Stojetz v. Ishee (389 F. Supp. 2d 858, 2005)

OPINION AND ORDER

FROST, District Judge.

Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this Court a habeas corpus action under 28 U.S.C. § 2254. This matter is before the Court upon respondent’s motion to dismiss procedurally defaulted claims, (Doc.# 23), petitioner’s memorandum in opposition, (Doc.# 34), and respondent’s reply, (Doc. #35).

I. Factual History

The facts and procedural history of this case were set forth by the Supreme Court of Ohio in State v. Stojetz, 84 Ohio St.3d 452, 705 N.E.2d 329 (1999):

On April 25, 1996, appellant, John C. Stojetz, Jr., along with five other adult inmates, ran across the prison yard of Madison Correctional Institution and toward the Adams Alpha Unit (“Adams A”), which houses many of the state’s juvenile offenders who had been tried as adults and convicted of criminal offenses. Appellant and the other five inmates were each armed with knives commonly known as “shanks.” Appellant and the others entered the Adams A unit, circled the control desk, and held corrections officer Michael C. Browning at knifepoint. Appellant then placed a shank to Browning’s throat and ordered him to give appellant the keys that opened the cell doors of the Adams A unit. Browning threw the keys down and was allowed to flee the unit.

Corrections officers immediately responded to Browning’s “man down” alarm and converged on Adams A. Officers were able to observe appellant and the other five inmates carrying shanks. The corrections officers, armed only with pepper mace, attempted to enter Adams A. However, appellant and the other inmates, wielding shanks, prevented the officers from entering.

Once inside Adams A, appellant and his accomplices proceeded to cell number 144, the cell of Damico Watkins, a seventeen-year-old juvenile inmate. Using the keys taken from Browning, appellant unlocked Watkins’s cell and appellant and the other adult inmates entered the cell and began attacking Watkins. After eluding the initial attack and escaping from his cell, Watkins was pursued throughout the Adams A unit and repeatedly stabbed by appellant and the other shank-wielding inmates. Watkins was able to escape his attackers several times only to be again cornered and subjected to repeated stabbings. Eventually, Watkins was cornered by appellant on the second floor of the Adams A unit. As Watkins pleaded for his life, appellant and inmate Bishop repeatedly stabbed Watkins and left him for dead.

During the attack on Watkins, correction officers had surrounded the exterior of the Adams A unit. Deputy Warden Mark Saunders arrived on the scene and began conversing with the inmates who had taken over Adams A. During this conversation, inmate Lovejoy stated that “they [the inmates who had taken over Adams A] would not cell with black inmates.” Also during the conversation, appellant stated, “we took care of things because you [prison officials] wouldn’t.” Subsequently, the inmates were ordered to surrender. The prison yard was cleared and appellant and the five perpetrators passed their shanks through a window in the foyer of Adams A. Once prison officials retrieved the weapons, appellant and the other adult inmates exited the Adams A unit and surrendered to prison authorities.

After prison authorities regained control of Adams A unit, the coroner arrived at the scene and declared Watkins dead.

In October 1996, appellant was indicted by the Madison County Grand Jury for the aggravated murder of Watkins. The single-count indictment charged appellant with purposely causing the death of Watkins with prior calculation and design in violation of R.C. 2903.01( [A]). The count also charged appellant with a (R.C. 2929.04[A][4]) death penalty specification of committing aggravated murder while a prisoner in a detention facility-

Appellant entered a plea of “not guilty” to the charges in the indictment, and the case proceeded to a trial by jury. Evidence submitted at trial indicated that appellant was known to be the head of the “Aryan Brotherhood” gang at the Madison Correctional Institution. Other evidence at trial indicated that appellant and other members of the Aryan Brotherhood did not want to be housed in the same cells as black inmates. Further testimony indicated that appellant and members of the Aryan Brotherhood wanted to be transferred from Madison Correctional to other penal institutions. In fact, following the murder, prison authorities conducted a search of appellant’s cell as well as the cells of his accomplices. During the search it was found that appellant and four of the other five inmates who had participated in the attack on Watkins had already packed their personal belongings.

At the conclusion of the trial, and after deliberation, the jury found appellant guilty of the charge and specification in the indictment. Following a mitigation hearing, the jury recommended that appellant be sentenced to death for the aggravated murder of Watkins. The trial court accepted the jury’s recommendation and imposed the sentence of death.

Stojetz, 84 Ohio St.3d at 452-54, 705 N.E.2d at 333-35.

II. State Court History

A. Direct Appeal

On October 10, 1996, petitioner was indicted by the Madison County Grand Jury on one count of aggravated murder in violation of Ohio Rev.Code § 2903.01(B), and with a death penalty specification under Ohio Rev.Code § 2929.04(A)(4), ie., that petitioner committed the aggravated murder offense while petitioner was a prisoner in a detention facility. Attorneys James Doughty and Jon Doughty were appointed on October 17, 1996. The trial phase commenced on April 1, 1997 with voir dire, and concluded on April 8, 1997 when the jury found petitioner guilty as charged. The mitigation phase began on April 16, 1997, and, on April 17, 1997, the jury recommended that petitioner be sentenced to death. On April 18, 1997, the trial court issued a decision and entry sentencing petitioner to death.

Represented by attorneys Joseph Wilhelm and Kelly Culshaw of the Ohio Public Defender’s Office, petitioner appealed to the Supreme Court of Ohio. In a merit brief filed on December 23, 1997, petitioner raised the following propositions of law:

Proposition of Law No. I: During jury selection in a capital case, the trial court must ask each prospective sentencing juror whether the juror’s views on the death penalty would prevent or substantially impair the juror’s ability to consider a life sentence if the defendant is found guilty of aggravated murder and the aggravating circumstance. Life qualification of each prospective juror is required whenever the trial court death qualifies the jurors by asking them if their views on the death penalty would prevent of substantially impair their ability to consider the death penalty in the case before them.

Proposition of Law No. II: John Sto-jetz’s death sentence is inappropriate. Damico Watkins’ death resulted from his own threats against Stojetz and Sto-jetz’s post-traumatic stress disorder.

Proposition of Law No. Ill: When trial counsel fail to conduct an adequate voir dire, fail to object to inadmissible evidence, fail to request a separation of witnesses, fail to conduct an adequate investigation of the case, fail to object to victim impact evidence, present a confusing explanation of the mitigation weighing process, fail to adequately present evidence of a capital defendant’s post-traumatic stress disorder, and fail to adequately prepare defendant’s mitigation expert, a capital defendant is deprived of the right to the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, §§ 10 and 16 of the Ohio Constitution.

