Full opinion text
MEMORANDUM OPINION KATZ, District Judge. This matter is before the Court on Petitioner Frederick Dickerson’s Petition for a writ of habeas corpus, (Doc. No. 24). Respondent, Betty Mitchell, filed a Return of Writ, (Doc. No. 26), to which Petitioner filed a Traverse, (Doc. No. 46). Thereafter, Respondent filed a Sur-Reply, (Doc. No. 47). For the following reasons, Petitioner’s motion for a writ of habeas corpus will be denied. I. Factual Background On May 31, 1985, Dickerson was indicted by a Lucas County grand jury on two counts of aggravated murder pursuant to Ohio Revised Code § 2903.01(B). Each count carried with it a felony murder specification pursuant to Ohio Revised Code § 2929.04(A)(7), a mass murder specification pursuant to Ohio Revised Code § 2929.04(A)(5), and a firearm specification pursuant to Ohio Revised Code § 2929.71. Dickerson waived his right to a trial by jury and his trial by a three-judge panel commenced on November 4, 1985. The panel found Dickerson guilty of both counts of aggravated murder and of the attached specifications. On November 7, 1985,' the panel imposed the death sentence for each count of aggravated murder and two consecutive three-year terms of incarceration for the two firearm specifications. The panel entered its judgment on November 13,1985. The Ohio Supreme Court set out the following factual history, as adduced by the evidence presented at trial, upon considering Dickerson’s direct appeal of his convictions and sentence: Defendant-appellant, Frederick Dickerson, and Denise Howard were involved in a relationship between 1978 and March 1985. Out of this relationship, two children, Frederick and Jovan, were born. Howard decided to terminate her relationship with appellant because of verbal and physical abuse he had allegedly inflicted upon her. Shortly thereafter, Howard and her children moved in with Kevin McCoy, who shared a duplex apartment with Davida McClain and her children, Tony, Donya, and Nicole. Nicole was also known as Sue. The apartment was located at 1552/& Pinewood in Toledo, Ohio. Upon discovering Howard’s new address, appellant went there on May 26, 1985 in an attempt to renew his relationship with Howard. When Howard rebuffed appellant’s overtures for a reconciliation, appellant assaulted her. This assault was witnessed by Curtis Jewell, a patrolman with the Toledo Police Department who was off-duty at the time. Jewell asked his father to call the police and went to assist Howard. As a result of this incident, appellant was placed under arrest and charged with disorderly conduct. Subsequently, Howard, her children and McCoy went to the residence of McCoy’s mother and returned to the Pinewood apartment at approximately 2:30 a.m. on May 27, 1985. At that time, Howard found a note on her car window from appellant. Approximately an hour later, Howard saw appellant at the side of the Pinewood apartment and promptly called police. Howard testified that she called the police again at approximately 4:00 a.m. upon hearing someone at the side of the apartment, and phoned them again approximately one-half hour later when she observed appellant near the apartment. Upon investigating each time, the police were unable to locate appellant in the vicinity of the apartment. Shortly thereafter, however, Howard testified that she heard a window in the apartment bathroom being opened, whereupon she awakened McCoy. McCoy left the bedroom, grabbed a chair and apparently charged toward the bathroom window. Howard ran out the door and down the stairs when she heard a crash and a gunshot. Upon running to a nearby house, she called the police. Before the police could respond to the call, appellant shot McCoy in the chest and in the back of the head. Appellant also shot Nicole McClain twice in the face. The record indicates that McCoy died at the scene, and that McClain died within approximately two hours of the shootings. Appellant was arrested at approximately 6:00 a.m. next to the rear stairwell outside the Pinewood apartment. The arresting officers recovered a .22 caliber nine-shot revolver from appellant that was later identified as the murder weapon. On May 31, 1985, appellant was indicted by the grand jury on two counts of aggravated murder. Each count carried a felony murder specification and a mass murder specification, as well as firearm specifications. On October 18, 1985, appellant waived his right to a trial by jury. Consequently, his trial before a three-judge panel commenced on November 4, 1985. The guilt phase of the trial concluded the following day, whereupon the panel returned verdicts finding appellant guilty of both counts of aggravated murder, as well as the specifications attached to those counts. The mitigation hearing took place immediately thereafter, and on November 7, 1985, the panel announced its judgment that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt. Therefore, the panel imposed the death sentence for each count of aggravated murder and two consecutive three-year terms of actual incarceration for the conviction of the two firearm specifications. On November 13, 1985, the panel entered its judgment entry of sentence. State v. Dickerson, 45 Ohio St.3d 206, 543 N.E.2d 1250, 1252 (1989). II. Procedural History Dickerson, represented by Fritz Byers, filed a timely direct appeal of the trial court judgment to the Sixth District Court of Appeals setting forth twelve (12) assignments of error. The Court of Appeals affirmed Dickerson’s conviction and sentence. State v. Dickerson, No. L-85-433, 1988 WL 13216 (1988). Dickerson then appealed to the Ohio Supreme Court, raising fifteen (15) propositions of law. The Ohio Supreme Court affirmed the conviction and sentence on September 6, 1989. State v. Dickerson, 45 Ohio St.3d 206, 543 N.E.2d 1250 (1989). Dickerson concluded his direct appeal by petitioning the United States Supreme Court for certiorari on three issues of law. The Supreme Court denied the petition. Dickerson v. Ohio, 494 U.S. 1090, 110 S.Ct. 1836, 108 L.Ed.2d 965 (1990). On November 21,1990, Dickerson filed a petition for post-conviction relief pursuant to Ohio Revised Code § 2953.21 in the Lucas County Court of Common Pleas, alleging twenty-four (24) claims for relief. Concurrently, Dickerson filed a motion to recuse the trial judge, the Honorable Richard Knepper. On February 28, 1991, Dickerson filed a first amended petition, alleging twenty-six (26) claims for relief. Dickerson later filed a second amended petition, alleging the same twenty-six (26) claims for relief. Thereafter, the State of Ohio filed, a motion for summary judgment. Judge Knepper granted Dickerson’s motion for recusal and transferred the case to the Honorable James Bates on June 25, 1991. One month later, Judge Bates denied Dickerson’s petition for post-conviction relief. Dickerson then filed a motion for relief from judgment and a motion for Judge Bates to recuse himself. The court denied both motions. Dickerson filed a notice of appeal of his post-conviction petition on August 26,1991, alleging thirteen (13) assignments of error. On June 11, 1993, the Sixth District Court of Appeals found Dickerson’s first assignment of error (recusal of Judge Bates) to be well-taken and denied the remaining assignments of error as moot. The Court of Appeals remanded the case to the trial court. On June 21, 1993, the case was reassigned to the Honorable Frederick McDonald. Judge McDonald heard oral arguments on the State of Ohio’s motion to dismiss the case on January 23, 1998. The trial court granted the State of Ohio’s summary judgment motion one month later, dismissing Dickerson’s petition for post-conviction relief. Dickerson again appealed the trial court’s decision to the Sixth District Court of Appeals. He filed a brief alleging one assignment of error. On January 14, 2000, the Court of Appeals filed its opinion affirming the trial court’s denial of post-conviction relief. Dickerson appealed that decision to the Ohio Supreme Court on February 15, 2000, raising two propositions of law. The Ohio Supreme Court dismissed Dickerson’s appeal as not invoking a substantial constitutional question on May 3, 2000. Although Dickerson filed a motion for reconsideration, the Ohio Supreme Court denied the motion on June 14, 2000. III. Habeas Proceeding On September 15, 2000, Dickerson filed a Notice of Intent to file a habeas corpus petition pursuant to 28 U.S.C. § 2254, (Doc. No. 1). Concurrently, Dickerson filed a Motion for a Stay of Execution, a Motion for Appointment of Counsel, and a Motion to proceed In Forma Pauperis, (Doc. Nos. 2, 3, 4). The Court granted all motions and appointed David Doughten and Jeffrey Helmick to represent him. Dickerson filed the Petition on March 16, 2001, (Doc. No. 24). Respondent filed the Return of Writ on June 7, 2001, (Doc. No. 26). After requesting and receiving two extensions, Dickerson filed the Traverse on August 6, 2001, (Doc. No. 46), to which Respondent filed a Sur-Reply on August 21, 2001, (Doc. No. 47). Upon its initial review of the claims presented in the Petition, the Court concluded that the factual evidence Dickerson supplied to support his fourth claims for relief was insufficient to render a fully informed decision. Accordingly, the Court issued an Order to Show Cause Why an Evidentiary Hearing Should Not Issue, (Doc. No. 53). In her Response to the Court’s Order, the Respondent indicated that she did not oppose an evidentiary hearing, (Doc. No. 54). Upon deposing trial counsel, however, both parties believed it unnecessary to hold a hearing, as the depositions provided ample factual development for this Court to decide the jury waiver claims raised in the Petition, (Doc. No. 58). Thereafter, the parties submitted post-deposition briefs, (Doc. Nos. 66, 69). IV. Petitioner’s Grounds for Relief Dickerson asserts sixteen claims for relief in the Petition. The claims are as follows: 1.The judgment against Petitioner is void or voidable because his death sentence was secured through the use of a statutory scheme that violates the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 2 and 9 of the Ohio Constitution. 2. The Petitioner did not voluntarily, intelligently, and knowledgeably waive his right to a jury trial. The resultant convictions and sentences were thus in violation of his constitutional rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. 3. The trial court erred in accepting the Petitioner’s waiver as properly executed in violation of Petitioner’s rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. 4. Dickerson was denied the effective assistance of counsel in the guilt-innocence determination phase as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. 5. The judgment against Petitioner Dickerson is void or voidable because the three-judge panel that sentenced Petitioner to death did not apply the prescribed criteria for sentencing in violation of Ohio Revised Code § 2929.03 nor did it adequately specify the reasoning process it used to assess Petitioner’s mitigating evidence in violation of Ohio Revised Code § 2929.03 and the Fifth, Sixth, Eighth, and .Fourteenth Amendments of the United States Constitution. 6. The judgment against Petitioner Dickerson is void or voidable because the three-judge panel in his case at trial weighed non-statutory aggravating circumstances against mitigating factors in violation of Ohio Revised Code § 2941.14(B) and Petitioner’s constitutional rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. In addition, the trial court improperly admitted irrelevant reports to impeach experts on the issue of the Petitioner’s mental health at the time of the offense. 7. The judgment against Petitioner Dickerson is void or voidable because the three-judge panel that decided Petitioner’s case and imposed a death sentence on him issued a capital sentencing opinion that did not meet the standards of Ohio Revised Code § 2929.03(F) thus depriving the Petitioner of a state-created interest and thus denying him his constitutional rights as guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. 8. The judgment against Petitioner Dickerson is void or voidable because the indictment in his capital case failed to state all elements required to be proven to obtain a finding of guilt as to the charges of aggravated murder and the accompanying specifications, thereby denying the Petitioner sufficient information as to the charges against him for purposes of preparing a defense in violation of Petitioner’s constitutional rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. 9. Where counsel fails to investigate and present relevant mitigating evidence which, if presented, should have resulted in a life sentence, a capitally accused defendant is denied the effective assistance of counsel. 10. The judgment against Petitioner Dickerson is void or voidable because the Petitioner was denied the effective assistance of counsel and his due process right to a fair trial, and his right not to be subject to cruel and unusual punishment as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution due to the actions of the presiding judge of the three-judge panel that convicted and sentenced Petitioner Dickerson to death. 11. The state failed to introduce sufficient evidence upon which to premise a conviction for aggravated murder and, therefore, Dickerson’s conviction and sentence of death deprived him of substantive and procedural due process as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. 12. The judgment against Petitioner Dickerson is void or voidable because of disproportionality and racial bias in the application of the death penalty in Petitioner’s case in violation of his constitutional rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. 13. The judgment against Petitioner Dickerson is void or voidable because the guilt and mitigation phases of his trial were replete with errors, making his sentence of death unreliable and inappropriate in violation of his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. 