Full opinion text
OPINION & ORDER [Resolving Doc. 1] GWIN, District Judge. On March 19, 2002, Petitioner Jamie R. Madrigal (“Madrigal”) petitioned this Court for a writ of habeas corpus under 28 U.S.C. § 2254. In seeking relief in this death penalty case, Petitioner Madrigal says that constitutional error attended his conviction and resulting death penalty sentence. Although Madrigal states various grounds for relief, he principally claims that the state-court denied him his constitutional right of confrontation when it allowed the admission of two out-of-court statements by a co-defendant who refused to testify at trial. With those out-of-court statements, the co-defendant denied culpability and instead implicated Madrigal as the killer. The co-defendant Chris Cath-cart’s testimony was important. The identity of the killer was the principal issue at trial and some evidence suggested that the co-defendant Cathcart was the killer. Reviewing this denial of a right to cross-examine evidence offered against him, the Ohio Supreme Court found the trial court erred but found the error harmless. Madrigal challenges this finding. He says much evidence suggested that the co-defendant, not Madrigal, was the killer. He argues that the trial court’s error in admitting the implicating statement was significant to his conviction. Respondent Warden Margaret Bagley (“Bagley”) denies that Petitioner Madrigal is entitled to a writ of habeas corpus. First, Respondent Bagley maintains that Madrigal procedurally defaulted many of his claims for relief. Regarding the remaining claims, Bagley argues that Madrigal fails to show any constitutional violations. Alternatively, she argues that Madrigal raises claims not cognizable in federal habeas review. In this decision, the Court first describes the factual background of Madrigal’s crime. Then, the Court describes Madrigal’s direct appeal and his later efforts at state-afforded post-conviction relief. The Court then discusses whether Madrigal exhausted his state court remedies and whether Madrigal defaulted certain claims under state procedural rules. Finally, the Court substantively reviews Madrigal’s claims that had not otherwise been defaulted. All, save one, of Madrigal’s arguments fail. The Court finds that the admission of co-defendant Chris Cathcart’s statements that implicated Madrigal as the killer “had a substantial and injurious effect or influence in determining the jury’s verdict.” The Court grants the petition for habeas corpus for the reasons that follow. I. Factual Background On Friday, April 12, 1996, a robber killed Misty Fisher at a Kentucky Fried Chicken restaurant (“KFC”) in Toledo. During that evening, Misty Fisher, Eric Armstrong, Brian Conley, and Carrie Tracy worked at the KFC. Tracy was sixteen years old. Misty Fisher, Eric Armstrong and Brian Conley were eighteen years old. Fisher and Armstrong were both closing managers. Around 8:15 p.m. that Friday night, a black male entered the restaurant. Working at the front counter, Tracy asked the person if she could help him. He said “No, no.” After looking around the restaurant, the black male exited. At this time, Jeffrey Kerekes and Todd Corbett took their dinner break from work, and decided to go to the KFC for dinner. As they pulled into the drive-thru, they realized that the speaker was not working and they drove up to the window. Tracy came to the window to take their order. At approximately the time that Kerekes and Corbett approached the drive-through window, the same black man who had previously been in the KFC returned. A loud crash caught everyone’s attention as the man jumped over the counter, shattering the glass on the refrigerated counter case. After vaulting the counter, the man hit Armstrong in the head and ordered everyone to the floor. The man asked who the closing manager was. Armstrong said he was. The man then ordered Armstrong to get up and get the money out of all the registers. Armstrong responded and put the money in a KFC bag on the counter. The man then told Armstrong to open the safe, but Armstrong told him he did not have the combination. Armstrong told the robber that Fisher had the combination. The man grabbed Fisher by her ponytail and took both her and Armstrong to the area near the safe. As they approached the safe, the robber told Armstrong to get to the floor, and ordered Fisher to open the safe. Fisher knelt in front of the safe, while the man held a gun to the back of her head. Afraid and nervous, Fisher told the robber she could not get the safe open. In response, the man barked, “hurry up bitch.” Fisher asked Armstrong to help her, but as he got up, the man ordered him back to the floor. When Misty Fisher still could not get the safe open, the man said, “Now you’re playing, bitch,” and shot her in the back of the head. The man exited through the back door. Armstrong immediately got up and called 911. While this was going on, Corbett and Kerekes waited for their order. While waiting for their order, customers Corbett and Kerekes saw a man jump over the counter and hit Armstrong. They saw a chrome-plated gun in the man’s hand. Realizing the man was robbing the KFC, they pulled through the drive-thru and drove around the front of the building. They noticed another man sitting on the driver’s side of an older maroon Buick with chrome Cragar SS rims, parked against the back fence of the KFC parking lot. The car was backed into the parking spot, and had no license plate. Corbett and Kerekes pulled around to the alley behind the KFC parking lot. Kerekes got out and looked through the bottom and top of the fence, looking for a license plate on the back of the car. He saw none. Kerekes returned to his car, and he and Corbett drove to a 7-Eleven Store and asked the clerk to notify the police that a robbery was in progress at the KFC. They then went back to the KFC. As they pulled into the parking lot, they noticed that the maroon Buick remained parked in the same spot; however, the man who had been in the car had now moved to the passenger seat. After observing the maroon Buick, Cor-bett and Kerekes drove through the parking lot. As they came near to the back door, the door opened and a black man came out carrying a brown paper bag in his hands. The man stopped momentarily, looked at them, then got into the maroon car and took off. Corbett and Kerekes again went through the drive-thru lane. This time Tracy was hanging out the window screaming that someone had been shot. Corbett and Kerekes went into the KFC as the police and ambulance were arriving. Although the police and ambulance had quickly arrived, Fisher died en route to the hospital from her gunshot wound. Although Corbett and Kerekes gave the police a description of the car and the direction it headed, the police were unable to find it that night. The police took statements from Corbett and Kerekes and then took the three employee witnesses, Armstrong, Conley, and Tracy, to the police station. At the police station, the officers received the employees’ statements. In their statements, the