more than a recitation of the state's motion to dismiss. 13room cites no authority enabling this Court to dispense with Perrv or for a habeas court to dispensc with a post-conviction court's findings based on the length of time the petition was pending in state court or on the content of that decision. This is not surprising since the Sixth Cirouit has found expressly that the P. erry rule is an adcquate and independent statc grottnd to bar a merit review of a petitioner's claim where such claim is asserted in non-conipliance with that rule. Bueli v. Mitohell, 274 F.3d 337, 349 (6Ut Cir. 2001) ("This court ltas held that [the Perry rule] is regularly and consistently applied by Ohio court as required by the four-part Mau , in test") (ctting Byr v. Col lins, 209 F.3d 486, 521-22 (6th Cir. 2000)). 4cc a150 Mapes v. Cole,171 P.3d 408, 420 (6th Cir.1999), cerl. denied, 528 U.S. 946 (1999) (noting that the Perrv rule has bcen consistently applicd); k3rr,oky v. Edwards, 96 F.3d 1448 (Table), 1996 WL 506505, at *5 (6th Cir. Sept. 5,1996) ("`l'he procedural rule [of res jru[icala] applicable to petitioner's claims is an adequate and independent statc ground for refusal to hear the claim by the Ohio Supreme Court."). Consequently, this Court holds that any claini that the Ohio courts refitsed to address based on Per is proccdurally defaulted and barred from habeas revievv absent a showing of cause and prejudice. 26 2. Responclent Cannot LStabliah the l our Prongs of the Nfaupin_W_'1 est In this challenge to respondcnt's assertions of procedural dcfault, Broom argues tliat the respondent has not satisfied this Circuit's standards for the application of procedural default as that standard is explaincd in Maupin v 5mith, 785 F.2d 135 (6th Cir. 1986). Under Mau.^'^tn, the Court must undertake a four-pronged inquiry to determine whether a state procedural default rule bars federal habcas review. Broom alleges that the Maunin standards can not be met here for a number of reasons. First, Broom alleges that he lias complicd with the Perrm, rule tx;eause llis claints fall into a narrow class ot'recogtticed exceptions to the rule. Second, Broom claims that the Ohio courts did not actually enforce their own procedural rulcs in his case, and, thus, that this Court nccd not do so. Finally, Broont contends that some of Ohio's state procedural rules are not adequate and independent state grounds to which this Court must defer. The Court addresses each argument in turn. a, I3room Complicd with Ohifi Procedural ules Under this asscrtion, Broom argues that hc either complied with the Pe= rule because some of itis claims were not "ripe" on dircet appeal or were based on evidence dehors the record. Brootn provides little detail to support the allegation that his claims were not apparent on direct appeal." Aiter asserting this fact, Broont sunimarily states that "several of the claims in [his:1 post-conviction petitions were supported by evidcnce dehors the record." Traverse at 137. T-Ic tilon supplies a list of itetns that would support his claint of ineffective assistance of counsel at the guilt and mitigation phases of his trial, such as the aftidavits of his trial counsel, his examining psychologist, and "nutncrous relatives, friends, and acquaintanccs of Mr. Broom." Id, Although Broom's list appears extensive, lie fails to describe what each affidavit would state or make the important noxus between tlicse averred items and how they mil;ltt support his ineffective assistance ofcounsel claims. The Court wili address these proposed affidavits more fully whcn analyzing Broom's fiftlt, fifteenth, and sixteenth grounds for reliof. 27 To the extent that Broom's analysis in his individual grounds for relief provides further detail, the Court will address Broom'sall egations there. TheCourtcannotconcurwiththeswnmaryconclusion in part four of Broom's Traverse, however, that E^,M docs not bar any of his claims. Broom next argues that his ineffeetive assistance of counsel claims are subject to one of tlie exceptions that the Ohio courts have carved out of the PQty rule. Broom cites to State v. Cpqperrider, 448 N.E.2d 226 (Ohio 1983), to support his assertion that post-cottviction may be a proper forum in which to raise, in the firat instance, an ineffective assistance of counsel claim. Noting that the ineffective assistance claim in Cooperridcr was ('or failure to object to a juty instruction, a claitu that typically can be found froin evidence contained in the reoord, Broom extols Cooperrider as the authority that excuses the failure to raise ineffective assistance claims on direct appeal even when the basis thcrcfor is contained in the record. The Cottrt disagrees with. Broom's interpretation of Cooporride5. In that casc, the Ohio Supreme Court determined that it should refrain from dcciding the appellant's ineffective assistancc claini on direct appeal so that the appellant could raisa it in post-conviction proceedings. Although the claim itselfwas based on counsel's fail ure to object to a jury instructiott, the isstic in that case was whether counsel had properly advised his client to waive his right to a jury instruction to which hc was entitled. The Ohio Suprcmc Courtnoted, "it is itnpossiblc to deterniinc whetlrer the attorney wus incffcctivo in his representation ofappellant whcrc the allegations of ineffectiveness are based on facts not appearing in the record," Icj, at 454. Rather tliatt rolaxing the Per rule, the Cooperrider court carved out an exccption that tnore firnily establishes it. Thus, while the Court ay;rees with Broom that inoffectivc assistance of counhel clainis ntay be properly raised in the first instance during post-conviction reliefproceedings, Broom first inust demonstrate that these claims are clepcndent on 28 evidencc cleHors the record for factual development. Barringthis dentonstration, the Penv rulewould render such a claim procedurally defaulted. b, Ohio Courts Tailed to Enforce Procedural 13ars Broom next contends that, in several of his grounds for relief; the Ohio courts failed to enforcc an existing procedural bar.1z Thus, Broom argues, this Court nray address those claitns on the merits. Normally, federal courts may not decidc constitutional questions on habcas review ofa state orintinal proceeding where a petitioner's violation of a state procedural rule prevented the state courts from addressing that same claim. See Wainwright. v. Sykcs, 433 U.S. 72 (1977). As tho Sixth Circuit has notcd, however, that rule does not apply where the state itsel!'has failed to cnforce ils own proeedural bars to review of the constitutional question presented and has, in fact, addressed the merits of the claim. Raner v. Mintzes, 706 p,2d 161, 163 (6th Cir. 1983) ("In such a case, the rationale of Svkes is inapplicable since the state itselflias chosen not to apply its procedural rulos so as to bar thc claim ...."). Where a state enforces a ptrocedural bar, but then alteniatively ivles on thc merits, however, a ltabeas court is still barred froni a merit review. In l larris v. Rcod, 489 U.S. 255, 264 (1989), thc Court held tliat: [A] state court need not fear reaching the nierits of a federal claim in an alternative holding. By its very dcfinition, the adequate and indepe.ndent state ground doctrine requires tlu federal court to honor a state holding that is a suffficient basis for thc statc court's judpment, cven when the state court also relies on federal law. Thus, by applying this doctrine to habeas cases, Svkes curtails reconsideration of tlie federal issue on federal habeas as long as the state court explicitly invokcs a state procedural 1 2 Broom alleges thatthis circumstancc occurrcd in grounds fur n;liet'2, 3, 13, 14, 17, 22, 23, 24, 27, and 28. 29 bar rule as a separate basis for its doeision, In this way, a state court may reach a federal question witltout sacrilicinf* its interests in finality, fcderaGsm, and coniity. Ii at n.10 (citations omitted). Scc also Suut v, Mitchell, 209 F.3d 454, S66 (6th Cir. 2000), cerr. denied, 531 U.S. 1021 (2000) (holding that a state court's altornative holding does not necessarily pernrit a habeas court to rcach the nierits of a claim). Thus, wlxile Brooin is eorrect in asserting that any state court decision to forgive a procedural bar and address a claim on the inerits pcrmits this Court to act likewisc, he cannot successfully bypass a procalural bar when a state court addresses the merits of a claim in the context of an alternative holding. State Law Prnccdurnl Rules Are Not Adequate and 1ndP endcnt Brooni ncxt alleges that the state law procedural rules tiiat the state court applied in his case are not adequate and independent state grounds entitling them to dcference by this Court. First, 13rooni asserts that any claim that respondcnt asserts is procedurally defaulted because ol' Ohio's contemporaneous objection rule and concomitant plain error analysis should be addressed on the morits bccause those rules are not adequate and independent state grounds for dctermination. Oitio courts have dcterniined that a failure to contemporaneously objcct to an alleged error constitutes procedural del'ault. State v. Williams, 364 N.F.2d 1364 (Ohio 1977). If a defendant fails to object to a trial error thatwould affect a substantial right, tlien the appellate courts will conduct a plain error analysis of that claim. State v. Stas*.le, 605 N.F,.2d 916, 925 (Ohio 1992)," T3roonr contends that, 1.1 Additionally, Ohio Rule of Criminal Procedure 52(B) states: (B) Plain error Plain error or defects affectinl3 substantial rights may be noticed although they were uot brought to tho attention of the court. 30 because plain error review is grounded in the federnl due process concept of a fundantentally fair trial, it fails the third prong of the Mau in test outlined above, i.e., that a habcas court may review the merits of a claim because the state finding of procedurai default is not based on a ruling that is ttvly indepeiulent of federal law. Therefore, Broom conclude-s, this Court need not show deferencc to Ohio's contemporaneous objection rule and the plain error analysis it iniplies. Broom cites Knuckles v. Roaers, 983 F.2d 1067 (Table), 1993 WL 11874 (6th Cir. Jan. 21, 1993), to support his opinion. 'rhe Sixth Circuit questioned tlie precedential effect of that case in Scott v. Mitchcl , 809 F.3d 854 (6th Cir. 2000). In Scott, the court found that Ohio's contcmporaneous objection rule was an indopendcnt state ground baaTing review. id, at 867, Moreover, tlre Court in Scott noted that an alternative holding in which the state court performs a plain error analysis does not constitute a waiver ofthc state procedural bar. Id. at 867-68. Finally, in Seymour v. Walker, 224 F.3d 542, 557 (6th Cir, 2000), the court explicitly rejected Bt•oom's assertion, stating "[clontrolling precedent in our cirauit indicates tliat plaiai error rcvicw does not constitute a waiver of state procedural default rules." Thus, the Cotirt finds that any elaim to which the Ohio Supremc Court applied a plain error analysis is procedurally defaulu;d. To be entitlod to a merit review ol'those clainxs, Broom must demonstrate cause and prejudice to excuse the default. Broom nc:xt clairns that many of C)hio's procedural default rules arc not adequate, principally because they are not firmly establisbed and regularly applied. A procedural rule is not "adoquate," unless, among other things, it is regularly and consisteptly applied. Sce Warner v United States, 975 F.2d 1207,1213 (6th Cir.1992), cert. denied, 507 U.S. 932 (1993) (stating that the rulo only applies to "tirmly established and regularly ('ollowed state practices") (citing Ford v 3^q^498 o U.S. 411, 422 (1991)). Thus, concludcs Broom, because the Ohio courts inconsistently apply plain error 31 analysis and the Perry rulc, this Court need not de.l'er to an Ohio court's finding that zi tnerit review is not warranted based on one oftltcsc procedural rule violations. Although the Court has partially addressed this assertion, .strprce, it will now speak to this claim specifically. Some oFtlte cases relied on by Broom clearly do not support his argument and are, in fact, inapposite. For instance, in both of the lollowing cases, a well-established exception to the res t'ud icata doctrine set forth in Perr applied, or the court did not actually engage in a merits review. Broom first relies on State v. AueU, 489 N.E.2d 795, 811 (Ohio 1986). In uc , the court analyzed the constitutionality ol'the imposition of the death penalty in light of the recently decided United States Supreme Court decision in Caldwell v. Mississin,^i't, 472 U.S. 320 (1985), even tltough the petitioner did not raise the issue at trial, or in his appeal to the Ohio Supreme Court. The reason the Ohio Supreme Court considered the claim sua s. on was that it could not have haen rai.s•ed before. Caldwell was decided in 1985, aRer Buell's appeal had been filed and resolved by the Ohio Court of Appeals. Similarly, in State v. Rogers, 512 N.C.2d 581 (Ohio 1987), the Ohio Supremc Court considcred a claim bascd on tlac prosecutor's evidentiary use oftite petitioner's post-M iratida cxercise of his riglit to silence, in violation of the reeently decided Wainwright v. t.ireenlieid, 474 U.S. 284 (1986). As in 13uei , the Unitcd Si ttes 5upretne Court decision was issued after the petitioner's direct appeal to the Court ol'Appeals, and, thus, the appeal to the Ohio Suprenic Coun presented the carliest opportunity for raising the claim. In other cases, however, the Ohio Supreme Court did appear to ignore the rec; ' i.idicata bar and address the petitioner's claiins on the merits without explaining why it was doittg so. B-c-e S^„tte v. Williams, 528 N.E.2d 910 (Oluo 1988) ("Because of the gravity of the sentence that has becn 32 imposed on appellant, we have reviewed the record with care for any errors that may not have been brought to our attention. In addition, we have considered any pertincnt legal argunicnts which were not briefed or argued by the parties."); State v. Barnes, 495 N.I:.2d 922 (Ohio 1986)(statin8, "since the instant arguntent was neither raised bei'ore, nor ruled on by, the court of appeals, this court is not required to address it on the n-ieritti;" but addressing the claim anyway); State v. T•damhlin, 524 N.E.2d 476 (Ohio 1988) ("Because this is a capital case, we will review all five argunrents [even those not raised betow] rclating to the claini of ineffective assistance of counsel."); Slate v, Fsnarza, 529 N.E,2d 192 (Ohio 1988) (considering issue of,jury venire, even though it was "challenge[d] for the first time on appeal").14 Broom's argument is not without force. Ultiniately, however, it is unpersuasive. As statcd above, the Sixth Circuit has held that Ohio's application of the res ^udl icata doctrine undor PLrry is an adequate and indopendont statc ground for a decision to which I'ederal coutts must de fcr. That the Ohio Supreme Court occasionally chooses to address the nierits of claitns that are otherwise barred from review on the basis of res 'udicata does not mean that Oliio's law of res judicata is so inconsistent as to be inadequate, tnoreover. Rather, these are the exceptions that prove the rule. Consistency does not compc] slavish adherence. As thc Fourth Circuit has hcld, "Jcionsistent or regular application of'a state rule of procedural default does not require that the state court show an `undeviating adherence to such rule admitting ol' no exception." Ycatts v, Anaelone,1661'.3d 255, 263-64 (4th Cir. 1999), cert. denied, 526 U.S.1095 (1999) (quiit;n,[,r Wise v_ Williatns, 982F,2d 142, 143 (4th Cir. 1992)). Rather, the procedural rule is adequate, if, as "a general rule, [it has] been In virtually evety case in which the Oltio Supreme Court has forgiven a procedural default, and addressed a claint on the merits, the Court has concluded that the claim was without nierit. 33 applied in the vast majority of cases." Ylath v. Moore, 130 F.3d 595, 602 (4th Cir. 1997), cerr, denied, 523 U.S. 1143 ( 1998) (internal quotation marks omitted). While the Ohio courts ol'appeals ni.ay not be paradigms of consistency, they do not ignore or arbitrarily decline to apply Ottio's procedural bars, including the ELrQ^ rule, on a regular basis. Indeed, the proccdural bar is applied in the vast majority of cases, both capital and non-capital. There lias been no showing, niorcover, that, because of the above-mentioned oxceptions, Broom or other capital habeas petitioners reasonably came to believe that the err rule had been abandotx:d in capital cases. Thus, there was no basis to conclude that the exception had become the rule, or that it would have becn reasonable for a petitioner to assume that it had." As stated above. the Court concludes the Perr rule is adequate. Broom's next argument is that Ohio's appl'zcatiou of the Ycrr rule denies a petitioner due process becausc it "unfairly forecloses [a] meaningful opportunity to scek reliefon legitimate federal constitutional claims." Traverse at 149. This argunicnt is repetitive ol'Broom's carlierassertion that the post-oonviction system, as interproted by Ohio courts, creates dofaults for the sake ofjudieial convenience, denying a petitioncr's due process ril;hts thereby. Because the Court luas addressed this 15 The Ohio Suprcnic Court has expressly rejected the argument that procedural bars are or should be less strictiy enforecd in capital cases: The mere fact tilat punishmorits differ provides no basis to assert that procedural rules should differ in their application to the crime charged. We hold that capital defendants arc not entitled to special treatnient regarding evidentiary or procedutal rules .... We will utiiize the doctrine of waiver where applieable; yef we nzust also retain the power to sua s. ntc consicler pnrticrdar etTOt:s utider cxccptional circumstances. State v Greer, 530 N.E.2d 382, 294 (Ohio 1988). 34 argument, supra, it dcclines to do so again. Finally. Broom asserts Per x's inadequacy on the grounds tliat it requires ineffective assistance of trial claims to be raised on direct appeal. This requircment, firoom asserts, is "insut7^tciently ltospitable" to valid federal clainis because it frustrates a habeas pctitioner's ability to assert his or her federal rights. Traversc at 150. Broom cites to scveral federal cases that purpott to advocate his position. These cascs, however, meroly rciterate the existing exception to tltc Perr rule-that claims based on evidence dehors the record properly may be raised in post-conviction proceedings. For example, in Kimnielman v, Morrisn 477 U.S. 365, 378 (1986), the Court permitted a habeas petitioner to raise an ineffective assistance of cottnsel claim based on a Fourth Amendmont violation. The Court reasoned that. "an aocused will often not realize that he has a meritorious ineffectiveness claim until he begins collateral review proceedings, particularly if'he retained trial Coi(l73CI on direct [1ppC[fI." id. (entphasis supplied)_ Tlrus, the Court in Morrison reeogtti•z.od a rulc similar to that which tttc Ohio Supremc Cout1 applied in State v._Coie, 443 N.E.2d 169, 171 (Ohio 1982); where ineffective as;sistance of counsel is alleged and the petitioner had the same counsel during botli the trial and direct appeal phases, the incffoctivenes5 claini may be raised for the first time in post-eonviction proceedings. Similarly, petitioner's cite to Unitrx) States v. Au,^^ust, 984 F.2d 705, 71 E(6th Cir. 1992), rocites the federal analogue to the Coopcrridcr exccption to Pcrrv-thata petitioner should brint; an ineffective assistanco claim in post-conviction relief proeeedin(;s when tbe record is insufticicnt for the appellate couit to render its decision on the olaim. Thus, these cases do not support Broom's contention that Perry forces criminal defendant's to raise all incffective assistance claims on direet appeal. Accordingly, the Court finds Broom's assertion that Pertv is 35 inadequate on this ground unpersuasive. 3. Broom Can Establish Cauj.e and Prejudice Finally, Broom argucs that, to the extent this Court finds the above assertions unpcrsuasive and his grounds for relief barred by procedural default, he can establish cause and prcjudice to excuse such default. First, Broom asserts that onc "cause" lor procedurally defaulting these claims is incffectivo assistance of eounsel. Courts have held that incffcctive assistance of counsel, if proved, is sufficient to satisfy the cause prong and excuse procedural defanlt. See, e.g„ White_v. Schotten, 201 F.3d 743, 753 (6th Cir, 2000), cerr, denled, 531 U.S. 940 (2000) (holding that appellate counscl was ineffective and permitting district"urt to address merits o.Pclaitn if petitioner eould denionstrate prejudice); Hollis v, Davis, 912 F.2d 1343 (11t1i Cir. 1990), cerr, denied, 503 U.S. 938 (1992) (deterniining counsel's ineffectiveness for failure to ehallengc racial composition of jury sufficient to cstablish cause to excuse procedural default). The analysis does not end with this conclusion, however. Broont niust clemonstrate "that [hel. received ineffective assistance of counsel tliat rose to thc level of a violation of j'hisJ Sixth Ainondment rights" to successfully charaeterize counsel's conduct as cause and overcome the procedural default hurdle. Se^igur n v. Walker, 224 F.3d 542, 550 (6th. Cir. 2000), Specifically, pctitioner ntust satisfy thc two-prong test for ineffective assistance of counsel set fortlt in Stri •k •tnd v. Washington, 466 U.S. 668 (1984). First, the petitioner must demonstrate that counsel's errors were so egregious that "counsel was not functioning as tlte'counsel' guaranteod thc dexendant by the 3ixth Amendnient." Id. Second, the petitioner must show that he orshe was prejudiced by counsel's errors. "This requires showing that counticl's errurs were so serious as to deprive the del'endant of 36 a fair trial. a trial wltosc result is reliable." Id. To successfully assert an ineffective assistance of counsel claim, a petitionor must point to specific errors in counsel's perfortnance. tJnited Statcs v. Cronic, 466 U.S. 648, 666 (1984). Thereafter, a reviewing caurt must subject thc allegations to rigorous scruti ny, determining"whether, in lil;ht of all circumstanccs, the identified acts or omissions were outside the wide rangc of professionally competent assistance." Strickiand, 466 U.S. at 690. A reviewing court must strongly presunie that counsel's conduct was reasonable and nnigli.t be part of a trial strategy. id. at 689. "'ludicial scrutiny of a counsel's performanec must be hiblxly deferential"' and ...`every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstanees of counsel's challenged conduct, and to evaluate the conduet from counsel's perspective at the time."' Cono v. Bell, - U.S. -, 122 S.Ct. 1,943, IS52 (2002) (quotirrg Strickland, 466 U.S. at 689). To ascertain whether counsel's perforinance prejudiced a crimiaial procceding, a reviewing court does not speculate whetlter a different strategy might have becn n-iore successful, but a court must "focus[] on the question whether counsel's deficient performance renders the rosult ol'the trial unreliable or the proceeding fundamentally unfair." t.ockhartv. Pretwell, 506 U.S. 364, 372 (1993). i-Iero,l3room alleges that the facts upon which his fifth, fiftu: nth, and sixteenth grounds tir relief are premised also esuiblish counsel's inoffactiveness for purposes of a cause and prejudice analysis. As tlic Court detertnines, infra, that none ofthesc claims possess merit, the Court fnds that Broom cannot assert ineffective assistattce of counael to excuse his procedurally defaulted claims, VII. INDIVIDUAL GI2OUNllS FOR RFLIF,F I3rootn's claims fall into five broad categories: (1) constitutional violations that tainted the 37 entire course of the state proccedin^,ti; (2) cotutitutional violations rclating to the guilt phase and conviction; (3) constitutional violations rclating to the mitigatioat pliasc and sentencing; (4) constitutional violations relating to Broom's appeals; aud (5) sytitemic challenges to Ohio's capital ,punishment scheme in general. A. Constitutiqnal Violations That Tainted ihe Entirc C.oursc of the State Proeeedings 1. Fourtlr Claim for Rclief [n his fourth claim for relief, Broom alleges that the introduction of "other acts" evidence during trial affected the verdict and sentence. Specifically, Broom contends that the triai court's admission ofevidetace during the guilt phase rc:garding the attempted abduction of Venita MeKenncy and Melinda Grissom, and the introduction on cross-examination of his prior criminai convictions during the sentencing pbase, improperly influenced the trial's outcomc. Broonl raised this claim to the Ohio Supreme Court as his first proposition of law. Thus, the Cuurt will address it on the merits, Allegcd crrors in the admission of evidence, standing alone, are not enough to entitle a petitioner to relief under § 2254. As one court stated, "[e]rrors by a state court in the admission of evidenec generally ure not reviewable by a habeas court `unless they so pernieiousiy afrect the prosecution of a criminal casc as to deny the defendant the fundatnental right to a tai r trial." Ska -s v_ Parker, 27 F. Supp.2d 952, 985 (W.D. Ky. 1998), rev'd on other grounds, 230 F.3d 876 (2000) (quoting Kclly v. Wititrow. 