Full opinion text
ORDER SPIEGEL, Senior District Judge. This matter is before the Court on Petitioner William H. Smith’s Second Amended Petition for a Writ of Habeas Corpus (doc. 46); Respondent State of Ohio’s (hereinafter, “the State” or “Respondent”) Amended Return of Writ (doc. 47); and Petitioner’s Traverse in Response to Respondent’s Return of Writ (doc. 51). The Court also takes into consideration Respondent’s Motion to Supplement the State Court Records (docs. 59, 60, & 61). I. INTRODUCTION Petitioner William H. Smith (hereinafter, “Smith” or “Petitioner”) petitions the Court for a writ of habeas corpus pursuant to Title 28 U.S.C. § 2254, et seq. Specifically, Petitioner challenges the constitutional sufficiency of his state court convictions as to: Count I for murder during a rape; Count II for murder in the course of an aggravated robbery; Count III for rape; and Count IV for aggravated robbery. Petitioner also challenges the constitutionality of the state court’s imposition of a sentence of death for his murder conviction. II. FACTUAL HISTORY The Ohio Supreme Court set out the factual history of this case when it considered Petitioner’s direct appeal of his trial court convictions highlighting the evidence adduced at Petitioner’s trial. See State v. Smith, 61 Ohio St.3d 284, 285-87, 574 N.E.2d 510, 512-14 (1991). The Court repeats this factual history here. On Saturday afternoon, September 26, 1987, Mary Virginia Bradford, age forty-seven, visited the Race Inn, a neighborhood bar in Cincinnati, Ohio. While at the Race Inn, she had several beers and met, talked, and danced with William H. Smith, appellant, a regular bar patron. She left the Race Inn around 11:45 p.m. Around 4:00 p.m., on September 27, Marvin Rhodes, Bradford’s boyfriend, stopped by her apartment because he had not seen her since Friday, September 25. No one answered the doorbell, but Rhodes found the door unlocked and went in. Rhodes saw blood near the front door and found Bradford in the bedroom. Feeling her face, he found no life in her body and called the police. Responding police officers found Bradford lying stabbed to death on her bed, nude from the waist down. On the floor, near her bed, police found a woman’s pants and panties, blood-stained and turned inside-out, and, on the bed, an oxygen machine used by asthmatics. Forensic examination disclosed a .13 percent blood-alcohol level and revealed sperm in her vagina and on her abdomen. Near the front door of the apartment, police found a chair, with a pool of blood on it, and, on the floor, blood smears including a bare bloody footprint leading to the bedroom. The apartment was otherwise exceptionally neat and clean, with no signs of disorder, disarray, or a struggle, and police found no murder weapon in the apartment. One color television, one black and white television, and a stack stereo with two speakers were missing from Bradford’s apartment. Dr. Harry J. Bonnell, Chief Deputy Coroner, testified that Bradford died as a result of ten stab wounds to her upper body and consequent loss of blood. She was five feet, three inches tall, weighed one hundred sixteen pounds, and a portion of her lung was missing, which explained her asthmatic condition. Bon-nell numbered the wounds one to ten for descriptive purposes (but not indicative of the order in which inflicted). The most lethal wounds, causing incapacitation within five minutes, were wound eight, a four-inch wound into Bradford’s right lung and heart, and wound nine, a four-inch wound into the sternum and the heart’s right ventricle. Wound seven, a five-inch puncture into the rib and liver, and wounds eight and nine all fractured bony structures. Wound two, four, inches in depth, crossed her neck from left to right. Wound ten punctured the liver and was no more than four inches in depth. Two wounds, one and five, showed no signs of hemorrhage and thus were inflicted after death when the heart was not pumping sufficient blood. Wounds one, three, four, and six were superficial. Bradford’s body exhibited no other evidence of injury or trauma such as bruises or defensive wounds, and Bonnell observed no twisting motion in the stab wounds that would indicate a violent struggle. All the wounds could have been inflicted by the same single-edged knife. On September 28, 1987 homicide detectives went to where Smith lived, the home of Bertha Reid, Smith’s mother, which was about four blocks from Bradford’s home. When police arrived, Smith was not at home, and Reid let the officers in. While at Reid’s home, police noticed a television set matching the description of one of the two sets missing from Bradford’s home. Thereafter, police secured a warrant, found the missing two televisions in Reid’s home, and seized them. Reid testified that when her son came home around 2:00 a.m. on September 27, he did not act unusual, nor did he appear to be drunk, high, or upset. However, Smith did carry into Reid’s home the two televisions in question along with a large stereo system and two speakers. Reid asked where he got the televisions and stereo, and Smith replied that his girlfriend Carolyn gave them to him. Reid did not accept her son’s explanation, telling him he would “have to explain to me a little more about what’s going on.” Later that morning, Smith and his cousin, Greg, took the stereo and two speakers away but left the televisions. Reid also showed police clothing that her son had worn on September 26 and 27, which police seized. Subsequent forensic analysis revealed that Smith’s shirt and shoes bore traces of human blood. On September 28, 1987, police apprehended and took Smith to police headquarters for questioning. After being advised of his rights, Smith agreed to talk to the police. Smith initially asserted that he had driven Bradford home that night but he had just dropped her off. He later admitted that he had been in her apartment but had left when her boyfriend arrived. Smith told police that he met Bradford at the Race Inn, later drove her and her girlfriend to another' bar, and then drove Bradford home. While at her house, Smith claimed that someone he thought to be Bradford’s boyfriend arrived, and Smith decided to leave quickly. After Smith left, he realized that he had left a packet of cocaine, worth $2,500, at Bradford’s house. After he returned, Bradford’s boyfriend and the cocaine were both gone. Smith then talked with Bradford. “[W]e talked about restitution, you know. She said she’d give me some of that body. I said okay, its good enough for me, you know, but then after I got that [had sex with her] it wasn’t good enough, you know, so I asked her like you got any money and stuff, you know. She said she ain’t have no money. So we start arguing and stuff and next thing you know she slid over to the kitchen and got [a] little