Full opinion text
MEMORANDUM OPINION AND ORDER COFFMAN, District Judge. INTRODUCTION This matter is before the District Court to consider the motion for summary judgment filed by the Respondent Warden. The Warden has moved to dismiss the federal habeas petition filed by Petitioner, James Earl Slaughter. Slaughter is a state prisoner currently on death row in Kentucky for his role in the robbery and murder of a Louisville consignment-store owner, Esther Stewart, on January 28, 1983. A jury convicted Slaughter on both charges in 1983. The trial court sentenced him to twenty years’ imprisonment for first-degree robbery and to death for murder. The Supreme Court of Kentucky affirmed the conviction and sentence on direct appeal. Slaughter v. Commonwealth, 744 S.W.2d 407 (Ky.1987), cert. denied, 490 U.S. 1113, 109 S.Ct. 3174, 104 L.Ed.2d 1036 (1989). Slaughter filed a post-conviction motion to vacate, set aside or correct the judgment. See RCr 11.42. Following an extended evidentiary hearing in 1994, the trial court overruled the motion. The Supreme Court of Kentucky affirmed the decision to deny post-conviction relief. Slaughter v. Commonwealth, Appeal No. 96-SC-0049-MR (Ky., rendered April 27, 1999) (unpublished disposition). Petitioner then filed the present federal habeas corpus petition which raises forty-seven grounds for relief. Proof at Trial Events that led to the conviction and death sentence of Petitioner occurred on Oakdale Street in Louisville, Kentucky. At the time of the robbery and murder, Petitioner lived at 3115 Oakdale Street in the apartment of Keith Edwards (TE VIII, 27-28). Edwards lived there with his sister, Laura, and his girlfriend, Paula Gibson (Id.). Near the apartment on the same street was a consignment store, The Clothes Rack. The victim, Esther Stewart, owned and operated The Clothes Rack (TE III, 305). Paula Gibson recalled that on the morning of the crime, on January 28, 1983, Petitioner asked if she remembered him telling her about “that place on the corner.” (TE VIII, 1032). A week earlier, Petitioner had told Gibson that he was going to rob the store on the corner (Id., 1088-1089). Another prosecution witness, Terrence Preston, told police initially that Petitioner had said he planned to rob The Clothes Rack, and was not going to leave anyone behind (Id., 1140). At trial, however, Preston denied telling the police that Petitioner had said this (Id., 1129). According to Preston, he had heard this information from other people (Id., 1130). Laura Edwards testified that Petitioner left the apartment that afternoon at around 12:30 (TE VIII, 1029-1030). He left wearing a blue jacket and jogging pants and took with him a brown briefcase, which had a gun in it (Id., 1031, 1033). He also took a butcher knife from a kitchen drawer (Id.). Both Laura and Paula watched him leave at about 1:00 p.m. in Keith Edwards’ station wagon. Laura left the apartment soon thereafter and saw Petitioner driving in the direction of The Clothes Rack (Id., 1034). She did not see him again until 1:00 a.m. the next morning, on January 29, 1983, when he returned home wearing a brown jacket and tan pants (Id., 1035-1037). At approximately 2:00 p.m. that day, Louisville police received a call about a stabbing at The Clothes Rack on Oakdale. Police discovered Esther Stewart lying dead on the front porch of the store with her arms outstretched (TE II, 294). Detective Wilson observed five stab wounds to Stewart’s chest (Id.). There was blood on the floor inside the store, and a stool had been overturned (TE III, 404). Detective Clark discovered a .22 long-rifle bullet lying inside the front door (Id., 398). The cash drawer to the store register was jammed shut. Several police officers were required to force the drawer open (Id., 410). On opening the register, police discovered that the drawer contained cash (Id.). A money bag containing cash and Stewart’s purse were found under the cash register (Id., 410 — 411). The purse, which was found behind a sliding drawer, was open and contained no money (Id., 421). The corner of Stewart’s empty wallet was sticking out of the top of the purse. Several witnesses in the area at the time of the crime testified at trial. Two black females approached Officer VanMeter when he arrived at the scene and gave him the description of a thin, white male they saw running north on Oakdale with a knife in his hand (TE III, 385-387). Both woman, Jacelyn Davis and Scoshia Spence, were interviewed by police (TE IV, 430). Davis described the suspect as being a white male in his early twenties, approximately 5'7" tall, with a thin build and light blond, shaggy hair, cut collar-length (Id., 431-432). She described the young man as being very pale with bushy eyebrows and wearing Levis, a dark blue jacket and a dark blue skull cap (Id.). The jacket appeared to be dirty, and the man’s nose looked red as if he had a cold (Id., 432-433). Davis later identified a dark blue, down coat and dark blue toboggan seized from Slaughter as looking the like the clothes worn by the man she had seen running from the store (Id., 439-440). Davis was certain that the man she saw was white and testified that she had a good look at his face and would never forget what he looked like (Id., 450). Scoshia Spence advised Detective Sher-rard that she did not see the face of the man who was running near the store, but she thought that he was a. white male in his late teens or early twenties, approximately 5'6" tall, thin, wearing a blue toboggan, a blue ski jacket and blue jeans, with blond hair which hung over his collar (TE IV, 482-483). Spence described the man’s jacket as being medium blue with dirt or stains on the front of it. She described the jacket as being a waist-length jacket that was very puffy. The jacket had a seam that ran vertically down the outside of the arm (TE IV, 483). She saw this individual one-half block from The Clothes Rack (Id., 484). Officer Carlin testified that when he and his partner, Officer VanMeter, arrived on the scene that day, a man approached him and told him that he had seen several white persons acting suspiciously around an automobile across the street from The Clothes Rack (TE III, 347-349). The man told Officer Carlin that one of the white suspects had a knife and appeared to be wiping blood off of it {Id., 353). Ronald Vittle was the owner of the Zippy Food Mart, located across the street from The Clothes Rack (TE V, 586-587). Vittle and another local business man were standing on the street immediately after the victim was stabbed (Id., 588). Vittle testified that he saw a 25-year-old, white male, who said something suspicious (Id.). The man got into a car with two other people. It looked to Vittle like he was wiping something off on the front seat of the car (Id.). The car was parked in a lot directly across the street from the store (Id., 588-589). During the trial, defense counsel advised the court that a woman, Irene Schuble, contacted him claiming that her neighbor, Ann Fowler, had told her that she saw a white man running from The Clothes Rack on the day of the murder (TE VI, 829, 833-837). Her neighbor, however, refused to go to the police and did not wish to become involved. Schuble testified to these events at Petitioner’s trial. Her neighbor, Ann Fowler, however, testified that she knew nothing about the incident at The Clothes