witnesses described the man as a black man, medium complexion, in his late teens or early twenties, medium build, short hair, wearing tan boots, a dark-colored hooded sweatshirt, and baggy pants. Kerekes described the baggy pants as jeans, while Tracy described them as brown “Dickies” brand pants with cuts on the legs. The following day, Saturday, the police asked Corbett and Tracy to return to the police station to create a composite sketch to help generate leads in the case. Because of leads coming into the police station, the police arrested James Jordan. On the Monday following the crime, the police asked the witnesses to come to the police station to participate in a lineup. Neither Corbett nor Kerekes picked anyone from the lineup. Tracy picked out Jordan, although she thought he was too short. She later said that she picked him only because she thought she was supposed to pick someone out. Corbett and Kerekes identified a car type similar to the Buick they had seen. Police received a crime-stoppers tip that Jamie Madrigal had purchased such a car and the car was at a house on Alldays Street. On the Tuesday morning following the murder, Toledo police took Corbett to look at the vehicle at the Alldays address, and Corbett identified it as the car he saw in the KFC parking lot. The police obtained a search warrant and seized the car. After receiving leads that Cathcart had spent the night of the murder with Madrigal, officers then brought Cathcart in for questioning. Cathcart gave two extensive statements to the police, both impheating Madrigal in the robbery of the KFC and the murder of Fisher. In those statements, Cathcart said that he was the person in the car, while Madrigal went into the KFC and, by implication, committed Fisher’s murder. After Cathcart gave his statements, the police arrested him, issued an arrest warrant for Madrigal, and obtained a search warrant for the Alldays Street address. During the search of those premises, the police seized a pair of work boots, men’s maroon pants, and a blue hooded sweatshirt. Thursday morning, Boyd told police that Madrigal was in Cleveland. Evidently, Madrigal left Toledo in the early morning hours after the murder and went to the home of Rodney Pettiway (his half-brother) and Pettiway’s girlfriend. He stayed there until early the following week. Madrigal saw the Toledo Blade newspaper at Pettiway’s house and commented to Petti-way that “he wanted to get it.” After his arrest, Madrigal contacted Pettiway from the county jail and asked him if he had “ratted him out.” FBI agents and Cleveland police executed the arrest warrant on Madrigal while he was at the house of Tavio Burton. Police forcibly entered through the back door of the house. The law enforcement officials arrested Madrigal and took him into the kitchen area, where they searched him and advised him of his rights. Burton gave police a written consent to search the house. The police seized a cloth suitcase and duffel bag. They also found several pairs of brown “Dickie” pants, with the cuffs cut, in one bag. When police opened another bag, they found a nickel-plated revolver resting on top, and a bullet in the bag. The police returned Madrigal to Toledo. They photographed him when they “booked” him and the police put together a photo array including Madrigal and five other black males. The police took the photos to Corbett, Kerekes, and Tracy to see if they could make an identification. Both Corbett and Tracy picked Madrigal’s photograph out of the array. Kerekes did not pick out a photo, saying that he thought the quality of the photos was very poor. All three identified Madrigal in court. The identity of the killer was the principal issue at trial. When the police arrested Madrigal, he had a mustache and a goatee. These features also appeared on his Ohio Identification Card, found in his coat pocket. Madrigal obtained the Ohio Identification Card several months before his arrest. When law enforcement officials interviewed the witnesses to the offense, none of the witnesses to the killing described the suspect as having a mustache or any facial hair. During the investigation the police learned that both Madrigal and Cathcart had worked at the KFC that was robbed. They did not work at the KFC at the same time. Madrigal had worked the closing shift and knew the procedures for closing the store. Law enforcement officials did not identify fingerprints taken at the KFC as those of Madrigal. Also, the state’s firearm experts could not state with certainty that the gun seized during Madrigal’s arrest was the murder weapon. But they also could not exclude it as the murder weapon. At Madrigal’s trial, co-defendant Cath-cart asserted his Fifth Amendment right against self-incrimination and refused to testify. However, the trial court admitted his statements into evidence, over defense objection. The jury deliberated over eight hours before finding Madrigal guilty on all charges. The jury recommended that Madrigal be put to death, and the trial court adopted the jury’s recommendation. II. Procedural Background On May 13, 1996, the Lucas County grand jury indicted Madrigal, charging him with two counts: one count of aggravated murder with the death specification that the aggravated murder occurred during an aggravated robbery and one count of aggravated robbery. Each count of the indictment contained a firearm specification. On October 7, 1996, Madrigal’s trial began in the Lucas County Court of Common Pleas. The trial continued until October 22, 1996. On that date, the jury convicted Madrigal on all charges. After receiving the guilty verdicts, the trial court began the mitigation phase. On October 24, 1996, the jury recommended Madrigal be put to death. On November 25, 1996, the Lucas County Court of Common Pleas accepted the jury’s recommendation and sentenced Madrigal to death. On January 15, 1997, Madrigal appealed to the Ohio Supreme Court. On January 5, 2000, that court affirmed the conviction and sentence. See State v. Madrigal, 87 Ohio St.3d 378, 721 N.E.2d 52 (2000). Madrigal then moved the Ohio Supreme Court to reconsider its order. On February 16, 2000, the court denied the motion for reconsideration. Madrigal sought review by the U.S. Supreme Court through a petition for a writ of certiorari. On October 2, 2000, the Supreme Court denied Madrigal’s petition for certiorari. After exhausting direct appeal, on September 21, 1998, Madrigal filed a post-conviction relief petition pursuant to section 2953.21 of the Ohio Revised Code, in the Lucas County Court of Common Pleas. On June 15, 1999, the common pleas court denied all but one of Madrigal’s claims finding that “a hearing must be held on the evidence dehors the record in support of Ground Five.” Madrigal’s fifth ground for relief in the state post-conviction petition alleged ineffective assistance of counsel. On September 17, 1999, the trial court conducted an evidentiary hearing upon Madrigal’s claim that his trial counsel had been ineffective. On November 30, 1999, the trial court dismissed