Full opinion text
ORDER CARR, District Judge. This is a capital habeas corpus case in which the petitioner, convicted of the aggravated murder of two employees of a company in Warren, Ohio, where he had formerly been employed, the attempted aggravated murder of a third employee, and related crimes, claims that his conviction and capital sentence were prejudicially tainted by several errors of constitutional dimension. For the reasons that follow, I conclude that the petition is without merit. It will, accordingly, be denied. Background The Ohio Supreme Court accurately summarized the facts of the crimes leading to the petitioner’s convictions: On the morning of June 27, 1991, defendant-appellant Roderick Davie entered his former place of employment, Veterinary Companies of America (“VCA”), in Warren and murdered John Ira Coleman and Tracey Jefferys, and attempted to murder William John Everett. Davie worked at VCA, a distributor of pet and veterinarian supplies in Warren, for almost a year until he was fired in April 1991. While employed at VCA, Davie got along well with fellow employees Tracey Jefferys and John Everett, and socialized with them outside the workplace. After Davie’s termination from VCA, Coleman was hired as a truck driver. Approximately one week before the murders, Davie and Everett ran into each other at a cafe and had a friendly conversation. On June 27, Everett arrived to work at VCA at approximately 6:50 a.m. Jef-ferys, who as VCA secretary normally arrived at 9:00 a.m., got in at 6:55 a.m. to open the building. Coleman got to work at approximately 7:20 a.m., and the three went about their normal workday routine. As Everett was loading his truck for deliveries, Davie appeared at the VCA warehouse around 7:30 a.m. and spoke briefly with him. Everett knew that Davie wasn’t permitted there and brushed Davie off while continuing to load his truck. When Everett finished, he turned around, but Davie was not there. Everett proceeded into the lunch room to pick up Ms supplies and invoices. Suddenly, Davie came up behind Everett with Tracey, who was crying and shaking. Davie had a black revolver in his right hand and ordered Everett and Tracey to get in the warehouse area of the YCA building. Upon entering the warehouse, Davie yelled at Coleman, who was still loading his truck, to come over. Davie then ordered the three to he face down on the warehouse floor. As they were lying down, Davie said to them, “So, you all work for VCA, huh?” Everett then heard gunshots, and he saw the first shot hit the floor near his left arm. Then, Everett felt shots in the back of his head, shoulder, and left arm, but he remained conscious. Everett heard Tracey get up and thought she ran toward the dock area. Another shot was fired. Everett heard Davie call out to Tracey, “Come here, bitch,” and brought her back. Davie then said to Coleman, “So you ain’t dead yet, huh, brother?” Another shot was fired. Davie then took Everett’s wallet from his left rear pocket and said to Tracey, “You’re lucky, I’m out of bullets.” Everett heard Tracey run and open the lunch room door while Davie pursued her. At no time did Everett see any person at VCA other than Coleman, Jefferys, and Davie. For three to five minutes, Everett heard Tracey screaming loudly from the lunch room. Then her screaming stopped, and Everett remained lying on the warehouse floor, thinking over what to do next while hearing his blood drip down the floor drain to his right. Everett looked up and initially saw neither Tracey nor Davie. As he looked around, he saw Davie with his back to him, standing in the doorway of an office. Everett, though wounded, then made his way out of the building through the north dock door. At that time, Donna Smith was driving along Main Street on her way to work. She saw a bleeding white male, later identified as Everett, stumbling across the VCA parMng lot, and waving his hands trying to attract attention. Smith then saw a black male come out from the VCA dock area and run around the front of a parked truck. Smith stopped her car on the bridge near VCA to get out and attempt to aid Everett. Another woman driving by also stopped to help. However, before they could get to Everett, a truck came “flying out” of the VCA parking lot across both lanes of Main Street. Everett managed to get up and stumble across Main Street. He climbed over the bridge abutment and fell underneath it to get away from the truck, which was speeding towards him. The truck, however, crashed into the side of the bridge. The black male driving the truck got out, stared at Smith for about fifteen seconds, and then jumped over the side of the bridge. Smith and the other woman then went to summon help. Later that morning, Smith chose Davie’s photo out of an array and identified him as the man she saw in the truck. Everett testified that he jumped over the end of the bridge in order to avoid the truck. After the truck crashed into the bridge, Davie came at Everett with a stick and began hitting him on the head and trying to poke him in the eye. After a brief struggle, Davie apparently saw someone looking down from the bridge and fled. Police Officer Michael Albanese arrived on the scene and found the VCA truck up against the bridge abutment. He found Everett near death on the ground down from the bridge abutment. Albanese told Everett, who was weak and talking in a low voice, that he was going to take a dying declaration from him. Everett told him the name of his assailant, and Albanese reported the name of “Robert Davis” as the suspect over the police radio. A short time later, Albanese again asked Everett who his assailant was. Everett told Alba-nese that he knew his assailant, and Albanese then gave the name “Roderick Davie” out over the police radio. Everett informed Albanese that two more people had been shot and were in the VCA building. Police officers then found John Coleman and Tracey Jeffer-ys dead in the VCA building. A folding chair near Jefferys’s body bore Davie’s fingerprint in blood. Hairs on the chair proved to be microscopically consistent with Jefferys’s hair. Police found a revolver in the truck. Dr. Roberto E. Ruiz, Chief Deputy Coroner in Summit County and Deputy Coroner in Stark County, performed autopsies on Coleman and Jefferys. He testified that Coleman, shot four times, died almost immediately when he was shot in the head. Dr. Ruiz stated that Jefferys’s death was caused by lesions in the brain and skull fracture due to blunt force trauma. Dr. Ruiz opined that Jef-ferys’s injuries could have been caused by a folding chair. Dr. Ted Soboslay, Coroner of Trumbull County, concurred in Dr. Ruiz’s findings. At approximately 8:30 a.m. on the day of the murders, Carl Miller, chief bailiff at the Warren Municipal Court, received a phone call from Dwayne “Styx” Thomas, whom he had known for several years. Thomas told Miller that he was not involved in the murders, but that he had the perpetrator with him, whom he identified as Davie. Miller and Police Captain Timothy Downs went to the White Court address given by Thomas, arrested Davie, and advised him of his Miranda rights. Because of an active capias warrant on Thomas, police also took him with Davie to police headquarters. However, Thomas was not formally placed under