Full opinion text
OPINION AND ORDER SARGUS, District Judge. Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this Court an action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the habeas corpus petition, (doc.no.14), respondent’s return of writ, (doc.no.18), and petitioner’s traverse, (doc.no.47). Also before the Court is the original joint appendix, which consists of ten volumes. The facts and procedural history of this case were set forth by the Supreme Court of Ohio in State v. Benge, 75 Ohio St.3d 136, 661 N.E.2d 1019 (1996): In the early morning hours of February 1, 1993, a car belonging to Judith Gabbard, defendant-appellant Michael W. Benge’s live-in girlfriend, was found abandoned on the west side of the Miami River in Hamilton, Ohio. The vehicle was found near the river with the front passenger-side tire stuck in a gully. After the vehicle was towed to the impound lot, the tow-truck operator observed blood on the front bumper and passenger side of the car and notified police. The police returned to the area where the car was found and discovered the body of Judith Gabbard in the Miami River. Her body had been weighed down with a thirty-five pound piece of concrete which had been placed upon her head and chest. One of the pockets on the jacket Gabbard was wearing was empty and turned inside out. She still had in her possession her checkbook, cash and jewelry. The police retrieved a tire iron, or lug wrench, from the river approximately twelve to fifteen feet from where Gabbard’s body was found. A jack and spare tire were found in Gabbard’s trunk, but no lug wrench was discovered. Police removed lug nuts from the vehicle, which were sent to a laboratory and compared with the lug wrench. Although no positive match was made, the lug nuts did bear markings which were similar to the lug wrench. The police gathered other physical evidence from the scene which was also tested by a forensic laboratory. Strands of hair and type A blood (which both Gabbard and appellant had) were found on the driver’s side front tire. Smears of blood were also discovered above the passenger-side headlight and on the fender. Police also found a pool of blood with a tire track through it and blood contained in the tire treads. According to one of the investigative detectives, this evidence indicated that the car had been driven through the blood and through the hair of the victim. An autopsy was performed, which revealed that the victim had suffered a number of blows to the head with a long blunt object which produced pattern abrasions and multiple skull fractures, one of which was circular in nature. According to the coroner, the victim died of brain injuries secondary to multiple skull fractures which were inflicted with a blunt object. The police apprehended Benge the next day, on February 2, 1993. When the detectives approached Benge, on the street, they observed him drop Judith Gabbard’s ATM card to the ground. They picked up the card, arrested Benge, and took him into the station for questioning. After being read his Miranda warnings, Benge agreed to talk to the detectives. Benge told police that two black men in a Bronco had chased him and Gabbard to the river and that their car had gotten stuck. Benge claimed that one of the men injured Gabbard and took her ATM card while the other held him at gunpoint, demanding the ATM code word. When Benge refused to tell him, the man returned the ATM card to him. Benge escaped by jumping into the river. As he swam away, he heard Gabbard screaming as the men beat her. The detectives told Benge they did not believe his story. Benge told them he thought he should talk to a lawyer. The questioning ceased at that point. A short time later, Benge told police he was willing to talk. Benge signed a Miranda warning card indicating that he waived his Miranda rights. Benge then gave the police a tape-recorded statement in which he recounted a different version of what happened the night before. Benge told police that he had driven to the riverbank with Gabbard so that they could talk. He said that they had argued over the fact that he was addicted to crack cocaine. Gabbard also accused him of being unfaithful to her. Benge then said he got out of the vehicle to urinate. At that point, he said Gab-bard tried to run him down, but the car got stuck in the mud. Benge said that he became enraged, pulled Gabbard out of the car, and began beating her with a metal pipe he found lying on the ground. Benge said he threw her body into the river, face down, disposed of the weapon and swam across the river. He did not recall whether he put any rocks or cement on her body. Benge then went to the home of his friend, John Fuller, to get dry clothes, which Fuller’s fiancee, Awantha Shields, provided. During this second interrogation, Benge was questioned about the ATM card, why he had dropped it when he saw the police, and whether he had used it after killing Gabbard. Benge said he threw down the card because he was scared and he knew he would not need it anymore. He also told police that he had not used the card since he killed Gabbard, although he did allow a man by the name of Baron Carr to use the card once to get money to purchase crack cocaine. Benge claimed that the only reason he had the card in his possession was because he and Gabbard had used it on January 31, 1993 before they went out that evening. However, the police discovered through retrieving ATM records that no transaction had taken place on January 31,1993 and that two transactions were made following Gabbard’s death; on February 1, 1993 at 2:45 a.m., a $200 withdrawal was made, and on February 2, 1993 at 12:01 a.m., another $200 was withdrawn. Benge was indicted on one count of aggravated murder in violation of R.C. 2903.01(B) with death penalty specifications under R.C. 2929.04(A)(3)(offense committed for the. purpose of escaping detection for another offense) and R.C. 2929.04(A)(7)(offense committed during the commission of an aggravated robbery) as well as for aggravated robbery and gross abuse of a corpse. Benge pleaded no contest to gross abuse of a corpse. The case proceeded to trial on the other charges. At trial, the state called Awantha Shields, who testified that in the early morning hours of February 1, 1993, Benge arrived at the house she shared with John Fuller, wearing wet clothes and asking for John. Benge also asked her if she had ever killed anyone. He then told her that he and his girlfriend had “got into it” earlier, that it blew over, and that they went to the river bank. He then told her that they had started fighting and that he hit her in the head no more than ten times with a crowbar, put rocks over her head and pushed her in the river. Benge told her that he had killed his girlfriend to get her “Jeanie” card. He also said that if the police questioned him he would lie and say that a couple of black guys jumped him and his girlfriend and beat his girlfriend up. He also told her that he had given her ATM card to a guy named Baron to get $200 to buy crack cocaine but that he never saw the money. Larry Carter testified that he and Baron Carr ran into Benge in the early morning of February 1, 1993. Benge, whose clothes were wet, asked