Rack, was not at the scene that day, and had never told Schuble or anyone else that she had witnessed any portion of the events that took place at The Clothes Rack (Id., 812-814, 817, 821). Schuble’s boyfriend, John Cockrel, testified in rebuttal that he had overheard conversations between Fowler and Schuble about the murder at The Clothes Rack. Fowler allegedly said she had seen the man when she was in the area of the beauty shop; and, that if it was a black man who ran from the building, it was the whitest black man she had ever seen (Id., 846-849). Still another witness, Preston Siler, testified that he was riding his bicycle in the area of the store between 1:30 p.m. and 2:00 p.m. that day (TE VII, 874-876). Siler saw a black male running from The Clothes Rack. The man looked as if he were attempting to hide something (Id., 881-882). He appeared to have blood on him. Siler did not see the man’s face (Id., 913). He told the police that the man he saw that day could have been Puerto Rican (Id.). Ann Ditsch worked three doors down from The Clothes Rack (TE VII, 1009-1010). Periodically, she would shop at The Clothes Rack during her lunch hour (Id.). Ditsch testified that about three days before Stewart was murdered, she saw Slaughter in The Clothes Rack (Id., 10100-1015). When Petitioner returned home, Paula Gibson noticed that he changed his clothes before going out (TE VIII, 1090). Gibson later discovered a broken gun under some dirty clothes in the bathroom of the apartment (Id., 1100). After Keith Edwards learned about the broken gun, he told his sister to throw the gun into the back yard (Id.). Laura Edwards testified that when she again saw Petitioner at 1:00 a.m., the following morning, on January 29th, she took the car keys from Petitioner as her brother had told her to do (Id., 1036-1037). She also noticed a spot of blood on Petitioner’s pants (Id., 1037). That same morning, Paula noticed a shirt soaking in the bathroom sink of the apartment. She also noticed some blood on Petitioner’s pants (Id., 1093). In the kitchen sink, she noticed a knife, which none of them had used the day before (Id., 1096,1098). Keith Edwards did not return to the apartment until 5:30 a.m., in the morning of the day after the crime (TE VIII, 1093). Edwards also noticed blood on Petitioner’s jogging pants in the bathroom and saw the pieces of the broken gun. On Saturday, January 29, 1983, Petitioner left the apartment around 4:30 p.m., saying that he was going to visit his father (Id., 1044). Instead, Petitioner went to visit Keith Edwards at his workplace (Id., 1177). Petitioner had earlier told Edwards, the day before, that he knew nothing about the woman getting killed at The Clothes Rack (Id., 1175). However, when Petitioner met Edwards on the 29th, Edwards again asked him about the murder (Id., 1178). Edwards testified that in response to this question, Petitioner told Edwards that he went down the street and robbed the woman at The Clothes Rack (TE VIII, 1178). According to Petitioner, he walked up behind the owner, and after talking to her briefly, grabbed her while demanding to know where the money was (Id.) She began to scream and told him she had no money (Id.). Edwards testified that Petitioner then told him that he then hit the victim with the gun, but the blow had no effect on her. He next put the knife to her throat, and again, demanded to know where the money was located (Id., 1179). She begged Petitioner not to hurt her and began to scream again. Petitioner then stabbed her several times and ran out of the store (Id.). According to Edwards, Petitioner told him that he stabbed Stewart once in the back and several times in other places (Id., 1191). As soon as Petitioner left, Keith Edwards called the police to advise them what he had learned (TE VIII, 1183). Sgt. Robert Barker took the call from Edwards (Vol.V, 641). Edwards advised Sgt. Barker that Petitioner had Edwards’s automobile and was involved in the robbery-murder at The Clothes Rack (Id., 611-612). Lt. Wolfe and Sgt. Barker then went to Edwards’s apartment (Id., 613-614). They arrived at the same time that Petitioner arrived there. Lt. Wolfe advised Laura Edwards that the police were looking for a white male involved in a murder at The Clothes Rack (Id., 614). Edwards said that she did not know anything about a white male, but Petitioner had left the apartment around noon the preceding day and was wearing the same kind of clothes that the killer was wearing (Id., 615). Lt. Wolfe noticed that one of Petitioner’s shoes appeared to have a small bloodstain on it (Id., 616). Lt. Wolfe asked Petitioner to get the jacket he had been wearing before. Petitioner returned with a nylon jacket from the closet. Officer Pike took him into another room to talk with him (TE V, 616— 617). Laura Edwards then advised Lt. Wolfe that the nylon jacket that Petitioner had brought out was not the one that he had worn the day before (Id.). Edwards went to the closet and got the medium blue jacket that she saw Petitioner wearing (Id., 617). The jacket appeared to have bloodstains on it (Id.). Petitioner was then formally arrested for robbery and murder (Id.). Edwards directed Lt. Wolfe to the other clothes that Petitioner had been wearing. She advised Lt. Wolfe that Petitioner had soaked the shirt overnight to get the blood out of it (Id., 618). Some of the other clothes appeared to have bloodstains on them. Petitioner made several different statements to police about the details of his involvement in the events at The Clothes Rack on January 28, 1993. While in the holding room at the police station, Petitioner told Lt. Wolfe one version of events. He said that he was driving Keith Edwards’s automobile that day, looking for a purse to snatch (TE V, 619). Petitioner picked up a white male. As the two men rode around, the white male talked about robbing The Clothes Rack (Id., 619-620). Petitioner told Lt. Wolfe that he changed clothes and shoes with this individual and got out of the automobile at Edwards’s apartment {Id., 620). The white male then drove off in Edwards’s car, only to return later and switch clothes again with Petitioner {Id.). Lt. Wolfe delivered Petitioner to the homicide office at the police department. Petitioner was interviewed by Detectives Sherrard and Duff. Detective Sherrard testified that he interviewed Petitioner and told him that Keith Edwards had already said that Petitioner admitted lolling the store owner, and that Petitioner was the only one involved in the robbery-murder (TE IV, 514). Petitioner denied any involvement in the crime during the interview {Id., 515). He told Detective Sher-rard that he did not know who the white male was {Id.). Petitioner also denied lending his clothes or Keith Edwards’s car to this individual and accused the police officers of lying when they said he made such statements {Id., 515-516). Detective Duff took Petitioner into his office to interview him alone (TE IV, 516). Duff returned at approximately 9:40 p.m. and advised that Petitioner had changed his story {Id.). Petitioner told Detective Sherrard that he was a look-out during the robbery, and that the white male had entered the store to commit the offense {Id.). Petitioner denied that he told Detective Duff that he had gone into the store with the white male {Id.). Petitioner told Detective Sherrard that he was