Full opinion text
MEMORANDUM OF OPINION AND ORDER OLIVER, District Judge. This matter is before the court on William Montgomery’s (“Montgomery” or “Petitioner”) Petition under 28 U.S.C. § 2254 for Writ Of Habeas Corpus By A Person In State Custody (ECF No. 13) (the “Petition.”) Montgomery alleges forty-eight grounds for relief in his Petition. Also before the court are Respondent’s Return of Writ (ECF No. 25) (“ROW”) and Montgomery’s Traverse To Respondent’s Return Of Writ. (ECF No. 85) (“Traverse.”) For the reasons that follow, Montgomery’s petition for a writ of habeas corpus is granted. The Respondent shall either: (1) set aside Montgomery’s convictions and sentences as to all counts in the indictment, including the sentence of death; or (2) conduct another trial. This shall be done within 180 days from the effective date of this Opinion. On this court’s own motion, the execution of this Opinion, and hence its effective date, is stayed pending appeal by the parties. I. FACTUAL BACKGROUND Montgomery appeals from his convictions and death sentence for the aggravated murder of Debra Ogle and Cynthia Tincher. The facts leading to Montgomery’s conviction are as follows: Between 7:00 a.m. and 7:30 a.m. on March 8, 1986, Cynthia Tincher was found dead, shot in the head, in her car at the corner of Angola and Wenz Roads in Toledo, Ohio. That same morning, Tincher’s roommate, Debra Ogle, did not show up for work and was declared missing. Four days later, on March 12, 1986, Ogle was also found dead, also shot in the head, in a wooded area off of Hill Avenue. William Terry Montgomery was charged with two separate counts of aggravated murder with capital specifications for these killings. The State relied on testimony by Glover Heard (“Heard”), Montgomery’s co-defendant. The State’s theory was that Montgomery murdered Ogle while robbing her using a deadly weapon, and then, in one continuous criminal enterprise, murdered Tincher because she was the only person who could place Montgomery with Ogle that morning. To prove its theory, the State presented, in the form of testimony and exhibits, evidence to support the following factual propositions: • Montgomery had purchased a .380 caliber semi-automatic pistol and ammunition just weeks before the murders (See Blackburn, Tr. IV at 1411-81; Cleland, Tr. IV at 1433-42); • Montgomery was wearing a dark hooded jacket with the hood tied tight around his face when he entered the gun shop to purchase the pistol (Blackburn, Tr. IV at 1419,1423-24); • Montgomery and the young women were acquaintances (See Heineman, Tr. IV at 1176-84; Earl, Tr. IV at 1186-97; Roberts, Tr. IV at 1198— 1205); • Both young women were alive the night of March 7th and the early morning hours of March 8th (See Glaze, Tr. IV at 1209-20; Bailey, Tr. IV at 1281-93; Heard, Tr. V at 1769; Snyder, Tr. V at 1810); • Montgomery, Heard, • another friend, Bruce Ellis, and Montgomery’s then girlfriend, Louren, went out drinking on the night of March 7th (Ellis, Tr. IV at 1445); • The group did not stop partying until the bar closed in the early morning of March 8th (Id. at 1446); • Montgomery was wearing a blue pin striped suit jacket and jeans that night (Id.; Randleman, Tr. IV at 1462); • Later in the morning of March 8th, Montgomery, Louren, and Heard went to Montgomery’s uncle’s house, where a very drunk Montgomery was arguing with Louren until his uncle broke it up (Randleman, Tr. IV at 1463-66; Heard, Tr. V at 1767); • After defusing the argument, Montgomery’s uncle, Randleman, took a gun away from Montgomery and put it and its clip on top of the refrigerator (Randleman, Tr. IV at 1466); • The gun Randleman took from Montgomery was a black automatic (Id.); • Montgomery and Heard then left the Randleman residence, both passing through the kitchen where the gun was on top of the refrigerator, to get in a cab (Id. at 1488); • Montgomery was armed with a .380 caliber pistol the morning of March 8th (Snyder, Tr. V at 1807); • The cab took Montgomery and Heard to Ogle and Tincher’s apartment on Hill Avenue at Montgomery’s direction (Heard, Tr. V at 1767-68; Reed, Tr. V at 1517); • Both Montgomery and Heard entered the apartment (Heard, Tr. V at 1769; Snyder, Tr. V at 1810); • Ogle was getting ready to go to work and Tincher, although she popped out to say hello, was still in bed (Snyder, Tr. V at 1810); • Ogle agreed to give Montgomery and Heard a ride to Montgomery’s mom’s apartment on Airport Road (Heard, Tr. V at 1770; Snyder, Tr. V at 1810); • Montgomery, sitting in the front seat, gave Ogle the directions and eventually told her to stop on the side of the road on Hill Avenue (Heard, Tr. V at 1770-72); • Ogle and Montgomery got out of her car and walked roughly forty yards into a field or wooded area off Hill Avenue (Id. at 1771-72); • Once in that area, Ogle was in the squat position (Id. at 1772); • Heard heard two gunshots (Id. at 1773); • Heard saw Ogle’s body laying on the ground (Id.); • Montgomery rushed back to Ogle’s car and motioned for Heard to get in the front passenger’s seat as Montgomery got into the driver’s seat (Id.); • Montgomery drove Ogle’s car