blade — [small carving knife].” According to Smith, Bradford was stabbed in the stomach during the ensuing struggle and fell onto a chair. He removed the knife from her stomach, and she dragged or walked by herself to the bedroom. He recalled stabbing her in the neck in the bedroom after she called him a “motherfucker,” but he did not admit inflicting the other stab wounds. When she was lying on the bed, he took her clothes off and got back on top of her and had sex again. Police asked: Q. [A]fter you had sex with her the second time, after she was stabbed, then what’d you do? I gathered up my things together and started taking her stuff downstairs. What’d you take out of there? Her two TV’s and her stereo. Smith said he made four trips carrying her things down to his car and that he took her things in order to sell them. Although Smith initially claimed that he did not know whether Bradford had stopped breathing, he later admitted he decided to have sex with her again because “she was still breathing then.” He said that he pulled his penis out as he started to climax and finished ejaculating on her stomach. He did this because he was thinking about getting out of the apartment. Smith claimed he threw the knife into the Ohio River and sold Bradford’s stereo in Dayton. However, police recovered her stereo in Cincinnati. When police interviewed Smith they also seized a pair of undershorts from him stained with blood of the same type as Bradford’s. Smith was indicted on two counts of felony-murder, Count I alleging murder during rape, and Count II alleging murder in the course of aggravated robbery. Each count contained two death penalty specifications, one alleging aggravated murder during rape and the other alleging murder during aggravated robbery. Count III alleged rape and Count IV alleged aggravated robbery. Smith pled not guilty and not guilty by reason of insanity, but he later withdrew the insanity plea. A panel of three judges convicted Smith as charged. After a hearing, the panel sentenced Smith to the death penalty on each murder count. The court of appeals affirmed the convictions and death penalties. Smith, 61 Ohio St.3d at 284-87, 574 N.E.2d at 512-14. III. PROCEDURAL HISTORY William H. Smith was indicted on October 21, 1987, on two counts of aggravated murder, one count of rape, and one count of aggravated robbery (doc. 47). Upon arraignment, Smith first entered a plea of not guilty and not guilty by reason of insanity as to all charges (Id.). Prior to trial, Smith waived his right to a jury trial, subsequently withdrew the waiver, entered another waiver of a jury trial, and finally requested to be tried by a three-judge panel instead (Id). The trial by panel began on April 4,1988. On April 6, 1988, Smith was convicted in the Court of Common Pleas of Hamilton County, Ohio by a unanimous three-judge panel of two counts of Aggravated Murder under Ohio Rev.Code § 2903.01(B) and two death specifications for each count under Ohio Rev.Code § 2929.04(A)(7) (doc. 46). He was also convicted of one count of rape under § 2907.02 and one count of aggravated robbery under Ohio Rev.Code § 2911.01 (Id). On April 14, 1988, the three judge panel also unanimously found by proof beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances (see id, Exs. B & C). Five days after the guilt phase of the trial, the penalty phase commenced, and, on April 25, 1988, the three-judge panel sentenced Smith to death on each murder count (Id, Ex. B). In addition, the three-judge panel sentenced Smith to a minimum term of ten years and a maximum term of twenty-five years, with ten years actual incarceration to run consecutively, as to Count III (rape) and Count IV (aggravated robbery) (Id). At his capital trial, Smith was represented by attorneys, Dale G. Schmidt and Robert J. Ranz. Smith filed a timely appeal of said judgement to the Ohio Court of Appeals for the First Judicial District on May 10, 1988, asserting eighteen assignments of error related to his trial proceedings (doc. 47, Exs. D & E). The State of Ohio filed its brief in response on May 12, 1989 (Id., Ex. F). The court of appeals upheld Smith’s convictions and sentences on June 6, 1990 (Id., Ex. G). In addition, the court of appeals, pursuant to the requirements set forth in Ohio Rev.Code § 2929.05(A), “Appeals Procedure,” independently reviewed and affirmed the lower court’s decision (Id., Ex. H). Smith then filed a timely notice of appeal to the Ohio Supreme Court on August 1, 1990 (Id., Ex. I). On September 17, 1990, Petitioner filed a brief in which he set forth sixteen propositions of law (Id., Ex. J). The State filed its brief in opposition on October 18, 1990 (Id., Ex. K). On July 31, 1991, the Ohio Supreme Court affirmed Petitioner’s convictions and sentences with a judgement entry (Id., Ex. L) and issued its opinion. See Smith, 61 Ohio St.3d at 297, 574 N.E.2d at 521. Smith next filed a Motion for Rehearing in the Ohio Supreme Court, raising three issues: 1. Appellant Smith was improperly convicted and sentenced on two counts of aggravated murder for one victim; 2. The Ohio Supreme Court failed to consider, as a matter of law, viable mitigating evidence; and 3. The proportionality review conducted by the Ohio Supreme Court was constitutionally insufficient. (Id., Ex. M). On August 21, 1991, the State filed its Memorandum in Opposition to the Motion for Rehearing (Id., Ex. N). The Ohio Supreme Court denied rehearing in an entry dated September 18, 1991 (Id., Ex. O). See State v. Smith, 62 Ohio St.3d at 1410, 577 N.E.2d at 362 (1991). Following the Ohio Supreme Court’s decision on direct appeal, Smith filed a petition for certiorari in the United States Supreme Court (Id.). Shortly thereafter, the State of Ohio filed its response brief to Smith’s petition. On February 24, 1992, the Supreme Court denied Smith’s request for certiorari (doc. 47, Ex. R). See Smith v. Ohio, 502 U.S. 1110, 112 S.Ct. 1211, 117 L.Ed.2d 449 (1992). On November 12, 1992, Smith filed a Petition to Vacate or Set Aside Judgment and/or Sentence Pursuant to Ohio Rev. Code § 2953.21, “Petition for Post-Conviction Relief,” with the Hamilton County Court of Common Pleas (Id., Ex. S). In his petition, Smith raised fifty-eight claims for post-conviction relief. The appendix to Smith’s petition was filed on November 12, 1992 (Id., Ex. T). On December 29, 1992, the State responded with a Motion for Summary Judgment Under Ohio Rev.Code § 2953.21 (Id., Ex. U), accompanied by a separate filing of exhibits in support of its motion (Id., Ex. V). Shortly thereafter, Smith filed his Response and the State filed its Reply (Id., Exs. Z & AA). The Hamilton County Court of Common Pleas issued its Findings of Fact, Conclusions of Law, and Entry Denying Petition to Vacate Under Ohio Rev.Code § 2953.21(C) on