Carter to excuse how he smelled but that he had just swum in the river. Carter thought Benge was kidding. Benge told him he had given John $20 to buy crack cocaine for him and said he could get more money. Carter drove Benge and Carr to a Society Bank where Benge withdrew $200 from an ATM; Carter then bought crack cocaine for Benge. Carter later drove Benge to Fuller’s house. Later that next night, Carter and Baron Carr withdrew another $200 from Gab-bard’s account using her ATM card so that they could buy drugs for Benge. However, to avoid giving the drugs or money to Benge, the two men conjured up a story and told Benge that his girlfriend had closed the account. Benge insisted that she had not. Benge took the stand on his own behalf and reiterated what he had told police during his second interrogation, including that Gabbard had tried to run him down and that he was in a rage when he killed her. Benge also claimed that he had permission to use Gabbard’s ATM card and did not rob her. On cross-examination, he admitted losing his job in January 1993 due to his crack cocaine habit and that he had no income at the time he killed Gabbard. Benge was convicted of all counts and specifications. Thereafter, the jury recommended that he be sentenced to death, and that recommendation was accepted by the trial court. The court of appeals affirmed Benge’s convictions and death sentence. Benge, 75 Ohio St.3d at 136-39, 661 N.E.2d 1019. Petitioner has raised sixteen claims for relief in this habeas corpus action and many of those claims contain sub-parts. In its Opinion and Order of March 31, 2000, the Court determined that claims one, nine, ten, and fourteen were barred by procedural default. Petitioner filed a motion for reconsideration of the Court’s order as to claim one, which motion this Court denied on September 21, 2000, (doc. no.45). Thus, this order will address the merits of the claims that are properly before the Court. I. Standard of Review Because petitioner filed his habeas corpus petition on November 16, 1998, his habeas corpus action is governed by the habeas corpus statute as amended by the Antiterrorism and Effective Death Penalty Act of 1996, (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.1997), cert. denied, 522 U.S. 1112, 118 S.Ct. 1044, 140 L.Ed.2d 109 (1998). According to the AEDPA, this Court may not grant relief on any claim that was adjudicated on the merits by the state courts unless that adjudication: “(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 upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). In Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the United States Supreme Court held that a state court decision is “contrary to” clearly established federal law “if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts.” By contrast, the Supreme Court went on to hold, a state court adjudication involves an “unreasonable application” of clearly established federal law if “the state court identifies the correct legal principle from this Court’s decision but unreasonably applies that principle to the facts of the prisoner’s case.” Id. With respect to its “unreasonable application” holding, the Supreme Court emphasized that a federal habeas court may not issue the writ “simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 410, 120 S.Ct. 1495. Rather, a federal habeas court may issue the writ only if the state court’s application of clearly established federal law was objectively unreasonable. Id. The deferential standard of review set forth in § 2254(d), by the very language at the beginning of that section, applies only when a claim is adjudicated on the merits by the state courts. Maples v. Stegall, 340 F.3d 433, 436 (6th Cir.2003). Where the state court fails to “assess the merits of a claim properly raised in a habeas petition, the deference due under AEDPA does not apply.” Id. (citing Williams v. Coyle, 260 F.3d 684, 706 (6th Cir.2001)). That is, where the federal court’s review of a constitutional claim is not circumscribed by a reasoned state court decision, the Court is not required to determine whether the state court contravened or unreasonably applied clearly established federal law; rather, the Court conducts de novo review of the claim. Id. at 436-37 (discussing Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2542, 156 L.Ed.2d 471 (2003)). II. Discussion First Ground for Relief — Petitioner was denied the right to a fair trial, due process of law, compulsory due process, the right to present a defense, and the right to have that defense considered by the jury because the trial court instructed the jury in a manner that precluded it from considering the affirmative defense of voluntary manslaughter in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution The petitioner claims in his first ground for relief that he was denied a fair trial and due process of law in that the trial court erroneously instructed the jury in a manner that precluded it from considering voluntary manslaughter as an alternative to aggravated murder. Specifically, petitioner contends that the trial court erred in instructing the jury that if it found him guilty of aggravated murder beyond a reasonable doubt that it should not consider the lesser charge of voluntary manslaughter. The instructions given in this case directed the jury to first consider the offense charged in the indictment which was aggravated murder. The jury was also instructed that only if it found (1) the defendant not guilty of aggravated murder or (2) was unable to reach a unanimous verdict on aggravated murder could it then consider the lesser included offense of voluntary manslaughter. Petitioner contends that the jury was not permitted to consider whether he had acted under mitigating circumstances of sudden passion or a sudden fit of rage in response to serious provocation by the victim. The Ohio Supreme Court found merit to this claim of the petitioner and agreed that the jury should have been instructed to consider the charge of voluntary manslaughter. State v. Benge, 75 Ohio St.3d 136, 140, 661 N.E.2d 1019 (1996). The Ohio Supreme Court nonetheless concluded that because petitioner’s counsel had failed to object to the trial court’s instructions that such error did not require reversal unless “the outcome of the trial clearly would have been otherwise.” Id. 141, 661 N.E.2d 1019 citing State v. Long, 53 Ohio-St.2d 91, 372 N.E.2d 804 (1978). The Ohio Supreme Court concluded that the only evidence of provocation was petitioner’s testimony. Id. In contrast, other witnesses contradicted petitioner and the physical evidence in the case indicated that the auto had been driven through a pool of blood following the beating of the victim. Id. This Court previously held that claim one was proeedurally defaulted because petitioner failed to raise an objection during trial to the challenged jury instructions. Petitioner contended, however, that the default was excused because of the ineffectiveness of his trial attorneys. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), petitioner is required to demonstrate deficient performance by his attorneys as well as actual prejudice. This Court concluded, as did the Ohio Supreme Court, that the instruction regarding voluntary manslaughter given by the trial court was erroneous. Thus, petitioner has established that his trial counsel was deficient. This Court also concluded, however, that petitioner could not show prejudice and found that ... it is all but certain from the record that this jury would not have acquitted petitioner of the offenses of aggravated murder and aggravated robbery, and convicted him instead of voluntary manslaughter. That the jury convicted petitioner on both the aggravated robbery specification and the separate aggravated robbery count confirms that the jury had rejected petitioner’s version of the events, i.e., that he had killed the victim in a sudden fit of rage, and that the jury had been persuaded beyond a reasonable doubt of the state’s version of the events— namely, that petitioner had killed the victim, stolen her bank access card with the intent to drain her bank account and purchase drugs, and concocted a cover story. There was no evidence beyond petitioner’s own testimony to corroborate his claim that the victim provoked him by driving the car towards him and, in fact, the physical evidence belied petitioner’s assertion. The record contained physical evidence that the car was not moved until after the victim had been murdered. The record was also replete with evidence contradicting petitioner’s assertion that he killed the victim — not to rob her of her bank access card — but in a sudden fit of rage. Specifically, the record contained testimony that petitioner had murdered the victim for her “Jeanie” card and had even concocted a cover story of how two other men had murdered her, and evidence that the victim’s bank card had been used after her death, contradicting petitioner’s claim that he was in possession of the victim’s “Jeanie” card only because he and the victim had made a cash withdrawal the morning of the killing. This Court cannot find under virtually any standard, even one most favorable to petitioner, that, but for counsel’s failure to object to the voluntary manslaughter instruction, the outcome of the trial probably would have been different. (Opinion and Order, Doc. No. 40 at 29-30). Petitioner contends that this Court is bound by the decision of Barker v. Yukins, 199 F.3d 867 (6th Cir.1999). In Barker, the petitioner had been convicted in state court of first degree murder. Id. 869. The petitioner, in her early twenty’s at the time of the charged conduct, was accused of stabbing and beating to death an eighty-one year old man. She contended that she used deadly force to prevent him from raping her. Id. Over the petitioner’s objection, the trial court rejected a proposed instruction regarding self-defense to prevent a rape and concluded that no reasonable jury could believe that deadly force was necessary to prevent a rape by an eighty-one year old, frail victim. Instead, the trial court gave the jury a general instruction on the issue of self defense, advising the jury that a defendant could use deadly force “if the defendant believed she was in danger of death or serious bodily harm.” Id. 871. The Michigan Supreme Court found that the instruction was erroneous by failing to advise that deadly forced could be used to prevent a rape. Id. 869. Nevertheless, the Michigan Supreme Court concluded that the error was harmless. Id. The Sixth Circuit found that the right to trial by jury prohibits judges from weighing evidence and making credibility determinations, matters which are reserved to the province of the jury. Id. 874. In essence, the trial court weighed the testimony given by petitioner against the other circumstances of the case. The Court of Appeals concluded that the defective instructions undermined the petitioner’s defense and prevented the jury from deciding a critical issue in the case. While the jury instructions in this case were also defective, petitioner’s counsel did not object to the defective instruction. Consequently, petitioner must satisfy the requirement of Strickland, and prove both deficient performance by his counsel resulting in prejudice, in order to excuse the default of his claim. He must establish “a reasonable probability.. .sufficient to undermined confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. This Court again analyzes this claim with the knowledge that a petitioner on death row was tried before a jury that was given an erroneous jury instruction. This Court is most reluctant to deny relief on such a claim were it not convinced that the error in question did not effect the reliability of the verdict in this case. Petitioner contended at trial that the victim tried to run him over with a vehicle causing him to become enraged. (J.A. 3803). He also denied that he had any intent to rob her of the ATM card. (J.A. 3810). In contrast, the prosecution contended that petitioner robbed the victim and killed her in the course of the crime. At trial, the petitioner called two witnesses in support of his defense of sudden rage in reaction to provocation by the victim. The first witness was Hallie Jo Ha-sky who reported the victim missing. (J.A. 3780). She told officers that Ms. Gabbard had been upset and was having difficulties with her boyfriend, the petitioner. (J.A. 3781). At best, her testimony suggested that she was concerned about the victim’s emotional well being prior to the murder. Hasky’s testimony did not otherwise advance the petitioner’s defense that he acted in a sudden rage under provocation. The petitioner himself was the only other witness called in his defense. The Court has again reviewed and re-reviewed in detail petitioner’s testimony at trial. Petitioner testified that earlier in the day he had taken his wife to work. (J.A. 3797). He then smoked crack with friends and failed to return to pick her up upon the completion of her shift. (J.A. 3797). He later met up with her at their mutual residence. Because he had forgotten to pick her up from work, Ms. Gabbard was angry. (J.A. 3798). According to petitioner, the two then went to a bar and consumed alcohol. (J.A. 3798). Later, Ms. Gabbard drove the two of them to a secluded area near the Champion Wastewater Treatment Plant near a river. According to petitioner, Ms. Gab-bard accused him of having an affair. He then left the car. (J.A. 3802). Petitioner testified that Ms. Gabbard then drove the vehicle at him at a high rate of speed. (J.A. 3803). He leaped out of the path of the vehicle and barely escaped being struck by the automobile. (J.A. 3803). Again according to petitioner, Ms. Gab-bard drove the car into deep mud, which caused the vehicle to stop. In a panic and rage, he contends that he then ran towards the vehicle. Petitioner testified that Ms. Gabbard came out of the car and the two of them began to fight. He then claimed that as they fell to the ground, he became aware of a metal object which he then used to bludgeon her approximately ten times. (J.A. 3806, 3845). He admitted that he dragged her to the river and placed her face down in the water. Significantly, petitioner testified that he was in possession of Ms. Gabbard’s ATM bank card before he took her to work earlier in the day. He denied ever having robbed her of the bank card. He admitted that