Madrigal’s entire petition including ground five. Madrigal appealed the trial court’s decision to the Ohio Sixth District Court of Appeals. On November 17, 2000, the Sixth District appellate court affirmed the common pleas court’s decision. On December 28, 2000, Madrigal appealed the denial of post-conviction relief to the Ohio Supreme Court and filed a memorandum in support of jurisdiction. On March 21, 2001, the Ohio Supreme Court dismissed Madrigal’s claim, finding that Madrigal’s appeal did not involve any substantial constitutional question. On March 19, 2002, Madrigal petitioned this Court seeking a writ of habeas corpus under 28 U.S.C. § 2254. The Court now considers Madrigal’s petition. III. Exhaustion and Procedural Default A. Exhaustion A habeas corpus petitioner must exhaust his state remedies before petitioning for a writ of habeas corpus. See 28 U.S.C. § 2254(b). To determine whether the petitioner has met the exhaustion requirement, the Court examines whether the petitioner “has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). As explained above, Madrigal has pursued all opportunities for relief at the state level, both on direct appeal and in post-conviction proceedings. Madrigal has exhausted all state remedies. B. Procedural Default Federal courts “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). As applied in the habeas context, this doctrine stops federal courts from reviewing claims that a state court has declined to address because of a petitioner’s noncompliance with a state procedural requirement. See Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). “In these cases, the state judgment rests on independent and adequate state procedural grounds.” Thompson, 501 U.S. at 730, 111 S.Ct. 2546. The Sixth Circuit uses a four-step analysis to determine whether a claim has been procedurally defaulted. See Maupin v. Smith, 785 F.2d 135 (6th Cir.1986). Under this test, the Court determines: (1) whether the petitioner failed to comply with an applicable state procedural rule; (2) whether the state courts actually enforced the state procedural sanction; (3) whether the state procedural bar is an “independent and adequate” state ground on which the state can foreclose federal review, and if the previous elements are met; (4) whether the petitioner has demonstrated “cause” and “prejudice.” See id. at 138-39. Bagley contends that Madrigal procedurally defaulted on six of his fifteen claims for relief. Specifically, she says that Madrigal procedurally defaulted in part on Claim 11, and in whole on Claims 2, 5, 9, 12, and 15. Bagley acknowledges that there is no procedural default bar to consideration of Claims 1,3-4, 6-8, 10, 13-14, and portions of Claim 11. The Court considers each of these arguments in turn. 1. Claims Never Presented to State Courts:' Claims 2 & 15 Madrigal’s second claim contends that the trial court violated his constitutional rights when it denied his request for a lesser included offense instruction. With Claim 15, Madrigal alleges that he is actually innocent of capital murder. Bagley says Madrigal never raised Claims 2 and 15 in state court. Instead, Bagley asserts that Madrigal raised these claims for the first time in his federal habeas corpus petition. Ordinarily, issues raised for the first time in a habeas corpus petition are remanded to the state court. However, Madrigal is barred from presenting these arguments in state court because he had the opportunity to raise them during his state court proceedings but faded to do so. See Riggins v. McMackin, 935 F.2d 790, 793 (6th Cir.1991) (“A state prisoner generally must first give the state courts a fair opportunity to remedy any constitutional infirmity in the conviction before seeking relief in a federal court.”); State v. Perry, 10 Ohio St.2d 175, 179, 226 N.E.2d 104, 107 (1967) (holding that Ohio courts cannot consider a constitutional issue in post-conviction proceedings when that issue already had been or could have been fully litigated before judgment of conviction or on direct appeal from that judgment). As a procedural matter, Ohio courts do not consider state or federal claims which were not timely asserted in State court proceedings. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). In Perry, the Ohio Supreme Court held that constitutional issues cannot be considered in post-conviction proceedings where the issues could have been fully litigated by the prisoner while represented by counsel, either before his judgment of conviction or on direct appeal from that judgment, and thus have been adjudicated against him. Id. at syl. para. 7. The Perry res judicata rule causes a procedural default when a defendant fails to raise an issue upon direct appeal. See Wainwright, 433 U.S. at 87, 97 S.Ct. 2497. Here, Madrigal concedes that he did not raise Claim 2 in the state court upon direct appeal. Further, Madrigal had counsel both during the trial and on direct appeal. David Klucas and John Thebes defended Madrigal during the trial. Klucas and Thebes are certified to try capital cases in Ohio. On direct appeal, Jeffrey Gamso and James VanDeilen represented Madrigal. Because Madrigal had the opportunity to raise these claims in state court, but failed to do so, Ohio law establishes a procedural bar to these claims, absent a showing of cause and prejudice. See Riggins, 935 F.2d at 793. a. Fundamental Miscarriage of Justice & Actual Innocence Madrigal admits that he did not raise Claim 2 in state court. Madrigal does not allege cause and prejudice exist to overcome the procedural default. Instead, he says that the claim is not barred by the principles of procedural default because he meets the fundamental miscarriage of justice standard. A finding of procedural default stops habeas corpus relief, unless the petitioner can show cause for the default and actual prejudice. Thompson, 501 U.S. at 749-50, 111 S.Ct. 2546. A petitioner can also overcome procedural default if he can show that a failure to review his claims on their merits would be a fundamental miscarriage of justice. See Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Coleman v. Mitchell, 244 F.3d 533, 540 (6th Cir.2001). To establish a fundamental miscarriage of justice based on actual innocence, “the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Further, the court must “assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial.” Schlup, 513 U.S. at 332, 115 S.Ct. 851. While Madrigal raises the issue that the Court’s failure to review his proeedurally defaulted claims would work a fundamental miscarriage of justice, Madrigal does not show evidence to make the required showing under Schlup. With respect to his claim that the trial court should have given a lesser included offense instruction, Madrigal offers no new evidence in support of his actual innocence claim. Instead, he argues that failing to instruct the jury on the lesser included offense “has probably resulted in the conviction of one who is actually innocent” of the crime charged. ‘Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim.” Schlup, 513 U.S. at 316, 115 S.Ct. 851. “To be credible, such a claim [an actual innocence claim] requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.” Id. at 324, 115 S.Ct. 851. An actual innocence claim “must be based on ‘new reliable evidence.’ ” Simpson v. Jones, 238 F.3d 399, 407 (6th Cir.2000) (quoting Schlup, 513 U.S. at 324, 115 S.Ct. 851). Therefore, because Madrigal fails to offer new evidence in support of his actual innocence claim as it relates to Claim 2, the claim fails. Even if Madrigal had not procedurally defaulted Claim 2, the claim fails on the merits. The imposition of the death penalty is unconstitutional where a “jury [is] not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict.” Beck v. Alabama, 447 U.S. 625, 627, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). However, an instruction on a lesser included offense is required only where the evidence presented at trial reasonably supports both an acquittal on the crime charged and a conviction on the lesser included offense. Schmuck v. United States, 489 U.S. 705, 716 n. 8, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). A court need not give an instruction every time “some evidence” is presented on a lesser included or inferior degree offense. State v. Shane, 63 Ohio St.3d 630, 632-33, 590 N.E.2d 272 (1992). Involuntary manslaughter, Ohio Rev. Code Ann. § 2903.04, is a lesser included offense of aggravated murder with prior calculation and design, Ohio Rev.Code Ann. § 2903.01(A), aggravated felony murder, Ohio Rev.Code Ann. § 2903.01(B), and murder, Ohio Rev.Code Ann. § 2903.02. State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286, syl. ¶ 1 (1988). As a lesser offense of these forms of murder, involuntary manslaughter is distinguished by the mental state involved in the act. See Thomas, 40 Ohio St.3d at 216, 533 N.E.2d 286. “It is manifestly obvious that these two [mental] states are mutually exclusive and that in any given lolling the offender may be possessed of only one.” Id. (citing State v. Johnson, 6 Ohio St.3d 420, 453 N.E.2d 595 (1983)). Unlike murder, the offense of involuntary manslaughter does not require a showing of purpose or prior calculation and design. Id. at 216-17, 533 N.E.2d at 289-90. Here, the trial court did not err in failing to give the jury an involuntary manslaughter instruction. No sufficient evidence suggests that the shooting of Fisher was accidental or unplanned. Eric Armstrong testified that the robber shot Fisher point-blank in the head after she could not open the safe. Tr. Vol. VI (Trial), at 1175. This type of shooting reflects prior calculation and design. See State v. Goodwin, 84 Ohio St.3d 331, 344-45, 703 N.E.2d 1251, 1263 (1999) (holding that shooting in the head at point-blank range showed that the defendant killed the victim purposely despite defendant’s claim that the “gun just went off”). Further support for the purposefulness of the murder comes from Armstrong’s testimony that as the robber shot Fisher, he proclaimed, “Now you’re playing, bitch.” Tr. Vol. VI (Trial), at 1174r-75. At trial the parties disputed the identity of the shooter, not whether the shooter purposefully killed Fisher. “[A]n instruction on the lesser included offense of involuntary manslaughter will be given in a murder trial only when, on the evidence presented, the jury could reasonably find against the state on the element of purposefulness and still find for the state on the defendant’s act of killing another.” Thomas, 40 Ohio St.3d at 216, 633 N.E.2d at 289. Accordingly, the trial evidence did not warrant an instruction on involuntary manslaughter even if Madrigal had not defaulted the claim. As to claim 15, Madrigal makes a freestanding actual innocence claim. Such claims are not cognizable. Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (“[A] claim of ‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.”); Appleman v. Turner, 52 F.3d 324 (6th Cir.1995) (“petitioner’s claim of actual innocence does not entitle him to habeas corpus relief absent an independent constitutional violation in the criminal proceeding”). The Herrera court further stated, in dicta, that an actual innocence claim might be cognizable “if there were no state avenue open to process such a claim.” Id. at 417, 113 S.Ct. 853. The Supreme Court noted, however, that even if such a claim were cognizable, “the threshold showing for such an assumed right would necessarily be extraordinarily high.” Id. Madrigal does not make such a showing. Even if the claim was cognizable, Madrigal offers no new evidence to support this claim. Instead, he rehashes his argument that “had the jury in this case been provided with defense counsel’s requested instruction allowing for conviction of a lesser included offense, Petitioner may well not have been convicted of capital murder” when “Petitioner is innocent of capital murder.” Therefore, Madrigal’s freestanding actual innocence claim also fails. 2. Res Judicata Next, Respondent Bagley argues that Claims 9, 11, and 12 are procedurally barred because the state court applied the doctrine of res judicata to dismiss the claims. In Claim 9, Madrigal asserts that his trial counsel denied him effective assistance when he failed to file a motion for a change of venue. With his eleventh claim, Madrigal complains that his trial counsel’s ineffective performance deprived him of adequate mitigation. Claim 12 alleges prosecutorial misconduct. Under Ohio law, an issue that is not raised by a petitioner on direct appeal is subsequently barred based on the doctrine of res judicata. See, e.g., State v. Combs, 100 Ohio App.3d 90, 97, 652 N.E.2d 205, 209 (Ohio Ct.App.1994) (holding that res judicata stops post-conviction relief for claims that could have been raised on direct appeal); Perry, 10 Ohio St.2d at 175-76, 226 N.E.2d at 105-06 (syl.). Courts consider such issues waived for federal habeas purposes. See Norris v. Schotten, 146 F.3d 314, 332 (6th Cir.1998) (quoting Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994)). But “where a state appellate court did not rely on the procedural default, but reached the merits of a claim, the [procedural] bar is inapplicable.” Meeks v. Bergen, 749 F.2d 322, 325 (6th Cir.1984). The Court examines each claim below to determine if the procedural bar applies, a. Claim 9—Failure to Move for Change of Venue With his ninth claim, Madrigal asserts that his trial counsel denied him effective assistance when he failed to file a motion for a change of venue. Madrigal first raised this claim in his post-conviction relief motion. The trial court reviewing the post-conviction petition found the res judicata doctrine barred the claim because Madrigal brought the claim for the first time in his post-conviction proceedings although he could have raised it on direct appeal. Alternatively, the trial court concluded that the claim failed on the merits. The state appellate court affirmed the judgment of the Lucas County Common Pleas Court. The Ohio Supreme Court declined to exercise jurisdiction over Madrigal’s subsequent