driving Keith Edwards’s station wagon at 11:30 a.m. that morning when he picked up a white male at the corner of Third and Winkler Streets (TE IV, 517). The two drove around for awhile and decided to rob The Clothes Rack {Id.). The two men exchanged clothing and went to the store between 1:30 and 2:00 p.m. Petitioner told Detective Sherrard that the white male had entered the store alone, and that he had remained standing outside on the front porch {Id.). Shortly thereafter, Petitioner heard screaming from inside the store {Id.). The white male ran from the front door of the store, and the two men ran side by side northward down Oakdale Street and through an alley to where the car was located {Id.). Upon arriving at the automobile, they traded clothing and then drove around for awhile. Petitioner then let the white male out at a game room in the Cardinal Shopping Center {Id.). Petitioner told Detective Sherrard that he did not know who this individual was, but described him as being a white male in his early 20s, very thin, with dark-blond hair (TE IV, 519). Petitioner advised the detective that he thought that this man was called “Red.” Detectives Sherrard and Hale later went to the game room on January 31, 1983, to look for “Red,” but were unable to find anyone matching that description (TE IV, 520-521). Detective Duff also testified concerning the statements made by Petitioner, following his arrest. Detective Duff testified that Petitioner told him that he had picked up a white male hitchhiking, and that they had discussed ripping people off (TE IV, 536). According to Duff, Petitioner told him that the white male had asked Petitioner if he wanted to pull a job. Petitioner allegedly responded that he did not, but would help {Id.). Petitioner told Duff that he had parked in front of Edwards’ apartment and had exchanged clothes with the white male. He also had provided him with a pistol or a rifle {Id.). Afterwards, Petitioner went into the apartment, and the white male left {Id., 536-537). A short time later, the white male returned, and the two men exchanged clothes in the automobile again {Id., 537). The white male also returned the gun, which was broken {Id.). That was the last time that Petitioner saw the white male. He told Detective Duff that he did not know that a murder had been committed at The Clothes Rack until the following day when he saw the news on television (Id.). Subsequently, however, Petitioner told the detective that he was in the store when the robbery happened, but no one was supposed to get killed (Id., 538). Detective Dossett, who took a taped statement from Petitioner on January 29th, testified that Petitioner had never told him that he was in the store when the killing occurred, but that no one was supposed to be hurt (Id., 550). While Petitioner was awaiting trial in the Jefferson County Jail, he spoke with a fellow inmate, William Keller, about the crime. Keller testified at trial that he asked Petitioner why he had stabbed the victim. According to Keller, in testimony that he would later recant, Petitioner supposedly said that he stabbed the victim because he thought she was going to scream out (TE VIII, 1142-1146). Petitioner had only intended to rob her, but had become scared and stabbed her (Id.). Serologist, William Durbin, testified concerning the blood found on the jogging pants, black pants, tan pants, jogging shoes and rifle barrel (TE VI, 781-783). Durbin testified that with the exception of the right jogging shoe, the blood found on all of these items was the same blood-type as that of Esther Stewart (Id., 782-783). Further, the toboggan and the shirt contained head hairs of a black person that matched Petitioner’s hair characteristics (Id., 784). A left-hand, black glove seized by the police also contain the same blood type as the victim’s, and the right-hand glove was found to contain clothing fibers similar to the fibers on a smock that the victim was wearing at the time of her death. Durbin, however, did not find any fibers on Petitioner’s clothing that matched the victim’s clothing (Id., 801). Dr. Weakly-Jones performed an autopsy on the victim the day after the murder (TE III, 363). The doctor testified that the victim had multiple stab wounds and two incise wounds to the chest, back, hand and shoulder areas (Id., 364). The victim also had a laceration in her scalp above her right ear (Id., 366). One of the stab wounds penetrated the victim’s heart and caused her death (Id., 368-369). At the close of the prosecution’s case, Petitioner moved for a directed verdict of acquittal on both the robbery and murder charges (TE IX, 1215-1218, 1241-1242). His motion was overruled by the trial court. Petitioner did not testify during the guilt phase of the proceedings, nor did he put on any other proof. Instead, his attorney noted that Petitioner’s version of what happened was contained in the taped statement given to Detective Dossett (Id., 1233). Both sides then gave closing argument (Id., 1279, 1299-1301, 1323). Following deliberation, the jury found Petitioner guilty of intentional murder and robbery in the first degree (Transcript of Record (“TR”) 109,114). The jury fixed a 20-year term of imprisonment on the first-degree robbery count. The penalty phase on the capital murder charge then began. Petitioner testified during the penalty phase that he quit school in the seventh grade when he was twelve years old (TE IX, 1134). His father died in 1972, while serving a prison sentence for bank robbery and other crimes (Id., 1346). Petitioner’s mother physically abused him with numerous beatings. Consequently, he ran away from home for three years at age twelve (Id., 1347). He testified, incorrectly, that his mother had died of cancer in 1980 (Id., 1347-1348). He then supported himself by working in restaurants and truck stops and by stealing cars (Id., 1348). Petitioner testified that he was involved in an incident where another car thief was murdered for being a snitch (TE IX, 1348-1350). He told the jury that he had a three-year-old daughter who lived in Houston, and that he had used illegal drugs for a long period of time, including the day before the crime was committed (Id., 1351). As for the events on January 28, 1983, Petitioner testified that “Red” wanted to see if he could “make some money at that place on the corner.” (TE IX, 1351-1352). Petitioner told him there was no money in the store on the corner, and suggested that they hit the Zippy Mart (Id., 1352). “Red” asked again about the store, and Petitioner again replied that there was no money there (Id.). When “Red” insisted on robbing the store, Petitioner agreed but said he would stay right there (Id.). While Petitioner was waiting outside, he heard someone screaming inside the store and took off running (Id., 1353). “Red” later told Petitioner that the victim had started arguing, and he “just started cutting.” (Id.). Petitioner explained that no one was supposed to get hurt in the robbery (Id.). Petitioner testified that he did not kill the victim, and that it should not have happened, and that he was sorry that it did (Id., 1355). Petitioner admitted on cross-examination that he snatched purses every day when he did not have a stolen car to sell (Id., 1867). He also testified that he and “Red” had stolen batteries from Keith Edwards (Id., 1368). Dr. Philip W. Johnson, a