Bonnell v. Mitchel (301 F. Supp. 2d 698, 2004)

MEMORANDUM OPINION AND ORDER

KATZ, District Judge.

This matter is before the Court on Melvin Bonnell’s Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus By A Person In State Custody (Docket # 12) (the “Petition”). Bonnell alleges twenty grounds for relief in his Petition.

Also before the Court are Respondent’s Return of Writ (Docket #31) (“ROW”), Bonnell’s Traverse To Respondent’s Return Of Writ and request for evidentiary hearing (Docket # 54) (“Traverse”) and Respondent’s Sur Reply and opposition to evidentiary hearing (Docket # 56).

For the reasons which follow, the Court denies the Petition.

I. INTRODUCTION

Appellant, Bonnell, appeals from his convictions and sentence of death for the aggravated murder of Robert Eugene Bunner.

II. FACTUAL BACKGROUND

The facts as stated by the Ohio Supreme Court are as follows:

Shirley Hatch, Edward Birmingham and Robert Eugene Bunner shared an apartment on Bridge Avenue in Cleveland, Ohio. On November 28, 1987, at approximately 3:00 a.m., Hatch heard someone knock at the kitchen door of the apartment. Hatch asked who was at the door and a voice replied, “Charles.” Bunner opened the door and appellant, Melvin Bonnell, entered the apartment and closed the door behind him. Appellant uttered an expletive directed at Bunner and then proceeded to fire two gunshots at Bunner at close range. Bunner fell to the floor and Hatch, who had witnessed the shooting, ran to a bedroom where Birmingham was sleeping. Hatch heard two more gunshots, awoke Birmingham to tell him that Bunner had been shot, and then fled from the apartment to call paramedics. Birmingham went to the kitchen.

Upon entering the kitchen, Birmingham observed appellant who was on top of Bunner “ * * * pounding him in the face.” Birmingham also observed bullet holes in Bunner’s body. Birmingham grabbed appellant and ejected him from the apartment.

At approximately 3:40 a.m., two Cleveland police officers were patrolling Bridge Avenue in a police cruiser when they observed a blue vehicle being driven backwards on Bridge Avenue with its headlights off. The officers attempted to stop the vehicle, and a high-speed chase ensued when the driver of the vehicle failed to stop. During the chase, the officers never lost sight of the vehicle except, perhaps, for a few seconds. The officers never saw anyone in the vehicle except the driver. No one exited the vehicle during the chase. The chase ended when the driver of the blue vehicle crashed into the side of a funeral chapel. The officers removed the driver from the vehicle and placed him on the ground. Both officers identified appellant as the driver of the vehicle.

Shortly after the accident, Cleveland police Officers Stansic and Kukula arrived at the crash site and saw a man lying on the ground with police officers standing over him. However, Officers Stansic and Kukula left the accident scene almost immediately thereafter in response to a radio call regarding the shooting at the Bridge Avenue apartment.

Upon arriving at the apartment, officers Stansic and Kukula interviewed Hatch and Birmingham who provided the officers with a description of Bunner’s assailant. The officers recognized the witnesses’ description as meeting the description of the man they had observed at the accident scene. The officers asked Birmingham to accompany them to the hospital where the man had been transported following the accident. At the hospital, Birmingham identified appellant as Bunner’s assailant.

Bunner died as a result of a gunshot wound to the chest. An autopsy revealed that Bunner was shot twice, once in the chest and once in the pubic region. Both bullets were recovered from the body.

Police officers retraced the chase scene and found a .25 caliber automatic pistol which was later identified as appellant’s. The weapon was test-fired and the test bullets were compared to the bullets found in Bunner’s body. The test bullets and the bullets retrieved from Bun-ner’s body had the same characteristics, and test casings matched spent bullet casings found at the murder scene. Appellant was tried before a jury for the aggravated murder of Robert Bunner and for the commission of an aggravated burglary. The jury found appellant guilty on one count of aggravated burglary, one count of aggravated (felony) murder, and one count of aggravated murder ... with prior calculation and design, causing Bunner’s death. In addition, appellant was found guilty of a death penalty specification in connection with each count of aggravated murder. For each count of aggravated murder, the trial judge, following the jury’s recommendation, imposed a sentence of death. The court of appeals affirmed the convictions and death penalty.

State v. Bonnell, 61 Ohio St.3d 179, 573 N.E.2d 1082 (1991).

III. PROCEDURAL HISTORY

After a trial, a Cuyahoga jury found Bonnell guilty of: one count of aggravated murder with a firearm specification; one count of felony murder, with firearm and aggravated burglary specifications; and one count of aggravated murder with firearm and aggravated burglary specifications, all counts arising from the shooting death of Bunner.

Following the sentencing phase of trial, the jury recommended, and the trial court imposed a death sentence for each of the aggravated murder counts.

A. Direct Appeal

Bonnell’s direct appeal of his conviction and sentence to the Ohio Court of Appeals raised the following grounds of error:

I. THIS APPELLATE COURT HAS ERRED TO THE PREJUDICE OF APPELLANT BONNELL BY LIMITING THE APPELLANT’S BRIEF TO EIGHTY-FIVE PAGES THEREBY DENYING APPELLANT DUE PROCESS, EQUAL PROTECTION AND EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 2, 10, AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

II. THE VERDICT IN APPELLANT’S CASE WAS ERRONEOUS BECAUSE IT WAS AGAINST THE WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL, THEREBY VIOLATING MR. BONNELL’S RIGHTS SECURED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.