arrest. At the police station, Lt. Carl Blevins and Det. Morris Hill twice advised Davie of his constitutional rights. The first time, Davie declined to sign a waiver of rights; the second time, he said that he did not want to make a statement. The questioning then ceased and Davie was taken to a cell. Around 2:00 p.m. that afternoon, Da-vie told Sgt. Mark Massucci that he wanted to talk to Det. Sgt. Gary Vingle. Davie was brought back to an interview room, and police again advised him of his Miranda rights. Davie told the detectives, “I just flipped out this morning. * * * I went down to VCA and shot ‘em up.” Davie admitted that he shot both Coleman and Everett and that he beat Jefferys with a chair. Davie further admitted that he tried to run Everett over with a truck and that he came back home in Jefferys’s car. Sgt. Massucci testified that he went with Thomas to the White Court residence where Davie lived with his girlfriend, Sonya Barnes. There, Thomas directed Massucci to a wooded area behind the homes on White Court, where they found a plastic bag containing Da-vie’s clothes. Davie had told Thomas that he had thrown the bag of clothing there. In the bag were bloodstained clothes, cartridge casings, and Jefferys’s checkbook, which was in the back pocket of the blue jeans found in the bag. The blood stains on Davie’s shirt were consistent with Jefferys’s blood. The casings had been fired from the gun found in the truck. Later in the day, detectives went to Barnes’s home, where they were given permission to search the premises without a warrant. When they walked in, they saw Jefferys’s black change purse on the kitchen table and Everett’s wallet on top of the refrigerator. Barnes said that the change purse was not hers, and she did not know to whom it belonged. State v. Davie, 80 Ohio St.3d 311, 311-14, 686 N.E.2d 245 (1997). The indictment returned by the Trumbull County, Ohio, grand jury charged the petitioner with two counts of aggravated murder, two counts of aggravated murder in the commission of a burglary, one count of attempted aggravated murder with a firearm specification, three counts of kidnaping, and two counts of aggravated robbery. The aggravated murder counts included death specifications for felony murder in the commission of aggravated burglary, kidnaping, and aggravated robbery. The trial jury convicted the petitioner of all charges and imposed the death penalty. On direct appeal, counsel asserted twenty-nine assignments of error. The Ohio Court of Appeals affirmed the petitioner’s conviction and sentence. On direct review by the Ohio Supreme Court, the petitioner’s conviction and sentence were affirmed. In his first petition for post-conviction relief, the petitioner asserted six claims. The trial court dismissed the petition. A single assignment of error was raised on appeal from that decision, which the Court of Appeals affirmed. The Ohio Supreme Court declined to review the appellate court’s decision. The petitioner thereafter filed his initial habeas corpus petition in this court. Leave was granted to seek successive state post-conviction relief with regard to potentially unexhausted claims in that habeas petition. The trial court dismissed that petition on the basis of procedural default. The Court of Appeals affirmed. Next, the petitioner filed a petition in the Ohio Court of Appeals under State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992). Though that court denied the petition on the grounds of untimeliness, it also conducted a merits review of petitioner’s twenty-four claims, finding all to be without merit. The Ohio Supreme Court found no merit in the four claims asserted on appeal from the Court of Appeals decision. State v. Davie, 96 Ohio St.3d 133, 772 N.E.2d 119 (2002). Following his unsuccessful effort to obtain reversal of his conviction and sentence through the foregoing state court challenges, the petitioner filed his third amended habeas corpus petition. The respondent has filed an amended return of writ, the petitioner has filed a traverse, the respondent has filed a surreply, and the case is decisional. The petitioner asserts fifty-four claims for relief. Many are inter-related, and, as the respondent’s amended return of writ suggests, all are best viewed from the standpoint of the phase of the pretrial or trial proceedings to which individual claims relate. I adopt, accordingly, the respondent’s organizational structure and realignment of the sequence of the claims. As reconfigured by the respondent, the claims fall into fourteen categories: I. Grand Jury Composition and Selection II. Defective Indictment III. Petit Jury Composition and Selection IV. Brady Claim V. Admission of Evidence — Trial Phase VI. IATC [Ineffective Assistance of Trial Counsel] Trial Phase VII. Prosecutorial Misconduct — Trial Phase VIII. Jury Instruction — Trial Phase IX. Tainted Jury X. Admission of Evidence — Mitigation Phase XI. IATC Mitigation Phase XII. Prosecutorial Misconduct — Mitigation Phase XIII. Jury Instructions — -Mitigation Phase XIV. Remaining Claims Categories To the extent that the petition suggests that the evidence was insufficient to sustain petitioner’s conviction, his suggestion has no merit. One of the victims, John Everett survived being shot, pursued, and beaten. Everett identified the petitioner as his assailant, and as the individual who shot and killed one of the other victims, and pursued, beat, and killed the other victim. The petitioner has not, and cannot plausibly challenge the accuracy of Everett’s identification of him and testimony about his crimes. That identification and testimony are, moreover, more than amply supported by physical evidence found at the scene and at and near petitioner’s residence. Of the welter of claims presented by the petitioner, only the following have not been foreclosed by procedural defaults: First Claim: petitioner’s confession; Second Claim: petitioner’s confession; Third Claim: suggestive photo array; Sixth Claim (Subparts A-E): indictment defects; Eighth Claim: use of voter rolls re. venire; Twelfth Claim: pre-death victim photos; Fourteenth Claim: state’s impeachment of its witness Sonya Barnes; Seventeenth Claim (Subpart C): ineffective assistance of counsel re. failure to obtain grand jury testimony; Nineteenth Claim: reasonable doubt instruction; Twenty-Eighth Claim: post-verdict modification of verdict form; Thirty-Eighth Claim: penalty phase instruction — death verdict recommendation; Forty-Sixth Claim: merger of capital specifications; Forty-Eighth Claim: tainting of jury by judge’s comments. Some of the remaining claims were not preserved in the trial court; others were not raised on direct appeal to the Ohio Supreme Court, though some were raised in the Court of Appeals. Whenever later raised, such claims were consistently held to be barred as a result of procedural default. The respondent’s amended return of writ lists the defaulted claims in detail. (Doc. 111, at 69-71). The petitioner does not contest the respondent’s contention that his state court attorneys did not assert most of the claims as to which default is asserted in a timely manner. Instead, he asserts, as cause for the default, ineffective assistance of trial and/or appellate counsel. However, as pointed out by the