clinical psychologist employed by the Kentucky Corrections Cabinet, testified that he had examined Petitioner in May of 1983 and again in August of that year (TE X, 1380). As a result of his examination, the doctor had diagnosed Petitioner with borderline personality disorder with antisocial traits (Id., 1388). He also diagnosed Petitioner with alcohol and drug abuse (Id., 1387-1388). The doctor explained to the jury that individuals with borderline personality traits experience a multitude of problems in life that include problems with their families, peers, occupation and academic achievement (Id., 1389). Dr. Johnson then went on to describe Petitioner as a “marginally functioning individual.” (Id., 1393). Dr. Johnson testified on examination by the defense that without treatment, Petitioner would probably continue in the same lifestyle he had lived for the past fifteen years (TE IX, 1395). The doctor added that Petitioner may have some pre-disposition for violent activities (Id.). He may not consistently view cause-and-effect in a realistic manner, resulting in gross errors in judgment (Id., 1408). The doctor explained to the jury that the prospect for rehabilitation with people who have borderline personality disorders is relatively poor as a group, although the doctor could not apply that statement to any one specific individual (Id., 1412-1413). Following closing arguments, the jury fixed Petitioner’s sentence at death for murder (TR 135). Petitioner’s motion for a new trial was overruled. The trial court entered its final judgment on December 2, 1983 (TR 162-164). Petitioner then took a direct appeal to the Supreme Court of Kentucky. The Kentucky Supreme Court rejected all of Petitioner’s twenty-nine arguments and affirmed his conviction and death sentence in Slaughter v. Commonwealth, 744 S.W.2d 407 (Ky.1987). POST-CONVICTION PROCEEDINGS On October 13, 1989, Petitioner filed a motion pursuant to RCr 11.42 to vacate, set aside or correct the judgment of conviction (TR II, 247-266). Following briefing, the trial court held a three-day eviden-tiary hearing in September of 1994. The first witness to testify was Petitioner’s trial counsel, Ferdinand “Fred” Radolovich (Videotape Hearing Record (“VHR”), 9/7/94, 09:30:32). Radolovich testified that he had been practicing as an attorney since 1974 (Id., 09:42:30). He became involved in Petitioner’s case pro bono when his law partner withdrew from the case prior to trial {Id., 09:31:16). Radolovich was the sole attorney to represent Petitioner during the trial {Id., 09:33:20). Radolovich testified that prior to representing Petitioner, he had worked as a state prosecutor in New York, during which time he had handled four capital cases (VHR, 9/7/94, 09:33:00). He also supposedly had handled two capital cases as a defense attorney in Kentucky {Id.). This testimony proved to be materially incorrect, however. An affidavit from the Executive Assistant District Attorney in New York County revealed that Radolo-vich had worked for the office only for less than a year beginning in 1977. During that time, he did not try any capital cases {Id.). In fact, “[g]iven Radolovich’s time with the office, it was unlikely that he tried any homicide cases.” {Id.). Radolovich testified that his primary focus in Petitioner’s case was the guilt phase of the trial (VHR, 9/7/94, 09:33:40). According to Radolovich, 99% of his trial preparation was devoted to the guilt phase {Id., 09:34:30). It was his belief that if the defense was unsuccessful in the first phase of the trial, the second half of the trial, the penalty phase, would be a “blood bath.” {Id., 09:35:50). Radolovich testified that his plan was for Petitioner to testify during the guilt phase of the trial, and accordingly, any preparation for his testimony would have been directed at issues of guilt or innocence {Id.). No pretrial preparation was made for Petitioner to testify during the penalty phase of the trial {Id., 09:36:49). Concerning the penalty phase of the trial, Radolovich testified that he really didn’t get a chance to prepare for the penalty phase except for the brief time after the jury returned its verdict of guilty on the robbery and murder charges (VHR, 9/7/94, 09:37:00). At most, Radolovich spoke to only one family member of Petitioner, an elderly aunt, who lived in Georgia or Alabama, and could not attend the trial {Id., 09:38:15). Radolovich did not believe that she had any helpful testimony to offer at trial, given her limited and remote contact with Petitioner. Radolovich admitted, however, that he did not think to ask the elderly aunt about any other family members who might be willing to testify for the appellant {Id., 10:10:13). He admitted that it might have been helpful if he had called Petitioner’s mother and brothers to testify on his behalf to show the jury that Petitioner’s family still cared about him and stood by him {Id., 10:11:30). Radolovich also admitted during the hearing that he made no meaningful effort to locate any birth, school or other records of Petitioner for use in the penalty phase (VHR, 9/7/94, 09:39:00). When asked if he made any effort to locate such records, Radolovich testified, “[n]ot really, when we made our determination to focus on guilt phase, that’s basically where I put my energies.” {Id., 09:39:00). Finally, Rado-lovich acknowledged that the sole expert he called during the penalty phase, Dr. Philip Johnson, gave testimony that was, in part, harmful to Petitioner {Id., 10:07:50). Radolovich acknowledged that Dr. Johnson testified that Petitioner supported himself by stealing cars, and had antisocial traits, including a borderline personality that limited his potential for rehabilitation {Id., 10:06:00-07:50). Radolovich also testified concerning his preparations for the guilt phase of the. trial (VHR I, 9/7/94, 09:44:10-10:01:27). Rado-lovich testified that he filed a motion for a competency and sanity evaluation which resulted in Dr. Johnson’s report {Id.). He additionally filed a motion for a Bill of Particulars and a motion for production of the grand jury transcript in order to obtain information {Id.). He requested a hearing to determine the existence of a proper aggravating circumstance after the Commonwealth gave notice that it would prosecute the murder as a capital offense (Id.). He filed a motion for individual voir dire and to sequester the jury. Further, he filed a motion for a witness list and witness statements from the prosecution (Id.). Radolovich also filed a subpoena duces tecum to Lt. Mason to obtain mug shots of other suspects and a crank call file. He filed a motion to determine the admissibility of jailhouse informant Keller’s statements. He subpoenaed the manager of Keith Edwards’s place of employment, along with taped statements from the police department of every individual who gave such a statement relating to the case. He filed a written objection to the court reviewing the victim impact statement of a close relative of the victim. These motions were all filed in order to help him prepare for the trial. Radolovich testified that Petitioner did not want to draw his friends into a criminal trial. His friends, the ones that Rado-lovich was able to contact, did not have any positive statements to make that would have helped the defense. Had he been able to locate anyone who would have helped by