25 F.3d 363, 370 (6th Cir. 1994)). "To determine whether the admission o#'certain evidence violated the defendant's constitutional right to a fair trial, the habeas court must lirst determine whether the evidence is relcvant or probative to an issue on which the prosecution bears the burden ofproof:" 'd (citing Estelle v, McGuire, 502 U.S. 62, 69-70 (1991)). Ifthe Court 38 concludes that the evidence was relevant to an essential element ol'the state'scase, its inquiry is ovcr; by definition, there has been no due process violation. Id. Both the Ohio Court of Appeals and the Ohio Suprente Court addressed this claint on the merits during Broom's dircct appeals. Both rejected Broom's argutnents. According to the Court of Appeals; 'rhe sintilarities in all three incidents are reniarkablc: all five girls, via.,1'ryna, Bonita, 'I'atnmy, Venita and Melinda, were between the ages of ] I and 14. A car was used in all tluee incidents and the same car in the first two incidents. llefendant also used a knife in two of the tlirec; incidents. Lacli iticident occurred on a residentiai street at night and the method of attack was almost identical: i.e., detendant would drive past the victim, park his car and upon exiting the car would ntakc a frontal approach on foot, then pass the victim prior to attacking her from bchind. In addition, the auacks wcre violent in nature as compared to persuasion or cnticenient and the same scurrilous language was used in all three incidcnts. "I'he attack on Venita McKenney occurred three clays before Tryna Middleton was kidnapped; the attack on Melinda Grissom occutred approx iniately eleven weeks atier Tryna Middieton was kidnapped. All thrce incidents occurred within a few ntiles of eaclt other and within a few ntilcs of appellatit's residence. Sta e v. F3rooni, No. 51237, 1987 WL 14401, at *8 (Ohio Ct. App, July 23, 1987). The Ohio Supreme Court arrived at the samo conclusion: Froni the outset, appellant claimed that there was a mistaken identity because he allegedly was with someonc else the nigltt that Tryna died. Thc acts ofSeptember 18 and December 6,1984 satisfy the preliminary ruquirements of admission ofother acts because they share a"tentporal, modal, and situationai relationship with the acts constituting the crime charged. ... All three incidents occurred widiin a few months of cach other, within a few tniies of each other, and all involved young girls between the ages of eleven and fourteen walking along a strcct after dark. Thc mcthod in all three incidents was identical: a lone driver in a car passed the victims, parked the car and then attacked them from behind, trying to get the victims into the civ while using the same scurrilous fanguage. Two of the incidcnts involved tlre sante car and knife. We view the evidonee of the other incideitts as admissible because it is rclevant to the issuc ot'appellant's defense of mistaken identity. State v. Broom, 533 N.L-',.2d 682, 690 (()hio 1988) (citations omitted). 39 Thus, the phio Court of Appeals and Ohio Supreme Court found that the adtnission of the other acts evidenec was relevant to prove that Broom was, in Pact,'1'ryna Middlcton's assailant; they concluded specifically that this evidence constitutod strong circumstantial evidence to support the prosecution's tlieory of the case and to rebut Broont's chosen defense, Those eourts concluded, moreover, that the probative value of this evidence was so strong as to outweigli its prejudicial effect on Broom. Under such circumstances, the statc court found that it was not erroneous to allow admission of this evidence. As noted above, the question for this Court is not whether it agrees with the state courts' interpretation of their own evidentiary rules or even whether, if presented with the same evidence at trial, this Court would liave allowed it. lnstead, the question is whether the adtnission of this other acts evidence rendered Broom's trial fundamentally unfair. llltimately, the Court concludes it did not. Whilo the Court has some concerns about the decision to admit this evidcnce, the Court cannot say that the state court's view of it-that it was directly probative of the credibility ofBroom's alibi defensvy--was unreasonable. 'fhe Court finds, moreover, that, in light of the substantial other direct evidence tying Broom to thu Tiyna Middleton nturder- including eyewitness identi(ication-the admission of this other act evidence did not so niuterially affect the outcome of'the trial as to render it ftindamentally unl'air. Brecht v. AbraliagiSon, 507 U.S. 619, 637 (1993). The Court notcs that neither respondent nor petitioner address the admission ofBroom's prior criminal convictions during the penalty phase of the proceeding in the return of writ and travcrse. Applying the legal standards cited above, the Court finds no constitutional violation in the trial court's decision to permit cross-examination of William Broom, Broom's father, regarding Broom's prior critninal convictions; as the sfate trial judge concludod, dcfense counsel created this possibility 40 by asking W illiatn Broom if his son ]tad presented "atiy trouble" while working at the Ford plant for sixtccn years. T., Vol. III, p. 1954. 'fhe trial court ruled: .. had [defense counsel's] questioning on direct not taken the tact it did, the Court might not be ruling in tltis ntanner. However, the Court fccls that in fairness to the ,jury and in fairness to the State of Ohio, the Court has no alternative but to rule in this manner. Obviously, the satne piece of evidence can have a bearing both on the question ol' character, and the question of no prior offcttses as a mitigating circumstancc. This is not being offered with respect to tlte mitigating circuntstances of no prior offenses. It is being offered to rebut Ihe impression that has been Icft as to the character of the Defendartt. id. at 1965-66. Additionally, the Ohio Supreme Court rejected Broom's appeal with respect to that trial court rulinp,. Tltat court stated: ftommel Broom's t'ather was a character witness for his son. "Introduction by a defendant of a character witness' testimony `opens a veritable Pandora's box."' State v. L•.liott, (1971), 25 Ohio St. 2d 249. It was not crror to allow the impeachntent of appellant's father. F..ven if it was error to fail to give a limiting instruction, such error was harmless in light of the fact that 13rooin adntitted in liis voluntary statement to thejury that hehad "been convicted before, and I did nine years for being involved with a youttg girl" Stato v. Broom, 533 N.E.2d at 697. Again, while otlter courts niay liave ruled diffc.-rently, thc decision to admit this evidence was not so unrcasonable as to have a fundamental impact on the ftirness of Broom's trial. Thus, the Court finds that this portion ofclaim four also is not well-taken. Accordingly, Broom is not entitled to relief on this claim. 2. Sixth Claim for Relief In his sixth ground for relief, Broom argues that the Statc of Ohio violated his constitutional riglits when it failed to disclosc exculpatory evidence prior to trial, as required under I3rady-y- 41 Marylarw373U.S.83(1963). Specilic.a[ly,BrootnallcgesthattheStatefailedtodisclose:(1)illepal drug usage by Tryna Middleton, Tanimy Sims, and Bonita Callier; (2) that this drug usagc affected thcse three girls on the night of Tryna Middleton's abduction; (3) that the three girls had a"liabit" of taking rides with strangc men; (4) that the tlu•ee girls had a practice of lying to manipulate otlters; (5) that the first individual that'l'vnmy Sinis and 13onita Callier approached after Tryna Middleton's abduction did not believe their story; (6) that the police had doubts about the two girls' story; (7) that Bonita Callier was hypnotized in an effort to iniprove lter memory; and (8) that Tryta Middleton was se:Xually aetive,16 Respondent contends that Brooni has procedurally defaulted this claim because hc deliberately bypassed review in tttc state courts and cannot satisfy either the "cause and prejudicc" or"miscarriageofjustice"prongsofColemanv.Thomnson,501 U.S.722,750(1991)." L'•veniftlle claim is not procedurally de.faulted, respondent argues that the Court cannot considcr this evidence ir, 'rhese are Petitioner's characterizations n rthe "facts" allcgedly disclosed by, prinaarily, the East Cleveland Poliou Dcpartnient records. Wlaile the Court takes issue with nrost ofthese characterizations and does not agrec that they are, in most instances, supported by a careful review of those records, in light of the Court's other conclusions, the Court finds no need to parse tlim cl3ims in detail or to debate their factual accuracy. 17 In C'oJcrnan, the Supreme Court explained the consequences on habcas review of a prisoner who lras proceclurally defaultcd ltis t'cdc:ral claims: ln all cases in whidi a state prisoner has dcfaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the clainis is barred unless the prisoner can demonstrate eatise for tho default and actual prejudice as a result ofthc alleged violation of fecleral law, or demonstrate lhat failuro to consider the claims will result in a fundamcntal miscarriage oPjustioc. 501 U.S. at 750. 42 as 13roorn failed to develop it in state court as required by 28 U.S.C. § 2254(e)(2). Finally, respondent argues that Broom's claim is incritleas. a. Proodural Default Broom acknowledges, as he must, that lre never presented this claim to the statc courts in either his direct appeal or post-conviction proceedings. Prior to September 21, 1995, Ohio law allowed subscquent post-conviction petitions at the discretion of the court. Ohio Rev. Code § 2953.23(A). Under current Ohio law, howevor, Broom cannot submit a sccond post-conviction petition, unless (1) either he shows he was unavoidably prevented from discovery of the 13radv materials or the United States Suprcnie Court recognizes a new federal or state right that applies retroactively to Broom, and (2) Broom shows by clear and convincing evidence that, but for this constitutional error at trial, no roasonable jury would have found hini guilty or sentenced him to death. ld. Broom does not asscrt that the United States Suproinc Court has recognized a new federal or state right that applies retroactively to him. Brooni also cannot establislt that hc was unavoidably prevented from discovoring this material. lndecd, Brootn was in possession or all the allegcd Lir rtdy material by the end of 1994, wltile his post-oonviction petition was pending. Notably, F3room, through counscl, used Olvo's open records proceedings to obtttin all the material upon which his I3rad claim is oow prentised, and he had that material in bis possession for sonic eight years. Under thcsa circumstances Broom cannot seek to pursue a second post-conviction proceeding in state court regcrrcfless of any showing lte might make under the second prong of Ohio Revised Code § 2953.23(A). Accordingly, thc Courl finds that no remedy exists in state court For Broom to pursue 43 with respect to this claim, and the Court can proceed to the Coleman procedural default analysis. ]d. Iiroom makes several arguments that sufficient cause exists to excuse this failure-(1) hewas unaware of this alleged Bra<1v material until he received tlre public records in 1993 and 1994, and, once he received tliena, the Ohio Supreme Court's decision in Stntc cxrel. Stecknian v. :Cackson, 639 N.E.2d 83 (Ohio 1994), and its progeny, Li7reclosed the use of these records in post-conviction proccedings; (2) counsel's failure to infortn Irim of the contents of these records effectively deprived hiiii ofrepresentation in this matter; and (3) the: state post-conviction judge impeded counsel's ability to file this clainr. 'To satisfy the "cause" clement, Broonl must show that "some objcctive factor externai to the defen5e impeded counsel's etforts to comply with the state's procedural rule." Murr v. Carrier, 477 U.S. 478, 488 (I986). i. 5teckman Decision Brooni argues that, once lie finally obtained the relevant public records, the Ohio Suprentc Court's decision in S,i,eekman, prevented him from using these tnaterials in any post-conviction procecdings. In Steckman, decided September 7, 1994, the Ohio Supreme Court held that "[a] del'endant in a criminal case who has exhausted the direct appeals of lier or his conviction may not avail herself or hiniself ol'R.C. 149.43 to support a petition for posteonviction rclicf." Id. at 85, syllabus 6(ov(,,rruling 5tatc cx rc! Clark v. Toledo, 560 N.E.2d 1313 (Ohio 1990)). Broom contends that this holding places an absolute bar not only on obtaining public records in connection with a post-conviction proceeding, but also liom using those already obtained in post-conviction proceedings, in S eckman, the Ohio Supreme Court consolidated three cases involving public records 44 requests under Ohio Rev. Code § 149.43. Two ofthc cases involved defendants in ongoins criminal proceedings, and the other case involved an individual who had already been convicted and was attetnpting to obtain public records to support his post-conviction petition. Td. at 85-87, Unlike Broont, nonc of these individuals had obtained the requested public records. In the case ntost analogous to Broom, the Ohio Suprenic Court held that the requested records were exentpt front disclosure. T, c^1, at 96. Nowltere in the opinion did tfte Oliio Supreme Court discuss the effect, if any, this decision had on indiv'rdttals already in possession of public records obtained througlt § 149.43. Pew Oltio courts have addressed the situation where pubtic records legitimately obtained via § 149.43 prior to the dccision in 5teckman were used to support a post-conviction petition: State v. Apanovitch, 667 N.E.2d 1041 (Ohio (:t. App. 1995); 3tate v. Waikcr, 657 N.E.2d 798 (Ohio Ct. App. 1995); attd State v. Storer, No. 94-CA-07, 1994 WL 667186 (Ohio Ct. App. Nov. 4, 1994). Both Wa cr and Stnrer, out of the Second District, cursorily rejected any use o f lhese public records to support a petition for post-conviction relief. Ananovitch, out of the Eighth District, on the othcr hand, noted the decision in aEker, but allowed the use ol'such records because the petition forpost- conviction relicf prc-dated the decision in Steckman. No other District Courts of Appeals have addressed this issue, Thus, contrary to Broom's contention, the law was not so settled as to make it obvious that tltc decision in Stecknian absolutely barred tlte use of public records obtained under § 149.43. In fact, the decision in "a ovitch, a decision froni the very District where Broont's post- conviction appeal would have been hcard, suggests that Broom could lrave, in fact, used these public records in support of his 1990 post-conviction petition. Certainly, after Ananovitch, Broom and his counsel had to ltave been aware oPthat possibility. Broom not only tilcd his petition for post-conviction rclicf well before the decision in 45 Steckntan, but Broom also obtained a mandamus order for release of the public rocords prior to the deeision. Wltile the record is unclear as to tvhen Broom received all of'tliese public records, Broom's post-conviction counsel testified that the public records were obtained during 1993 and 1994. Affidavit ofRichard Vickers, (Doe, 29, ¶ 4(C)). 'fhus, it appears that the vast majority of the tx^tevant public records were received prior to the decision in 5teekman on September 7, 1994. And, despile Steckman, Broom ovenLually did obtain all these records. Civen the uncertain status o!'the law regarding public recerds obtained prior to 5tee:kman, Broosn could havo filed a second post- conviction patition. Even if, arguably, 5teckinan prcvented Broom from tiling a new post-conviction petition, Broom could have attenipted 'utstead to aniend ltis post-conviction petition to include tltis alleged Brady tnatcrEal. Ohio Ii.cv. Code § 2953.21(F) (providing that tho petitioner can amend his post-eonviction petition at any Lime with leave of the court). The record, howcver, reveals no attempt by Brooni to either file a second post-conviction petition or to amcnd his pending post-conviction petition, even though his post-conviction petition reniained pendinl; until 1997. ii. TnePfective Assistance of Yost-Conviction Counsel Broom eontends that any failures by his post-conviction counsel to pursue a Bradv claim should not be held against him because his counsel failed to discuss any of the public records information witlt him. Broom argues, in esscnce, that his counsel was so deficient as to be ineffective and no longer acting as his agent. The Supreme Court has clearly held, however, that "[t]here is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claint constitutionally ineffective assistance ol' counsel in stich proceedings." Coleman v. Thomnson, 501 U.S. 722, 752 (1991) (citations omitted). '1'lic inquiry ('ocuses, not on the "gravity 46 of the attorney's error," but instead on whetlter the attot•ncy's crror is an "indcpendent constitutional violation." ld. at 754-55. Because the state has no responsibility to ensure competent counsel in post-conviction proceedings, the attorney is considered the agent of the petitioncr, and the attorney's errors are, therefore, ¢nputcsd to the pctitioner and not the state. li. at 754. This is true even when post-conviction proceedings are the first place a petitioner can present an offective constitutional challenge to his conviction, Bonin v, Vasctuez, 999 F.2d 425, 429-30 (9th Cir. 1993) (rejecting public defender's argument that ineffective assistance of post-conviction counsel constitutes an independent violation of thc Sixth Amendinent whcn the state requires ineffective assistance claims to be brought only in post-conviction procccdinbs). Brooni contends that, even if he was not constitutionally entitled to the effective assistance of post-conviction counsel, his post-conviction counsel's actions deviated so significantly.['rotn the scope of his autltority as to no longcr be acting as his agcnt. Regardlcss of the gravity of the attorney's errors, Broom, and not the state, must bcar the burden of post-conviction counsel's enrors. Colenian, 501 U.S. at 754--55. The Sixth Circuit, in affirnting the disniissal of a second fedcral habeas petition, rejeoted just such an argunient and cited to Caleman for the proposition that even eureyious errors by a post-conviction attorney are insufficient to serve as "cause" to exeLlsc a procedural default. Ritehie v. Ebcrhart, 11 F.3d 587, 592 (61h Cir. 1993) (lirst habeas counsel's failure to follow express directions of clicttt insufficient to serve as cause). Even if Brooni's post- conviction counsel acted outside the scope of his authority, that does not serve as an independcnt constitutional violation sultieient to establish the required cause. 47 iii. Actions of Poct-Conviction Judee Broom also attempts to exeuse his failure to file subsequent pleadings in his post-conviction proccedings by claiming that the trial judbe who presided over thesc proceedings discouraged his counsel from doing so. Even assuming, argttendo, this allegation is true, the rccord indicatos that the trial judge left the bench in Decetnber of 1992, well before Broom obtained the relevant public records.'fl Broom, therefore, had almost two years from the time that the triai.judge left the bench until the decision in Steekman and over fours years until the post-conviction decision wa,- reached to attentpt to present this alleged Brad^ material to the post-conviction court. The Court does not find that any discouragement by the trial judge, to the extent it existcd, excuses Broom's failure to raise his Arad claitn. Broont's eounsel, Mr. Vickers, even acknowledged during the hearing that, once the trial judge left the bench, this excuse lacked force. Evidentiary I-Iearing, Tr. 28-29 '1'o the extent that Broont contends his post-conviction counsel was deficient for railing to be aware that the trial judge had left the bench, the Court has already rejected such an ineffective assistance of post- conviction counsel ar8ument," IN While the Court need notdccide the issue, the Court notes that tho testimony elicited at the hearing failed to establish any cognizxtble impropriety in the trial court's commcnts. It is significant, tnoreover, that Brootn's post-conviction counsel acknowledged that words of discouragement from a trial court would not prevent him from pursuing a meritorious claim on behalf oPa client facing a death penalty. I 1, Broom contends dtat his counsel had no way of knowing that the trial judge had Iel'l the bench because they practiced out of Colunibus. Pot.'s Post-I-learing 13r. at 26. Givan the circumstances of the trial judge's decision to leave the state bench-to accept appointtnent to the Federal Benclt-the Court does not find this assertion credible, 48 iv. Conclusion Thc Court concludes that Broom has failed to demonstrate the rcquisite cause under Coleo»an to excuse his proceduraY default of his tira l claini. Broom obtained tlie relevant public records and had:m opportunity to present his claim to thc state courts, either through a second post-conviction petition or by aniending his pending post-convietion petition, b. Merits of Broom's Brady CL To establish a claim undcr 13rad y v. Marvland, 373 U.S. 83 (1963), "tlte petitioner has the burden of establishing that the prosecutor suppressed evidence; that such evidence was favorable to tlte defense; and that the suppressed cvidence was material." Sce Carter v. Bell, 218 F.3d 581, 601 (6th C'sr. 2000) (citing Moore v. Illinois, 408 U.S. 786, 794-95 (1972)). "The inquiry is objective, independent of the intent ol'the prosecutors." Id. (citing Brady,, 373 U.S. at 87). i. Evidentia^ iiearint*_ and F,^anded Recorct Before Ihe Court could address the merits of Broom's Brady claim, it must first determine whether it can consider any of the evidence Brooni presents in support of this clainz. In its Novomber 9, 2001 order, the Court granted Broom's request for an cvidentiary hearing on the cause and prejudice for Broom's procedural default of his rad claini. In the interests of efticicncy, the Court also allowed testimony regarding the substance of Broom's Bradv claini, but rescrvod ruling on its admissibility until Brooni couldestablish the eause and prejudice nocessary to excuse his procedural 20 This scction of the Court's opinion constitutes an alternative holding; the Court ncithcr lbrgives nor fails to enforce the procedural default that bars this claim. 49 delault. Respondent contends that the Court may not consider the evidence developed during thc hearing or discovery regarding Broom's Brid claim because Broom failcd to develop a rccord of this claitn in state court as required by 28 U.S.C, § 2254(e)(2). Under the AEDPA: (2) If the applicant has failed to develop the factual basis of a claim in State court proceedings. the court sFtall noi hold an evidentiary hearing on the claim unless• the applicant shows that --- (A) the claim relics on - (i) a new rule of constitutional law, made retroactive to cascs on collateral review by the Supromc Court, tbat was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exorcise of due diligence; and (B) tiie facts underlying the claim would be suflicient to establish by clear and convincing evidence that but for the constitutional etror, no reasonable fact•findcr would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2)(etnphasis addcd). Thus, bofore the Court can allow Broom :ut ovidcntiary hearing on a claim, it must detenjilne if Broom "tailed to develop tiu factual basis of a claim in State court procc:edings." l5), If Broom did fail to dcvelop the factual basis of any alaim, the Court may still allow an ovidentiary hearing if Broom demonstrates (1) the claim relics on u ncw rule of constitutional law tuade retroactive to him or the factual predicate of thc claim could not have been previously discovered through the exercise of due diligence, and (2) the facts undcrlying the claim establish, by clear and convincing evidence, that, but for the constitutional error, no reasonablejury would l'iuve him guilty. § 2254(c)(2)(A) & (B)• 50 ln (Michael) Williams v.'!'aylor, 529 U.S. 420 (2000), the Supreme Court construed this language, focusing particularly on the phrase "failed to davelop." The Court concluded that "a failure to develop thc factual basis of a claim is not establishcd unless there is a lack of diligencc, or some greater fault, attributable to the prisoner or the prisoner's counscl." ld. at 432. This Court is to l'ocus on Broom's efforts to discover the relevant facts, and not on whether Broom actually could have discovered these facts. "9Jiligeiice for purposes of the opening clause depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigatc and pursue claims in state court; it does not depend ... upon whether those efforts could have been successful." id, at 435. This quote also highlights the dual-pronged nature of the diligence inquiry. The Court is to focus both on Broom's effotts to investigate the Br_ adv claim as well as his el'1'orts to pursue that claim in state court. "For state courts to have their rightfiil opportunity to adjudicate I'ederul rigltts, the prisoner must be diligent in developing the record and presenting, if possible, all claitns of constitutional error." 