respondent, with the single exception of petitioner’s seventeenth claim, asserting ineffective assistance for failure to obtain grand jury transcripts, all of petitioner’s assertions of ineffective assistance of counsel are themselves foreclosed by procedural default. See Stewart v. Smith, 536 U.S. 856, 860, 122 S.Ct. 2578, 153 L.Ed.2d 762 (2002). To overcome this default, the petitioner must show its cause, and, as well, resulting prejudice. This he has not undertaken to do: instead, he simply seeks to slide around the barrier to consideration of his defaulted claims on their merits by asserting in a conclusory manner that the failure to assert timely objection at trial, or assignments of error on appeal, constitute, without more, sufficient cause. The default bar cannot, however, be side-stepped so easily. Although the Supreme Court held in Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), that ineffective assistance of counsel can constitute cause to excuse a default, the Court did not say that conclusory assertion of some unspecified inadequacy of a constitutional kind meets the cause requirement. See Lott v. Coyle, 261 F.3d 594, 608 (6th Cir.2001) (citing Strickland v. Washington, 466 U.S. 668, 687, 691—92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)) (standard is whether counsel’s error [ie., default] was so egregious as to render his assistance below that guaranteed by the Sixth Amendment). To some extent, the petitioner seems to argue that any claim considered on the merits by a state court, despite the state court’s noting of an antecedent default, can be considered on its merits in this court. Such claim laundering cannot occur, however, where the state court also found the claim to have been defaulted. Where an underlying default constitutes an adequate and independent basis for denial of a claim, concurrent merits review simply hammers in a second nail; it does not pry the default lid open. See, e.g., Harris v. Reed, 489 U.S. 255, 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (procedural default rule is based on longstanding “adequate and independent state ground” doctrine, whereby a federal law issue will not be considered on its merits if the state court ruled on a state-law ground that is both “independent” of the federal claim’s merits and an “adequate basis for the court’s decision”). Petitioner does not claim that the various findings of default on direct appeal and during the course of his two post-conviction proceedings fail to constitute independent and adequate state-law grounds, even where merits review has occurred. Thus, the respondent’s claim of default as to all but the above-enumerated claims is well taken, and the defaulted claims will be dismissed on that basis. Nonetheless, in addition to examining petitioner’s non-defaulted claims on their merits, I will likewise examine defaulted claims, to the extent that they have any plausible or arguable basis whatsoever, on their merits. With regard to claims reviewed on their merits, § 2254(d)(1) of the habeas corpus statute, 28 U.S.C. § 2254(d)(1), defines two categories of cases in which a state prisoner may obtain federal habeas relief with respect to a claim adjudicated on the merits in state court: namely, where the state-court decision either (1) was “contrary to... clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of. ..clearly established Federal law, as determined by the Supreme Court of the United States.” Absent that showing, relief from a state court’s decision is not available in this court. None of the state court decisions on the merits of any of petitioner’s claims — whether reviewed solely on their merits, or reviewed despite prior default. I. Grand Jury Composition and Selection — Claims 4, 5 The petitioner, who is African-American, claims that minorities were under-represented on the grand jury (Claim Four) that returned the indictment against him and in the appointment as forepersons to grand juries in Trumbull County (Claim Five). Petitioner sought and was denied leave to conduct discovery with regard to these claims during the course of proceedings in this court. Petitioner first asserted these claims in his second post-conviction relief petition, which was dismissed on the basis of procedural default, i.e., untimeliness. That ruling was correct, and petitioner has not shown cause for the default. Indeed, petitioner’s only argument in support of these claims is his contention that this court improperly precluded his request for discovery. Petitioner is left to speculate about the reasons for disproportionate under-representation of minorities on the grand jury that returned the indictment against him because he failed to file a timely motion to dismiss prior to his trial. He has not shown that any such under-representation resulted from a race-based failure to follow Ohio’s statutes and rules regarding the summoning and selection of grand jurors, systemic exclusion of minority grand jurors, or other constitutionally cognizable flaws. The same is equally true with regard to his challenge to the appointment of a Caucasian foreperson. The petitioner is not entitled to relief on his Fourth and Fifth Claims. II. Defective Indictment — Claim Six, Subparts (A)-(E) The petitioner claims that the prosecutor impermissibly divided single offenses into multiple charges, thereby enhancing the likelihood of conviction and imposition of the death penalty. Instead of being charged separately with two counts of aggravated murder as to each of the two victims, attempted aggravated murder as to the third victim, separate counts of aggravated burglary and robbery, and separate death specifications, petitioner claims that the temporal proximity of these offenses could constitutionally result only in a single charge (presumably, a single count of aggravated murder). Review of this claim is not foreclosed by procedural default. There is, however, no merit to petitioner’s contentions, which are not supported by citation to any federal constitutional principles or case law. Such case law, in any event, makes clear that there was nothing constitutionally defective in the manner in which the petitioner was charged: When a defendant has violated two separate criminal statutes, the protection against double jeopardy [i.e., being subject to multiple convictions for a single offense] is implicated when both statutes prohibit the same offense or when one offense is a lesser included offense of the other. In making this assessment, the touchstone is whether the legislature intended to authorize separate punishments for the offensive conduct under separate statutes. The fact that both offenses arise out of a single criminal transaction is not dispositive. The critical question is “whether the ‘offense’ — in the legal sense, as defined by [the legislature] — complained of in one count is the same as that charged in- another.” Aparicio v. Artuz, 269 F.3d 78, 96 (2d Cir.2001) (citations omitted). In this case, the Ohio courts concluded that the General Assembly intended to impose multiple punishments for the petitioner’s offenses. This is a factual finding that is binding on this court. Bach offense is distinct, with its own elements, and charging each separately is not foreclosed on the basis that any one is