Proposition of Law No. IV: A capital defendant is denied his rights to a jury verdict, to a fair trial, to due process, to the effective assistance of counsel, and to a reliable and nonarbitrary death sentence when the jury returns a general verdict of guilty for aggravated murder without a unanimous finding that the defendant was either the principal offender or an aider and abettor. U.S. Const. Amend. VI, VIII, XIV; Ohio Const. Art. I, §§ 5, 9,10,16.

Proposition of Law No. V: The defendant who is death-eligible as either a principal offender or aider and abettor must have access to the grand jury’s testimony when there are five co-defendants and the defendant shows a particularized need for their testimony. U.S. Const. Amend. XIV; Ohio Const. Art. I, § 16.

Proposition of Law No. VI: A defendant’s right to a fair and impartial sentencing jury is denied when the trial court overrules a challenge for cause against a prospective juror who is biased in favor of capital punishment.

Proposition of Law No. VII: When improper identification evidence is presented during a defendant’s capital trial the defendant’s due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution and § 16, Article I, of the Ohio Constitution are violated.

Proposition of Law No. VIII: Appellant’s right to due process is violated when the trial court admits improper testimony in violation of the Fourteenth Amendment to the United States Constitution and § 16, Article I, of the Ohio Constitution.

Proposition of Law No. IX: Appellant’s due process and confrontation rights are violated when the trial court admits hearsay testimony in violation of the Sixth and Fourteenth Amendments to the United States Constitution and §§10 and 16, Article I, of the Ohio Constitution.

Proposition of Law No. X: Ohio Rev. Code Ann. § 2929.03(D)(l)(Anderson 1996) and Ohio Rev.Code Ann. § 2929.04 are unconstitutionally vague in violation of Appellant Stojetz’s right against cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution and §§ 9 and 16, Article I, Ohio Constitution.

Proposition of Law No. XI: When prosecutors misrepresent witness testimony, argue victim impact evidence unrelated to the offense, deny a defendant individualized sentencing, mislead on the definition of mitigation, and shift the burden of proof to the defendant, a capital defendant is denied his substantive and procedural due process rights to a fair trial as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, as well as Article I, Sections 1, 9, 16, and 20 of the Ohio Constitution. He is also denied his right to reliable sentencing as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9 and 16 of the Ohio Constitution.

Proposition of Law No. XII: A jury instruction that shifts the burden of proof on the mens rea element of aggravated murder to the accused is unconstitutional. U.S. Const. Amend. XIV; Ohio Const. Art. I, § 16. A jury instruction that makes the accused’s guilt or innocence the ultimate issue of fact is also unconstitutional. U.S. Const. Amend. XIV; Ohio Const. Art. I, § 16.

Proposition of Law No. XIII: A capital defendant’s right to a reliable and non-arbitrary death sentence under the Eighth and Fourteenth Amendments is violated when the sentencing jury’s responsibility for its verdict is attenuated by the trial court’s instructions.

Proposition of Law No. XIV: When a videotape is replayed for the jury, its significance is overemphasized and a capital defendant’s due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution and § 16, Article I, of the Ohio Constitution are violated.

Proposition of Law No. XV: It is constitutional error for the trial court to consider victim impact evidence in capital sentencing in the form of an opinion by a victim’s family member about the defendant’s fate. U.S. Const. Amend. VIII, XIV.

Proposition of Law No. XVI: When the trial court considers public policy matters, treats an institutional killing as requiring a mandatory death sentence, fails to weigh relevant mitigating evidence, and uses inappropriate standards in weighing proper mitigating evidence, a capital defendant is deprived of the right to individualized sentencing and of his liberty interest in the statutory sentencing scheme, thus violating rights guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and §§ 9 and 16, Article I, of the Ohio Constitution. Proposition of Law No. XVII: The accused’s right to due process under the Fourteenth Amendment to the United States Constitution is violated when the state is permitted to convict upon a standard of proof below proof beyond a reasonable doubt.

Proposition of Law No. XVIII: The defendant in a capital case has a due process liberty interest in Ohio Rev.Code Ann. § 2945.25(C)(Anderson 1996). The defendant’s liberty interest in Ohio Rev. Code Ann. § 2945.25(C) is infringed when the trial court fails to follow the revised code during voir dire on the issue of capital punishment.

Proposition of Law No. XIX: Ohio’s death penalty laws are unconstitutional. The Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution establish the requirements for a valid death penalty scheme. Ohio Rev.Code Ann. Sections 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04, and 2929.05 (Anderson 1996). Ohio’s death penalty statute does not meet the prescribed constitutional requirements and is unconstitutional on its face and as applied to Appellant Stojetz.

(App. Yol. II, at 48). On February 17, 1999, the Supreme Court of Ohio issued a decision rejecting petitioner’s propositions of law, finding petitioner’s death sentence to be appropriate and proportionate, and affirming the judgment of the trial court. State v. Stojetz, 84 Ohio St.3d 452, 705 N.E.2d 329 (1999); App. Vol. Ill, at 143. Petitioner filed a motion for reconsideration on March 1, 1999, (App. Vol. Ill, at 171), which motion the Supreme Court of Ohio summarily denied on April 7, 1999, (App. Vol. Ill, at 178).

On November 10, 1999, the United States Supreme Court denied petitioner’s petition for a writ of certiorari. (App. Vol. Ill, at 215).

B. “Mumahan” Application for Reopening

Represented by attorney John J. Gideon, petitioner on May 18, 1999 filed an application for reopening in the Supreme Court of Ohio, pursuant to Rule XI, Section 5 of the Rules of Practice of the Supreme Court and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992)—Ohio’s procedure for raising claims of ineffective assistance of appellate counsel. Petitioner alleged that his attorneys performed unreasonably and to his prejudice on his direct appeal of right by failing to raise the following propositions of law:

Proposition of Law I: Trial counsel render ineffective assistance of counsel under the Sixth Amendment to the United States Constitution by failing to object to the admission of the hearsay testimony of a corrections officer that juvenile inmates were yelling from their cells that the defendant was a murderer.

Proposition of Law II: Trial counsel render ineffective assistance of counsel under the Sixth Amendment to the United States Constitution by failing to object to prosecutorial misconduct: (I) in misrepresenting testimony in trial phase closing argument; (ii) in drawing extraneous comparisons between the defendant and others and arguing public policy during sentencing phase closing argument; (iii) in misleading the jury on the definition of “mitigation” during sentencing phase closing argument; and (iv) in shifting the burden of proof to the defendant during sentencing phase closing argument.

Proposition of No III: Trial counsel render ineffective assistance of counsel under the Sixth Amendment to the United States Constitution by failing to object to the admission of a crime scene videotape and for failing to object to the replaying of the videotape during trial phase deliberations.