11. at 437. Broom first sought access to the public records that form the basis of his Rr. .adv claini on April 4, 1990, Prior to September 21, 1995, C}hio's post-convietion statute allowed an iiidividual tn file a post-conviction petition at any time, Ohio Rev. Coda § 2953.2 1(A), and to file successive pctitions at the discretion of the court, Ohio Re.v. Code § 2953.23. 'PhuN, at the tinzc T3.roorn filed Iiis post- conviction petition and his writ of mandamus in the public records action, no statutory bars existed to provcnt Broom from presenting his B. radv claim to the statc courts once he obtained the relevant public records. Brooin, after sueeossfully obtaining the writ, rcecivcd tlicse public records in 1993 and 1994. Affidavit of Richard Vickors, Doe. 29, ¶ 4(C). As there wcrc no statutory bars prcventing Broom from procceding us he did, the Court finds that, up until the end ol' 1994, Broom's delay in 51 secking the public records and his failure in developing the record in the state courts does not demonstratc a lack of diligcnce on his part in either discovering the material or pursuing his Bradv cl'aim. The Court, liowcver, does Rind that, after 1994, Brooni was not diligent in pursuing his claim in the state courts. Broom ncither attentpted to filc a second post-conviction petition nor to amend his pending petition. Broom again atteinpts to point to the decision in Steckmatl as preventing him from using these public records. As the Court has already discussed, however, the state of the law was not so clear as to prevent him, in his peculiar factual and procedural circumstances, from pursuingeitherofthesealternadves,especiallygiventhedecisioninApanovitch. Further,givcnthat the change in Ohio's post-conviction statute regarding the tiniing and number of petitions did not occur until September 21, 1995, Broom had aniple opportunity to attempt to file a subsequent petition. The petition Broom did file, tnoreovcr, reniained pending until Apri124, 1997-providing plonty of opportunity for Brootn to move to alnend it, even after the effective bar on any subsequent petitions occurred on September 21, 1996. By April of 1997, Broom and his counsel Itad been in possession oPthe alleged 13rady material for almost two and a halfyears, and yet ncver attempted to fiie a second post-conviction petition or atnend the pending petition. 'fhc Court concludes, thcrefore, that Broom was not diligent, as that term is used in 28 U.S.C. § 2254(e)(2), in pursuing his Bradv claim in state court, The Court now must consider whether the statutory exceptions in § 2254(e)(2) apply to Broom. Broom does not contcnd that his claim is based upon a new rule ofeonstitutional law within the mcaning of § 2254(e)(2)(A)(i). Even assuniingthat Broom satisfies § 2254(c)(2)(A)(ii) regarding the factual precticide, Broom has bocn unable to establish, by clear and convincing evidence, that but 52 impcachment purposes. Given the profound evidertce of Broonr's guilt, the Court cannot conclude that Broom has sliown by clear and convincing evidence that no reasonable jury would have convicted him. The Court, therefore, cannot consider the testimony received in tho evidentiary hearing regarding the substance of Broom's Bradv claim. The Court did, howcvcr, allow the parties to expand the record under Habeas Rule 7. Respondent contends, for the sume reason, that the Court alsocannotconsiderthosematerialsnlatingtoBroom'sRradvclaim. TheCourifndsthisrcasoning persuasive and treats this material in the expanded record in the same fasliion as the testimony received during the evidentiary hearing. Without the evidence presented at the evidentiary hearinp and contained in the expanded record, Broont cannot show that the state violated its obligations under Bradv v Mar land. Under thesc circumstances, ilterefore, even if the petitioner's DX4d_y claint was not procedurally de.faulted in its entirety (which the Court has already concluded it is) the Court woald have to deny Broom's Bnidy claint bccause it is not supported by evidence in the record. ii. Elements of Brady Claim If, on the other hand, Brootn's rad claim were not procedurally defaulted and the Court could consider this additional evidenec, the Court finds it would be a close question as to whether 53 According to tlic testimony presented at the evidentiary hearing and the evidence in the record, the East Cleveland Police Department conducted nn independent investigation of Tryna Middleton'sabductionwhiletheClevelandPoliceDepartmentwasinvestigatinghertnurder. Bcyond the initial East Cleveland Police Department abduction report and eyewitness list, the Cleveland Police Department does not appear to have had access to or use of East Cleveland's subsequent reports. Judge McGinty testifed that he had no knowledge of these reports and Officer Svekric testified that he only received the initial abduction report and an eyewitncss list from the Bast Cleveland Police Department. Further, the testinaony indicates that the prosecutor made all of the records available it availablc, in tum, to the defense. After considering all ofthe tcstiniony presented at the hcaring, as well as the other evidence in the record, the Court makes the following findings of fact: (1) the Cuyahoga County prosecutors disclosed all the materials in their filcs, as well as the Cleveland Policc Departnient files, to defense counsel; (2) the East Cleveland Police Departnient reports dating October 31, 1984 and later (those beyond the initial abduction report and eyewitness list), were not contained in cither the prosecutor's orthe Cleveland Police Department's fdes and, therefore, were not disclosed to defeiue counsel; and (3) the prosecutors were not awarc ot' the subsequent Bast Cleveland Police Department investigations or reports that were eventually produced to Brootii through his public records action at any time prior to the current federal proceedings. 54 Court finds that the prosecutor was not aware of the East Cleveland Police Dopartnient reports, this does not answer whether the state could still be held accountable for the failure to reveal these reports to Broom. A prosecutor is not only presumed to have knowiedge of all information gatliered in connection with his investigation, but also has a duty to leam of any information favorable to the defendant that is in the possession of others acting on the government's behalf. Kyles v. Whitley, 514 U.S. 419, 437 (1995); United States v. AvelGno, 136 P.3d 249, 255 (2d Cir. 1998)- 77ius, knowledge of information in the possession of the policc gonerally is imputed to the prosecutor for purposes of Bradv. This case poses a novel twist on the typical Bradv, claim. The niaterials at issue hero were not in the possession of thc primary law enforcement agency working with the prosecutor, but wcrc instead in thc possession of another law enforcement agcncy whose involvctnent with the prosecutor was minimal. The case bcgan in East Clevcland as a reported kidnapping. Within two hours of Tryna Middleton's abduction, however, she was found murdered in Cleveland. Although Uie East Cleveland Police Departnient's investigation began first, the Cleveland Police Department ahnost intniediately beSan its own investigation tusd it was that investigation tltat ultimately led to Broom's arrest and capture. The East Cleveland Police Department apparently continued its investigation independently of the Cleveland Police Department's investigation and mibeknownst to the prosecutor. Thus, the question before the Court is whether the information found in an independcnt 55 Court nor the Sixth Circuit has addressed the precise contours of when knowledge in the possession of one ams of the state will be imputed to the prosecution. The First Circuit imputos knowiedge to the prosecutor of any information in the possession of the "prosecution team," lftstraechio v. Vose, 274 F.3d 590 (I st Cir. 2001), or any relevant investigative agency, United States v. Osorio, 929 F.2d 753, 760-62 (1 st Cir. 1991). T'he Tliird Circuit has also talceti a broad view and requires prosecutors "to make a thorough inquiry of all enforcement agencies that had a potential connection with the witness." Unitcd_ State v_ Thornton, I F.3d 149, 158 (3d Cir. 1993), cert, denied, 510 U.S. 982 ( I993). The Fifth Circuit has taken a less expansive viaw, limiting imputation to that inforination that is readily available to the prosecutioji within its teani of investigative and prosecutorial personnel. Willianis v Whitley, 940 F.2d 132, 133 (5th Cir. 1991); United States v. nuten, 632 F.2d 478,481 (5th Cir. 1980). The Seventh Circuit also imputes knowledge within thc possession ofthose agencies that were "rart of the team that investigated [the] case or participated in its prosecution." United States v.Morris, 80 F3d 1151, 1169 (7th Cir. 1996). The D.C. Circuit requires prosecutors to disclose only those materials held by agencies or branches of government "closely aligned with the prosecution:" tJnited States v. 3rooks, 966 F.2d 1500, 1502-03 (D.C. Cir. 1992). It appears that, while the precise standard to be used in determining wliat information is to be imputed to the prosecutor is not clear, the majority of Circuits would find that knowledge of the information contained in the East Cleveland Police Department reports would be iniputed to the 56 trial. These facts appcar to indicate that the East Cleveland Police Department was sufticiently involved in the case to be considered a part of the prosecutiotx team by virtue of its participation in both investigatcny and testimonial aspects of this ca,ae. Thc East Cleveland Police Department's involvenient in the investigation was not ineroly "tangential," even if lhat department was not a critical part of the trial team. Despitc the fact that the Court finds the prosecutor was actually unaware of the East Clcvcland Police Department records at issuc here, it is likely that knowledge of their existence should be imputed to the prosecution for purposes of Lira . Having apparently satisfied the first Bradv element, the Court now turns to whcther Broom has satisfied the second element, whether the evidence was exculpatory, or favorable, to Broom. For purposes of rad , there is no distinction between imPeachnient and exculpatory evidence. tlnited States v. Bat;fev, 473 U.S. 667, 682 (1985). Much of the material in question, specifically that relating to possible drug or alcohol use by Taminy Sims and Bonita Callier on the night in questioal and the doubts expressed bytlte police and othor witnesses regardingthe girls' veracity, would serve to attack the credibility of the two girls and their ability to perceive the cvants that night. 'I'ho Court eonchtdes, therefore, tharthis material wotdd have been favorable to Brooni. Finally, the Court tums to whether the suppressed evidence was niaterial. "[B]vidence is material only ifthere is a reasonable probability that, ltad the evidence bean disclosed to the defeaise, the result of the proceeding would have been differcnt. A`reasonable probability' is a probability 57 c. Conclusion por the reasons stated above, the Court tinds that Broom has procedurally defaulted his Sixth Claim. The Court further finds that, even if it could oansider this claim, Broom's failure to develop the record in the state court prevents it from considering any evidence Broont now wishes to submit in support of his ciaim. Without this evidence, Broom cannot prevail on this claim. The Court, thereforc, eannot grant Broom rcliof on this claint. 3. Seventh Claim £or Ralief Broom's seventh claim is that the state's Brady violations caused trial counsel to render constitutionally ineffective assistattce. Respondent asserts that this claim is procedurally dofaulted because Broom failed to raise it in any state court proceeding, Broom attempts to excuse this default by claiming that the prosecution's violations of Bradv v. Marvlansi, 373 U.S. 83 (1963), addressed supra in Broom's sixth claim for relief, should serve as cause to excuse this defiult. For the samc reasons the Court found that Brooni had an adequate opportunity to present his Bradv eLaim to the 21 This is a fundamentally different standard than that eniployed under 2254(e)(2), discussed above. Thus, while thc Court was prepared to and did conclude that Broorn has failed to prove by clear and convincing evidence that no reasonable jury would havc convioted him if the East Cicvcland records had been disclosed, the Court is not so quick to conclude that disclosurc ofthese materials to Broom and his counsel would not havc been °ntaterial" as that concept is defined here. 58 In his ninth and tenth grounds for rclieF, Broom maintains that the trial court erred when cltarging thc j ury on several occasions during the guilt and mitigation phases of trial. The Court will cxamine these claims individually, mindful that an incorrect jury instruction does not warrant federal habeas corpus relief if it was merely undesirablc, erroneous, or universally condemned. Instead, the instruction must violate a constitutional right. Estelle v. McGuire, 502 U.S. 62, 72 (1991). Upon review, a court must determine whether there is a reasonable likelihood that the jury applicd the instruction in a way that prevents consideration of constitutionally relevant evidence. Boyd v. California, 494 U.S. 370, 380 (1990). The impropriety of the instruction must be considered in the context of the instructions as a whole and of the entire trial record. ld. Bccause jury instruction errors typically arc matters of state law, the standard for demonstrating that a jury instruction caused constitutional error in a habeas proceeding "is even greater than the showing required to establish plain error on direct appeal." I,Icnderson v. Kibbe, 431 U.S. 145, 154 (1977). A habeas petitioner's "burden is especially heavy [when] no [affirmatively] crroncous instruction was given .... An omission, or an incompleta instruction, is less likely to be prejudicial than a niisstatsment ofthe law." id. at 155. The Coutt now tums to Broom's individual claims f'or relief. 22 Were the Court to address this claim, it would find it lacks merit for the reasons stated above in Broom's sixth claim for rclicf. This claim, in essence, is a reassertion of that claim. 59 proof at the close of both the guill and mitigation phases of trial Z' The respondent allcgcs that illis sub-claim is procedurally defaulted because Broom failcd to raise it on direct appeal. The Court agrees that this elaim is defaulted and tliat Broom did not establisli cause and prejudice to overcome this procedural bar.24 Were this Court to address the merits of this sub-claini, nioreover, it would not find it well- taken, The Sixth Circuit has ruled clearly that Ohio's statutory definition of reasonable doubt does not offend due process. Thomas v. Arn, 704 F.2d 865, 867-69 (6th Cir. 1983). To offend due process, the instruction must be of the type that could mislead the jury into finding no reasonable '' The trial court charged the jury by reading the statutory definition of reasonable doubt provided by Ohio Rcv. Code § 2901.05. That statute states: (D) "Reasonable doubt" is present when the jurors, after they have carefully considcred and compared all the evidence, cannot saythcy are firtnly convinced of the tnith of thc charge. It is a doubt basod on reason and common sense. Reasonable doubt is not niere possible doubt, because everything relating to huntan affairs or depending on ntorat evidcncc is open to some possible or imal;inary doubt. "Proof beyond a reasonable doubt" is proof of such charactcr that an ordinary person would be willin8, to rely and actqon it in tltc inost imriortant of his own affairs. Ohio Rev. Code § 2901.05(D); T., Vol.1I1, pp. 1818, 2001. ,'d Broom makes tm specific allegations regarding the defaidted status of this claim individually. lnstead, li:e refers the Court generally to the procedtual default section oftlic "fraverse. As noted, the Court finds nonc of the arguments in that section of his Traverse persuasive. 60 Broom next contends that the trial court's and prosecutor's admonishments to the jurors that any death verdict was only a recommendation unconstitutionally diminished the juty's responsibi lity for the imposition of the death penalty. Respondent does not allege that this claim is procedurally defaulted. This claim was, in fact, asserted on direct appeal. State v. Broom, 533 N.E.2d 682, 697-98 (Ohio 1988). Therefore, the Court will address this claim on its merits. Broom points to five dit3'erent occasions during testitnony and closing arguments at the mitigation phase of trial when the prosecutor told the jurors that the death penalty was a recommendation. Broom also points to thc j ury instruction that the trial court delivered at the close of`tlie seotencingphase. The challenged instruction is quoted below: If all twelve members of the jury find, by proof beyond a reasonable doubt, that the aggravating circumstances which Romell Broom was found guilty of contmitting outweigh the ntitil;ating factors, then you must return such a finding to the Court. I instruct you as a matter of law that if you makc such a finding, then you have no choice and must recoinmend to the Court that the sentence ot' death be imposocl upon the Defendant, Roniell Broom. On the other hand, if after considering all of the relevant evidenec raised at trial, the testimony, other evidence, the statement of Romell Broom and arguments of counsel, you find that the State of Ohio failed to prove that the aggravating circumstaneos which the Defendant, Romell Broom, was found guilty of comnritting outweigh thc ntitigating factors, then you will return your verdict reflecting your decision. In that cvent, you will tlien proceed to detcrntine which of two possible life imprisonment sentences to recoromend to the Court. Your recomtnendation to the Court sliall be oa7e ofthe following: Number one, that Romell Brooni be sentenced to life imprisonment witli parole eligibility after 24 years of imprisonment; or number two, that Romell Broom be sentenced to Iifo inrprisonincnt with parole eligibility after 34 years of imprisonment, 61 +^^VF+UFAl11UG1/Vll WVUILL VFFIULIIb^VLLlI. Brooni contends this instruction unconsti.tutionally misled thc jury, because it itupermissibly alleviated the jury's responsibility in rendering its decision, citing C.aldwell v. Mississippi, 472 U.S. 320 (1985). The Caldwell Court concluded that the defendant's death scntenee was unconstitutional, because "it is constitutionally impermissible to rest a death sentence on a deterniination made by a sentencer who has bce:n led to believe that the responsibility Por detertnining the appropriateness of the dofcndant's death rests olsowhorc." id. at 32$-29. Broom argues that the trial court's instruction impermissibly led the jury to believe that final responsibility for detcrmining whetlter to impose a death sentenec lay with the,judge, and not with the jury itself. Brooni cannot prevail on this claim because, unlike Caldwell, the trial judge's instructions did not mislead tho jury and was an accurate statement of Ohio law, While the trial court did not specifically state that it had the discretion to reject a dcath sentence, any confusion that occurred from this oniission would have increuscd the jury's sense of responsibility as they ntost likely would liave understood the binding language at the end nf the instruction to apply to aEl of thcir reconzmendations. The Ohio Supreme Court found this instruction did not diniinish the jury's sense of responsibility: The jmy ittstructions and the prosecutorial remarks did nvt specifically refer to the juryvcrdict as merely advisory, nordid they eniplutsize or even mention the appellate 62 State v, Broom, 533 N.E.2d at 698-99. Because the Ohio Supreme Court did not apply Caldwell unreasonably, this sub-claim is not well-taken. Broom next argues that it was improper to tell tlte jtuy that sympathy could play no part in its deliberations. L'room contends that sympathy and mercy arc legitimate considerations at the penalty phase in capital cases. The challenged instruction is quoted below: You niust not be influcnced by aity consideration of sympathy or prcjudiee. It is your duty to carefully weigh the evidence, to decide all disputed questions of fact, to apply the instructions of the Cottrt to your findings, and to render your verdict accordingly. In fulfilling your verdict, your efforts must be to arrive at a just verdict. Consider all the evidence and make your finding with intelligcnce and impartiality, and without bias, syinpathy or prejudice, so that the State of Ohio and the Dcfendant will feel that their case was fairly and impartially tried. T., Vol. III, p. 2006. A death-sentenced defondant made a siniilar argument in Califorrtia v. $rown, 479 U.S. 538 (1987), arguing that an instruction to the jury not to be swayed by "mere sentiment, coqjecture, sympathy, passion, prejudicc, public opiniou orpublic feeling" was unconstitutional. Id. at 542. The Supreme Court rejected this arguntcnt, noting that °(clven ajuror who insisted on focusing on [the phrase `mere sympathy'l in the instruction would likely intorpret the plirase as an admonition to ignore emotional responscs titat are not rooted in the aggravating and mitigating evidence introduced during the penalty phase." id. I-lere, the trial court did not warn simply against feelings of sympatlry, but directed thcjury to "niake your findiag with inteiligence and impartiality, without bias, sympathy 63 instruction). Accordingly, the Court tinds this sub-claim is not well-taken. Broom next contends that tlie jury was misled into believing that it must unanimously agree upon a sentence of life imprisontnent. in other words, Broom argues that the jttry was not told specifically that one juror could prevent a death sentence. Respondent asserts this claim is procedurally defaulted as it was not raised on direct appeal. 7'he Court agrecs." Finally, 13room contends that the trial court, in following the statutory mandates of phio's deatli penalty, instructed the j ury that they must, as a matter of law, impose a death sentence if the aggravating circumstances outweigh the niitigating factors. 8rootn asscrls this claim as a distinct claim for relief See twcnty-sixth claim for rclief addressed, infi^a. The Court will address this argument when it addresses that claim. 25 The Court tittds, moreover, even if ripe for a nicrit rcview, this claim would not be well-takcn. The trial court stated: Now ladies and gentlemen, whenever all 12 of you, I repeat, all 12 jurors, agree upon a verdict, you will sign the verdict in ink wid advise tlte Court of this fact. T., Vol. 111, p. 2013, The Sixth Circuit recentlyfound an insttuction that was even more pointed and detailed than the one above on the issue of unanimity, to be constitutional. See Scott v. Mitchell, 209 F.3d 854, 876 (6th Cir: 2000). The Sixth Circuit found that "nothing in Ithe language of the instructionj could be reasonably taken to require unanimity as to the presence of a mitigating factor." id. (quoting CAe Y. Rell, 161 F.3d 320, 338 (6th Cir. 1998), cert, denied, 528 U.S. 842 (1999)). Therc is nothing in the record of this case to warrant a contrary conclusion here. 64 unfair trial. Second, $roont complains that the trial court failed to instruct the jury on the dangers inherent in eyewitness identification testiniony. Broom raised both claims inhis cieventh proposition of taw to the Ohio Supreme Court, which addressed them. Hence, this Court niay address them on the merits. In 13eck v. Alabama, 447 U.S. 625 (1980), the IJnited States Suprenie Court held that it is unconstitutional to impose a dcath penalty when a' jury [is] not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict." ld. at 627. In that case, tlie Count found that thc jury's fact-finding function was impermissibly impinged by its inability to consider thc lesser-inctuded offense oPfelonymurderwlten the defendant's intent was disputcd during trial. Two years later, in F o^Der v. E-,yan 456 U.S. 605 (1982).theCourt reviscdcF3ec decision,placinglimitsonitsapplicability.'TheHn erdefend:uit testilied during mitigation that lte felt no renaorsc for the murder he cotnntitted, and would return to a life of crime if he were ever freed. Id. at 607. 