III. THE TRIAL COURT ERRED BY DENYING BONNELL’S CRIMINAL RULE 29 MOTION FOR ACQUITTAL WHERE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION, THEREBY VIOLATING DEFENDANT’S CONSTITUTIONAL RIGHTS UNDER THE FOURTEENTH AMENDMENT AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.

IV. THE VERDICT IN APPELLANT’S CASE AS TO THE FINDING OF GUILT FOR THE AGGRAVATED BURGLARY WAS ERRONEOUS BECAUSE IT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL, THEREBY VIOLATING MR. BON-NELL’S RIGHTS SECURED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.

V. THE SUPPLEMENTAL JURY CHARGE GIVEN DURING THE PENALTY PHASE OF APPELLANT BONNELL’S TRIAL DEPRIVED BONNELL OF HIS CONSTITUTIONAL RIGHTS AS GUARANTEED BY THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, SECTIONS 5, 6, AND 16, ARTICLE I OF THE OHIO CONSTITUTION AND R.C. 2929.03.

VI. A JURY INSTRUCTION, GIVEN DURING THE PENALTY PHASE OF A CAPITAL TRIAL, STATING THAT JURORS “MUST NOT BE INFLUENCED BY ANY CONSIDERATION OF SYMPATHY * * VIOLATES THE EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 9 AND 10, ARTICLE I OF THE OHIO CONSTITUTION.

VII. THE TRIAL COURT ERRED TO THE PREJUDICE OF MELVIN BONNELL BY INSTRUCTING THE JURY AT THE CLOSE OF MITIGATION AS TO CERTAIN MATTERS. THE INSTRUCTIONS DESTROYED THE RELIABILITY OF THE SENTENCING PROCEDURE IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 2, 9, 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

VIII. THE TRIAL COURT ERRED TO THE PREJUDICE OF MELVIN BONNELL BY OFFERING COMMENTS AND INSTRUCTION TO THE JURY PRIOR TO THE START OF THE MITIGATING PHASE. THE COMMENTS AND INSTRUCTIONS OFFERED, DESTROYED THE RELIABILITY OF THE SENTENCING PROCEDURE IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 2, 9, 10, AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

IX. THE ARRAIGNMENT IN MR. BONNELL’S CASE WAS CONDUCTED WITHOUT COUNSEL AND IN VIOLATION OF OHIO CRIM.R. 10, THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.

X. THE TRIAL COURT’S AND THE PROSECUTOR’S REPEATED COMMENTS TO THE JURY THAT THE JURY’S VERDICT WAS JUST A RECOMMENDATION, COUPLED WITH A JURY INSTRUCTION THAT STATED THE SAME, DIMINISHED THE JURY’S RESPONSIBILITY FOR ITS DECISION AND MISLED THE JURY CONCERNING ITS KEY ROLE IN SENTENCING AND WAS IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 9 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

XI. THE STATE OF OHIO ERRED TO APPELLANT’S PREJUDICE WHEN IT FAILED TO PROVIDE THE DEFENSE WITH EXCULPATORY OR FAVORABLE EVIDENCE PRIOR TO TRIAL IN VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

XII. THE INEFFECTIVE ASSISTANCE OF COUNSEL WHICH APPELLANT RECEIVED THROUGHOUT HIS CAPITAL TRIAL RESULTED IN A DENIAL OF APPELLANT’S CONSTITUTIONAL RIGHT TO A FAIR TRIAL IN VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 5, 10, AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

XIII. THE TRIAL COURT FAILED TO COMPLY WITH RC. 2929.03 WHICH MANDATES WHAT THE TRIAL COURT MUST INCLUDE IN THE OPINION THAT IS FILED AFTER A DEFENDANT RECEIVES THE DEATH PENALTY. THIS FAILURE HAS DENIED APPELLANT HIS RIGHTS AS GUARANTEED BY THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 9 AND 10, ARTICLE I OF THE OHIO CONSTITUTION.

XIV. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BONNELL WHEN IT SENTENCED MR. BONNELL ON AN AGGRAVATED BURGLARY CONVICTION OUTSIDE THE PRESENCE OF APPELLANT AND HIS COUNSEL AND IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION AND CRIM.R. 43(A).

XV. THE COURT OF APPEALS FOR THE EIGHTH APPELLATE DISTRICT ERRED IN DENYING APPELLANT’S MOTION TO CORRECT THE RECORD, THEREBY DENYING APPELLANT A FULL REVIEW OF ALL ERRORS IN HIS CASE IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS AND SECTIONS 9, 10, AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

XVI. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS EYE WITNESS IDENTIFICATION TESTIMONY THAT WAS THE RESULT OF AN UNNECESSARILY SUGGESTIVE SHOW-UP. THE DENIAL OF APPELLANT’S MOTION TO SUPPRESS AND THE USE OF THIS TESTIMONY DURING TRIAL DENIED APPELLANT HIS RIGHTS AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.

XVII. THE TRIAL COURT ERRED IN REFUSING TO ADMIT EVIDENCE OFFERED BY MR. BON-NELL AT THE CONCLUSION OF THE GUILT PHASE OF THE PROCEEDINGS, THEREUPON VIOLATING MR. BONNELL’S RIGHTS SECURED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.

XVIII. PROSECUTORIAL MISCONDUCT OCCURRED DURING THE GUILT AND MITIGATION PHASES OF APPELLANT BONNELL’S CAPITAL TRIAL, DEPRIVING HIM HIS RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH, AND FOÚRTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 9, 10, AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

XIX. THE TRIAL COURT ERRED IN FAILING TO GRANT A MISTRIAL DURING THE MITIGATING PHASE OF APPELLANT’S TRIAL WHEN A NOTE WAS RECEIVED FROM A JUROR STATING THE JURY WAS NOT GOING TO AGREE AND SHE WANTED TO GO HOME. THE TRIAL COURT’S FAILURE DENIED APPELLANT HIS RIGHTS AS GUARANTEED BY THE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND SECTIONS 5, 9, AND 16, ARTICLE I, OHIO CONSTITUTION.