a lesser included offense of another. The petitioner’s contention that a violation of state law resulted from the trial court’s failure to merge the offenses is not cognizable in this federal habeas corpus proceeding. See, e.g., Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir.1994). Petitioner is not entitled to relief on Claim 6, Subparts (A)-(E) III. Petit Jury Composition and Selection Claims 8, 9, 10(A)-(E), 15, 17(B), 33(C) 50, 51 A. Selection of Petit Jury Venire — Claim 8 As noted by the respondent, petitioner’s eighth claim, challenging the selection and composition of the trial jury, has not been defaulted. That claim contends that the Sixth Amendment right to a jury selected without regard to race was violated because the 131-person venire (of the 150 electors summoned on the basis of voter registration rolls) did not include any African-Americans. Had the venire mirrored the demographics of Trumbull County, nine members of the venire would have been African-American. To prevail on his claim of constitutional impropriety in the selection of his petit jury venire, petitioner must show that any under-representation resulted from systematic exclusion of African-Americans in the jury-selection process. See generally Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Not having made a showing of mis- or malfeasance in the procedures used to summon the venire in his case, petitioner’s claim founders on the bedrock principle that, absent corruption of the process in the particular case, voter lists are a constitutionally permissible basis for summoning a jury venire. See, e.g., United States v. Guy, 924 F.2d 702, 707 (7th Cir.1991) (“voter lists are not an improper source from which to draw a pool of jurors” and “the federal courts that have addressed the constitutionality of voter registration lists unanimously agree that a state may constitutionally draw its jurors from voter lists.”). Accord, e.g., Truesdale v. Moore, 142 F.3d 749, 755-56 (4th Cir.1998) (use of voter registration lists for selection of juror pools passes constitutional muster). The petitioner claims that the trial judge berated a prospective juror who expressed concern about the absence of African-Americans from the venire. This claim was raised on direct appeal and is exhausted. It is, however, without merit. Petitioner has not shown that the judge’s response to the juror’s inquiry exceeded constitutional bounds, or violated settled constitutional doctrine. Though brusque, the judge’s statement that the juror should not concern himself about the propriety of the process by which jurors were summoned, and observation that the petitioner had capable counsel (i.e., who could protect petitioner’s rights against violation), were constitutionally permissible. The judge’s ensuing colloquy with that juror about his having breached an instruction not to discuss the case when the judge learned that the juror had spoken with a reporter about his concerns, and, as well, suggesting that the juror may have committed a contempt of court, were not improper. Obedience to a court’s instructions is a fundamental obligation; those who disregard instructions can properly be warmed of the consequences. Thus, with regard to petitioner’s eighth claim, there has been no showing, as required by § 2254(d)(1) that the state court’s rulings either (1) were “contrary to... clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.” Even if this incident violated the petitioner’s constitutional rights, petitioner has not shown that it affected the outcome of his trial. Petitioner is not entitled to relief on his Eighth Claim. B. Limitations of Scope of Voir Dire — Claim 9 Petitioner’s Ninth Claim challenges the constitutional propriety of limitations imposed by the trial court on the scope of voir dire. The state Court of Appeals held that this claim was procedurally defaulted due to petitioner’s failure to have objected to the limitations. Petitioner has not shown cause for or prejudice from his default, and the Ninth Claim is subject to overruling on that basis alone. Turning, nonetheless to the merits, the scope of voir dire, from a constitutional standpoint, is limited to determining if prospective jurors have any bias, opinion or prejudice that would affect fair determination of the trial issues. See, e.g., Neely v. Newton, 149 F.3d 1074, 1083-84 (10th Cir.1998) (quoting Mu’Min v. Virginia, 500 U.S. 415, 422, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991)) (pre-AEDPA). To be constitutionally compelled, it is not enough that certain questions might be helpful; rather, the trial court’s failure to ask these questions must render the defendant’s trial unfair. Rosales-Lopez v. United States, 451 U.S. 182, 189, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981) (plurality); Mayes v. Gibson, 210 F.3d 1284, 1292 (10th Cir. 2000) (citing Mu’Min v. Virginia, 500 U.S. 415, 425-26, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991)) (“In a petition for habeas, our inquiry into the conduct of voir dire is limited to whether the trial court’s restriction on voir dire rendered the trial fundamentally unfair.”). Petitioner complains that the trial judge barred questions to the venire about religious preferences, the teachings of their religions, whether they were liberal or conservative, their views on the criminal justice system and capital punishment, and their opinion about particular mitigating factors. In addition, the petitioner complains that the trial judge interrupted his attorneys’ voir dire, while not doing likewise during the prosecutor’s voir dire. These restrictions and actions during voir dire did not deprive the petitioner of a fundamentally fair trial. The petitioner is not entitled to relief on his Ninth Claim. C. Excused Jurors — Claim 10(C) Petitioner’s Claim 10(C) is that the trial court impermissibly excused prospective jurors on the basis of their views about the death penalty. This claim was procedurally defaulted, and is subject to dismissal on that basis alone. In this court the petitioner has failed, aside from unexplicated citations to the record, to explain, much less show persuasively that the trial court excused any jurors simply because they equivocated on the question of capital punishment. Equivocation is not the same as inability to impose a death sentence. See generally Witherspoon v. Illinois, 391 U.S. 510, 521, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) (“a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction”). Petitioner is not entitled to relief on Claim 10(C) D.Prosecutor’s Use of Peremptory Challenges — Claim 10(D) Petitioner’s Claim 10(D) asserts that the prosecutor improperly exercised peremptory challenges to exclude jurors expressing reservations about the death penalty. Even if this claim were not procedurally defaulted, petitioner is not entitled to relief. Absent a purpose to exclude minority jurors, a prosecutor can use peremptory challenges for whatever reason he may desire, or for no reason at all. See, e.g., Gosier v. Welborn, 175 F.3d 504, 509 (7th Cir.1999) (upholding prosecutor’s use of peremptory challenges to remove “persons who seemed to be queasy about capital punishment”). Petitioner is not entitled to relief on Claim 10(D). E.Inaccurate Statements