the card was used after her death, but contended that he gave the card to a friend who had agreed to use the card to bring back either cash or crack cocaine The jury convicted petitioner of both aggravated murder and aggravated robbery. In theory, petitioner could have been found guilty of aggravated robbery without having been found guilty of aggravated murder. While such a scenario is at least possible, the testimony given by petitioner cannot support such a conclusion. In short, the jury was required to weigh petitioner’s testimony against the other evidence of record to determine whether the victim had provoked petitioner or whether petitioner had acted so as to commit aggravated robbery and aggravated murder. If the jury believed that petitioner had the card before the murder, the jury would not have convicted him of aggravated robbery. Given petitioner’s testimony, which was the only evidence offered regarding the issue of provocation and sudden rage, the jury clearly rejected petitioner’s version of events by finding him guilty of aggravated robbery. It is in this context that the Court must consider whether the error included in the jury instructions regarding the defense of voluntary manslaughter should result in the issuance of a writ of habeas corpus. If there was any issue for the jury to weigh concerning petitioner’s claim of sudden passion and provocation, the fact that other evidence may demonstrate his guilt would not suffice, since, as Barker holds, such a weighing of the evidence is for a jury and not a judge. In this case, however, the Court is convinced that by finding petitioner guilty of aggravated robbery and aggravated murder, the jury necessarily rejected his defense of sudden passion and provocation. This case reveals an error of law within the jury instructions that simply had no effect on the outcome of the case. While the mistake raised the potential for an improper verdict, given the jury’s conclusions on both counts of convictions, it is impossible to conclude that the mistake had any bearing on the conclusions reached by the jury in this case. Ultimately, the error had no impact on the presentation of evidence, the deliberations of the jury, or the verdicts of guilty returned in the case. For these reasons, the first claim for relief is overruled. Second Ground for Relief — Petitioner Benge’s conviction and/or sentences are void or voidable because the prosecutor suppressed exculpatory evidence at his capital trial In the petitioner’s second claim for relief, petitioner contends that the State withheld exculpatory evidence and knowingly presented false testimony at trial. He contends that Awantha Shields falsely testified that petitioner told her that he had killed Ms. Gabbard to obtain and use her ATM card. Counsel for the petitioner located Awantha Shields on March 5, 2001. To their credit, counsel forthrightly acknowledged that she did not produce any evidence or testimony in support of this claim for relief. Petitioner asked the Court to review the grand jury transcript of Awantha Shields’ testimony to determine whether there is any evidence contained therein in support of this claim. Further, the petitioner acknowledges that if no such evidence in support of the claim is found in the grand jury transcript, he intends to withdraw this claim. This Court has carefully reviewed the grand jury testimony given by Awantha Shields on March 3, 1993. The Court has also reviewed the testimony given by Awantha Shields in the jury trial conducted in May of 1993. The Court can find no evidence in the grand jury testimony or trial testimony to indicate that Awantha Shields lied when she testified that the petitioner told her that he killed Ms. Gab-bard. Further, there is no evidence in either the grand jury or trial testimony of Awantha Shields that would lead to even a reasonable suspicion that she lied because she had been threatened by prosecutors or was given a promise of leniency towards her boyfriend, John Fuller. As requested by the petitioner, the Court has completed its in camera review of the Grand Jury testimony. Further, given the petitioner’s request, the Court considers the claim to be withdrawn, in that no evidence is contained in the Grand Jury testimony of Awantha Shields that would indicate that her testimony at trial was false. Third Ground for Relief — Petitioner Benge’s convictions and sentences are void and/or voidable because a conflict of interest existed with his trial counsel, Craig Hedric, which prevented him from rendering effective assistance of counsel to Benge as required by the Sixth Amendment of the United States Constitution Petitioner argues in his third claim for relief that one of his defense attorneys, Craig Hedric, labored under an actual conflict of interest that prevented Mr. Hedric from providing effective assistance of counsel as required by the Sixth Amendment. Specifically, petitioner contends that his attorneys were prevented, by virtue of the conflict of interest under which Mr. Hedric labored, from discovering and presenting the testimony of a witness who could have both undermined the testimony of a key prosecution witness and bolstered petitioner’s own testimony. Petitioner’s allegations center on the fact that Mr. Hedric, at the time he was representing petitioner, was also representing John Fuller on unrelated drug charges. John Fuller was an acquaintance of petitioner’s and the live-in boyfriend of prosecution witness Awantha Shields. According to petitioner, John Fuller refused to discuss with Mr. Hedric knowledge he had regarding petitioner’s case because he was angry that Mr. Hedric appeared to be focusing all of his efforts on petitioner’s case and paying insufficient attention to the drug charges that he (Fuller) was facing. Petitioner maintains that John Fuller, who lived with Awantha Shields, could have testified that petitioner and Ms. Shields were never alone following the murder of Judith Gabbard, and that petitioner accordingly could not have told Ms. Shields that he had killed Ms. Gabbard to obtain her bank card, as Awantha Shields testified. That testimony, petitioner reasons, would have undermined the state’s theory that petitioner had killed Ms. Gab-bard to steal her bank card and corroborated his testimony that he had killed Ms. Gabbard in a fit of rage after she attempted to run him over with a car. Petitioner raised these allegations in his state postconviction action, (J.A. Vol. V, at 2012-14), and supported them with an affidavit executed by John Fuller in August of 1996. (J.A. Vol. V, at 2045-46). Upon consideration of the trial transcript, Fuller’s May 6, 1997 deposition, Fuller’s 1996 affidavit attached as exhibit 1 in support of the postconviction petition, Fuller’s March 3, 1993 testimony before the grand jury, and Fuller’s February 22, 1993 written witness statement, (which was affixed as exhibit A to the transcript of his deposition testimony), the trial court rejected petitioner’s conflict of interest claim. (J.A. Vol. V, at 2620-2631). The trial court found that Fuller had in fact refused to discuss his knowledge of petitioner’s case with petitioner’s defense attorneys. The trial court concluded, however, that Fuller’s case and