XX. THE TRIAL COURT IN FAILING TO EXCUSE FOR CAUSE THREE JURORS THAT WERE BIASED AGAINST THE APPELLANT. THIS FAILURE DENIED APPELLANT A FAIR TRIAL BY AN IMPARTIAL JURY AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 5, 10, AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

XXI. WHEN A CAPITAL DEFENDANT DECIDES TO PRECLUDE THE INTRODUCTION OF MITIGATION, IT IS THE TRIAL COURT’S OBLIGATION TO CONDUCT A COMPETENCY HEARING TO DETERMINE THE DEFENDANT’S COMPETENCE TO MAKE THIS DECISION. THE TRIAL COURT’S FAILURE TO CONDUCT SUCH A COMPETENCY HEARING IN MR. BONNELL’S CASE DEPRIVED [BONNELL] OF HIS CONSTITUTIONAL RIGHTS AS GUARANTEED BY THE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 9, ARTICLE I OF THE OHIO CONSTITUTION.

XXII. TO ALLOW A CAPITAL DEFENDANT TO PRECLUDE THE INTRODUCTION OF MITIGATION AT THE SENTENCING HEARING PREVENTS THE SENTENCER FROM MAKING AN APPROPRIATE DETERMINATION OF THE DEATH SENTENCE AS REQUIRED BY THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION, SECTION 9, ARTICLE I OF THE OHIO CONSTITUTION AND R.C. 2929.05, AND RESULTS IN STATE-ASSISTED SUICIDE.

XXIII. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BONNELL IN SENTENCING MR. BONNELL TO TWO COUNTS OF AGGRAVATED MURDER WHEN ONLY ONE HOMICIDE WAS INVOLVED; SUCH SENTENCING VIOLATED R.C. 2941.25 AND DENIED MR. BONNELL HIS RIGHTS AS GUARANTEED BY SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION, AND THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION.

XXIV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY PERMITTING THE TESTIMONY OF THE VICTIM’S GIRLFRIEND AND ALLOWING THE INTRODUCTION INTO EVIDENCE OF A PHOTOGRAPH OF THE VICTIM AND HIS GIRLFRIEND. THIS VIOLATED MR. BONNELL’S RIGHTS UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 9 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

XXV. THE FELONY-MURDER SPECIFICATION IN R.C. 2929.04(A)(7) FAILS TO NARROW THE CLASS OF PERSONS ELIGIBLE FOR THE DEATH PENALTY AND THEREFORE VIOLATES THE EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 9, ARTICLE I OF THE OHIO CONSTITUTION.

XXVI. THE TRIAL COURT’S FAILURE TO COMPLY WITH CRIM. R.12(E) IN RULING ON APPELLANT’S MOTIONS TO SUPPRESS DEPRIVED APPELLANT OF THE MEANINGFUL APPELLATE REVIEW GUARANTEED BY R.C. 2929.05, THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 9 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

XXVII. THE TRIAL COURT’S FAILURE TO RULE ON APPELLANT’S MOTIONS, PROFFERED PRIOR TO AND DURING TRIAL, VIOLATED APPELLANT’S DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION AND RIGHT TO ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. XXVIII. THE DEATH SENTENCE IMPOSED IN APPELLANT BON-NELL’S CASE WAS INAPPROPRIATE AND DISPROPORTIONATE AND BONNELL WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS AS GUARANTEED BY THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 9 AND 16 ARTICLE I OF THE OHIO CONSTITUTION.

XXIX. THE PROPORTIONALITY REVIEW THAT THIS COURT MUST CONDUCT IN THE PRESENT CAPITAL CASE PURSUANT TO OHIO REVISED CODE SECTION 2929.05 IS FATALLY FLAWED AND THEREFORE THE PRESENT DEATH SENTENCE MUST BE VACATED PURSUANT TO THE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTIONS 5 AND 10 OF THE OHIO CONSTITUTION AND OHIO REVISED CODE 2929.05.

XXX. OHIO’S STATUTORY PROVISIONS GOVERNING THE IMPOSITION OF THE DEATH PENALTY ARE UNCONSTITUTIONAL UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 2, 9, 10, AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

The Ohio Court of Appeals affirmed the convictions and the sentence. State v. Bonnell, 1989 WL 117828 (1989). The Ohio Supreme Court likewise affirmed Bonnell’s conviction and sentence. State v. Bonnell, 61 Ohio St.3d 179, 573 N.E.2d 1082 (1991). Before the Ohio Supreme Court, Bonnell raised the following claims of error:

Proposition of Law No. I: R.C. 2929.04(A)(7) is unconstitutional on its face and as applied to appellant Bonnell.

Proposition of Law No. II: The Fourteenth Amendment of the United States Constitution and Section 16, Article I of the Ohio Constitution require the state to present sufficient evidence to sustain a conviction. If sufficient evidence is not presented, the accused is to be acquitted of the charge.

Proposition of Law No. Ill: A mistrial should be granted when a juror in a capital case can no longer follow her oath and continue deliberations.

Proposition of Law No. IV: A supplemental charge given during the penalty phase of a capital trial that fails to inform jurors that it is okay to disagree and coerces a death verdict is unconstitutional.