April 19,1993 (Id., Ex. DD). Continuing his quest for post-conviction relief, Smith filed a notice of appeal with the Ohio Court of Appeals, First Judicial District, on May 19, 1993 (Id., Ex. EE). Smith filed his brief on October 29, 1993 and listed eight assignments of error (Id., Ex. FF). The State followed with its opposition brief on December 27, 1993 (Id., Ex. FF). Smith filed his reply brief on January 10, 1994 (Id., Ex. HH). On June 22, 1994, the court of appeals affirmed the decision of the Hamilton County Court of Common Pleas {Id., Ex. II). Thereafter, Smith filed a timely notice of appeal with the Ohio Supreme Court on August 8, 1994, and he submitted nine propositions of law (Id., Ex. KK). The State filed its Memorandum in Response on August 30, 1994 (Id., Ex. MM). The Ohio Supreme Court held that it lacked the proper jurisdiction to hear the post-conviction relief case and dismissed the appeal on November 9, 1994 (Id., Ex. NN). See State v. Smith, 71 Ohio St.3d 1405, 641 N.E.2d 202 (1994). Smith then filed a Motion for Reconsideration with the Ohio Supreme Court on November 21,1994 (Id., Ex. 00). On November 23, 1994, the State filed a Memorandum Opposing Appellant’s Motion for Reconsideration (Id., Ex. PP). The Ohio Supreme Court denied Smith’s motion on December 14, 1994 (Id., Ex. QQ). See State v. Smith, 71 Ohio St.3d 1208, 642 N.E.2d 631 (1994). On June 3, 1993, concurrent with his post-conviction relief petition, Smith also filed an Application for Delayed Reconsideration (hereinafter, “a Mumahan application”) with the Ohio Court of Appeals for the First Appellate District on the grounds that he was denied effective assistance of counsel on his direct appeal (Id., Ex. RR). Smith asserted that his counsel on direct appeal were ineffective because they failed to raise a total of thirty-six (36) assignments of error (Id.). The State filed its Memorandum in Opposition to the Application for Delayed Reconsideration on June 11, 1993 (Id., Ex. SS). On June 30, 1993, the Ohio Court of Appeals for the First Appellate District denied Smith’s Application for Delayed Reconsideration (Id., Ex. TT). Smith next filed an appeal to the Ohio Supreme Court on August 30, 1993 (Id., Ex. UU). In his Memorandum in Support of Jurisdiction filed on September 29, 1993, Petitioner raised two propositions of law: 1. The Court of Appeals erred in denying Appellant’s Application for Delayed Reconsideration; and that 2. the failure to exercise reasonable professional judgment in raising and preserving constitutional issues in the direct appeal of a capital case denied the [defendant the effective assistance of appellate counsel as guaranteed by the due process clause of the Fourteenth Amendment. (doc. 47, Ex. W). The State filed its Memorandum in Opposition to Jurisdiction on October 8, 1993 (doc. 47, Ex. WW). The Ohio Supreme Court affirmed the judgment of the court of appeals (Id., Ex. XX). See State v. Smith, 68 Ohio St.3d 1404, 623 N.E.2d 562 (1993)). Smith filed a Motion for Rehearing in the Ohio Supreme Court on December 27, 1993 (Id., Ex. YY). On December 30, 1993, the State filed its Memorandum in Opposition (Id., Ex. ZZ). On January 19, 1994, a rehearing was denied by the Ohio Supreme Court (Id., Ex. AAA). See State v. Smith, 68 Ohio St.3d 1437, 625 N.E.2d 625 (1994). Smith subsequently filed another petition for certiorari with the United States Supreme Court on April 19, 1994 (Id., Ex. BBB). The State filed its brief in opposition on April 29, 1994 (Id., Ex. CCC). On June 27, 1994, the Supreme Court denied Smith’s petition for certiorari (doc. 47, Ex. DDD). See Smith v. Ohio, 512 U.S. 1246, 114 S.Ct. 2768, 129 L.Ed.2d 882 (1994). Thereafter, Smith filed with' the Ohio Supreme Court a Motion for Reconsideration Based Upon Ineffective Assistance of Counsel in Direct Appeal as of Right (Id., Ex. EEE). Smith’s Motion for Reconsideration asserted that, while a traditional Mumahan motion could be filed to allege a claim of ineffective assistance of counsel in the Ohio Court of Appeals, Smith lacked such a vehicle in order to allege the same claim in the Ohio Supreme Court (Id.). The State filed its Memorandum in Opposition on September 28, 1994 (doc. 47, Ex. FFF). On December 14, 1994, the Ohio Supreme Court denied the Motion for Reconsideration (Id., Ex. GGG). See State v. Smith, 71 Ohio St.3d 1208, 642 N.E.2d 631 (1994). On April 27, 1995, Petitioner filed his first Petition for a Writ of Habeas Corpus with this Court (doc. 7) and Petitioner amended his first Petition over a year later (see doc. 21). Petitioner then filed the current Second Amended Petition for a Writ of Habeas Corpus (hereinafter, “Second Amended Petition”) pursuant to Title 28 U.S.C. § 2254 on April 23, 1997 (doc. 46). This was followed by Respondent’s Amended Return of Writ (hereinafter, “Amended Return”) (doc. 47), which was filed on June 9, 1997. On July 9, 1997, Petitioner filed his Traverse in Response to Respondent’s Return of Writ (hereinafter, “Traverse”) (doc. 51). In addition, Respondent also filed with the Court an Addendum/Supplement of the Record (docs. 59, 60 & 61) pursuant to a previous Order of this Court (see doc. 58). Furthermore, in the interest of justice and fundamental fairness, the Court hereby GRANTS Respondent’s Motion to Supplement the State Court Records (docs. 59, 60, & 61) and we will consider these additional records in our deliberations. The Court will take into consideration when making our ruling the additional records supplied by Respondent in this action. IV. STANDARD OF REVIEW In the instant matter, Petitioner seeks relief under Title 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 habe-as corpus on behalf of a person in custody pursuant to the judgment of a[s]tate court only on the grounds 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). Under the pre-April 24, 1996 version of § 2254, which governs this action, federal courts - generally accord “a presumption of correctness” to state court factual findings. Title 28 U.S.C. § 2254(d); see Marshall v. Lonberger, 459 U.S. 422, 431-32, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983). Whereas an appellate court on habeas review decides federal law questions de novo, Marshall, 459 U.S. at 431, 103 S.Ct. 843, the federal reviewing court is generally bound by the state court interpretations of state law. