Van Hook v. Anderson (127 F. Supp. 2d 899, 2001)

OPINION AND ORDER

SMITH, District Judge.

This is a death penalty habeas corpus action filed by petitioner, Robert Van Hook, pursuant to 28 U.S.C. § 2254. After being convicted of capital murder and aggravated robbery by a three-judge panel, and after a mitigation hearing to address sentencing issues, Van Hook was sentenced to death by the same panel on August 8, 1985. After exhausting all available state court remedies, Van Hook filed this habeas corpus petition on April 29, 1997. A stay of execution has been issued. This order will address the questions of whether any of Van Hook’s claims for relief must be denied on grounds that they were proeedurally defaulted during the course of state court proceedings, and whether he has successfully demonstrated the existence of cause sufficient to excuse that default.

Van Hook has never denied killing the victim, but maintains that he did so under a rage precipitated by homosexual panic and severe borderline personality disorder so consuming and debilitating that he lacked the requisite intent to make him guilty of the offense of aggravated murder or eligible for the death penalty. He also challenges the legality of his conviction and sentence on grounds that incriminating statements he made were improperly admitted at trial, that information obtained from a cellmate informant was improperly admitted at trial, and that his trial attorneys provided constitutionally deficient assistance during the trial and penalty phases, especially in failing to investigate, develop, and present evidence demonstrating his mental disorders and the role they played in the commission of the offense. Van Hook also challenges the constitutionality of Ohio’s death penalty scheme, and argues that racism and a lack of due process have tainted everything in Hamilton County from the jury selection process, to capital indictment decisions, to the manner in which capital postconviction actions are handled.

I. Factual History

The details of this capital murder and aggravated robbery are set forth in numerous state court opinions, including the Ohio Supreme Court’s published opinion in State v. Van Hook, 39 Ohio St.3d 256, 530 N.E.2d 883 (1988). That account is reprinted below verbatim.

It was established at trial that on the evening of February 18, 1985, Robert Van Hook, appellant herein, went to a downtown Cincinnati establishment called the Subway Bar. There, he approached David Self. The two engaged in conversation while consuming alcoholic beverages for approximately two to three hours. As they left together, Self stopped briefly to explain to the bartender that he and appellant were planning to go to Selfs apartment.

At the apartment, appellant lured Self into a vulnerable position and, with no provocation, attacked him. Initially, appellant strangled Self into a state of unconsciousness. He then took a paring knife from the victim’s kitchen and stabbed the victim behind the right ear, aiming the thrust upward toward the brain, accompanied by a blade-twisting movement. Appellant then stabbed the victim’s neck in numerous places, each stab wound accompanied by cutting motions. Several of these wounds penetrated over halfway through the neck and apparently represented appellant’s efforts to decapitate the victim. Appellant then made an incision on the victim’s body from the abdomen up to and over the sternum. The victim’s abdominal cavity was opened so that his liver was visible. Appellant then stabbed upward a number of times, penetrating the liver and eventually penetrating the abdominal wall into the heart in three places. He placed a small bottle which had contained amyl nitrate, its cap, a cigarette butt and the paring knife into the victim’s abdominal cavity.

Appellant then searched much of the apartment including a chest of drawers and a jewelry box. There was evidence that particular items of jewelry were taken, including specific testimony that the victim’s gold chain necklace, which he had worn into the bar earlier that evening, was missing. Thereafter, appellant looked into the victim’s refrigerator for food, but not seeing anything that “[he] liked,” he prepared his departure from the apartment. Such preparation included smearing his bloody fingerprints, and turning up the volume on the stereo system.

After leaving the apartment, appellant went to the home of Dr. Robert Hoy, a family friend. There, under the guise of recovering from a fight with his stepfather, appellant borrowed money and ate a large meal. He then left and eventually arrived in Ft. Lauderdale, Florida. There, he evaded detection until April 1, 1985, when, pursuant to information given by appellant’s family, he was arrested by the” Oakland Park police.

Id. at 256-57, 530 N.E.2d 883.

II. State Court Procedural History

This case has followed the typical procedural path through the state court system. After being sentenced to death, Van Hook filed a direct appeal which was pursued through the First District Court of Appeals and the Ohio Supreme Court. Throughout his direct appeal proceedings, Van Hook was represented by the same two attorneys who had represented him at trial. Represented by the Ohio Public Defender’s Office, Van Hook then filed a post-conviction petition which, after it was denied, was appealed to both the First District Court of Appeals and the Ohio Supreme Court. Van Hook also filed a motion for delayed reconsideration in the court of appeals, as authorized by State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), alleging that his appellate attorneys had provided ineffective assistance in not raising certain assignments of error. The court of appeals dismissed Van Hook’s motion as untimely, and Van Hook appealed to the Ohio Supreme Court. Van Hook also filed a similar motion for delayed reconsideration in the Ohio Supreme Court, arguing that his appellate attorneys had been ineffective before that court. The Ohio Supreme Court dismissed the motion, concluding that Van Hook was not entitled to the effective assistance of counsel during a second appeal as of right.

A. Trial and Direct Appeal

Robert Van Hook was indicted by the Hamilton County Grand Jury on April 18, 1985 on one count of aggravated murder, with a death penalty specification, and one count of aggravated robbery. On April 23, 1985, he entered a written plea of not guilty by reason of insanity, which triggered court-ordered psychiatric evaluations. Van Hook waived his right to a jury trial, and was tried, pursuant to Ohio law, by a three-judge panel. The trial commenced on July 15, 1985, and, on July 29, 1985, the three-judge panel found him guilty as charged. Following a two-day break, the mitigation hearing commenced. On August 8, 1985, the three-judge panel sentenced Van Hook to death on the aggravated murder count, and a prison term of ten (10) to twenty-five (25) years on the aggravated robbery count.

Represented by the same two attorneys who represented him at trial, Van Hook appealed the judgment to the Ohio Court of Appeals for the First Appellate District, and raised eight assignments of error. On May 13, 1987, the court of appeals affirmed the judgment against petitioner in full. After conducting its own independent review, the court of appeals also concluded that the aggravating factors substantially outweighed the mitigating circumstances, and that the death sentence was not inappropriate or disproportionate. State v. Van Hook, C-85-0565, 1987 WL 11202 (Hamilton Cy. Ct.App. May 13, 1987), exhibit 26 vol.II to petitioner’s appendix of the state court record.