(App. Vol. Ill, at 186). On August 18, 1999, the Supreme Court of Ohio issued a decision summarily denying petitioner’s application for reopening. (App. Vol. Ill, at 214).

C. Postconviction Proceedings

1. Trial Court

Represented by attorney John J. Gideon, petitioner filed a postconviction action in the trial court on March 4, 1998, pursuant to Ohio Rev.Code § 2953.21, while his direct appeal was still being litigated by the Ohio Public Defender’s Office. Petitioner raised the following grounds for relief:

First Ground for Relief: Actual Innocence.

Second Ground for Relief: Ineffective Assistance Of Counsel With Respect To Pretrial Publicity.

Third Ground for Relief: Ineffective Assistance Of Counsel With Respect to Trial Publicity.

Fourth Ground for Relief: Ineffective Assistance Of Counsel In Failing To Investigate And Present A Defense.

Fifth Ground for Relief: Ineffective Assistance Of Counsel In Failing To Call Witnesses.

Sixth Ground for Relief: Withholding Of Evidence.

(App. Vol. TV, at 5).

On March 10, 1998, petitioner filed a first amendment to his postconviction action pursuant to Ohio Rev.Code § 2953.21(F), submitting the original affidavit of Diane Ash as Exhibit K to the original petition. (App. Vol. IV, at 213).

On March 19, 1998, petitioner then filed a second amendment to his postconviction action pursuant to Ohio Rev.Code § 2953.21(F), submitting additional exhibits supporting the first, fourth, and fifth grounds for relief set forth in his original petition. Specifically, petitioner submitted a sworn statement by Phillip Wierzgac as Exhibit EE. (App. Vol. IV, at 220).

On June 9, 1998, petitioner filed a third amendment to his postconviction action pursuant to Ohio Rev.Code § 2953.21(F), submitting additional exhibits supporting the first, fourth, 'and sixth grounds for relief set forth in his original petition. Specifically, petitioner submitted a copy of the 15-page Ohio State Highway Patrol Report of Investigation authored by Trooper R.A. Downey as Exhibit FF. (App. Vol. TV, at 254). Petitioner also submitted his own supplemental affidavit as Exhibit GG (App. Vol. IV, at 282); and another copy of Trooper R.A. Downey’s investigation report as Exhibit HH, (App. Vol. IV, at 286).

On August 19, 1998, petitioner filed a fourth amendment to his postconviction action pursuant to Ohio Rev.Code § 2953.21(F), adding two more grounds for relief and submitting a second supplemental affidavit by petitioner as Exhibit II in support of those new grounds. (App. Vol. TV, at 309). Petitioner added the following grounds for relief:

Seventh Ground for Relief: Denial of Petitioner’s Right to Testify.

Eighth Ground for Relief: Ineffective Assistance of Counsel for Failing to Advise Petitioner of His Right to Testify and for Failing to Call Petitioner to Testify.

(App. Vol. TV, at 310).

On February 26, 1999, petitioner filed a motion for leave to amend his postconviction action in an effort to preserve his ability to file a fifth amendment to his postconviction action. (App. Vol. IV, at 328). The trial court granted petitioner’s motion on March 5, 1999. (App. Vol. TV, at 333). Accordingly, on March 19, 1999, petitioner filed a fifth amendment to his postconviction action to add three more ground for relief and to supplement his sixth, ninth, tenth, eleventh grounds for relief with additional argument and exhibits, i.e., a sworn statement by Phillip Wierzgac attached as Exhibit JJ, an article by Matthew Silberman for the annual meetings of the American Sociological Association in August 1993 entitled “The Demise of the ‘Hands-Off Doctrine: The Impact of Recent Court Decisions on Prison Administration,” attached as Exhibit KK; and a third supplemental affidavit by petitioner, attached as Exhibit MM; (App. Vol. IV, at 334). Petitioner added the following grounds for relief:

Ninth Ground for Relief: Ineffective Assistance of Counsel for Failing to Present Evidence to Rebut Prosecution Attempt to Portray Incident as Racist.

Tenth Ground for Relief: Ineffective Assistance of Counsel for Failing to Present Mitigating Evidence that the Victim Induced the Offense and that Petitioner was Provoked.

Eleventh Ground for Relief: Ineffective Assistance of Counsel for Failing to Move for a Separation of Witnesses.

(App. Vol. IV, at 334-349).

An evidentiary hearing scheduled for May 10, 1999 was continued until August 9, 1999. The hearing was again rescheduled for December 6, 1999. On March 13, 2000, the trial court, following the hearing and after reviewing the postconviction pleadings and state court record, issued an entry directing the parties to submit supplement briefs. (App. Vol. V, at 67). Petitioner submitted his post-hearing brief on April 11, 2000. On July 31, 2000, the state filed a motion for summary judgment. (App. Vol. V, at 145).

On September 14, 2000, the trial court issued a decision and entry considering and rejecting petitioner’s claims, and denying his petition for postconviction relief. (App. Vol. V, at 191-303).

2. Court of Appeals

Petitioner filed a notice of appeal in the trial court on October 13, 2000. (App. Vol. V, at 304). On May 2, 2001, petitioner sought a fourteen-day extension of time to file his appellate brief. On May 11, 2001, the appellate court granted petitioner’s request for an extension of time, directing him to file his appellate brief by May 28, 2001. (App. Vol. VII, at 26). On May 29, 2001, petitioner sought a six-day extension of time to file his appellate brief. (App. Vol. VII, at 27). On June 4, 2001, petitioner sought a seven-day extension of time to file his appellate brief. On June 5, 2001, the appellate court ruled on petitioner’s request of May 29, 2001 and directed him to file his appellate brief by June 4, 2001. (App. Vol. VII, at 35). On June 11, 2001, petitioner filed a motion requesting leave to file a sixty-five page brief, above the twenty-page limit. On June 25, 2001, the appellate court granted petitioner leave to file a brief not to exceed forty pages in length. (App. Vol. VII, at 40).

After being granted several extensions of time, as well as leave to file a brief in excess of twenty pages, counsel for petitioner apparently failed to file his appellate brief or to request an extension of time within the time permitted by the appellate court. Accordingly, the appellate court issued an order on September 10, 2001, directing counsel for petitioner to show cause why the appeal should not be dismissed. (App. Vol. VII, at 42). On September 24, 2001, counsel for petitioner responded to the show cause order, explaining that he had never received the appellate court’s entry dated June 25, 2001 granting him leave to file a brief in excess of twenty pages, since that entry, according to counsel, was sent to him at the Ohio Attorney General’s Office, though counsel for petitioner did not work at the Ohio Attorney General’s Office. (App. Vol. VII, at 44). On October 9, 2001, the appellate court issued an entry in response to counsel for petitioner’s “show cause” brief directing him to file his appellate brief before October 15, 2001. (App. Vol. VII, at 51). Counsel for petitioner apparently failed to file his appellate brief.