14. Dickerson’s convictions and/or sentences are void and/or voidable because of the cumulative effect of the errors that occurred in his case. 15. Petitioner’s conviction and sentence of death are void or voidable as the Lucas County [sic] Court of Appeals improperly corrected the trial court’s violation of Ohio Revised Code § 2929.03. 16. Dickerson’s convictions and sentences are void or voidable because he was convicted and sentenced to death pursuant to Ohio Revised Code §§ 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929 .03, and 2929.04, and his death sentence was reviewed on appeal pursuant to Ohio Revised Code § 2929.05, which are all unconstitutional, both on their face and as applied. Dickerson’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments were violated by his conviction and death sentence. V. Standard of Review Dickerson filed his Petition on March 16, 2001, well after the effective date of the Anti-Terrorism and Effective Death Penalty Act (hereinafter “AEDPA”). Consequently, the Court will utilize this standard when analyzing Dickerson’s claims. The AEDPA changed federal habeas corpus law in several important respects. Among the most significant of these changes is the standard of review to be applied to state court legal and factual determinations. Under the Act: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). The Supreme Court, in (Terry) Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), set forth the standard of review a federal habeas court must apply under § 2254(d). The Supreme Court provided definitions for the phrases “contrary to,” “unreasonable application of,” and “clearly established federal law” in § 2254(d)(1). Id. The Supreme Court first pointed out that the phrases “contrary to” and “unreasonable application of’ must be given independent meanings. Id. at 404-05, 120 S.Ct. 1495. A state court decision can be “contrary to” the Supreme Court’s clearly established precedent in two ways: (1) “if the state court arrives at a conclusion opposite to that reached by this Court on a question of law,” and (2) “if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to” that decision. Id. The Williams Court also stated that the word “contrary” “is commonly understood to mean ‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually opposed.’ ” Id. Thus, § 2254 “suggests that the state court’s decision must be substantially different from the relevant precedent of [the Supreme Court].” Id. The Supreme Court suggested that this phrase would be applicable if the state court applies a rule that contradicts the governing law set forth in prior Supreme Court cases, such as if a state court were to hold that, in order to establish an ineffective assistance of counsel claim, a defendant must prove by a preponderance of the evidence, instead of only a “reasonable probability,” that the results of the trial-would have been different. Id. at 405-06, 120 S.Ct. 1495. The Supreme Court held that an “unreasonable application” occurs when “the state identifies the correct legal principle from this Court’s decision but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 410, 413, 120 S.Ct. 1495 (“For purposes of today’s opinion, the-most important point is that an unreasonable application of federal law is different from an incorrect application of federal law.”) (emphasis in original). See also Bell v. Cone, 535 U.S. 685, 698-99, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002)(holding that, for petitioner to succeed on a habeas claim, “he must do more than show that he would have satisfied [the applicable. Supreme Court] test if his claim were being analyzed in the first instance, because under 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state court applied [Supreme Court precedent] incorrectly.... Rather, he must show that the [state court] applied [Supreme Court precedent] to the facts of his case in an objectively unreasonable manner.”). The Supreme Court also pointed out that, to determine the reasonableness of the state court’s decision, a court must employ an objective test, not a subjective one. The Williams Court, thus, rejected the Fourth Circuit’s holding that a state court’s application of federal law was only unreasonable “if the state court has applied federal law in a manner that reasonable jurists would all agree is unreasonable.” Williams, 529 U.S. at 376, 120 S.Ct. 1495. The Court reasoned that this test was too subjective because a court might “rest its determination ... on the simple fact that at least one of the Nation’s jurists has applied the relevant federal law in the same manner the state court did in the habeas petitioner’s- case.” Id. at 410, 120 S.Ct. 1495. The'Williams Court also provided further guidance for the phrase “clearly established holdings of the Supreme Court.” Id. at 412, 120 S.Ct. 1495. The Court stated that this, statutory phrase “refers to the holdings as opposéd to its dicta, of this Court’s decisions as of the time of the relevant state-court decision.” Id. The Sixth Circuit has noted that “this provision marks ‘significant change’ and 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)). The Williams Court referred to the jurisprudence it has developed under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), to help guide federal courts as to what qualifies as “clearly established Federal law.” Williams, 529 U.S. at 412, 120 S.Ct. 1495. The Court stated “[w]hatever would qualify as an ‘old rule’ under Teague will constitute ‘clearly established Federal law, as determined by [this] Court.’” Id. Under Teague, “a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government.” Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Thus, a case announces a new rule if the result was not predicated on precedent existing at the time the defendant’s conviction became final. Id. “In determining whether the relief requested would constitute a new rule, the question becomes, ‘whether a state court considering [the petitioner’s] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution.’ ” Harris v. Stovall, 212 F.3d at 944 (quoting Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994)).; Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). VI. Exhaustion and Procedural Default A. Exhaustion A state prisoner must exhaust his state remedies before bringing his claim in a federal habeas corpus proceeding. 28 U.S.C. § 2254(b), (e); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Exhaustion is fulfilled once a state supreme court provides a convicted defendant an opportunity to review his or her claims on the merits. O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). A habe-as petitioner satisfies the exhaustion requirement when the highest court in the state in which the petitioner has been convicted has had a full and fair opportunity to rule on the claims. Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir.1990). If under state law there remains a remedy that a petitioner has not yet pursued, exhaustion has not occurred and the federal habeas court cannot entertain the merits of the claim. Rust, 17 F.3d at 160. Claims that were never raised at any juncture of the state-court proceedings are both unexhausted and procedurally defaulted because no Ohio court has had an opportunity to decide them. If a habeas petitioner sought to return to state court and attempt to present new claims to the Ohio Supreme Court, that court would find them procedurally barred. “The Ohio Supreme Court has stated that it will not consider constitutional claims not raised and preserved in the Ohio Court of Appeals.” Fornash v. Marshall, 686 F.2d 1179, 1185 n. 7 (6th Cir.1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1439, 75 L.Ed.2d 796 (1983)(citing State v. Phillips, 27 Ohio St.2d 294, 272 N.E.2d 347, 352 (1971)). Thus, Dickerson’s failure to raise a claim to the Ohio Court of Appeals would preclude Ohio Supreme Court review. This preclusion, in turn, would prevent Dickerson from satisfying the exhaustion requirement as the Ohio Supreme Court has not had a “fair and full opportunity” to review these claims as Rust requires. A petitioner “cannot obtain federal habeas relief under 28 U.S.C. § 2254 unless he has completely exhausted his available state court remedies to the state’s highest court.” Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir.2001)(quoting Coleman v. Mitchell, 244 F.3d 533, 538 (6th Cir.2001), cert. denied, 535 U.S. 1031, 122 S.Ct. 1639, 152 L.Ed.2d 647 (2002))(in-temal quotation marks omitted). Rather than dismiss certain claims the Court deems unexhausted, however, a habeas court need not wait for exhaustion if it determines that a return to state court would be futile. Lott v. Coyle, 261 F.3d 594, 608 (6th Cir.2001). In circumstances where the petitioner has failed to present a. claim in state court, a habeas court may deem that claim procedurally defaulted because the Ohio state courts would no longer entertain the claim. Buell, 274 F.3d at 349. To obtain a merit review of the claim, the petitioner must demonstrate cause and prejudice to excuse his failure to raise the claim in state court, or that a miscarriage of justice would occur were the habeas court to refuse to address the claim on its merits. Seymour v. Walker, 224 F.3d 542, 550 (6th Cir.2000), cert. denied, 532 U.S. 989, 121 S.Ct. 1643, 149 L.Ed.2d 502 (2001)(citing Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). B. Procedural Default For purposes of comity, a federal court may not consider “contentions of federal law that are not resolved on the.merits in the state proceeding due to petitioner’s failure to raise them as required by state procedure.” Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594(1977). If a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 749, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). As the United States Supreme Court recently explained, “[t]he procedural default rule is neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law’s important interest in the finality of judgments.” Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). In Maupin v. Smith, 785 F.2d 135 (6th Cir.1986), the Sixth Circuit Court of Appeals set out the analytical framework for determining the defaulted status of a claim: “When a state argues that a habeas claim is precluded by the petitioner’s failure to observe a state procedural rule, the federal court must go through a complicated- [four-prong] analysis.” Id. at 138. Specifically, the Sixth Circuit stated: First, the court must determine that there is a state procedural rule that is applicable to the petitioner’s claim and that the petitioner failed to comply with the rule.... Second, the court must decide whether the state courts actually enforced the state procedural sanction .... Third, the court must decide whether the state procedural forfeiture is an “adequate and independent” state ground on which the state can rely to foreclose review of a federal constitutional claim. [Fourth, if] the court determines that a state procedural rule was not complied with and that rule was an adequate and independent state ground, then the petitioner must demonstrate . -.. that there was “cause” for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error. Id. (citations omitted). The Respondent asserts that all or part of six claims raised in the Petition are barred from review by this Court because they are procedurally defaulted. The Court will address each individual claim of procedural default on that basis. At this juncture, however, the Court will address the Ohio doctrine of res judicata pursuant to State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Dickerson argues that Ohio’s post-conviction relief system does not meet federal constitutional requirements because of the Ohio Supreme Court’s interpretation of the post-conviction statutes in State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Under the Perry doctrine, a final judgment of conviction bars a convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial on the merits, or on appeal from that underlying judgment. Id. at 108; see also State v. Roberts, 1 Ohio St.3d 36, 437 N.E.2d 598, 601 (1982)(holding policy behind Perry bars post-conviction petitioners from raising issues that could have been raised on direct appeal in a collateral proceeding to avoid reversal of conviction based on collateral, rather than constitutional, issues). Thus, unless a claim is based on evidence dehors the record, it must be raised during direct appeal, or be deemed waived. Dickerson cites no authority requiring this court to find Perry unconstitutional. This is not surprising considering the Sixth Circuit has expressly found that the Perry rule is an adequate and independent state ground to bar a merit review of a petitioner’s claim where such claim is asserted in non-compliance with that rule. Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir.2001)(“This court has held that [the Perry rule] is regularly and consistently applied by Ohio courts as required by the four-part Maupin test.”)(citing Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir.2000), cert. denied, 531 U.S. 1186, 121 S.Ct. 1176, 148 L.Ed.2d 1034 (2001)). See also Mapes v. Coyle, 171 F.3d 408, 420 (6th Cir.1999), cert. denied, 528 U.S. 946, 120 S.Ct. 369, 145 L.Ed.2d 284 (1999)(noting that the Perry rule has been consistently applied); Brooks v. Edwards, 96 F.3d 1448, 1996 WL 506505, at *5 (6th Cir.1996)(“The procedural rule [of res judica-ta] applicable to petitioner’s claims is an adequate and independent state ground for refusal to hear the claim by the Ohio Supreme Court.”). Consequently, this Court holds that any claim that the Ohio courts refused to address based on Perry is procedurally defaulted and barred from habe-as review absent a showing of cause and prejudice. VII. Individual Grounds for Relief A. First, Twelfth, and Sixteenth Grounds for Relief — Death Penalty Unconstitutional 1. First Ground Dickerson claims that the death penalty is unconstitutional on several grounds. Although Dickerson alleged in his first ground for relief that Ohio Revised Code is unconstitutional because it fails to establish a burden of proof in the mitigation phase for a