their testimony in the penalty phase, Radolovich would have called such individuals to testify (VHR I, 9/7/94). Petitioner’s mother, Mary Moon, also testified at the RCr 11.42 post-conviction hearing (VHR I, 9/7/94, 10:22:30). Moon testified that her son’s name was not James Earl Slaughter. His real name, in fact, was Jeffrey Devan Leonard (Id., 10:22:45). According to Moon, Petitioner was born in Alexander City, Alabama, in 1964, when she was fifteen years old and unmarried (Id., 10:23:25). Petitioner’s father spent only approximately one month with Petitioner before the father was killed in 1972, while serving a prison sentence (Id., 10:23:40-24:10). Moon gave birth to two other sons by different fathers (Id., 10:27:00). One of her husbands, Thomas Moon, to whom she was married for seven- and-a-half years, was an abusive alcoholic. She left him when Petitioner was eight years old (Id., 10:31:48). Mary left when Moon fired a shotgun at Petitioner as the eight-year-old boy ran out of their home carrying his four-year-old brother (Id., 10:30:18). Mary Moon testified that Petitioner was extremely close to her mother, Susan Gibbs, and would call her once a week while she was living prior to her death in October of 1991 (VHR I, 9/7/94, 10:34:20-35:00). Mary received little financial support from the fathers of her children. She routinely worked two jobs to support the family (VHR I, 9/7/94, 10:37:20). As a result, she was gone working from 7:30 a.m. until 10:00 p.m., many days (Id., 10:37:50). Consequently, she taught the children how to cook their own meals (Id., 10:37:25). When she could not leave the children with her mother, they stayed by themselves while she worked, since she could not afford a babysitter (Id., 10:45:30-46:00). Mary admitted that she “whipped the devil out of my children.” (VHR I, 9/7/94, 10:48:00). She testified that if Petitioner were to pull up his shirt, you could see the scars to prove it (Id., 10:48:15). She admitted that she would whip Petitioner with anything that she could lay her hands on (Id., 10:48:40). When he was five, Petitioner suffered a serious head injury when he struck his head on the corner of the refrigerator (Id., 10:38:45). The wound required ten stitches to close, and Petitioner began to have severe headaches when he was nine years old (Id., 10:40:00). Mary, however, lacked the money to pay for follow-up medical treatment and had no medical insurance (Id., 10:40:10). According to her, Petitioner left home when he was seventeen. She had no idea where he stayed after that (Id., 10:59:40). Mary testified that she had family in Louisville, Kentucky, during the time of the trial (VHR I, 9/7/94, 10:49:30). Her father, stepmother, stepbrother, four aunts and two uncles lived in Louisville at that time (Id., 10:49:35). No one, however, contacted her about testifying on her son’s behalf at his trial (Id., 10:50:00). Had she been contacted, Mary would have been willing to testify in support of her son, whom she loves and does not wish to see die in the electric chair (Id., 10:51:30-52:15). Bobby Moon, Petitioner’s younger brother, testified that he and his two brothers grew up together in Alabama (VHR I, 9/7/94, 11:05:40). He confirmed that his mother had two full-time jobs (Id., 11:06:30). While she was working, Petitioner took care of Bobby and his little brother, making sure they were fed (Id., 11:07:00). When a live bullet exploded and injured Bobby’s little brother, Vincent, Petitioner got Vincent to the hospital for treatment (Id., 11:07:40). Bobby testified that the boys grew up in the housing projects and had a hard life (VHR I, 9/7/94, 11:08:35). He confirmed that their mother physically punished them with belts, switches, extension cords and brooms (Id., 11:09:40). Bobby, like his mother, testified that had he known about Petitioner’s trial, he is sure that he would have attended to support Petitioner (Id., 11:12:00). Like his mother, Bobby loved his older brother and did not want to see him die (Id., 11:18:40). Bobby and Petitioner were very close, and Petitioner had tried to help Bobby in whatever he did (Id., 11:19:19). Vincent Moon, the youngest brother, also testified at the RCr 11.42 hearing. He confirmed his mother worked two and three jobs when the boys were growing up (VHR I, 9/7/94, 11:23:25). He also confirmed that Petitioner took care of him and his older brother, Bobby, while his mother was working (Id., 11:23:35). Petitioner would cook for his two younger brothers and would try to get them what they needed (Id., 11:24:15). Vincent testified that when a bullet exploded in his face, Petitioner rushed him to the hospital for treatment (Id., 11:25:00). Vincent testified that he had seen his mother discipline Petitioner with extension cords (VHR I, 9/7/94, 11:27:20). She occasionally would confine the boys to their room with nothing to eat, but Petitioner would slip them food (Id., 11:28:30). Vincent agreed that if he had known about Petitioner’s capital trial, he would have testified for him (Id., 11:30:00). Vincent, like Bobby, testified that he loves his brother and did not want to see him die (Id., 11:29:40-30:10). Charles Leonard, Petitioner’s grandfather, and his grandmother, Clare Leonard, testified at the RCr 11.42 hearing (VHR I, 9/7/94, 12:59:00-13:04:41; 13:06:46-13:11:15). Charles Leonard testified that his grandson would come to visit him at his home in Louisville, and that he had stayed there on occasion, but left and did not return (Id., 13:00:00, 13:00:45). When Petitioner was at the home, Charles observed that he suffered from headaches (Id., 13:03:00). Charles testified that he was never contacted about giving testimony at Petitioner’s trial (VHR I, 9/7/94, 13:02:00). Likewise, Clare Leonard testified that she was never contacted by anyone about Petitioner’s impending trial (Id., 18:11:04-15). She was not aware that Petitioner was using the name “James Slaughter” until she saw his picture on the television (Id., 13:10:40-11:01). Dr. Eric Engum, a clinical psychologist from Knoxville, Tennessee, testified at the RCr 11.42 hearing (VHR I, 9/7/94, 13:15:00). In 1994, Dr. Engum performed a neuropsychological evaluation of Petitioner to explore the possibility of a brain injury (Id., 13:24:18). Based on his examination, Dr. Engum diagnosed attention deficit disorder, along with difficulties in learning and acquiring new information, particularly, verbally (Id., 13:35:00; 13:35:38). The doctor’s specific diagnosis in this regard was “cognitive disorder, not otherwise specified.” (Id., 13:37:30). According to Dr. Engum, an individual with Petitioner’s disability cannot sit still and concentrate. He or she would have difficulty understanding legal concepts such as mitigation, aggravation and Miranda warnings (VHR I, 9/7/94, 13:42:00). The doctor agreed that Dr. Johnson’s report reflected very poor vocabulary, thus giving reason to believe that Petitioner would not have the vocabulary skills to understand the legal terms, unless the words were expressed in a fourth- or fifth-grade vocabulary (Id., 13:42:15). Dr. Engum also administered the Minnesota Multiphasic Personality Inventory (“MMPI”) to Petitioner. The doctor testified that to conduct a competent forensic evaluation, it was absolutely necessary to administer the MMPI (VHR I, 9/7/94, 13:53:00). The doctor noted, however, that Dr. Johnson had not