'I`he Court in i-io . er determinod that the decision whether to provide thejury with a lesser-included offense charge wasa fact specilic one. Noting thc defendant's teskimony, the Court held that a lesser-includcd offense charge was not warranted in that casc. In its review of this claim, the Ohio Supreme Court ntade the following observations: Appellant also reryuested an instruction on tlre lesser included offenses of 65 lil'rA6 tlluVUUUUV[A CAlblGU. ![ ts lUlUwn Lftitl U rl[y'nC c ilUep arter Ln4' Alunap, t nCse arguments arc: not supported by any facts in the record. The suggestion of provocation is not eveat colorable. Cf. Muscatello, sidpra. See State v. Spisak, (1988), 36 Ohio St.3d 80, 82, 521 N.F:2d 800, 802, at fn.l. The jury could not have reasonably found that thc murder was not comniitted while committing, attetnpting to commit, or while flecing after comtnitting or attempting to commit kidnapping or rape. The cvidence of kidnapping and rape is overwhclniing and the law is clear that an instruction must be consistent with the fact.s presented in evidencc. State v. Broom, 533 N.E.2d 682, 696 (Ohio 1988). Thc Court finds this application of Beck is nut an unrcasonable one. Broom supplies this Court with no case law or additional facts contained in the record to support his contention that a lesscr-included offense was warranted. Sec Canipbell y. Coyle, 260 F.3d 531, 545 (6th Cir. 2001)(liolding that the Ohio Suprente Court's determination that lesser-included offease pursuant to Back was not unreasonable when appellant supplied lliat court with no case law or facts froni the record). Accordingly, this sub-claim is without merit. $room ncxt asserts that he was entitled to an eyewitness identification charge. In its review of this sub-claim, the Ohio Supreme Court determined that, "[t]he court's instniction regarding credibility of witnesscs included the substance of the proposed instruction rcquested by appellattt, which is ail that is reGuired." ST3te v. Broom, 533 N.E.2d at 696. Broont cites to no Unitcd States Supreme Court case that was unreasonably applied in the Ohio Supreme Court opinion. Thus, this 66 the trial proceeding. Specificaily, Broom alleges tltat numerous sidebar confercnccs, including one that took place ailer defense counsel's opening argument in which counsel referred to Darren LeMay and the prosecution objected,Z' were not included as part of the trial reeord. Additionally, Broom complains that a jury vicw was not rccorded, but that the prosecution referred to this view in its closing remarks.z8 Broom contends thatthese oniissions in the record ptx:ventod hini front obtaining 26 "1'n support his claim, Broom cites to 11nited States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972), in which the circuit court determined that an eyewitness instruction was warranted in that case based on the identifying witness's ability to observe and reflect upon the identification. Thereafter, in an appendix to the opinion, the Telfai e court issued a ntodel instrttetion on eyewitness identification to be utilized in instances when the identifying witness's ability to observe is intpaired by distance or other obstacles. Broom next cites to United Sjate, v Tipton, 11 F.3d 602 (6th Cir. 1993), cert. denied, 512 U.S. 1212 (1994). In that ca,se the Sixth Circuit lteld that "[ajlthough the Sixth Circui t ltas held that giving the Tclfaire instruetion is a matter ofdiscretion for the trial court, it has, at the same tinte, stressed that it needs to be given `when the issue of ideatity is erttcial, i.e., eitlter where no corroboration ofthc testimony exists, or where the witncss's niemory has fadcd by the time of trial, or where there was a limited opportunity for observation."' Td. at 606(citations omitted), Although not United States Supreme Court cases, these cases only serve to support the conclusion that an eyewitness testimony instruction need only be supplied when there is no corroborating testimony or the testifying eyewitness was unable to obtain an unhlndercd view of the defendant. Neither circumstance appears to be present here. 27 According to defense counsel, Darren i.,eMay confessed to murdering 1'ryna Middleton while on trial for an utueEated crime, Hearing Trattscript at 49. 28 During summation, thc prosecutor stated: You saw this lady, s6c is not a very big or a heavy lady. Shc wcighs 67 Common Pleas Apr. 24, 1997); Resp. Ex. T. Because Broom catmot suca;ssfully surmount this procedural bar, the Court must refrain from resolving this claim on the merits. The Court Gnds, moreover, that, ifnot subject to procedural default, this claim would fail on the merits in any event. Rule 22 of the Oliio Rules of Criminal Procedure requires all proceedings to be recorded in all serious offense cases, and Ohio Appellate Rule 9(A) rcqttires, "(iln all capital cases the trial proceedings shall include a written transcript of the record made during the trial by stenographic means." Ohio App. R. 9(A). When a proceeding has not been preserved, counsel may invoke procedures sct fortit in Ohio Appellate Rules 9(C) or 9(L) to rcconstruct the record. Under Ohio law, an error is considered waived in the absence oran attenipt to reconstruct the substance of the remarks and demonstrate prejudice. State v. Jells, 559 N.E.2d 464 (Ohio 1990), c•Ert. denied, 498 U.S. 1111 (1991) (cit+ng Unitcd States v_ Gallo, 763 i^.2d 1504, 1529-32 (Cth Cir. 1985), cert. denred, 475 U.S. 1017 (1986); Statel3rcwer, v^, 549 N.E.2d 491 (Ohio 1990)). Upon review of the record, it is clear, moreover, that Broom was not denied a tair trial. Sec about 130, 1 would bc surpriscd il' she weighs that much, but it is probably lightcr. What does she do? She screanis and yells and she grabs and pounds as [the car] went down the strcet. You were there at the jury view :uid we asked you to think about wliat would go on through your mind and what our visions would be if yott were in that position when you would sce your daughter in a car headed up the street with an unknown man. T., Vol. III, p, 1737. 68 he was prejudiced by the trial court and counsel's failure to make a recording of the sidebar conferenecs and jury view. A mere assertion is not enouglr to support a findin8 that the failure to record these conferences resulted in an unfair trial. Indeed, in such circumstances, the Court niust deenz any error by the trial court harmless. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)(adopting the test for harmless error amtounced in Kotteakos v. United States, 328 U,S. 750 (I946)--whether the eiror had a"substantial and injurious effect" on the jury's verdict). 6. Twelfth Claim for Rclief Broom asserts several trial courterrors in his twelfth claim for relief. rirst, Broom argues that the trial court improperly refused to excuse a venire mem ber for causo after he stated lie autoniatically would vote for the dcath penalty if Broom was convicted of aggravated murder, requiring Broom to use a peremptory challenge.jB Although respondent alleges that this sub-claim is procedurally When questioned during voir dire, tlte prospeetive juror explained his beliefs oi the iniposition of the death penalty: Defense counsel: Without knowing any of the facis. I mcan, do you believe that if we have a trial and it was proven beyond a rcasonable doubt, and all criminal cases must bc proven beyond a reasonable doubt. But, ifthe aggravated murder is proven beyond a reasonable doubt that it was conunittcd here, would you automatically vote for the death penalty? 69 who would automatically impose the death penalty. The Court in Mors;an concluded that °'[a]ny juror who states that he or she will automatically vote for the death penalty withoutregard to the mitigating evidence is announcing an intention not to follow the instructions to consider the mitigating evidence and to decide if it is sufficient to preclude imposition of the deatlt penalty." ld_ at 738. 'I'hus, the Court instructed trial courts that, regardless of a juror's personal belief.s, thejuror tnust be able to Juror: Yes, I think I would. '1'., Vol. 1, p. 212. Although defcnsc counsel later challcnged for cause, the trial court denied the challenge, stating: Well, first of all, I'm not going to grant your challenge l'or these reasons. I don't think the queslions you asked him were fair questions. You asked Itim if he would autoniatically vote for the death penalty without explaining to hini the law and the specification of certain penalties on other situations. And by asking someone whether thcy would automatically vote for the death penalty il'thcry wcre found guilty of murder, you are not correctly characterizing wliat the law of Ohio is. Id. at 213. 30 In Witherspoon v, Illinois, 391 U.S. 510, 521-22 (1968), the Suprame Court invalidated a capital sentence when the trial court excused all jurors who expressed a conscientious objection to the death penalty. The Court reasoned that the proper inquiry was not whether a prospective juror opposed the death penalty generally, but wtiedier the juror's religious, moral or philosophical belicf,s would prevenl him or her from following the court's instructions. Id, at 514 n.7 ("[E]ven a jtiror who believes that capital punishment sliottld never be in(licted and who is irrevocably eotnmitted to its abolition could nonethcless subordinate his personal views to what he perceived to be his duty to abide by his oath as ajuror and to obey the laws of the State."). 70 dctermincd that, because the right to an impartial jury was so intrinsic to the right to a fair trial, a harmless error analysis could not remedy such a trial defect. Id. at 668. Rather than employ a harmless error analysis, a reviewing court niust detcrmine "whether [the trial court's] findings are supported by the record," Wainwright v. Witt, 469 U.S. 411434 (1985). Subsequently, in Ross v. bklahoma, 487 U.S. 81 (1988), the Court limited Grav's applicability to instanees in which the trial court erroneously excluded a juror pursuant to Witherspoon. The Ross Court "reject[ed] the notion that the loss of a peremptory challenge constitutcs a violation of the constitutional right to an impartial jury." ld. at 88. Noting that the Court has never held percmptory challenges to be of constitutional significance, the Court held that, "[s]o long as the jary thal sits is impartial, the fact tliat the defendant had to use a peremptory challenge to achieve tliat result docs not mean the Sixth Antendment wa.s violated." Id. The Ohio Suprenie Court relied upon this precedent when reviewing Broom's claim on direct appeal: In his sixth proposition of law, the appellant claitns that he was denied due process in violation of the Sixth and Fourteenth Amendments when his challenge for cause ofajuror was denied by the trial court. T'hc appollant used his fiftlt peremptory challenge to exchidc tltatjuror. Subsequently, both parties passed the jury for cause witli the state then exercising five peremptory challenges and the appellant exercising six peremptory challenges. In this case, the court allowed both the statc and the defendant twelve peremptory challenges. With six challcngcs left, the appellant approved thejury selection. The relevant inquiry in this situation is "`wliether the coniposition ofthc,jury 71 seated was not impartiat. Unless ajuror is challenged tor cause, lte is presumeu to De impattiai. Bven if the court erred in denying the appellant's motion, appellant has not been denied a riglit to an impartial jury, nor has he been deprivcd of his right to due process in this context by being "forced" to use a peremptory challenge. State v. Broom, 533N.L,.2d at 287-88 (emphasis in original). Becausc the Ohio Supreme Court's application of Lray and ROss was not unreasonable, this Court finds Broom's tirst sub-claim is not well-taken. Broom next asscrts that the trial court erred when it refused to provide the jury with a copy of Bonita Callier's identiCcatlon of Broom even thougli they requested this statement during deliberations. Broom speculates that, if the jury had been pemaitted to reviow Callier's statement, and its anibivalence, they may liave rojected her testimony. Respondent asserts this sub-claim is procedurally defaulted. While Broom argues that he did raise this claim as his fifth cause of action during post-conviction reliePproceeding,s, the post-convictiatt court found this claim barred by res ^'ud icata because it could have been raised on direct appeal. State v. Broom, No. CR 196643, slip op., at 14 (Cuyahoga Ct. Common Pleas Apr. 24, 1997). The Court finds this sub-claim is procedurally defaulted and declines to address it on the nierits.31 Broom next alleges that the trial court erred when it failed to sequester the jury for the six-day interim between the conclusion of the guilt pbase atid the commencement of the penalty phaso, an 31 This claim likely would not be well-taken even il'ripe for review; Broom support.i this sub-claint with no authority and no meaningful arguntent. 72 Alleged state law error asually does not suppart a writ of ltaheas corpus. Gstcllo v._ McGuitc, 502 U.S. 62, 67 (1991). A state law violation, howcver, may rise to the level of a due process violation if it creates a serious risk of convicting an innocent person." Neumann v. Jordan, 84 F.3d 985, 987 (7th Cir. 1996). Barring this circumstance, a federal court must defer to the state court's interpretation of its own rules of evidence and procedure. Allen v. Morri s. 845 P.2d 610, 614 (6th Cir. 1988), cert. Jenied, 488 U.S. 1011 (1989). A federal court does not act as an additional court of appeals to review a state coutt's interpretation of its own laws. Id. Whcn addressing this claim on appeal, the Ohio Supreme Court noted its previous decisions holding that a jury need not be sequestered between the guilt and sentencing phases of a capital trial unless it is necessary to avoid jury contamination. 13ocause this holding is an interpretation of Ohio Rev. Code § 2945.33, the Court (inds this to be a state-law issue. Broom neither alleges that his fcdcral due process rights were violatcd by any specific occurrence during this intcrim period, nor does the Court find that the trial court's decision would have altered the scntencing-pbase outcome. Broom also clainis that the trial court should have perniitted de fense counsel to voir dire each juror regarding his or her media exposure during this intcrim period. Respondeat allegcs this sub- claim is procedurally defaulted and Broom offers nothing to counter this allcgation. Thus, the Court 32 In this i nstance, the relevant inquiry would bc whethcr Hroom was properly sontonecd. 73 Broom next contends thatthe trial court improperly permitted the prosecutor to comment that Broom's testimony was not taken under oath. Rcspondent asserts this sub-claim is procedurally defaulted. While Broom raised this issue in his post-conviction petition, the post-conviction court found the cla"tm barred by res 'udicat because it was not raised on direct appeal. State v. $room, No. CR 196643, slip op„ at 14 (Cuyahoga Ct. Conimon Pleas Apr. 24, 1997). Because Broom cannot overcome this proecdural bar, the Court will not address the merits of this sub-claim." Finally, Brootn claims that the trial court iniproporly considered four subjective factors in its independent review of the case pursuant to Ohio Rev. Code § 2929.03(1'):'S (1) the heinousness of 33 Were it to do so, the C:ourt would Snd it unpcrsuasive. The trial court did ask tlic jury, upon their return front this recess, abouL media exposure: 1'lic Court: (TJhc Court wislies to inquiro if any of the members of the jury havc read any articles or heard any television or radio accounts of the proceedings in this matter since you were last liere? T., Vol. III, p. 1909. The jury responded negativcly. Voir dire ol'the jury by defense counsel in this circunistaneo would have been cumulative and an unnecessary expenditure of the trial court's time. As discussed more fiilly in connection with Brootn's thirteonth claini for relief, in which he alleges prosccutorial misconduct for commenting on the fact that his statement was not under oath, this sub-claim would not be well-taken in any event. 3s Ohio Rev. Code § 2929.03(F) states in pertinent part: (F) The coort or the panel of three judges, when it iniposes a sentence ofdeatlt, sliall state in a separate opinion i4s speciPic findings as to the 74 Ultimately, however, the Court must limit its review of this claim as it involves purely matters of state law. The Ohio Suprcme Court detemiined that the trial court's § 2929.03(F) opinion was proper. This Court refrains from interpreting Ohio law in the face of an Ohio Supreme Court opinion on this issue. Sec Allen v. Morris, 845 F.2d 610, 614 (6tlt Cir. 1988), cert. denied, 488 U.S. 1011 (1989) (holding that, when "considering apetition for a writ of haboas corpus, the federal courts must defer to a state court's interpretation of its own rules of evidence and procedure") (intemal quotation marks and citation omitted). Broom's sub-claim and his twelfth claim for relief, generally, is not well-taken. 7. Thirteen_th_Claim far Rclief In his thirteenthclaint Por relief, Broom alleges that proscoutorial misconduct occurred during voir dire and the guilt and penalty phases of trial, The Court lists the nttmerous sub-claims below: (1)'The prosecution's improper instruction to the venire during voir dire as to the verdict necessary to reach thc sentencing phase. existence of any of the niitigating factors set forth in division (B) of section 2929.04 of the Revised Code, thc existence of any other mitigating factors, the aggravating circumstances the offender was found guilty of committing, and the reasons why the aggravating eircun-istances the offender was found guilty of committing wcre sufficient to outweigh the mitigating factors. 75 •jilµ wua rupUU nOLn anally anQ Vaglnally, tnat i5r00n1 natl COnSesSeQ to the killing, and the "othcr acts" evidence wds upheld as proof that Brooni committed the crime. (5) The prosecution utilized Broont's prior rape conviction during trial. (6) The prosecution commcnted that Broom's uns,voni statement was not made under oath, calling for the execution of Brooni based on his prior rape conviction, suggesting that the juty's death sentence was only a recommendation, and misreprescnting the certainty of eyewitness testimony. (7)'1'hc prosecution nrade inflanimatory commentv such as calling Tryna Middleton's killing an "annihilation," advocating the jury disregard the mitit;aticn evidence and "throw it on the scales like a petal.;" suggesting the mitigation evidence was insulting to the jury's intclligcneo, and inviting tbe jury to look at thc crime scene photos while stating "lie does this to little children." (8) The prosecution's failure to provide the defense with matorial exculpatory evidence. Petition at 56-58 7° Respwzdent al legea that, while some of these claims were raised to and addressed by lhe Ohio Supretnc Court as propositions oE' law five, ninc, and fourteen, sub-claim (1) is procedurally defaulted. TheCourtfindsthissub-claimisprocedurallydefaulted bocatlsethoOhioSupremeCourt, after noting this claim was not raised to thc Court ofAppeals, conducted a plahi error analysis. 'I'he Coutt will address Broom's remaining clainis_ `I'lie Court notes that issue (8)-relating to rad matcrial-and parts ofissue (6) were raised and addressed in other claims in the petition. The Court will not readdress thosc argunients here. 76 (quoting Donnelly v. lleC:hristoforo, 416 U.S. 637,642 (1974)). This question niust be answered in light of the totality of the circumstances in the ease. Lundv v. C,atnnbell, 888 F.2d 467, 473 (6th Cir. 1989), cerr. denied, 495 U.S. 950 (1990). The prosecutor's coniments must bc so egregious as to render the trial fundamentally unfair. Fussell v. Morris, 884 F.?d 579 (6th Cir. 1989) (Table), 1989 WL 100857, at *4 (6th Cir. Sept. 1, 1989). The Ohio Supreme Court thoroughly addressed and analyzed Broom's claims ofprosecutorial misconduct on direct appeal: In his tifth, ninth and fourteenth propositions of law appellant allcgcs prosecutorial misconduct. The fifth proposition concerns statements made durin8 voir dire. This proposition was not argued in the court of appeals. FIowcvcr, similar staternents asked during voir dire were held not to constitute error in State v. .lestcr (1987), 32 Ohio St.3d 147, 154, 512 N.E.2d 962, 970, certiorari denied (1988), 484 U.S. 1041, 108 S.Ct. 785, 98 L..Ed.2d 871. Likcwisc, we 'find no plain error Itere. The ninth proposition concetns several conuncnts made in the prosecutor's closing remarks" Generally, parties have been graarted wide latitude in closing 37 The proseeutor's closing remarks contained the following comnients "You saw the photos of that little girl. You will never see Tryna Middleton again." "I4e killed the little girl, and lie probably would havc killed the mother and father. 1-lc kills in the community, and it's going to go on and on and on." "But Tryna Middleton is not alive- Tryna Middleton does not have the most precious thing that wc all have, that is IiPe and the hopes of somcday being a woman and having a family and all those things that 77 C State v_ Srnith (1984), 14 Ohio St.3d 13, i 4 pBR 317, 470N.B.2d 883 (revcrstng because it was not clear beyond a reasonable doubt that, absent the prosecutor's comnzents, thc jury would have found defendant guilty). Appellant also contends in his fourteenth proposition of law that five of the prosecutor's conunents during the mitigation phase denied him a Fair trial." one gocs through. And because of him she can't have that." "We had the FBI cooperating to their fullest. Why? Because Ntiss [sic ] Middleton [the decedent's mother] had been on the staff for 19 years. Firstly, obviously, they had the jurisdiction to enter the case. But beyond that, out of their knowiedge of her and thc kind of person she was, and out of their love if you will for her, they came into the case and comniittod all that tliey liad at their disposal and that is siguificant." (Footnote in die original). Some of the comments coniplained of in the Pourteenth proposition of law are: (1) "He served nine years for being involvccl with a little girl." (2) "In the light of that, the man took the stand and said in au unsworn statement, and as you were told, tlicrc was no opportunity to cross-examine him in his tinswoni slatement " (3) The prosccutor, over abjection, infortnod the jury tl,at the coutt would impose the death penalty, if the jury would recomniend it. (4) "Do not be intimidatcd, do not think that this is death or life and that is all there is. Tbink of Tryna Middleton, tlvnk of 'I'ryna Middleton's parents." (5) "You heard him tcll you he was involvad with a litttc girl. He said he scrved nine years. Now, he is telling you `Send me back for 20 years, so I can come back and do it again.'"' 78 JG-f-JLJ, -fOY lY.L'.6u 1 VV, 191, GCCLlorari UCr1ICU (172f0),''P/O U.r7. 11 I8, Lt)O J.l.l. 2905, 90 L.Ed.2d 991. See, also, .lenkins, supra, 15 Ohio St.3d at 217, 15 OBR at 356-357, 473 N.E.2d at 309-310. However, in the recent case ofState v. DePew (1988), 38 Ohio St.3d 275,528 N.L;.2d 542, this court limited the scope of the prosecutor's relnarks concerning the unsworn statement of a dofendant that is permitted at the mitigation trial pursuant to R.C. 2929.03(D)(1). Such commcnts should be limited to notingthat "the defendant's statentent has not been madc under oath or aftirmation * * * in contrast to the testimony of all other witnesses." DePew, supra, at 285, 528 N.E.2d at 554. The conunents at issue, like those in DePew, excecd this narroweci scope. However, we beieve that the totality of the prosecutor's remarks is harniless error in light nf tlie overwhelming nature of the aggravating circumstances compared to the mitigition factors. Appellatlt's fifth, ninth and fourteenth propositions of law are overruled. S>vte v. Broom, 533 N.E.2d at 693-94. 'I'he Ohio Suprcme Court's analysis is not an unreasonable application of Darden and Donnelly. As it noted, while some of the coninieats were certainly undosirablc, they were not frcqucnt or flagrant enough to undcmiine a court's confidenec in the outcome ol'the trial. "f'hus, Broom's thirteenth claim for reliel' is not well-taken. 8. Eighteenth Claim for Relief Brcorn's eighteenth claini is that his rights to due process and a fair trial were violated when the trial court dcnicd dcfcnso counsel's request for additional time to prepare for trial. This olailn was raised ou direct appeal, and respondent does not allegc that it is proocdurally defaulted. Therefore, (Footnote in the original). 79 T'he matter ofeontinuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for morc: time that violates due process even il'the party fails to offer evidence or is compelled to defend without counsel. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiablo request for delay can render the right to defend with counsel an empty formality. Thorc are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer ntust be found in the circumstances present in every case, particularly in the reasons prescnted to the trial judge at the time the request is denied, id. In this case, Broom's original trial was set to occur on July 8, 1985. When Broom's retained counsel requested, and the trial court granted, permission to withdraw, on July 25, 1985, the trial court continued the trial, first until mid-August and, ultiniately, to September 16, 1985. On Scptember 5, 1985, Broom's counsel requested an additional continuance, citing forthe first time that thc upcoming Jewish holidays would affect one o€Broom's trial eounsel and, potentially, the jury pool. Noting that the Jewish holidays would not affcct Broom's two primary trial counsel and that it would make accommodations for any Jewish jurors, the trial court found this argununt unpersuasive. While defense counsel also argued that they were having difficulty obtaining ntitigation rccords and establishing a relationship with the defendant, the trial court still denied the motion. The Obio Supreme Court suinmarily found that the trial court's decision comported with IJngar. Observing that the record was silent on whether defense counsel was unable to obtain 80 application of Unsar. As the ilni:ar Court stated, ". .. otherjudSes in other courts ntight wcll grant a continuance in these circumstances. But the fact that something is arguable does not make it unconstitutional." U^^ar, 376 U.S. at 591. Broom was indicted on January 8, 1985. 'I'he original trial date of July 8, 1985, thus, gave Broom's original counsel six tnonths to prepare. Whon that counsel withdrew, the Court sua s onte extended the trial date by an additional two months, presumably proceeding on tltc bolief that, upon transfer ofthc file, efforts made by the original trial counsel would not bc completely lost. While Broom's current counsel now argues that Broom's original trial counsel did little before July of 1985 to prcpare for trial, especially for the mitigation phase of trial, it does not appear that that fact was made particularly clear to the trial court whcn the continuanco was reyuested, In addition, as the tcstimony during the evidentiary hearing made clear, it was Brooni's own failure to cooperate with cotuIsel that ultimately led to his first counsel's motion to withdraw and to the request by his new counsel for yet additional time to prepare in early September. The trial court is not required to grant multiple trial continuances where the need for those continuances is prompted solely by the dcfcndant's own refusal to coopcrate with counsel's trial preparation cffiIrts. Brooni has failed, moreover, in his Petition, Traverse, and during the evidentiary heariug, to speciGcally explain how he was prejudiced by the tinic liniitations iniposed. Although habeas counset argued at the hearing that trial counscl was unprepareci for the mitigation phase of trial, the 81 had indicated to us that we could have until Wednesday of next week to take carc of this aspect of the case, that being October 9, 1985. The court: Mr. Glivcr, are you indicating to the Court, that it is impossible for you to be here before that time? Defense counsel: Yes, it is, Judge. We have witnesses that we will need to interview and just generally nced to collect our thoughts for the presentation at that time. We would riced every bit of that time, Judge. The court: Okay, line. T., V. III, p. 1867. In such circumstances, Broom's cightecnth claim for relief is not well-taken. 9_Nineteen_th Claim for Relief Brooni's nineteenth claim for relief is that the trial court failed to exclude the show-up identitication made by Melinda and.ianct Grissom at the hospital where Mclinda had gone to receive treatment for her injurod leg. Broom turther argues that, because all subsequent identifications resulted from the Grissom's initial identification of Broom, those identifications should also have been excluded. The respondent does not allege this claina is procedurally defaultcd as Broom raised it to the Ohio Supreme Court as his tliird and tenth propositions of law. Tltus, the Court wifl revicw the mcrits of this claim. 82 suggestive procedure utilized in the ideotification. Id. Factors to consider in deterniining wltethcr the identiCcation was impermissibly suggestive are: (1) the witness's opportunity to view; (2) the degree of attention; (3) the accuracy of the description; (4) the witness's level of cettainty; and (5) the time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (ciringRi"yer-,, 409 U.S. at 199-200). In atialyzing this claim, the Ohio Supreme Court dctennined: We a8ree that tite showup ol'tlie defendant at the hospital, wherc he was identified by tltc Grissoms, was both unnect:.ssary and suggestive. "The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned " Stovall v. ihLnno (1967), 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199. Thereforc, our concern with the reliability of thc identificalion, deterrence of police misconduct, and the elTect on tttc administration of.justico requires us to examine the totality of thc circumstances to determine whether the confrontation was so suggestive that there was "a very substantial iikeliliood of irreparable misidentification." Neil v. Aigrters (1972), 409 U.S. 188, 189, 93 S.C:t. 375, 381, 34 L.Ed.2d 401 (quoting Simnrons v. [Jnited Stgtes [1968], 390 U.S. 377, 384, 88 S.Ct. 375, 381, 34 L.Bd.2d 1247). See generall Manson v. Rratliwnite (1977), 432 U.S. 98, 111- 113, 97 S.Ct. 2243, 2251-2252, 53 L.Ed.2d 140. The lactors to consider are: (1) the opportunity ol'the witness to view tlte criminal at the tinie ol'the critne, (2) the witness' degree of attention, (3) the accuracy of the witness' prior description of the criminal, (4) the levcl oi' certainty demonstrated by the witness at the confrontation, and (5) the lengtli of timo between the crime and the confrontation. Id. at 114, 97 S.Ct. at 2253. All five factors were favorable in this case. Both Grissonts had aniple titne to view appellant, and their attention was completely focused as the mothor triod to rescue her daughter. 'rhe descriptions given to the police prior to the confrontation matclied the appellant. Finally, the identi tication was emphatically positive, and it oecurrcd very shortly after the erime. 83 iD. Twentieth Claim for Relief In this claim for relief, Broont claims that his Sixth Amendment right to counsel was violated because hc was not represented by counsel during the lineups in which Bonita Callier and Tatnmy Sims identified him as their assailant. While Broom acknowledges that he has no prc-indicttnent D Although the Court's inquiry ends with the determination that the Ohio Supreme Court properly applied Suprerae Court precedent, the Court addresses Broom's additional arguments. First, Broom asserts that the Mason standards, w'hile adequate at the tinic the opinion was issued in 1977. are no longer so because of wliat is currently known about the unreliability of cyewitness testimony. While it is true that niucli has been written on the reliability of cyewitness identifications, the Court finds nothing in the materials upon whicli Broom relies to support the conclusion that the landscape on this issue ]tas changed so dramatically as to justify a wholesale change in the law. This Court is bound by Supreme Court precedent; it is not free to ignore clearly established preccdent simply because ecrtnin comtnentators or scientists-even fairly articulate ones-disagree with it. Broom has pointed to no other court that has rejected Bi crs whole:sale. This Court is not persuaded tltat it should do so here. Second, Broom argucs that, even pursuant to the Riecrs factors, the admission ofthe Grissoms's testimony should have been barred as Melinda Grissom testified she did not sec her assailant because she was hit in the eye, Janet Grissont was outside of the car and, therefore, could not clearly view the assailant, and because neither Cirissom provided police with a description ol'the assailant boforc the show-up. Upon reviewing the portions of the trial transcripts to which Broom cites in ltis Petition, the Court finds that Broom overstates his case. First, while Melinda Grissom did testify that sltc could not see her assailant once she was lut in the eye, she also testified that prior to that injnryshe "got a good look at him: " T., Vol. il, p. 1362. Moreover, while Broom notcs that Janet Grissom testificd that she was outside the car during the entire event, she, too, testifiod that she could see the assailant for the entiro time in which slle was holdinp, onto the car door, Id. at 1347. Finally, the Ohio Supreme Court noted in its opinion that the Grissoms had provided the police with a vcry accurate description of the assailant prior to the showup, lending further support to the credibility of their identification. 84 law to the Ohio Supreme Cotut and, thus, is not defaulted. The Court will address this claint on the merits. In Kirby v. lllinois, 406 U.S. 682 (1972), the Supreme Courtreaffirmed that "a person's Sixth and Fourteenth Amendment right to counsel attachcs only at or after the time that adversary judicial proceedings have been initiated against hitn" Id. at 688. In that case, police arrested two robbery suspects when the suspects were found in posscssion ofapparently stolen property; the suspects were taken into police custody. Id. at 684. When police located and arranged f'or the alleged victim to conie to the police station, the victim identified the suspects upon viewing them. Id. at 685. Neither suspect, at that time, had legal representation nor had they been adviscd of their right to the presence of counsel. Id. The victint subsequcntly identified thc defendants during trial. Id. at 685-86. The Courtin Kirby held that the trial court's decision to admit thc idontification testimony did not violate the defendants' Sixth Amendtnent right to counsel, because no criininal proceedings had bcen initiated against them wlien the showup occurred.°D Noting that the instant wlien the state initiates criminal proceedings is the onset of the criminal adversarial process, ilte Court detertnined 40 The Court distinguished its holding from thc rights articulated in Miranda v. Arizona, 384 U.S. 436 (1966). 'I'lle Miranda decision, the Court reasoned, "was based exciusively upon the Piftlt and Fourteenth Amendment privilege against compulsory self-incrimination, upon the theory that the custodial interrogation is inherently cocrcivc." Kirh , 406 U.S. at 688. Alternatively, the Kiriw Court holding was based on the Sixth and Fourteenth Amendrncnt right to counsel. 85 [is] confronted, just as at trial, by the procedural systeni, or by his expert adversary, or by both, in a situation where the results of the confrontation miglit well settle the accused's fate") (internal citations and quotation marks omitted). In analyzing this claini, tite Ohio Suprenic Court, aCter reciting thc above United States Supreme Court precedont, determined that adversarial proccedings regarding the'rryna Middleton murder ]tad not bccn initiated against Broont during the Callier and Sims identifications. Rather, the court determined, "[t]he pre-indictment lineup was merely investigative, in contrast to a post- indictment lineup which is used as a means of preparing an identification witness to testify at trial." Statc v. Ciroom, 533 N.E.2d at 700. '1'his Court finds that the Ohio Supreme Court's interpretation oPKirbv and Gauvcia is not an unreasonable one. While Broom atiempts to persuade this Court that the Ohio Supreme Court's determination of this clainx does not address the concems raised in United States v. Wadc, 388 U.S_ 218 (1967)7 the Court finds that case inapposite. In Wado, the Cotirt found that the trial court should have excluded trial identification tes[imony when that testimony was bascd on the witness's prior identif cati on during a post-indictment, yet un-counseled, lineup. The Court deterntined that the post- indictment lineup was a critical stage, requiring legal representation, because "the presencc ofcounsel ... operates to assure that tlte accused's interests will be protected consistently with our adversary theory of criminal prosccution." Id. at 227. Becatise of the factual distinctions presented in Wadc, 86 Broom's twenty-frst ground for rclief is that the police who quostioned him whi le in custody violated his rights pursuant to Miranda v. Arizpna, 384 U.S. 436 ( 1966), because the statements Broom made ivere the product of cocrcion. Specifically, Broom claims the interrogating detectives failed to infomx hini ofhis Miranda right to counsel and that, althouglt he had retained counsel at the time for the Grissom charge, he was not perniittcd to aontact his lawyer even a@or requesting the opportunity to do so. Finally, Broom aiteges that the interrogatinp, detectives deprived him of dinner and questioned him for several hours late in the evening and early into the next motning. Broom raised this claim as his fourth proposition of law to the Ohio Supreme Court. Thus, the Court will address this claim on the mcrits. Altliough Miranda requires that custodial investigations n,ay not take place without inforn,ing the accused of his right to retain counsel beforc interrogation, the acctiscd may waive thosc rights if that waiver is voluntary, knowing, and intolligent. North Carolina v. liutler, 441 U.S. 369, 374 (1979)- "[T]hc question oFwaivcr must be detertnincd on `the particular facts and circumstances surrounding that case, including the background, experience, and conduct oftho aocused."' ld. at 374-75 (quoti)?g )ohnson v. 7.,erbst, 3h4 U.S. 458, 464 (1938)). While waiver ofthe right to eounsel nI The Court notes that part ol'Broom's twentieth claim is that he svas indicted at the tinie of the Callier and Sims identifications-for the Grissom attempted abduction. While thc Court finds this pohit interesting, Broom supplies no authority that indicates it is lcgally significant. it also appears, moreover, that it is not accurate, sec the Ohio Supretne Court's discussion of the sequence of events at p. 84, irrfra. 87 Broom had voluntarily waived his rigltt to counsel. That court stated: Appellant argues in his fourth proposition of law that he was not advised of his Miranda rights, and that all statements he may have made were involuntary and the result of coercion. It is well-established that "the prosecution may not use statentents, whether exculpatory or inculpatory, stetnming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards cffcctive to secure the privilege against self=incrimination." Miranda v. Arizona (1966), 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694. Appellantbad been arrested and was in custody for the Grissom incidcnt. Appellant testified at the suppression hcaring that at the tinte of tlu December 17, 1984 questioning about the Middleton incident, counsel had been retaincd to represent him in the Grissom case. However, the record reveals that appellant's fathor testified that he did not retain any counsel until appellant's first eourt appearance in January. On Deecmber 17, adversarial procecdings had not commeoced against the appellant with respect to the Grissom or Middleton incidents. Accordingly, no Sixth Amendment right to couttsel had attached for those crimes. Kirbyv. lflinois (1972), 406 U.S. 682, 92 S.Ct 1877, 32 I,.Ed.2d 411. However, since appellant was in custody, his Fifth Antcndntent right to counsel to aid against self=incrintination had attaclied with respect to both crinios. Edwards v. Arizona (1981), 451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378. Our inquiry then is limited to whether appellant was given his Miranda warnings and whcther he waived his Fifth Amendment rights with "a full awareness botli of the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine (1986), 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.13d.2d410. The state need only prove waiver by a preponderance of the evidcnce. Colorado v. Connell (1986), 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473. There was conflicting tcstimony at tlie suppression hearing. Detective Svekric testified that on Dcccmbcr 17, 1984, prior to interrogation, appcllant was advised of his rights, althouglt police did not obtain awritten waiver. The appellant was removed 88 Ot tlus at tne tIme. Uetectrve Sveknc tostttiea ttaat ne mo not tcnow wnetner appettartt had eaten. Appellant also claims that lie was not read bis Mirinda rights that night. although lie did adinit that he had been read his rights when lie was first arrested. He claims he was refused an attorney when ]te asked for one, and was abusively questioned by multiple partics until 4:45 a.m. The appellant first n,entioncd his sister and stated that they were not close. It is undisputed that appellant's father was called and came, and talked with appellant. 'fhere is nothittg in the record to indicate that the trial court abused its discretion in accepting tlte testimony of Detective Svckric rather than that of the appellant wlto contradicted himsel f during his testimony. Under the totality of the circumstances test set fortlt in State v. Edwards (1976), 49 Ohio St.2d 31, 3 0.O.3d 18, 358 N.E.2d 1051, paragraph two of the syllabus, vacafted in part on other grorrnds (1978), 438 U.S. 911, 98 S.Ct. 3147, 57 L.&d_2d 1155, appellant's statements were admissible. Thus, we re.}ect this assignment of error. State v. Broom, 533 N.E.2d at 692-93. In his Petition, Brontn urges this Court to reconsider the facts. As stated above, however, the Court, pursuant to the AEDPA, must presume that the st^te court finding of fact is correct, unless the petitioner can rebut this presumption by clear and convincing evidenco. 28 U.S.C. § 2254(e)(1). "This presumption of correctness applies cvcn to factual fndings made by a state court of appeals based on the state trial record" Mitzel v. Taze, 267 F.3d 524, 530 (6th Cir. 2001) (citing Sumner v. Mata, 449 U.S. 539, 546-47 (1981)). Broom's briel's merely repeat the facts presented to the trial court during the suppression hearing. Without inore evidence, the Court must find that Broom has failed to surmount the presumption ofcorrcctness of the state court's factual finditigs. Therefore, his twenty-first claim for relief is without merit. 89 refused to allow him discovery during post-conviction relief procccdinbs or to stay the proceeding pending the results of his FQIA and Ohio Public Records Act requests. Respondent alleges that this claim is procedurally defaulted as Broom failcd to raise it in any state-court proceeding. 'lltus, the Court will not address this claim."= 14. Twentv-Ninth Claim far Relief Broom alleges in claim twenty-nine that numerous cumulative errors occurring at botli the guilt and penalty phases of trial should conipel this Court to grant the writ. IIroom raised this claim in post-conviction proceedings as causes of action twenty-two and twcnty-thtee and respondent does not allege that this presentcd any procedural deFault. Thus, the Court wil) address the merits of the claim. Accuniulated errors are not tantamount to reversible crror "if the prosecution can prove 42 This claim is without merit in any event. Broom fails to specify a ground on which, if proven, this Court could grant reliel: To grant habeas relief, a petitioner must allege some violation of a federal constitutional or legal right. 28 U.S.C. § 2254. Because Broom possesses no constitutional right to a post-conviction Yeview, any alleged error occurring during those proceedings does not rise to the level of a federal constitutional violation. Tlierefore, this claini has no merit. The Court notes, moreover, that Broom's counsel had infirct obtained all relevant discovery through the public records act proccedings several years before his post-conviction petition was denied. To the extent that Broont rcfers this Court to constituti onal violations relating to other claims specified in his pctition, the Court will address those arguments whcn it addresses Broom's otlier claims for rclief. 90 twenty-ninth claim is not well-taken. 15.'1'hirticth Clalm for Relief Broom's thirtieth claim for relief is that he is actually innocent of the crimes alleged, a claim that he says should effect this Court's opinion in two ways. First, Broom asserts a"free-standing" actual innocence claim-that asserting clear proofofhis innocencc should e»title him to issuance oP the writ, regardless ofwhcther any eonstitutional error infected his trial. Second, Broom asserts that his actual innocence should serve as a "gateway" to excusing any procedurally defaultcd etainis, thereby requiring a niore cxacting review of the fairncss of the trial in which he was convicted and scntenced to death. The respondent alleges this claim is procedurally defaulted as it was not raised in the state cottrts at any,juncture. This Court agrees. Were the Court to reviow the claim, moreovar, the Court would readily reject it. 'l"he first threshold Broom must cross with respect to his "free standing" actual innoccneo claim is to convince this Court that such.a claim exists. In his efPort to do so, Broom cites Herrera v. Collins, 506 U.S. 390 (1993). In that case, the petitioner allcged, as Broom at least initially did, that newly acquired evidence would exonerate him of the crime of whfch he was convicted. The petitioner argued that, because lie was innocent, his execution would ol7end the Eighth and Fourteenth Amendments ol'the Constitution. id. at 398. The Court noted that "a claim of 'actual innocence' is not itself a 91 extraordinarily high: '(d. at 417. Finding that Herrera did not meet this abstract standard, the Court denied his actual itmocence claim. In the wake of 1-Ierrera, Circuit courts, unsurprisingly, liave divided on whether to recognize a habeas petitioner's "free-standing" actual innocence claitn. in Carrigcr v . Stewart, 132 F.3d 463 (9th Cir. 1997), cerl. denied, 523 U.S. 1133 ( 1998), i"or example, the Ninth Circuit hcld that Herrera did recognize this claim. Adopting the L4errera dissent's standard for proving actual innocence, the Ninth Circuit determined that a habeas petitioner "must go beyond demonstrating doubt about his guilt, and must affirtnatively prove that he is probably innocent." id. at 476 (citing I•lerrora, 506 U.S. at 442-44). Other circuits, however, have determined that the Herrera Court never meant to hold that free-standing aetual innocence claims were cognizable on habeas review, and morely assumed that the exccution oF an innocent person would be unconstitutional for argument's sake. Sc:e, c,. ^,., Sellersv. Ward, 1351^.3d 1333, 1339 (1 Oth Cir. 1998), cert. denied, 525 L1.S. 1024 ( 1998) (holdinS that a free-standing actual innocence claim is not a basis for obtaining a writ of liabeas corpus); Lucas v..tohnson, 132 F.3d 1069, 1074 (5t'h Cir. 1998) (holding that the language tltroughout the Herrera opinion denying habeas petitioner's right to free-standing actual innocence claim is controlling), While the Sixth Circuit has yet to provide definitive guidance on whether a frcx-standing actual innocenec claim is cognizable, it has noted that "[c llvms oPactual itutocence based on newly discovered evidence have never bccn held to state a ground for federal habeas relief absent an 92 exists, the petitioner did not satisfy that "extraordinarily high" standard for it):13 More recently, the Sixth Circuit, again without expressly accepting or rejecting a free-standing claim of actual innocence, detertniricd that a habeas petitioner failed to nieet this standard. In in re Brd, 269 P.3d 544, 547-48 (6th Cir. 2001), the coun concluded that the petitioner's evidence intending to prove his actual innoccncc "fiil[ed] to meet thc standard set forth in T•ierrera v. Cot ins." (citation omitted). plerc too, the Court need not dctormine whether a free-stnnding actual innocenco claim exists, because Broom falfs woefully short of t(tc T-IcrrcW standard, Indeed, Broom's frce-standing claim of actual innocence was essentially gutted when the Court permitted DNA testing durint; the discovety phase of this habeas proceeding. The results of this testing most definitely did not prove that Broom is "probably innocent." On that contrary, the test results dotennined that: ". .. 73room and the killer share DNA statistics that occur in one of 3.2 million Afi•icatt-Americans ....[Alecording to the United States Census Bureau tftcre werc 235,405 African-Americans in Cleveland as of 1992. As of 1990, there were 1,154,826 African-Atnericans living in Obio and 29,986,060 in the entire country. Thus, Broom's [DNA] profile statisticalfy eliminates otlier African-Americans in Clcvcland and Ohio.... Broom sltares a genetic profile with eiglit or nine other African-Aniericans in the country. 43 One judge on this Court has dctermined that Nerrera bat-i•ed frce-sta»ding actual innocence claims. Spirko v. Andcrson, No. 3:95CV7209, 2000 WL 1278383, at *19 (N.D. Ohio July 11, 2000) (Carr, J.). In that oase, the court opined that a habeas court's sole responsibility lies in ensuring the state afforded the petitioner a constitutionally sound trial, not to correct errors of fact. Id, at *20. 