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). In order “to obtain collateral relief, a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). A § 2254 habeas prisoner must prove that a state court trial error had denied him a federal constitutional right, and that such denial had caused him “actual prejudice” in that it “had a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States Regenbogen, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); see also O’Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (holding that a constitutional error should be deemed prejudicial if “grave doubt” exists regarding whether its effect on the jury’s verdict was harmless). V. APPLICABILITY OF THE AEDPA On April 24, 1996, President William Jefferson Clinton signed the Anti-terrorism and Effective Death Penalty Act of 1996 (hereinafter, “AEDPA” or the “Act”) into law. See Pub.L. 104-132, 110 Stat. 1217 (1996). While the Act does not contain an effective date, we conclude that it became effective on the date of enactment. See Zuern v. Tate, 938 F.Supp. 468, 470 (S.D.Ohio 1996). Furthermore, even though the Act amends certain provisions of the preexisting habeas corpus statutes that are codified in Chapter 153 of the Judicial Code, and creates a new Chapter 154 of the Judicial Code that contains 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 ha-beas corpus statute falling under the Act’s Chapter 153 do not apply to the instant Second Amended Petition because Petitioner’s first 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.” See Jamison v. Collins, 100 F.Supp.2d 521, 533-35 (S.D.Ohio 1998). 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. VI. HABEAS CORPUS PROCEEDINGS A. Introduction Article I, Section 9 of the United States Constitution provides for the writ of habe-as corpus to redress errors in the administration of criminal justice that result in deprivations of life or liberty. Cooey v. Anderson, 988 F.Supp. 1066, 1072 (N.D.Ohio 1997). In general, a prisoner may petition a federal district court for the writ of habeas corpus whenever the prisoner believes that he is being detained in violation of the Constitution or other federal laws. Id., at 1072. This right to petition for the writ is not, however, unlimited. For example, a prisoner must usually exhaust all available remedies in the state courts before turning to the federal courts for relief. See Granberry v. Greer, 481 U.S. 129, 131, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987). Under the doctrine of procedural default, a federal district court may not ordinarily consider the merits of a prisoner’s federal claim if a state court previously dismissed the claim for failure to comply with state procedural law. Cooey, 988 F.Supp. at 1072. As a preliminary matter, we must address each of the claims that Respondent asserts Petitioner procedurally defaulted. After the court determines conclusively which, if any, of Petitioner’s claims are procedurally barred, the Court will address all of the claims that can be heard on the merits. Accordingly, we now proceed directly to a discussion about the doctrines of exhaustion and procedural default. B. The Doctrine of Exhaustion A petitioner must have exhausted his state court remedies before a writ of habeas corpus can be granted. 28 U.S.C. § 2254(b)(1)(A). Furthermore, the failure of a petitioner to present the federal grounds for relief to the state courts constitutes a procedural default or waiver barring federal habeas review. The recent United States Supreme Court decision of O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) is on point, and, thus, controlling herein. In O’Sullivan, the Supreme Court explained why it is a petitioner’s duty to first present his claims in a state court proceeding: In order to satisfy the exhaustion requirement, a state prisoner must present his claims to a state supreme court in a petition for discretionary review when that review is part of the state’s ordinary appellate review procedure. As a matter of comity, § 2254(c) — which provides that a habeas petitioner ‘shall not be deemed to have exhausted [his state court] remedies ... if he has the right under [state] law ... to raise, by any available procedure, the question presented’ — requires that state prisoners give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts. State prisoners must give state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the state’s established appellate review process .... In this case, we are asked to decide whether a state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement. We conclude that he must. Id., 119 S.Ct. at 1730-31 (internal citations omitted); see also Dennis v. Mitchell, 68 F.Supp.2d 863, 878 (N.D.Ohio 1999). In O’Sullivan, the Supreme Court concluded that federal habeas relief was not available to the state prisoner therein because he had failed to “satisfy the exhaustion requirement” by presenting his claims to the state’s supreme court in a petition for discretionary review. Id. at 1730-31. Moreover, this failure to present his claims to the state’s supreme court constituted a “procedural default”: Boerckel’s amended federal habeas petition raised three claims that he had pressed before the Appellate Court of Illinois, but that he had not included in his petition for leave to appeal to the Illinois Supreme Court — is no longer available to Boerckel; the time for filing such a petition has long since past.... Thus, Boerckel’s failure to present three of his federal habeas claims to the Illinois Supreme Court in a timely fashion has resulted in a procedural default of those claims. Id., 119 S.Ct. at 1731-32; see also Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Engle v. Isaac, 456 U.S. 107, 125-26 n. 28, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Shakoor v. Collins, 63 F.Supp.2d 858, 863 (N.D.Ohio 1999). To determine whether the exhaustion requirements are met, the Court must examine whether the petitioner “has the right under the law of the state to raise, by any available procedure, the question presented.” Dennis, 68 F.Supp.2d at 878-79 (citing 28 U.S.C. § 2254(c)). In the instant case, just as in Boerckel, Petitioner’s failure to initially present any federal claims set forth in his Second Amended Petition for relief in the Ohio state courts on direct appeal, post-conviction, or discretionary review would constitute a procedural default. See Boerckel, 119 S.Ct. at 1730-32; see also Shakoor, 63 F.Supp.2d at 863-64. In the case at bar, Respondent readily concedes that Petitioner has resorted to all levels of state appellate review and to all avenues for state post-conviction relief (doc. 47). Therefore, Respondent submits, Petitioner has readily exhausted all available state court remedies. See also Steffen, 31 Ohio St.3d at 123-25, 509 N.E.2d at 394-95. However, Respondent does assert that a number of Petitioner’s claims and sub-claims are procedurally defaulted. C. The Doctrine of Procedural Default The principles of procedural default are triggered whenever the state argues that habeas corpus relief is precluded due to a petitioner’s failure to comply with a state procedural rule. Generally, under the doctrine of procedural default, if a state court