Full opinion text
MEMORANDUM OPINION AND ORDER ECONOMUS, District Judge. This matter is before the Court upon the Petition for Writ of Habeas Corpus (Dkt.# 14) (“Petition”) of Andre Jackson (“Jackson”). Jackson alleges 48 separate grounds for relief in the Petition. Also before the Court are Jackson’s Memorandum in Support of the Application (Dkt.# 15) (“Memorandum”), Respondent’s Return of Writ (Dkt.# 34) (“ROW”), and Jackson’s Traverse (Dkt.# 45). For the reasons which follow, the Petition is DENIED. I. INTRODUCTION In 1985, Jackson was convicted by a jury in the Common Pleas Court of Cuyahoga County, Ohio of aggravated murder and aggravated robbery. The Ohio Court of Appeals for the Eighth District later stated that “[t]he record demonstrates Jackson committed a brutal and senseless murder of an elderly woman in his effort to steal a cash register and its contents.” State v. Jackson, 1989 WL 117432 (Ohio App. 8 Dist.) * 1. The Court of Appeals found that the evidence supported the jury’s finding that Jackson was the principal offender in the crime, and that the sole aggravating circumstance of the crime, the commission of the aggravated robbery, outweighed the mitigating factors presented by Jackson. See id. II. FACTUAL BACKGROUND The Supreme Court of Ohio rendered the following binding factual findings with respect to this case: On June 25, 1987, at a laundromat in Euclid, Ohio, Emily Zak was found dead, her head stuffed in a toilet. Following an intense investigation, police apprehended the defendant, Andre L. Jackson, on September 4, 1987, and subsequently charged him with aggravated murder with a death specification, and with aggravated robbery. Emily Zak, age seventy-five, had worked for the laundromat owner, James Horton, since 1983. Zak, a meticulous attendant, started each day with a $100 change fund in the cash register, and pinned the register keys to her smock. The laundromat had a variety of vending machines, but patrons had to write down their names and phone numbers to get a refund for money lost in faulty machines. Horton, after daily checking the blue note pad kept for that purpose, would call any patron claiming a refund. Although Zak went to the nearby Convenient Food Mart on June 25 at 9:30 a.m. for her usual morning coffee, she did not go back at 11:45 a.m., as she normally would have done. According to one customer who left the laundromat that morning around 11:00 a.m., or possibly even 11:30, Zak was still fine. Another customer went into the laundromat around 11:30 a.m. to use the copy machine. He did not see anyone there and left after three or four minutes. Around 12:30 p.m., a bystander told a customer that the laundromat attendant was in the bathroom with her head in the toilet. The customer went to the Convenient store and asked the Convenient store owner to investigate. The owner went to the laundromat, searched for Zak, entered the toilet stall, found her body, and notified the authorities. Police, responding to a 12:50 pan. call, found Zak dead. She was on her knees, her face and head pushed into the toilet up to her shoulders. Zak’s blouse, smock, and undergarments were in disarray. Her back showed a patterned bruise. A purse, makeup kit, and eyeglass case were on the floor. Police secured the scene, took extensive photographs, dusted for finger-prints, and searched for clues and witnesses. They found that the cash register and register keys were missing. Though police could not find the missing register, they did find the blue note pad used to record requests for refunds. The top sheet had a note which said: “Pete Johnson “681-4957 “is ac” Horton had checked on June 24 and found no note then; hence, he concluded this note was written on June 25. Police tried to locate “Pete Johnson.” Horton identified the cursive writing “is ac” as written by Emily Zak. At trial, an expert document examiner testified that the words “Pete Johnson” and “681-4957” were written by Jackson. Zak died as a result of “crushing impact to the neck and trunk with multiple fractures.” She had a broken neck, skull fracture, fractured esophagus, and the third through tenth ribs were fractured. The coroner estimated that she had received at least four head impacts, one very severe blow or crushing impact to the neck, three blows to the trunk, and another two or three to the extremities. Her neck injuries were consistent with someone stepping on her neck, and patterned bruises on her body were consistent with a shoe print. Other injuries were of the type produced by a blunt object, such as a fist. Police continued investigating but because of the laundromat’s cleanliness, they found few prints. On June 29, a fingerprint specialist found a latent palm print and left index fingerprint very high and forward on the toilet stall’s left wall. At trial, two expert witnesses identified the prints as Jackson’s. On July 21, police found the register in a heavily wooded area, about one-fourth of a mile from the laundromat and two hundred twenty paces from where Jackson lived. Next to the register, police found two large plastic bags. One bag was similar to those the laundromat sold. The other bag was similar to those used by the maintenance man at the apartment complex where Jackson lived. On the day police found the register, they coincidentally arrested Jackson for an unrelated offense of receiving stolen property. At Jackson’s request, Euclid detective Ted Schafer helped Jackson secure a reduced bail bond. Jackson told Schafer, who was investigating Zak’s murder, that visitors to Jackson’s apartment had discussed the Zak murder. One visitor had said that the murderer had to get rid of his shoes because the police had footprints, and that the victim had a snotty attitude. Jackson promised to call Schafer if he learned anything else about Zak’s murder. In late August, Schafer was attempting to locate a possible witness named “Andre.” When Jackson was pointed out to a police officer as “Andre,” that officer told Jackson to contact detectives investigating Zak’s homicide. Jackson called Schafer the next day, and they met. When Schafer interviewed Jackson on September 4, Jackson was not a suspect, but Schafer did drive Jackson to the police station to obtain a written statement. At the station, Schafer realized that Jackson was the missing “Andre.” Police Captain Patrick Newkirk, in charge of Zak’s murder investigation, joined Schafer in interviewing Jackson. During this interview, Jackson claimed to have been in the laundromat only once. Jackson asserted that everyone knew who killed Zak, but no one would say. Jackson also claimed that he and several friends had been playing basketball, heard about the register’s location, ran to the woods, and searched the register for money but found only change. When asked, Jackson said his fingerprints would be found on the