been able to perform the MMPI due to Petitioner’s reading disability. He instead relied upon the Ink Blot Test as a substitute (Id., 13:54:00-54:20). Dr. Engum testified that the Ink Blot Test is not a valid substitute for the MMPI, and it would not have permitted Dr. Johnson to conclude that Petitioner has a borderline personality disorder (Id., 14:01:15). In fact, Dr. Engum testified that Dr. Johnson did not perform any test that would have permitted him to reach that critical conclusion (Id., 14:03:50). Dr. Engum also challenged Dr. Johnson’s conclusions concerning the potential for rehabilitation. Dr. Engum testified that with proper psychotherapy, Petitioner could begin tearing down the barriers that he had developed. The doctor believed that Petitioner had sufficient intellectual development to respond to psychotherapy. Because Dr. Johnson did not obtain a valid MMPI, his diagnostic impressions were inaccurate and led him to present Petitioner to the jury in a way that was not a fair representation of Petitioner’s personality (VHR I, 9/7/94,14:51:30). On cross-examination, Dr. Engum conceded that had he been called to testify in 1983, he would have had to tell the jury that Petitioner is impulsive, bitter and un-empathetic (VHR I, 9/7/94, 14:45:39-47:38). His personal inter-relationships were short-lived and characterized by conflict due to Petitioner’s significant suspiciousness and hostility (Id.). Further, Dr. En-gum would have had to advise the jury that Petitioner’s elevated antisocial skills revealed impulsive and self-destructive behaviors with little forethought to the potential consequences of the behaviors (Id.). Further, under unusual circumstances, Petitioner could be expected to accept risks potentially dangerous to himself or those around him (Id.). He might vacillate from being very cooperative to being unable to control his anger (Id.). All of these items would have been in Dr. Engum’s report had he participated in 1983. Finally, Dr. Engum testified that Petitioner was an extremely bright individual with a full-scale IQ of 107, which the doctor characterized as being “remarkable,” given his limited academic and cultural background (Id., 13:44:02-44:25). Dr. Engum concluded that Petitioner was competent, and that he acquired information at an average rate but had a better-than-average ability to retain information once acquired (Id., 13:47:30-48:06). Dr. Jerry Kearl, a Lexington physician, testified at the hearing. Dr. Kearl found no evidence of organic brain damage (VHR I, 9/7/94, 15:55:20-55:48). Dr. Kearl attributed Petitioner’s insomnia to excessive caffeine and his headaches to vascular tension (Id., 15:57:43-58:58). The doctor found it unlikely to believe that Petitioner’s headaches were the result of a childhood injury. Physical examination by Dr. Kearl confirmed that Petitioner did have a scar at the hairline on the right side of his head, and the cranium of his skill was depressed underneath that scar (Id., 15:33:20). The doctor testified that the medical attention that Petitioner received did not appear adequate for the type of injury (Id., 15:36:00-39:00). Dr. Kearl observed a large laceration on the forearm of Petitioner that appeared to be a medically neglected injury (VHR I, 9/7/94, 15:39:20). Petitioner exhibited many scars that appeared to be the result of corporal punishment he received as a child (Id., 15:41:25-42:00). The doctor testified that this evidence suggested physical abuse, followed by medical neglect (Id., 15:45:00). Finally, Dr. Kearl testified that many children'with attention deficit disorder or learning disabilities are abused by their parents as a result of the frustrations of trying to deal with them (Id., 15:46:30). Dr. Gayle Spears, a psychologist, testified at the RCr 11.42 hearing based on a review of Petitioner’s grade records for school years 1976 through 1978, and attendance records for school years 1976 through 1979 (VHR II, 9/8/94, 09:50:27; 10:18:32-10:19:30; 10:22:34-23:06). Based on her review, Dr. Spears testified that certain patterns emerged consistent with learning-disabled students. These patterns included deterioration of academic performance, a drop in school attendance and deterioration of behavior (Id., 09:50:40). According to Dr. Spears, individuals with learning disabilities are able to perform fairly well in the earlier grades, but as the requirements become increasingly difficult, they begin to encounter educational performance problems. Such students lose interest, and their attentiveness and behavior begin to deteriorate (Id., 09:51:00). Dr. Spears added that even a person with an IQ higher than 107 could have poor academic performance in a specific area, such as reading, due to a learning-disability (VHR II, 9/8/94, 09:53:55). Dr. Spears reviewed a videotape of a school official from Alexander City, Alabama, discussing the state of the public schools during the time that Petitioner attended them (Id., ■ 10:00:35). Alexander City was located in the poorest county in Alabama, and had a complete lack of educational resources, materials and supplies (Id., 10:01:00-10). The school system had no special resources or any training or expertise for students with learning disabilities, and there was no effort to identify such students (Id., 10:01:45). Further, even had such students been identified as special-needs students, they would not have received any additional learning resources (Id., 10:02:15). Such students were more likely to be viewed as uninterested, unmotivated students with limited capability and behavior problems (Id., 10:03:00). Dr. Spears agreed that patterns of attention deficit disorder were reflected in Petitioner’s school records, and that without proper intervention, such problems can have a devastating effect on a child’s education (Id., 10:05:30). Finally, she testified that persons with attention deficit disorder respond well to structure, such as the structure available in prison (Id., 10:11:00). Lane Veltkamp, a licensed clinical social worker, performed a psychosocial evaluation of Petitioner (VHR II, 9/8/94, 10:35:50). Veltkamp described Petitioner’s relationship with his father as being one of abandonment and neglect (Id., 10:44:40). Due to her work schedule, Petitioner’s mother simply was not available to her children (Id., 10:48:10). As a result, Petitioner was forced to take responsibility for raising his brothers when he was far too young (Id., 10:49:25). To complicate matters, his mother was physically abusive (Id., 10:48:58). As a result of the neglect and abuse, Petitioner was distrustful and experienced difficulty in becoming close to people. Petitioner would be expected to have a great deal of anger and rage, although with therapy, his problems could be overcome over time (Id., 10:52:25-53:26). Veltkamp added that Petitioner was basically a follower with little esteem and self-confidence (Id., 11:00:00). Dr. Eric Drogin, a licensed clinical psychologist, also testified (VHR II, 9/8/94, 13:17:20). Dr. Drogin reviewed both the evaluation report prepared by Dr. Johnson and Dr. Johnson’s trial testimony (Id.). Dr. Drogin was not able to endorse the conclusions reached in Dr. Johnson’s trial testimony (Id., 14:03:30). However, Dr. Drogin did not know whether Dr. Johnson’s ultimate diagnosis in 1983 was correct (Id., 14:12:26-13:10). Following Petitioner’s