petitioner’s case were completely unrelated, and that Mr. Hedric accordingly was never called upon to advocate a position on behalf of petitioner that was adverse to Fuller or vice versa. The trial court also concluded that there was no adverse effect of Mr. Hedric’s representation of both petitioner and Fuller, insofar as Fuller’s testimony most likely would have corroborated Awantha Shields’ testimony and inculpated petitioner, not exculpated petitioner. The state court of appeals affirmed the trial court’s decision in this regard. (J.A. Vol. VI, at 2968). Citing Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), as the trial court had, the court of appeals concluded: A review of the record indicates that Fuller and appellant’s cases were completely unrelated. Accordingly, we concur with the trial court’s finding that there was no conflict of interest in He-dric’s representation of Fuller and [appellant]. Furthermore, pursuant to our discussion of appellant’s first claim, even if Hedric had spoken with Fuller, Fuller’s testimony would have inculpated rather than exculpated appellant. (J.A. Vol. VI, at 2968). Since petitioner’s claim was adjudicated on the merits by the state courts, this Court’s review is confined to whether the state courts’ decision contravened or unreasonably applied clearly established federal law as determined by the United States Supreme Court. Petitioner argues that the state courts’ decisions denying his conflict of interest claim involved an unreasonable application of clearly established Supreme Court precedent. Specifically, petitioner contends that the state courts unreasonably applied the standard set forth in Cuyler v. Sullivan by stating in conclusory fashion that no conflict of interest existed because Fuller’s case and petitioner’s case were unrelated. (Petitioner’s traverse, doc.no. 47, at 8). To prove a claim of ineffective assistance of counsel, criminal defendants typically must demonstrate both that counsel’s performance was so deficient as to fall below prevailing professional norms and that, but for counsel’s deficient performance, there is a reasonable probability that the outcome of the defendant’s trial would have been different. Strickland v. Washington, 466 U.S. 668, 686-697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Citing its earlier decision in Cuyler v. Sullivan, the Court in Strickland recognized that prejudice should be presumed for those ineffectiveness claims in which the defendant demonstrates that his attorney labored under an actual conflict of interest that adversely affected the attorney’s performance. Strickland, 466 U.S. at 692, 104 S.Ct. 2052. In Cuyler v. Sullivan, the United States Supreme Court held that, “In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler, 446 U.S. at 350, 100 S.Ct. 1708. In that case, two retained attorneys represented three co-defendants charged with the murders of a labor official and his companion. Defendant-respondent went to trial first, and was convicted and sentenced to life in prison. His two co-defendants were later acquitted. Thus, a claim of ineffective assistance of counsel alleging an actual conflict of interest, as defined in Cuyler, involves a lessened standard of proof than that typically required to establish a claim of ineffective assistance of counsel under the two-part standard established in Strickland v. Washington. The Ohio courts relied on the Cuyler decision in rejecting Petitioner Benge’s conflict of interest claim, and petitioner asserts herein that he is entitled to relief based on the state courts’ unreasonable application of the Cuyler decision. This Court is not certain, however, that Cuyler v. Sullivan represents “clearly established Federal law as determined by the Supreme Court,” within the meaning of 28 U.S.C. § 2254(d)(1). The Sixth Circuit recently clarified that Cuyler’s lessened standard of proof has never been extended by the United States Supreme Court to any conflict other than joint representation. Smith v. Hofbauer, 312 F.3d 809, 818 (6th Cir.2002), cert. denied, - U.S. -, 124 S.Ct. 441, 157 L.Ed.2d 319 (2003). In that case, the petitioner alleged that his attorney labored under a conflict of interest because, at the time he was representing the petitioner against sexual assault charges, he himself was under criminal indictment in the same county for a felony drug charge. Pointing out that the conflict of interest alleged by Petitioner Smith was not one involving joint representation, the Sixth Circuit explained that petitioner’s claim could not prevail because it did “not rest upon ‘clearly established’ federal precedent.” Id. “Petitioner seeks relief on a basis not supported by clearly established federal law inasmuch as the Supreme Court has never applied Sullivan’s lessened standard of proof to any conflict other than joint representation.” Id. In the instant case, the conflict of interest alleged by petitioner is not one involving joint representation. Although petitioner labeled Fuller a “suspect” and “potential witness for the prosecution,” (Traverse, doc.no. 47, at 8), petitioner and John Fuller were never co-defendants in the same prosecution, and petitioner does not contend otherwise. (Id., at 11). Thus, petitioner is not entitled to the lessened standard of proof set forth in Cuyler v. Sullivan, and must instead demonstrate under Strickland that defense counsel, due to the alleged conflict of interest on the part of Mr. Hedric, performed deficiently and to petitioner’s prejudice. This the petitioner cannot do. Awantha Shields testified at trial that she had met Petitioner Benge four or five times through her boyfriend, John Fuller. She testified that he arrived at her home around 4:00 a.m. on February 1, 1993, that he was soaking wet, and that John Fuller was not present at the time. She testified that Petitioner Benge proceeded to tell her that he and his girlfriend had “gotten into it,” and that, after driving down by the Miami River together, he had hit her with a crowbar “no more than ten times.” (J.A. 3510). According to Shields, petitioner said that he did not know whether his girlfriend was dead, but that he proceeded to throw a few rocks over her head and then pushed her into the river. (J.A. 3511). After refreshing her recollection with the witness statement that she had given to Detective Franks, (J.A. 3514), Shields then testified that, when she asked petitioner why he had done this, he said that he had done it for the victim’s Jeanie card. (J.A. 3515). Shields also testified that petitioner said he planned to tell the police, if they questioned him, that “a couple of black guys” had jumped petitioner and his girlfriend. (J.A. 3515). Awantha Shields confirmed during cross examination that John Fuller was not at home when petitioner arrived there, (J.A. 3524), and testified during re-direct examination that John Fuller arrived at some point while petitioner was still there. (J.A. 3531-32). According to Shields, John Fuller brought with him a newspaper in which Shields found a story apparently confirming what petitioner said he had done. (J.A. 3532). At that point, petitioner was asked to leave the apartment. (J.A. 3528). Petitioner’s own testimony regarding his