Proposition of Law No. V: In a capital case, a trial court must comply with the dictates of R.C. 2929.03 in filing its opinion imposing the death sentence.

Proposition of Law No. VI: It is error to sentence a capital defendant to death twice for a single homicide. Further, the correct procedure would be an election of one of the counts to proceed on, not merger of the counts.

Proposition of Law No. VII: In conducting the independent weighing of an aggravating circumstance against mitigating factors, an appellate court may not go outside the trial court record to support its findings.

Proposition of Law No. VIII: The death sentence imposed in appellant Bonnell’s case was inappropriate and disproportionate.

Proposition of Law No. IX: A defendant in a criminal case has a right to be present when, pursuant to a request from the jury during its deliberations, the judge communicates with the jury regarding his instructions.

Proposition of Lato No. X: A guilt verdict contrary to the weight of the evidence requires an aggravated murder conviction to be overturned by the reviewing court. Failure to do so violates rights secured by the Fourteenth Amendment to the United States Constitution and Section 15, Article I of the Ohio Constitution.

Proposition of Law No. XI: A guilt verdict contrary to the weight of the evidence requires an aggravated burglary conviction to be overturned by the reviewing court.

Proposition of Law No. XII: The suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

Proposition of Law No. XIII: Misconduct by a prosecutor throughout a capital case denies a capital appellant of his due process right of a fair trial.

Proposition of Law No. XIV: Counsel’s performance will be deemed ineffective when counsel’s performance falls below an objective standard of reasonable representation and, in addition, prejudice arises from counsel’s performance.

Proposition of Law No. XV: Errors in instructing the jury during the guilt-innocence and penalty phases of a capital case mandate a new trial on both phases.

Proposition of Law No. XVI: When a capital defendant decides to preclude the introduction of mitigation, it is the trial court’s obligation to conduct a competency hearing to determine the defendant’s competence to make this decision.

Proposition of Law No. XVII: To allow a capital defendant to preclude the introduction of mitigation at the sentencing hearing prevents the sentencer from making an appropriate determination of the death sentence as required by the Eighth and Fourteenth Amendments of the United States Constitution, Section 9, Article I of the Ohio Constitution, and R.C. 2929.05, and results in state-assisted suicide.

Proposition ofLaiu No. XVIII: An identification of a defendant that is the product of an unnecessarily suggestive show up should be suppressed.

Proposition of Law No. XIX: A defendant in a capital case has a right to a full and complete record of all proceedings, including sidebar conferences and jury questions.

Proposition of Law No. XX: An arraignment is the critical stage in criminal proceedings at which the right to counsel attaches, therefore it is error to conduct an arraignment without counsel and in violation of Ohio Crim.R. 10.

Proposition of Law No. XXI: A capital defendant is denied his right to a fair trial by an impartial jury when the trial court fails to excuse for cause jurors that are biased against the defendant.

Proposition of Law No. XXII: A capital appellant is denied due process, equal protection, and effective assistance of counsel when arbitrary and disproportionate page limitations are imposed in the filing of appellant’s merit brief.

Proposition of Law No. XXIII: Instructing a capital jury that their verdict is only a recommendation diminishes the jury’s responsibility for its decision and misleads the jury concerning its key role in sentencing.

Proposition of Law No. XXIV: Crim.R. 12(E) requires a trial court to state its essential findings on the record when factual issues are involved in determining a motion.

Proposition of Law No. XXV: The Fourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution guarantee the accused the right to offer evidence in his defense at trial.

Proposition of Law No. XXVI: The use of testimony and evidence which elicit sympathy for the victim by the state deprived Bonnell of his constitutional rights as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 16, Article I of the Ohio Constitution.

Proposition of Law No. XXVII: A trial court has an obligation to rule on motions proffered prior to and during trial.

Proposition of Law No. XXVIII: A trial court abuses its discretion when it grants a state’s motion to quash a defense subpoena duces tecum when the records required would have aided the defendant in the presentation of his defense.

Proposition of Law No. XXIX: The Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio Constitution establish the requirements for a valid death penalty scheme. Ohio Revised Code Sections 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04, and 2929.05, Ohio’s statutory provisions governing the imposition of the death penalty, do not meet the prescribed requirements, and, thus, are unconstitutional both on their face and as applied to appellant Bonnell.

The U.S. Supreme Court denied Bonnell’s petition for a writ of certiorari. Bonnell v. Ohio, 502 U.S. 1107, 112 S.Ct. 1205, 117 L.Ed.2d 444 (1992).

B. Application for Delayed, Reconsideration

1. Ohio Court of Appeals

On November 27, 1992, in the Ohio Court of Appeals, Bonnell filed an application for delayed reconsideration (i.e., a Murnahan petition). In his application, Bonnell identified the. following fifty-five acts and omissions, which he claimed rendered appellate counsel unconstitutionally ineffective:

a. Bonnell was deprived of his rights as guaranteed by the Eighth and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution when the jury was improperly told that they had to first convict him of a death penalty specification before they would be permitted to consider the death penalty.

b. Bonnell was deprived of his constitutional rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution because the death verdict rested on a determination made by jurors who were led to believe during voir dire that the responsibility for determining the appropriateness of the death penalty.

c. Bonnell was deprived of his right as guaranteed by the Eighth and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution when prospective jurors were repeatedly informed during voir dire that death verdicts were required if the aggravated circumstances outweighed the mitigating factors beyond a reasonable doubt.

d. Bonnell was denied his right to a fair trial by an impartial jury in a capital case, as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution by the trial court’s improper excusal for cause of all prospective jurors who voiced any opposition to the death penalty.

