Full opinion text
ORDER SPIEGEL, Senior District Judge. This matter is before the Court on Petitioner Jerome Henderson’s Petition for a Writ of Habeas Corpus (doc. 4); Respondent’s Return of Writ (doc. 12); and Petitioner’s Motion for Leave to File Traverse, Memorandum of Procedural Default, Motion to Expand the Record, and Motion to Compel Respondent to Complete the Record Instanter (doc. 77). The Court also takes into consideration Petitioner’s Post-Hearing Memorandum (doc. 94) and Respondent’s Post-Oral Argument Brief (doc. 97). Table of Contents I.Introduction.875 II. Factual Background.876 III. Standard of Review.878 IV. Applicability of the AEDPA..■.878 V. Analysis of Petitioner’s Claims.878 A. The Doctrine of Procedural Default .879 B. Petitioner’s Claim of Ineffective Assistance of Appellate Counsel.880 —Claims 13 & 27 .880 C. Other Claims Respondent Asserts Were Procedurally Defaulted .888 —Claim 2(A).880 —Claim 8.889 —Claim 10.890 —Claim 10(A).891 —Claim 10(B).892 —Claim 11.895 —Claim 12.896 —Claim 14.896 —Claims 17(A) & 24.897 —Claim 19. 897 —Claim 25 .898 —Claim 26 .898 D. Claims That Must Be Addressed On The Merits .899 —Claim 1.899 —Claim 2.902 —Claim 3. 904 —Claim 4.905 —Claim 5.908 —Claim 6.910 —Claim 7.,.911 —Claim 9.913 —Claim 16.918 —Claim 17.919 —Claim 18.920 —Claims 20, 21, 22 & 23 .923 —Claim 26 (Merits).924 —Claims 10(A) and 10(B) (Merits).928 E. Conclusion.929 I. INTRODUCTION This is a capital case. Petitioner Henderson has been sentenced to death by the State of Ohio. Petitioner was convicted of aggravated murder and sentenced to death by the Hamilton County Court of Common Pleas for the murder of Mary Acoff in her home at 1944 Highland Avenue in Cincinnati, Ohio on or about March 3, 1985. The jury recommended the state court sentence Petitioner to death for the aggravated murder conviction. The jury also recommended that Petitioner be sentenced to consecutive prison terms of seven to twenty-five years for the aggravated burglary conviction and eight to fifteen years for the attempted rape conviction (Appendix to Return of Writ (“R.O.W.”), Vol. I, Ex. B). At his capital trial, Petitioner was represented by attorney Clayton Shea. On July 22, 1986, Petitioner pursued a direct appeal of his conviction in the Ohio Court of Appeals, asserting fourteen assignments of error related to his trial proceedings (Id., Ex. D). Additionally, after noting that issues of proportionality review could not be raised as an assignment of error, Petitioner objected to the adequacy of the court’s proportionality review in a separate section of his appeal (Id. at 48). Subsequent to the State filing its brief in opposition, Petitioner filed a pro se motion for leave to rebrief and file additional issues on Septembér 25,1986 (Id., Ex. NN). In his pro se motion, Petitioner maintained that his appellate counsel failed to raise several issues that he believed should have been raised. The court denied Petitioner’s motion for leave to rebrief and file additional issues on October 15, 1986 (Id., Vol. IV, Ex. PP). The Court of Appeals also affirmed his conviction and sentence of death on January 14, 1987 (Id., Vol. I, Ex. F). In his direct appeals, Petitioner was represented by attorneys D. Shannon Smith and Timothy A. Smith. Petitioner appealed to the Ohio Supreme Court (Id., Ex. G). The Ohio Supreme Court affirmed his conviction and sentence on September 28, 1988 (Id., Ex. I). State v. Henderson, 39 Ohio St.3d 24, 26, 528 N.E.2d 1237, 1240 (1988). He was again represented by attorneys D. Shannon Smith and Timothy A. Smith. Petitioner then filed a Petition for Writ of Certiorari to the United States Supreme Court. However, the Supreme Court denied the Petition. See Henderson v. Ohio, 489 U.S. 1072, 109 S.Ct. 1357, 103 L.Ed.2d 824, reh’g denied, 490 U.S. 1042, 109 S.Ct. 1947, 104 L.Ed.2d 417 (1989). Thereafter, Petitioner pursued post-conviction relief in the Ohio courts on November 15, 1989 (Appendix to R.O.W., Vol. II, Ex. L). The State moved to dismiss each of the claims in Petitioner’s post-conviction petition. Petitioner subsequently moved to amend his post-conviction petition to assert a claim of ineffective assistance of appellate counsel (Id., Ex. O). Petitioner asserted that his counsel on appeal had failed to raise the claim of ineffective assistance of trial counsel. Petitioner also moved that the court hold an evidentiary hearing on the claim to address matters outside the record. The court dismissed each of Petitioner’s post-conviction claims on the grounds of res judicata, except for his eighth claim of ineffective assistance of trial counsel (Id., Ex. Q). The court conducted an evidentiary hearing on December 17 and 18,1990, to address Petitioner’s claim of ineffective assistance of trial counsel. The court denied Petitioner’s motion to amend his post-conviction petition and struck the motion from the record (Id., Ex. S). Petitioner filed a notice of appeal to the Hamilton County Court of Appeals on February 22, 1991 (Id., Ex. T). On March 7, 1991, the court ordered the cause dismissed on the grounds that the notice of appeal was untimely (Id., Vols. II & III, Exs. V & W). Petitioner next appealed to the Ohio Supreme Court; however, the Ohio Supreme Court "sustained the dismissal (Id., Vol. IV, Ex. AA). The Ohio Supreme Court also denied a motion by Petitioner for a rehearing on September 18,1991 (Id., Ex. FF). On December 5, 1991, Petitioner filed a Petition for a Writ of Habeas Corpus with this Court. However, on September 22, 1992, this Court dismissed the petition without prejudice to enable Petitioner to exhaust his claim of ineffective assistance of appellate counsel in the Ohio courts (See Order issued September 22,1992). On November 23, 1992, Petitioner filed an Application for delayed Reconsideration in the Hamilton County Court of Appeals (R.O.W., Ex. GG). On March 12, 1993, the court of appeals denied Petitioner’s Application (R.O.W., Ex. HH). On May 7, 1993, Petitioner appealed the decision of the court of appeals to the Ohio Supreme Court. However, the Ohio Supreme Court affirmed the appellate court’s decision on October 27, 1993 (Id., Ex. MM). Petitioner then filed the current Petition for a Writ of Habeas Corpus in this Court pursuant to Title 28 U.S.C. § 2254 on February 4, 1994 (doc. 4). Respondent filed his Return of Writ on June 10, 1994 (doc. 12). After a flurry of filings by the parties and orders by the Court, the Court held a hearing on the Petition for a Writ of Habe-as Corpus on December 3, 1997. Subsequent to the hearing, Petitioner filed a post-hearing memorandum on January, 12, 1998. Respondent also filed a post-hearing memorandum on January 16,1998. II. FACTUAL BACKGROUND The charges against Petitioner arose from events that occurred on March 3, 1985. The followdng factual background comes directly from the Ohio Supreme Court’s opinion in this case, in which the court affirmed the conviction and sentence of Petitioner. Around 10:45 p.m., March 2, 1985, [Mary] Acoff left her basement-level apartment at 1944 Highland Avenue in Cincinnati and went to the apartment of her boyfriend, James Martin, who lived in the same building. Martin and Acoff engaged in sexual intercourse. Acoff left around midnight and returned to her apartment. Tony Nixon, who lived in the apartment above Acoff, testified that around 4:50 a.m. on