conviction in 1983, William Keller provided the defense with two affidavits. In the affidavits, he admitted that the testimony he provided for the prosecution concerning Petitioner’s alleged admission that he stabbed the victim was not entirely true. Keller was called by Petitioner to be a witness at the RCr 11.42 evidentiary hearing (VHR II, 9/8/94, 14:20:30). Prosecutors, however, threatened to prosecute Keller for perjury and for being a persistent felony offender if he testified inconsistently with his trial testimony (TR VIII, 819). The court advised Keller that he could be prosecuted for perjury if he testified at the RCr 11.42 hearing, contrary to his trial testimony (Id., 14:20:40). Keller subsequently invoked his Fifth Amendment rights (Id., 14:33:00). In an affidavit prepared after the RCr 11.42 hearing, Keller admitted that he had lied during Petitioner’s trial, that Petitioner had not admitted stabbing the victim, but stated that he was too nervous to testify at the evidentiary hearing after being told that he could be prosecuted for perjury. Although Keller felt bad about his false trial testimony, he was not willing to subject himself to the possibility of additional prison time due to that testimony. Attorney, Betty Niemi, testified on the question of ineffective assistance of counsel (VHR II, 9/8/94, 14:49:04). Niemi, a Kentucky criminal defense attorney who has defended several capital murder cases, testified that she had reviewed the entire criminal trial record, the defense counsel’s entire trial, and the materials submitted with the RCr 11.42 motion (Id., 14:49:50). In her opinion, Petitioner did not receive effective assistance of counsel during the guilt phase or the penalty phase of the trial (Id., 14:52:23; 15:26:55). In her view, defense counsel was deficient during jury selection, failed to do an adequate voir dire, failed to obtain an independent mental health expert and failed to make adequate preparation for the penalty phase of the trial (Id., 14:53:30-15:12:30). Niemi testified that a defense attorney in a death penalty case must begin preparing for the penalty phase on the day the case is received (VHR II, 9/8/94, 15:12:30). In her words, “you have to anticipate making it to the penalty phase because if you don’t you’re gonna be caught totally inadequate.” (Id., 15:12:40). The types of preparation she gave examples of included: considering the social history of your client from the day he was born until he walks into the courtroom; obtaining birth, school, medical and employment records; and talking to family members, school teachers, ministers and neighbors (Id., 15:12:50-15:13:00). Gathering such information, according to Niemi, is essential in developing a strategy (Id., 15:13:30). Niemi noted that information was available in the record to defense counsel at the time which would have revealed his client’s true name as being Jeffrey Leonard (Id., 15:13:40-15:16:25). Niemi testified that it is a questionable defense practice to have a client evaluated at Kentucky Correctional Psychiatric Center, because the information obtained is not confidential, and KCPC does not act as a defense expert (VHR II, 9/8/94, 15:13:55). Niemi agreed, based on the post-conviction affidavit of defense counsel, that the entire focus appeared to have been on the guilt phase (Id., 15:27:10). After the guilty verdict was returned, the penalty phase became something of a sudden afterthought (Id., 15:27:30). Niemi charactered Dr. Johnson’s testimony as being “devastating” to Petitioner, who was not prepared adequately to testify in the penalty phase and was not aware of either his role in the process or the nature of mitigating evidence (Id., 15:28:10). On June 22, 1995, the trial court entered an opinion overruling Petitioner’s RCr 11.42 motion (TR VI, 859-865). In its opinion, the trial court noted that the hearing had revealed an impressive display of mitigating evidence (Id., 861). In fact, the court wrote that it had never been presented at trial with such an accumulation of mitigating evidence during a penalty phase (Id., 863). The court, however, concluded that it was unpersuaded that in 1983, the now-mitigating evidence would have changed the jury’s verdict (Id., 863-864). Petitioner took an appeal to the Supreme Court of Kentucky. On post-conviction appeal, the Supreme Court affirmed the decision of the trial court. Slaughter v. Commonwealth (Ky.1998). Petitioner then filed his present federal habeas petition in which he raises forty-seven claims of error. Respondent has filed a motion for summary judgment that requests the dismissal of the petition. Petitioner has responded. Accordingly, the matter is ripe for consideration. LEGAL ANALYSIS sistance of counsel, as well as a double jeopardy argument, and two arguments involving the death penalty report prepared by the trial court. Before the merits of any of these claims may be addressed, several important matters must be discussed. First, the standard of review to be applied pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) must be established. See 28 U.S.C. § 2254(d). Second, the law relating to habeas corpus review must also be set forth. Habeas corpus review comes with an exacting set of requirements that must be satisfied before the federal courts will address the substance of a prisoner’s claim. Claims that do not involve federal constitutional issues, that are not timely and adequately presented or preserved in the state courts, or that depend upon a “new rule” of law will not ordinarily receive habeas corpus review, absent extraordinary circumstances. Accordingly, the first duty of the Court is to discuss the standard of review and the exacting requirements of habeas corpus law. After an overview of the law, the Court will address each claim that is properly before the Court to determine whether it is subject to habeas corpus review on the merits. If so, then the Court will decide whether Petitioner is entitled to relief under clearly established precedent of the United States Supreme Court. THE STANDARD OF HABEAS CORPUS REVIEW Petitioner filed a notice of his intention to file a habeas corpus petition on March 7, 2000 (Dkt. No. 1). He filed his petition for a writ of habeas corpus on April 20, 2000 (Dkt. No. 13). The petition, therefore, was filed almost four years after the date that the AEDPA became effective on April 24, 1996. The provisions of the AEDPA clearly are applicable. Under the AEDPA, a writ of habeas corpus may not be granted by a federal court to a person in custody pursuant to a state court judgment 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 defined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d). Recently, the Supreme Court in Williams v. Taylor, 529 U.S. 362, 405-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) elaborated on the meaning of this statutory language. In explaining § 2254(d), the Court noted that the statute “places a new constraint on the power of the federal courts to grant a state prisoner’s application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court.” Williams, 529 U.S. at 412, 120 S.Ct. 1495. A state court decision will be “contrary to” the precedent of the Supreme Court if either the “state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law,” or “the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at [the