The same two attorneys subsequently initiated an appeal to the Supreme Court of Ohio, but, on July 13, 1987, Van Hook filed a pro se motion to dismiss his attorneys and appoint new counsel. Van Hook argued that his attorneys had failed to raise numerous laudable issues and that he was unable to assert the ineffectiveness of his attorneys until they were removed from his case. On September 2, 1987, the Ohio Supreme Court denied petitioner’s motion to dismiss his attorneys. Exhibit 13 vol.III to petitioner’s appendix of the state court record. Van Hook’s attorneys proceeded, accordingly, to prosecute his appeal to the Supreme Court of Ohio and raised four propositions of law. On November 9, 1998, the Ohio Supreme Court affirmed the judgment against Van Hook. State v. Van Hook, 39 Ohio St.3d 256, 530 N.E.2d 883 (1988). After conducting its own independent review, the Ohio Supreme Court also found that the aggravating factors substantially outweighed the mitigating factors, and that the death sentence was neither inappropriate nor disproportionate.

Justice Wright authored a dissenting opinion, which Justice Brown joined. Justices Wright and Brown were of the view that the State failed to prove that Van Hook had initiated further discussions with law enforcement officers after invoking his right to counsel, and therefore, that incul-patory statements made by Van Hook to Cincinnati law enforcement officers in Florida, while awaiting extradition to Ohio, should have been suppressed.

On November 21, 1988, Van Hook’s attorneys filed a motion for rehearing on the issue of whether petitioner’s confession should have been suppressed. On December 21, 1988, the Ohio Supreme Court summarily dismissed the motion. Exhibit 25 vol.III to petitioner’s appendix of the state court record.

On March 27, 1989, the Supreme Court of the United States denied Van Hook’s petition for a writ of certiorari. Exhibit 6 vol.IV to petitioner’s appendix of the state court record. On May 15, 1989, the Supreme Court denied his motion for rehearing. Exhibit 8 vol.IV to petitioner’s appendix of the state court record. During those proceedings, Van Hook was represented by not only the same two attorneys who had represented him during trial and throughout his direct appeals, but also by Attorney H. Fred Hoefle.

B. Post-Conviction Proceedings

Represented by the Ohio Public Defender’s Office, Van Hook filed a postconviction action in the trial court on December 27, 1989. He raised the forty-four causes of action. The State answered the amended petition on March 23, 1990. On March 30, 1990, Van Hook supplemented his amended postconviction action with an additional exhibit. Oh April 26, 1990, the State filed a motion for summary judgment and/or a motion to dismiss. On June 11, 1991, the trial court dismissed Van Hook’s postcon-viction action without holding an evidentia-ry hearing.

Van Hook appealed to the Ohio Court of Appeals for the First Appellate District. On October 21, 1992, the court of appeals rejected Van Hook’s assignments of error and affirmed the judgment of the trial court. Exhibits 22 and 23 vol.VI to petitioner’s appendix of the state court record.

Van Hook appealed to the Supreme Court of Ohio, and essentially raised the same challenges there that he had presented to the appellate court below. The State opposed Van Hook’s memorandum in support of jurisdiction, and, on March 17, 1993, the Ohio Supreme Court issued an entry overruling Van Hook’s memorandum. Exhibit 11 vol-VII part 2 to petitioner’s appendix of the state court record. Van Hook’s motion for rehearing, filed on March 29, 1993, was summarily denied on April 28, 1993. Exhibit 14 vol.VII part 2 to petitioner’s appendix of the state court record.

C. Proceedings Pursuant to State v. Mumahan

On April 8, 1993, Van Hook filed, in accordance with State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992) and Ohio R.App. P. 26 and 14(B), an application for delayed reconsideration of his direct appeal to the Ohio Court of Appeals, alleging that he had received ineffective assistance of appellate counsel during that proceeding. He argued that his appellate attorneys had failed to raise a number of colorable issues, and sought to present those to the appellate court for review. The State opposed Van Hook’s motion, and, on February 22, 1994, the court of appeals denied Van Hook’s motion because he “failed to show good cause for filing it more than ninety days after this Court’s judgment was journalized, as required by App. R. 26(B)(2)(b).” Exhibit 4 vol.VIII to petitioner’s appendix of the state court record. In so holding, the appellate court noted that the application for delayed reconsideration had actually been filed before the effective date of the amendment to App.R. 26 that created the ninety-day limitation period. Van Hook filed a motion for rehearing, arguing that it was unfair to subject him to a procedural limitation that had not been in effect at the time that he filed his application. The appellate court summarily overruled his motion on April 4, 1994. Exhibit 8 voLVIII to petitioner’s appendix of the state court record.

Van Hook appealed to the Supreme Court of Ohio. The State opposed his memorandum in support of jurisdiction, and, on June 8, 1994, the Ohio Supreme Court affirmed the appellate court’s decision without opinion. Exhibit 4 vol.IX to petitioner’s appendix of the state court record. On August 3, 1994, the Ohio Supreme Court summarily denied Van Hook’s motion for rehearing. Exhibit 7 vol.IX to petitioner’s appendix of the state court record. The Supreme Court of the United States denied certiorari on or about December 12, 1994, and a petition for rehearing on or about February 21, 1995. Exhibits 8 and 10 vol.X to petitioner’s appendix of the state court record.

On June 21, 1994, Van Hook filed a motion for delayed reconsideration pursuant to State v. Murnahan, supra, in the Supreme Court of Ohio. He reasoned that, because appeals to the Ohio Supreme Court in death penalty cases are characterized as second appeals as of right, he was entitled to the effective assistance of counsel before that court, and therefore also entitled to use the procedure announced in the Murnahan decision for asserting the ineffectiveness of his attorneys before that court. Van Hook argued that his appellate attorneys failed to raise numerous errors of actual or arguable merit during his direct appeal to the Ohio Supreme Court, and sought to introduce those issues for review in his motion for reconsideration. The State opposed Van Hook’s motion for rehearing/reconsideration, and, on October 19, 1994, the Ohio Supreme Court denied his motion on the ground that “Van Hook’s 1987 appeal to this court was not a first appeal as of right; therefore, he had not constitutional right to counsel, hence no constitutional right to effective assistance.” (citation omitted). State v. Van Hook, 70 Ohio St.3d 1216, 639 N.E.2d 1199 (1994), exhibit 3 vol.XI to petitioner’s appendix of the state court record. On December 14, 1994, the Ohio Supreme Court denied Van Hook’s motion for reconsideration. Exhibit 6 voLXI to petitioner’s appendix of the state court record. On May 9, 1995, the United States Supreme Court denied Van Hook’s request for certiorari. Exhibit 8 vol.XI to petitioner’s appendix of the state court record.