e. Misconduct by the government’s attorneys, during voir dire in Bonnell’s trial deprived Bonnell of his rights to due process, a fair trial, and a fair and reliable determination of his guilt and .sentence as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution.

f. The instructions during voir dire that the weighing process in mitigation involved [weighing] all the aggravating circumstances against any of the mitigating factors skewed this entire capital proceeding in favor of guilt verdicts and sentences of death in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution.

g. Bonnell was deprived of his rights to due process and against cruel and unusual punishment as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution.

h. The trial court’s exclusion of Bonnell from participating in the judicial proceedings violated Bonnell’s rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution.

i. Bonnell was deprived of his constitutional rights as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution when prospective jurors were repeatedly not informed in voir dire that the burden of proof in the mitigation hearing was “beyond a-reasonable doubt.”

j. Bonnell was deprived of his constitutional rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution when prospective jurors in mitigation were informed that each count of aggravated murder had multiple aggravating circumstances.

k. Bonnell was deprived of his constitutional rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution when prospective jurors were misinformed about the weighing process in voir dire; that the mitigating factors must outweigh the aggravating circumstances for a life sentence to be imposed.

l. Ohio’s statutory provisions govern its capital punishment scheme violated Article VI of the U.S. Constitution and various international laws including, but not limited to, the Organization of American States Treaty and the American Declaration of the Rights and Duties of Man.

m. Bonnell was denied his constitutional rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution because this Court failed to consider cases which a sentence of less than death was imposed when this Court conducted its proportionality review.

n. The trial court’s failure to properly instruct the jury in the sentencing phase of Bonnell’s trial that Bonnell enjoyed a presumption of life deprived Bonnell of his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution.

o. The trial court mitigation instructions that wrongly informed the jury that each count of aggravated murder contained multiple aggravating circumstances ... violated]. Bonnell’s rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution.

p. The trial court’s mitigation instruction as to reasonable doubt which in the mitigation phase of the trial reduced the State’s burden of proof in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1. of the Ohio Constitution by omitting the term “beyond a reasonable doubt.”

q. The death sentence in Bonnell’s case was obtained in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution for the reason that the trial court’s penalty phase charge of reasonable doubt created an unconstitutional presumption in favor of the death sentence and effectively made that sentence mandatory.

r. The trial court’s mitigation charge which instructed the jury as to all the statutory mitigating factors including those factors not raised by Bonnell violated Bonnell’s rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution.

s. Bonnell’s rights to due process and against cruel and unusual punishment as guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution were violated because the trial court instructed the jury its sentencing decision was merely a recommendation.

t. The trial court denied Bonnell his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution when the parole eligibility law was misstated during the mitigation instruction at Bonnell’s trial.

u. Bonnell was denied his constitutional rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution when the trial court, during penalty phase, commented to the jury that Bonnell’s mitigation testimony was not under oath and the prosecutor also made the same [remark].

v. The trial court’s instructions to the jury in the mitigation phase of Bon-nell’s trial which impermissibly mandated a sentence of death deprived Bonnell of his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution.

w. The trial court’s mitigation instruction which failed to adequately define the term “outweigh,” which in turn failed to provide the jury any meaningful guidance from which to determine if the death penalty should be imposed [violated] Bonnell’s rights as . guaranteed, by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution.

x. Bonnell was denied his rights of due process and against cruel and unusual punishment for the reason that the trial court instructed the sentencing jury they could not consider sympathy in reaching a verdict in violation of the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution.

y. The trial court’s mitigation instruction which informed the jury that it could consider “any other factors” that are relevant to the issue of which the offender should be sentenced to death [violated] Bonnell’s rights as guaranteed by ' the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution.

z. Bonnell was denied the effective assistance of trial counsel at the guilt-innocence phase as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution.

aa. Bonnell was denied his rights to due process, equal protection, impartial jury, and the effective assistance of counsel as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution due to prose-cutorial misconduct during the trial phase of his capital trial.

bb. Bonnell was denied effective assistance of counsel as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article 1 of the Ohio Constitution because counsel did not object to all errors so as to preserve the record for appellate purposes.

cc. Bonnell was denied his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution when neither Bonnell nor his counsel were present when the court responded to a jury question.

dd. Bonnell was denied his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution when the trial court in the trial phase instructed the jury as to the element of “purpose.”

ee. Bonnell’s right to due process as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution were violated because of the State’s use of tainted identification witnesses.

ff. The unreliable testimony of Shirley Hatch upon with the trier of fact based their verdicts deprived Bonnell of his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution.

gg. The trial court denied Bonnell his due process, equal protection and impartial jury rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution.

hh. The inaccurate testimony of Ed Birmingham upon which the trial of fact based their verdicts deprived Bonnell of his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution.

ii. Bonnell was deprived of his rights of due process, effective assistance of counsel, and confrontation as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution because the State of Ohio failed to provide timely discovery.

jj. The trial court denied Bonnell his due process, equal protection, and impartial jury rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution by admitting testimony that the witness had seen Bonnell carrying the gun that was unrelated to the present offense.

kk. The trial court’s instruction to the jury on the element of “prior calculation and design” was so vague it denied Bonnell his rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution.