previously dismissed a state prisoner’s federal claim on the grounds that the prisoner failed to comply with a state procedural rule, a federal district court cannot consider the merits of that federal claim. In Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Supreme Court explained the reasons for the doctrine in the context of a state restriction on non-contemporaneous objections: The failure of the federal habeas courts generally to require compliance with a contemporaneous-objection rule tends to detract from the perception of the trial of a criminal case in state court as a decisive and portentous event. A defendant has been accused of a serious crime, and this is the time and place set for him to be tried by a jury of his peers and found either guilty or not guilty by that jury. To the greatest extent possible, all issues which bear on this charge should be determined in this proceeding: the accused is in the courtroom, the jury is in the box, the judge is on the bench, and the witnesses, having been subpoenaed and duly sworn, await their turn to testify. Society’s resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens. Any procedural rule which encourages the result that those proceedings be as free of error as possible is thoroughly desirable, and the contemporaneous-objection rule surely falls within this classification. We believe the adoption of the Francis rule in this situation will have the salutary effect of making the state trial on the merits the “main event,” so to speak, rather than a “tryout on the road” for what will later be the determinative federal habeas hearing. There is nothing in the Constitution or in the language of § 2254 which requires that the state trial on the issue of guilt or innocence be devoted largely to the testimony of fact witnesses directed to the elements of the state crime, while only later will there occur in a federal habeas hearing a full airing of the federal constitutional claims which were not raised in the state proceedings. If a criminal defendant thinks that an action of the state trial court is about to deprive him of a federal constitutional right there is every reason for his following state procedure in making his objection. Wainwright, 433 U.S. at 90-91, 97 S.Ct. 2497; see also Lambrix v. Singletary, 520 U.S. 518, 522-23, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) (“Application of the ‘independent and adequate state ground’ doctrine to federal habeas review is based upon equitable considerations of federalism and comity.”). To determine whether the district court may consider the merits of an inmate’s federal claim, the court must engage in a complicated analysis. In Maupin v. Smith, 785 F.2d 135 (6th Cir.1986), the Sixth Circuit Court of Appeals set out the analytical framework for determination of claims that have procedurally defaulted. “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 step] analysis.” Maupin, 785 F.2d at 138. First, the federal district 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. Id. at 138. Second, the federal district 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 federal district 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, 501 U.S. at 730-31, 111 S.Ct. 2546. Fourth, if 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.” Maupin, 785 F.2d at 138; see also Coleman, 501 U.S. at 749-50, 111 S.Ct. 2546; Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Wainwright, 433 U.S. at 87, 97 S.Ct. 2497; Leroy v. Marshall, 757 F.2d 94, 99 (6th Cir.1985). 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, 221-22, 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 “cause” for the procedural default is demonstrated, the petitioner must still show that he was actually “prejudiced” by the claimed constitutional error. Frady, 456 U.S. at 170, 102 S.Ct. 1584. 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 161-62. Nonetheless, however, the Supreme Court has held that a petitioner may establish adequate “cause-and-prejudice” by offering proof of either ineffective assistance of counsel or an objective factor that impeded his counsel’s efforts to comply with state procedural law, such as the novelty of the proposed claim. See Reed v. Ross, 468 U.S. 1, 13, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984); see also Murray, 477 U.S. at 488-89, 106 S.Ct. 2639. 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 a 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 rests primarily on federal law, or to be interwoven with federal law.” Coleman, 501 U.S. at 734-36, 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. The burden is on the petitioner to show cause for not complying with the procedural rule and actual prejudice from the claimed error. Engle, 456 U.S. at 129-30, 102 S.Ct. 1558; Maupin, 785 F.2d at 138-39. Failure to demonstrate cause and prejudice is excused only “where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray, 477 U.S. at 496, 106 S.Ct. 2639. It is well established in Ohio that, under the doctrine of res judicata, a final judgment of conviction generally bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was not raised or could have been raised by the defendant at the trial that resulted in that conviction, or an appeal from that judgment. State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967). An exception is made, of course, for a defendant who asserts a constitutional claim in post-conviction proceedings the factual basis of which could not have been discovered until after conviction. Id., 10 Ohio St.2d at 181, 226 N.E.2d 104. D. Title 28 U.S.C. § 2254(d) This is a capital case. Petitioner has been sentenced to death by the State of Ohio. This sentence, Petitioner argues, was secured as a result of at least twenty-four errors at trial and on appeal that individually and collectively denied him of his right to a fair trial (doc. 46). In general, when reviewing any habeas petition, including a petition in a capital case, a federal district court must defer to the findings of fact made by the state trial court. Cooey, 988 F.Supp. at 1074. Congress has long provided for such deference by the federal courts to state court findings of fact under 28 U.S.C. § 2254(d). Under § 2254(d), the federal district court must initially determine if there was a determination of a factual issue in a state court proceeding that is evidenced by written indicia. Id. The federal district court must then presume that the determination was correct, unless the applicant can demonstrate any one of the following eight statutory factors: (1) That the merits of the factual dispute were not resolved in the state court hearing; (2) that the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (3) that the material facts were not adequately developed at the state