back to the victims’ apartment complex (Id. at 1774); • Montgomery picked a gun up off the floor of the car, exited the vehicle, and told Heard to take the car (Id.); • Heard then left in the car and took Ogle’s wallet as he abandoned the car roughly one block from his home (Id. at 1774-75); • A black person wearing a dark hooded jacket with the hood tied tight around her or his face left Tincher’s car the morning Tincher was found at Angola and Wenz Roads (Rank, Tr. TV at 1249-51; Gomell, Tr. IV at 1263, 1265; Mauder, Tr. IV at 1402-03); • On March 9th, Montgomery, with Heard and Armstead, took the blue pin striped suit jacket he wore the night before to the cleaners (Arm-stead, Tr. V at 1544^46; Grove, Tr. V at 1573-74; Fisher, Tr. V at 1586-87; Heard, Tr. V at 1778; St. Ex. 31); • The gun Randleman put on top of the refrigerator was not there the next morning, March 9th (Randleman, Tr. IV at 1472); • A bullet, consistent with the type that could be used in Montgomery’s gun which was identified as the murder weapon, was found in Tincher’s room in Tincher and Ogle’s apartment (RKeith, Tr. IV at 1303; PKeith, Tr. IV at 1317.) • Ogle’s car was found roughly one block from Heard’s home by police on March 9th (See Ragans, Tr. IV at 1334-41); • Ogle’s wallet was found in Heard’s dresser drawer (See Marok, Tr. IV at 1344-51; Mallory, Tr. IV at 1363-1379); • A black hooded jacket and a semi automatic pistol manual were found in Montgomery’s mother’s apartment (Przeslawski, Tr. V at 1670; Marx, Tr. V at 1844); • Tincher died from a gunshot wound to the head, which entered from the right side (passenger side since Tincher was sitting in the driver’s seat of her car) (Patrick, Tr. IV at 1389-91); • Ogle died from a gunshot wound to the head (Desley, Tr. V at 1633); • All the discharged bullets and casings at both scenes were fired from the .380 caliber semi automatic pistol that Montgomery’s mother gave police, which was the same gun Montgomery purchased just weeks earlier — the .380 caliber Bursa semi automatic pistol (See Alexander, Tr. VI at 1870-1902); and • Montgomery led the police to the wooded area where Ogle’s body was discovered (Marx, Tr. V at 1851-55). The defense did not present any witnesses. Rather, the defense relied on cross-examination in an attempt to raise reasonable doubt about Montgomery’s guilt. The defense was able to elicit testimony that impeached some of the State’s witnesses, including: • Not all of the witnesses that saw the person leaving the area where Tincher was found could determine the gender of the fleeing individual (Gomell, Tr. IV at 1265; Mauder, Tr. IV at 1409); • Those witnesses could not determine the color or the material of the hooded jacket (Rank, Tr. TV at 1249-51; Go-mell, Tr. IV at 1273-75; Mauder, Tr. IV at 1409-11); • No fingerprints were found on Ogle’s car (Mallory, Tr. IV at 1380.) • Besides Tincher’s, no identifiable fingerprints were found on Tincher’s car (Id. at 1381); • No fingerprints were found on the pistol Montgomery’s mother gave police, which was identified as the murder weapon (Marx, Tr. V at 1851); • The clerk who sold Montgomery the .380 caliber pistol, who remembered what he was wearing the day he purchased the gun, admitted she never remembered what any other customers were wearing (Blackburn, Tr. IV at 1426-29); • Ellis never saw Montgomery with a gun on March 7th, the night the group went out drinking or any other time (Ellis, Tr. IV at 1459-60); • Montgomery did not have a dark hooded jacket with him that night (Heard, Tr. V at 1794); • Montgomery always had money, had money March 7th, and paid for the entire group to go out on March 7th (Ellis, Tr. IV at 1453; Randleman, Tr. IV at 1502; Heard, Tr. V at 1785); • Montgomery and Heard both left through the kitchen where the pistol Randleman took from Montgomery was located (Randleman, Tr. IV at 1488.) • Montgomery was not angry when he and Heard arrived at Ogle and Tincher’s apartment (Heard, Tr. V at 1787); • Montgomery and Heard had never discussed robbing anyone that night (Id. at 1789); • Montgomery, despite giving various accounts, always maintained to police that Heard, not he, killed the young women (See Przeslawski, Tr. V at 1653-1759; Snyder, Tr. V at 1804-36); and • Montgomery told police that Heard had showed him the area where he, Heard, killed Ogle (Przeslawski, Tr. V at 1747-48). The defense impeached Heard’s testimony by showing that Heard had received a deal in exchange for his testimony, which dropped two aggravated murder charges and another charge of gross sexual imposition involving a five-year old minor for his pleading guilty to complicity to murder and his testimony. (Heard, Tr. V at 1765, 1796-97). Additionally, the defense showed that Heard had told police four different stories about the murders, id. at 1780-84, and had heard only two gun shots even though the coroner testified there were three gun shot wounds to Ogle’s body. (Id. at 1793; Desley, Tr. V at 1619-20). Heard admitted that he was going to take Ogle’s car, regardless of Montgomery telling him to, because it was cold and he did not want to have to walk home (Heard, Tr. V