11. The conviction and sentence of Bon-nell violates his rights to due process and ... against cruel and unusual punishment as guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution for the reason that the trial court’s definition of reasonable doubt allowed [a] finding of based upon a degree of proof that required a finding of guilt based on a degree of proof below that required by the due process clause.

mm. The trial court denied Bonnell’s rights to due process, equal protection, and an impartial jury under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution when the trial court failed to instruct the jury on the lesser included offense of murder as to felony murder.

nn. Bonnell was denied his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2,. 9, 10, and 16, Article I of the Ohio Constitution when the trial court instructed the jury that it could infer that Bonnell had the requisite purpose to kill the . victim by the manner in which the wound was inflicted upon the victim.

oo. The trial court’s use of a general venire violated Bonnell’s rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution.

pp. The trial court’s denial of Bonnell’s Motion to Suppress his statement to the Cleveland Police department violated Bonnell’s rights as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution.

qq. Bonnell was denied the effective assistance of counsel in the mitigation phase of trial by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution.

rr. Misconduct by the government’s attorney at the penalty phase of Bon-nell’s capital trial deprived [Bonnell] of his rights to due process, a fair trial, and a reliable determination of his punishment as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution.

ss. Consideration by the jury of non-statutory aggravating circumstances at the penalty phase violated Bonnell’s rights to due process and a fair and reliable determination of his death sentence by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution.

tt. The admission of gruesome photographs which were cumulative] of each other as well of other evidence violated Bonnell’s ... constitutional rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution rights to a fair trial, due process and a reliable determination of his guilt and sentence.

uu. The trial court erred when it failed to instruct the jury that if it could not agree that the State had proved beyond a reasonable doubt that the aggravating circumstances, outweighed the mitigating factors that the jury-should impose a life sentence. As a result, Bonnell’s death sentence violated the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution.

w. The trial court’s failure to properly instruct the jury as to the definition of “mitigating factors” deprived Bonnell of his rights as guaranteed by the Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution.

ww. The trial court denied Bonnell to his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution when the trial court placed improper restrictions on the mitigation evidence at Bonnell’s trial.

xx. Bonnell’s death sentence is disproportionate to the non-capital sentences received by other Cuyahoga County persons who were convicted of aggravated murder involving either white or African-American victims by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution.

yy. The trial court’s failure to instruct the jury as to all of the elements of each of the capital specifications in violation of Bonnell’s rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution.

zz. The trial court erred when it charged the jury that it could consider the arguments of counsel as evidence in the mitigation phase in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution.

aaa. The trial court erred in the mitigation charge when it failed to instruct the jury that it could consider residual doubt in the sentencing phase by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution.

bbb. Bonnell was deprived of his rights to due process, confrontation, and against cruel and unusual punishment as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution because the State failed to provide complete discovery of exculpatory evidence to defense counsel.

ecc. Bonnell was denied his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 2, 9, 10, 16, Article I and Section 39, Article II of the Ohio Constitution because he was denied the assistance of experts in the mitigation [and] guilt phases of his capital trial.

On May 6, 1994 and following an thorough investigation of Bonnell’s claims, the Court of Appeals denied Bonnell’s application for delayed reconsideration. (App. V pp. 80-107) Bonnell appealed.

2. Ohio Supreme Court

Before the Ohio Supreme Court, Bonnell argued the following four claims:

(1) the application of the doctrine of res judicata denies meaningful consideration of Appellant’s claims of ineffective assistance of appellate counsel in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 9, 10, and 16, of the Ohio Constitution;

(2) the Court’s failure to order that the Court of Appeals record be delivered in Appellant’s direct appeal of right in the above captioned case violated Appellant’s rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution;

(3) the Court'of appeals improperly addressed the merits of four claims without permitting briefing by the Appellant and without having a complete record in violation of Appellant’s rights to the effective review under the Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States, Article I, Sections 2, 10, and 16, of the Ohio Constitution, and Ohio Rev.Code Ann. sections 2929.05; and

(4) the failure to exercise reasonable professional judgment in raising and preserving constitutional issues in the direct appeals of capital cases denies Mr. Bonnell the effective assistance of appellate counsel guaranteed by the Due process Clause of the Fourteenth Amendment.

(App. V p. 200)

The State Supreme Court affirmed denial of the application on December 20, 1994, State v. Bonnell, 71 Ohio St.3d 223, 643 N.E.2d 108 (1994), and, on February 1, 1995, denied reconsideration. State v. Bonnell, 71 Ohio St.3d 1459, 644 N.E.2d 1031 (1995).

C. Post-Conviction Proceedings

Bonnell then filed a post-conviction petition with the trial court. His petition, which included 53 claims for relief based on 311 numbered paragraphs with over 500 pages of supporting information, was summarily dismissed without an evidentia-ry hearing. Bonnell appealed that decision to the Ohio Court of Appeals raising the following claims of error:

I. THE TRIAL COURT ERRED IN DENYING MR. BONNELL’S POST-CONVICTION CLAIMS CONCERNING THE STATE’S SUPPRESSION OF EXCULPATORY EVIDENCE IN VIOLATION OF MR. BONNELL’S RIGHTS AS GUARANTEED BY THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES' CONSTITUTION AND ARTICLE I, SECTIONS 2, 5, 9, 10, AND 16 OF THE OHIO CONSTITUTION.

II. THE TRIAL COURT ERRED IN DISMISSING MR. . BONNELL’S POST-CONVICTION PETITION WITHOUT GRANTING MR. BON-NELL’S REQUEST FOR ACCESS TO THE EVIDENCE ADMITTED AT HIS TRIAL [AND] VIOLATES [THE] SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 2, 5, 9, 10, AND. 16 OF THE OHIO CONSTITUTION.

III. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTIONS TO STRIKE THE STATE’S UNTIMELY FILINGS IN VIOLATION OF APPELLANT’S EQUAL PROTECTION AND DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION, ARTICLE I, SECTIONS 2 AND 16 OF THE OHIO CONSTITUTION, OHIO REV.CODE 2953.21, OHIO R'.CIV. 6 AND 7, AND LOC.R. 11.