March 3, 1985, he heard sounds ‘like a commotion’ coming from below. After Nixon stepped into the hallway of the building to await his ride to work he heard a downstairs door open. However, he did not see anyone downstairs. Cheryl Turner testified that as she drove toward the building about 6:00 a.m. to pick up Nixon, she saw [Petitioner] standing on the street a little way up from the building. She stated that [Petitioner] was wearing a dark, knee-length coat. Delrick Johnson testified that as he approached the Highland Avenue area around 5:30 a.m., he saw [Petitioner], whom he knew from school. Johnson honked his horn at [Petitioner], who responded by pulling his coat up around his ears. Johnson stated that [Petitioner] was wearing a long leather coat with a shorter coat underneath. About 4:15 p.m., March 3, 1985, ten-year old Joann Acoff, Mary Acoffs daughter, and Sandra Simmons, a neighbor, found Acoffs body on the living room floor of the apartment. The front door was unlatched and a kitchen window was closed but unlocked. The police found latent fingerprints, mud on the kitchen and living room floors, and blood stains on the outside kitchen windowsill. A blood-stained rock and fallen leaf were found on the ground outside the kitchen window. The ground beneath the kitchen window was muddy. Acoff died as a result of hemorrhage due to multiple stab, incised and blunt injuries to the head, chest, neck and upper extremities. In addition to at least four fatal stab wounds, Acoff had been cut with the point of a sharp knife numerous times and her throat had been slashed at least thirteen times. Acoffs left hand had been cut and was wrapped in a towel. Acoffs body was found nude, lying face up with legs spread apart. Semen was found in her vagina. The deputy coroner testified that the general pattern of bloodstains over the upper torso indicated that Acoff was killed while she was lying in a horizontal position. The front door of the apartment building was kept locked. To gain entry without a key, one had to ring the doorbell of an apartment and have the occupant open the front door. On the day of the murder, Acoffs • doorbell was not working. Apparently nothing was stolen from the apartment: Acoffs purse was undisturbed, á gold chain was found lying in a pool of blood on the floor and the stereo and television set were in place. Upon learning of [Petitioner’s] presence in the neighborhood, police called him and he went to the police station to be interviewed. [Petitioner] denied being in the vicinity of Acoffs apartment at the time of the murder. He was permitted to leave the police station. Shortly thereafter, police were told that a latent fingerprint lifted from the kitchen wall of Acoffs apartment had been identified as [Petitioner’s]. Police arrested [Petitioner] and informed him of the fingerprint, but [Petitioner] insisted that he had never been inside of Acoffs apartment and that he did not know her. Police searched [Petitioner’s] residence pursuant to a warrant and seized a damp pair of gym shoes, a long black leather coat, a short black leather jacket, and an eight-inch paring knife discovered inside the pocket of the jacket. The soles of the shoes contained human blood but in an insufficient amount to determine its type. A bloody shoeprint from the floor of Acoffs apartment was consistent with the characteristics of the soles of the seized gym shoes. Bloodstains found on the coat were consistent with Acoffs blood type (type AB) and inconsistent with [Petitioner’s] (type 0). A piece of unidentifiable human tissue was discovered on the long coat. . Semen stains, consistent with type O secretor, were also found on the coat. The rock outside of the kitchen window was stained with type AB blood and the fallen leaf with human blood, type unknown. - [Petitioner] was charged with two (2) counts of aggravated murder with specifications that: (1) [Petitioner], as a principal offender, purposely caused Acoffs death while committing or attempting to commit aggravated burglary; and (2) [Petitioner], as principal offender, purposely caused Acoffs death while committing or attempting to commit rape. The third and fourth counts charged [Petitioner] with aggravated burglary and rape. [Petitioner] pled not guilty. The jury found [Petitioner] guilty of both counts of aggravated murder and the accompanying specifications. The jury also found [Petitioner] guilty of aggravated burglary and not guilty of rape but guilty of attempted rape. The jury recommended a penalty of death; the trial court followed the recommendation and imposed a death sentence. The court further sentenced [Petitioner] on counts three and four to consecutive terms of imprisonment. Henderson, 39 Ohio St.3d at 24-25, 528 N.E.2d 1237. III. STANDARD OF REVIEW In the instant matter, Petitioner seeks relief under 28 U.S.C. § 2254. Section 2254, Title 28 of the United States Code, provides that “a district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” Title 28 U.S.C. § 2254(a) (1994). IV. APPLICABILITY OF THE AEDPA On April 24, 1996, President William Jefferson Clinton signed the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA” or the “Act”) into law. While the Act does not contain an effective date, we conclude that it became effective on the date of enactment. Zuern v. Tate, 938 F.Supp. 468, 470 (S.D.Ohio 1996). Furthermore, even though the Act amends certain provisions of the preexisting habe-as corpus statute that are codified in Chapter 153 of the Judicial Code and creates a new Chapter 154 of the Judicial Code containing a set of “Special Habeas Corpus Procedures in Capital Cases,” the new subsection of 2254, namely § 2254(d), is inapplicable to cases under Chapter 153 that were pending on the date the Act became effective. See Lindh v. Murphy, 521 U.S. 320, 322-23, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Groseclose v. Bell, 130 F.3d 1161, 1164 (6th Cir.1997); Powell v. Collins, C-1-94-656 (S.D.Ohio June 15, 1998). Accordingly, the amended sections of the habeas corpus statute falling under the Act’s Chapter 153 do not apply to the instant Petition because the Petition was filed prior to its enactment. As for Chapter 154 of the Act, it states that it shall apply to cases pending on or after the date of enactment of the Act. The special procedures in Chapter 154 provide a system of expedited review to states that qualify under the opt-in procedures set forth in Title 28 U.S.C. § 2261 (1996). These procedures pertain to requirements for the appointment of counsel for petitioners seeking post-conviction review of their capital sentences in the state court system. Having previously examined this topic, we again conclude that the State of Ohio has not “opted-in.” Therefore, we find that Chapter 154 does not apply to this case. See Mills v. Anderson, 961 F.Supp. 198, 199 (S.D.Ohio 1997); Scott v. Anderson, 958 F.Supp. 330, 334-35 (N.D.Ohio 1997); Hamblin v. Anderson, 947 F.Supp. 1179, 1183 (N.D.Ohio 1996); Landrum v. Anderson, C-1-96-641 (S.D.Ohio Dec. 9, 1996). Accordingly, pre-AEDPA law applies to the instant petition. V.ANALYSIS OF PETITIONER’S CLAIMS As a preliminary matter, we must address each of the claims that Respondent asserts Petitioner procedurally defaulted. Once it is determined conclusively which, if any, of Petitioner’s claims have been waived, the Court