93 Apparently recognizing that the DNA test results wcre essentially fatal to his claini of innocence,Broom'seounselsaughttorevampthisclaisnduringtheevidentiaryliearing. Specifically, counsel contended that, even if Broont wcrc unable to establish that there was a probability that he was innocent of the murder of Tryna Middleton, he sliould still be entitled to claini that he was innacent of specifications that made that niurder charge death-eligible--i.e., kiditiapping and ralx.. Counsel apparently theorizesthat, based on the r.ast Cleveland Police Department investigation files.. Broom should bc entitled to argue that any sexual encounter between the defendant and the victini was consensual and tltat, accordingly, no rapc or kidnapping occurred, rendering any subsequent murder aggravated murder and noi capital niurder. Because there was ovcrwhelming evidence indicating that 7'ryna Middleton was ti>rcibly abducted, the Court finds that Broom can not nieet the extraordinarily higli standard Hen•era would rcquirc to sustain such a contontion. Thus, even if a free-standing claim of actual innocence exists and even if the Court were prepared to allow Broom to completcly refashion that claim at tiiis late date, the Court would find Broom unable to sustain such a claim. 13roont also fails to satisfy the stwtdard to utilize actual innocence as a gateway to excuse his proccdurai defaults, Schluo v. Dcla, 513 U. S. 298, 314-15 (1995). In Schlup, the Supreme Court doterntined that tlta petitioner in that case should have been afforded a merit review of his claims after evidence stiggested that he had been the victirn ofmistaken identity in the murder of a prison 94 resulted in tlie conviction of one who is actually innoeent." Id. at 327 (quoting Carrier, 477 U.S. at 496). To constitute the necessary "probability," the petitioner must show "that it is more likely than not that no reasonablo,juror would have convieted him in the light of the new evidence." Id. 'Fhe Court in Schluo described thc specific analysis the district oourt must etuploy when faced with a petitioner's allegation of actual innocence: it is not tlie district court's independent judgment as to whether rcasonablc doubt exists that the standard addresses; rather tho standard reyuires the district court to make a probabilistic determination about what rcasonable, properly instructed jurors would do. Thus, a petitioner does not nieet the threshold requirement unless he persuades the district court tltat, in light of the new cvidcnce, no juror, acting rcasonably, would have voted to tind him guilty beyond a reasonable doubt. id. at 329. Significantly, the Supreme Court in Schlu reaffitmed an earlier finding that whcrc a petitioner claims lie is actually inttocent ofthe death penalty, as opposed to the underlying crime, a nzorc rigorous standard applies, astandard in wltiah a petitioner "must show by clear and convincing evidence that but forconstitutional error, no reasonablc. juror would ltavc foundthe petitioner eligible for the death penalty." id. 513 U.S. at 323 (ciring Sawxer v_ Whitlev, 505 U.S. 333 (1992)) (internal quotation ntarks and citations omitted). The Court finds that ncitltcr the Schlun nor Sa er standards have been satisfied ltere. As noted above, there is no meaningful evidencc supporting Broom's claim of innocenee with respect 95 be offered to rebut those conclusions is insufficient. I-Icre, even if the jury had all of the East Cleveland Police Department records before it, the Court finds that the evidence oFkidnapping and rape would still greatly outweigh evidence oftheir absence. Accordingly, the Court finds that Broom has failed to establisli by clcar amd convincing evidencc; that "no reasonable jtuor ivould have found [him] eligible for the death penalty." B. Constitutional Violations Rclating ta the Guilt Phrtsc and Conviction 1. First and Second Claims for Relicf In his first and second claims, Brooni alleges that the trial court denied him the ability to meaningfully defend liimself when it denied two motions to obtain expert assistance. Specifically, the trial court denied Broom's 3uotion for an eyewitness identiffcation expert and a forensic pathologist. If declared indigent, a criminal defendant possesses the right to obtain a competent psychiatrist i f sanity at the tiine the crime was conimitted is at issue. Ake v. Oklahoma, 470 U S. 68 (1985). `I'he Supreme Court has escliewed extending this right to non-psychiatric experts. In Caldwelt v. Mississippi, 472 U.S. 320 (1985), the Court detcrmined that the petitioner in that case was not entitled to receive state-funded services from various expeils without a prior showing that such testinzony related to a signihcant issue at trial. The Court stated: 96 ot aue proccss . . . . id. at 323 n.l (citations aad internal quotation marks omittcd). Mindful of this law, the Court will address Brooni's first and sccond claims. a. First Claim for Relief in his first claini, Broom complains that the trial judge improperly denied hint an identification expert to challcnge the eyewitness identification testimony provided by Janet and Mclinda Grissom, Bonita Callicr, and Tammy Sin,s during trial. Brooni asserts that the significance ofthe trial judge's decision lies in the fact that the witness identification was what lead to his initial prosecution. Punher, Broom alleges that undermining the jury's confidence in these witnesses's credibility may liave aided thc,jurors in tinding residual doubt ttiat would liavc diminished their likelihood of sentencing hini to death. The respondent does aot argue that this claim is procedurally defaulted as it was raised and addressed by the Ohio Supreme Courl as the second proposition of law on direct appeal. Thc:rcfore, ihc Court will address the claim on its merits. When analyzing this claim, the Oliio Supretne Court determined: In his second assil;nmcnt of error, appellant, an indigent, contends that the trial court's refusal to appoint an eyewitness identification expert to aid his defense constituted a denial of due proccss. In addition, appellant claiins the trial court misapplied the "rea,tionably necessary" standard in R.C. 2929.024, which rcquires thc court to order the state to pay for "reasonably necessary" services. The United States Suprenic Court in Ake v. Oklahoma (1985), 470 U.S. 68, 97 Y/L V.+1• 4t1LL, l, 4V.) iA 4VJCrLVJ ( , 111. l. "Ake and .aldweli taken together hold that a def endatit must show more than a mere possibility of assistance from an expert. Rather, a defendant must show a reasonable probability that an expert would aid in liis defense, attd that denial of expert assistance would result in an unfair trial." Little v. Armontrout (C.A. 8, 1987), 835 F,2d 1240,1244. This court's interpretation of the standard to be used under R.C. 2929.024 comports with the above constitutional standard. In State v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph four of the syllabus, this court stated: "R.C.2929.024 requires the courtto provide an indigent defendant with expert assistance whenever, in the sound discretion of the court, the services are reasonably noccssary for the proper representation of a defendant charged with aggravated murdcr. The factors to consider are: (1) the vaiue ol'the expcrt assistance to the defendant's propcr representation at either the guilt or sentcncing phase of an aggravated murder trial; and (2) the availability of alternative devices that would fltltitl the satne fuuctions as the expert assistance sought." (Emphasis added.) Expert testimony on eyewitncss idcntification may have been adntissible. In Statc v. Buc:ll (1986), 22 Ohio St.3d 124, 131, 22 OBR 203, 209, 489 N.E.2d 795, 803, certiorari denied (1986), 479 U.S. 871,107 S.Ct.240, 93 L.Ed.2d 165, this court stated: "[r]hc expert testimony of an experimcntat psychologist concerning the variables or factors tliat may impair the accuracy ofa lypical eyewitness identification is adtnissihle under Evid.R. 702." (Emphasis sic.) 1-lowevcr, the opinion of an experimental psychologist is not admissible regarding the credibility of a particular witness unless there is some special idenliliable necd for the testimony sueh as a physical or mental impairnicnt which would atlect the witness' ability to observe or recall dctails. ld, at I'n. 6. Where no such need is shown, we will not find an abuse of discretion by thc trial court in denying the appointment of an expert on eyewitness identification pursuant to R.C. 2929,024, unless the defendant can make a slrowing of demonstrable prc}udicc, sttoh as the need to impeach an eyewitness with physical or mental irnpainnent. See Ake, Caldwell, and ittle, s:cprc:; [Jnitcd States v. Smitlr (C.A. 6,1984), 736 F.2d 1103 (while evidence from an eyewitness expert shotild have been admitted, rofiisal to do so was harmless error in light of other physical evidence and the three independent eyewitness identifications from lincups, whicli rebutted defendant's alibi). Appellant has not madc the particularized sltowing that is ncccssary under the case law discussed above and his sccond proposition of law is denied. Statc v. Hcnder.ton (1988), 39 Ohio St.3d 24, 528 N.1:.2d 1237. 98 interpreted by Ake and Caldwell, requires nothing nzore. Accordingly, Broom's first claim for relief is not well-taken. b. Second Claiin for Relief in his second claitn for relief, Broom allcges that the trial court improperly denied his motion seeking a forcnsic pathologist. This cxpert, Brooni concludes, would have aided in his defetue by: (1) determining that the victim, Tryna Middleton, had sexual intercourse with two different men prior to her murdcr; (2) noting that therc was no evidence of forced sexual contact; and, (3) testifying that the semen saniples found on the victim were so contan»nated that they should have been rondered invalid. Respondent claims this claim is procedurally defaultcd bccaust: Broom failed to raise it on dircct appcal. Broom raised this claim as his third and seventh causes ofaction in his posl-conviction relief petition. The post-conviction court determined ii was barmd by res 'ud^icata and declined to address the claint. State v. l3room, No. CR 196643, slip op., at 14 (Ohio Ct. Common Pleas Apr. 24, 1997). The Cotu't finds this claim is procodurally defaulted. Broom alleges he can overconie any finding of procedural dcfault by asserling ineffcctive assistance of appellate counsel as cause. As noted below, however, this assertion is unavailable to Broont. Consequently, the Court will not 99 bccausc tfic trial court, as stated in his first and second claims for relief, denied counsel's inotion for an identi lication and forensic pathologist experts. Broom asserts that the trial court'sdecision to deny these motions amounted to state-induecd ineffective assistance of trial counsel. Respondent asserts that this claim is procedurally dofaulted as it relates to the appointment of a forensic pathologist. Broom attempts to excuse this default by claiming that the prosecution's violations of Brady v. Maryland, 373 U.S. 83 ( 1963), addressed suprcr in Broont's sixth ciaini for relief, should serve as cause to excuse this default. Broom asserts that, bocause of the state's Brad violations, this issuc escaped appellate counsel's review, obscuring theirability to identify this claim as a viable one. The Court finds this argutnent unpersuasive because, as stated in Broont's sixth claim for relief. Broom could have raised this issue in a scoond post-conviction pctition or amended his first post-conviction petition oncc ho received the documents related to his public records requests." Thus, the portion 44 The Court notes, ntorcovcr, that this claim is without merit in any event. Although Brootn notes specific instances in whieh he believes the testimony of a f'orensic pathologist miglit have aided his defense, he fails to dcmonstrate how such a denial was tantamount to a constitutional violation in the wake of Ake and Caldwcll. Moreover, givcn the results of the DNA testing done during the cottrsc of this habeas proceeding, it appears that any trial error that occurred in denying Broom's request for a forensic patholobist was hatanless. as The Court presumes that the B. radv evidencc to which Broom refers are the coroner's reports. The Coutt finds, ltowover, that it is niore likely tlian not that Broom's counsel reviewed these reports givett Bntsnahan's testimony that titey visited the coroner's office, talked witli individuals working in trace evidence and blooci analysis, and received a copy ofthc coroner's verdict and autopsy protocol. T'hc Court also finds no 100 an ineffective assistance of counsel claini., a petitioner must satisfy the two-prong test for set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, the petationer must demonstrate that counsel's crrors were so egregious that "counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." ld. Second, the petitioner must show that he or she was prejudiced by counsel's errors. "This requires showing that counscl's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." ld. A petitioner must point to specific errors in counsel's performance. United States v. Cronic, 46611.S. 648, 666 (1984). T'hereaftcr, a reviewing court must subject the allegations to rigorous scrutiny, determining "whether, in light of all circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." 'lrickland, 466 U.S. at 690. A reviewing court musl strongly presume that counsel's conduct was reasonablo and nrit;ht bc part of a trial strategy. ld. at 689. 'C'o ascertain whether counsel's perforinanee prejudiced a criminal proceeding, a reviewing court does not spcculate wltether a different strategy might have been more successful, but a courtrnust "focus[] on thc question whethercounsel's deficiont performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). reason to bel ieve that thosc records would not have been part of tlie file disclosed to Broom's counsel by the prosocutor. 101 perseverance in requesting this expert bclics any claim of unrcasonable behavior. Moreover, for reasons stated in clainis one and two above, Brooni carmot establish that he was prejudiced by any alleged inaetion on counsel's p.art. Accordingly, the Court finds this claim is not well-taken. 3. Eighth Claim for RelieF Broom's cighth claim for rclief is that there was insufficient evidcnce to convict hitn of capital murder. Specifically, Broom contonds that the identification evidence was suspect and the medical evidenee did not sufficicntly narrow the number of persons who could have raped Tryna Middleton to establish him as her attacker. Respondent acknowledges that this claim was raised in and addressed on the merits by the Ohio Supreme Court as proposition of law twenty-four. I-Iencc, the Court will analyzc the merits of the claim In Jackson v, Vir inia, 443 U.S. 307 (1979), the Supreme Court explained the staiidard of rcview a habeas court must etnploy when reviewing an insuff cicney of evidence claim. It concluded that the habeas court must determine "whether, after viewing the evidence in the light most favorable to the prosocution, any rational trier of fact could have 1'ound the essential clenients of the crime beyond a reasonable doubt." id. at 319. In applyitig lackson, this Court must Gmit itself to evidence adduced during trial because a"sufficicncy of the evidence review authorized by.iackson is litnitcd to `record evidence.' Jackson does not exteud to non-record evideiue, including ttawly discovered 102 ociore eimer one VI lLCcnI luenulicu lllVll t1L^i11A1G1. 1+11V1 1 V 6:v14+ UlV r,v vb.^N ,o »,1 the line-ups separately and independently. Bonita Callicr identified appellant in the line-up before the preliminary tttm-around was completed; sho was wilhout hesitation in her selcction and empbatic in her identification. Tanmty Sims was less emphatic but stated to the police that appcllant was not different from her attacker. She positively identified appeli:mt in the courtrooni. Nothing in the record suppor[s appeIlant's contention the identification by T'ammy wa,s suggcstivc. The additional testimony ofsix witnesses identifying appellant in the attacks of September 18,1984 and Decentber 6, 1984 were similarly not suggestive. Appellant's contention is not well taken. Aplx:llant's contention he was convi cted by circumstantial evidence is equally without merit. In addition to the fact appellant was positively identilied as Tryna Middleton's kidnapper by $onita and Tammy, medical testimony also established the rapist was witltin approxintately six percent o]'tlte population as a type B secretor; appellant was a typc B secretor. Forensic testimony revealed the strand of hair found in Tryna's hand did not exclude appellant as the murderer. Testimony also linked appellant with the 1978 gold Ford Granada used in two ol'the three kidnappings. L.astly, appellant told a fellow-iumate he had conunitted the crimes with which he was charged. This evidence is not entirely circumstantial, neither is it in its entiroty consistent with any reasonable theory of innocence. There is in the record direct probative evidence supporting appellant's conviction. Btatc v. Broom, No. 51237, slip. op, 1987 Wl, 14401, at *28 (Ohio Ct. App.luly 23, 1987). 'rhe Ohio Suprente Court also fotind that the "conviction [was] supported by overwhelniing evidence." State v. Broom, 533 N.E.2d at 700. The Court agrees with these courts attd finds that the evidence adduced during trial was sufFcient, pursuant to Jackson, so that a rational factfinder could 6nd guilt beyond a reasonablo doubt. '1'he witness identi ficatintt tastimony, ('orensic testimony, vehicle identif cation testi mony, and Broom's own out-of-court adniissions all tendecl to support Brooni's guilt. '1'his Court (inds that tlto 103 Broom's flftecnth claim for reliefis that dekensecounsel provided constitutionally ineffectivc assistance of counsel during the guilt phase of trial. Brooni allegcs seven instances of counsel's deficient conduct: (1) failute to have the jury view recorded; (2) failure to have the sidebar conferences recorded; (3) failure to file a motion in limine to prohibit the introduction of Tryna Middleton's background; (4) failure to object to Betsy M'sddlcton's testimony and the prosecutor's use of that testimony duri ng closing arguments;46 (5) failure to cross-examine witnesses who testified about the McKcnney and Grissoni attenipted abductions; (6) failure to object to the introduction of the Coroner's tesliniony when the Cuyahoga County Coroner had failed to provide deFense counsel with its reports; and (7) I`ailure to object to the prosecutor's statement [liat Broom was part of six percent (6%) of the population who could ltave been the source of the semen l'ound in Tryna Middleton's vagina when, in actuality, it was trivclvc percent (12%). Respondent alleges all of Broom's sub-clainis are procedurally defaulted because Broom did not raise them properly in state cottrt. While Brooni did raise these claims to the Oltio Supreme Court as his fifteenth proposition of law, the Ohio Supreme Court held that Broom had waived his right to assert these claims because he did not present them to the Ohio Cout-l of Appeals. ln his 46 The Court notes that, because Betsy Middleton testified dtuing the niitigation phase of trial, Broom should have raised this sub-claim in his filh claim for relief, ineffactiveassistan.ceofcounseldurinsniitigation. BecauseBrootndocsnotduplicate this sub-claim in his fifth claim for rcliof, however, the Court will address it here. 104 this claim and it attendant sub-parts procedurally defaulted and will not address it on the merits. The Court finds, moreover, that were this claim ripe for revicw, it would still be insufficient. Of ltis seven sub-claims, the Court has addressed four of them as distinct claims elsewhere in this opinion and found them to tx: without merit. Because Broom cannot establisli, as he must pursuant to Stric land, that he was prejudiced by counsel's performance, the Court finds sub-claims (1), (2), (4), and (5) to be without merit. Broom's third sub-claim, that dePense counsel should have hled a motion in limine to prohibit the use of the victim's background, was raised, in essence, in his fourteenth claim for relief. That claim, in wl-iich Broom alleges thqimpropriety of Betsy Middleton's testimony, appears to cover all of the victint character testiinony presented during trial. Broom does not supply tbe Court with viy other instances in which trial testimony depicted Tryna Middleton's character. 'f hus, for the rcasons stated in that claim, the Court finds this sub-claim to be without nierit. Brooni next complains that trial counsel should have objected to members of the Cuyalhoga County Coroner's Office testimony when the prosecution failed to supply defense counsel with any of itS report5. As stated above, to establish ineffective assistance of counsel, Brooni must successfully demonstrate first that counsel's errors were so egregious that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washineton, 466 U.S. 105 unaware of the coroner's report. At the evidentiary hearing in these proceedings, Broom's counscl admitted to speaking with the coroner's office and receiving documents from her. The Court has found, mareover, that the prosecutor did disclose its files to defense counsel and finds that, it is nioro likely than not, that those files included the coroner's reports that are at the hcart of this claim. Regardless of this fact, Broom cannot succeed on this sub-claim because he provides the Court with no specific indicia of prejudice. Brooni docs not allege w11at counsel could have elicited on cross- examination, whether they had the records or not. Because Broom cannot demonstrate thatcounsel's behavior prejudiced him, this sub-claim must fail. Finally, Broom allcges that counsel should havc objccted to the prosccution's mistake in characterizing Broom as one of six percent of the population who could have deposited sperm in Tryna Middleton's vagina rather than one of twelve percent. '1'hc Court tind.s that counscl's failure to object to this distinction was not,, in the circumstances, ohjectively unreasonablc. Thus, it too must f'ail. ( Constitutional Violations Relnting to Mitigatian and Sentenein_,g 1. Fifth Claim for Rclief In his fifth claini, Broom eontends that lie reeoived ineffective assistance of counsel during the penalty phase of trial. Broom argues that his counsel were deticient in several respects. First, 106 defense counsel initially hired to prepare a mitigation report, once it was clear that she would not be prepared in time to present mitigation during the penalty phasc. Additionally, Brooni complains tliat, although he initially refused to speak to an examining psychologist, his defi;nse counsel were inadequate because they did not refer Broom to a second psychologist. Broom next asserts trial counsel's inoffectivenes"ti because onc of his defense counsel "opened the door" and permitted his prior criminal record to be introduoed on cross-examination of his father. Finally, Broom alleges that dcfense counsel's use of inconsistent arguments, such as residual doubt, was constitutionally ineffective. Respondent does not allege tfiat these clainis are procedurally defaulted, thus, the Court will address these claims on tlie tnerits. Brootn first claims that defense counsel did not adequately investigate ltis background. Consequently, Broom argucs, the jury was left with an incompletc picture of the cffcct his favnily's dysfunction had upon his psychological development. The United States Supreme Court recently issued an opinion addressing the issue of ineffective assistance of counsel for failure to inveatigate a defendant's background for purposes of presenting mitigating evidenec. Bell v. C 122 S.Ct_ 1843 (2002). In that case, the Court held that the Tennessee state appellate court did not unrcasonably identify Strickland v. Washineton, 466 U.S. 668 (1984), as the corroct test to determine whether counsel was inoff+:ctive dtiring the mitigation phase oftrial. 7'ho Sixth Circuit had held that the statc>^ court should have applied the test articulated in United States v. Cronic, 466 U.S. 648 107 Reversing the Sixth Circuit, the Supreme Court deterntined that "(fJor purposes of distinguishing between the rule of Strickland and that of Cronic, this diff'erenco is not oCdegree but of kind." ]d. To suceeed in demonstrating that prejudice should be presumed, and thus, that the Cronic case is applicable, a petitioner must show that counsel comptete(y failed to subject the state's case to adversarial testing, mther than mercly a.cserting that specific aspects ofcounsel's performance were unreasonable. Td at 1852. The Court in C:ane found that, rather than demonstrating an absence of a defense on the petitioner's behalf, Cone's claim merelyasserted thatdefense counsel were ineETective rcgarding two aspects of their ntitigation presentation (1) failing to call certain witnesscs during mitigation; and (2) failing to provide a clc»ing statement at the end of the mitigaticm phase. Because the Court deterniined that defense counsel did, on the whole, proffer snme meaningful evidence in tnitigation, the Court, consequently, deterntincd that Cronic did not apply. instead, the Court subjected the petitioner's claims to the Stricklancl test. In so doing, the Court in Cone found that counsel had sound strategic reasons for their inactions. For example, counsel stated that his decision not to recall petitioner's mother during mitigation was because lie had concluded that shc had not tnade a good witness during the guilt phase and, tlius, he did not want to subject her to further cross-exantination. These types of decisions, the Cotirt in .one held, arc insulated from attack pursuant to Strickland. 