III. Habeas Corpus Petition

Having exhausted his state court remedies, Van Hook now petitions this Court for habeas corpus relief. Represented by Attorney James Owen and the Ohio Public Defender’s Office. Van Hook filed a habe-as corpus petition on October 10, 1995 raising twelve claims for relief — some of which contained several sub-parts. But on April 29, 1997, after conducting some discovery. Van Hook filed an amended habe-as corpus petition superseding the original petition. Many of these claims, too, contain sub-parts. This section of the Opinion and Order will set forth in detail the claims that Van Hook has raised in this Court.

1. Ground A — Trial Court’s Failure to Suppress Van Hook’s Statement under Miranda v. Arizona, 881 U.S. 136 (1966)

Van Hook alleges that, after being detained in Florida, he made incriminating statements to Cincinnati law enforcement officers in response to questioning that they initiated even after he had invoked his right to counsel. Respondent raises no procedural default arguments against this claim.

2. Ground B — Failure to Suppress Van Hook’s Statements as Involuntary

In this claim, Van Hook alleges that the trial court erred in not suppressing the incriminating statements that he made to Cincinnati law enforcement officers on the ground that those statements were involuntary. Van Hook argues that his inculpa-tory statements were not the product of his own free will because of certain mental deficiencies and years of substance abuse, and also because the police ignored his attempt to invoke his constitutional rights and used psychological ploys, including employing Van Hook’s mother to assist them, to induce Van Hook to inculpate himself. Respondent raises no procedural default arguments against this claim.

3.Ground C — Selection Process for Veni-re Persons and Grand Jury Forepersons

Van Hook argues in Ground C that the process of selecting venire persons and forepersons to serve on grand juries in Hamilton County was tainted in 1985 due to consideration of race in the drawing, selection, and empanelment of grand jurors. Within this claim, Van Hook raises two distinct challenges:

A. Members Of The Grand Jury Veni-re Are Improperly Chosen.

In this sub-part, Van Hook alleges that the process for identifying and selecting persons to serve on the Grand Jury in Hamilton County results in an under representation of African-Americans and other minority groups.

B. Grand Jury Forepersons Are Improperly Chosen.

Van Hook asserts in this sub-part that the Ohio Revised Code permits the presiding judge to choose the grand jury foreperson, and that the presiding common pleas court judges in Hamilton County have traditionally chosen individuals who were not included in the grand jury venire to serve as the grand jury foreperson. This, according to Van Hook, resulted in forepersons who were all Caucasian and predominantly male. Respondent asserts that this claim is barred in its entirety because the only time it was presented to the state courts was in a “Mumahan” application for reopening and that application was dismissed by the state courts as untimely.

4. Ground D — Failure of the Trial Prosecutor to Provide Van Hook with Relevant, Material, Exculpatory Evidence

In this claim, Van Hook asserts that the trial prosecutors failed to disclose to defense attorneys exculpatory evidence in their possession which, if disclosed, would have been material to the outcome of the trial. Van Hook alleges that, due to the lack of guidelines in the Hamilton County Prosecutor’s Office as to what constituted “exculpatory evidence,” the trial prosecutors decided what exculpatory evidence to provide based on their own perception of what the defense attorneys were pursuing. Van Hook asserts more specifically that the trial prosecutors failed to provide any exculpatory evidence concerning the statutory element of identity. Van Hook identifies six different kinds of evidence that were not disclosed and further argues that the “totality of the suppressed evidence” violated his right to due process.

A. Ronald Light

Ronald Light was a Mend of the victim’s and the bartender at the club where Van Hook met the victim. At trial, Light identified Van Hook as the man who had left with the victim on the evening of the murder. Light, however, originally identified someone else as the man who had left with the victim that evening. Van Hook argues that the prosecutors failed to disclose that information, as well as the fact that Ronald Light and the victim had been romantically involved.

B. Michael Ramsey

Michael Ramsey also testified at trial that Van Hook left the Subway bar with the victim on the night of the murder. Van Hook complains that the prosecutors failed to disclose that Ramsey initially contacted the Crime Stoppers Program about obtaining a financial reward for information about the murder.

C. Robert Rice

At trial, Robert Rice testified that he saw Van Hook leaving the victim’s apartment building around the time of the homicide. According to Van Hook, though, trial prosecutors failed to disclose that Robert Rice was “mentally challenged,” and that Rice had initially provided a physical description which differed in several respects from Van Hook’s appearance.

D. Other Suspects

Van Hook asserts that trial prosecutors failed to disclose evidence that there were other “serious” suspects in the homicide investigation, thereby preventing him from demonstrating to the jury doubt as to whether he committed the offense.

E. The Crime Scene

Van Hook complains that the trial prosecutors failed to disclose that a shoeprint, which was too indistinguishable for an accurate description, was discovered; that the victim’s relatives could not determine whether anything was missing from the apartment; and that the victim’s apartment was not ransacked. Van Hook reasons that such information could have been used to attack the aggravated robbery charge/specification against him.

F. Robert Van Hook’s Insanity

Van Hook proceeded at trial on a defense of Not Guilty By Reason of Insanity. Van Hook asserts that suppressed conclusions reached by the state’s own expert were exculpatory on at least two levels: 1) explaining in a psychological manner the gruesome nature of the killing; and 2) supporting Van Hook’s insanity defense.

G. Totality of the Suppressed Evidence

Van Hook argues that the “enormous amount” of evidence suppressed by the trial prosecutors was sufficient to undermine confidence in the verdicts.