IV. THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT’S MOTION FOR JUDGMENT ON THE PLEADINGS AS TO APPELLANT’S THIRTEENTH CLAIM FOR RELIEF, THEREBY VIOLATING APPELLANT’S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION.

V. THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE’S MOTION FOR SUMMARY JUDGMENT IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTIONS 2, 5, 9, 10, AND 16 OF THE OHIO CONSTITUTION, AND OHIO R.CIV. P. 56.

VI. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S MOTION TO DISQUALIFY THE CUYAHOGA COUNTY PROSECUTOR’S OFFICE IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 2, 10, AND 16 OF THE OHIO CONSTITUTION.

VII. THE TRIAL COURT ERRED IN ITS APPLICATION OF THE DOCTRINE OF RES JUDICATA IN VIOLATION OF MR. BONNELL’S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION, ARTICLE I, SECTIONS 1, 2, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION, AND OHIO R.CIV.P. 12(B).

VIII. THE TRIAL COURT ERRED IN DENYING APPELLANT’S PETITION TO VACATE OR SET ASIDE SENTENCE IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 2, 5, 9, 10 AND 16 OF THE OHIO CONSTITUTION.

IX. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT BONNELL AN EVIDENTIARY HEARING IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION.

X. THE TRIAL COURT ERRED IN FAILING TO ISSUE SUFFICIENT FINDINGS OF FACT AND CONCLUSIONS OF LAW IN VIOLATION OF APPELLANT’S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION.

The Court of Appeals affirmed the trial court’s denial of post-conviction relief on August 27, 1998. The Ohio Supreme Court dismissed Bonnell’s appeal on January 20, 1999, see State v. Bonnell, 84 Ohio St.3d 1469, 704 N.E.2d 578 (1999), and the United States Supreme Court denied certiorari on October 4, 1999. Bonnell v. Ohio, 528 U.S. 842, 120 S.Ct. 111, 145 L.Ed.2d 94 (1999).

D. Habeas Corpus

On March 2, 2000, Bonnell filed this Petition for Writ of Habeas Corpus. (Docket # 12) In his petition, Bonnell identified twenty general areas of alleged constitutional violation. Those are:

1. The State’s suppression of exculpatory evidence violated Petitioner’s rights as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.

2. The misconduct by a prosecutor throughout a capital case denied Petitioner the due process right of a fair trial as required by the Fourteenth Amendment.

3. Improper and prejudicial closing argument of the prosecutor at both the culpability and penalty phases violated Petitioner’s right under the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.

4. Petitioner’s conviction and sentence of death should be vacated because the state failed to preserve exculpatory evidence from the crime scene.

5. Petitioner’s conviction and sentence should be vacated because the state repeatedly created materially false impressions concerning evidence at the culpability and penalty phases.

6. Trial counsel was ineffective at the culpability and penalty phases of Petitioner’s trial.

7. Errors in instructing the jury during the culpability and penalty phases of this case mandate a new trial on both phases.

8. The trial court interfered with Petitioner’s right to a fair and impartial culpability and penalty deliberations ... violating the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.

9. Ohio Revised Code Annotated § 2929.04(A)(7) is unconstitutional on its face and as applied to Petitioner.

10. Petitioner was denied a fair trial in violation of the due process clause of the Fourteenth Amendment when the trial court failed to suppress unnecessarily suggestive show-up.

11. Petitioner’s Sixth and Fourteenth Amendment rights were violated when he did not receive an arraignment with counsel.

12. The State obtained involuntary statements from Petitioner in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution (withdrawn in Bonnell’s Traverse).

13. The Ohio Appellate Court violated Petitioner’s Eighth and Fourteenth Amendment rights when it conducted an independent weighing of an aggravating circumstance against mitigating factors that were outside the trial court record to support its findings.

14. The trial court erred when it charged the jury that it could consider the arguments of counsel as evidence in the penalty phase in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution (withdrawn in Bonnell’s Traverse).

15. The failure to adequately define specific intent, prior calculation and design, and purpose for the jury denied Petitioner of his rights under the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.

16. The trial court erred when it instructed the jury that they had to be unanimous in rejecting the death penalty before considering the life sentences (withdrawn in Bonnell’s Traverse).

17. The trial court denied Petitioner a fair trial in violation of the due process clause of the Fourteenth Amendment when it granted the State’s motion to quash a defense subpoena duces tecum when the records requested would have aided Petitioner in the presentation of his defense.

18. Petitioner’s rights under the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution were violated by errors occurring in the voir dire of his trial.

19. Petitioner should be acquitted of the charges as required by the Fourteenth Amendment of the U.S. Constitution because the State failed to present sufficient evidence to sustain a conviction.

20. The Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution establish the requirements for a valid death penalty scheme. Ohio Revised Code Ann. §§ 2903.01, 2902.02, 2929.21, 2929.22, 2929.23, 2929.03, 2929.04, and 2929.05, Ohio’s statutory provisions governing the imposition of the death penalty, do not meet the prescribed requirements and, thus, are unconstitutional both on their face and as applied to Petitioner.

IV. INITIAL CONSIDERATIONS

A. Standard of Review: The AEDPA

A federal court’s consideration of a petition for a writ of habeas corpus filed by a prisoner imprisoned under the judgment of a state court is governed by 28 U.S.C. § 2254(a). Section 2254 permits the state prisoner to challenge his custody “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” Id. Federal habeas corpus relief “does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990). Thus, “it is not the province of a federal habeas court to re-examine state-court determinations of state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).