will address all of the claims that can be heard on the merits. Accordingly, we now proceed directly to the procedural default analysis. A. The Doctrine of Procedural Default The principles of procedural default are triggered whenever the state argues that a habeas corpus petition is precluded due to a petitioner’s failure to comply with a state procedural rule. Generally, under the doctrine of procedural default, if the state court previously dismissed a state inmate’s federal claim on the grounds that the inmate failed to comply with a state procedural rule, a federal district court cannot consider the merits of the federal claim. To determine whether the district court may consider the merits of an inmate’s federal claim, the court must engage in a complicated analysis. First, the court must determine whether a state procedural rule exists that is applicable to the petitioner’s claim and whether the petitioner failed to comply with the rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). Second, the court must decide whether the state courts actually enforced the state procedural violation. Id. In other words, the highest state court to rule on the claim must have clearly and unambiguously relied upon the procedural violation as the reason for rejecting the claim. Third, the court must decide whether the state procedural violation provided an “adequate and independent state ground” for denying the petitioner’s federal constitutional claim. Id.; see also Harris v. Reed, 489 U.S. 255, 260-62, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). The application of the “adequate and independent” state ground doctrine is grounded in concerns of comity and federalism because, without the rule, a federal district court would be able to do in habeas corpus what the state court could not do on direct appeal. Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Once the federal district court determines that the petitioner failed to comply with a state procedural rule, that the rule was actually enforced by the state courts, and that the rule was an adequate and independent state ground, then the petitioner can still have the procedural default bar removed by either: 1) demonstrating that there was “cause” for him to not follow the procedural rule and that he was actually “prejudiced” by the alleged constitutional error, or 2) establishing that his case falls within a category of cases where the court’s failure to consider the claims will result in a' “fundamental miscarriage of justice.” See Coleman, 501 U.S. at 750, 111 S.Ct. 2546; Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Maupin, 785 F.2d at 138; Leroy v. Marshall, 757 F.2d 94, 99 (6th Cir.1986). The Supreme Court has not precisely established the contours of the “cause” standard for courts to apply in the context of procedural default. Amadeo v. Zant, 486 U.S. 214, 221, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988). Generally, a petitioner may show “cause” by demonstrating a substantial reason to excuse the procedural default. Rust v. Zent, 17 F.3d 155, 161 (6th Cir.1994). As stated, once “causé” for the procedural default is demonstrated, the petitioner must still show that he was actually prejudiced by the claimed constitutional error. United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). The prejudice prong is not satisfied if there is strong evidence of the petitioner’s guilt and a lack of evidence to support his claimed constitutional error. Rust, 17 F.3d at 162. We note that unless the last state court rendering a judgment in a case “clearly and expressly” states that its judgment rests upon a state procedural ground that has been violated, federal courts on habeas review typically presume that a procedural default does not bar consideration of federal claim. Harris, 489 U.S. at 263, 109 S.Ct. 1038. This presumption, however, only applies to cases where the decision of the last state court rendering judgment in the case “fairly appears to rest primarily on federal law, or to be interwoven with federal law.” Coleman, 501 U.S. at 734-40, 111 S.Ct. 2546; Ylst v. Nunnemaker, 501 U.S. 797, 802, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). In a case where the last decision rendered by the state court is unexplained or unclear as to the grounds for the decision, a federal court may “look through” the unexplained order to the last reasoned state court order on the matter and presume that the later unexplained order rests on the same grounds as the explained order. Ylst, 501 U.S. at 802-804, 111 S.Ct. 2590. In this case, the claims for relief and particular sections therein that Respondent maintains Petitioner procedurally defaulted include: 2(A), 8, 10-15, 17(A), 19, 24-26, and 27. We shall first review the claim of ineffective assistance of appellate counsel. Respondent asserts that this claim has been waived by Petitioner. Next, we shall review the other grounds Respondent maintains have been waived by Petitioner. Finally, we shall address the claims Respondent concedes can be heard on the merits. These claims include: 1-7, 9,16-18, and 20-23. B. Petitioner’s Claim of Ineffective Assistance of Appellate Counsel CLAIMS 13 & 27: Petitioner was denied the effective assistance of counsel on direct appeal in violation of the Fifth, Sixth, and Eighth and Fourteenth Amendments. Petitioner was denied due process of law by the arbitrary refusal of the state appellate and supreme courts to allow him to access newly created procedure by which to raise his claims of ineffective assistance of appellate assistance on direct appeal. In his thirteenth claim for relief, Petitioner argues that the Court of Appeals, First Appellate District of Hamilton County, Ohio erred when it denied his pro se motion to rebrief and raise seven (7) additional assignments of error and fourteen (14) additional issues in his appellate brief that his appellate counsel failed to identify. By not raising the 7 additional assignments of error and 14 additional issues, Petitioner argues that his counsel were ineffective on appeal. Petitioner asserts that, during his post-conviction proceedings, he attempted to amend his post-conviction petition to raise the issue of ineffective assistance of appellate counsel as a thirteenth cause of action because his attorneys failed to raise the issue of ineffective assistance of trial counsel on direct appeal (Appendix to R.O.W., Yol. II, Ex. O). However, the State opposed Petitioner’s motion to amend his post-conviction petition. The court denied petitioner’s motion and struck it from the record (Id., Ex. S). In the instant matter, Petitioner maintains that the State violated his constitutional rights by first precluding him from raising the assignments of error and issues on direct appeal, and then subsequently denying him the ability to establish his appellate counsels’ ineffectiveness at the post-conviction proceeding. In particular, Petitioner contends that the failure of the State to provide a procedure by which to raise the issue of ineffective assistance of appellate counsel where such issue is based on facts outside the record violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. To the contrary, Respondent argues that there is no right under Rule 16 of the Ohio Rules of Appellate Procedure to hybrid representation, and that Petitioner failed to