Respondent asserts that this claim is barred in its entirety because the only time it was presented to the state courts was in petitioner’s application to reopen his direct appeal and the state courts denied that application as untimely.

5. Ground E — Violation of Rights to Effective Assistance of Counsel, Due Process, Equal Protection, and of Confrontation By Denial of Access to Mental Health Experts

The essence of this claim is that Van Hook was denied access to mental health experts who could have presented evidence not only impugning the capital conviction, but also in mitigation of punishment. Van Hook asserts that he suffered from “ego-dystonic homosexuality and a severe Borderline Personality Disorder, which caused [him] to have a psychotic break at the time of the alleged incident.” With the proper medical experts, Van Hook could have created doubt as to his guilt of the aggravated murder and death penalty specifications, offered evidence in mitigation of punishment, and assailed the state’s expert testimony regarding his alleged future dangerousness and the nature of his mental condition. Van Hook submits these underlying facts to support two different legal theories: one, that his trial attorneys provided ineffective assistance in failing to obtain or even request the assistance of medical experts; and two, that the trial court erred in failing to provide access to mental health experts. Respondent raises no procedural default arguments against this claim.

6. Ground F — Failure of the Trial Court to Disseminate Addendum to Dr. Schmidtgoessling’s Insanity Report

In this claim, Van Hook asserts that the failure of the trial court to disseminate an addendum to the mental examination report prepared by one of the three experts appointed by the court, prevented him from presenting evidence during the guilt phase of the trial to negate the aggravated robbery charge/death specification, as well as evidence during the sentencing phase of the trial to mitigate punishment. Dr. Schimdtgoessling’s original report was provided to the trial court, prosecutors, and defense counsel. But an addendum to that report, in which she opined that it was just as likely as not that Van Hook had killed the victim in a “homosexual panic,” was furnished only to the trial court, and was not discovered by counsel for Van Hook until June, 1996. Van Hook asserts that the trial court’s suppression of that addendum not only prejudiced him at trial, but also hindered his efforts in postconviction to prove that the killing had occurred in the midst of a homosexual panic. Respondent asserts no procedural default arguments against this claim.

7.Ground G — Ineffective Assistance of Trial Counsel During Innocence-Guilt Phase of Trial

Van Hook claims that his áttorneys provided ineffective assistance during the innocence-guilt phase of the trial. Although he did not list them separately, there are essentially six sub-parts to this claim:

1. The failure of Van Hook’s trial attorneys to interview all of the witnesses listed in the prosecution’s discovery list, and to request the appointment of a criminal investigator as authorized under R.C. § 2929.024, prevented counsel from learning that Ronald Light initially identified someone other than Van Hook as the man who left the Subway bar with the victim on the night of the murder, that Michael Ramsey was paid a reward for his testimony, and that Robert Rice was mentally deficient and gave a physical description inconsistent with Van Hook’s appearance.

2. Although Van Hook’s trial attorneys requested the assistance of a psychological expert, the experts that were eventually appointed were not designated to assist defense counsel and failed to conduct adequate examinations.

3. Van Hook’s trial attorneys failed to file a motion to suppress the results of unduly suggestive identification procedures employed by the Cincinnati police in obtaining identifications from Ronald Light and Robert Rice.

4. Van Hook’s trial attorneys failed to * obtain adequate assurances that his waiver of a jury trial would ensure that his life would be spared.

5. Van Hook’s trial attorneys failed to request an in camera inspection of witnesses’ statements to law enforcement officers to identify inconsistencies.

6. Van Hook’s trial attorneys erred in raising the issue of Van Hook’s future dangerousness, which is not relevant in the innocence-guilt determination.

Respondent argues that petitioner’s ineffective assistance of trial counsel claims are preserved for habeas corpus review only to the extent that they were addressed by the state courts during petitioner’s postconviction proceedings.

8. Ground H — The State’s Improper Use of an Informant

In this ground, Van Hook alleges that, although he had already been arraigned and appointed counsel, detectives enlisted the help of his cellmate to gather information about him. As a result, detectives learned purported details about the offense that only the assailant would know; the location of the automobile in which Van Hook fled Cincinnati; Van Hook’s strategy with respect to his insanity plea; and facts about burglaries and robberies that Van Hook committed while in Florida. Respondent raises no procedural default arguments against this claim.

9. Ground I — Presence of Judge Bettman on Van Hook’s Three Judge Panel Was Prejudicial

Van Hook argues in this claim that one of the three judges assigned to his panel following his waiver of a jury trial, Judge Bettman, was under an undue burden to impose a harsh sentence in the case because of severe criticism that he had received for the perceived leniency of a sentence he imposed in a prior rape case.

Respondent asserts that this claim is barred under Ohio’s doctrine of res judica-ta because petitioner failed to raise it on direct appeal. Respondent further argues that the claim was in no way revived by the inclusion of it in petitioner’s application to reopen his direct appeal since that application was dismissed by the state courts as untimely.

10. Ground J — Factual Innocence of Aggravated Murder with Death Penalty Specifications

Van Hook claims that he is factually innocent of aggravated murder with death specifications because he was unable to appreciate the wrongfulness of his alleged conduct due to his borderline personality disorder, and therefore did not have specific intent to cause the victim’s death. Van Hook asserts that he has new evidence, which would have been presented at trial but for the ineffectiveness of his trial counsel, including the “treatment addendum” to Dr. Schmidtgoessling’s insanity report. Respondent argues that this claim is barred under Ohio’s doctrine of res judi-cata because petitioner failed to raise the claim on direct appeal and now no longer can.

11. Ground K — Ineffective Assistance of Trial Counsel During Mitigation Phase of Trial

Van Hook asserts that his trial attorneys provided ineffective assistance during the mitigation phase of his bifurcated trial. There are essentially sub-parts to this claim, although Van Hook did not list them separately:

1. Van Hook’s trial attorneys failed to conduct an adequate sentencing investigation prior to the commencement of trial, or in lieu to procure the assistance of an investigator trained in capital sentencing cases, and instead, relied on the pre-sen-tence investigation report prepared by the Hamilton County Adult Probation Department whose investigators are not adequately trained and do not collect social history.

2. Van Hook’s trial attorneys failed to request that a psychologist be appointed specifically to assist the defense with the sentencing proceeding.