The Antiterrorism and Effective Death Penalty Act of 1996, Pub.1.No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”), signed into law on April 24, 1996, amended Title 28 of the United States Code and applies to all habeas petitions filed on or, after its April 24,1996 effective date. Barker v. Yukins, 199 F.3d 867, 871 (6th Cir.1999) (citations omitted); Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir.1998). The AED-PA made significant changes in habeas law, including increasing the restrictions on which issues can be appealed and heightening the respect for state court factual and legal determinations. Because Bonnell filed this habeas petition March 1, 2000, long after the AEDPA effective date, the AEDPA applies to this petition. See, e.g., Williams v. Coyle, 167 F.3d 1036, 1040 (6th Cir.1999). Having determined that the AEDPA applies to the petition, the Court will next address the appropriate standard of review.

Under 28 U.S.C. § 2254(d) (enacted as a part of the AEDPA), a petition for writ of habeas corpus:

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.

Id.; Staley v. Jones, 239 F.3d 769, 775 (6th Cir.2001).

The United States Supreme Court recently had occasion to interpret § 2254(d) in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). With respect to the first clause of § 2254(d), the Court explained that the phrases “contrary to” and “unreasonable application of” must be given independent meanings.

First, a state-court decision is contrary to this .Court’s precedent if the state court arrives at a conclusion opposite to that reached by this Court on a question of law. Second, a state-court decision is also contrary to this Court’s precedent if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours.

Terry Williams, 529 U.S. at 405, 120 S.Ct. 1495 (citing Green v. French, 143 F.3d 865, 869-70 (4th Cir.1998), cert. denied, 525 U.S. 1090, 119 S.Ct. 844, 142 L.Ed.2d 698 (1999)). The Supreme Court construed the second clause of § 2254(d) as follows:

First, a state-court decision involves an unreasonable application of this Court’s precedent if the state court identifies the correct governing legal rule from this Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s case. Second, a state-court decision also involves an unreasonable application of this Court’s precedent if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.

Terry Williams, 529 U.S. at 407, 120 S.Ct. 1495.

The Court pointed out that, in determining the reasonableness of the state court’s decision, the federal court must employ an objective, not subjective, test. When viewing the objective reasonableness of the state court decision, however, a federal court may not find an application to be unreasonable merely because it finds that the state court decision was erroneous or incorrect. Terry Williams, 529 U.S. at 410-412, 120 S.Ct. 1495; Maranian v. Jackson, No. 99-2017, 2001 WL 700856 (6th Cir. Jun.11, 2001).

The Terry Williams Court also clarified that “clearly established federal law, as determined by the Supreme Court of the United States” refers to “the holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the relevant state-court decision.” 529 U.S. at 412, 120 S.Ct. 1495. The Sixth Circuit later held that this holding “prevents the district court from looking to lower federal court decisions in determining whether the state court decision is contrary to, or an unreasonable application of, clearly established federal law.” Harris v. Stovall,, 212 F.3d 940, 944 (6th Cir.2000) (quoting Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir.1998), cert. denied, 532 U.S. 947, 121 S.Ct. 1415, 149 L.Ed.2d 356 (2001)). A habeas court may thus only rely on that class of Supreme Court precedent that would qualify, as an “old rule” under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Terry Williams, 529 U.S. at 412, 120 S.Ct. 1495.

Under the AEDPA, state determinations of factual issues are presumed to be correct. 28 U.S.C. § 2254(e)(1). This presumption of correctness is rebuttable only by clear and convincing evidence otherwise. Id.

The AEDPA standard of review applies even when there is no state court decision on the merits to evaluate. Id. at 940. When the state court does not explain its ruling, habeas review is not de novo but remains deferential, since this Court cannot grant relief unless the state court’s result is not in keeping with the AEDPA. Id. at 943.

Put simply, the Court may review federal claims that were evaluated on the merits by a state court. Claims that were not so evaluated, either because they were never presented to the state courts (i.e., exhausted) or because they were not properly presented to the state courts (i.e., were procedurally defaulted), are generally not cognizable on federal habeas review.

B. Exhaustion

The process of presenting a constitutional claim to the state’s highest court is called exhaustion. Under the AEDPA, as under the former habeas statute, a prisoner must exhaust his available state court remedies before petitioning for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1)(A). Habeas relief cannot be granted based on claims that have not been exhausted. Id.; see also Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). A state cannot be deemed to have waived the exhaustion requirement unless the state, through counsel, expressly waives it. 28 U.S.C. § 2254(b)(3).

Here, although not expressly waiving the exhaustion requirement, Ohio concedes that Bonnell has exhausted all of his habe-as claims.

In the instant case, Respondent does not waive the requirement that Bonnell “exhaust” his state court remedies. However, Bonnell has sought review of his convictions and sentences on direct appeal; has completed one complete round of state post-conviction litigation; and has sought unsuccessfully to reopen his direct appeal. Accordingly, it appears that Bonnell has satisfied the exhaustion requirement. See Rule 5 of the Rules Governing Section 2254 Cases (“The answer shall respond to the allegations of the petition. In addition it shall state whether the petitioner has exhausted his state remedies ... ”). Therefore, Respondent does not assert lack of exhaustion as a defense.

(ROW 76) The Court concludes that the asserted grounds for relief have been exhausted.

C. Procedural Default

Federal courts “will not review question[s] of federal law decided by a state court if the decision of that court rests upon 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). “Applied to the habeas context, the doctrine of procedural default acts to -bar federal review of federal claims that a state court has declined to address because of the 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.” Coleman, 501 U.S. at 730,