On January 10, 2002, the appellate court dismissed petitioner’s appeal with prejudice. (App. Vol. VII, at 53).

On January 23, 2002, represented by the Ohio Public Defender’s Office, petitioner filed a motion in the court of appeals to reopen his appeal, to allow the Ohio Public Defender’s Office replace John Gideon, and to allow new counsel to file an appellate brief by February 4, 2002. (App. Vol. VII, at 54). Petitioner explained that Ms previous counsel had failed to file the appellate brief due to mental health problems he had been experiencing and that the prosecuting attorney did not object to the Ohio Public Defender’s motion to re-open petitioner’s appeal. On February 4, 2002, the Ohio Public Defender’s Office filed a motion to file a brief instanter, pending the appellate court’s disposition of their motion filed on January 23, 2002. (App. Vol. VII, at 71).

On February 8, 2002, the appellate court issued an entry summarily denying petitioner’s motion to re-open his appeal. (App. Vol. VII, at 290). The appellate court also issued an entry on February 19, 2002, denying petitioner’s February 4, 2002 motion to file a brief instanter. (App. Vol. VII, at 292).

3. Supreme Court of Ohio

Represented by the Ohio Public Defender’s Office, petitioner appealed to the Supreme Court of Ohio on February 21, 2002. (App. Vol. VII, at 294). Petitioner filed a memorandum in support of jurisdiction on February 21, 2002, raising the following propositions of law:

Proposition of Law No. I: When a capital appellant demonstrates that post-conviction counsel, due to apparent mental illness, failed to file his merit brief, the appellate court must re-open that appellant’s direct appeal. Failure to do so violates the appellant’s rights to effective assistance of counsel, due process of law, equal protection of the law, confrontation of the state’s evidence against him, and freedom from cruel and unusual punishment. U.S. Const. Amends. V, VI, VIII, IX, and XIV; Ohio Const. Art. I, §§ 1, 2, 5, 9,10,16, 20.

Proposition of Law No. II: Where the evidence adduced at a post-conviction evidentiary hearing, in conjunction with post-conviction exhibits, showed that Stojetz was denied his right to the effective assistance of counsel, the trial court must grant relief on the post-conviction petition. U.S. Const. Amends. VI, XIV; Ohio Const. Art. I, § 1, 10, 16. Proposition of Law No. Ill: A defendant who is actually innocent of the death penalty may not be executed. U.S. Const. Amends. VIII, XIV; Ohio Const. Art. I, §§ 1,10,16.

Proposition of Law No. IV: When a post-conviction petitioner demonstrates the state withheld material, exculpatory evidence, the trial court must reverse the petitioner’s conviction and sentence. U.S. Const. Amends. V, XIV; Ohio Const. Art. I, § 16.

(App. Vol. VIII, at 6). On May 15, 2002, the Supreme Court of Ohio issued a one-line entry summarily declining to accept jurisdiction over the appeal. (App. Vol. VIII, at 238).

D. Motion for a New Trial

On April 12, 2000, during the pendency of his postconviction action in the trial court, petitioner, represented by attorneys John J. Gideon and Cordelia Glenn, filed a motion for a new trial based on newly discovered evidence. (App. Vol. IX, at 5). Petitioner argued that the December 19, 1997 deposition testimony of Phillip Wierz-gac and the August 18, 1998 testimony of Wierzgac at the trial of James Bowling— neither of which were available within the one-hundred-and-twenty-day period following petitioner’s sentencing by the trial court — provided newly discovered evidence that: (1) John Stojetz is actually innocent of calculated murder; (2) Damico Watkins’ assault on Doug Haggerty and his threats against John Stojetz induced and provoked the actions of John Stojetz; (3) the actions of John Stojetz were not motivated by racism but by self-preservation and self-protection; and (4) defense counsel were constitutionally ineffective in failing to investigate and present evidence of John Stojetz’s actual innocence, evidence of Damico Watkins’ inducement and provocation of John Stojetz, and the protectionist motivation underlying John Stojetz’s actions. On April 17, 2000, the trial court issued an entry reserving judgment on petitioner’s motion until the completion of the trial court’s decision on petitioner’s postconviction motion. (App. Vol. IX, at 134). On March 22, 2002, following the trial court’s decision denying petitioner’s postconviction motion, the trial court issued a decision denying his motion for a new trial. (App. Vol. IX, at 135). The trial court noted that it had fully evaluated and rejected the claims set forth in his motion for a new trial — including the new testimony by Phillip Wierzgac — in rejecting petitioner’s postconviction motion.

On April 22, 2002, petitioner, represented by the Ohio Public Defender’s Office, filed a notice of appeal to the Ohio Court of Appeals for the Twelfth District. In a merit brief filed on June 14, 2002, petitioner raised the following assignments of error:

Assignment of Error No. I: The trial court erred in denying Appellant Sto-jetz’s motion for a new trial.

Issues Presented for Review and Argument:

1. When the trial court bases its denial of a motion for a new trial in part on factual findings unsupported by the record below, the trial court abuses its discretion and deprives the appellant of his rights to due process and an adequate state corrective process.

2. When the trial court denies a motion for a new trial despite a wealth of evidence supporting an appellant’s request, the trial court abuses its discretion and deprives appellant of his rights to effective assistance of counsel, due process, and an adequate state corrective process.

Assignment of Error No. II: The trial court erred in failing to find counsel rendered ineffective assistance.

Issues Presented for Review and Argument:

1. When trial counsel fail to interview witnesses and to present relevant testimony, ineffective assistance is rendered depriving the defendant to effective assistance of counsel.

(App. Vol. X, at 31). On December 2, 2002, the appellate court issued a decision affirming the trial court’s decision denying petitioner’s motion for a new trial. (App. Vol. X, at 110).

Petitioner appealed to the Supreme Court of Ohio and raised the following propositions of law in a memorandum in support of jurisdiction filed on January 15, 2003:

Proposition of Law No. I: A trial court abuses its discretion when, despite a wealth of evidence supporting the request, it denies a capital appellant’s new trial motion. This error is compounded when the trial court’s decision is based on flawed factual findings. This violates the appellant’s rights to effective assistance of counsel, due process, and an adequate state corrective process. U.S. Const. Amends. VI, VIII, XIV.

Proposition of Law No. II: Trial counsel render ineffective assistance of counsel when they fail to interview witnesses and present relevant testimony. This deprives the appellant of his rights to effective assistance of counsel and due process. U.S. Const. Amends. VI, XIV.