3. Van Hook’s trial attorneys failed to object to improper evidence presented during the mitigation hearing, including: the pre-sentence investigation report prepared by the Adult Probation Department, which included death recommendations from the Cincinnati police department and a “victim impact statement” from the victim’s family as to the economic loss and psychological impact caused by the victim’s death; testimony regarding Van Hook’s lack of remorse; reference to and reliance on Van Hook’s failure to testify during the innocence-guilt phase of trial; evidence and argument of Van Hook’s potential future dangerousness; and Van Hook’s prior criminal history.

Respondent asserts, as he did against ground G, that petitioner’s ineffective assistance of trial counsel claims are preserved only to the extent that they were actually addressed by the state courts during petitioner’s postconviction proceedings.

12. Ground L — Trial Court’s Errors in the Admission of Evidence During Mitigation

Citing the same facts underlying his ineffective assistance of mitigation counsel, Van Hook claims that the trial court made numerous errors in the admission of evidence during the mitigation phase of his trial. There are six sub-parts to this claim, reprinted here verbatim:

1.The trial court erred in admitting the death recommendations of the Cincinnati police department;

2. The trial court erred in admitting the victim impact statement from the victim’s family;

3. The trial court erred in admitting testimony regarding Petitioner’s lack of remorse;

4. The trial court erred when it penalized Petitioner Van Hook for his failure to testify;

5. The trial court erred in permitting testimony and argument concerning Petitioner’s future dangerousness; and

6. The trial court erred in admitting prejudicial “prior bad acts” evidence.

Respondent asserts that all of these claims are barred under Ohio’s doctrine of res judicata because petitioner failed to raise them on direct appeal. He further asserts that all of the sub-parts but one were subsequently included in petitioner’s application to reopen his direct appeal, but that they are still barred because the state courts dismissed that application as untimely.

13. Ground M — Prosecutorial Misconduct

Van Hook argues that the verdicts in his case cannot be deemed reliable because of numerous instances of prosecutorial misconduct throughout every phase of the trial. During the innocence-guilt phase of the trial, the prosecutor stated in his opening statement that witness Stephen Wood had seen á white male leaving the victim’s apartment, but, when Wood actually testified at trial, he stated that he never saw anyone leave the apartment. Van Hook also alleges that the prosecution made the" following improper remarks during the mitigation phase of the trial:

1. that Van Hook was not remorseful;

2. that Van Hook would be dangerous in the future;

3. that photographs of the victim should be considered in determining whether the aggravating factors outweighed the mitigating circumstances;

4. that the facts themselves were an aggravating factor;

5. that a life sentence could be imposed only if the mitigating factors outweighed the aggravating circumstances;

6. that the three judge panel should consider all of the statutory mitigating factors (thereby emphasizing the absence of any that Van Hook did not offer); and

7. that uncharged misconduct on the part of Van Hook should be considered in determining whether to impose the death penalty.

Respondent asserts that this claim is barred under Ohio’s doctrine of res judica-ta because petitioner failed to raise it on direct appeal. Respondent farther argues that this claim was not revived by its inclusion in petitioner’s application to reopen his direct appeal because the state courts dismissed that application as untimely.

14. Ground N — Ineffective Assistance of Appellate Counsel

Van Hook claims that his attorneys provided ineffective assistance during both stages of his direct appeal. Complaining that his appellate counsel presented only eight issues to the court of appeals, and only four issues to the Supreme Court of Ohio — one of which had not been raised in the court of appeals below — Van Hook asserts that the following meritorious issues were not presented to the First District Court of Appeals on direct appeal due to the ineffectiveness of his appellate counsel:

1) That Van Hook did not receive a fair trial because of the sensational media coverage surrounding his case;

2) That the colloquium between the trial court and Van Hook during his waiver of his right to a jury trial failed to establish whether the waiver knowing, voluntary, and intelligent;

3) That the prosecution referred to events that had taken place both before and after this crime but that

Van Hook had not been charged with;

4) That the trial court had permitted a witness to testify to the contents of a letter that the witness had intentionally destroyed;

5) That the prosecution faded to prove facts that he mentioned in his opening argument;

6) That Van Hook’s death sentence was not given a complete proportionality review as required by Ohio law;

7) That the trial court had placed undue emphasis in its opinion on the fact that Van Hook had not testified at trial;

8) That undue pressure was placed on Judge Bettman by the media to impose a harsh sentence on Van Hook;

9) That the trial court erred in failing to rule on whether Van Hook’s un-sworn statement could be used against him at a later proceeding;

10) That the presiding Judge incorrectly stated the law when Van Hook waived his right to trial by jury;

11) The failure to obtain the assistance of social workers to assist at the mitigation stage of the proceedings;

12) The failure to object to the victim’s impact statement being considered by the trial court;

18) The failure to establish the proper definition of borderline personality disorder;

14) The trial court erred in permitting a witness to testify concerning Van Hook’s lack of remorse;

15) The failure to keep a complete and full transcript of all proceedings before the trial court;

16) The trial court erred in permitting a witness to testify concerning the future dangerousness of Van Hook;

17) That the trial court considered all the statutory mitigating factors, despite defense counsel specifically-limiting the evidence to four of the mitigating factors;

18) The prosecutorial misconduct during the mitigation stage;

19) That the trial court improperly excluded evidence in the mitigation stage;

20) That Van Hook was denied bond prior to trial;

21) The failure to properly conduct the mitigation evaluation and/or the expert was not presented with sufficient information concerning Van Hook;

22) That a state’s witness was permitted to testify as to matters that were hearsay in nature;

23) That the trial court improperly combined two of the mitigating factors;

24) That the trial court refused to give any weight in mitigation to Van Hook’s borderline personality disorder;

25) That prior to trial the three-Judge panel and the prosecution conducted an ex parte proceeding; and

26) That the trial court reviewed a pre-sentence investigation report prior to sentencing Van Hook.

Respondent asserts that this claim is barred in its entirety because the state courts dismissed petitioner’s application to reopen his direct appeal as untimely.