cash register and on the nearby plastic bags. In fact, police found no prints on the register or the bags. After this admission, Newkirk ordered Jackson’s arrest for tampering with evidence because Jackson knew so much about the crime, e.g., the amount of money taken, exactly where the register was found, and the presence of plastic bags. After Jackson’s arrest, a detective checked Jackson’s palm print and fingerprint against the latent prints from the toilet stall. He found them to be identical. Jackson, while in jail, worried about his mother’s health, and contacted Newkirk on September 7. According to Newkirk, Jackson admitted involvement but claimed he did not rob Zak alone. Jackson refused to identify who was with him, saying he did not want to be a “snitch.” Nonetheless, Jackson described the other robber. When asked why the old woman had to be killed, Jackson replied, “I wasn’t there at the end,” Jackson asked Newkirk to explain what “aggravated robbery and murder” meant. After Newkirk explained, Jackson told Newkirk that the police, after they found the other robber, “would only be able to charge him [Jackson] with maybe robbery or murder, but not aggravated murder.” Aside from his fingerprints, handwriting, and admissions, other evidence linked Jackson to Zak’s murder. Jackson was seen a few days after the murder carrying a trash bag toward the park where the register was later found. Another witness recalled seeing Jackson use the Convenient store telephone on the morning of the murder. According to a laundromat customer, Jackson had demanded a dollar refund from Zak on June 23, two days before the murder, asserting that he had lost a dollar in the change machine. Zak told Jackson to write down his name and phone number and the laundromat owner would call him. Jackson cursed, called Zak names, and left without writing down his name. At trial, Jackson denied killing or robbing Zak and relied on an alibi. Zak was killed between 11:00 a.m. and 12:30 p.m. According to Jackson, he had stayed at his sister’s apartment on June 25 the entire morning. He lived there with his sister, Precious, her boyfriend, Vincent Patton, and, at times, Jackson’s girlfriend, Carla Elliott. Just after noon, Jackson and Vincent left, caught a bus, picked up Vincent’s mother’s ear, and drove to a sales job interview at 1:00 p.m. Precious Jackson testified that when she woke up around 10:30 a.m., Andre was in the apartment and remained there until he left with Vincent just after 12:00. Carla Elliott also testified that Andre stayed in the apartment until he left with Vincent. Vincent testified he stayed with Jackson the entire afternoon after they left the apartment together. Patton’s mother corroborated that Vincent picked up her car around 12:30 that day, but she did not see Jackson. Business records reflected that Jackson showed up at 1:00 p.m. for the sales job interview. Vincent and Precious had made prior written statements to the police about that morning that seriously contradicted their alibi testimony. Jackson testified he had been in the laundromat eight to ten times and had used the toilet there four or five times. He denied leaving his apartment that morning or being in the laundromat on June 25. He denied writing the name Pete Johnson on a pad, or ever confronting Zak about a refund. In his testimony, Jackson denied telling Newkirk he had been involved in the robbery or that he had ever touched the register. Jackson proclaimed his complete innocence. State v. Jackson, 57 Ohio St.3d 29, 30-32, 565 N.E.2d 549, 552-54 (1991). The jury convicted Jackson of aggravated murder, aggravated robbery, and the death penalty specifications alleging murder in the course of aggravated robbery. After a sentencing hearing, the jury recommended death, and the judge imposed the death penalty. 565 N.E.2d at 554. III. PROCEDURAL HISTORY A. DIRECT APPEAL In addition to the procedural history of this case set forth in the Factual Background supra, the Court notes that on direct appeal the Eighth District affirmed Jackson’s convictions and sentences in all respects on October 5, 1989. See State v. Jackson, 1989 WL 117434 (Ohio App. 8 Dist.). Subsequently, on January 9, 1991, the Supreme Court of Ohio affirmed the decision of the Eighth District in all respects. See State v. Jackson, 57 Ohio St.3d 29, 565 N.E.2d 549. Jackson’s Motion for Rehearing was denied by the Supreme Court on October 7, 1991. On June 3, 1991, Jackson filed a certiorari petition in the United States Supreme Court, which the Court denied on October 7, 1991. Jackson v. Ohio, 502 U.S. 835, 112 S.Ct. 117, 116 L.Ed.2d 86 (1991). B. FIRST AND SECOND POST-CONVICTION PETITIONS On June 23, 1992, Jackson filed his first post-conviction petition in the Common Pleas Court for Cuyahoga County (the “first Petition”). On October 28, 1992, the trial court issued Findings of Fact and Conclusions of Law denying the first Petition. Jackson failed to timely appeal the court’s dismissal of the first Petition. On October 16, 1992, Jackson filed a second post-conviction petition in the Common Pleas Court for Cuyahoga County assigning the same fifty claims for relief contained in the first Petition, plus twenty-one additional claims (the “second Petition”). On December 7, 1992, the trial court issued Findings of Fact and Conclusions of Law dismissing the second Petition. Jackson failed to timely appeal the court’s dismissal of the second Petition. Jackson then filed the first of three separate motions for relief from judgment pursuant to Rule 60 on October 12, 1993. In this first motion, Jackson asked the trial court to vacate and re-journalize the December 7, 1992, Order dismissing the second Petition. On October 18, 1993, the trial court denied the first motion for relief. On May 11, 1994, Jackson filed a second untimely motion for relief pursuant to Rule 60(B) in the trial court, in which he requested that the court vacate its October 12, 1993, dismissal of the first Petition and its December 7, 1992, dismissal of the second Petition. On June 20, 1994, the trial court granted the State’s motion to dismiss Jackson’s second motion for relief from judgment. On September 8, 1994, Jackson filed his third motion for relief from judgment in the trial court. In this motion, Jackson asked for relief from the June 20, 1994, Order granting the State’s motion to dismiss the May 11, 1994, Motion for Relief from Order. On September 23, 1994, the State filed a motion to dismiss Jackson’s third motion for relief. On September 30, 1994, the trial court granted the State’s motion and dismissed Jackson’s third motion for relief from Order. On October 3, 1994, subsequent to the denial of his third Rule 60(B) motion, Jackson filed a response to the State’s motion to dismiss. Jackson had filed untimely notices of appeal from the first and second Rule 60 