'thus, the Court found lhat the Tennessee state courts 108 addressing such claims. Most recently, in a casc somewhat factually similar to this onc, the Sixth Circuit held that the petitioner's claim that his counsel unconstitutionally failed to investigate mitigating evidence was not meritorious. Iv artin v. Mitchell, 280 F.3d 594 (6th Cir. 2002). In that ease, the petitioner, who was uncooperative with his defense counscI, submitted a report from Dr. Nancy Schnridtgoesslinp, that purported to supply background information about the petitioner that defense counsel did not present during trial. The court discounted this report, however, noting that theinformation in the report was actually duplicative of theanitigation testimony prescnted at trial. ld. at 614, Similarly, Broom's defense counsel presented three witnesses in the penalty phase ofhis trial: Leslie Lewis, a counselor at tttc Aireo Techtiical tnstitute where Broom was attending classes; Ella Mae Broom, Broom's motlier; and William Broorn, Jr., Broom's father. Broom also testified, giving a short, unsworn statement. During this presentation of testimony, Brooni's ntotltor testified that her children knew abottt lier husband's extramarital aEfairs and also witttessed his physical abuse of her. Mrs. Broom also testified that Broom dropped out of school to care for his younger siblings whilc his ntother workcd. In his post-conviction relief petition exliibits, Broom stibmitted the affidavits of two n,ental hcalth care professionals: Linda Pudvan, a mitigation specialist, and Dr. Nancy Schmidtgoessling. a psychologist. See Resp.'s Exhibit Q, at post-conviction exhibit. 32, 33. Ms. Pudvail stated that 109 use. Resp. Exhibit Q, post-conviction exhibit 32, at 14. Echoing Ms. Pudvan's report, Dr. Schniidtgoessling indicated that deFense counsel did not adequately provide the jury with information regarding Broom's dysfunctional family. Several factors, Dr. Schmidtgoes.sling asserted, such as the violence in Broom's home, his parents' drug and alcohol abuse, his parents' inconsistent discipline ofthc children, the marital infidelities, and parental absences, contributed to a chaotic home environment. Resp. Exhibit Q. post-conviction exhibit 33, at 4. 'I'ltc Court finds that, although Broom may have henefitted from some psychiatric explanation oF the impact of his upbringing on his psyche, his counscl wero not objectively unreasonable in failing to present tltis tostirnony because most, if not all, was presented in some form during mitigation. With the exception of parental drug and alcohol abuse, all other factors-the physical violcnec, marital infidelities, the inconsistent fomis of diseipiine, und the fact that Broom was forced to drop out of school to care for his younger siblings-were all presented during trial. During the evidentiary hearing in these proceedings, Brootn's ltabeas counsol were unable to articulate wltat furtkter factual initigationwould have been proffered, even upon this Court's specific rcquest Porsuch infomtationt '1'hc Court: What about his baekground? You are very ctyptie in your briefing on this issue. 110 Counsel: I believe the affidavit from Dr. Schmidtgoessling addresses that. But the real focus, if nothing is done, how can the jury even have a chance? Thcre has got to be somc effort to huntanize him, allow the jury to make an assessment. The history of violence in the family, that was not fully explored. The abuse ilie naother was exposed to, that was not fully explored. The reason he got out of school in the tenth grade, that was not fully explored. What was the deal with his history, this alleged history with all of thcse younger };irls, 13, 12 years old? What was the explanation for that? Was there one? Could there have been one? No effort was tnade to do that. No effort was mucle to put any type of case together that would have given the jury a chattco to say that this man doesn't deserve to die for this crime. You know, if nothing is done, this Court can presume that thcre was prejudicc to the Defendant. I believe we have cases we cati cite to you for tliat, but if nothing is done, don't do anyflaing, you catt assume there has bccn prcjudice there. At the very least, that's a way to get to the second prong of Strickland, but we believe the affidavits that have bocn submitted, that were submitted to the State courts, do establish a number ofareas that could have been explored, that wercn't explored, and that never gave this jury an opportunity to take a look at who this man is and wlicthen he deserves to die. So those are the issues that we hope to focus the Court's attention on i.oday. F,.videntiary Hearing T., supp.. at pp. 1-2_ 111 expert testimony to draw conclusions froni the facts presented by [the witnesses], but their testimonies did recount l"acts aud occurrences showingeverythingthat Dr. Sclunidtgoessling contends was not, but should have been, presented." Martin v. Mitchell, 280 F.3d at 614. Thus, wliiie counsel's production of inental health professionals may have helped explain those conclusions counsel wanted the jury to draw from the factual description ofBroom's backgrouud, this failure does not equate to a Sixth Amendment violation. ln its opinion denying this claim, the post-conviction oourt held: [T]he defendant argues if the services of an independent psychologist had been obtained, additional mitigating evidence would have been produced relating to the petitioner's fanrily background and social history. The defendant further contends that this evidence would have convinced the jury to return a life sentence instead of the defendant's current sentence of death. The dcfcndant had the benefit ofrcpresentation by thrree attorneys during trial. Despite tlte reeord's clear indication that coupsel was following a plamted trial and mitigation strategy, the defenclant claimed ineffective assistance ol' counsel for his coonsol's failure to obtain an htdepcndent psychologist. 'fhc record, specifically the trial court's opinion, clearly shows that counsel bad presented aniple evidence of petitioner's family history and social background by testimony from petitiener's father, niother and teaclier. Petitioner himself gave an unswom statement during the penalty phase of the trial. Counsels [sic] breached no cssential duties to their client; in fact, thoir presentation of the defendant's witnesses prior to the mitigation phase denionstrated their dedication to the defendant's case. Nothing in the record dcmonstrates that trial counsels' [sic] efforts in this regard were below "an objective standard of reasonableness" Strickland, sunr_n. The defendant is engaging in mere specul•:rtion in assuming that an 112 that the post-conviction court's decision was an objectively unreasonable appiication of Strickland. Thus, the Court finds this sub-claim to be without merit. Equally unpcrsuasive are Broont's other arguments asserting counsel's ineffectiveness during mitigation. Broom alleges that counsel were ineffective for "opening tlae door" during direct examination of Broom's fattier by permitting the prosecution to introduce his prior convictions on cross-examination, 'I'hc Court already has addressed this issue in Broom's fourth grouttd for relieL Because the Court found that claim to be witltout merit, the Court necessarily must Pind, at a ntinimum, that Broom cannot pass the sccond, prejudice prong of Strickland. Thus, this sub-claim is without merit. Finally, Broom claims that his counsel were ineffective for arguing in the alternative on several occasions, such as their reliance on a theory of residual doubt. The Court finds this assertion to be factually inaccurate. Broom asserts that dcfense counsel's following statement reveals that they breached their prior promise not to argue residual doubt to the jury: "We arc not going to stand in front of you and take issue witlt your verdiet. . .. we accept it and we are moving on to mitigation." T., Vol. IIl, p. 1919. 'Thc Cotui finds this statenient is far from appeuiing to the jury to utilize any reservations they had about Broom's guilt in determining his sentenee. Accordingly, the Court finds that Broom's fifth claim for relief is not we]1-takeu. 113 Respondent alleges this claim is procedurally defaulted because $rooni ncver raised it as a distinct claim in state court. '1'hc Court agrees and finds this claim is procedurally defaulted." 3. Twentv-Third Clair for Relicf In his twenty-third claim forrelief,l3room alleges that becausc rape and kidnapping are allied offenses of similar import under Ohio Rev. Code § 2941.25(A), " a he should only have been convicted of one or the other of these circumstanccs pursuant to Ohio Rev. Code § 2929.04(A)(7)."9 47 The Court finds that this claint would not be well-taken were it ripe for a merit review based on its reasoning in Brooni's fifth claim for relief, supra. 4s That statute reads: (A) Where the sanic conduct by the defendant can be construed to constitute two or more allied offenses of similar intport, the indictment or inforttiation may contain counts for all such offenses, but the de iendant ntay be convicted o f only one. ," '['hat statute states in relevant part: (A) lmposition oft.he death penalty for aggravated murdcr is precluded, unless onc or more of the following is specified in the indictment or count in the indictnient ... and proved beyond a reasonablc doubt: (7)Thc offcnse was committed whilc the offender was coinmitting, attempting to commit, or ileeing inmiediatciy after committing or attempting to commit kidnapping, rape, aggravated arson, aggravated robbery, or aggravated burglary, and either the offender was the principal offcnder in the commission of the aggravated niurder, or, if not the principal offender, committed the aggravated murdor with prior 114 Appeals. Instead, Broom raised it to the Ohio Supreme Court as his eighteenth pnaposition of law. That court, however, addressed the merits of the claim. Thus, this Court will engage in a similar analysis. In Clemmons v. Mississinni, 494 U.S. 738 (1990), the United States Supretne Court held that a death sentence could be upheld on appeal even when the jury had considerul an invalid or improperly defined aggravating factor. Therc, the,jury found that the state established two statutory aggravating circumstances and sentenced the petitioner to death. ld at 742. 'I'ho Mississippi Supreme Court later invalidated one of the aggravating circumstances as unconstitutionally vague but upheld the death sentencc because the appellate court re-weighed llte sentcncingdecision without thc invalidated aggravating factor and found it appropriate. Id. at 743, On appeal, the Suprenie Court detennined: Nothiug in the Sixth Amcndnient as construed by our prior decisions indieates tha.t a defendant's right to a jury trial would be inl4inged where an appellate cou¢ invalidates one or two or more aggravating circumstanecs found by the jury, but affirms the death sentence after itself finding that one or more valid remaining aggravating I'actors outweibhthemitigatingevidence. AnyargumentthatthcConstitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentcnec has been soundly rcjcctcd by prior decisions of this Court. calculation and design. €15 U.S. 222 ( 1992). In Strin *er, the Court further clarified the statc appellate rn-weighing proccss necessary to uphold a death scntence resulting from a constitutionally impermissible aggravating circumstance. First, the Court divided states into "weighing" states or "finding" states. in the first catagory, a state's capital sentencing process requires the ,jury to find at loast one aggravating circumstance, then weigh that evidence against any mitigating circttms4rnces. Id. at 229. In "finding" states, however, a jury niust find the existence of one aggravating circumstance before considering the death penalty, but the aggravating circumstances do not havc a specilic .function in the jury's decision to impose the death penalty. Id. The Court determined appellate review in a"weighing" state would require closer scrutiny than a"findinE" state. In those states. the Court opined, ". .. for a state appellate court to affirm a death sentence after the sentcncor was instructed to consider an invalid factor, the court ntust detertninc wltat the sentencer would have done absent the factor." Id. at 230. Moreover, the Court caulioned appellate courts to subject a death sentence to evcn closer scrutiny when the trial court utilized a vague or hnprecise factor. In those instances, a reviewing couat ntust...... at the very least [conduct a] constitutional harmless-error analysis or re-weighing in the statc judicial system." Id at 237. Before applying this analysis in this case, the Court must review the aggravating circumstances proffered (luring Broom's trial to determine if they did, in fact, overlap. The Qhio 116 a^i nreieiy rnuuucuGUr tu uru rapc unu mutucr ui um „UL q AI. State v. Broom, 533 N.E.2d at 696. This Court should refrain from interpreting Ohio statutory law when the Ohio Supn;me Court already has donc so. L'stelle v. McGuirc, 502 U.S. 62 (1991). The Cotirt detemiines that, because tlte Ohio Supreme Court articulated a legal conclusion that the facts of the case dictated that 13room was corrcctly charged with two separate offenses, Clemmons and Strinaer,becausetheydoalonlywithinvaIfdaggravating circumstances,areinapplicable. Broome:an point to no other Supreme Court case that the Ohio Supreme Court may have applied unreasonably when deciding tliis claim. Consenuently, Broom's twenty-third claiin is not well-taken. 4. Fourteenth Claim for Relief Broonr's fourteenth clairn for relief is that his Fifih, Sixth, L•"ighth, and Fourteenth Amendment rights were violated when'1'ryna Middleton's tnother, Betsy Middleton, testified during thepenaltyphaseoftheproceeding. Respondentallegesthisclaim is procedurally defaulted because Broom did not object to this testimony duriag triaL Furthermore, Brootn did not raise this claim to the Ohio Court of Appeals. Although Brooni raised this claim as his eil;hth proposition ol'law to the Oliio Suprenie Court, that court conducted only a plain error analysis. As noted above in section IV., B., 2., c., supra, the Sixth Circuit rcccntly has determined that a ptain error analysis does not constitute a waiver of a state's procedural default nrles. Sevmour v. Walker, 224 F.3d 542, 557 (6th 117 Without more detail on how he can establish cause and prejudice to excuse the procedural default, the Court declines conduct any further analysis on this point. Thus, this claim is procedurally defaulted. This claim is without merit in any event, In addressing this claim pursuattt to a plain error analysis, the Ohio Supreme Court noted: 't'he mother's testimony was relevant to the prosecution of the five counts of tltc indictment althougli it did not prove any element of the crimcs involved. Iler testitnony regarding when she last saw the victim, what clot.hing the victim was wearing, how tltc F'Bl became involved, and what she did upon notification of the crinte, assisted the jury in understanding other evidence that was prescnted. References to the victitn's family members were ntinimal and not emotional. Accordingly, the testintony's relevance was not outweighed by its prcjudicial effect, if any. It was not obviously plain error to admit it. Statc v. Broom, 533 N.E.2d at 696. While the Court docs not necessarily fand that Betsy Middleton's testimony was particularly useful in helping the jury to understand oUter evidence, itdoes concur, after reviewing this testimony, that its admission was not unduly prejudicial.50 $° Moreover, Broom cannot point to a basis in law that would hold this tostiniony unconstitutional. Broont proclaims Booth v. Marvland, 482 U.S. 496 (1987), is dispositive. ln Booth, the Suprcme Court held that the Eighth Amendment prohibits the introduction of victitn impact evidence during the sentencing phase of a capital case. Subsequently, in Pwne v. Tennessee, 501 U.S. 808 (1991), the Court overruled i32rih, finding that victim intpact testimony does not, yer se, violate the Eightlt Amendment. Neither Booth nor Pa ne were decided at the time of Brooni's trial. Moreover, the united States Supreme Court did not hold Booth applies retroactively. 118 following claims on direct appeal: a. T1ie prosecutor itnproperly instructed the jury during the general voir dire about what was necessary to capitally convict the accused, b. The trial court failcd to remove for cause a juror who said that he would autotnatically vote for the death penalty. The trial judge's crroneous decision caused the defense to exercise a peromptory challenge it should not have had to use, thus denying Petitioner his Sixth Aniendmont rights. c. `fhe prosecutor used the victim's mother for the sole purpose of creating antipatlty against Broom. Such testinxony enabled tltc jury to improperly base the verdict on factors otlterthan evidence proved beyond a reasonable doubt. d.'1'he trial court permitted multiple convictions for kidnapping and rape even tliough kidnapping niay not lie where the kidatapping is merely incidental to the rape, and the offenses were not conducted witlr separate animus. c. Where the mitigation phase of a capital trial is fraught with prosccutorial niisconduct, the defendant tnay not be sentenced to death. f. The trial court erred by permitting thc,jury to consider and convict Broom of a specifcation that duplicated an element of the principal offense. In the n>_stant case, the sante alleged conduct was tlte basis for both the pr'incipal cltarge and the specification. 'I'hc kidnapping and rape charges were used to clevatc amurder into an aggravated nrurder. Then the underlying murder was used to elevale the felony murder into a capital indictment. Aggravating circumstances cannot be used to enhance the penaity for felony nrurder because the elements of the charged offense are duplicated by the aggravating circutnstances. g. In a capital case, where death specifications arc allied ofl'ense (such as '1'Irus, the trial court did tiot commit constitutional error by pcrmitting Middleton's testimony. 119 closing arguntent to consider the impact on the victims tamny tn aeiLm,inuLg the sentence. j. The state induced ineffective assistance of counsel when the trial court failed to allow the defense to retain experts in forensic pathology attd eyewitoess identification. k. The trial court's penalty phase jury instruction i nproperly instructed the jury that any ti!'e sentence recomniendation would have to be unanimous. 1. 'T'he trial court's jury instruction on reasonable doubt was constitutionally intirm. m. 'fhe trial court's jury instruction stating that the jury should not consider "sympathy" when arriving at its sentencing decision at the penalty phase violated Broom's constitutional rights. n. Trial counsel provided constitutionally ineffective assistance during botli the guilt and penalty pltases of trial. Broom raised this claim as his twenty-first proposition of law to tlte Ohio Supre;me Court. '1'hus, the Court will address it on the nierits. A defendant is entitlcd to effective assistance ofcounsel in his first appeal as a matter of right. Lvitts v. Lucey, 469 U.S. 387, 396 (1985). Thc two-part test enunciated in Strickland, discnssed above, is applicable to claims of inefiective assistance of appellate counsel. 'l'hus, liroom must demonstrate that his appellate counsel's performance was deficient, and that the deficient performance so prejudiced the defense that the appellate proceedings were unfair and the result ttnreliable, Strickland, 466 U.S. at 687. An appellant has no constittitional right to have every non- 120 ,. i J ...... f., r,...... , ...... ^ ...... t., . .. 11 attempt to deal with a great many in Llte lintited number of pages allowed for briefs will mean that none may receive adequate attention. I'hc effect of adding weak arguments will be to dilute Lhe force of stronger ones. Jones, 463 U.S. at 752 (qnoting R, Stern, AppellcEte Practice in the Unifed States 266 (1981)), Moreover, an attomcy is not required to present an argument on appcal for which there is no good- faitlt factual support, in order to avoid a charge of ineffective rcprescntation. Krist v_ Poltz, 804 F.2d 944, 946-47 (6th Cir. 1986). In this case, Broom has not articulated, beyond bare asscrtion, how his counseI's judgment in not assertin}; the above-listed claims was objcetively unreasonable. Tltus, the Court finds it was not. Further, and of equal iniportattce, the Court also determines that Broont cannot establish that appellate counsel's behavior prejudiced his appeal. All claims raised in this ground for relief were raised as separate claints clsewhere in Broont's ltabcas petition. See f;rounds for rclicfthree, nine. twelvc, thirteen, fourteen, fifteen, twenty-three, and twenty-four. Because Broon has asserted, and this Court has addressed and rejected all underlying claims for relief asseited in this ground, Broom cannot show that any objectively unreasonable behavior was prejudicial to him. On direct appeal, the Ohio Supretne Court finmd Broom's claims lacked merit on similar grounds. State v. Broom, 533 N.E.2d at 699 ("We have examined the issues that were otnitted below but raised in this appeal [and) reject the claims made in these propositions of law. Appellant thcrcforc cannot demonstrate the prej udice requircmcnt of Strickland."). Because this opittion is not 121 constitutiotially adequate proporticmality review. Specifically, Broom claims that the Ohio court improparly excluded cases in their revicw in which the state sought the death penalty but did not obtain it. Respondent alleges this clainx is procedurally defaulted. Broom, however, correctly notes that he raised this claim as his twentieth cause of action to the post-convietion court and that court addressed the claim on the merits. This Court will do likewise. Aproportionalityrevicwisnotconstitutionallyrequircd. Ptdlevv.I-larris,465U.S.37,50-51 (1984). Secalso McOueenv. Scroggry, 99 F.3d 1302, 1333-34 (6thCir. 1996), c•err, denied, 520U.5. 