Van Hook asserts that the following meritorious issues were not presented during to the Ohio Supreme Court on direct appeal due to the ineffectiveness of his appellate counsel:

1) The cumulative and prejudicial photographs which were allowed into evidence;

2) The prosecution’s undue pressure on Judge Bettman to impose a death sentence against Van Hook;

3) That the trial court erred by overruling Van Hook’s motion to increase the burden of proof to beyond all doubt; and

4)That the trial court erred by denying Van Hook’s motion to prohibit death qualification of the jury.

Respondent argues that this claim is barred in its entirety because there is no constitutional right to the effective assistance of counsel before the Ohio Supreme Court and because the Ohio Supreme Court recognizes no such remedy.

15. Ground 0 — Unconstitutionality of the Death Penalty

Van Hook’s petition mounts a general attack on the constitutionality of Ohio’s death penalty scheme. There appear to be 26 separate claims, but it is not necessary for purposes of this order to identify them separately because the Warden does not appear to argue that any of these claims is barred by procedural default.

16. Ground P — Policies and Practices of Hamilton County Prosecutor’s Office and Judicial System in Seeking, Securing, and Imposing Capital Convictions and Death Sentences

In this ground, Van Hook complains that the policies and practices employed by the Hamilton County Prosecutor’s Office and the Hamilton County Judicial System in seeking, securing, and imposing capital convictions violates the cruel and unusual punishment, due process, and equal protection provisions of the United States Constitution. Van Hook argues specifically that the race of the accused and the victim plays a role in the way that the death penalty is sought and imposed in Hamilton County, due in large part to the fact that the Cincinnati Police Department and Prosecutors have virtually uncontrolled discretion in making indictment decisions.

Respondent argues that this claim has been waived because petitioner failed to present it to the appellate court on direct appeal,' but subsequently attempted to present it to the Ohio Supreme Court on direct appeal, in violation of State v. Williams, 51 Ohio St.2d 112, 364 N.E.2d 1364, paragraph two of the syllabus (1977). That said, it appears that the first time this claim was asserted was in Van Hook’s motion for delayed reconsideration of his direct appeal to the court of appeals.

17. Ground Q—Summary Disposition of Postconviction Actions in Hamilton County

Van Hook claims that the Ohio state courts have adopted numerous procedural bars which preclude Ohio prisoners from obtaining the constitutionally mandated review of their state and federal constitutional claims under Ohio’s postconviction procedure. Van Hook complains that postconviction actions in Hamilton County are routinely subject to summary dismissal without discovery or evidentiary hearings, and that the findings of fact and conclusions of law issued by the trial judges are nothing more than in toto adoptions of the proposed findings submitted by the prosecutors. The problem is exacerbated by the fact that these summary dispositions are routinely affirmed by the Hamilton County Court of Appeals, which itself imposes barriers such as page limits on the appellate briefs. Further, the Supreme Court of Ohio never exercises its discretionary review over these capital postconviction appeals. Van Hook asserts that the entire state postconviction process has been rendered meaningless. Respondent asserts no procedural default arguments against this claim.

IV. Procedural Default Discussion

Respondent argues that many of Van Hook’s constitutional claims are subject to one or more procedural defaults. Those procedural default arguments may be broadly summarized as follows. First, respondent argues that Grounds J and L.l were never presented to the Ohio courts, and now, no longer can be. Next, respondent argues that Grounds I, J, L.l-6, and M should have been, but were not, raised on direct appeal and are therefore waived under Ohio’s doctrine of res judicata. Respondent further argues that ineffectiveness of appellate counsel claims which were raised for the first time in Van Hook’s motion for delayed reconsideration of his direct appeal to the court of appeals are barred because that motion was, without good cause, filed more than ninety days after the journalization of the appellate court’s original decision. (Ground N). Similarly, respondent argues that no claims were preserved in Van Hook’s motion for delayed reconsideration of his direct appeal to the Supreme Court of Ohio, based on the alleged ineffectiveness of his attorneys at that level, because Van Hook was not entitled to the effective assistance of counsel on direct appeal to the Supreme Court of Ohio. Respondent argues that one claim, Ground P, is waived because that claim was not presented to the First District Court of Appeals on direct appeal, but then was included in Van Hook’s appeal to the Ohio Supreme Court. Finally, respondent argues that the only ineffective assistance of trial counsel claims that are viable are Grounds G and K, to the extent that they were discussed by the First District Court of Appeals.

Respondent raises no procedural default arguments against the following claims: Ground A, Ground B, Ground E, Ground F, Ground H, Ground 0, and Ground Q. Accordingly, all of these claims will be addressed on the merits. Before addressing respondent’s specific procedural default arguments, the Court will discuss briefly Ohio’s rule of res judicata as it applies to criminal proceedings.

In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to fairly present those claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present the claims, his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson, v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982)(per curiam); Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). But if, because of a procedural default, the petitioner can no longer present his claims to a state court, he has waived them for purposes of federal habeas review unless he can demonstrate cause for the procedural default and actual prejudice from the alleged constitutional error. Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a federal habeas claim is precluded by the petitioner's failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). "First, the court must determine that there is a procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule." Id. Second, the Court must determine whether the state courts actually enforced the state procedural sanction. Id. Third, it must be decided whether the state procedural forfeiture is an adequate and independent state ground upon which the state can rely to foreclose review of a federal constitutional claim. Id. Finally, if the Court has determined that a state procedural rule was not met and that the rule was an adequate and independent state ground for the decision, then the petitioner must demonstrate that there was cause not to comply with the procedural rule and that he was actually prejudiced by the alleged constitutional error. Id.

Van Hook and respondent do not argue, and it does not otherwise appear to this Court, that any of petitioner's claims is unexhausted. That leaves only waiver issues for the Court to resolve before reaching the merits of this habeas corpus action.

As a general matter, a defendant who is convicted in Ohio of a criminal offense has two avenues of attacking that conviction-direct appeal and collateral attack. Claims appearing on the face of the record must be raised on direct appeal, or they will be waived under Ohio's doctrine of res judicata. See State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Issues which must be raised in a postcon-viction action pursuant to R.C. § 2953.21 include claims which do not appear on the face of the record and claims of ineffective assistance of trial counsel where the defendant was represented on direct appeal by the same attorney who represented him at trial. State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982). In 1992, a third procedure of review commonly employed by Ohio prisoners emerged. Claims of ineffective assistance of appellate counsel must be presented to the appellate court in a motion for delayed reconsideration pursuant to State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992) and Ohio R.App. P. 26(B).