(App. Vol. XI, at 22). On April 2, 2003, the Supreme Court of Ohio issued a one-line entry summarily declining to accept jurisdiction over the appeal. (App. Vol. XI, at 63).

III. Habeas Corpus Petition

The instant proceedings began on July 1, 2003, when petitioner filed a notice of intention to file a habeas corpus petition, as well as a motion for appointment of counsel. (Doc.Nos. 1 and 3). In accordance with this Court’s Order of September 19, 2003, (Doc.# 7), the habeas corpus petition was filed on April 1, 2004. (Doc. # 14). Petitioner raises the following claims for relief:

First Claim for Relief: Ineffective assistance of counsel.

A. Failed to Effectively Present a Defense or Defend Mr. Stojetz. (Petition, Doc.# 14-3, ¶¶ 95-218).

B. Voir Dire.

1. Pretrial Publicity (¶¶ 219-234).

2. Death Penalty Qualification (¶¶ 235-248).

C. Improper Opening Statements. (¶¶ 249-256).

D. Failed to Move for a Mistrial when the Jury was Exposed to Suppressed Evidence. (¶¶ 257-259).

E. Failed to Challenge Improper Jury Instructions. (¶¶ 260-267).

F. Failed to Object to Prosecutorial Misconduct. (¶¶ 268-280).

G. Failed to Object to the Admission of Evidence. (¶¶ 281-283).

H. Failed to Present the Testimony of Mr. Stojetz. (¶¶ 284-286).

I. Failed to Properly Prepare, Investigate, and Present a Mitigation Defense.

1. Failure to Investigate and Present a Defense. (¶¶ 288-301).

2. Failed to Hire Experts for Mitigation. (¶¶ 302-311).

J. Failed to Object to Victim Impact Evidence. (¶¶ 312-314).

K. Cumulative Impact. (¶¶ 315-319).

Second Claim for Relief: Mr. Stojetz is actually innocent of aggravated murder and/or. innocent of the death penalty. (¶¶ 320-330).

Third Claim for Relief: The voir dire conducted in Mr. Stojetz’s trial was inadequate to ensure a fair jury.

INTRODUCTION. (¶¶ 331-337).

PRETRIAL MATTERS. (¶¶ 338-351).

JURY VOIR DIRE AND DEATH

QUALIFICATION. (¶¶ 352-365).

A. Carla Stover.

B. Edward Banion.

C. Andre Porter.

D. Juror Suzanne Coffin.

E. Kathy Wolfe.

F. Sherry Leonard.

G. Juror Number Three, Michelle Kowalski.

H. Prospective jurors Ronald Smith, Lisa Morgan, Celia Browning, and Aleda Reed.

I. Terry Puckett and Ronald Daniels.

J. Dusty McCollum.

K. Thomas Herman.

L. Sandra Shaner and John Shilling.

M. Juror Number Ten, Harold Huffman.

N. Daniel Persinger, Juror Number Nine, and Daniel Puckett, Juror Number Six.

O. Tamara Cantrell.

P. Annabelle Biggs.

Q. David Little.

R. Richard Hirst, Juror Number Eleven.

S. Questions about belief in the right of self-defense or defense of another.

GENERAL VOIR DIRE BY DEFENSE COUNSEL. (¶¶ 366-373).

Counsel Failed to Ask Following Questions in a “Probing or Skillful Manner”:

A. Jurors’ preconceived notions about reasonable doubt;

B. Whether any of the prospective jurors had been victims of crime;

C. Prior service on other juries.

D. Jurors’ knowledge of the Aryan Brotherhood.

E. Jurors’ expectations of the Petitioner testifying in his own behalf during trial.

F. Whether jurors would consider petitioner’s testimony under the same instructions on credibility as other witnesses;

G. Whether jurors would automatically believe law enforcement witnesses or whether they would view their testimony under the same tests for credibility as other witnesses as instructed by the trial court;

H. The effect on jurors of State’s evidence including graphic testimony and language, photographs, and video recordings, testimony about racist comments and beliefs, and testimony about prison gangs and prison violence;

I. Whether jurors had read or heard news accounts of the incident or had discussed the incident with others in the community or with other prospective jurors;

J. What opinions, if any, were held by the jurors due to the fact that Petitioner was at the time of the incident charged, and at the time of trial, an inmate in a state correctional facility;

K. Jurors’ familiarity with witnesses for the State;

L. Jurors’ understanding, if any, of the presumption of innocence;

M. Jurors’ opinions of the justice system as expressed in juror questionnaires, and in particular, opinions on notorious cases such as the McDonald’s Coffee Case and the O.J. Simpson Case.

N. Jurors’ overall perceptions of the justice system and especially the criminal justice system.

EXERCISE OF PEREMPTORIES. (¶¶ 374-382).

CONCLUSION.

Fourth Claim for Relief: Erroneous Jury Instructions.

1. Trial Phase Instructions.

A. Reasonable Doubt Instruction. (¶¶ 389-395).

B. Purpose to Kill Instruction. (¶¶ 396-406).

C. Improper Instruction on Principal Offender or Aider and Abettor Element. (¶¶ 407-409).

D. Acquittal First Instruction. (¶¶ 410-414).

2. Mitigation Phase Instructions.

A. The jury improperly considered and weighed both the principal offender and aider and abettor findings. (¶¶ 415-418).

B. Acquittal of Death First Instruction. (¶¶ 419-427).

3. Conclusion.

Fifl/i Claim for Relief: The lack of specific findings by the jury denied Mr. Stojetz his Sixth Amendment right to a unanimous jury verdict.

A. Jury Verdicts. (¶¶ 431-450).

B. Grand Jury. (¶¶ 451-456).

Sixth Claim for Relief: During trial the jury was exposed to suppressed evidence inaccurately reported by the media as a confession of personal responsibility. (¶¶ 457-482).

Seventh Claim for Relief: The jury was exposed to irrelevant, inadmissible, inflammatory, and unduly prejudicial material of personal responsibility. (¶¶ 483-518).

Eighth Claim for Relief: The jury’s responsibility for the execution of Mr. Stojetz was improperly diminished. (¶¶ 519-534).

Ninth Claim for Relief: Prosecutorial misconduct throughout the trial deprived Mr. Stojetz of fair trial, a fair sentencing proceeding, due process, and equal protection.

A. Gender Discrimination in Voir Dire. (¶¶ 540-554).

B. Misrepresentation of Testimony. (¶¶ 555-561).

C. Victim Impact. (¶¶ 562-566).

D. Improper Mitigation Argument. (¶¶ 567-599).

E. Conclusion. (¶¶ 600-601).

Tenth Claim for Relief: The state improperly withheld exculpatory, mitigation, and/or impeachment evidence from the defense. (¶¶ 602-624).