court hearing; (4) that the state court lacked jurisdiction of the subject matter or over the person of the applicant in the state court proceeding; (5) that the applicant was an indigent and the state court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the state court proceeding; (6) that the applicant did not receive a full, fair, and adequate hearing in the state court proceeding; or (7) that the applicant was otherwise denied due process of law in the state court proceeding; or (8) unless that part of the record of the state court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the federal court, on a consideration of such part of the record as a whole, concludes that such factual determination is not fairly supported by the record. Cooey, 988 F.Supp. at 1074 (quoting 28 U.S.C. § 2254(d) (1994)). In Sumner, the Supreme Court summarized the public policy rationale of § 2254 by stating that: “In addition to minimizing the ‘friction’ between the state and the federal courts, the limited nature of the review provided by § 2254 also serves the interest that both society and the individual criminal defendant have in insuring that there will at some point be the certainty that comes with an end to litigation.... ” Id., 449 U.S. at 550, 101 S.Ct. 764 (quoting Sanders v. United States, 373 U.S. 1, 24-25, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963)) (Harlan, J., dissenting); see also Schneckloth v. Bustamonte, 412 U.S. 218, 262, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (Powell, J., concurring). In the following sections, the Court will first state each of Petitioner’s claims as he has framed it in either his Second Amended Petition (doc. 46) or his Traverse (doc. 51). Next, the Court will address whether or not Respondent asserts in his Amended Return (doc. 47) that Petitioner’s claims are procedurally defaulted or whether they can be addressed on the merits. Finally, once the Court is satisfied that the particular claim has not been procedurally defaulted, then we will address the individual merits of Petitioner’s and Respondent’s arguments in relation to that claim. VII ANALYSIS OF PETITIONER’S CLAIMS A. Introduction Regarding the first step of the Maupin analysis, Respondent points to three different Ohio procedural rules applicable to several of Petitioner’s claims with which Petitioner failed to either fully or only partially comply (doc. 47). Specifically, Respondent asserts that: (1) Petitioner’s grounds for relief are procedurally barred because Petitioner did not raise these grounds on direct appeal, as Ohio requires pursuant to Ohio R.App. P. 16(A)(4) and Perry, 10 Ohio St.2d at 180, 226 N.E.2d at 108; or (2) Petitioner’s grounds for relief are procedurally barred because Petitioner did not make a contemporaneous objection at trial, as Ohio requires pursuant to State v. Glaros, 170 Ohio St. 471, 475, 166 N.E.2d 879, 382 (1960) and Ohio R.Crim. P. 30(A); or (3) Petitioner’s grounds for relief are procedurally barred because Petitioner has not presented these grounds to any Ohio court, either on direct appeal or during post-conviction proceedings, as is required before the State can address these issues. Petitioner attacks Respondent’s procedural bar arguments in two ways. First, Petitioner undertakes an individualized Maupin analysis with respect to each of the grounds that Respondent argues Petitioner has waived. The Court examines these arguments below in the context of its analysis of each individual ground. Second, Petitioner presents several broad defenses, challenging Respondent’s procedural arguments in general. For example, Petitioner asserts that this Court must decide the Maupin analysis in his favor, as a matter of law, as to every ground he has allegedly waived by not raising it first on direct appeal, because Petitioner alleges that this Court cannot find under the second prong of the Mau-pin test that Ohio “courts actually enforce the state procedural sanction” through a valid process. See, Maupin, 785 F.2d at 138. More specifically, Petitioner argues that, although the Ohio courts enforced state procedural sanctions against him, the entire post-conviction process in Ohio is constitutionally defective, and, thus, this Court Should consider the state court’s enforcement of Ohio’s procedural sanctions as totally void or voidable. This Court is not persuaded by this argument. First, Petitioner cannot excuse his own failure to present claims to the state appellate courts based on the allegation that the entire póst-conviction review process is constitutionally flawed. See Scott, 58 F.Supp.2d at 780. To quote another district court that rejected this same argument: Petitioner’s argument that the Perry rule rests on an Ohio post-conviction system which does not meet the requirements of due process lacks merit. Petitioner knew of the availability of direct appeal of record claims and knew that if he failed to present the claims on direct appeal, they were waived. Any perceived deficiencies in Ohio’s post-conviction system did not relieve petitioner of the obligation to raise these waived claims on direct appeal. He was not misled in any way by the Ohio courts about what remedy he could pursue. Beuke v. Collin, No. C-l-92-507, slip op., at 19 (S.D.Ohio Oct.19,1995). In addition, Petitioner presents another broad defense challenging Respondent’s procedural arguments in general: Petitioner asserts that this Court must decide the Maupin analysis in his favor, as a matter of law, as to every ground he has allegedly waived, because the Court cannot find under the third prong of the Maupin test that any of the state procedural rules relied upon by Respondent are “adequate.” A procedural rule is considered “adequate” unless, among other things, it is not regularly and consistently applied by the state courts. Scott, 58 F.Supp.2d at 780-81 (citing Warner v. United States, 975 F.2d 1207, 1213 (6th Cir.1992)). Petitioner argues that Ohio courts are very inconsistent in their application of the procedural rules upon which Respondent bases his waiver arguments, especially the Perry rule when applied to capital cases, and, thus, he cannot be held to have procedurally defaulted under Maupin. Again, the Court is not persuaded by this argument. While the Ohio Court of Appeals are not always consistent in their rulings on this issue, nonetheless, they do not ignore or arbitrarily deny Ohio’s procedural bars, including the Perry rule, on a regular basis. See Beuke, No. C-1-92-507, slip op., at 65 (“Petitioner has not cited a single case holding that a consistently enforced state procedural bar, which on some occasions is not invoked for unexplained reasons generally consistent with plain error review, should not be enforced in federal habeas corpus.”). Petitioner also presents a few other broad defenses to Respondent’s procedural arguments in general. The Court addresses these arguments below, to the extent necessary, in its discussion of each of Petitioner’s individual grounds for relief. For the reasons stated below, the Court concludes that all of Petitioner’s challenges to his underlying convictions are either procedurally defaulted or without merit, and, therefore, we hereby DENY Petitioner’s application for a writ of habeas corpus (doc. 46). B. Petitioner’s First Ground for Relief: Claim 1: The Sixth Amendment Guarantees A Criminal Defendant The Right To A Jury Trial. When A Defendant Does Not Knowingly, Voluntarily, And Intelligently Waive His Right To A Jury Trial, Due Process, Equal Protection, And His Right Against Cruel And Unusual Punishment Are Therefore Violated (doc. 46). 