three-judge panel, Dickerson withdrew this claim in his Traverse. Therefore, the Court will not address it. 2. Twelfth Ground Dickerson next asserts that the Ohio death penalty is unconstitutional because the manner in which it is imposed is both disproportionate and racially discriminatory. Respondent concedes that this claim is properly before the Court because Dickerson raised it as his fourteenth proposition of law to the Ohio Supreme Court. Thus, the Court will address this claim on the merits. A proportionality review is not constitutionally required. Pulley v. Harris, 465 U.S. 37, 50-51, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). See also McQueen v. Scroggy, 99 F.3d 1302, 1333-34 (6th Cir.1996), cert. denied, 520 U.S. 1257, 117 S.Ct. 2422, 138 L.Ed.2d 185 (1997)(“There is no federal constitutional requirement that a state appellate court conduct a comparative proportionality review.”). By statute, however, Ohio requires the appellate courts to engage in a proportionality review. Ohio Revised Code § 2929.05(A) reads in relevant part: In determining whether the sentence of death is appropriate, the court of appeals, in a case in which a sentence of death was imposed for an offense committed before January 1, 1995, and the supreme court shall consider whether the sentence is excessive or disproportionate to the penalty imposed in similar cases. They shall also review all the facts and other evidence to determine if the evidence supports the finding of the aggravating circumstances the trial jury or the panel of three judges found the offender guilty of committing, and shall determine whether the sentencing court properly weighed the aggravating circumstances the offender was found guilty of committing and the mitigating factors. Because Ohio law requires appellate courts to engage in a proportionality review, the review must be consistent with constitutional requirements. Kordenbrock v. Scroggy, 680 F.Supp. 867, 899 (E.D.Ky.1988), aff'd, 889 F.2d 69 (6th Cir.1989)(citing Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985)). Nonetheless, when the state courts have engaged in a proportionality review, the district court’s review is limited. The district court is to examine the state’s proportionality review only to determine whether the imposition of death on the petitioner is patently unjust or “shocks the conscience; the court is- not to' second-guess the state court’s comparison of -other cases in which the death penalty was imposed.” Id. (citing Moore v. Balkcom, 716 F.2d 1511, 1517 (11th Cir.1983)). See also Spinkellink v. Wainwright, 578 F.2d 582, 604 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979)(same). In Spinkellink, the petitioner argued that his crime, when compared to other 'Florida death penalty' cases, was insufficiently gruesome or heinous to warrant the death penalty and had highlighted seven other cases in which the Florida Supreme Court had reversed death sentences. All of these other cases allegedly involved defendants equally or more deserving of the death penalty than he. Moore, 716 F.2d at 1517-18 (citing Spink-ellink ). The court “condemned a federal case by case analysis of the cases used by the state appellate court in its proportionality review as an unnecessary intrusion on the [state] judicial system.” Id. (citing Spinkellink). A federal habeas court should not undertake a review of the state supreme court’s proportionality review and, in effect, ‘get out the record’ to see if the state court’s findings of fact, their conclusions based on a review of similar cases, was supported by the ‘evidence’ in the similar cases. To do so would thrust the federal judiciary into the substantive policy making area of the state. Id. Moreover, when examining an Ohio conviction on habeas review, the Sixth Circuit held that, because “proportionality review is not required by the Constitution, states have great latitude in defining the pool of cases used for comparison.” Buell v. Mitchell, 274 F.3d 337, 369 (6th Cir.2001). This Court cannot impose its own opinion regarding the proportionality of the instant case. Thus, because the Court finds that the imposition of the death penalty in this case does not “shock the conscience,” it must find that his claim is not well-taken. Dickerson next asserts that the Ohio death penalty is applied in a racially discriminatory manner and that the Court of Appeals erred when it denied his motion to remand to the trial court so that he could adduce evidence of racial bias. The Ohio Supreme Court disagreed. After correctly identifying McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), as the controlling United States Supreme Court precedent on the issue, the court noted that the McCleskey Court held that, to prevail on a racial discrimination claim, a defendant must demonstrate that “the decisionmakers in his case acted with discriminatory purpose.” State v. Dickerson, 543 N.E.2d at 1260 (quoting McCleskey, 481 U.S. at 292, 107 S.Ct. 1756)(em-phasis in original). The Ohio Supreme Court found that the evidence Dickerson wished to adduce was “little more than statistics based on two Lucas County cases.” Id. Finding that it had repeatedly rejected statistics in McCleskey-type assertions, the Ohio Supreme Court found the claim to be without merit. The Court finds the Ohio Supreme Court’s holding was not clearly contrary to or an unreasonable application of McCleskey. McCleskey, 481 U.S. at 292, 107 S.Ct. 1756. According to McCleskey, a capital defendant cannot evade a death sentence merely by demonstrating the statistical disparity of capital defendants of a particular race. Instead, the capital defendant must prove that the decision maker in his or her individual case acted with a discriminatory purpose, and that such actions had a discriminatory effect on the proceeding. Id. Because the Ohio Supreme Court’s holding comported with McCleskey, the Court finds Dickerson’s twelfth claim to be without merit. 3. Sixteenth Ground Dickerson’s sixteenth ground for relief is aimed at the structure of Ohio’s capital punishment scheme. In this claim, Dickerson asserts that Ohio’s capital punishment scheme is unconstitutional on its face. Respondent alleges this claim is procedurally defaulted but does not state with specificity why each sub-claim was not properly raised in state court. Regardless of the defaulted status of Dickerson’s sub-claims, the Court is not persuaded by Dickerson’s allegations. In summary fashion, the Court will list below Dickerson’s allegations, in italics, and thereafter state the reasons they are unpersuasive. • Ohio’s scheme is not the least restrictive means of effectuating deterrence. The United States Supreme Court addressed this exact point in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Noting that imposing criminal punishment is a legislative responsibility, the Court limited its own ability to “require the legislature to select the least severe penalty possible.” Id. at 175, 96 S.Ct. 2909. • Ohio’s scheme is unconstitutionally arbitrary because it allows for prosecutorial