contact with Awantha Shields and John Fuller was limited and lacking in details. He testified that he thought to go to John Fuller’s residence for dry clothes and to warm up because it was close. (J.A. 3808). He testified that, after getting clothes from Fuller, he sat around for a while with Fuller and Shields getting high. (J.A. 3808-09). He went on to testify that he was hanging around on a street corner with Fuller, Fuller’s son, and a woman named Racine Wells when he was arrested. (J.A. 3810-11). Petitioner never mentioned whether Fuller was at the apartment when he (petitioner) arrived, or whether there was any point during which petitioner and Shields were alone. The issue before the Court is whether, by virtue of Mr. Hedric’s representation of both petitioner and John Fuller, defense counsel performed deficiently and to petitioner’s prejudice. Petitioner contends that, but for Mr. Hedric’s conflict of interest, John Fuller would have testified that petitioner and Shields were never alone in the apartment, that he (Fuller) was always present, and that petitioner accordingly could not have told Shields that he had killed Gabbard to get her Jeanie card. John Fuller never shared this information with petitioner’s attorneys, according to petitioner, because Fuller was angry that Mr. Hedric appeared to be devoting all of his attention to petitioner’s case, and none to the drug charges Fuller was facing. The record does not support petitioner’s contentions. In his witness statement to the police, dated February 22, 1993, John Fuller said that he and Shields were both home on February 1, 1993, when petitioner arrived at their apartment around 4:00 a.m. (J.A. 4423). Fuller also said that petitioner admitted in front of both Fuller and Shields that he had killed his girlfriend by striking her with a jack or crow bar and dumping her body in the river. According to Fuller, petitioner stated that he knew when he and Gabbard argued after she returned from work what he was going to do, and that he planned to tell the police that two black males had robbed them and killed Judy Gabbard. Finally, Fuller said, “I could have missed some of Mike’s conversation when he came to the house as I was asleep and I was trying to get awake when he was telling the story about killing her.” (J.A. 4425). Fuller said that petitioner had mentioned having Gabbard’s Jeanie card, but Fuller also said that, when he asked petitioner whether he had killed Gabbard for money, petitioner did not answer. In his testimony to the grand jury on March 3, 1993, Fuller indicated that he arrived home on February 1, 1993, around 4:00 a.m. to find petitioner already there. (J.A. 4430). With the exception of whether petitioner admitted to Fuller and Shields, or just Fuller, that he had killed Judy Gabbard, Fuller went on to relate essentially the same details to the grand jury that he had related to Detective Franks in his witness statement. (J.A. 4426-4434). Over three years later, in an affidavit dated August of 1996, Fuller stated that he was home with Shields when petitioner arrived wet and in need of dry clothes. (J.A. 4435). According to Fuller, petitioner admitted to killing Judy Gabbard, but never said anything about doing it for her Jeanie card. (J.A. 4436). Fuller also stated, “I refused to talk about Mike’s (Benge’s) case because I was angry with Hedric for neglecting my case.” (Id. at ¶ 12). Finally, Fuller stated that he could not remember what he had said in his grand jury testimony, but that if he had been asked, he would have testified that he was home with Shields when petitioner arrived. (Id. at ¶ 13). (Of course, Fuller testified to the grand jury that he was not at home when Petitioner Benge arrived.) Finally, in a deposition conducted on May 6, 1997, Fuller indicated repeatedly that he simply could not remember whether or not he was home with Shields when petitioner arrived on February 1, 1993. (J.A. 4382, 4388). However, Fuller indicated towards the end of his deposition that he could not remember seeing petitioner in wet clothes, and only remembered seeing petitioner once petitioner was wearing some of his (Fuller’s) clothes, thereby suggesting that there were moments when Fuller was not present with Shields and petitioner. (J.A. 4412-13). Fuller further indicated that he “hit the roof’ when he saw that petitioner was wearing one of his (Fuller’s) jackets, and that Fuller never would have allowed Shields to lend that particular jacket to petitioner. (J.A. 4418-19). Thus, Fuller essentially conceded that there must have been conversations between Shields and petitioner to which he (Fuller) was not privy. (J.A. 4419). To prove a claim of ineffective assistance of counsel, petitioner must demonstrate both that counsel performed deficiently and that, but for counsel’s deficient performance, there is a reasonable probability that the outcome of his trial would have been different. To that end, petitioner asserts that defense counsel performed de-ficiently by virtue of Mr. Hedric’s representation of both petitioner and John Fuller, and that petitioner was prejudiced by the conflict of interest insofar as it caused Fuller not to cooperate with Mr. Hedric regarding petitioner’s case. Petitioner has failed to demonstrate that there was an actual conflict of interest in Mr. Hedric’s representing both petitioner and John Fuller. The state courts found that there was no actual conflict, since petitioner and Fuller were not co-defendants and Mr. Hedric was never required to advocate a position for one that was adverse to the interests of the other. Having reviewed the record and relevant case law, this Court finds nothing unreasonable about the state courts’ conclusion in this regard. Petitioner suggested throughout his traverse that John Fuller was a suspect in the murder of Judy Gab-bard, thereby creating at least a potential conflict of interest for Mr. Hedric. But petitioner has failed to cite, and the Court is not aware of, any evidence in the record suggesting that John Fuller was a suspect in' Ms. Gabbard’s murder. In short, with respect to whether the interests of petitioner and John Fuller were at odds sufficient to create an actual conflict of interest for Mr. Hedric, there is simply no evidence in the record suggesting that Mr. Hedric’s duty of loyalty and to zealously represent petitioner was compromised in any way by Mr. Hedric’s representation of John Fuller. Finally, with respect to petitioner’s argument that Mr. Hedric performed defi-ciently in failing to advise Petitioner Benge and the trial court of the alleged conflict of interest, (Traverse, doc.no. 47, at 10), in light of the fact that Mr. Hedric alerted the trial court in John Fuller’s case by filing a motion to withdraw as Mr. Fuller’s attorney, since the record provides little support that a conflict of interest existed, it cannot be said as a matter of constitutional law that Mr. Hedric performed defi-ciently in failing to advise petitioner that he (Hedric) was also representing Fuller. While petitioner failed to demonstrate an actual conflict of interest, he arguably established the possibility of adverse consequences from Mr. Hedric’s representation of both petitioner and Fuller. It is