of Law/Refusal to Exclude Jurors — Claims 10(A), (B), (E) The other aspects of Claim 10— that the trial judge made inaccurate misstatements of law during voir dire (Claim 10(A)), the prosecutor did likewise (Claim 10(B)), and the trial court improperly refused to excuse jurors who could not fully and fairly consider evidence in mitigation (Claim 10(E)) — have all been proeedurally defaulted. Even if they had not been, the petitioner has failed to show that he is entitled to relief. His claims are stated in a conclusory and cursory manner. They are unaccompanied by either description or discussion of the evidentiary record, case citation, or legal analysis. Even in a capital case, where a court’s obligation to guard against error and prejudice is at its highest, it is incumbent on a petitioner to assist it in fulfilling that obligation by reciting the record, rather than merely citing to various pages of the transcript, and citing and discussing any pertinent authorities. Nonetheless, on review of the record to which the petitioner points, I find no error, much less error contravening established federal constitutional precedent and doctrine. These remaining portions of petitioner’s Claim 10 are without merit. F.Ineffective Assistance of Counsel During Voir Dire—Claims 17(B), (D), 33 Claim 17(B) and (D) and 33 assert that the defects in the voir dire process manifest ineffective assistance of counsel. There having been no constitutional deficiency during voir dire, counsel cannot be found to have performed inadequately during that phase of the trial. Thus, even if petitioner could overcome the default bar as to this claim, he could not prevail. With specific reference to Claim 17(B): petitioner asserts that his lawyers provided ineffective assistance of counsel during voir dire because they did not address sentencing phase issues, did not ask about mitigating factors that would be offered on the petitioner’s behalf, and failed to determine whether prospective jurors would automatically return a death verdict. These claims are barred by default. Even so, in reviewing claims challenging the trial court’s limitations on voir dire, a federal court on habeas review is “limited, of course, to such limitations that rise to the level of a constitutional violation.” Herman v. Johnson, 98 F.3d 171, 174 (5th Cir.1996). As the Supreme Court pointed out in Mu’Min v. Virginia, 500 U.S. 415, 424, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991), “the trial court retains great latitude in deciding what questions should be asked on voir dire.” With specific regard to a habeas challenge to the adequacy of counsel during voir dire, the Sixth Circuit has stated that “Counsel’s actions during voir dire are presumed to be matters of trial strategy. ‘A strategic decision cannot be the basis for a claim of ineffective assistance unless counsel’s decision is shown to be so ill-chosen that it permeates the entire trial with obvious unfairness.’ ” Miller v. Francis, 269 F.3d 609, 616-16 (6th Cir.2001) (citations omitted). Petitioner has not called this court’s attention to any cases in which the deficiencies which he lays at his trial counsel’s door have been found to violate fundamental fairness. He is not entitled to relief on Claims 17(B), (D), and 33. G. Lack of Expert Assistance During Voir Dire—Claim 15, 17(A) Claim Fifteen asserts that the petitioner’s conviction and death sentence are constitutionally infirm because he did not have the assistance of a social psychologist to assist counsel during voir dire to evaluate the responses of the prospective jurors. Claim 17(A), in part, faults counsel for failing to obtain the services of a jury consultant. Claim Fifty and Fifty-One each assert, in part, that appellate counsel rendered constitutionally deficient service during petitioner’s direct appeal to the Court of Appeals and Ohio Supreme Court, respectively, when he failed to assign as error the failure of trial counsel to procure the services of such consultant. These claims are all procedurally defaulted, and the petitioner has not shown cause for the defaults. In any event, the petitioner cites no cases to support his claims, probably because the duty to provide expert assistance or to seek to have such assistance provided does not reach nearly as far as petitioner claims. And, in any event, the failure to provide any and every form of such assistance that counsel might find helpful (or the failure to have sought such assistance) is not, without more, constitutionally unacceptable. To be sure, in the context of psychiatric assistance, the Supreme Court held in Ake v. Oklahoma, 470 U.S. 68, 74, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), that such assistance may be “a basic tool of an adequate defense in two general circumstances: (1) Vhen a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial,’ and (2) ‘in the context of a capital sentencing proceeding, when the State presents psychiatric evidence of the defendant’s future dangerousness.’ ” The duty to provide (and to seek) such assistance arises when such assistance is part of the “raw materials integral to the building of an effective defense” and to give an indigent defendant to an adequate opportunity to present his claims fairly within the adversary system. Mason v. Mitchell, 320 F.3d 604, 614 (6th Cir.2003). Petitioner has not asserted, much less shown that such is an established component of federal constitutional law, that a jury consultant was a sine qua non of an effective voir dire. Claims 15 and 17(A) are without merit, as are the claims of ineffective assistance of counsel based on those claims. IV. Brady Claim—Claim 7 Petitioner’s Seventh Claim is that the prosecutor failed to disclose evidence favorable to the defense and material to the issue of guilt or innocence, in violation of the doctrine of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). According to the petitioner, the following putatively exculpatory and material items were known to, but not disclosed by, the prosecutor: 1. An eyewitness who saw the assailant drive the truck into the bridge, but who was not disclosed to the defense; 2. Details about a vehicle that may have been in the parking lot at the time of the murders were not disclosed; 3. Two of three eyewitnesses to the events near the bridge whose identities were disclosed gave somewhat conflicting descriptions of the assailant; 4. The prosecutor had extended an undisclosed benefit to Dwayne “Styx” Thomas; and 5. Other information bearing on Thomas’ credibility was known to but not disclosed by the prosecutor. Petitioner has never presented the specifics of this claim in any other proceeding in any court; it is, accordingly, defaulted, even though a generalized Brady contention was made in petitioner’s second post-conviction relief petition and his Muma-han application in the Ohio Court of Appeals. Nonetheless, on the merits, I conclude that there was no Brady violation with regard to several of the enumerated items because there was no concealment of anything about them. No one knows the name of the third eyewitness, much less what he might take away from (or, more likely, add to) the State’s case. There was a passing allusion to a goldfish colored car during petitioner’s interrogation at the