discretion to determine whether to seek a capital indictment. Once again, the Supreme Court in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), rejected this argument under a similar death penalty statute, condoning the discretionary system. • Ohio’s scheme permits the jury to find for a death sentence without first finding that the defendant acted with premeditar tion and deliberation. This argument is groundless as Ohio Revised Code § 2903.01(E) requires no person to be convicted of aggravated murder unless he or she is “specifically found to have intended to cause the death of another.... ” Moreover, the United States Supreme Court sanctioned the use of a criminal state of mind less culpable than intent, i.e., reckless indifference-, as an acceptable level of culpability to impose the death penalty. See Tison v. Arizona, 481 U.S. 137, 156, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987)(affirming death sentence of capital defendant who took part in prison escape but was not present when murder of kidnapped family occurred because he possessed a “reckless disregard for human life.”). • Ohio’s scheme is unconstitutional because it fails to establish a standard for determining the existence of mitigating factors. While the United States Supreme Court does “require that the record on appeal disclose to the reviewing court the considerations which motivated the death sentence in every case in which it is imposed,” Gardner v. Florida, 430 U.S. 349, 361, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), there is no actual criterion stating that the trial judge or -jury must identify and articulate the specific factors used to formulate the decision. Furthermore, Ohio Revised Code § 2929.03(F) requires that a trial judge make a written finding as to the existence of specific mitigating factors and aggravating circumstances, and why the aggravating circumstances outweigh the mitigating factors. By making a record of these determinations, the appellate court is able to make an “independent determination of sentence appropriateness.” State v. Buell, 22 Ohio St.3d 124, 489 N.E.2d 795, 807 (1986), cert. denied, 479 U.S. 871, 107 S.Ct. 240, 93 L.Ed.2d 165 (1986). Thus, no constitutional infirmity exists. • Ohio’s scheme is unconstitutional because it fails to set a standard of proof for the jury for balancing mitigating factors with aggravating circumstances. The United States Supreme Court has determined that a state is not required to give the jury guidance as to its weighing and consideration of the evidence adduced during the mitigation phase. Buchanan v. Angelone, 522 U.S. 269, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998). • Ohio’s scheme is unconstitutional because it permits the trier of fact to consider aggravating circumstances at the guilt phase or one: of the aggravating factors merely repeats an element of the crime. The Supreme Court has articulated clearly the constitutional mandates for imposing the death penalty. In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the Court held that any death penalty statute must allow the sentencer to review all mitigating evidence during the penalty phase, . thereby fashioning a sentence befitting the individual defendant. Because death “is so profoundly different from all other penalties,” the Court reasoned, it cannot be imposed without individualizing the sentence. Id. at 605, 98 S.Ct. 2954. The Supreme Court further refined the statutory limiting requirement in Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). In that case, the Court concluded that any death penalty statute must narrow the class of death-eligible defendants from those not death eligible. Id. at 877, 103 S.Ct. 2733. Specifically, a state may choose either to legislatively limit the definition of death-eligible crimes, or it may broadly define capital offenses but narrow the defendants who actually receive a death sentence by using aggravating circumstances during the penalty phase. Lowenfield v. Phelps, 484 U.S. 231, 246, 108 S.Ct. 546, 98 L.Ed.2d 568 (1987). Ohio’s death penalty scheme complies with these mandates. First, §§ 2929.04(B) and (C) allow the defendant to present, and the fact finder to consider, all statutorily enumerated mitigating factors. Moreover, § 2929.04(B)(7) permits a fact finder to consider all mitigating factors in addition to those enumerated in the statute. Finally, the Ohio death penalty scheme satisfies the Zant requirements by demanding the fact finder to find the existence of at least one aggravating circumstance set forth in § 2929.04(A) prior to imposing a death sentence. • Ohio’s scheme is unconstitutional because it fails to provide the sentencing authority with an option to impose a life sentence when it finds that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt or when it finds only aggravating circumstances exist. The Supreme Court rejected the identical argument in Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990). • Ohio’s scheme is unconstitutional because it imposes a risk of death on those capital defendants who choose to exercise their right to trial. In United States v. Jackson, 390 U.S. 570, 582, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), the Supreme Court determined that a legislative body cannot produce a chilling effect on a defendant’s Fifth Amendment right not to plead guilty and Sixth Amendment right to demand a jury trial. In that case, the Court struck down the capital portions of a federal kidnaping statute because it authorized only the jury to impose the death sentence. Conversely, in Ohio “a sentence of death is possible whether a defendant pleads to the offense or is found guilty after a trial.” State v. Buell, 22 Ohio St.3d 124, 489 N.E.2d 795, 808 (1986). Consequently, the Ohio scheme comports with constitutional mandates. • Ohio’s scheme creates a mandatory death penalty. The Court presumes that this argument is essentially the identical argument presented above (that the jury must impose a death sentence when it finds the aggravating circumstances outweigh the mitigating factors). The Court need not readdress that argument here. Without further explanation as to the nature of this claim, the Court cannot address it further. • Ohio’s scheme permits the State to argue first and last in the mitigation phase of trial. Even if this sequence does place a capital defendant at a disadvantage, and the Court does not so find, this fact does not implicate a constitutional violation. As long as a state requires the prosecution to prove the existence of all aggravating circumstances, the defendant’s constitutional rights are not violated. Walton v. Arizona, 497 U.S. 639, 649-51, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). • Ohio’s death penalty is applied in an arbitrary and capricious manner. Other than bald assertion, Dickerson cites no specifics about the Ohio statutory scheme that substantiates his argument. More importantly, Dickerson does not state why the Ohio courts’ application of the death penalty statutes runs afoul of United