raise his claims in his appellate brief in accordance with state procedure. Respondent contends that it was not until after Petitioner’s counsel filed his appellate brief and the State filed its response that Petitioner then filed a pro se motion for leave to rebrief and file additional issues on September 25, 1986. On October 3, 1986, the State filed a memorandum in opposition to Petitioner’s motion, contending that the motion was not only late, but also that Petitioner did not have a right to hybrid representation. Thus, Respondent asserts that the appellate court appropriately denied his motion in accordance with Rule 16. Respondent also points out that Petitioner’s first federal habeas petition was dismissed for failing to exhaust his ineffective assistance of appellate counsel claim. After the dismissal, Petitioner filed an application for delayed Reconsideration and raised a Mumahan claim. However, the appellate court denied his application for delayed Reconsideration and his Muma-han petition as being untimely. Subsequently, the Ohio Supreme Court affirmed the appellate court’s judgment. Respondent firmly maintains that Petitioner procedurally defaulted his claim of ineffective assistance of counsel on direct appeal because he failed to comply with an adequate and independent state procedural rule that was actually enforced. Furthermore, Respondent asserts that Petitioner cannot show cause for his failure to comply with the state rule, nor demonstrate actual prejudice. Although Respondent does not contest that the Fourteenth Amendment mandates the effective assistance of counsel on appeal, Respondent argues that the appellate counsel does not have a duty to raise nonfrivolous issues on appeal if that counsel, as a matter of professional judgment, decides not to raise an issue on appeal. In essence, Respondent asserts that Petitioner makes nothing more than bare assertions of his appellate counsels’ ineffectiveness in his Petition, and, thus, this claim should be denied. We note that Rule 16(C) of the Ohio Rules of Appellate Procedure states that: ' The appellant may file a brief in reply to the brief of the appellee, and, if the appellee has cross-appealed, the appellee may file a brief in reply to the response of the appellant to the assignments of errors presented by the cross-appeal. No further briefs may be filed except with leave of court. Ohio App.Rule 16(C) (emphasis added). Under Rule 16(C), the court has discretion to determine whether to address the issues raised by Petitioner in his pro se brief upon appeal. State v. White, 71 Ohio App.3d 550, 551, 594 N.E.2d 1087, 1088 n. 1 (1991). The court chose to decline reviewing Petitioner’s pro se brief. Such a rejection by the court is not improper because no federal or state right to this sort of “hybrid representation exists”. United States v. Mosely, 810 F.2d 93, 97-98 (6th Cir.1987); State v. Landrum, 53 Ohio St.3d 107, 119, 559 N.E.2d 710, 725 (1990); State v. Thompson, 33 Ohio St.3d 1, 6, 514 N.E.2d 407, 413-14 (1987); State v. Beaver, 119 Ohio App.3d 385, 401, 695 N.E.2d 332, 343 (11th Dist.1997). Therefore, we find that the court did not abuse its discretion when it denied Petitioner’s pro se brief on direct appeal. Petitioner argues that the court erred, when it did not allow him to amend his post-conviction petition to assert his ineffective assistance of appellate counsel claim. However, an accused may not use a post-conviction petition to raise a claim of ineffective assistance of his appellate counsel. State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992). In Mumahan, which was decided on February 19, 1992, after Petitioner filed his post-conviction petition, the Ohio Supreme Court stated: 1. Claims of ineffective assistance of appellate counsel are not cognizable in post-conviction proceedings pursuant to R.C. 2953.21. 2. Claims of ineffective assistance of appellate counsel may be raised in an application for Reconsideration in the court of appeals or in a direct appeal to the Supreme Court pursuant to Section 2(B)(2)(a)(iii), Article IV of the Ohio Constitution. 3. Where the time period for Reconsideration in the court of appeals and direct appeal to the Supreme Court has expired, a delayed claim of ineffective assistance of appellate counsel must first be brought in an application for delayed Reconsideration in the court of appeals where the alleged error took place, pursuant to App.R. 26 and 14(B), and if the delayed Reconsideration is denied then the defendant may file for delayed appeal in the Supreme Court, pursuant to Section 8, Rule II of the Rules of Practice of the Supreme Court. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 at syllabi ¶¶ 1, 2, 3, 584 N.E.2d at 1205 (internal citations omitted). Thus, the appropriate place for raising a claim of ineffective assistance of appellate counsel is either through an application for reconsideration or delayed Reconsideration, or through a direct appeal to the Ohio Supreme Court. Approximately eighth months after Mumahan was decided, Petitioner filed his Application for delayed Reconsideration of his Direct Appeal with the Hamilton County Court of Appeals pursuant to App.R. 14(B), App.R. 26, and Mumahan (Appendix to R.O.W., Vol. IV, Ex. GG). In this Application, Petitioner alleged that he had received ineffective assistance of appellate counsel and he listed and explained fifteen (15) errors that had occurred at Petitioner’s trial and six (6) issues that were not raised by previous appellate counsel, but that he argued are nonetheless substantial and meritorious. (Id.) The Hamilton County Court of Appeals denied Petitioner’s motion for delayed Reconsideration as being untimely, stating: Appellant has failed to demonstrate good cause pursuant to App.R. 14(B) to justify the delay in applying for reconsideration beyond the time permitted by App.R. 26. In view of the settled law in this district with respect to the pursuit of claims of ineffective assistance of counsel, see, e.g., State v. Rone (Aug. 31, 1983), Hamilton App. No. C-820640, 1983 WL 5172, unreported, we specifically reject, under the circumstances of this case, the proposition that good cause for the delay is provided by the Ohio Supreme Court’s decision in State v. Murnahan, (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204. (Id., Ex. HH). Thereafter, Petitioner filed a notice of appeal from the decision denying his Application for delayed Reconsideration and he requested leave to file an appeal as of right (Id., Exs. II & JJ). However, on October 27, 1993, the Ohio Supreme Court affirmed the judgment of the court of appeals, ruling that “[t]his cause, here on appeal from the Court of Appeals for Hamilton County, was considered in the manner prescribed by law. On consideration thereof, the judgment of the court of appeals is affirmed” (Id., Ex. MM). Consequently, Petitioner asserts that he was denied due process of law by the arbitrary refusal of the state appellate and supreme courts to allow him to access a procedure created in Mumahan by which to raise his claims of ineffective assistance of appellate assistance on direct appeal. Respondent argues that Petitioner’s claim of ineffective assistance of appellate counsel is procedurally defaulted because he failed to timely raise this claim in state court pursuant to Mumahan. The Parties’ contentions raise the issue of whether the state procedural rules used to bar Petitioner’s claim of ineffective assistance of appellate counsel in the state courts were firmly established at the time Petitioner would have had to comply with them so as to constitute adequate and independent state procedural rules for the purposes of federal habeas review. As stated earlier, in Mumahan, the Ohio Supreme Court resolved the conflict in the Ohio courts of appeals and held that ineffective assistance of appellate counsel claims cannot be raised in post-conviction proceedings but rather should be raised in motions for delayed reconsideration in the court of appeals. Murnahan, 63 Ohio St.3d at 65-66, 584 N.E.2d at 1209. The Ohio Supreme Court established the following procedures: in an individual case where a defendant has put forth a colorable claim of ineffective assistance of appellate counsel, where the circumstances render the application of res judicata unjust, and the time periods for Reconsideration in the court of appeals and direct appeal to this court have expired, he or she must: (1) apply for delayed Reconsideration in the court of appeals where the alleged error took place pursuant to App.R. 26 and 14(B), and if delayed Reconsideration is denied, then (2) file for delayed appeal in this court pursuant to Section 8, Rule II of the Rules of Practice of the Supreme Court. Murnahan, 63 Ohio St.3d at 66, 584 N.E.2d at 1209. At the time of the Court’s decision in Murnahan, Ohio App.R. 26 provided, [a]n application for Reconsideration of any cause or motion submitted on appeal shall be made in writing before the judgment or order of the court has been approved by the court and filed by the court with the clerk for journalization or within ten days after the announcement of the court’ decision, whichever is the later [sic], Ohio App.R. 26 (Anderson 1975). At that same time, Ohio App.R. 14(B) provided that “[t]he court for good cause shown may upon motion enlarge or reduce the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time.... ” Ohio App.R. 14(B) (Anderson 1975). The Ohio Supreme Court specifically noted in Mumahan that, the state appellate rules as then written may be insufficient to provide the remedy set forth in its opinion. The Court stated: [i]n light of the fact that Ohio has no statutory authority or court rules dedicated to the procedure to be followed by defendants who allege ineffective assistance of appellate counsel, we recommend to the Rules Advisory Committee appointed by this court to review whether an amendment to App.R. 14(B) or a new rule should be adopted to better serve claimants in this position. Id. at 66 n. 6, 584 N.E.2d at 1209 n. 6. Thereafter, in response to Mumahan’s directive, Ohio App.R. 26 was amended, effective July 1, 1993, permitting a defendant in a criminal case to apply for reopening the appeal from the judgment of conviction and sentence based on a claim of ineffective assistance of appellate counsel and requiring such application to be filed in the court of appeals where the appeal was decided “within ninety days from jour-nalization of the appellate judgment unless the applicant shows good cause for filing at a later time.” Ohio App.R. 26(B)(1) (Anderson 1997). Petitioner argues that the Hamilton County Court of Appeals’ conclusion that his Application for delayed Reconsideration was not timely is in error because Mumahan, swpra, had not even been decided when his case was on direct appeal. Petitioner cites to State v. Rone, App. No. C-920640, 1983 WL 5172, at *1 (Hamilton Cty. Ct.App. Aug. 31, 1983), for the proposition that there did not exist a firmly established procedure for raising ineffective assistance of appellate counsel claims in the First Appellate District, let alone for raising an ineffective assistance of counsel claim based on facts outside the record. Additionally, Petitioner argues that the court of appeals ignored the fact that the same counsel that represented Petitioner on direct appeal were the same counsel he claims were ineffective. Furthermore, Petitioner asserts that he did attempt to raise the ineffective assistance of appellate counsel claim with the First Appellate District Court but was denied leave to do so. Thus, Petitioner asserts that Rone does not create a remedy at all or, even at the least, it does not create a remedy established by Mumahan. Petitioner contends that the Ohio Supreme Court erroneously adopted these errors and omissions when it declined jurisdiction in his case. In essence, Petitioner asserts that he has been denied a forum for raising his ineffective assistance of appellate counsel claim in the state courts in violation of his constitutional rights. The concern of this Court centers around whether the procedural rule actually enforced by the state court is an adequate and independent state ground given the then-existing state of Ohio law concerning that procedural rule. Respondent argues that Rone is an adequate and independent state ground upon which the Hamilton County Court of Appeals relied in denying Petitioner’s motion for delayed Reconsideration. In Rone, the Hamilton County Court of Appeals held that ineffective assistance of appellate counsel claims were not cognizable in post-conviction proceedings. Rone, 1983 WL 5172, at *4. Although not a part of the holding of the case, the court purported to describe three alternative ways to raise the claim. Two of the methods were “merely illustrations” of other methods employed by other state jurisdictions. See Combs v. Anderson, C-1-95-733, at 153 (S.D.Ohio Oct. 21, 1997). With respect to the third method, the court stated, “[w]e are further convinced that the appellate court in which counsel had been alleged ineffective could consider the issue upon a motion for Reconsideration of its own judgment.” Id. Contrary to Respondent’s assertion, we hold that Rone is not an adequate and independent state ground for the following reasons. First, Rone did not clearly establish a procedure for raising a claim of ineffective assistance of appellate counsel. It did nothing more than conclude that ineffective assistance of appellate counsel claims could not be raised in post-conviction proceedings. See Sowell v. Colins, C-1-94-237, at 62 (S.D.Ohio Feb. 18, 1998) (holding that, upon reviewing Rone, there was no firmly established state procedure for raising ineffective assistance of appellate counsel claims prior to Mumahan). The Rone court merely suggested, without further guidance, the other means of raising a claim, but the court did not provide any analysis or consideration as to the viability of them suggestions. Despite its statement “there must be a viable means of recourse available to one who has been denied the effective assistance of appellate counsel,” Rone, 1983 WL 5172, at *3, the court’s suggested third remedy is hollow. Ohio App.R. 14(B)’s standard of “good cause” is too vague to alert a defendant as to a deadline beyond the ten days, and thus the rule does not give any reasonable certainty as to the procedure. The Ohio Supreme Court has recognized that often a defendant may not be able to identify without counsel the errors of his appellate counsel or the ineffectiveness of appellate counsel may not be discovered by a different attorney in the time allotted for motions to reconsider. See Murnahan, 