In addition to raising each claim in the appropriate forum, a habeas litigant, in order to preserve his constitutional claims for habeas review, must present those claims all the way through the Ohio courts. Thus, the judgment of conviction on direct appeal, and any adverse decision rendered by the trial court in postconviction, must be appealed to both the Ohio Court of Appeals and the Supreme Court of Ohio. Likewise, any adverse decision rendered by the Ohio Court of Appeals on a motion for delayed reconsideration must be timely appealed to the Supreme Court of Ohio. The Court will turn first to those claims which respondent alleges were never presented to the Ohio courts.

A.

Respondent contends that Grounds J and L.1 were never presented to the Ohio Courts. According to respondent, Van Hook’s claim that he is factually innocent of capital murder because he did not have specific intent to cause the victim’s death (Ground J), and Van Hook’s claim that the trial court erred in admitting and considering a recommendation by the Cincinnati Police Department that Van Hook be sentenced to death (Ground L.l), were never presented to the Ohio courts. Van Hook insists that he presented both of these claims to the Ohio courts in his amended posteonviction action, his motion for delayed reconsideration of his direct appeal to the court of appeals, and his motion for delayed reconsideration of his direct appeal to the Ohio Supreme Court.

Upon review of the record, the Court finds that Van Hook did in fact present his factual innocence claim to the Ohio courts as the twenty-first cause of action in his amended postconviction action, the twenty-sixth assignment of error in his motion for delayed reconsideration of his direct appeal to the court of appeals, and the twenty-sixth proposition of law in his motion for delayed reconsideration of his direct appeal to the Ohio Supreme Court. The Court further finds that Van Hook’s claim challenging the trial court’s admission of a death recommendation by the Cincinnati Police Department was presented to the Ohio courts as the fortieth cause of action in his amended postconviction action, the forty-third assignment of error in his motion for delayed reconsideration of his direct appeal to the court of appeals, and the forty-third proposition of law in his motion for delayed reconsideration of his direct appeal to the Ohio Supreme Court. That being so, respondent’s argument that these claims were never presented to the Ohio courts is not well taken but, that is not to say that these claims are therefore preserved for habeas review. The Court will consider later whether Grounds J and L.l are subject to any other procedural defaults.

B.

Respondent alleges that many of Van Hook’s claims are barred under Ohio’s doctrine of res judicata because they were not raised on direct appeal. Specifically, respondent argues that Ground I (presence of Judge Bettman on the three judge panel), Ground L.2 (trial court’s admission of the family’s victim impact statement), Ground L.3 (trial court’s admission of testimony regarding Van Hook’s lack of remorse), Ground L.4 (trial court’s consideration of Van Hook’s failure to testify), Ground L.5 (trial court’s consideration of Van Hook’s future dangerousness), Ground L.6 (trial court’s admission of “prior bad acts”), and Ground M (prosecutorial misconduct) are barred under res judicata, This procedural default argument also applies to Grounds J and L.l.

Van Hook offers a host of arguments against the enforcement of this alleged procedural default. First, he argues that each of these claims was properly raised in postconviction because they had not been preserved at trial. Raising them on direct appeal, Van Hook reasons, would have required his appellate attorneys to draw attention to their own ineffectiveness for not preserving those issues at trial. Van Hook further argues that the procedural default should not be enforced because the Ohio courts did not expressly rely on the res judicata bar in dismissing his claims, insofar as the trial court abdicated its statutory duty to make findings, and instead adopted in toto the findings of fact and conclusions of law submitted by the prosecutor. Such findings, Van Hook argues, should not be honored by this Court. Van Hook also advances several reasons why Ohio’s doctrine of res judicata is not an adequate ground upon which to deny relief. See Maupin, supra. He argues that Ohio courts do not consistently apply procedural rules, including the rule of res judicata; that Ohio’s postconviction system does not meet the requirements of due process; that the rule is inadequate to the extent that it requires appellate attorneys to raise issues that would implicate their own ineffectiveness for not preserving those issues at trial; and that the rule does not promote any legitimate state interests. With respect to only Ground I (presence of Judge Bettman on the three judge panel), Van Hook raises the additional argument that the claim should not have been barred by res judicata because the claim was supported by evidence de hors the record. Finally, Van Hook argues that, in the event that this Court finds that the res judicata procedural default argument survives each of the challenges raised above, the default can be excused under the cause-and-prejudice and fundamental miscarriage of justice exceptions. The Court will address each of these arguments individually and then undertake to apply the four-part Maupin analysis.

1.

The first argument Van Hook raises against this Court honoring the res judica-ta bar as to Grounds I, J, L, and M is that those claims could not have been raised on direct appeal by virtue of the fact that they had not been preserved at trial. Ohio’s contemporaneous objection rule prohibits a court of appeals from reversing a trial court judgment on the basis of any error to which the defense failed to object during trial, absent plain error. See State v. Williams, 51 Ohio St.2d 112, 364 N.E.2d 1364, paragraph one of the syllabus (1977)(holding that appellate courts will review only for plain error those claims that were not preserved at trial); see also Crim. R. 52(B). Van Hook asserts that none of the issues presented in the grounds listed above was addressed by objection during the trial. Thus, raising those issues on direct appeal would have required Van Hook’s attorneys on direct appeal to argue either that they had been ineffective for failing to object to the various issues, or that the issues amounted to plain error. Van Hook’s argument must be rejected.

Van Hook was represented on direct appeal by the same two attorneys who had represented him at trial. Under Ohio law, a petitioner who is represented on direct appeal by the same attorney who represented him at trial has no obligation to raise on direct appeal any ineffective assistance of trial counsel claims. See State v. Cole, 2 Ohio St.3d at 113-14, 443 N.E.2d 169; see also State v. Lentz, 70 Ohio St.3d 527, 529, 639 N.E.2d 784 (1994)(“since ‘counsel cannot realistically be expected to argue his own incompetence, res judicata does not act to bar a defendant represented by the same counsel at trial and upon direct appeal from raising a claim of ineffective assistance of counsel in a petition for postconviction relief.’” (quoting State v. Carter, 36 Ohio Misc. 170, 304 N.E.2d 415 (1973))); City of Dayton v. Hill, 21 Ohio St.2d 125, 125, 256 N.E.2d 194 (1970). Although an attorney is not required to raise his own ineffectiveness as an independent claim on direct appeal, the question remains whether appellate counsel is excused from raising on direct appeal any issue which might suggest that he rendered ineffective assistance of counsel by failing to object to the error during trial.