police station shortly after his arrest — and then nothing more. That a car might be in a parking lot or otherwise in the vicinity of the crime scene is, to be sure, plausible. That it might have belonged to someone who saw something but who left is, though, less plausible. That the owner/driver/occupant would have seen something useful to the petitioner is implausible. Most importantly, it is entirely impossible that whatever such individual might have said that was useful to the petitioner would have affected the outcome of the trial. Petitioner’s counsel was fully aware of the differing descriptions, and cross-examined the witnesses accordingly. Dwayne “Styx” Thomas admitted he hoped he would get a helpful letter from the prosecutor in exchange for his testimony. There was, accordingly, no secret deal that was concealed from the petitioner and his attorneys. Thomas likewise was cross-examined extensively about his life in the drug world and his otherwise unattractive and unsavory background and character. To the extent that, as the respondent anticipated in the amended return of writ, petitioner seeks, as he did at trial, to suggest that Thomas is the real assailant, such claim is unsupported by anything in the record. At most, the petitioner has submitted a set of questions about Styx’s credibility in light of inconsistencies that he claims mar the reliability of his testimony. Despite the lack of any substance to petitioner’s Brady contentions, I ordered the respondent to submit the entire law enforcement and prosecutorial files for in camera review. On the basis of that review, I am satisfied that none of the petitioner’s suspicions about hidden exculpatory evidence has any merit. In a word, what the State had, it presented at trial. Even if there had been something exculpatory, there can be no question that it would not have been material. The state’s case rested on two extremely firm foundations: the account of John Everett, the petitioner’s third victim, who saw what happened to his two co-workers, and barely escaped the same fate himself, and an extensive array of physical evidence found either on the petitioner, in his proximity, where or near where he lived, or left behind by him at the crime scene. The rest — the testimony of the passers by who saw the petitioner drive the company truck into the bridge and chase Everett, Styx, and the petitioner’s girlfriend — was decoration. Even if all that had been impugned or impeached, there is, in light of the other, irrefutable evidence, no reasonable likelihood of any different outcome. There is no merit to petitioner’s Brady claim. V. Admission of Evidence/Trial Phase — Claims 1-3, 11-14, 16 Petitioner claims that decisions relating to the admission of evidence at his trial unconstitutionally tainted his conviction. He is entitled to prevail on none of these challenges. A. Post-Arrest Statements— Claims 1 and 2 The petitioner claims that the State unconstitutionally extracted statements following his arrest, and then used those statements, over his objection, to convict him in violation of his Fifth, Sixth, Eighth, and Ninth Amendments. These claims have been preserved for habeas review. The Ohio Supreme Court detailed the events leading to the petitioner’s statements: Davie contends that all the statements elicited from him by the police violated his right against self-incrimination. However, when Davie was arrested at his residence by Capt. Downs shortly after the murders, he was advised of his Miranda rights. At approximately 9:05 that morning, at the police station, Capt. Downs asked Lt. Carl Blevins to talk with Davie, who was in an interrogation room. Lt. Blevins was joined by Det. Hill, who read Davie his Miranda lights. Davie initialed the rights form, but refused to sign the waiver. The officers did not question Davie further, but conducted an atomic absorption test on his hands. At no time did Davie request an attorney or indicate that he did not want to talk. At approximately 9:59 a.m., Downs and Blevins reentered the interrogation room and interviewed Davie after again advising him of his Miranda rights. Da-vie denied that he had refused to sign the waiver form, but had simply been told by the officers that he did not have to. Davie then informed the officers that he did not wish to make a statement, and the interview ceased. Later that morning, the prosecutor advised Sines that so long as Davie did not refuse to speak and did not demand an attorney, the officers could talk to him, provided that Davie acknowledged that he understood his rights. Therefore, Sines and Vingle had Davie brought up from his jail cell after Davie agreed to come up and talk. At approximately 12:15 p.m., Davie was readvised of his Miranda rights and initialed each of his rights on the form, except the waiver of rights. He then signed the form, acknowledging that he understood his rights. Davie agreed to talk with the officers, and a short interview took place wherein Davie claimed that he did not remember being around the VCA that morning, but did have his gun with him. At 12:35 p.m., Davie indicated that he had nothing more to say, and the interview ceased. At approximately 2:00 that afternoon, Davie told Sgt. Massucci, who had been taking pictures of Davie, that he wished to talk to Det. Vingle. Davie was brought up from his cell and was again advised of his Miranda rights by Sines and Vingle. Davie again initialed all the rights, except the waiver, but signed his name on the form. Davie then told the officers that he “went down to VCA and shot ‘em up.” Davie also admitted taking Jefferys’s car and trying to run over Everett with the truck. Contrary to Davie’s arguments, he did not unequivocally assert his constitutional rights. Instead, he waived his right to remain silent during both interviews with Vingle and Sines, despite his failure to initial the waiver-of-rights portion of the form. This situation is similar to that in State v. Scott (1980), 61 Ohio St.2d 155, 15 O.O.3d 182, 400 N.E.2d 375, which followed the decision in North Carolina v. Butler (1979), 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286. In Butler, the Supreme Court noted that “in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.” Id. at 373, 99 S.Ct. at 1757, 60 L.Ed.2d at 292. In Scott, the accused acknowledged that he understood his Miranda rights, but refused to sign a waiver form. Nevertheless, he agreed to answer questions and never requested counsel. The Scott court upheld the admissibility of the accused’s statements and held, “[T]he question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in Miranda * * Scott at paragraph one of the syllabus. The similar facts of this case demonstrate that Davie * * * waived his Miranda rights even though he failed to initial the waiver part of the form. When Davie indicated in his interview with Blevins and Hill that he no longer wished to talk, his requests were scrupulously honored by the officers. However, in cutting off the earlier interviews, Davie did not preclude a later interrogation by other officers. See Michigan v. Mosley (1975), 423 U.S. 96, 104, 96 S.Ct. 321, 326-327, 46 L.Ed.2d 313, 322. Moreover, Davie never asserted his right to have counsel present. Finally, it is clear that Davie’s 2:00 p.m. conversation with police, in which he implicated himself in the murders, was properly admitted, since he initiated that conversation himself. See Edwards v. Arizona (1981), 451 U.S. 477, 485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378, 387. 