motions, but he filed a timely notice of appeal from the third Rule 60 motion. The cases were proceeding separately until November 14, 1994, when the Eighth District consolidated all three appeals. On June 22, 1995, the Eighth District dismissed all claims relating to Case Nos. 67025 and 67876 (the untimely appeals from the first two Rule 60 motions), and affirmed the denial of the third motion. The Eighth District cited Jackson’s failure to comply with App. R. 4 in holding that it lacked jurisdiction to review the judgments of the trial court. The Eighth District affirmed the trial court’s decision in Case No. 68085. The Eighth District also refused to address Jackson’s post-conviction claims, and held that Jackson should have appealed directly from the denial of the post-conviction petitions. The Eighth District held that the failure of Jackson to so appeal deprived the court of jurisdiction to consider the claims asserted in the two post-conviction petitions on their merits in the appeal from the denial of the Rule 60 motions. Jackson then appealed the denial of the Rule 60 motions to the Supreme Court of Ohio by filing a memorandum in support of jurisdiction. On November 22, 1995, the Supreme Court dismissed Jackson’s appeal as not involving any substantial constitutional question. On December 4, 1995, Jackson moved for reconsideration, which the Supreme Court denied on December 20, 1995. Jackson then sought a writ of certiorari from the United States Supreme Court, which was denied. See Jackson v. Ohio, 517 U.S. 1214, 116 S.Ct. 1837, 134 L.Ed.2d 940 (1996). C. MURNAHAN PROCEEDINGS While his various post-conviction actions were proceeding, Jackson had filed an Application for Delayed Reconsideration (.Mumahan motion) in the Eighth District on June 30, 1993. On July 14, 1994, the Eighth District denied all of the claims of ineffective assistance of appellate counsel contained in the Mumahan motion. From this denial, Jackson appealed to the Supreme Court of Ohio, which dismissed the appeal on March 23, 1995, for lack of jurisdiction. The court cited Jackson’s failure to file a merit brief in compliance with the Rules of Practice of the Supreme Court. On April 3, 1995, Jackson filed a motion to vacate and a motion for reconsideration with respect to the Supreme Court’s dismissal of his Mumahan motion. On April 25, 1995, the Court denied Jackson’s motion for reconsideration, and on May 5, 1995, the Court denied his motion to vacate. On March 29, 1996, Jackson filed a Motion for Reconsideration and Reopening Relating to Ineffective Assistance of Counsel in the Ohio Supreme Court, which the Court denied on May 8,1996. On December 2, 1996, Jackson filed his Petition with this Court. IY. INITIAL CONSIDERATIONS A. THE AEDPA APPLIES TO THE APPLICATION The Court notes, as a preliminary matter, that in this case the Petition was filed on December 2, 1996, which was subsequent to the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore, the AEDPA applies herein. See Williams v. Coyle, 167 F.3d 1036, 1037 (6th Cir.1999). See also King v. Trippett, 192 F.3d 517, 520 (6th Cir.1999) (citing Nevers v. Killinger, 169 F.3d 352, 357 (6th Cir.), cert. denied, 527 U.S. 1004, 119 S.Ct. 2340, 144 L.Ed.2d 237 (1999) and Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.1997), cert. denied, 522 U.S. 1112, 118 S.Ct. 1044, 140 L.Ed.2d 109 (1998)). B. STANDARD OF HABEAS REVIEW UNDER AEDPA Federal courts may entertain a State prisoner’s petition for habeas relief only on the grounds that the prisoner’s confinement violates the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a) (1994). A violation of Stale law is not cognizable in a federal habeas proceeding unless the violation is of constitutional magnitude. See, e.g., Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). Also see Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (“It is not the province of a federal habeas court to reexamine state court determinations on state law questions.”). Thus, general improprieties occurring in State court proceedings are cognizable only if they resulted in fundamental unfairness, and consequently violated the habeas petitioner’s Fourteenth Amendment right to due process. Relief for violations of federal law will be granted only if the violation rises to the level of a “fundamental defect which inherently results in a complete miscarriage of justice.” Reed v. Farley, 512 U.S. 339, 114 S.Ct. 2291, 2297, 129 L.Ed.2d 277 (1994) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)). Accordingly, for the Petitioner to obtain federal habeas relief, he must first demonstrate that he satisfies the standard set by 28 U.S.C. § 2254(d)(1) which states: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States In T. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), Justice O’Connor, writing for a Majority of the Court, explained how § 2254(d)(1) works. Under [§ 2254(d) ], a federal court may grant a writ of habeas corpus if the relevant state-court decision was either (1) “contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.” Id. at 1519. After setting forth the above construction of § 2254(d), Justice O’Connor explained each part of the statute. With regard to the “contrary to” clause of 2254(d), Justice O’Connor reasoned: The word “contrary” is commonly understood to mean “diametrically different,” “opposite in character or nature,” or “mutually opposed.” Webster’s Third New International Dictionary 495 (1976). The text of 2254(d)(1) therefore suggests that the state court’s decision must be substantially different from the relevant precedent of this Court. [ ] A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases. * * * * * * A state-court decision will also be contrary to this Court’s clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent. Accordingly, in either of these two scenarios, a federal court will be unconstrained by 2254(d)(1) because the state-court decision falls within that provision’s “contrary to” clause. On the other hand, a run-of-the-mill state-court decision applying the correct legal rule from our cases to the facts of a prisoner’s case would not fit comfortably within 2254(d)(l)’s “contrary to” clause. T. Williams, 120 S.Ct. at 1519-20. With respect to the “unreasonable application” clause of 2254(d)(1), the Court held that, “when a state-court decision unreasonably applies the law of this Court to the facts of a prisoner’s case, a federal court applying 2254(d)(1) may conclude that the state-court decision falls within that provision’s ‘unreasonable application’ clause.” T. Williams, 120 S.Ct. at 1521. Importantly, the Court set forth its interpretation of the clause as follows: The term “unreasonable” is no doubt difficult to define. That said, it is a common term in the legal world and, accordingly, federal judges are familiar with its meaning. For purposes of today’s opinion, the most important point is that an unreasonable application of federal law is different from an incorrect application of federal law. ❖ * * * $ ‡ In 2254(d)(1), Congress specifically used the word “unreasonable,” and not a term like “erroneous” or incorrect. Under 2254(d)(l)’s “unreasonable application” clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be reasonable. * * * * * * Under 2254(d)(1), the writ may issue ... if ... the state-court adjudication resulted in a decision that “involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.” Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case. Id. at 1522. Moreover, Federal courts apply a standard of harmless error review upon collateral review of trial procedures in ha-beas proceedings different from the standard of harmless error review which they apply in direct appellate review. This means that for purposes of federal habeas review, a constitutional error that implicates trial procedures must be considered harmless unless it had a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahammson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). The Sixth Circuit has held that the Brecht standard applies to harmless error review in habeas cases even in cases where the federal habeas court is the fust to conduct harmless error review. See Gilliam v. Mitchell, 179 F.3d 990, 995 (6th Cir.1999). C. PROCEDURAL DEFAULT Rather than undertake the complicated and resource-consuming task of determining (1) which of the Petitioner’s claims have been procedurally defaulted, and (2) which of the procedurally defaulted claims, if any, may nonetheless may be considered on the merits pursuant to Coleman v. Thompson, 501 U.S. 722, 751, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), and its progeny, the Court chooses to bypass the quagmire of procedural default law presented in this particular case. Therefore, the Court will decide the merits of each of the Petitioner’s grounds for relief asserted in his Petition (Dkt.# 14), to the extent the Court is permitted to do so under 28 U.S.C. § 2254(d) (as amended by AED-PA). The Plonorable John M. Manos, Senior United States District Judge, has astutely stated the rationale for proceeding in this fashion: Not surprisingly, [the Petitioner] and the State offer differing interpretations of Ohio law and disagree over the existence or nonexistence of support for each prong of the procedural default analysis. [The Petitioner] also argues that even if any of his grounds for relief have been procedurally defaulted, such default resulted from the ineffective assistance of counsel which thereby establishes “cause.” See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (ineffective assistance of counsel is “cause” for procedural default). The analysis is further complicated by the narrow (but important) exception to the cause-and-prejudice standard. See, e.g., Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Even assuming that a claim has been procedurally defaulted and the petitioner has not established “cause” and “prejudice” for such default, a court must nonetheless review the merits of the petition to protect against a “fundamental miscarriage of justice.” See Murray, 477 U.S. at 496, 106 S.Ct. 2639 (“[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.”); Sawyer v. Whitley, 505 U.S. 333, 350, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992) (where a habeas petitioner establishes that but for constitutional error at the sentencing hearing no reasonable juror would have found him eligible for the death penalty, a federal court may grant the writ even in the absence of a showing of cause for the procedural default). To protect against “fundamental miscarriage of justice,” see Coleman, 501 U.S. at 750, 111 S.Ct. 2546, the Court has reviewed the petition and finds that all grounds for relief lack merit. Therefore, rather than undertake an extensive analysis of Ohio law on the issue of procedural default, the Court will simply address each ground on the merits. Williams v. Coyle, Case No. 1:96CV793 (N.D. Ohio April 2,1998) at 29-30. Accordingly, the Court will consider the Petitioner’s claims on their merits. D. JACKSON IS NOT ENTITLED TO AN EVIDENTIARY HEARING On March 30, 1999, the Court issued a 20-page Memorandum Opinion and Order (Dkt.# 56) denying Jackson’s motion for an evidentiary hearing. The Court appropriately applied the post-AEDPA standard of review in resolving that motion, and concluded that Jackson’s contention that he is entitled to an evidentiary hearing was without merit. 28 U.S.C. § 2254(e)(2) states: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the chum unless the applicant shows that— (A) the claim relies on— (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. The Supreme Court in M.W. Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000), subsequently clarified the standard which Federal courts apply in determining whether an evidentiary hearing is appropriate in habeas corpus proceedings. The Court held that “Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Id. at 1488. Furthermore, the Court reasoned that “The question is not whether the facts could have been discovered but instead whether the prisoner was diligent in his efforts. The purpose of the fault component of ‘failed’ is to ensure the prisoner undertakes his own diligent search for evidence.” Id. at 1490. Importantly, to satisfy the diligence requirement, a petitioner “at a minimum [must] seek an evi-dentiary hearing in state court in the manner prescribed by state law.” Id. The diligence requirement exists to preserve comity between the State and Federal courts. “Comity ... dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief.” M.W. Williams, 120 S.Ct. at 1490 (quoting O’Sullivan v. Boerckel, 526 U.S. 888, 844, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999)). The Court additionally explained as follows: For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute’s other stringent requirements are met. Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings. Yet comity is not served by saying a prisoner “has failed to develop the factual basis of a claim” where he was unable to develop his claim in state court despite diligent effort. In that circumstance, an evidentiary hearing is not barred by § 2254(e)(2). Id. at 1491. The Petitioner sought an evidentiary hearing in state court, which was denied, and thereby satisfied the diligence requirement of § 2254(e)(2). Accordingly, he does not have to “show compliance with the balance of the subsection’s requirements,” and the Court may hold an evidentiary hearing. Id. However, as the Fifth Circuit persuasively held in McDonald v. Johnson, 139 F.3d 1056 (1998), “even if [a petitioner’s] claim is not precluded by § 2254(e)(2), that does not mean he is entitled to an evidentiary hearing — only that he may be.” Id. at 1059-60. (Emphasis original.) The Fifth Circuit reasoned that “Consistent with AEDPA’s goal of streamlining the habeas process, § 2254(e)(2) specifies the situations where evidentiary hearings are alloived, not where they are required.” Id,, at 1060. (Emphasis original.) The Fifth Circuit further explained that the determination whether an evidentiary hearing is warranted “is committed to the district court’s discretion pursuant to Rule 8 of the Rules Governing § 2254 Cases.” Id. “In determining whether an evidentiary hearing is proper, the district court may expand the record and consider affidavits, exhibits, or other materials that cast light on the merits of the petition.” Id. See also Cardwell v. Greene, 152 F.3d 331, 337-38 (4th Cir.1998) (Where the district court expands the record to include documentary evidence “the need for an evidentiary hearing may be obviated.”). After reviewing the entire record of this case, the Court concludes, for the same reasons set forth in the Memorandum Opinion and Order of March 30, 1999 (Dkt.# 56), that an evidentiary hearing is not warranted IV. ANALYSIS OF THE PETITIONER’S CLAIMS The Court has attempted to group similar and/or repetitive claims together where practicable. Therefore, some claims have been taken out of order. A. Pre-Trial Issues The Court shall first individually discuss Grounds 1-3, 5 and 6 of the Petition which assert various violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). After discussing Ground 6, the Court will consider the cumulative effect of the alleged suppression of evidence by the prosecution. In Brady v. Maryland, supra, the Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. 1194. Such evidence is material “if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bayley, 473 U.S. at 682, 105 S.Ct. 3375. A reasonable probability is that which is sufficient to affect or undermine confidence in the outcome of a trial. Bee, id. Importantly, the suppressed evidence does not need to establish the Petitioner’s innocence by a preponderance of evidence to be considered material. See Schledwitz v. United States, 169 F.3d 1003, 1011-12 (6th Cir.1999). At issue, then, is whether the Petitioner received a fair trial. Thus, there are three essential components of a Brady violation: (1) evidence at issue must be favorable to the accused because it is exculpatory or impeaching; (2) evidence must have been willfully or inadvertently suppressed by the State; and (3) prejudice ensued. See Strickler, 527 U.S. at 282-83, 119 S.Ct. 1936. The duty to disclose information under the Brady rule encompasses both exculpatory and impeachment evidence. See id., 527 U.S. at 280, 119 S.Ct. 1936; Bagley, 473 U.S. at 676, 105 S.Ct. 3375; Kyles, 514 U.S. at 433, 115 S.Ct. 1555; United States v. Mullins, 22 F.3d 1365, 1372 (6th Cir.1994). Impeachment evidence is that which is favorable to the accused and “if disclosed and used effectively, [ ] may make the difference between conviction and acquittal.” Bagley, 473 U.S. at 676, 105 S.Ct. 3375. See also United States v. Presser, 844 F.2d 1275, 1278 (6th Cir.1988). The Petitioner claims that his right to due process has been violated based on five separate grounds asserted under Brady v. Maryland: Ground 1. THE PETITIONER’S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION WAS VIOLATED WHEN THE STATE FAILED TO DISCLOSE A WITNESS HAVING EXCULPATORY INFORMATION TO THE DEFENSE. The Petitioner contends that the State violated his Constitutional rights by withholding the identity of witnesses with potentially exculpatory information. The prosecution had information about Terrence Myrieckes (“Myrieckes”), a twelve-year-old boy who walked past the laundromat near the time of the murder of Emily Zak. The prosecution did not present My-rieekes in time for his testimony to be heard during the guilt phase. However, Myrieekes did testify during the penalty phase. The prosecution also withheld information from interviews with two Pete Johnsons, which was the name that appeared in the victim’s refund book found at the crime scene. As a result, the Petitioner believes that his due process rights have been violated. The United States Supreme Court has held that the prosecution’s “omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial.” Agurs, 427 U.S. at 112-13, 96 S.Ct. 2392. With respect to the Petitioner’s claim concerning the non-disclosure of Myrieekes by the State, the Ohio Supreme Court made the following findings: Just before the sentencing hearing, defense counsel discovered a twelve-year-old witness, Terrence Myrieekes, who testified at the hearing that he had stopped outside the laundromat around 11:15 or 11:30 a.m. on June 25. He looked in the laundromat’s window, noticed the cash register was not in its normal place, and saw Zak, alone, standing near the bathroom door. Myrieekes saw a man other than Jackson, carrying a white duffel bag over his shoulder, walk out of the laundromat and place the bag in an automobile trunk. My-rieekes, who played basketball with Jackson, had earlier talked with the police, but had not told them about the duffel bag. Jackson, 565 N.E.2d at 552-54. The State court found that Myrieekes’ testimony did not prove the man had a cash register in the duffel bag. The State court also found that looking into the laundromat, over the machines, to see if the cash register was missing would be very difficult. See id. at 552-54. The prosecution provided the following circumstantial evidence: (I) the Petitioner’s fingerprints were in the toilet stall where Zak was murdered, (2) the Petitioner admitted to the police that they would find his fingerprints on the cash register, and (3) the handwriting analysis of the paper found at the crime scene which confirmed that the Petitioner wrote the note on the pad used by Zak. Furthermore, the jury rejected the Petitioner’s testimony that the robbery and murder were unrelated events as well as that of three alibi witnesses. Furthermore, the Supreme Court of Ohio made the following findings, which also linked the Petitioner to both the robbery and murder: (1) the crimes occurred within a short period of time; (2) the Petitioner knew the location of the register as well as the amount of money missing; (3) he admitted to Captain Newkirk that his fingerprints would be found on the cash register and plastic bags; (4) the plastic bag found with the register matched those found at his apartment complex; (5) the Petitioner had been seen a few days after the murder carrying a plastic bag towards the woods where police located the register; and (6) the Petitioner admitted his involvement in the robbery and murder to Newkirk. Jackson, 565 N.E.2d at 552-54. The Ohio Supreme Court ultimately held that a Brady violation did not occur. Based on the foregoing, Myrieekes’ testimony was not material under Brady as there is no “reasonable probability” that the trial result would have been different if Myrieekes’ testimony was admitted during the guilt phase. The evidence of the Petitioner’s guilt was overwhelming, and My-rieekes testimony was explained away by the prosecution. Accordingly, the Ohio Supreme Court did reach a result that was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The Petitioner also claims that a Brady violation occurred when the State failed to disclose that the police had interviewed two individuals by the name of Pete Johnson, which was the name in the victim’s refund book found at the crime scene. Though the prosecution is responsible for disclosing all favorable evidence known to them as well as those acting on their behalf, see Kyles, 514 U.S. at 437, 115 S.Ct. 1555, there is “no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.” Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972) (Determining that the witness withheld by the prosecution was merely an early lead that the police abandoned when eyewitnesses were found). See also Arizona v. Youngblood, 488 U.S. at 55, 109 S.Ct. 333. Brady does not encompass information that “might be of use to the defendant in acquiring exculpatory or impeachment evidence that the defendant had thought was unavailable.” United States v. Mullins, 22 F.3d 1365, 1372 (6th Cir.1994). Moreover, the prosecution is responsible for providing only that which is favorable to the accused and necessary for him to receive a fair trial. See Bagley, 473 U.S. at 675, 105 S.Ct. 3375. As such, the prosecution is not required to disclose to the defense every potential suspect questioned by the police. Based on the evidence, there was no reason for the prosecution to turn over the investigatory leads regarding the two Pete Johnsons to the defense. Written on the top sheet of the blue notepad used to record requests for refunds was “Pete Johnson,” “681-4975,” and “is ac.” Jackson, 565 N.E.2d at 552. According to the record, laundromat owner James Horton identified “is ac” as being written by the victim. See id. The record also indicated that a handwriting analysis of the paper found at the crime scene revealed that the Petitioner had written “Pete Johnson” and “681-4957.” Id. As such, there is no reasonable probability that the outcome of the Petitioner’s trial would have been different had the prosecution disclosed every possible investigatory lead pursued by the police. Accordingly, the Petitioner cannot demonstrate that his Brady rights were violated, and he is not entitled to habeas relief. For the foregoing reasons, Ground 1 is denied. Ground 2. THE PETITIONER HAS BEEN DENIED HIS RIGHTS AS PROTECTED BY THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION BECAUSE THE STATE HAS DENIED HIM ACCESS TO SEVERAL PIECES OF KEY EVIDENCE IN THIS CASE. The Petitioner argues that he is unable to assess the viability of several unspecified claims as he lacks access to the handwritten notes of his oral statement taken by Captain Newkirk. The Petitioner fails to specify the claims to which he is referring. The Petitioner complains that after Newkirk typed a summary of his notes, he lost or displaced the handwritten notes. The Petitioner believes that his due process rights have been violated as a result. The prosecution is not responsible for providing a complete report to the defense of all police investigatory work. See Moore, 408 U.S. at 795, 92 S.Ct. 2562. Instead, the prosecution has a duty to disclose all evidence that is favorable to the Petitioner. See Brady, 373 U.S. at 87, 83 S.Ct. 1194. The Petitioner was aware of Newkirk’s typed summary of his oral statement. However, the Petitioner does not provide any indication that the handwritten notes contained material evidence which differs from the typed summary. The Petitioner, therefore, cannot prove that prejudice ensued. The Petitioner also has not shown that the prosecution illegally suppressed the written notes. Additionally, failure to preserve potentially useful evidence does not constitute a denial of due process where the defendant was unable to show bad faith on the part of the police. See Arizona v. Youngblood, 488 U.S. at 58, 109 S.Ct. 333. The Petitioner does not suggest nor does he show that the police acted in bad faith by losing or misplacing the handwritten notes. The Court cannot say that there is a reasonable probability that the result of the trial would have been different had the prosecution produced Newkirk’s handwritten notes. Therefore, the Petitioner cannot establish a Brady violation and is not entitled to relief. Ground 3. THE PETITIONER’S RIGHTS AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE STATE’S FAILURE TO DISCLOSE TO THE PETITIONER ALL POSSIBLE EXCULPATORY EVIDENCE AT HIS TRIAL. The Petitioner again alleges that the prosecution failed to disclose exculpatory statements of witness Terrence Myrieckes during the guilt phase of the trial which would have exonerated the Petitioner of the aggravated robbery and capital specification. The Court has already denied the Petitioner’s Brady claim with respect to the late disclosure of Myrieckes, and will not undertake the analysis again. The Petitioner, however, has asserted additional claims that his Brady rights were violated. The Petitioner asserts that the prosecution failed to disclose other unidentified exculpatory information. If the prosecution fails to disclose Brady material, the Petitioner is required to show that there is a reasonable probability that the omission deprived him of a fair trial. See Agurs, 427 U.S. at 108, 96 S.Ct. 2392. See also U.S. v. Frost, 914 F.2d 756, 771 (6th Cir.1990); Presser, 844 F.2d at 1281-82. Where the Petitioner fails to identify the material allegedly withheld, he has failed to meet this burden. Frost, 914 F.2d at 771. Thus, the Petitioner cannot establish a Brady violation with respect to the non-disclosure of evidence which he does not identify. The Petitioner also claims that the prosecution violated his due process rights by failing to disclose the fingerprint cards of other suspects. As explained in Ground 2, the prosecution is not responsible for providing a complete report to the defense of all police investigatory work. In light of the evidence of the Petitioner’s guilt presented by the State at trial, the prosecution’s failure to disclose the fingerprint cards must be evaluated in the context of the entire record. See Agurs, 427 U.S. at 112, 96 S.Ct. 2392. Based on the evidence discussed supra, there is no reasonable probability that the result of the tidal would have been different. Accordingly, the Petitioner has not established a Brady violation. Ground 3, therefore, is denied. Ground 5. THE PETITIONEfe’S RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT AND HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE STATE’S FAILURE TO DISCLOSE TO TRIAL COUNSEL INFORMATION MATERIAL TO THE GUILT PHASE OF THE PROCEEDINGS. The Petitioner alleges that the prosecution failed to disclose information material to the guilt phase of his trial including the investigation of other suspects, problems with loitering at the laundromat, arguments between the victim and patrons, and evidence that shoe prints left at scene were not Nike shoes. For the same reasoning stated in the preceding discussion of the Petitioner’s grounds for relief, the Petitioner fails to show that there is a reasonable probability that the result of the trial would have been different had the prosecution disclosed this information. Accordingly, the Petitioner’s right to effective assistance of counsel was not violated by the prosecution’s failure to disclose this information. Accordingly, Ground 5 is denied. Ground 6. THE PETITIONER’S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WAS VIOLATED BY THE STATE’S FAILURE TO DISCLOSE IMPEACHING INFORMATION TO THE PETITIONER AND BY FAILING TO PROVIDE RELEVANT DISCOVERY OF POTENTIALLY EXCULPATORY EVIDENCE. The Petitioner alleges that the prosecution failed to disclose contradictory statements and criminal records of witnesses, negative test results from forensic analysis, and one witness’s failure to choose his photograph as one of the suspicious males she had seen at the scene prior to the crime. The Petitioner provides little argument as to how this information would have benefitted him at trial. For the same reasons stated in the preceding grounds, the Petitioner fails to show that there is a reasonable probability that the outcome of the trial would have been different had this information been disclosed. To the extent that the Petitioner argues that the above-described evidence may have led to the discovery of exculpatory evidence, the prosecution has no duty under Brady to disclose such information. See Mullins, 22 F.3d at 1372. There is no authority which requires such disclosure. See id. Based upon the overwhelming evidence of the Petitioner’s guilt, the disclosure of the evidence described by the Petitioner in this Ground would not have created a reasonable probability of a different outcome. Therefore, the Petitioner cannot establish that the non-disclosure of the above-described evidence violated his due process rights. Finally, the Court must consider the cumulative effect of the non-disclosure of the evidence described by the Petitioner in Grounds 1-3, 5 and 6. Essentially, the issue is whether the outcome of the trial would have been different had all of the non-disclosed evidence been presented to the jury during the guilt phase of the trial. Based on the overwhelming circumstantial evidence of the Petitioner’s guilt set forth in the record, there is no reasonable probability that the outcome of the guilt phase would not have been different had the jury been exposed to the undisclosed evidence in its entirety. Accordingly, with respect to Grounds 1-3, 5 and 6, the Petitioner is not entitled to habeas relief and each Ground is denied. Ground 4. THE PETITIONER’S RIGHTS AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WERE VIOLATED BY AN IMPERMISSIBLY SUGGESTIVE PRETRIAL IDENTIFICATION PROCESS WHICH WAS USED BY THE STATE IN THIS CASE. The Petitioner asserts that prior to identifying him at trial, the State’s three identification witnesses were shown a lineup and a photograph array which were imper-missibly suggestive. The Petitioner claims that of the men in the lineup and photographic array, he was the only one with a risible mustache. Based on the nature of the lineup and photographic array, the Petitioner claims that his Constitutional rights were violated as set forth above. The Court in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), summarized the law with respect to suggestive identification of individuals suspected of committing crimes. The Court explained that a “defendant could claim that ‘the confrontation conducted ... was so Unnecessarily suggestive and conductive to irreparable mistaken identification that he was denied due process of law.’ ” Id. at 196, 93 S.Ct. 375 (citing Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)). Further, the Court restated the governing test for a due process violation where a trial witness’s identification of the defendant stemmed from a suggestive photographic array as follows: We hold that each case must be considered on its own facts, and that convictions based on eye-witness identification at trial following a pre-trial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable mis-identification. Id. at 196-97, 93 S.Ct. 375 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)). The Court also established “general guidelines” with respect to “the relationship between suggestiveness and misidentification.” Id. at 198, 93 S.Ct. 375. The Court stated that “the primary evil to be avoided is ‘a very substantial likelihood of irreparable misidentification.’ ” Id. Importantly, “[it] is the likelihood of misidentification which violates a defendant’s right to due pro-cess_” Id. Therefore, “[s]uggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous.” Id. The Petitioner has not provided this Court with any factual or legal basis for concluding that the pre-trial identification procedure used by the police “[gave] rise to a very substantial likelihood of irreparable misidentification.” The Petitioner has devoted three sentences to this claim in his Petition, failed to address it in his Traverse, and has not cited to any evidence in the record which supports his claim. Consequently, the Petitioner has not established that the pre-trial identification process resulted in a violation of his due process rights such that he is entitled to habeas relief. Ground 4, therefore, is denied. B. Trial Issues The following is a discussion of the grounds for relief raised by the Petitioner with respect to issues that arose during the trial phase of his case. Ground 7. THE TRIAL COURT ERRED BY FAILING TO SUPPRESS STATEMENTS BY THE PETITIONER TO POLICE CAPTAIN PATRICK J. NEWKIRK, IN VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. The Petitioner contends that incriminating oral statements which he made to Captain Newkirk on September 7, 1988, should not have been allowed at trial because those statements were obtained in violation of Petitioner’s right to counsel, pursuant to the United States Supreme Court’s holding in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The Petitioner disputes the factual finding of the Ohio courts that Petitioner initiated the conversation with New-kirk, during which the incriminating statements were made, and claims that it was Newkirk who initiated the conversation. The Petitioner asserts that he requested the assistance