63 Ohio St.3d at 65-66, 584 N.E.2d at 1209. The time constraints applicable to the Rone court’s remedy do not take into account the considerations noted by the Ohio Supreme Court. And the Rone court did not explain how a defendant could either retain a new attorney within 10 days to challenge the effectiveness of appellate counsel or discover the ineffectiveness while still represented by same appellate counsel within the time allotted. More significantly, the Ohio Supreme Court in its decision in Mumahan specifically recognized the lack of any statewide appellate rules in 1992 to deal with the situation where a defendant does not discover an appellate ineffectiveness claim until after the time for moving to recoiisider has expired. Thus, by the Ohio Supreme Court’s own analysis, until amended Ohio App.R. 26 became effective in 1993, pursuant to its decision in Mumahan, there was no viable method of raising a claim of ineffective assistance of appellate counsel where the time for moving to reconsider had already expired. Moreover, Rone could not have established a viable system for raising ineffective assistance of appellate counsel claims as it was decided approximately ten years prior to Muma-han and the effective date of Ohio App.R. 26. Thus, Rone, did not establish a clear, viable method for alleging ineffective assistance of appellate counsel claims. Secondly, Rone was not consistently applied by the Hamilton County Court of Appeals at the time Petitioner would have been expected to comply with the rule. The Hamilton County Court of Appeals confused the issue of how to raise ineffective assistance of appellate counsel claims by its decision three months after Rone in State v. Campbell, No. C-830221, 1983 WL 5302, at *1 (Ohio Ct.App. Nov.9, 1983). In Campbell, the court declined to apply Rone to an ineffective assistance of appellate counsel claim raised in a post-conviction petition. Instead, the court denied the claim on the grounds that it was not supported by evidentiary documents containing sufficient operative facts to demonstrate its validity. Id. Thirdly, looking at the decisions of a number of Ohio courts of appeals and the Ohio Supreme Court, it is readily apparent that, prior to Mumahan, Ohio law was not firmly established as to how to raise a claim of ineffective assistance of appellate counsel. Moreover, until Mumahan was decided in 1992, 'on a state-wide basis, the rules regarding how to raise an ineffective assistance of appellate counsel claim varied significantly. Compare, e.g., State v. Howard, 42 Ohio St.3d 18, 23, 537 N.E.2d 188, 193 (1989) (considering ineffective assistance of appellate counsel claim on post-conviction); State v. Miller, 44 Ohio App.3d 42, 43, 541 N.E.2d 105, 107 (Ohio App. 6 Dist.1988) (same); State v. Sawyer, No. CA85-12-160, 1986 WL 7116, at *2 (Ohio App. 12 Dist., June 23, 1986) (same); State v. Kaldor, No. 83-B-12, 1985 WL 10432, at *1 (Ohio App. 7 Dist., Apr.29, 1985) (same); with, e.g., State v. Mitchell, 53 Ohio App.3d 117, 119, 559 N.E.2d 1370, 1372 (Ohio App. 8 Dist.1988) (holding ineffective assistance of appellate counsel claims not cognizable on post-conviction); State v. Fraley, No. 88-AP-180, 1988 WL 55434, at *2 (Ohio App. 10 Dist., May 17, 1988) (stating same); see also Manning v. Alexander, 912 F.2d 878, 881-883 (6th Cir.1990) (finding that by 1990 the Ohio Supreme Court had not spoken clearly as to how to initiate claims of ineffective assistance of appellate counsel and that Ohio law appeared to permit an ineffective assistance of appellate counsel claim to be raised in post-conviction); Sowell, supra, at 61 (concluding that prior to Mumahan the procedure in Ohio for raising ineffective assistance of appellate counsel claims was unsettled and citing Manning); Combs, C-1-95-733, at 154 (recognizing that prior to Mumahan there was no procedure established state-wide to present ineffective assistance of appellate counsel claims) (emphasis in original). Respondent seems to rely on the fact that a decision by the Hamilton County Court of Appeals is binding on Petitioner and therefore it does not matter what the state of the law was as determined by other Ohio courts of appeals. However, the Court is not convinced that, in analyzing the state procedural rules so as to determine whether they are adequate and independent state ground to bar federal habeas review, we should be concerned only with the Hamilton County Court of Appeals decisions as opposed to the rules announced by the Ohio Supreme Court or state-wide appellate rules. For example, in determining the state of Ohio law in 1990 regarding how to raise ineffective assistance of appellate counsel claims, the Sixth Circuit did not look to only decisions of the court of appeals relevant to the petitioner in the case. Instead, the Sixth Circuit examined whether the Ohio Supreme Court had resolved the issue and to the fact that many courts of appeals were in conflict regarding the issue. See Manning, 912 F.2d at 881-883 (holding that petitioner had exhausted his state remedies and that he had adequately presented ineffective assistance of appellate counsel claim in a post-conviction petition); see also Reed v. Scott, 70 F.3d 844, 846 n. 18 (5th Cir.1995) (reviewing several state courts of appeals decisions to determine whether a state procedural rule was firmly established so as to be an adequate state ground to bar federal habeas review). We recognize that our sister court in Combs held contrary to us, but we find that case distinguishable. In Combs, the Hamilton County Court of Appeals did not rely upon Rone in denying the petitioner’s application for reconsideration, unlike what the court did in Petitioner’s case here. In other words, Rone was not the procedural bar enforced by a state court that the district court had to determine whether it was an adequate and independent state ground. Rather, the court of appeals relied upon amended Ohio App.R. 26(B) because, unlike here, the petitioner’s application was filed in 1994, after the effective date of the amendment to Ohio App.R. 26(B). Thus, the Combs ’ discussion of Rone is irrelevant to its holding. Moreover, even though the Combs court states in its conclusion that the Hamilton County Court of Appeals consistently applies Rone, none of the cases cited for support of the consistent application of Rone involve factual situations in which a defendant presents a claim of ineffective assistance of appellate counsel in a manner suggested by Rone. Rather, the holding of Rone —that ineffective assistance of appellate counsel claims are not cognizable in post-conviction — is what is consistently applied by the courts. All of the cases cited in Combs, C-1-95-733, at 155, denied a claim of ineffective assistance of appellate counsel raised in post-conviction on the basis of Rone. Finally, in Combs, the court is not concerned with whether there was an adequate and independent rule established by the Ohio Supreme Court or followed state-wide. Instead, the court in Combs was concerned only with whether there was a rule serving the Hamilton County Court of Appeals. As we stated earlier, we are not convinced that our concern should be focused merely on the court of appeals as opposed to the rules announced by the Ohio Supreme Court or recognized state-wide by the appellate courts. Accordingly, we