States Supreme Court jurisprudence. • Ohio’s scheme is unconstitutional because it requires that the pre-sentence report be submitted to the jury once the defendant requests it. Although the Fifth Amendment would be violated if a court ordered a defendant to undergo a psychiatric examination without informing the defendant that his statements can be used against him and then admitted his statements into evidence during the sentencing phase in order to prove statutory aggravating circumstances, see Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), the Fifth Amendment will not be violated if the defendant requests the psychiatric evaluation himself. This reasoning is explained in Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987): A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding. This statement leads logically to another proposition: if a defendant requests such an evaluation or presents psychiatric evidence of such an evaluation, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested. The defendant would have no Fifth Amendment privilege against the introduction of this psychiatric testimony by the prosecution. Id. at 422-23, 107 S.Ct. 2906 (citations omitted). • Ohio’s scheme is unconstitutional because it imposes the death penalty in a racially discriminatory manner. As stated above, according to McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), a capital defendant cannot evade a death sentence merely by demonstrating the statistical disparity of capital defendants of a particular race. Instead, a capital defendant must prove that the decision-maker in his or her individual case acted with a discriminatory purpose, and that such actions had a discriminatory effect on the proceeding. Id. at 292, 107 S.Ct. 1756. Dickerson has made no such showing in his case. • Ohio’s scheme is unconstitutional because it fails to require that the State prove the existence of any mitigating factors. This argument was specifically rejected in Walton v. Arizona, 497 U.S. 639, 649-50, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). There the Court held a death penalty scheme requiring the defendant to establish mitigating factors by a preponderance of evidence is constitutionally acceptable burden shifting. This aspect of the Walton holding is unaltered by the recent Supreme Court decision Ring v. Arizona, as described, supra. • Ohio’s scheme is unconstitutional because it fails to require that the State prove that the death penalty is the only appropriate remedy. The Supreme Court rejected an argument similar to this one in Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990). In that case, the defendant challenged the constitutionality of the Pennsylvania death penalty statutes, which, similar to Ohio’s, requires that the jury recommend the death penalty if the aggravating circumstances outweigh the mitigating factors. In upholding this statutory scheme, the Blystone Court determined that the statutes were constitutional because they permitted the sen-tencer “to consider and give effect to any mitigating evidence relevant to a defendant’s background and character or the circumstances of the crime.” Id. at 304-05, 110 S.Ct. 1078 (quoting Penry v. Lynaugh, 492 U.S. 302, 328, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989))(internal quotation marks omitted). Ohio’s death penalty statutes permit the sentencing body to consider all mitigating evidence pursuant to the “catch-all” mitigating factor, Ohio Rev.Code § 2929.04(B)(7). Moreover, the Ohio scheme provides for an appropriateness review on direct appeal. • Ohio’s scheme is unconstitutional because the defendant must prove the absence of mitigating factors by a preponderance of evidence. As stated above, the Supreme Court accepted this penalty scheme in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), did not overrule this holding. • Ohio’s scheme in unconstitutional because it inadequately tracks cases reviewed when determining the proportionality of the sentence. The Court addressed this argument in Dickerson’s twelfth ground for relief and will not readdress it here. • Ohio’s scheme is unconstitutional because a jury or three-judge panel is not required to identify and articulate the existence of mitigating factors and aggravating circumstances. No such constitutional mandate exists. Moreover, as stated above, Ohio Revised Code § 2929.03(F) requires that a trial judge make a written finding as to the existence of specific mitigating factors and aggravating circumstances and why the aggravating circumstances outweigh the mitigating factors. By making a record of these determinations, the appellate court is able to make an “independent determination of sentence appropriateness.” State v. Buell, 22 Ohio St.3d 124, 489 N.E.2d 795, 807 (1986), cert. denied, 479 U.S. 871, 107 S.Ct. 240, 93 L.Ed.2d 165 (1986). B. Second, Third, and Tenth Grounds for Relief — Jury Waiver Dickerson asserts that his jury waiver was constitutionally infirm on several grounds. First, he claims that his initial jury waiver was not knowing, voluntary, and intelligent. Dickerson also contends that he was not notified of his right to withdraw the waiver once he learned that a panel member had sentenced him in a different proceeding. He further claims that the jury waiver is invalid because he was not informed that if he waived a jury trial, he faced an increased risk of being sentenced to death. Finally, Dickerson alleges that Judge Knepper, a member of his three-judge panel, induced trial counsel to waive the jury trial because of an ex parte conversation Judge Knepper had with defense counsel prior to trial. The Court addresses the merits of each claim as well as whether each claim is procedurally defaulted individually. 1. Knowing, Voluntary, and Intelligent Waiver Dickerson first asserts that his initial waiver was not knowing, voluntary, and intelligent and, thus, was constitutionally defective. He raised this claim to the Ohio Supreme Court, which addressed it on the merits. Therefore, the Court finds that it is not procedurally defaulted. ' The right to a jury trial is a fundamental constitutional right. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). To effectively waive this right, a criminal defendant must meet the following four conditions: (1) the waiver must be in writing; (2) the government attorney must consent to the waiver; (3) the trial court must consent to the waiver; and, (4) the defendant’s waiver must be knowing, voluntary and intelligent. Spytma v. Howes, 313 F.3d 363, 370 (6th Cir.2002)(citing United States v. Martin, 704 F.2d 267, 272 (6th Cir.1983)). For a waiver to be knowing, voluntary, and intelligent, the defendant must possess the mental capacity to comprehend what he is waiving, as well as be sufficiently informed about the consequences of his decision. Specifically, a defendant should know that the jury is composed of 12 members, that he may participate in jury selection, that the jury must be unanimous in reaching a verdict, and, if the defendant elects to waive this right, the judge alone will decide the defendant’s guilt or innocence. Id. Although it is preferable for the trial court to conduct an on-the-record colloquy of the waiver, there is no constitutional right to such a colloquy. Sowell v. Bradshaw, 372 F.3d 821, 832 (6th Cir.2004)(following Martin, 704 F.2d at 273). Moreover, failure to conduct an on-the-record colloquy “does not ipso facto constitute reversible error.” United States v. Cochran, 770 F.2d 850, 853 (9th Cir.1985). Once a waiver is effectuated, the burden is on the petitioner to demonstrate that the waiver of the jury trial right was prima facie invalid. Sowell, 372 F.3d at 832; Milone v. Camp, 22 F.3d 693, 704 (7th Cir.1994). Whether the jury trial waiver was invalid depends on the factual circumstances of the case. Lott v. Coyle, 261 F.3d 594, 615 (6th Cir.2001)(quoting Martin, 704 F.2d at 272.). On habeas review, a state court’s determination that a petitioner’s jury trial waiver was valid is a finding of fact entitled to a presumption of correctness pursuant to § 2254(e)(1) unless the petitioner can overcome this presumption by clear and convincing evidence. Spytma v. Howes, 313 F.3d at 371. “In the absence of contemporaneous evidence outside of the written waiver showing that the waiver was [not] knowing and intelligent, [a court] must give presumptive force to [the] written document.” Id. In the instant case, Dickerson provided the trial court with a written waiver that both he and defense counsel signed. Tr. Appendix, Vol. I, at 31. Moreover, the trial court conducted the following colloquy prior to accepting Dickerson’s waiver: The Court: We are here for purposes of formally waiving a jury trial in this matter, is that correct, Mr. Cameron? Mr. Cameron: That’s correct, Your Honor. The Court: All right. Mr. Cameron: We’ve explained to Mr. Dickerson what he would be waiving by waiving the jury, and I think he understands that we would be going to a three-judge panel, and he is in agreement with that. The Court: Now, Mr. Dickerson, you do understand that in this type of case there are in fact two separate trials. One is as to the charges and the specifications. That includes the gun specification, as well as the death specifications; do you understand that? The Defendant: (Nodded affirmatively) The Court: You understand that you have a right to have those presented to a jury and that those charges and specifications have to proven beyond a reasonable doubt; you understand that? The Defendant: (Nodded affirmatively) The Court: To a jury. You have to answer verbally for the Court Reporter. The Defendant: Yes. The Court: You understand that. Also you understand that in the event that there were findings of guilty by a jury as to the charges, the gun specification and the death specifications, there would be a second trial which would go — or hearing which would go to the questions of mitigation. It’s called a mitigation hearing, and a jury would then decide also whether or not the death penalty should be imposed or whether some lesser penalty, that being life with possibility of parole in 30 years, or life with possibility of parole in 20 years should be imposed; do you understand that? The Defendant: Yes. The Court: And you understand by giving up this right to a trial by jury that you’re not only giving up the right to have the guilt phase handled by a jury, but you’re giving up the right to have the mitigation hearing or the penalty stage heard by a jury; do you understand that? The Defendant: (Nodded affirmatively) The Court: And that that penalty stage will be tried by a three-judge panel as well, and if in fact you get to that stage of the trial, that three-judge panel will determine whether or not the penalty should be [life imprisonment] or the death penalty should be imposed; do you understand that? The Defendant: Yes. The Court: Okay. And you’re willing to give up your right to a trial by jury and have a three-judge panel determine all of those issues, is that correct? The Defendant: Yes. * * * The Court: Now, Mr. Dickerson, before we conclude this, I want to ask you did you understand my explanation of what you’re giving up here? The Defendant: Yes. The Court: Do you have any questions that you want to ask me about that or about anything that’s being done or is going to be occurring in the next several weeks? The Defendant: No, Your Honor. The Court: You don’t need additional explanation of the waiver that you’re making? The Defendant: No. The Court: Of what you’re giving up? The Defendant: No. The Court: Okay. And you understand everything that I said to you? The Defendant: Yes. * ‡ ❖ * * * The Court: All right, and you reviewed this waiver form and you understand it ... ? I just want to make sure you understand what’s happening here. The Defendant: Yes. The Court: All right, you do understand it? The Defendant; Yes. The Court: And this is your signature here on the waiver of the jury trial? The Defendant: Yes. The Court: All right. And I would note for the record that counsel, Mr. Cameron, has also signed where indicated for the defendant. I find that the defendant understands his right to a jury trial in this case, that he is knowingly and voluntarily giving up that right and consenting to this case, the guilt phase and mitigation phase being tried to a three-judge panel. Tr. Trans., Yol. II, at 4-10. The Court finds that while it certainly would have been preferable for the trial court to inform Dickerson further about the composition and function of a jury, it cannot find that the Ohio Supreme Court’s findings on this issue were unreasonable. Lott v. Coyle, 261 F.3d 594, 615 (6th Cir.2001), is instructive here. In that case, the Sixth Circuit found that, based on the trial court’s on-the-record colloquy, the sufficiency of the jury waiver issue was a close question. It noted that the trial court in that case had not discerned the extent of the petitioner’s conversation with counsel regarding the ramifications of waiving a jury trial. Id. Although the Lott court, as this Court, noted that there were several statements absent from the colloquy, the Sixth Circuit found that no error occurred. Moreover, although not binding authority, the Court finds that case law discussing the analogous Federal Rule of Criminal Procedure 23(a) provides it with guidance. Those cases have held that a written waiver “creates a presumption that the waiver is a voluntary, knowing, and intelligent one.” United States v. Sammons, 918 F.2d 592, 597 (6th Cir.1990), cert. denied, 510 U.S. 1204, 114 S.Ct. 1322, 127 L.Ed.2d 671 (1994)(quoting United States v. Cochran, 770 F.2d 850, 851 (9th Cir.1985)). Finally, although Dickerson asserts that his mental limitations required the trial court to conduct a more rigorous colloquy to discern whether Dickerson comprehended the consequences of his waiver, the Court cannot agree. The written waiver along the with the on-the-record colloquy were sufficient to notify him about the rights he was foregoing. While a more extensive colloquy would be preferable, the Court cannot find that Dickerson