1257 (1997) ("There is no federal constitu6otial requirement that a state appellate conrt conduct a comparative proportionality review."). By statute, however, Ohio rcquires the appellate courts to engage in a proportionality review. Under Ohio Rcv. Code § 2929.05(A): In determining whether the sentence of'death is appropriatc the court of'appeals, in a case in which a sentence of dcath was imposed for an offense committed be(bre )anuary 1, 1995, and the suprenie court shall consider wliether the sentence is excessive or disproportionate to the penalty imposed in similar cases. They shalE also review all the facts and other cvidence to determine if the evidence supports the finding of the ag8,ravaling circumstances the trial jury or the panel of three judges found thc offender guilty ofcommitting, and shall determine whether the sentencing court properly weiglicd the aggravating eircumstances the offender was found guilty of comniitting and the mitigating factors. Because Ohio law requires appellate courts to engage in proportionality review, the review must be consistent with constitutional requirements. Kordenbrock v_Scrog;y, 680 F. Supp. 867,899 (ED. Ky. 1988) (ciiing F.vitts v. Lucev, 469 U.S. 387 (1985)). Nonetheless, wheii the state courts 122 Balkcom, 716 Fad 1511, 1517 (llth Cir.1983))_ See also Spinkellink v Waincvright, 578 F.2d 582, 604 (5th Cir. 1978), cert. denied, 440 U.S. 976 ( 1979)(same), In Spinkellink, the petitioner argued that his crime, when compared to other Floridadcath penalty uues, was insuf.Ciciently gruesome or lieinous to warrant the death penalty and had highlighted sovcn other cases in which the Florida 3uprenie Court had reversed death sentences. All of these other cases allegedly involved del'endants equalfy or more deserving of the death penalty than he. Moorc, 716 F.2d at 1517-18 (citing Spinkellink). The court "condemned a federal case by case analysis of the cases used by the state appellate court in its proportionality review as an unnccessary intrusion on the [state] judicial system." Td (citing Spinkellink). A federal habeas court sllould not undertake a review of the state supreme court's proportionality review and, in effect, `gct out the recard' to see if the state court's findings of fact, their conclusions based on a review of similar cases, was supported by the' evidence' in the similar cases. To do so would thrust the fcdcral judiciary into the substantive poGcy making arca of the state. ld. Morcovcr, when exaniining a recent Ohio conviction on habcas roview, the Sixth Circuit stated that, because "proportionality review is not required by the Constitution, states have great latitude in defining the pool ol'cases used for comparison." Buell v. Mitchell, 274 F.3d 337, 369 (6th Cir. 2001). Although the Ohio Suprenie Court's deterntination that Broom's sentence was proportionate was in summary fot-ni, the post-conviction court addressed Broom's argument. It stated: "The Ohio 123 unplicates constitutional infirmity. Because this Court finds that it cannot inzpose its own opinion regarding thc propottionality of this case, the Court finds this elaim is not well-taken. T. 3ystem'ic Challenges to Ohio's C:rnital Punishment Scheme in Gencral 1. Twent r-,Second Claim for Relief In his twenty-second claim for relief, Brooni clainis that Ohio's death penalty statutes are unconstitutional because they fail to nan•ow the class of death-eligiblc defendants. Speciftcally, Broom argues that the state's use oP the crimes of kidnapping and rape as an al;gravating circumstance is wieonstitutional bec,-niso thc jury already has found hiin guilty of these twderlying crimcs. AlthoughrespondentallegasthisclaimisprocedurallydofaultedbecauseofBroom'sfailure to raise it to the Ohio Court of Appeals, 13rooni corn:etly notes that the Ohio Suprenie Court disregarded this appareait waiver, addressing the claim on the merits. Accordingly, this Court will addre:ss the morits of this claini. The Supreme Courthas articulated clearly the constitutional mandates for imposin8 the death penalty. In Loekett v. Ohio, 438 U.S. 586 (1978), the Court held that any death penalty statute must allow the sentencer to review all mitigating evidence during the pcnalty pliase, thereby fashioninR a sentenoe bcGttinb the individual defcndant. Because death "is so profoundly differcnt from all other penalties," the Court reasoncd, it cannot be iniposed without individualizing the sentence. Id. 124 capital offenses but narrow tho dofendants who actually receive a death sentence by using aggravating circutnstances during the penalty phase. Lowenfeld v. Phelps, 484 U.S. 231, 246 (1987). Ohio's death penalty schame complies with these mandates, First, §§ 2929.04(B) and (C) allow the defcndant to present, and the fact finder to considor, all statutorily enumerated mitigating factors. Moreover, § 2929.04(B)(7)permits a fact finder to consider all mitigating factors in addition to those enumerated in the statute. Finally, the Ohio death ponalty scheme satisfies the Zant requirements by denianding the fact fmder to find the existenc.e of at least one aggravating circumstance set forlb in § 2929.04(A). On appeal, the Ohio Supreme Court upheld the Ohin sentencing scheme: Appellant's argument is not weli-taken since R.C. 2929.04(.A)(7) requires that "* * * an additional fact, independent of the cloments ol' aggravated murder, be proven bel'ore an offender is eligible for capital punishment. * * * By such a limitation, the category ofdeath-elil;ible aggravated murderers is narrowed in compliance with r.ant and no constitutional violation arises." State v. T3arnes (1986), 25 Ohio St.3d 203, 207. State v. l3rnom. 533 N.E.2d at 697. '11ic Court linds that court's analysis of this claini does not run afoul of Lowenfeld and 'l.ant. Consequently, Broom's twenty-second claim is without merit. 2. Twenty-Sitith C:l:titn for &lief Broo:n's twenty-sixth claim for relief is that the Ohio death penalty scheme does not perntit 125 claim on the merits. The Supreme Court rcjcctul an argument similar to Broom's in Blystone v. Pennsvlvania, 494 U.S. 299 (1990). In that case, the defendant challenged the constitutionality ofthe Pennsylvania death penalty statutes, which, similar to Ohio's, requires that thc,jury recommend the death penalty ifthe aggravating circumstances outweigh the tnitigatingfactors. In upholdingthis statutory xltemc, the Blystone Court detcrmutcd that the statutes were constitutional because they perniitted the sentencer "to consider and givic effcet to any mitigating evidence relevant to a defendant's backgrotmd and character or the circumstances of the crime." Id. at 304-05 (quoting Penrv v. L. ^^gh, 492 U.S. 302, 328(1989))(intornai quotation marks otnitted). Ohio's death penalty statutes permit the sentcnoing body to wnsider all mitigating cvidence pursuant to tlte "catch-all" niitigating factor, Oltio Rev. Code § 2929.04(B)(7) 57 Moreover, thc Ohio sehente provides for an 51 That statute states: (B) If one or more of the aggravating cirwmstances listect in division (A) of this section is specified in the indictment or count in the indicttncnt and proved beyond a reasonable doubt, ._., the court, trial jury, or pancl ol'three judges shall consider, and weigh against the aggravating circumstances provcd beyond a n:asonable doubt, the nature and circumstances of the offense, the history, citaracter, and background of the offender, and all of the followinr, factors: *r+ (7) Any otlier factors that are relevant to the issue of whethcr thc offcnder should be sentenced to deatlt. 126 Broom's twenty-seventlt ground for relief is aimed at the structure of Ohio's capital punishment scheme. 1n this claint, Broom asserts that Ohio's capital punishnient scheme is unconstitutional on its face. The Court is not persuaded by Broom's allegations. In suinmary fashion, the Court will list below Broom's all.cgations, in italics, and thcroafter state the reasons thcy are unpersuasive. Ohio c.scherne is unconstitutionally arbitrary becaus•e it alfow.c,Ji)r prosecutorial disc•retion to determine whether to.ceeka capital indicrment, The Supreme Court in Gregzt v. G reia, 428 U.S. 153 (1976), rejected this argument under a similar death pcnalty statute, condoning the discretionary system. Ohio c scheme is unconstitutional beccnrse it requires the jury to,Jirmi an aggravafing factor during the guilt phace of 'triai. The Court addresscd tltis argument in Brcxmt's twenty-second claian for rcliof and will not re-address it here. Qhio a• scheme is unconstitutionul because it imposes a risk of deafh on thos•e capitcrl defendants who choose to exercis•e their right to trial, in Unitcd States v. ]ack.son, 390 U, S. 570, 582 (1968), the Supreme Court detertninod that a legislative body cvtnot produce a ehillinb c£fcet on a defendant's Fifth Antcndment right not to plcad guilty and Sixth Amendntcnt right to denuutd a,jury trial. In that case, tlte Court struck down Ute capital portions of a federal kidnapping statute lx:cause it authoriaed only tlte,jury to impose the death sentettce. Convetscly, in Ohio "a sentence of death is possible whether a defendant pleads to the of#ense or is found guilty after a trial." State v. I3ue11, 489 N.E.2d 795, 808 (Ohio 1986). Consequently, the Ohio scheme compotls with constitutionat mandates. Ohio s scheme is unconstitutional because it f'ails to require !he jury to find a conscious desire to kill or.specifrc intent to kill. This arguntcnt is groundless as § 2903.01(E) requires no person to be convictcd ofaggravated murder un less he or she is "speci 19cal ly found to have intended to cause the death of another ..,:" Moreover, the Supremc Court sanctioncd the Ohio Rev. Code § 2929.04(B)(7). 127 5unnsuzea io u7eiury once ine uelenuuni reyuea o n. ,,, . Y. o_ ...._ - procedurally defaulted because Broom did not raise it in state court. This claim would lack merit in any event. Although the Fifth Amendment would be violatcd if a court orders a defendant to undergo a psychiatric examination, without informing the defendant that his statements cau be used against him, and then adiuits his statements into evidence during thc sentencing phase in order to prove statutory aggravating circumstances, scQ > stelle v. Smith, 451 U. S. 454 (1981), thc Fifth Aniendment will not bc violated i f the defendaut requests the psychiatric evaluation himself. This reasoning is explained in Buchanan v. Kcntuekv, 483 U.S. 402 (1987): A criminal defertdant, who neither iniliates a psychiatric evaluation nor attempts to introduce any psychiatric evidcnce, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding. This statement leads logieally to another proposition: if a defendant requests such an evaluation or presents psychiatric evidenec of such an evaluation, tlien, at the very least, the prosecution may rebut this presentation with evidcnce froni the reports of the cxaniination that the defendant requested. Thc defendant would have no Fifth Amendment privilege against the introduction of this psychiatric testiniony by the prosecution. J.¢,. (citations omitted). Ohio's scheme is uncotrstitutional hecuus•e il faits to require that the State prove the absenc•e oiatzv nrifigatingfactors. This argument was specifically rejected in Walton v. Arizona, 497 U.S. 639, 649-50 (1990). There the Court held a death penalty scheme rcquiring thc defendant to establish mitigating tactors by a preponderance of evidence is constitutionally acceptablo burden shifting. This aspect of the Wal on holding is unaltered by tlie recent Suprcmc Court decision Rdtrg v. Arixona,-U.S. -, 122 S. Ct. 2428 (2002). In that case, the Court overruled Wa on because it found Walton im:concilable with Apprendi v. New Jcrsc. 530 U.S. 466 (2000), a case in which the Court held that the Sixth Amendment does not permit a judbe to impose a sentence that would exceed the maximum sentence to which the defendant would be exposed if punished pursuant to the facts found by the jury. Thus, because Walton fottnct Arizona's capital sentencing constitutional even though it permitted a judge alone to find aggravating factors and impose a deatli sentence, the Court in RinC overruled it. The Court limited its holding, however, ovcrruling Walton only "to the extent that it allows a sentencing j udge, sitting witltout a jury, to find an aggravating circumstance necessary for imposition ofthe death penalty. Rin g, 122 S. Ct. at 2443. Consequently, the 128 Ohio's scheme is uncons•titutional because it precludes thejury f'rom considering merey. As stated in Broom's twenty-sixth claim for reliel; the Supremc Court rejected a similar argument in Blvstonev. Pennsylvania, 494 U.S. 299 (1990)_ Ohio's scheme is unconstitutional hecaus•e it provides jor a hifurcated system in which the identicat jurors,)rnd, fir guilt and later sentence the defendcmt. This use oj•the,jury place>s the de(endant at a tacttcai disadvantagc. Brooni points to no authority that would hold this provision of the Ohio death penalty constitutionally infirm. Furthermore, the bifurcated system loug has becn credited as a system having the desired cffect o f nanowing the class of death-eligible defendants. Lockctt v. Ohio, 438 U.S. 586 (1978). Ohio's scheme in unconstitutional because it inaclequatcly tracks cases reviewccl when determining the proportionality ofthe sentence. The Court addressed this argument in Broom's twenty-fourth clainr for relief and will not re-address it here. Ohio's scheme is uncotrstitutional because it fcrits to require that the State prove that the death penalty is the only appropriate remedy. The Coutt addressed this argument in Broonr's twenty-sixth clainr for relief. No such constitutional nrandate exits. Moreover, the Ohio scheme provides (or an appropriatcness review on direct appeal. See above. Ohio's•s'cheme is unconstitutianal becau.ce a threc jttdge panel is not requiredto identifyand urticatlate the exlstence nJ'mitigatins factors cutd ags';ravatinl; circutnstances. Wlrile the Supreme Court does "require that the record oti appeal disclose to the reviewing court the considerations wlrich motivated the death sentence in every case in which it is imposed," Gardner v. Florid420 U.S. 349,361 (1977), there is no actual oriterion stating that the trial judge must identify and atticulate tiic specific factors used to fortnulate the decision. Furthermore, Ohio Reviscd Codc § 2929.03(F) n:quires that a trial judge make a writtcn finding as to the existence of specific mitigathrg factors and aggravating circumstances, and why the aggravating circumstances outweigh the ntitigating factors. By making a rccord of lirese determinations, the appellate court is able to make an "independent determination of sentence appropriateness." 5ate v. Buell, 489 N.E.2d 795, 807 (Ohio 1986), cert. denied,. 479 U.S. 871 (1986). Tirus, no constittttional infirmity cxists. Ohlo'.s .scheme is not the leae•t re,etrictive mectn.s of c,ffecluating deterrence. Rcspondent asserts that this claim is procedur•ally defaulted. This claim rvould be without nrerit even if 129 aeatn penairy per se not constttuttonany oarrea). • Imposing the death penalty through the use qf electrocution constitutes cruel and urtusual punishn3ent. The state of Ohio bas now elhnittated clectrocution. Am. I-I.B. 362, I 24th Gen. Assem., Reg. Sess. (Ohio 2001)(enacted). Thus, this sub-claim is moot. • lmpv.s•ition of the death penalty is a violatron of international treatiev, The Court finds persuasive the reasoning in Celestine v. Butler, 823 F.2d 74 (5th Cir. 1987), cert, denied, 483 U.S. 1036 (1987). In Celestine, the petitioner, alleging racial discrimination, claimed that treaties of whieh the United States was a signatory superseded Louisiana law under the Supremacy Clause. The court held, "how these issues are to be dotermined is settled under American constitutional law," Id at 79-80. Like Celestine, Broom has not set forth a single argument directed at showing that the Ututed States, via these intentational agrecments, assented to provide additional factors for the decision to impose the death penalty or to modify the decisional factors rcquircd by the United States Constitutionas interpreted by the Supreme Court. Id. at 80. Also persuasive is the fact that, since the reinstatement of the death penalty in Gregpv. Georeia, 429 U.S. 875 (1976), the Supreme Court has never rolied on these international agreements to find a death penalty unconstitutional. See also State v. SteCfen, No. C-930351, 1994 WL 176906, at *4 (Ohio Ct. App. May 1 l,1994)(holdini; that therc was no colorable argument supported by precedent liom any human rights forum that the arrest, incarceration, trial, and sentence of an individual violated human norms to which the United States is bound either by custontary international law or treaty). 4. Twentv-Eiehth Claim for Relief Pinally, in his twenty-eighth claim for relief, IIroom asserts that, cvun if the Court finds that Ohio's death penalty statutes are constitutional, the Court should Cnd the statutes uneonstitutional as they were applied during lus capital trial and appeal. Broom contends that the trial court imposed the death sentence in an arbitrary and capricious manner and that the Ohio Court of Appeals and Ohio Supreme Court ratified the trial court's opinion without identifying and independently re-wciglting 130 that the trial court's decision was not arbitrary and capricious. On the contrary, the trial court's decision meticulously reviewed the witnesses defense eounsel presented during the mitigation phase of trial and the aggravating factors the jury found to exist. SLes generallv Resp. Exhibit C. Moreover, the appellate court's adoption of this opinion was adequate to satisfy its own requirement to independently review the death sentence. On appeal, the Eighth District Court of appeals detertnincd: 'nco meager evidence in mitigation consisted of delendant's unswom oral statentent claiming he did not kidnap, rape or murder the victim. Defendant's parents testified to domestic problems between themselves, howcver, there was no evidence the defendant snffered from any mental, psychiatric or psychological problcros nor was there atty evidence the defendattt acted under duress, coercion or strong provocation_ Althouglt the niother revealed defcndant dropped out ofhigh school at the tenth grade level, any iniplic:ation of intelligenc:e deficiency was eradicated through testimony defendant was a good student at Airco Technical Institute. Lastly, there was evidence presented 'ui n7itigation tending to infer the murder of defendant's sister somehow 52 'rhe relevant portion of that statute states: (F)'r he court or the panel of three judges, wlien it imposes sc:ntence of death, shall state in a separate opinion its specific findings as to the cxistenee of any of tbc mitigating factors set f'orth ht division (B) of section 2929.04 of the Revised Code, the existence of any other mitigating factors, the aggravating circumstanecs the offender was found guilty of committing, and the reasons why the aggravating circumstances the offender was found guilty of cotnntitting were sufficient to outweigh the mitigating factors. Ohio Rev_ Code § 2929.04(P). 131 St.ate v. 13room, No. 51237, 1987 WL 14401, at *31 (Ohio Ct. App. July 23, 1987). The Ohio Suprcme Court, using siniilar analysis, also independently reviewed the aggravating circumstanees and mitigating factors. Because the Court finds incorrect Broom's factual assertion that the trial and appellate court failed to perfortn their weighing functions, this claim is not wcll-taken. VIII. CONCLUSION The Court now must determine whether to grant a Certificate of Appealability (hereinal'ter "COA") for any of Brootn's claims. In two recent decisions, the Sixth Circuit has detennined that neither a blanket grant nor a blanket deiual of a COA is an appropriate nu:ans by which to conclude a capital habeas case as it "undermine[s] the gate keeping function of certificates of appealability, which ideally should soparate the constitutional claims that merit the close attention of counsel and this court from those claims that have little or no viability." Porterflcld v. Bell, 258 F.3d 484, 487 (6th Cir. 2001): se alsq Mur^hy v. C1hio, 263 F.3d 466 (6th Cir. 2001) (renranding motion for certificate oPappealability for districtcourt's analysis ofclaims). Thus, in concluding this Opinion, this Court now must consider whether to grant a COA as to any of the claims Broom presented in his petition pursuant to 28 U.S.C. § 2253. '1'hat statute states in relevant part: (c)(1) Unlcss a circuit justice or judge issues a certificate of appealability, an appeal may not 132 nas maUu a sUpstallual stlowlng oA Tne Qenlal ol a WI1SL1tu1tv11aa uy.n. 28 U.S.C. § 2253. This lan8,uage is identical to the requirements set'forth in the pre-AEDPA statutes, requiringthehabeaspetitionertoobtainaCertificateofProbableGause. Thesolcdifferencebetween the pre- and post-AEDPA statutes is that thc petitioner must now demonstrate he was denied a constitutional right, rather than the federal right that was required prior to the AEDPA's enactment. The Unitcd States Suprenie Court intcrpreted the sipificanec ofthe revi sion between thc pre- and post-AEDPA versions of that statute in Slack v. MeDaniel, 529 U. S. 473 (2000). In that case, the Court held that § 2253 w^a.s a cod'afrcatioa of the standard it set forth in Barer'not v. Estelle, 463 U. S. 880 (1983), but for the substitution ol'the word "constitutional" for "federal" in the statute, ld. at 483. Thus, the Court determined that "[tlo obtain a COA undcr § 2253(c), a habeas prisoncr must ntake a substantial showing of the denial of a constitutional right, a demonstration that, under l3ure foot, includes showing that reasonable ,jurists could debate whether (or, for that matler, agree that) the petition should have been resolved in a di'tTeront manner or that the issues presented wcrc "`adcquate to deserve encouragement to proa:ed furtlier."' 1,& at 483-04 (yuotrng Barufoot, 463 U.S. at 893 n.4). The Court went on to dislinguish the analysis a habeas court mu.st porl'orm depeuding upon its finding coneeming the defaulted status of the claim. If the claim is not procedurally defaulted. tlrcn a habeas court need only determine whether reasonable jurists would find the district court's decision "debatablc or wrong " Id. at 484. A more complicated analysis is required, however, when 133 ruling." Id. (emphasis supplied). After taking the above standard 'urto consideration, Yhe Court finds that five issues tucrit further review. The Court will address each issue and its procedural status below. The Court grants a COA for Broom's fourth claint for relief-the admission of "other acts"' testitnony, i, the abductions of Venita McKenney and Melinda Grissotn and tho admission of his prior eriminal convictions durin$ both phases of trial. This claim was not procedurally defaulted. Thus, the Court need only address whether reasonable jurists would debate this Court's decision on the merits of the claun. The Court finds that although it appears this testimony was essential to aid the state in proving its identitication of Broom as the aasailmrt, and that the crimcs possessed similar characteristies, a rcasonable jurist could conclude that the introduction o f th^.ye other acts sufficiently prejudiced Broom so as to deny him a fair trial. The Court grants a COA for the second sub-claini of claim four for similar rea.sons_ The Court finds that a reasonable.jurist niight tind that Broom's prior convictions were not relcvant or probative to an issue on which the prosccution bore the hurden of proof at the mitigation phase. While the Court determined that the deferential standard to which a habeas court must adhere in reviewing a state trial oourt's admissibility decisions required it to find the claitn to be without merit, reasonable jurists might determine that the trial court's decision rendcred the penalty phase of trial constitutionally itifirni. 134 a reasonable jurist could conclude that counsel's limiled presentation of miGgation evidence and failure to procure any testimony from a mental health professional on the effects Broont's cltaotic home lifc may have had on his psyche was in violation of Strickland. Brooni's counsel did present evidence of Broom's turbulcnt childhood. Without depicting the effcets this turbulence migltt have had on his psycholo&ical developntent, howevcr, a rcasonablc,j urist could coo.clude that the jury may not have obtained a thorougli understanding of its import. As may be apparwnt by the extcnsive analysis performed on this cluim, the Court grants a COA as to Broom's sixtlt claitn for relief_ The Court lound that claint to be procedurally deFaulted because Broom had obtained the FOIA and Ohio Public Records Act inFormation prior to thc Steckman decision. attd because it rontains unclear whether Steckman would truly bar the exculpatory information Broom obtained. '1'he Court reco$nices, however, that jurists of reason could determine that Btoom believed he was unable to present that inforniation during tlie pendancy of his post- conviction petition for the reasons previously statcd. Moreovcr. the Court finds that a reasonable jurist could dctcrtninethat, ifnot procedurally defaulted, Broom's allegation that the prosecution did not Purnish him with exculpatory, nlaterial inforntation- particularly information regarding the allcgcd drng and alcohol abuse of Sims and Callier on the night of the abduction-possesses mcrit. The Court finds that Broom's cighteenth olaim for rclicf, that defense counsel had inadequate time to prepare for trial, is debatable among jurists of reason. This claini is not procedurally 135 u prepare for trial and that the preparation in a death penalty case necessarily must entail a lengthy investigation into a defendant's upbringing and background-that the trial court provided counsel with inadequate time to prepare. This limitation, one could argue, rendered Broom's trial fundamentally unfair. Tltus, the Cout4 grants a CnA on this issue. Finallv, the Court grants a COA for Broom's ninetcanth claint I'or relief, suppression ofJanot and Melinda Grissom's "show-up" identification of Broom at the hospital in which they wore being treated. Because this claim is not proccdurallv defaulted, the Court will address only the issue of whether a reasonable jurist would disagree with its decision on the nierits. The Court finds, as it did when analyzing Broom's ninctecnth claini, that the show-up was unduly suggestivo. While tlie Cowt finds that it appoars both Janet and Melinda Grissom adequateiy identified Broom as Mclinda's assailant, other courts might deterniine that the totality of the circumstances, such as the chaotic eitnu mstvtces surroun ding the attemptod alxiuction, could render their idcntification suspoet pursuant to Manson v. Brathwaitc, 432 U.S. 98, ]]4 (1977). The Court finds no other claims to be dcbatable among jurists of reason as no other ground for relief comes niarginally close to presenting a federal constitutional or legal violation. Additionally, many of Broom's claims iiivolvc time-worn legal argunients that this Court as well as established preccdant repeatedly liave foulid to be without merit. Consequently, the Court denies a COA as to all other claims presented in this Opinion. 136 KATHLEEN McDONALD U'MAL.Ltt. UNTTLD STATES DISTRICT 3UDGI+ 137 UNITED STATES DISTRICT COURT NORTHERN D[STRICT OT OIiCO EASTURN DIVISION ROMELL BROOM, Case No. 1:99 CV 0030 Petitioner, . JUDGE O'MALLEY Vs, BETTY MITCHELL, Warden, ORDT:R Respondent. For the reasons set fortln in this Court's mernorandum and opiniou of this date, the Court denies Broom's petition for a writ of habeas corpus. The Court issues a Certificate of Appealability to die extent and as described in its mcmorattdum and oPinion of this date. IT IS SO ORDERED KATI3LEEN McDONALD O'MALY UNITED STATES DISTRICT .IUII E