opposite] result.” Id. at 405, 120 S.Ct. 1495. A state court opinion will violate the “unreasonable application” clause of the statute when “the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unrea- Legal analysis of Slaughter’s claims presents a substantial challenge. Slaughter raises forty-seven separate claims of error in his 281-page memorandum. Virtually every aspect of the trial proceedings has been challenged. For example, Slaughter raises three arguments involving pretrial hearings, four arguments involving the jury selection and questioning process, three arguments involving testimony during the guilt phase, six arguments involving prosecutorial misconduct, three arguments involving the sufficiency of the evidence, nine arguments involving jury instruction during the guilt or penalty phases of trial, five arguments involving the constitutionality of the death penalty, eleven arguments alleging ineffective as-sonably applies that principle to the facts.” Williams, 529 U.S. at 413, 120 S.Ct. 1495. Certain panels of the Sixth Circuit also hold that a state court opinion will be an “unreasonable application” of the Supreme Court precedent if it “either unreasonably extends or unreasonably refuses to extend a legal principle from Supreme Court precedent to a new context.” See Seymour v. Walker, 224 F.3d 542, 549 (6th Cir.2000), cert. denied, — U.S.—, 121 S.Ct. 1643, 149 L.Ed.2d 502 (2001). The Supreme Court in Williams explained that “a federal court making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established federal law was objectively unreasonable.” Williams, 529 U.S. at 409, 120 S.Ct. 1495. The Court explained that the term “objectively unreasonable” means that “[a] federal court may not issue the writ simply because the 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 unreasonable.” Id. at 411, 120 S.Ct. 1495. When determining the “clearly established federal law,” the courts may look only to the decisions of the Supreme Court of the United States. Barnes v. Elo, 231 F.3d 1025, 1028 (6th Cir.2000). It is error for the federal courts to rely on authority other than the Supreme Court of the United States in their analysis under § 2254(d). Harris v. Stovall, 212 F.3d 940, 944 (6th Cir.2000) (cert, denied, 532 U.S. 947, 121 S.Ct. 1415, 149 L.Ed.2d 356 (2001)). Further, it is the holding of the Supreme Court decision, not its dicta, which is controlling in the analysis. Id. The AEDPA also gives deferential treatment to the findings of fact made by a state court during the direct appeal and on state collateral review. The applicable statute provides that “[a] determination of a factual issue made by a state court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). Further, “[t]he applicant [for § 2254 relief] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” Id. Accordingly, the factual findings are reversed only if Petitioner establishes that they are clearly erroneous. Campbell v. Coyle, 260 F.3d 531 (6th Cir., rendered August 1, 2001) (available on WestLaw at 260 F.3d at 539). OVERVIEW OF HABEAS CORPUS LAW [5,6] In essence, the “Great Writ” exists to provide a limited opportunity for extraordinary relief when a state prisoner demonstrates that he or she is being held in custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Application for a writ of habeas corpus is an original civil proceeding that exists independently of the normal channels of criminal review to test the gravest allegations that a state prisoner’s detention violates the fundamental liberties safeguarded by the Constitution. Townsend v. Sain, 372 U.S. 293, 83 S.Ct.. 745, 9 L.Ed.2d 770 (1963). The “Great Writ” is not an instrument the federal courts may employ at will to reverse a state criminal conviction. It is instead a truly extraordinary means to undo a restraint contrary to fundamental constitutional law. Roddy v. Black, 516 F.2d 1380 (6th Cir.), cert. denied, 423 U.S. 917, 96 S.Ct. 226, 46 L.Ed.2d 147 (1975); Eberhardt v. Bordenkircher, 605 F.2d 275 (6th Cir.1979) (habeas corpus review is not a broad exercise of supervisory power, but is limited to constitutional error). The federal courts, therefore, will not use habeas corpus review to sit as an additional state appellate court. Gemmel v. Buchkoe, 358 F.2d 338 (6th Cir.1966), cert. denied, 385 U.S. 962, 87 S.Ct. 402, 17 L.Ed.2d 306 (1967). A state prisoner who seeks this extraordinary relief first must fully and fairly present his or her claim, as a matter of federal law, to the state courts. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (exhaustion of state remedies requires that a petitioner fairly present federal claims to the state courts so that the state may have the opportunity to correct any alleged violation of federal rights). Merely raising an issue as a matter of state law will not satisfy the exhaustion requirement. Riggins v. McMackin, 935 F.2d 790, 792-93 (6th Cir. 1991). A federal claim will be fairly and fully presented only if the petitioner cites to a provision of the United States Constitution, federal decisions relying upon constitutional analysis, or state decisions employing constitutional analysis in similar fact patterns, when presenting a claim to the state’s highest court. Levine v. Torvik, 986 F.2d 1506, 1516 (6th Cir.), cert, denied, 509 U.S. 907, 113 S.Ct. 3001, 125 L.Ed.2d 694 (1993). Further, the same federal claim under the same theory must be presented to the state courts before a petitioner will satisfy the exhaustion requirement. Pillette v. Foltz, 824 F.2d 494, 496 (6th Cir.1987); Franklin v. Rose, 811 F.2d 322, 325-26 (1987). So long as the petitioner has fully and fairly presented his federal claim to the state’s highest court, the claim will be totally exhausted even if the state courts do not consider the claim on its merits. Harris v. Rees, 794 F.2d 1168, 1173-74 (6th Cir.1986). If the petitioner has not fully and fairly presented his federal claim, however, then the petition must be dismissed without prejudice for lack of exhaustion so long as a remedy remains available to pursue in the state courts and the claim is not frivolous. Rose v. Lundy, 455 U.S. 509, 518-20, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Boggs v. Evitts, .818 F.2d 534, 536 (6th Cir.1987). A different situation exists when no state remedies remain available for the petitioner to pursue and petitioner has failed to fully and fairly present his federal claim; or, the state courts have held that consideration of the claim is barred due to the petitioner’s procedural default in state court. In such situations, when the petitioner has no remaining state remedy available, the petition is not dismissed for lack of exhaustion, since no remedies remain available in state court to exhaust. Hannah v. Conley, 49 F.3d 1193, 1195-96 (6th Cir.1995) (per curiam). When this situation occurs, the federal courts ordinarily will not consider the claim unless the petitioner can show cause to excuse his failure to present the claims appropriately in the state courts, and actual prejudice as a result. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Teague v. Lane, 489 U.S. 288, 298-99, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). To show cause sufficient to satisfy the cause-and-prejudice requirement, a petitioner must ordinarily establish the existence of some objective factor extern