appeal. Respondent Bagley contends that the Ohio trial and appellate court’s application of the state procedural bar stops the Court from considering this claim in federal ha-beas. Responding, Madrigal says that the trial court reached the merits of the claim instead of relying upon the res judicata doctrine. He further says that, even if the trial court did apply a procedural bar to the claim, the state appellate court did not enforce the procedural bar because the appellate court addressed the merits of the claim. Therefore, he claims that the state does not meet the second prong of the Maupin test. Madrigal is partially correct. The Lucas County Common Pleas Court did deny Madrigal’s claim on the basis of res judica-ta. It said “Original appellate counsel has [sic] the opportunity to raise this matter on appeal. Even if the claims were not barred by res judicata, they would fail.” In accordance with its alternative holding, it then discussed the voir dire proceedings and concluded that “insufficient evidence of prejudice exists on the claim that Madrigal’s attorneys should have requested a change of venue.” State v. Madrigal, No. CR96-5761, *15 (Ct. Common Pleas, Lucas Co. June 15, 1999). The trial court’s alternative holding on the merits does not stop the application of the procedural bar. The trial court clearly stated that its merits examination was an alternative holding. Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (noting that a federal court need not reach the merits of a habeas petition where the last state-court opinion clearly and expressly rested upon procedural default as an alternative ground). However, the Ohio appellate court, the last state court rendering a judgment, did not clearly and expressly apply the res judicata doctrine to the claim. In his appeal to the state appellate court of the denial of his post-conviction petition, Madrigal made two separate claims. First, he challenged the trial court’s dismissal of his petition without an evidentia-ry hearing. With this claim, Plaintiff Madrigal says he presented sufficient facts to require a hearing. He also objected to the trial court’s finding that res judicata stopped his claims. Specifically, he framed the issues as follows: Did the trial court err in dismissing a post-conviction Petition where it was supported by sufficient operative facts to merit an evidentiary hearing and discovery? Did the trial court err in applying the doctrine of res judicata to claims in a post-conviction Petition that were supported by evidence dehors the record? App. to Return of Writ, Vol. VIII, (Post-conviction), Ex. 28 at 242. In Ohio, courts may dismiss a post-conviction relief petition without an evidentia-ry hearing in two instances. First, courts may dismiss such a petition without an evidentiary hearing where the res judicata doctrine stops the claims. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104. “To overcome the res judicata bar, the evidence offered dehors the record must demonstrate that the petitioner could not have appealed the constitutional claim based upon information in the original [trial] record.” State v. Lawson, 103 Ohio App.3d 307, 659 N.E.2d 362, 367 (Ohio Ct.App.1995) (citation omitted). Therefore, in analyzing whether a trial court properly applied the res judica-ta doctrine, reviewing courts look to see if the petitioner’s evidence is new evidence that was unavailable in the original decision. More generally, even when the doctrine of res judicata does not apply, Ohio Rev. Code Ann. § 2958.21(C) allows courts to dismiss a petition without an evidentiary hearing if no substantive grounds for relief exist. In pertinent part, Ohio Rev.Code Ann. § 2953.21(C) states: Before granting a hearing on a petition filed under division (A) of this section, the court shall determine whether there are substantive grounds for relief In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court’s journal entries, the journalized records of the clerk of the court, and the court reporter’s transcript. The court reporter’s transcript, if ordered and certified by the court, shall be taxed as court costs. If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. Ohio Rev.Code Ann. § 2953.21(C) (emphasis added). In contrast to the res judicata review, section 2953.21(C) requires the state appellate court to determine if the trial court erred in determining that substantive grounds for relief did not exist. Here, the appellate court’s, discussion resolving Madrigal’s ninth claim blurs the res judicata and substantive merits analyses. On the one hand, the state court of appeals acknowledges that Madrigal challenges the post-conviction relief court’s application of the res judicata doctrine: Appellant next argues that he received ineffective assistance of trial counsel because his attorneys did not ask for a change of venue after conducting voir dire. He says every juror had knowledge of the case prior to trial because of their exposure to media coverage. He argues that the trial court erred when it ruled that res judicata applied became he could have raised the issue on direct appeal. He says that he could not litigate this issue on direct appeal because his argument relies on evidence outside the record. He points to the evidence outside the record that he did file. The evidence includes an affidavit from his stepfather who averred that he heard a radio disc jockey from 92.5 FM say “burn the nigger” when commenting on appellant’s trial and copies of all the articles that appeared in the Toledo Blade relating to the robbery and murder, the description of the suspect sought by the police and appellant’s arrest and indictment. He says that he could not get a fair and impartial jury because of the extensive media coverage and that his trial was prejudiced because his trial attorneys did not seek a change of venue. App. to Return of Writ, Vol. VIII, (Post-conviction), Ex. 31 at 488. But then the appellate court reviewing the post-conviction court’s decision appears to reach the merits of the claim. Specifically, the appellate court examines both the voir dire evidence in the record and the evidence dehors the record, concluding that this evidence did not show that pretrial publicity had prejudiced Madrigal from getting a fair trial: While the evidence dehors the record offered by appellant in this case certainly does provide more detail regarding the content of the media coverage of: 1) the crime; 2) the search for a suspect; and 3) appellant’s arrest and arraignment than the trial record showed, it does not, as appellant asserts, show that he was prejudiced from having a fair trial. While some jurors indicated that they did have some memory of reports about a robbery and murder at a Kentucky Fried Chicken restaurant, all of the jurors selected indicated that they could set aside all that they learned through media coverage and could base their verdict solely on the evidence heard at trial. Accordingly, the trial court did not err when it ruled that the evidence dehors the record was not sufficient