clear from the record that Fuller refused to talk to Hedric about petitioner’s case because Fuller was angry that Hedric appeared to be more focused on Benge’s case than on Fuller’s case. (J.A. 4436, 4414-15). In other words, defense counsel were able to learn nothing from Fuller regarding Fuller’s knowledge of petitioner’s case solely because of Mr. Hedric’s representation of both petitioner and Fuller. Whether or not petitioner has demonstrated deficient performance on the part of his attorneys by virtue of Mr. Hedric’s alleged conflict of interest, it tests the limits of credulity to suggest that petitioner actually suffered any adverse effects from Mr. Hedric’s representation of petitioner and Fuller. Even assuming that Mr. Hedric had not represented both, and that Fuller had shared with defense counsel everything he knew about petitioner’s ease, it is far from certain that defense counsel would have learned anything beneficial to petitioner’s case or would have called Fuller to testify. While it is difficult to know for sure what Fuller might have testified to, given the variances between his witness statement, grand jury testimony, 1996 affidavit, and 1997 deposition, it appears that he would have corroborated Shields’ testimony and impugned petitioner. Regardless of whether Fuller was home with Shields when Benge arrived, it is all but certain that there were some conversations between Shields and Benge to which Fuller was not privy. John Fuller admitted in his witness statement that he may have missed some of the conversation between petitioner and Shields because he was asleep, (J.A. 4425); in his grand jury testimony that he was not home when petitioner first arrived at the apartment that he (Fuller) and Shields shared, (J.A. 4430); and in his 1997 deposition that there must have been conversations between petitioner and Shields to which he (Fuller) was not privy, (J.A. 4418-19). Thus, even assuming petitioner could demonstrate deficient performance on the part of defense counsel due to Mr. Hedric’s alleged conflict of interest — a finding the Court has not expressly made, since there was no actual conflict of interest — petitioner cannot demonstrate that he was prejudiced by the alleged deficient performance. Petitioner simply cannot show that, but for Mr. Hedric’s representation of both petitioner and Fuller, there is a reasonable probability that the outcome of petitioner’s trial would have been different. For the foregoing reasons, the Court finds that petitioner’s third ground for relief is without merit and must be denied. Fourth Ground for Relief — Michael Benge was denied the right to a fair trial, due process of law, and a reliable sentencing determination because the jury and trial court weighed a non-statutory aggravating factor In his petition, petitioner explains that state’s exhibit 1 was a photograph of Petitioner Benge taken shortly after his arrest. In that photo, petitioner was wearing clothes that belonged to John Fuller, not petitioner, including a cap that said, “No more Mr. Nice Guy.” Petitioner complains that the prosecution, in spite of knowing that the clothes did not belong to petitioner, emphasized that hat in closing arguments at the penalty phase of the trial to divert the jury’s attention from the single aggravating circumstance and from legitimate mitigating evidence. (Petition, doc. no. 15, at ¶ 27). In his traverse, petitioner expressly withdraws this claim, stating, “After careful review of this claim, counsel have determined that it is not sufficiently compelling on its own to warrant the writ of habeas corpus.” (Traverse, doc.no. 47, at 15). Petitioner chooses instead to discuss these allegations in the context of his ninth ground for relief, i.e., prosecutorial misconduct during the culpability and penalty phases of the trial. Accordingly, petitioner’s fourth ground for relief, as set forth in the habeas corpus petition, will be denied. The Court will consider the allegations supporting ground four when it considers petitioner’s ninth ground for relief. Fifth Ground for Relief — Michael Benge was denied the right to a fair trial, due process of law, and a reliable sentencing determination because the State introduced insufficient evidence of aggravated robbery Petitioner argues in his fifth ground for relief that there was insufficient evidence to support the crime of aggravated robbery. Petitioner was charged in count one with aggravated felony murder under R.C. § 2903.01(B), charging that he had purposely caused the death of Judith Gabbard while committing or attempting to commit aggravated robbery. Petitioner was charged in count two with aggravated robbery. Petitioner argues that his conviction for aggravated robbery should be vacated, and that his death sentence should be vacated as well, since aggravated robbery was an essential element of the offense of the felony aggravated murder offense for which petitioner was convicted and sentenced to death. Petitioner argues that the state failed to prove either that he stole Judy Gabbard’s ATM card, or that he intended to kill her for the purpose of stealing her ATM card. According to petitioner, The State introduced precisely four references in support of the charge. It elicited testimony that Mr. Benge was in possession of the bank card at the time of his arrest. J.A. 3537. It established that two withdrawals were made after Judy’s death. J.A. 3659. The State also established that Judy’s jacket, which had been floating in the river, had one of its pockets turned inside out. J.A. 3690. It elicited the absurd and unbelievable testimony from Awantha Shields that she invited Mr. Benge, whom she did not know well, into her home at 4:00 a.m., that Mr. Benge was soaking wet, and that he casually announced that he killed his girlfriend for her Jeanie card. J.A. 3515. These four points were the extent of the State’s evidence in support of the aggravated murder charge. (Petitioner’s traverse, doc.no. 47, at 19). Petitioner argues that this weak evidence was further undermined by his own testimony that he and Judy shared his checking account and that he had permission to use Judy’s ATM card. Petitioner further argues that, according to the coroner, personal items recovered from Judy’s body included jewelry, a checkbook, and cash, thereby undermining the state’s assertion that petitioner had killed her to rob her. Petitioner maintains that the State failed to prove either that he stole the ATM card or that he intended to kill Judith Gabbard for the purpose of stealing her ATM card, and that the State accordingly failed to prove beyond a reasonable doubt the essential elements of the felony aggravated murder count, the attached death penalty specification, or the aggravated robbery charge. Petitioner’s claim was considered and rejected by the Supreme Court of Ohio on direct appeal. Citing State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132, syllabus (1978), the Supreme Court noted that “ ‘[a] reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt.’ ” The Supreme Court proceeded to recount the same evidence cited by petitioner — namely, the testimony of Awantha Shields’ regarding petitioner’s admission that he had killed Gabbard for her “Jeanie” card, the fact that petitioner dropped the ATM card when the police approached him, and the fact that one of Gabbard’s coat pockets was turned inside out. Benge, supra, 75 Ohio St.3d at 142-42, 661 N.E.2d 1019. The Supreme Court also pointed out that petitioner had recently lost his job and was in need of money to support his drug habit. Id. at 143, 661 N.E.2d 1019. The Supreme Court concluded by noting, “The fact that appellant presented his own version of events in order to support his claim that he had permission to use the ATM card simply brings the credibility of witnesses into play. However, this court will not ‘substitute [its] evaluation of witness credibility for the jury’s.’ ” Benge, 75 Ohio St.3d at 143, 661 N.E.2d 1019 (quoting State v. Waddy, 63 Ohio St.3d 424, 430, 588 N.E.2d 819 (1992)). Petitioner argues in the instant action that the state courts failed to apply or even discuss federal constitutional principles in rejecting his claim, and that the state courts’ decision accordingly did not constitute an “adjudication on the merits” sufficient to invoke the deferential standard of review set forth in 28 U.S.C. § 2254(d)(1). Petitioner argues in the alternative that the state opinions unreasonably applied clearly established Federal law, insofar as they did not acknowledge or apply the controlling cases from the United States Supreme Court, ie., Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Petitioner urges the Court to review his claim de novo. The lack of a specific reference to the federal constitution or interpretive case law does not mean that the state courts failed to adjudicate the merits of a claim. The United States Supreme Court recently held that a state court need not cite to, nor even be aware of, clearly established Supreme Court precedents, “so long as neither the reasoning nor the result of the state-court decision contradicts them.” Esparza v. Mitchell, — U.S. -, -, 124 S.Ct. 7, 10, 157 L.Ed.2d 263 (2003) (internal quotation marks and citation omitted). In reviewing the sufficiency of the evidence claim presented by Petitioner Benge, the Ohio Supreme Court followed the standard set forth in State v. Eley, supra, stating that “[a] reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of the offense have been proven beyond a reasonable doubt.” Benge, 75 Ohio St.3d at 142, 661 N.E.2d 1019 (quoting Eley, supra, 56 Ohio St.2d at syllabus). Having reviewed countless state court decisions generally discussing sufficiency of the evidence claims, this Court has found that the state standard in State v. Eley, and federal standard in Jackson v. Virginia, are frequently cited in tandem and arguably present the same test for sufficiency of the evidence to support a conviction. See, e.g., State v. Loza, 71 Ohio St.3d 61, 68-69, 641 N.E.2d 1082 (1994). To the extent that the Ohio Supreme Court applied a more exacting standard for petitioner to satisfy than that set forth in Jackson v. Virginia — a finding this Court has not made — it would appear that the Ohio Supreme Court’s decision was contrary to clearly established Federal law, necessitating de novo review by this Court. See Magana v. Hofbauer, 263 F.3d at 542, 550 (6th Cir.2001)(discussing Williams v. Taylor, supra, 529 U.S.at 405-406, 120 S.Ct. 1495). That said, the Court’s resolution of petitioner’s claim would be exactly the same, whether it reviewed the claim de novo or whether it endeavored to determine whether the Ohio Supreme Court’s decision contravened or unreasonably applied clearly established United States Supreme Court precedent. Sufficiency of the evidence questions are governed by the United States Supreme Court’s decision in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). When a state prisoner challenges the sufficiency of evidence, a federal habeas corpus court must consider whether there was sufficient evidence introduced at trial to allow a rational trier of fact to find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). To determine whether the evidence was sufficient to support a conviction as a matter of due process, this Court must consider the evidence in the light most favorable to the prosecution. Jackson, 443 U.S. at 319, 99 S.Ct. 2781. The prosecution is not affirmatively required to “rule out every hypothesis except that of guilt.” Id. at 326, 99 S.Ct. 2781; see also United States v. Beddow, 957 F.2d 1330, 1334 (6th Cir.1992). A reviewing court “faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Id.; see also Jamison v. Collins, 100 F.Supp.2d 647, 705 (S.D.Ohio 2000)(“A conviction may rest on circumstantial evidence, and a federal habeas corpus court need not rule out all possible interpretations of the circumstantial evidence.”), aff'd, 291 F.3d 380 (6th Cir.2002). This Court does not substitute its opinion as to the weight of the evidence or the credibility of witnesses. See United States v. Jackson, 55 F.3d 1219, 1225 (6th Cir.), cert. denied, 516 U.S. 926, 116 S.Ct. 328, 133 L.Ed.2d 229 (1995); Neal v. Morris, 972 F.2d 675, 679 (6th Cir.1992). “The trier of fact at the state court level alone bears the responsibility to choose which testimony or evidence to believe.” Jamison v. Collins, 100 F.Supp.2d at 705. A sufficiency of evidence review, for purposes of federal habeas relief, does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather on whether it made a rational decision to convict or acquit. Herrera v. Collins, 506 U.S. 390, 402, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (clarifying Jackson, 443 U.S. 307, 99 S.Ct. 2781). Under clearly established Federal law, i.e., Jackson v. Virginia, supra, petitioner’s claim that there was insufficient evidence to support aggravated robbery must fail. Section 2911.01(A) of the Ohio Revised Code provides: No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall do either of the following: (1) Have a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control; (2) Inflict or attempt to inflict serious physical harm on another. As to “theft offense,” R.C. § 2913.02 provides: No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways: (1) Without the consent of the owner or person authorized to give consent; (2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent; (3) By deception; (4) By threat. Through the testimony of Awantha Shields, the prosecution introduced evidence that petitioner, by his own admission, killed Judith Gabbard for her ATM card. The prosecution also introduced evidence that petitioner was in possession of Judith Gabbard’s ATM card, that the card was used twice after her death, and that petitioner tossed it to the ground as police approached to arrest him. Finally, the prosecution introduced evidence that a pocket on Gabbard’s coat, which was found floating in the river, was turned inside out. Petitioner’s own testimony established that he was out of work and, in conjunction with other testimony, implied he was in need of money to support his drug habit. Petitioner would have this Court dismiss Shields’ testimony as “absurd and unbelievable,” (Petitioner’s traverse, doc.no. 47, at 19), and believe over her testimony his own testimony that he had permission to use Gabbard’s ATM card and that he and Gabbard also shar