conclude that there was no firmly established Ohio rule regarding how to raise ineffective assistance of appellate counsel claims prior to Mumahan. Petitioner filed his Application for delayed Reconsideration on November 23, 1992, pursuant to Mumahan, but before the amended Ohio App.R. 26 became effective in 1993. Therefore, the only procedural rule to which Petitioner was subject was Mumahan, and thus the issue before the Court is whether Petitioner complied with the procedure set forth in Mumahan. The Mumahan Court directed Petitioner to Ohio App.R. 14(B) and 26 as the method for raising the ineffective assistance of appellate counsel claim in a motion for delayed Reconsideration. The court clearly indicated that those rules should be amended because of the difficulty in discovering and raising ineffective assistance of appellate counsel claims in time under the current rules. Id., 63 Ohio St.3d at 66 n. 6, 584 N.E.2d 1204. Ohio App.R. 14(B), which governed the enlargement of time for filing a motion beyond the ten days from the original appellate judgment, did not define “good cause.” Moreover, neither the Mumahan decision nor Ohio App.R. 14(B) set an outer limit or absolute deadline that would have alerted Petitioner to a certain deadline for filing a Mumahan Application pursuant to the rule. Petitioner filed the Mumahan Application eight months after Mumahan was decided. Given that there was no firmly established rule in Mumahan or in Ohio App.R. 14(B) that would have alerted Petitioner to file sooner than eight months after Mur-nahan was decided, we conclude that Petitioner did not procedurally default his ineffective assistance of appellate counsel claim by raising it in his Mumahan Application. See Sowell, C-l-94-237, at 64 (holding that petitioner did not violate procedure set forth in Mumahan by filing motion for delayed Reconsideration in court of appeals three months after the Mumahan decision). Accordingly, we find that the claim of ineffective assistance of appellate counsel is not waived and can be heard on the merits. Nonetheless, in order to establish a constitutional violation of ineffective assistance of counsel, the petitioner must satisfy the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). More specifically, the petitioner must show both that his counsel’s representation fell below an objective standard of reasonableness and that his deficiencies prejudiced his defense. Strickland, 466 U.S. at 698, 104 S.Ct. 2052; Bowen v. Foltz, 763 F.2d 191, 194 (6th Cir.1985). First, the petitioner must show that his counsel’s performance was deficient. Id. at 687, 104 S.Ct. 2052. In other words, that his counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment of the Constitution. Id. Secondly, the petitioner must show that his counsel’s deficient performance prejudiced his defense. Id. A petitioner may establish the second “prejudice” prong of the Strickland test by showing that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 693-94, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.; see also Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); United States v. Morrow, 977 F.2d 222, 229 (6th Cir.1992); Blackburn v. Foltz, 828 F.2d 1177, 1180 (6th Cir.1987). If the petitioner fails to satisfy either of the two prongs of the Strickland formula, it cannot be said that his conviction and/or subsequent death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Id. at 687, 104 S.Ct. 2052. Specifically, Petitioner asserts in his Mumahan Application that his appellate counsel was ineffective because they failed to raise the issues that: (1) his conviction for attempted rape was against the manifest weight of the evidence; (2) the trial court erred by instructing the jury to consider death before commencing deliberation of either of the two life imprisonments sentences; (3) his trial counsel was ineffective during the voir dire, trial, and sentencing stages of the proceedings; (4) trial court erred in admitting evidence that allowed the jury to consider non-statutory aggravating circumstances and weigh them against the mitigating factors established during the sentencing hearing; (5) The multiplicitous indictment returned in this case combined with the supplemental jury charge offered by the court during the trial phase of the deliberations was in violation of his constitutional rights; (6) the prosecutor used his peremptory challenges in a discriminatory manner; (7) the prosecutor used his peremptory challenges to exclude all jurors who expressed any scruples about the death penalty; (8) the policies and procedures employed by the Hamilton County prosecutor’s office in seeking and securing capital convictions and death sentences violated Petitioner’s constitutional rights; (9) the appellate review conducted by the state courts was incomplete and failed to ensure that Petitioner’s sentence was not arbitrarily and capriciously applied; (10) the prosecutor’s actions of consistently calling for the jury to seek justice for the community was a violation of his constitutional rights; (11) the constitutionally mandated appellate review was conducted through reliance upon an incomplete record; and, (12) the prosecutor introduced evidence of the personal characteristics of the victim at trial and sentencing phase of the proceedings. While the Court recognizes that, in effectuating the goal of “vigorous and effective advocacy,” the attorney need not advance every argument on appeal, regardless of merit, that is pointed out by the appellant in noncapital cases, Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), we believe that, in capital cases, appellate counsel should approach the traditional process of winnowing out claims with extreme caution. In other words, we believe that the advice espoused by Chief Justice Burger in Jones — namely that the appellate counsel’s duty is not to raise every “colorable” argument, but focus on one central issue if possible or at most a few key issues — is not pragmatic in light of the high stakes involved in capital case. Moreover, it is Chief Justice Burger who reminds us in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), that there is a “qualitative difference” between the death sentence and other penalties. Id. at 604, 98 S.Ct. 2954 (“We are satisfied that this qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed.”). The difference that Chief Justice Burger intimated in Lockett certainly should apply to the manner in which counsel approach a capital case on appeal. In capital cases, appellate counsel should be cautious in winnowing out claims and asserting only those claims that they perceive are the best of those that are available. This does not mean that counsel on appeal should raise frivolous issues that are clearly without merit. Simply put, counsel on appeal should assert every conceivable claim that possesses some merit and some support in the trial record. This approach should be followed because: (1) like any case on direct appeal — issues abandoned by counsel cannot be reclaimed later, and (2) the stakes are much higher in capital than non-capital cases. Reviewing the record, we conclude that the failure of Petitioner’s appellate counsel to raise the claims presented in his Muniahan Application constitutes cause as established in Strickland. Nevertheless, we conclude that