1. Claim 1 Is Procedurally Defaulted In his first claim for relief, Petitioner alleges that, due to his low Intelligent Quotient Scoring of 70 (hereinafter, “IQ”), he was not capable of making a knowing, intelligent, and voluntary waiver of his right to a trial by jury as guaranteed by the Sixth Amendment of the United States, Article I, § 5 of the Ohio Constitution, and Ohio Rev.Code § 2945.17 (doc. 46). Petitioner asserts that he has an IQ that places him on the borderline of mental retardation. In addition, Petitioner submits that he suffers from an organic brain impairment of unknown specificity, and that at the time of his alleged waiver, he was under the influence of an “extreme cocaine, cannabis, and alcohol addiction” (Id.). Thus, Petitioner argues that, due to his limited intelligence, organic brain syndrome and drug addictions, he simply could not have made a constitutionally effective waiver of his right to a trial by jury. Respondent asserts that Petitioner’s first claim for relief is procedurally barred from federal habeas review (doc. 47). Respondent alleges that, although Petitioner presented this claim originally as claim thirty-four in his post-conviction petition, the trial court barred the claim due to res judicata grounds because Petitioner failed to raise it in his direct appeal (Id.). In addition, the trial court’s determination was upheld on appeal by the Ohio Court of Appeals and the Ohio Supreme Court subsequently dismissed Petitioner’s appeal without opinion (Id., Exs. II & NN). In his Traverse, Petitioner offers several reasons as to why claim 1 has not been procedurally defaulted (doc. 51). First, Petitioner asserts that, whether a defendant has knowingly, intelligently, and voluntarily waived his right to a jury must be raised in a collateral challenge to a conviction because resolution of the issue necessarily entails a review of materials not contained in the direct appeal record. See also Perry, 10 Ohio St.2d at 180, 226 N.E.2d at 108 (concluding that issues that could be litigated on direct appeal could not be litigated in state post-conviction relief). Second, Petitioner argues that, even if res judicata is applicable, res judi-cata is not an “independent and adequate” basis for a procedural default because it is inconsistently applied. See James v. Kentucky, 466 U.S. 841, 348-49, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984) (finding that a state procedural bar must be consistently applied and firmly established in order to be worthy of respect in federal court). Petitioner next argues that even if res judicata applies, he has not been afforded a fair and reasonable opportunity to present this claim. See Parker v. Illinois, 333 U.S. 571, 574, 68 S.Ct. 708; 92 L.Ed. 886 (1948) (for a state procedural rule to be honored by a federal court, the state procedure or rule must give the plaintiff a fair and reasonable opportunity to have the claims discovered, heard, and determined by the state courts). Nonetheless, after reviewing the procedural background as to claim 1, the Court finds Petitioner’s first habeas claim is barred by procedural default. This claim was not raised on direct appeal. It was asserted before the trial court in post-conviction proceedings as the thirty-fourth claim for relief; on post-conviction appeal before the Ohio Court of Appeals as Assignment of Error Number Six; and on post-conviction appeal before the Ohio Supreme Court as Proposition of Law Number Seven. By failing to raise the foregoing claim on direct appeal, Petitioner effectively waived this claim. The failure to raise on appeal a claim that appears on the face of the record constitutes a procedural default under Ohio’s doctrine of res judicata. State v. Cole, 2 Ohio St.3d 112, 113, 443 N.E.2d 169, 171 (1982). Absent a showing of cause and prejudice, the procedural default rule set forth in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), precludes a federal district court from hearing an issue to which the state appellate courts applied a procedural bar. See also Maupin, 785 F.2d at 138. Having reviewed the record, this Court finds no cause or prejudice sufficient to excuse or justify Petitioner’s failure to raise this claim on direct appeal. The Court recognizes that the cause and prejudice requirements may be overlooked if a petitioner presents an extraordinary case where a constitutional violation has probably resulted in the conviction of one who is actually innocent. See Murray, 477 U.S. at 496, 106 S.Ct. 2639. However, the Court finds that this Petitioner has not demonstrated or asserted a claim of factual innocence. Furthermore, Petitioner has also not demonstrated that the failure of this Court to consider his first claim for relief will result in a “fundamental miscarriage of justice” in this matter. Accordingly, based on the foregoing application of the standards set forth in Sykes and Maupin, the Court finds that claim 1 is procedurally defaulted. Nevertheless, we also find that even if the procedural default rule did not apply to this claim, claim 1 should also be denied as to its merits. 2. Claim 1 Is Without Merit Petitioner alleges that the trial court inadequately inquired into the sufficiency of his waiver of a jury trial and that he was incapable of waiving his right to a jury (doc. 46). Furthermore, Petitioner alleges that he was forced into an unconscionable “agreement” that he did not expressly accept and for which he did not receive any “consideration” or “benefit” (Id.). A jury waiver must be voluntary, knowing, and intelligent. State v. Ruppert, 54 Ohio St.2d 263, 271, 375 N.E.2d 1250, 1255 (1978). Waiver may not be presumed from a silent record; however, if the record shows a jury waiver, the verdict will not be set aside except on a plain showing that the waiver was not freely and intelligently made. Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 87 L.Ed. 268 (1942). In Martin, the Sixth Circuit explicitly held that “[t]here is no constitutional requirement that a court conduct an on the record colloquy with the defendant prior to the jury waiver.” Id., 704 F.2d at 274. Moreover, in federal practice, “the failure of a district judge to conduct such an interrogation does not violate the Constitution” and does not result in reversible error. See United States v. Cochran, 770 F.2d 850, 851 (9th Cir.1985). A valid waiver has four elements: First, the waiver must be in writing. Second, the government attorney must consent to the waiver. Third, the trial court must approve the waiver. Fourth, the defendant’s waiver must be voluntary, knowing, and intelligent. United States v. Martin, 704 F.2d 267, 271 (6th Cir.1983); see also United States v. Sammons, 918 F.2d 592, 596 (6th Cir.1990). The Court finds for the following reasons that in the case at bar, the above elements were all present in the waiver by Petitioner. First, contrary to Petitioner’s arguments, no specific colloquy is constitutionally mandated in order to determine that a waiver has been voluntarily, knowingly, and intelligently given. Second, Petitioner suggests that his claimed inability to appreciate the legal ramifications of his waiver rendered it involuntary. However, in United States v. Sammons, the Sixth Circuit noted that “a technical knowledge of the jury trial right is not required for a waiver to be effec-five.” Id., 918 F.2d at 596-97. The Sixth Circuit went on to further define the know-ingness and intelligence requirements of an effective waiver: “A defendant is sufficiently informed to make an intelligent waiver if he was aware that a jury is composed of 12 members of the community, he may participate in the selection of the jurors, the verdict of the jury must be unanimous and that a judge alone will decide guilt or innocence should he waive his jury trial right.” Martin, 704 F.2d at 273. In addition, the trial court is not required to inform a defendant of all of the possible implications of a jury waiver. See State v. Jells, 53 Ohio St.3d 22, 26, 559 N.E.2d 464, 468 (1990). Moreover, the absence of any merit to Petitioner’s claim is ultimately evidenced by the record (doc. 47, Attach.2). The trial court ensured that Petitioner understood that he had the right to a jury trial and that the waiver was entered knowingly, voluntarily, and intelligently (Id.). The transcript of the hearing during which Petitioner entered his second waiver of a jury clearly establishes the procedural adequacy of the trial court’s inquiry (Id.). The record also indicated that: (1) the judge’s inquiry was sufficient; (2) Petitioner’s answers were clear and direct; (3) Petitioner executed a written waiver; and (4) Petitioner’s waiver of his right to a jury was done with the advice, consent, and presence of his trial counsel (Id.). It is important for the Court to note that Petitioner initially waived his right to a jury and chose to be tried by a three-judge panel. The panel was selected, and then Petitioner decided to reverse his decision and he was granted a trial by jury. After the trial court judge made an extensive on-the-record inquiry with Petitioner as to his choice of a second jury waiver, with his counsel at his side, Petitioner decided that he wanted another “bite at the apple” and again chose to be tried by a three-judge panel. Now that the panel has convicted Petitioner and sentenced him to death, Petitioner pleads, in essence, for a third bite at the apple in his request for habeas relief. It appears to the Court that it was Petitioner’s strategy to attempt to manipulate the State’s jury waiver process, possibly because he did not want or did not like the judges selected onto the panel. The Court will not tolerate any attempt or strategy on the behalf of Petitioner to manipulate the jury waiver process. For the reasons set forth above, this Court finds that Petitioner’s waiver of his right to a trial by jury was made with his voluntary, knowing, and intelligent consent, and, thus, we find claim 1 to be without merit. C. Petitioner’s Second Ground For Relief; Claim 2 The Fifth And Fourth Amendments Were Violated By The Submission At Trial Of a Coerced and Involuntary Statement (doc. 49). 1. Claim 2 Ripe For Federal Habeas Review Respondent concedes that claim 2 has not procedurally defaulted and is ripe for federal habeas review by this Court (doc. 47). The Court notes that claim 2 was raised on direct appeal before the Ohio Court of Appeals as the Fourteenth Assignment of Error; and on direct appeal before the Ohio Supreme Court as Proposition of Law Number One. This claim was also asserted before the trial court in post-conviction relief; and on post-conviction appeal before the Ohio Supreme Court as Proposition of Law Number Seven. Thus, having reviewed the record before us, this Court finds that claim 2 is ripe for federal habeas review as to the merits. 2. Claim 2 Is Without Merit Petitioner alleges that his confession was the product of intimidation and fear of his physical well-being (doc. 46). Petitioner further avers that he had been beaten, choked, and physically manhandled by the interviewing officers. Moreover, Petitioner asserts that, in order to escape the interview room and the police officers who were threatening his life, he made incriminating statements that were the result of coercion, involuntariness, and a lack of legal counsel. Petitioner summarizes by contending that “the physical beatings and verbal threats coupled with Petitioner’s drug use, organic brain impairment and low IQ, establishes that Petitioner’s confession was the product of coercion and involuntariness” (Id.). Respondent counters that Petitioner’s claim is because there is no evidence to support it (doc. 47). This claim is based on Petitioner’s assertion that he did not voluntarily and knowingly waive his Miranda rights prior to making inculpatory statements during an interrogation by officers of the Cincinnati Police Department. In North Carolina v. Butler, the Supreme Court held that, when a waiver is at issue, the court must examine “the particular facts and circumstances surrounding that case, including the background, experience, and the conduct of the accused.” Id., 441 U.S. 369, 374-75, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). The Supreme Court went on to state that, “an express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver.” Id. at 373, 99 S.Ct. 1755. For, a waiver to be upheld, the Supreme Court has also consistently held that a state need only show by a preponderance of the evidence that the waiver was voluntary and knowing. For instance, whenever the state bears the burden of proof in a motion to suppress a statement that the defendant claims was obtained in violation of Miranda, the state need only prove waiver by a preponderance of the evidence. Id. at 373-74, 99 S