to warrant an evidentiary hearing on the question of whether the appellant received ineffective assistance of counsel when his attorneys did not seek a change of venue due to pretrial publicity- App. to Return of Writ, Vol. VIII, (Post-conviction), Ex. 31 at 489-90 (emphasis added). As discussed, the standard for res judi-cata is whether, on direct appeal, the petitioner could have raised the issue with evidence available at the time of the direct appeal. The appellate court’s language does not directly address that standard. Instead, the appellate court’s language suggests that it gave substantive consideration to the claim. The appellate court’s treatment of Madrigal’s other claims supports a finding that the appellate court gave substantive, not solely procedural, consideration of the change of venue claim. In rejecting Madrigal’s ineffective assistance claim relating to his trial counsel’s failure to object to a misleading jury instruction during the mitigation hearing, the appellate court clearly applies the res judicata standard: Both of the exhibits referred to by appellant as essential proof outside the record present intellectual arguments that could have been argued on direct appeal. Therefore, the exhibits were not substantial evidence that triggered an obligation on the part of the trial court to hold an evidentiary hearing on this claim. App. to Return of Writ, Vol. VIII., (Post-conviction), Ex. 31 at 492. The appellate court then goes on to say that its merits holding is alternative, “in any event, appellant’s claim for ineffective assistance of counsel on that basis [the substantive merits] fails.” App. to Return of Writ, Vol. VIII., (Post-conviction), Ex. 31 at 493. Regarding Madrigal’s ineffective assistance claim relating to the failure to move for a change of venue, the reliance upon the procedural default is not apparent. Finally, besides confusing the res judica-ta and substantive merit analyses, the appellate court makes no plain statement that it is resting its decision on the procedural bar. Harris extended the “plain statement” rule of Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), to federal habeas corpus review. Harris, 489 U.S. at 263, 109 S.Ct. 1038. Under Harris, “a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar.” Id. (citing Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (quotation omitted) (emphasis added)). The state court inferred that its holding was based on the procedural bar by mentioning Madrigal’s res judicata argument. Nonetheless, the appellate court avoids explicit reliance on a state procedural bar. Further, the state appellate court appears to reject the federal ineffective assistance claim on the merits. And in doing so, it appears to have interwoven federal law with state law. “[T]he Harris presumption is to be applied only after it has been determined that ‘the relevant state court decision ... fairly appear[s] to rest primarily on federal law or is interwoven with [federal] law.’ ” Ylst v. Nunnemaker, 501 U.S. 797, 802, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (quoting Coleman, 111 S.Ct. at 2559). As a result, the reference to res judicata is insufficient to show the court intended to principally rely upon res judi-cata in dismissing the claim. See Long, 463 U.S. at 1040-1041, 103 S.Ct. 3469. In sum, the appellate court’s decision is ambiguous as to whether it rested its decision on the procedural bar. It made no plain statement that the procedural bar caused its decision. Since the state appellate court did not “clearly and expressly” state that its judgment rested on the state procedural bar and since its analysis involves both state and federal law, Madrigal’s claim 9 is ripe for federal habeas review. b. Claim 11 — Ineffective Assistance of Counsel at Mitigation Madrigal’s eleventh claim asserts that he had inadequate representation at the mitigation stage. He argues that his two defense attorneys should have requested more time to investigate his background; presented more witnesses during mitigation; prepared the witnesses better; hired different expert witnesses; and let him decide the dispute his counsel had over presentation of mitigation witnesses. Respondent Bagley responds that portions of this claim cannot be raised in a federal habeas proceeding because they were procedurally defaulted when the Ohio appellate court applied the res judicata procedural bar. Specifically, she says that Madrigal’s ineffective assistance of counsel claims regarding the failure to request a continuance, failure to object to prosecuto-rial misconduct during the mitigation phase, and deficient performance during the mitigation phase are procedurally barred. As to other arguments in claim 11, Bagley concedes that the remaining arguments are not procedurally barred. Madrigal argues that the claim was not procedurally defaulted because, while the state court discussed res judicata in connection with several of his other sub-claims, both the trial court and the state court of appeals addressed the merits of Madrigal’s eleventh claim. Madrigal is partially correct. While the trial court applied the res judicata doctrine to stop Madrigal’s claims, see State v. Madrigal, No. CR96-5761, *12 (“Even if the claims were not barred by res judicata, they would fail.”), the appellate court made no “plain statement” that its decision rested on the state procedural bar. First, in addressing Madrigal’s claim that his attorney rendered deficient performance during the mitigation hearing, the appellate court made no mention of the trial court’s use of the res judicata doctrine to stop this claim. In contrast, the appellate court expressly mentions the res judi-cata doctrine in connection with other of Madrigal’s claims. Instead, the court of appeals addressed the substantive merits of the ineffective assistance claim, stating: Appellant also argues that the trial court erred when it ruled he was not entitled to an evidentiary hearing on his claims of ineffective assistance of counsel relating to the mitigation hearing portion of his trial_Appellant says that he presented sufficient evidence outside of the record to show that relevant information about his background was not discovered or presented at trial. He argues that the jury was given such an incomplete picture of his childhood, it could not reasonably decide if the mitigating evidence outweighed the aggravating circumstances of the crime. He says his trial counsel fell below an objective standard of reasonable representation because they did not completely investigate his background and did not adequately prepare the witnesses they did call on his behalf during the mitigation hearing. He says his case was prejudiced, since his trial attorneys had the chance to do the most good for him during the mitigation phase of the trial. App. to Return of Writ, Vol. VIII, (Post-conviction), Ex. 31 at 482-83 (emphasis added). After reciting the federal ineffective assistance of counsel standard, the appellate court discussed Madrigal’s evidence outside the trial court