Eleventh Claim for Relief: Ineffective assistance of counsel on his direct appeals.

Counsels’ Performance was Unreasonable, Deficient, and Failed to Meet Reasonable Standard of Care in Capital Cases.

Appellate counsel failed to raise the following non-exhaustive list of issues on direct appeal (¶ 628):

A. The prosecutor’s discriminatory use of peremptory challenges to exclude potential women jurors and death-qualified jurors and defense counsel’s failure to object to the prosecutor’s discriminatory use of peremptory challenges as to women and death qualified jurors. See Claim for Relief No. IX;

B. The failure of trial counsel to object to improper jury instructions including but not limited to the trial court’s improper instruction that mitigation verdicts must be unanimous. See Claim for Relief No. IV;

C. The failure of trial counsel to object to victim impact information. See Claim for Relief No. XV;

D. [Petition fails to set fort sub-part D].

E. The failure of trial counsel to object to improper, inflammatory, and prejudicial arguments by the prosecutors. See Claim for Relief No. IX;

F. The actual innocence of Mr. Stojetz of the charge of aggravated murder and/or the death penalty. See Claim for Relief No. II;

G. The failure of trial counsel to request a mistrial when the jury was exposed to suppressed, and incorrectly characterized, evidence. See Claim for Relief No. VI;

H. The failure of trial counsel to advise Mr. Stojetz of his right to testify and to put Mr. Stojetz on the stand. See Claim for Relief No. XVI;

I. The failure of trial counsel to rebut the state’s theory of racial animus. See Claim for Relief I;

J. The failure of trial counsel to present mitigation evidence that Watkins provoked the attack. See Claim for Relief No. I; and

K. The failure of trial counsel to seek sequestration of the jurors. See Claim for Relief No. III.

Twelfth Claim for Relief: Ohio’s post-conviction process is an inadequate corrective remedy rendering the entire death penalty scheme arbitrary and capricious.

Ohio’s Postconviction Scheme is not an Independent and Adequate Mechanism to Protect the Constitutional Rights of Capital Defendants. (¶¶ 649-667).

Ohio’s Postconviction Scheme is an Ineffective and Inadequate Remedy as Conducted in Mr. Stojetz’s Case. (¶¶ 668-709).

Thirteenth Claim for Relief: Denial of a fair proportionality review.

Ohio Created a Liberty Interest in Proportionality Review. (¶¶ 717-735).

The Statutorily Mandated Proportionality Review Ensures Proper Protections Against Arbitrary and Capricious Death Sentences. (¶¶ 736-749).

The Statutorily Mandated Proportionality Review Ensures Proper Protections Against Arbitrary and Capricious Death Sentences. (¶¶ 750-763).

Deference must be Given to the Legislative Mandate of the Ohio Legislature. (¶¶ 764-766).

Fourteenth Claim for Relief: John Sto-jetz’s death sentence is inappropriate, arbitrary, and capricious.

Arbitrary, Capricious, and Disproportionate to Other Cases. (¶¶ 772-781). Watkins’s Actions Prompted the Attack. (¶¶ 782-797).

Mr. Stojetz’s Post-Traumatic Stress Disorder Renders the Death Sentence Constitutionally Deficient. (¶¶ 798-812).

Fifteenth Claim for Relief: The trial court relied on inadmissible, irrelevant, inflammatory, and unduly prejudicial victim impact evidence in sentencing Mr. Stojetz to death. (¶¶ 815-835).

Sixteenth Claim for Relief: Mr. Stojetz was denied his constitutional right to testify in his own defense. (¶¶ 836-862).

Seventeenth Claim for Relief: Unconstitutionality of the death penalty statute. (¶¶ 863-).

A. O.R.C. §§ 2929.022, 2929.03, and 2929.04 violate the defendant’s rights to effective assistance of counsel and to a trial before an impartial jury, as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (¶¶ 885-897).

B. O.R.C. §§ 2929.03, 2929.04, and 2929.022 violate the Eighth and Fourteenth Amendments to the United States Constitution by failing to provide adequate guidelines for deliberation, leaving the jury without proper guidelines in balancing the aggravating and mitigating circumstances. (¶¶ 898-924).

C. O.R.C. §§ 2929.022, 2929.03, and 2929.04 and Ohio R.Crim. P. 11(C)(3) place an unconstitutional burden on the defendant’s right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution and his rights to be free from compulsory self-incrimination under the Fifth and Fourteenth Amendments to the United States Constitution. (¶¶ 925-936).

D. O.R.C. § 2929.03 fails to provide a meaningful basis for distinguishing between life and death sentences, as it does not explicitly require the jury, when it recommends life imprisonment, to specify the mitigating circumstances found, or to identify its reasons for such sentence. This denies the accused his rights under O.R.C. § 2929.03(A), [and] the Constitution. (¶¶ 937-944).

E. O.R.C. §§ 2929.021, 2929.03, and 2929.05 fail to assure adequate appellate analysis of arbitrariness, excessiveness, and disproportionality of death sentences and the Supreme Court of Ohio fails to engage in a level of analysis that ensures against arbitrary death sentencing. (¶¶ 945-983).

F. The appellate review provision of O.R.C. § 2929.05 fails to specifically require inquiry and findings regarding arbitrariness, passion, or prejudice, and this is constitutionally inadequate under the Eighth and Fourteenth Amendments to the United States Constitution. (¶¶ 984-987).

G. The Ohio Death Penalty Statute im-permissibly mandates imposition of the death penalty and precludes a mercy option in the absence of mitigating evidence or when aggravating circumstances outweigh mitigating factors. The statute also fails to require a determination that death is the appropriate punishment. (¶¶ 988-998).

H. O.R.C. §§ 2929.03, 2929.04, and 2929.05 violate the Eighth and Fourteenth Amendments to the United States Constitution by failing to require the jury to decide the appropriateness of the death penalty. (¶¶ 999-1008).

I. The Ohio Death Penalty Scheme permits imposition of the death penalty on a less than adequate showing of culpability by failing to require a conscious desire to kill, premeditation, or deliberation as the culpable mental state, by denying lesser offense instructions and by allowing affirmance of capital convictions on the basis of unconstitutional presumptions respecting the presence of intent to kill. (¶¶ 1009-1019).

J. The Ohio “beyond a reasonable doubt” standard of proof fails to meet the requirement of higher reliability for the guilt determination phase of a capital case. (¶¶ 1020-1034).