80 Ohio St.3d at 311, 319-20, 686 N.E.2d 245. The Ohio courts overruled the petitioner’s objections to the admission of his statements. The factual findings of those courts, as recited by the Ohio Supreme Court, are presumed correct, and have not been challenged by the petitioner. 28 U.S.C. § 2254(e)(1) (fact findings by state courts are presumed to be correct; burden is on the petitioner to overcome that presumption); see generally Sumner v. Mata, 449 U.S. 539, 549-51, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). The police made four efforts to interrogate the petitioner. Two were unsuccessful, one was partially unsuccessful and partially successful, and the last was successful. The first effort occurred shortly after the petitioner’s arrival at the station house following his arrest. After being advised of his Miranda rights, the petitioner declined to sign the waiver form. The officers, having other things to tend to, left the petitioner without having obtained a statement. Within the hour, they returned. The petitioner stated he did not want to make a statement, though he did not ask to speak with an attorney. The officers, who left, still had obtained no information. About two hours later, other officers approached the petitioner. In the meantime, the prosecutor had advised the police that they could renew their approach to the petitioner, as long as he neither refused to speak with them nor asked for an attorney. The petitioner declined again to initial the waiver of rights portion of the printed Miranda form. The petitioner told the officers that he did not remember being around the VCA that morning, though he did have his gun with him. After about twenty minutes, the petitioner told the officers he had nothing more to say, and the officers left. About an hour and a half later, around 2:00 p.m., the petitioner sent word that he wanted to see one of the officers who had spoken with him earlier. He wanted to talk about the information being released to the media about himself and his girlfriend, and, as well, about the information provided to the police by Dwayne “Styx” Thomas. The officers responding to this request renewed the Miranda warnings, and the petitioner signed the portions of the form indicating that he understood his rights. He again declined to initial the waiver portion. He then told the officers that he had gone to the VCA and “shot them up.” At trial, the petitioner testified that he had asked to speak with the officers because Dwayne “Styx” Thomas had threatened his girlfriend and petitioner’s daughter. This, according to petitioner’s trial testimony, impelled his statement acknowledging his role in the crimes later charged to him. The Ohio Supreme Court held that petitioner’s invocation of his right to remain silent during the first two attempts to question him had been “scrupulously honored” in accordance with the mandate of Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). The Ohio Supreme Court also concluded that the statement obtained at the last interview was admissible under Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), because the petitioner had initiated the conversation leading to the statement. Petitioner’s traverse appears to view this court’s review of the admissibility of petitioner’s statements as de novo. It is not: as a result of the amendments to 28 U.S.C. § 2254 et seq. by the Anti-Terrorism and Effective Death Penalty Act, federal review of state court judgments is strictly circumscribed. To obtain relief, the petitioner must, under 28 U.S.C. § 2254(d)(1), show that the decision of the state courts “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “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.” The determinative question with regard to petitioner’s first two claims is whether the Ohio Supreme Court applied Mosley and Edwards in a way that was either “contrary to, or an unreasonable application of clearly established Federal law.” It did not. Under Mosley a court considers several factors when assessing whether officers scrupulously honored a suspect’s invocation of his right to remain silent. 423 U.S. at 96, 96 S.Ct. 321. The first factor in the is whether the suspect was advised before the initial interrogation that he had the right to remain silent. Here, the warnings were given each time the officers spoke with the petitioner. The second factor is whether questioning stopped immediately once the petitioner asserted his right to remain silent. It did: each of the first two sessions ended when the petitioner said he did not want to make a statement, and the third session ended when the petitioner said he had nothing more to say. The third factor is whether the police waited a significant period of time after the petitioner’s invocation of his right to remain silent before questioning him again. A significant period of time between interrogations does not require a durational minimum. Compare United States v. Cody, 114 F.3d 772, 775-76 (8th Cir.1997) (three hours was significant amount of time) with United States v. Barone, 968 F.2d 1378, 1385 (1st Cir.1992) (more than twenty-four hours was insufficient where police repeatedly pressured suspect to cooperate). The interval in Mosley, as it was in this case, was about two hours. 423 U.S. at 104-06, 96 S.Ct. 321 A “significant period of time” under Mosley is a function of the degree to which the police “persisted] in repeated efforts to wear down [the suspect’s] resistance and make him change his mind.” 423 U.S. at 105-06, 96 S.Ct. 321. It was not an unreasonable application of Mosley for the Ohio Supreme Court to conclude that the officers had not undertaken to wear the petitioner down. The initial sessions were brief, and there is no indication that the officers attempted to badger the petitioner, or cajole him into talking with him. There were no “good cop/bad cop” antics. There was no delay or hesitation in the termination of the interviews after the petitioner said he did not want to talk to the officers. There is no indication the officers withheld anything from the petitioner that he might have requested, such as something to eat or drink. The fourth Mosley factor is whether the petitioner received fresh Miranda warnings before the interview leading to his statement. Renewed warnings preceded the afternoon session, during which the petitioner gave his incriminating statement. The final Mosley factor is whether the final interrogation concerned a crime that was the subject of the first interrogation, as it did here. Where other factors indicate that a defendant’s right to cut off questioning was “scrupulously honored,” the mere fact that an interrogation involves the same crime as earlier interrogations does not automatically require exclusion of the petitioner’s statement. See, e.g., Weeks v. Angelone, 176 F.3d 249, 268 (4th Cir.1999) (pertinent inquiry is not the subject of the later interview, but whether officers sought to undermine the suspect’s desire to remain silent); Hatley v. Lockhart, 990 F.2d 1070, 