record and the trial court’s treatment of it: The trial court ruled that the additional information offered by appellant’s relatives through affidavits was merely cumulative to the testimony that the jury heard during the mitigation portion of appellant’s trial. The court also said that the additional information about appellant’s dismal upbringing was of questionable mitigating value. The trial court concluded that there was no substantial evidence to show either that the representation provided by appellant’s trial counsel fell below an objective standard of reasonable representation or that appellant was prejudiced by the representation. The trial court therefore dismissed the claim without granting appellant an evidentiary hearing on the issue. App. to Return of Writ, Vol. VIII, (Post-conviction), Ex. 31 at 484 (emphasis added). Finally, the appellate court concluded: Our own careful review of the record and of the affidavits presented by appellant in support of his petition for post-conviction relief has led us to the same conclusions reached by the trial court. While the trial transcript does show that appellant’s stepparents were not as forthcoming as they might have been concerning the details of the difficulties appellant faced while growing up, the jury was provided with information that showed appellant’s upbringing was less than ideal_ like the trial court, we conclude that the evidence outside the record is only cumulative of the evidence that was presented to the jury, and that appellant was not prejudiced by his trial counsel’s failure to present the further evidence since it still would not have outweighed the aggravating circumstances of the crime.... Therefore, appellant’s arguments that he received ineffective assistance of counsel relating to the mitigation hearing portion of his trial are not well-taken. App. to Return of Writ, Vol. VIII., (Post-conviction), Ex. 31 at 487 (Emphasis added). Nowhere in this discussion does the court mention res judicata or the standards that the reviewing courts apply to a trial court’s application of the res judicata doctrine. Therefore, since the last state court to render a judgment did not clearly and expressly apply the res judicata doctrine, Madrigal did not procedurally default the portions of claim 11 relating to his attorneys’ failure: 1) to request more time to investigate his background; 2) to present more witnesses during mitigation; 3) to adequately prepare the witnesses; 4) to hire a competent expert witness; and 5) to let him decide a dispute they had over presentation of mitigation witnesses. However, Madrigal did procedurally default a portion of claim 11 because he did not raise it in state courts. Specifically, he did not raise his claim that his attorney rendered ineffective assistance when he incongruously argued residual doubt as a mitigating factor while also expressing an unqualified acceptance of the jury’s guilty verdict. Under Ohio’s post-conviction statute, issues raised for the first time in post-conviction are procedurally defaulted on habeas corpus. Engle v. Isaac, 456 U.S. 107, 125 n. 28, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). c. Claim 12 — Prosecutorial Misconduct For his twelfth claim, Madrigal argues that the prosecutor violated his constitutional rights by improperly arguing a non-statutory aggravating factor of future dangerousness to the jury at mitigation. During the state post-conviction relief action, the trial court applied the res judicata rule to the claim. Alternatively, the court determined that the claim failed on the merits. The state appellate court affirmed the judgment of the Lucas County Common Pleas Court. The Ohio Supreme Court declined to exercise jurisdiction over Madrigal’s subsequent appeal. Respondent Bagley contends that the Court cannot consider this claim in a federal habeas action because Madrigal could have raised it on direct appeal. By failing to raise this issue on direct appeal, Bagley claims Madrigal procedurally defaulted the claim. Responding to this argument, Madrigal claims that the procedural bar does not apply because the appellate court’s denial of the claim was based on its merits. Stated otherwise, Madrigal says the res judicata rule does not apply because the appellate court that reviewed the denial of post-conviction relief did not rely upon this argument. During the post-conviction relief action, the trial court expressly applied the res judicata doctrine to Madrigal’s claim, concluding that Madrigal “failed to demonstrate that most of his claims could not have been fully addressed on appeal based on the original record and therefore res judicata applies.” State v. Madrigal, No. CR96-5761, *11. Besides its finding that res judicata applied to the claim, the Lucas County Common Pleas Court alternatively found that the claim failed on the merits. Specifically, the court addressed the comments made by the prosecutor in her closing argument. In its review, the trial court determined that “the Supreme Court of Ohio specifically allowed such comments to be made in closing argument” and “prosecutors are entitled to latitude as to what the evidence has shown and what inferences can reasonably be drawn from the evidence.” Id. When the state court reaches the merits of a claim, an alternative holding based on a procedural bar prevents federal courts from hearing the claim in a habeas corpus action, “as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision.” Reed, 489 U.S. at 265 n. 10, 109 S.Ct. 1038. However, under the Harris rule, procedural default does not apply “unless the last state court rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar.” Id. at 263, 109 S.Ct. 1038. In this case, the last state court rendering a judgment was the appellate court. The state court of appeals reached the merits of Madrigal’s claim that the prosecutor engaged in misconduct instead of clearly applying the state procedural bar. Specifically, the appellate court stated: Likewise, appellant’s argument that the prosecutor engaged in prejudicial misconduct is unpersuasive. The record shows that appellant presented testimony that he adjusted well to prison life and argued that should be considered a mitigating factor. In closing argument, the prosecutor argued that appellant’s adjustment to prison life was entitled to little weight in the view of the fact that he would still, at some point, be entitled to be released from prison if he did not receive the death penalty, and argued that he would still be dangerous because of his personality disorder. The Supreme Court of Ohio has said on at least two occasions that prosecutorial remarks regarding the future dangerousness of a criminal are permissible in a rebuttal closing argument, [citations omitted]. The future dangerousness of appellant was not presented as an aggravating factor to consider in the jury instructions. The trial court did not err when it ruled that appellant was not entitled to an evidentiary hearing on this claim. App. to Return of Writ, Vol. VIII., (Post-conviction), Ex. 31 at 493-94 (Emphasis added). Further, the appellate court referenced the federal prosecutorial misconduct standard when it considered the prosecutor’s discussion of future dangerousness. See Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Therefore, the appellate court’s analysis is interwoven with federal law. Because the appellate court, the last court to make a reasoned decision, did not clearly and expressly rest its decision on the res judicata doctrine, Madrigal’s twelfth claim is not procedurally barred. 