The statutes fail to require proof beyond all doubt as to guilt that aggravating circumstances outweigh mitigating factors, and the appropriateness of death as a punishment before the death sentence may be imposed.

Ohio’s definition of proof “beyond a reasonable doubt” results in a burden of proof insufficiently stringent to meet the higher reliability requirement in capital cases at the guilt phase, and this has not been cured by the appellate courts in their review of convictions or death sentences.

The Ohio death penalty statutes fail to require that the jury consider as a mitigating factor pursuant to O.R.C. § 2929.04(B) that the evidence fails to preclude all doubt as to the defendant’s guilt.

K. O.R.C. §§ 2929.03, 2929.04, and 2929.05 violate the Eighth and Fourteenth Amendments to the United States Constitution in failing to properly allocate the burden of proof during mitigation phase of trial. (¶¶ 1035-1041).

L. The definition of mitigating factors in O.R.C. § 2929.04(B)(7) creates an unreliable death sentence by creating non-statutory aggravating circumstances. (¶¶ 1042-1046).

M. Ohio’s statutory nature and circumstances mitigating factor is improperly used as a non-statutory aggravating circumstance. (¶¶ 1047-1050).

N. The Death Penalty violates international law. (¶¶ 1051-1068).

Eighteenth Claim for Relief: The cumulative impact of the errors addressed in this petition render Mr. Stojetz’s conviction and sentence unreliable and unconstitutional. (¶¶ 1071-1077).

(Habeas Corpus Petition, Doc.# 14).

Pursuant to the Court’s December 22, 2004 Scheduling Order (Doc.# 22), respondent filed a motion to dismiss procedurally defaulted claims on January 3, 2005 (Doc. # 23). Petitioner filed a response in opposition on June 2, 2005 (Doc.# 34), and respondent filed a reply on June 16, 2005 (Doe.# 35). Respondent’s motion to dismiss procedurally defaulted claims is now ripe for disposition.

JV. Procedural Default Discussion

It does not appear that every claim petitioner has raised in his habeas corpus petition was presented to the Ohio courts either during the direct appeal or on collateral review. As a general matter, a defendant who is convicted in Ohio of a criminal offense has available to him more than one method of challenging that conviction. Claims appearing on the face of the record must be raised on direct appeal, or they will be waived under Ohio’s doctrine of res judicata. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Issues that must be raised in a postconviction action pursuant to Ohio Rev.Code § 2953.21 include claims that do not appear on the face of the record and claims of ineffective assistance of trial counsel where the defendant was represented on direct appeal by the same attorney who represented him at trial. State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982). In 1992, a third procedure of review emerged. Claims of ineffective assistance of appellate counsel must be presented to the appellate court in a motion for delayed reconsideration pursuant to State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992) and Ohio R.App. P. 26(B).

In addition to raising each claim in the appropriate forum, a habeas litigant, in order to preserve his constitutional claims for habeas review, must also present those claims to the state’s highest court. O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Thus, under Ohio law, the conviction and sentence must be appealed to the Supreme Court of Ohio on direct appeal. Further, any adverse decision rendered by the trial court in postconviction must be appealed to both the Ohio Court of Appeals and the Supreme Court of Ohio.

In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present his claims, then his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982)(per curiam); Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). But if, because of a procedural default, the petitioner can no longer present his claims to the state courts, then he has also waived those claims for purposes of federal habeas corpus review, unless he can demonstrate both cause for the procedural default, as well as actual prejudice from the alleged constitutional error. Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

In the Sixth Circuit, the Court must undertake a four-part analysis when the state argues that a federal habeas claim is waived by the petitioner’s failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). “First, the court must decide 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.” Id. Second, the Court must determine whether the state courts actually enforced the state procedural sanction. Id. Third, it must be decided whether the state procedural forfeiture is an adequate and independent state ground upon which the state can rely to foreclose review of a federal constitutional claim. Id. Finally, if the Court has determined that a state procedural rule was not complied with, and that the rule was an adequate and independent state ground, then the petitioner must demonstrate that there was cause for him not to follow the procedural rule, and that he was actually prejudiced by the alleged constitutional error. Id. This “cause and prejudice” analysis applies to failures to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir.), cert. denied, 474 U.S. 831, 106 S.Ct. 99, 88 L.Ed.2d 80 (1985).

Respondent alleges that many of petitioner’s grounds, in their entirety or in part, are subject to one or more procedural defaults. Respondent argues that these grounds are defaulted because they were never presented to the state courts, because they were not preserved at trial with a contemporaneous objection, because they were not fairly presented to the state courts, because they were not appealed to the court of appeals during petitioner’s postconviction proceedings, and/or because they were not presented in accordance with Ohio’s res judicata rule. Respondent also asserts a procedural default defense against several grounds “where it is impossible to tell whether Stojetz raised the claim or not.” (Doc.# 23, at 7).

The Court will address each of the grounds individually to determine whether each ground is subject to the procedural default alleged by respondent.

A. Ground One, Sub-Part (A) — Ineffective Assistance For Failure To Present A Defense

In ground one, sub-part (A), petitioner argues that his trial attorneys performed deficiently and to his prejudice by promising, and then failing to deliver, a defense of petitioner during his trial. (Doc.# 14, at ¶¶ 95-218). Specifically, petitioner argues that his trial attorneys made no effort to investigate or present evidence on the defense theories that they had advanced during opening statements — namely, that petitioner believed that the victim had attacked another inmate named Doug Hag-gerty, that petitioner was aware that the victim had threatened to attack petitioner and others, that petitioner did not intend to cause the victim’s death and was not the leader of the Aryan Brotherhood that had planned the attack, and that the murder was not racially motivated but was incident to the culture of prison life.

Respondent argues in his motion to dismiss that petitioner’s claim is procedurally defaulted because petitioner raised the claim in his postconviction action, but subsequently failed to prosecute an appeal to the state court of appeals following the trial court’s decision denying his postcon-viction action. (Doc.# 23, at 20-21). Petitioner has countered with a number of responses, including the argument that he had preserved this constitutional claim by raising it in his motion for a new trial. (Doc.# 34, at 38-44).

Respondent agrees and, in his reply, expressly abandons his procedural default argument against ground one, sub-part (A). (Doc.# 35, at 32). Accordingly, respondent’s motion to dismiss ground one, sub-part (A) is DENIED.

B(l). Ground One, Sub-Part (B)(1)— Ineffective Assistance During Voir Dire (Pretrial Publicity)

In ground one-sub-part, (B)(1), petitioner argues that his attorneys performed deficiently and to his prejudice by failing, during voir dire, to adequately explore with potential jurors the issue of whether they had been unduly influenced by pretrial publicity. (Doc.# 14, at ¶¶ 219-234). Respondent argues that petitioner’s claim is procedurally defaulted under Ohio’s doctrine of res judicata because petitioner raised the claim in his postcon-viction action instead of raising it on direct appeal and that the claim is subject to a second procedural default by virtue of petitioner’s failure to prosecute an appeal to the state court of appeals following the trial court’s decision denying petitioner’s postconviction action. (Doc.# 23, at 22-23).