of counsel on September 6, 1988, and that the statements he gave the following day were obtained in violation of his Miranda rights. a. Presumption of Correctness in Federal Habeas Corpus Proceedings State court factual determinations are presumed correct in federal habeas proceedings, and the Petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also, Sumner v. Mata, 449 U.S. 539, 545-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). The Ohio Supreme Court made the following factual determinations relevant to Petitioner’s present claim: On September 5, Detective Schafer advised Jackson of his Miranda rights, and Jackson said he wanted to think about it overnight before making a statement. On September 6, Schafer again advised Jackson of his rights. Jackson waived his rights and wrote out a statement. Then Jackson changed his mind, scratched his signature off the waiver, and said, “I better talk to a lawyer first.” Schafer stopped questioning Jackson and returned him to his cell. Captain Newkirk was not present during this interview. On September 7, Newkirk was working, but Detective Schafer was not. Around 5:00 p.m., right before quitting time on Labor Day, Newkirk received a jailer’s message that Jackson wanted to see him.... Newkirk then talked with Jackson and advised him of his rights. According to Newkirk’s typed notes of the meeting, which he read during his testimony, “Andre stated that he understood his rights and was willing to talk to me about ‘this’ but he did not want to sign the form or anything else.” Jackson was worried about his mother’s health and how she was to be told of his arrest. Jackson wanted his mother to be with Precious when his mother was told. Newkirk took notes during the interview and showed them to Jackson, who agreed they were accurate; then the notes were typed into a memo. During the interview, Jackson, while admitting complicity in the robbery, tried to focus responsibility for the murder on an unnamed accomplice. 565 N.E.2d at 556. The Supreme Court of Ohio found that Petitioner freely sent for and initiated communications with Captain Newkirk on September 7, 1987, a finding supported by the record and thus binding on this Court. See id. The Petitioner has not introduced any evidence to rebut the findings of the Ohio Supreme Court. Therefore, this Court is bound to presume the correctness of the Ohio Supreme Court’s factual determinations. b. Petitioner’s Incriminating Statements Were Not Obtained in Violation of His Miranda Rights Nor His Right to Counsel. The Petitioner has claimed that his right to counsel was violated based on Newkirk’s allegedly improper interrogation on September 7, 1988. The Petitioner’s claim is without merit. Once a suspect requests the assistance of counsel, the police may not continue to interrogate him until counsel has been made available to him, “unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. at 484, 101 S.Ct. 1880, 68 L.Ed.2d 378 (Emphasis added). Even when an accused initiates further communications with the police after requesting counsel, there is still a significant burden on the prosecution to demonstrate that the accused “knowingly and intelligently” waived his Fifth Amendment right to the presence of counsel during interrogation. Oregon v. Bradshaw, 462 U.S. 1039, 1046, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983). Refusal to sign a waiver form does not preclude a finding that an accused has waived his right to counsel. United States v. Caulton, 498 F.2d 412, 413 (6th Cir.1974). Instead, a voluntary, knowing, and intelligent waiver will be determined by “the particular facts and circumstances surrounding the ease, including the background, experience, and conduct of the accused.” North Carolina v. Butler, 441 U.S. 369, 374-375, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). The Supreme Court in Butler reversed the North Carolina Supreme Court’s requirement of an explicit waiver of the right to have counsel present during police interrogation. See Butler, 441 U.S. at 374-75, 99 S.Ct. 1755. The respondent in Butler had been fully advised of his Miranda lights at the time of his arrest. However, he refused to sign a waiver form, stating: “I will talk to you but I am not signing any form.” Id. at 371, 99 S.Ct. 1755. The respondent subsequently made incriminating statements which were admitted into evidence following the trial court’s denial of the respondent’s motion to suppress, and the respondent was found guilty of each offense charged. See id. at 372, 99 S.Ct. 1755. On appeal, the North Carolina Supreme Court ordered a new trial on the ground that the respondent’s incriminating statements to F.B.I. agents were inadmissible as evidence, since the respondent had made no explicit written or oral waiver of his right to have counsel present. See id. In reversing, the United States Supreme Court held that while an express written or oral statement of waiver may be strong proof of a valid waiver, neither is necessary nor sufficient to establish a valid waiver. See id. at 373, 99 S.Ct. 1755. Based on the uncontroverted facts, the Petitioner made a knowing and intelligent waiver of his right to have counsel present during his September 7, 1988, conversation with Newkirk. There is no evidence to the contrary. Accordingly, the Ohio Supreme Court’s consideration of the claims set forth in Ground 7 did not result in a decision that was “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). Ground 7, therefore, is denied. Ground 8. THE TRIAL COURT ERRED BY OVERRULING THE PETITIONER’S MOTION TO SUPPRESS FINGERPRINT EVIDENCE IN HIS TRIAL IN CONTRAVENTION OF THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. Petitioner next contends that he was arrested on September 4, 1987, without probable cause and that therefore the subsequent taking of his fingerprints was a violation of his Fourth Amendment rights. a. Stone v. Powell, 428 U.S. 465 (1976), Precludes This Court’s Review of Petitioner’s Fourth Amendment Claim. Even assuming Petitioner’s fingerprints were taken illegally, the Supreme Court’s holding in Stone v. Powell, supra, precludes this Court’s review of the Petitioner’s Fourth Amendment claim. “[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Id. at 494, 96 S.Ct. 3037. In order to determine whether Petitioner was given a full and fair opportunity to litigate his Fourth Amendment claim, the Sixth Circuit requires two inquiries: (1) whether a state’s procedural mechanism allows the opportunity to present a Fourth Amendment claim; and (2) whether Petitioner’s presentation of his claim was “in fact frustrated because of a failure of that mechanism.” Riley v. Gray, 674 F.2d 522, 526 (6th Cir.), cert. denied, 459 U.S. 948, 103 S.Ct. 266, 74 L.Ed.2d 207 (1982). With respect to the first inquiry, the State mechanism provides criminal defendants