Petitioner fails to demonstrate that, but for his counsels’ failure in bringing these claims, the overall outcome of the appellate court would have been different. Thus, Petitioner fails to undermine our confidence in the overall outcome of the appellate proceedings. Accordingly, we find that Petitioner’s claim of ineffective assistance of appellate counsel is without merit, and, thus, DENIED. C. OTHER CLAIMS RESPONDENT ASSERTS WERE PROCEDURALLY DEFAULTED CLAIM 2(A): Petitioner Henderson’s conviction for attempted rape and the death penalty specification of attempted rape are against the manifest weight of the evidence in violation of the Fifth, Sixth, and Eighth and Fourteenth Amendments to the United States Constitution. Petitioner asserts in this claim that his conviction of attempted rape and the conviction of aggravated murder during the course of an attempted rape and the accompanying specification that the aggravated murder was committed during the course of an attempted rape are against the manifest weight of the evidence. In contrast, Respondent argues that this claim has been waived because the claim was not raised in state courts. Instead of raising the claim that the death specification and his conviction for attempted rape are against the manifest weight of the evidence in the state courts, Respondent asserts that Petitioner merely attacked the sufficiency of the evidence. This is an entirely different claim according to Respondent. Respondent also argues that Petitioner cannot prove cause and prejudice existed for not raising this claim. In order for the district court to consider a federal habeas petitioner’s claim, the petitioner must have “fairly presented” to the state courts the “substance” of the federal habeas corpus claim. Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982). A petitioner cannot simply make a bare assertion in his federal habeas review that all of the facts necessary to support the federal claim were before the state court or that “a some-what similar state-law claim was made.” Id. Failure of a petitioner to raise a claim on direct appeal or in the Ohio Supreme Court constitutes procedural default, and, thus a waiver of his claim for federal habeas review unless he can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional error. Leroy, 757 F.2d at 97. In the instant matter, Petitioner did not fairly present this claim in the state courts. On direct appeal, Petitioner asserted as his Second Assignment of Error that the issue for review was “[whether proof that a victim was killed while she was naked is sufficient to prove that her killer attempted to rape her” (See Appendix to R.O.W., Vol. I, Ex. D at 11). In his appeal to the Ohio Supreme Court, Petitioner asserted in his Proposition of Law No. 3 that the evidence of Ms. Acoff being killed while naked was insufficient to prove that her killer attempted to rape her. (Id., Ex. G at 16). Petitioner raised this claim for the first time in his post-conviction petition as his Second Cause of Action. However, the state court barred this claim on res judicata grounds. Barring a claim based on res judicata normally constitutes an adequate and independent state ground precluding federal habeas corpus review of Petitioner’s claim. In his Petition, Petitioner now intertwines his argument regarding the sufficiency of the evidence with his argument that the conviction was against the manifest weight of the evidence in an attempt to bolster his argument that they are the same claim. However, even though Petitioner would have one believe that his sufficiency of the evidence claim raised in his brief to the court of appeals and Ohio Supreme Court is so similar to the instant claim that this Court should find that he did present the claim in the state courts, we disagree. Thus, because Petitioner failed to present this claim to the state courts, this Court may not consider the claim absent a showing of cause and prejudice by Petitioner. Wainwright, 433 U.S. at 87, 97 S.Ct. 2497; Leroy, 757 F.2d at 97. In his Traverse, Petitioner provides nothing in support of an argument for cause for his failing to raise this claim in the state courts. Although Petitioner maintains that the ineffective assistance of his appellate counsel is cause for failing to raise this claim, as we stated, Petitioner fails to satisfy the second prong of the Strickland analysis to sustain such an assertion. Finding that Petitioner failed present this claim to the state courts, and that a “fundamental miscarriage of justice” will not occur by not considering this claim, we conclude that part 2(A) of Petitioner’s second claim for relief is hereby waived. CLAIM 8: The trial court’s instructions to the jury at the sentencing phase of the proceedings advised the jury that they must consider death first before commencing deliberation on either of the two life verdicts. This instruction is fundamentally unfair, and violates the Fifth, Sixth, and Eighth and Fourteenth Amendments to the United States Constitution. In his eighth claim for relief, Petitioner contends that the trial court’s instructions to the jury at the penalty phase, namely that they must first consider death before addressing either of the two possible life verdicts under Ohio Rev.Code § 2929.03(D)(2), was erroneous. While Petitioner acknowledges in his Traverse that the instruction given by the trial judge in his ease was modeled after the Ohio pattern jury instructions, he asserts that the instruction was partial and biased in favor of death. Petitioner asserts that the error in the initial instruction was then compounded by the trial judge’s supplemental Allen charge to the jury, discussed infra Section C, claim 9, which Petitioner argues resulted in him ultimately being sentenced to death. Petitioner did not raise this claim on direct appeal or during his appeal to the Ohio Supreme Court. The only claims that were raised that are similar, albeit not to the point of being considered “fair presentations” of this claim, include his Fourteenth Assignment of Error in his direct appeal brief and his Proposition of Law No. 9 in his brief to the Ohio Supreme Court. In these claims, Petitioner sought relief based on the trial court sending the jury back to deliberate after giving an Allen charge. The first time Petitioner raises this exact claim is in his post-conviction petition as his tenth cause of action. ■ However, the court barred Petitioner’s claims under the doctrine of res judicata. Other than through a demonstration of cause and prejudice, we do not believe that the state court’s finding should be disturbed. Wainwright, 433 U.S. at 87, 97 S.Ct. 2497. In his Traverse, Petitioner makes no showing of cause for his failure to present this claim to the state courts. Petitioner also fails to show that the Court’s failure to consider this claim will result in a “fundamental miscarriage of justice.” We therefore conclude that Petitioner’s eighth ground for relief is hereby waived. CLAIM 10: Petitioner Henderson was denied a fair trial, due process, equal protection of the law and the effective assistance of counsel at the voir dire stage of his trial in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. In Petitioner’s tenth ground for relief, he cites nine (9) areas in support of his assertion that he was denied effective assistance of cou