Petitioner counters with several arguments in response. First, petitioner argues that this claim was raised on direct appeal in his third proposition of law and that the claim was addressed on the merits by the Supreme Court of Ohio. (Doc.# 34, at 44-45). Petitioner further argues that Ohio’s res judicata rule cannot provide the basis for a procedural default because the state courts in this instance did not clearly and expressly explain their enforcement of the res judicata rule, because his claim relied on evidence dehors the record, and because Ohio’s postconviction process in general does not provide a fair and adequate remedy. (Id. at 45). Finally, with respect to respondent’s argument that petitioner’s claim is subject to a second procedural default stemming from his failure to prosecute an appeal in postconviction, petitioner argues that the state waived that procedural default when the prosecution declined to oppose petitioner’s motion requesting the state court of appeals to reconsider its decision dismissing petitioner’s postconviction appeal with prejudice on the basis of petitioner’s failure to file a merit brief. (Id.).

In a different section of his brief in opposition, petitioner raises numerous arguments generally against enforcement by this Court of the default stemming from his failure to prosecute an appeal during his postconviction proceedings. Although it is far from clear whether petitioner intended, in the section of his brief specifically addressing ground one, sub-part (B)(1), to incorporate all of those arguments against enforcement of the default from his failure to prosecute an appeal in postconviction, this Court will, out of an abundance of caution, address them anyway.

a. First Part of the Maupin test — Violation of State Procedural Rule

The first part of the Maupin test requires the Court to determine whether a state procedural rule is applicable to petitioner’s claim, and, if so, whether petitioner violated that rule. As noted above, claims appearing on the face of the record must be raised on direct appeal, or they will be waived under Ohio’s doctrine of res judicata. See State v. Perry, supra. Claims that do not appear on the face of the record are properly raised in a post-conviction action pursuant to Ohio Rev. Code § 2953.21.

Initially, the Court rejects petitioner’s assertion that this claim was raised and addressed on direct appeal. Petitioner asserts that this claim was raised on direct appeal to the Supreme Court of Ohio in his third proposition of law. This Court scoured those pages of petitioner’s appellate brief devoted to his third proposition of law — ineffective assistance of trial counsel — and found no mention whatsoever of trial counsel’s failure to ask potential jurors about their exposure to pretrial publicity. (App.Vol. II, at 113-34). In short, petitioner’s assertion that ground one, sub-part (B)(1) was raised on direct appeal is belied by the record.

Having determined that petitioner did not raise this claim on direct appeal, the Court turns its focus to whether petitioner violated Ohio’s res judicata rule when he instead raised the claim in his postconviction action. In determining whether res judicata applies, the Court focuses its inquiry on whether the claim relies on non-record evidence that supports the claim in a manner that no record evidence could. Petitioner raised this claim of trial counsel ineffectiveness as his second claim for relief in his postconviction action. He supported the claim with photocopies of more than twenty articles about the murder from local newspapers in the months and days leading up to his trial. (App. Vol. IV, at 187, Exh. DD). These newspaper articles were not part of the trial record, and, technically speaking, there was no evidence beyond the trial court’s general remarks during voir dire about the issue of pretrial publicity, (Tr. Vol. II, at 53-55), from which petitioner’s appellate counsel could have argued on appeal that the failure of trial counsel to probe prospective jurors on the extent to which they were exposed to pretrial publicity might have prejudiced petitioner. Thus, petitioner’s claim technically relied on and was supported by evidence outside the record. Moreover, the trial court, in rejecting petitioner’s claim, clearly addressed and rejected it on the merits. (App. Vol. Y, at 292). Under these circumstances, the Court is inclined to conclude that petitioner was not required under Ohio’s doctrine of res judicata to raise this claim on direct appeal and that petitioner did not violate the state rule by raising the claim in his posteonviction action. The is also inclined to conclude, under the second part of the Mawpin test, that the state trial court did not clearly and expressly enforce the res judicata rule against petitioner’s claim.

The Court need not resolve this issue, however, because petitioner subsequently defaulted this claim when he failed to prosecute an appeal to the state court of appeals following the trial court’s decision denying his postconviction action.

As discussed in more detail supra in Section II.(C)(2) of this Opinion and Order, after being granted several extensions of time, as well as leave to file a brief in excess of twenty pages, petitioner’s post-conviction counsel, John J. Gideon, apparently failed to file his appellate brief, or a request for an extension of time, within the time permitted by the appellate court. Accordingly, the appellate court issued an order on September 10, 2001, directing counsel for petitioner to show cause why the appeal should not be dismissed. (App. Vol. VII, at 42). On September 24, 2001, counsel for petitioner responded to the show cause order, explaining that he had never received the appellate court’s entry dated June 25, 2001 granting him leave to file a brief in excess of twenty pages, because that entry, according to counsel, was sent to him at the Ohio Attorney General’s Office, though counsel for petitioner did not work at the Ohio Attorney General’s Office. (App. Vol. VII, at 44). On October 9, 2001, the appellate court issued an entry in response to counsel for petitioner’s “show cause” brief directing him to file his appellate brief before October 15, 2001. (App. Vol. VII, at 51). Counsel for petitioner apparently failed again to file his appellate brief.

On January 10, 2002, the appellate court dismissed petitioner’s appeal with prejudice. (App. Vol. VII, at 53).

Turning to the first part of the Maupin test — whether petitioner violated a state procedural rule — the Court concludes that Ohio law could not be more clear that postconviction actions, even in death penalty cases and other felony cases, are civil in nature and must be appealed in accordance with the Ohio Rules of Appellate Procedure. State v. Nichols, 11 Ohio St.3d 40, 463 N.E.2d 375, paragraphs one and two of the syllabus, 11 Ohio St.3d 40, 463 N.E.2d 375 (1984). Rule 18(c) of the Ohio Rules of Appellate Procedure provides that an appeal may be dismissed for the failure to timely file an appellate brief. When petitioner failed to file his appellate brief in accordance with the appellate court’s scheduling order and as permitted by numerous extensions of time, he failed to prosecute an appeal in violation of the Ohio Rules of Appellate Procedure and State v. Nichols. Thus, the first part of the Maupin test has been met.

b. Second Part of Maupin Test — Actual Enforcement by State Courts

The second part of the Maupin test requires the Court to determine whether the state courts ac