3. Plain Error Review As his fifth claim, Madrigal asserts the trial court’s instruction on weighing aggravating and mitigating circumstances was unconstitutional. Therefore, he says his trial counsel rendered ineffective assistance of counsel when he failed to object to the weighing instructions. In the post-conviction action, the trial court dismissed this claim based on the res judicata doctrine. The appellate court affirmed the dismissal based on the procedural bar. The Ohio Supreme Court conducted a plain error review and affirmed the lower state courts’ decisions. Respondent Bagley argues that Madrigal’s fifth claim is procedurally defaulted because the Ohio Supreme Court rested its decision on a procedural bar though it also conducted a plain error review. Madrigal says that his trial counsel’s ineffectiveness in failing to object to the improper instruction constitutes cause to excuse the procedural default. Plain error review by a state appellate court does not open a claim to consideration on federal habeas when the state court otherwise finds the claim procedurally barred. Paprocki v. Foltz, 869 F.2d 281, 284-5 (6th Cir.1989). An ineffective trial counsel may be cause sufficient to excuse a procedural default, but the petitioner must show both cause and prejudice to excuse the default. See Thompson, 501 U.S. at 750-51, 111 S.Ct. 2546. The two part Strickland analysis governs Sixth Amendment claims of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under this standard, to succeed on an ineffective assistance of counsel claim, a petitioner must show: First, ... that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The trial court instructed the jury: [I]f the aggravating circumstances outweigh the mitigating factors, your sentence should be death. If the mitigating factors outweigh the aggravating circumstances, then your verdict may be life with parole eligibility after a term of twenty or thirty full years has been served. If the mitigating factors outweigh the aggravating circumstances, then your verdict shall be life with parole eligibility after a term of either 20 or 30 full years has been served. Tr. Vol. XIII, (Mitigation & Sentencing) at 247-48 (Emphasis added). The instructions are not a correct statement of Ohio law. Ohio’s death penalty statute does not require mitigating factors to outweigh aggravating circumstances before a jury may impose a life sentence. Instead, Ohio Revised Code section 2929.03(D)(2) provides that a jury shall impose a life sentence absent a finding that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt. Assuming that Madrigal’s attorney was deficient in failing to object to the weighing instruction, Madrigal does not show prejudice. The erroneous instruction in Madrigal’s case was harmless in light of numerous other correct instructions. This included at least four correct statements of the law in the jury charge. Notably, the trial court instructed the jury that “If you do not unanimously find that the aggravating circumstances outweigh the mitigating factors, you shall unanimously recommend ... a life sentence.” Tr. Vol. XIII, (Mitigation & Sentencing) at 247-248. This instruction tells the jury their verdict should be for the defendant if they find that the aggravating and mitigating circumstances are in equipoise. Additionally, the jury verdict forms correctly stated the weighing procedure. Furthermore, the jury only deliberated for two hours before returning with a sentence, and at no time during their deliberations did they reflect that were having difficulty reaching a decision. After reviewing the instructions as a whole, the Court concludes that Madrigal’s attorney’s failure to object to the improper instruction did not deprive Madrigal of a fair trial whose result is reliable. Accordingly, Madrigal does not establish prejudice sufficient to excuse the procedural default of his fifth claim. In sum, the Court finds that Madrigal procedurally defaulted several of his claims. He does not establish cause and prejudice to excuse the default. He also fails to meet the miscarriage of justice standard. Therefore, the Court does not consider Claims 2, 5, and 15, and portions of Claim 11 on federal habeas review. Upon review of the record, the Court finds that Madrigal properly preserved for federal habeas review Claims 1, 3-4, 6-10, portions of claim 11, and Claims 12-14. Accordingly, the Court turns to the merits of these claims. IV. Standard and Analysis A. Antiterrorism and Effective Death Penalty Act of 1996 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) prohibits a federal court reviewing a state court adjudication from granting a habeas petition unless the state court adjudication “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.” 28 U.S.C.A. § 2254(d)(1). Specifically, the AEDPA states: (d) 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; 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 proceeding. 28 U.S.C. § 2254(d). All of Madrigal’s claims include mixed questions of law and fact for which 28 U.S.C. § 2254(d)(1) provides the applicable standard of review. Further, for several of his claims, Petitioner Madrigal does not seek review of the state court’s description of the applicable legal principles, but instead, that court’s application of those principles to the facts of his case. Therefore, the Court considers those claims under § 2254(d)(l)’s “unreasonable application” clause. The U.S. Supreme Court interpreted § 2254(d)(1) in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). “In determining whether a decision is contrary to or involved an unreasonable application of clearly established federal law,” federal courts may only look to the “holdings, as opposed to the dicta, of the Supreme Court’s decisions as of the time of the relevant state-court decision.” Bulls v. Jones, 274 F.3d 329, 333 (6th Cir.2001) (citing Williams, 529 U.S. at 412, 120 S.Ct. 1495 (2000)) (internal punctuation omitted). A state court decision is “contrary to” clearly established federal law “if the state court applies a rule that contradicts the governing law set forth in Supreme Court cases,” or “if the state court confronts a set of facts that are materially indistinguishable from a [Supreme Court] decision ... and nevertheless arrives at a result different from [Supreme Court] precedent.” Id. (quoting Williams, 529 U.S. at 405-06, 120 S.Ct. 1495). A decision is an “unreasonable application” of clearly established federal law “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 prison