The clear answer under well-established Ohio law is that such errors could not have been raised on direct appeal—except as plain error—because a contemporaneous objection was not made at trial. That is, the event giving rise to the procedural default occurs at trial, not when appellate counsel fails to raise the constitutional claim as a plain error on direct appeal.

Ohio’s contemporaneous objection rule is firmly established and regularly followed. Scott v. Mitchell, 209 F.3d 854, 868-871 (6th Cir.2000)(and cases cited therein)(r’hng and suggestion for r’hng en banc denied Jul. 12, 2000). If Van Hook’s argument were accepted, Ohio’s contemporaneous objection rule would be gutted and the interests strengthened by rule—raising the objection at a time when the trial judge has the opportunity to sustain the objection and accord the defendant a fair trial; the facts relevant to the objection rule are obtained when the witnesses’s recollections are freshest and in a forum best suited to make factual findings; and finality—would be undermined.

Van Hook’s argument further suffers from another defect. If failure to make a contemporaneous objection was ineffective assistance of counsel, then Ohio provides a remedy for that constitutional deprivation: the defendant may raise it during the first proceeding in which he is represented by new counsel—either on direct appeal or in postconvietion proceedings. On the other hand, if the failure to object did not amount to ineffective assistance of counsel, then there is no reason why trial counsel would not raise the claim as a plain error on direct appeal. And, in fact, defense counsel in Ohio do raise plain error claims on direct appeal in many criminal cases, including death penalty appeals. See, e.g., State v. Chinn, 85 Ohio St.3d 548, 554, 709 N.E.2d 1166 (1999); State v. Williams, 74 Ohio St.3d 569, 579, 660 N.E.2d 724 (1996).

2.

Another argument advanced by Van Hook against this Court’s enforcement of res judicata against Grounds I, J, L, and M is that the doctrine is not an adequate ground upon which to decline relief. Citing the trial court’s adoption in toto of the state’s proposed findings of fact and conclusions of law in dismissing his postconviction action, petitioner argues that the state courts did not expressly rely on res judicata in dismissing the claims set forth above. In assailing the adequacy of res judicata. Van Hook points to the alleged inconsistency with which procedural rules are enforced by Ohio courts in capital cases, the alleged failure of Ohio’s postcon-vietion system to meet the requirements of due process, and the lack of legitimate state interests promoted by the doctrine of res judicata. Van Hook’s arguments are not well taken.

The Honorable Edmund A. Sargus, Jr. recently discussed res judicata and the adequate and independent doctrine in Sowell v. Collins, Case No. C-1-94-237 (S.D.Ohio Feb. 18, 1998). He wrote:

When a state argues that habeas corpus review of a claim is precluded due to the petitioner’s failure to observe a state procedural rule, this Court is required to determine, among other things, whether the state procedural rule is an adequate and independent ground upon which to preclude relief. Maupin v. Smith, supra, 785 F.2d at 138. To be “independent,” the procedural rule at issue, as well as the state court’s reliance thereon, must rely in no part on federal law. See Coleman v. Thompson, 501 U.S. 722, 732-33, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). To be “adequate,” the state procedural rule must be firmly established and regularly followed by the state courts. Ford v. Georgia, 498 U.S. 411, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). “[0]nly a ‘firmly established and regularly followed state practice’ may be interposed by a State to prevent subsequent review by this Court of a federal constitutional claim.” Id. at 423, 111 S.Ct. 850 (quoting James v. Kentucky, 466 U.S. 341, 348-351, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984)). See also Barr v. City of Columbia, 378 U.S. 146, 149, 84 S.Ct. 1734, 12 L.Ed.2d 766 (1964); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 297, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964).

Hi H* ❖ H* #

[T]he determination of whether a state procedural rule is an adequate ground for denying relief necessarily focuses on the procedural rule at issue, namely, the Perry rule. This Court has consistently held that Ohio’s doctrine of res judicata, ie., the Perry rule, is an adequate ground for denying federal habeas relief. The doctrine of res judicata is stated in unmistakable terms in countless Ohio decisions, and Ohio courts have consistently refused, in reliance on that doctrine, to review the merits of claims. See State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169; State v. Ishmail, 67 Ohio St.2d 16, 423 N.E.2d 1068. Further, the doctrine of res judicata serves the state’s interest in finality and in ensuring that claims are adjudicated at the earliest possible opportunity. That Ohio courts may on occasion elect to ignore or forgive non-compliance with its procedural rules has no bearing on the general question of whether the Perry rule is adequate. This Court is satisfied from its own review of relevant case law that the Perry rule is an adequate and independent ground for denying relief.

Sowell, at 48-49.

The Court agrees with this reasoning and thus, to the extent that Van Hook is challenging the adequacy of Ohio’s res judica-ta doctrine, his argument is not well taken.

Of course, should the Ohio courts fail to provide an individual defendant with a fair postconviction review, a federal ha-beas court can independently review the merits of the constitutional claims that the state courts failed to fairly review. See 28 U.S.C. § 2254(d) and (e). But Van Hook failed to raise at trial or on direct appeal certain issues that plainly appeared on the face of the record. Finally, insofar as Van Hook complains about the practice of the Hamilton County Courts of adopting in toto proposed findings of fact and conclusions of law submitted by the prosecutor, several federal courts have held that such a practice does not necessarily undermine the presumption of correctness of those findings. See Correll v. Thompson, 63 F.3d 1279, 1293 (4th Cir.1995), cert. denied, Correll v. Jabe, 516 U.S. 1035, 116 S.Ct. 688, 133 L.Ed.2d 593 (1996); McBride v. Sharpe, 25 F.3d 962, 971 n. 12 (11th Cir.1994), cert. denied, 513 U.S. 990, 115