1074 (8th Cir.1993) (“[A] second interrogation is not rendered unconstitutional simply because it involves the same subject matter discussed during the first interview.”); United States v. Hsu, 852 F.2d 407, 410 (9th Cir.1988) (“an identity of subject matter in the first and second interrogations is not sufficient, in and of itself, to render the second interrogation unconstitutional”). It would not have been unreasonable for the Ohio Supreme Court to conclude that the only factor weighing in the petitioner’s favor under Mosley was the fact that all the sessions related to the same set of crimes. Thus, I conclude that that court’s application of Mosley was not an unreasonable application of federal law. Nor was it contrary to Supreme Court precedent. In any event, even if the Ohio Supreme Court’s application of Mosley were unreasonable or contrary to Supreme Court precedent, the petitioner was not prejudiced. The decision in Mosley applies only to the second and third interviews, as the fourth interview resulted from a request from the petitioner to speak with one of the officers. No statement was obtained during the second interview. The Mosley challenge is, accordingly, limited to the petitioner’s noontime statement that he did not remember being around the VCA that morning, though he did have his gun with him. Admission of this statement could not have affected the outcome of the petitioner’s trial. What could have been learned from that statement — that the petitioner had a gun with him that morning — was not new to either the officers or, ultimately, the jury. Thus, admission of the mid-day statement, even if improper, was harmless error beyond any doubt whatsoever. I likewise conclude that the Ohio Supreme Court’s determination that the afternoon statement was admissible under Edwards was neither unreasonable nor contrary to settled federal law. The petitioner claims that his “limited request for information” about what the police were telling the media about himself and his girlfriend and what information that Thomas had provided to the police did not “initiate” further discussion about his case. (Doc. 148 [Petitioner’s Traverse], at 13). The leading case on what constitutes “initiation” under Edwards is the Supreme Court’s 4-4 opinion in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983). In Bradshaw the defendant, after initially responding to an investigating officer’s questions at a station house following an accident, stated that he wanted an attorney. Questioning ceased. Later, as the defendant was being transported from the police station to the county jail, he asked, “Well, what is going to happen to me now?” The officer reminded the defendant that he did not have to talk with him, and that he didn’t want the defendant talking to him unless it was of his own free will. The defendant thereafter made incriminating admissions. Chief Justice Rehnquist, writing for the plurality, concluded that the defendant’s inquiry initiated further conversation about his case: There can be no doubt in this case that in asking, “Well, what is going to happen to me now?”, respondent “initiated” further conversation in the ordinary dictionary sense of that word. While we doubt that it would be desirable to build a superstructure of legal refinements around the word “initiate” in this context, there are undoubtedly situations where a bare inquiry by either a defendant or by a police officer should not be held to “initiate” any conversation or dialogue. There are some inquiries, such as a request for a drink of water or a request to use a telephone that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation. Such inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally “initiate” a conversation in the sense in which that word was used in Edwards. Although ambiguous, the respondent’s question in this case as to what was going to happen to him evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship. It could reasonably have been interpreted by the officer as relating generally to the investigation. That the police officer so understood it is apparent from the fact that he immediately reminded the accused that “you do not have to talk to me,” and only after the accused told him that he “understood” did they have a generalized conversation. Pet. 11. On these facts we believe that there was not a violation of the Edwards rule. Id. at 1045, 103 S.Ct. 2830. In United States v. Whaley, 13 F.3d 963, 967 (6th Cir.1994), the Sixth Circuit concluded that, in light of Bradshaw, “initiation occurs when, without influence by the authorities, the suspect shows a willingness and a desire to talk generally about his case.” It was not unreasonable — indeed, it was correct — for the Ohio Supreme Court to conclude that the petitioner had initiated further conversation about the case when he asked to speak to an officer about the information being given to the police and being obtained from Thomas. Such request manifests “a willingness and a desire to talk generally about his case” under Whaley. Petitioner has, therefore, failed to meet his burden of showing that the application of Edwards by the Ohio Supreme Court either (1) was “contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.” Not having met this burden as to either Mosley or Edwards, the petitioner is not entitled to relief on his first or second claims. B. Pre-Trial and Trial Identifications— Claim 3 Officers displayed two photo arrays. One was assembled about an hour after the murders after Everett, the survivor, had named the petitioner as his assailant. The other array was put together about a week later. Different photos of the petitioner were used in the arrays. The first array included a photo taken by the police about a year before the shooting. The second array included a photo taken after the petitioner’s arrest following the shooting. Witness Donna Smith viewed the first array the morning of the shooting. She selected the petitioner’s photo, and indicated that she was positive. About a week later, she again viewed the first array, and, as well, the second array. She selected the petitioner’s photo from both arrays. Petitioner claims that the arrays were suggestive because the persons depicted in the first array differed in age and facial hair and numbers written on the photos in the second array were in blue, whereas the number on petitioner’s photo was black. Petitioner has preserved this claim for ha-beas review. Due process is violated when an impermissibly suggestive pretrial identification procedure taints a later in-court identification with the risk of irreparable misidentification. E.g., Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Here there was no impermissibly suggestive out of court identification. The mere fact that one photo has different ink is immaterial. Depiction of the petitioner in both arrays is not impermissible where different photos are used. The variations in age and facial hair are not so great that the witness’s attention necessarily and unavoidably would have been focused on the petitioner’s photo. In any event, even if suggestiveness tainted the pretrial identifications, the risk of misidentification, much less irreparable misidentification, was nil. Ms. Smith saw the petitioner for about