at 1795). Heard’s testimony was further impeached when Detective Marx admitted that during questioning he had told Heard it was impossible for Heard to have seen Ogle’s body from where he was sitting in Ogle’s car after he heard the gun shots. (Marx, Tr. V at 1864-68.) II. PROCEDURAL HISTORY After a trial, a Lucas County jury found Montgomery guilty of one count of murder, and one count of aggravated murder with two specifications: (1) as part of a course of conduct involving purposeful killing of two or more persons; and (2) while committing or attempting to commit aggravated robbery. All counts arose from the shooting deaths of Debra Ogle and Cynthia Tincher. Following the sentencing phase of trial, the jury recommended and the trial court imposed, a death sentence for the aggravated murder count. A. Direct Appeal Montgomery’s direct appeal of his conviction and sentence to the Ohio Court of Appeals raised the following grounds of error: a. The trial court erred in denying appellant’s motion to dismiss the indictment for the reason that it violated federal and state constitutional guarantees. b. The trial court erred and denied appellant his due process right to a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10, of the Ohio Constitution when it instructed the jury at the sentencing phase that the sentencing determination was merely a recommendation, thereby placing an irrelevant and arbitrary factor into the jury’s deliberations, and seating a jury which favored the death penalty. c. By permitting the venire to be ‘death-qualified’, the appellant’s Sixth and Fourteenth Amendment right to a fair and impartial jury guaranteed by the federal and state constitutions were violated. I. Excluding death penalty opponents results in a jury which is more likely to convict the Defendant and is therefore not impartial. II. Excluding the panel of death penalty opponents results in a jury which is not drawn from a fair cross-section of the community. III. Death-qualification of the jury is improper because the trial judge ultimately imposes the death sentence; therefore, by asking voir dire questions concerning the death penalty in this case, the trial court violated the appellant’s right guaranteed under the Eighth and Fourteenth Amendments of the U.S. Constitution and Article I, Sections 9 and 16, of the Ohio State Constitution. d. Ohio’s death penalty statute is viola-tive of the Sixth and Fourteenth Amendments of the United States Constitution in that it fails to allow for the impaneling of a separate jury for the second stage of his bifurcated trial. e. The trial court erred to the prejudice of the appellant and violated his Sixth and Fourteenth Amendment rights to a fair and impartial jury by asking its own ‘death-qualifying’ question to potential jurors that neither conforms to Witherspoon v. Illinois nor Ohio statutory mandates. f. The trial court’s sentencing procedure was arbitrary and violative of the due process clauses of the United States and Ohio Constitutions. g. The trial court erred in denying appellant’s request for permission to open and close the arguments at the conclusion of the sentencing hearing. h. The trial court erred by failing to replace juror number 1 (Georgia Lu-kasiewicz) after she exhibited bias and abnormal reasoning during the deliberation phase of the mitigation hearing. i. Defendant’s constitutional rights were violated by the prosecutor’s use of inflammatory and prejudicial language throughout his entire closing arguments. j. Prejudicial remarks by the Prosecution were improper and entitle Defendant to a new trial. k. The trial court erred when it failed to instruct the jury to disregard testimony objected to and subsequently sustained. l. The trial court erred by not granting Defendant’s motion for a change of venue. m. The trial court erred when it denied the juror’s request for added instruction on mitigation. n. Defendant’s constitutional rights were violated when the jury was allowed to consider statutorily irrelevant aggravating factors. o. The Prosecution’s indirect comment on Defendant’s silence violated Defendant’s rights, Fifth, Sixth and Fourteenth Amendments, and therefore entitles him to a new trial. p. The Defendant’s conviction is against the manifest weight of the evidence and contrary to law in that there was never any showing that the Defendant purposely caused the death of Debra Ogle, while committing or fleeing immediately after committing aggravated robbery. The Ohio Court of Appeals affirmed the convictions and the sentence. State v. Montgomery, 1988 WL 84427 (Ohio Ct. App. Aug. 12, 1988). The Ohio Supreme Court also affirmed Montgomery’s conviction and sentence. State v. Montgomery, 61 Ohio St.3d 410, 575 N.E.2d 167 (1991). Montgomery raised the following claims of error before the Ohio Supreme Court: Proposition of Law No. I [:] A capital conviction and death sentence cannot stand when the trial record is replete with prosecutorial misconduct. Proposition of Law No. II [:] A trial court errs when it fails to replace a juror after she exhibited bias and abnormal reasoning. Proposition of Law No. Ill [:] Ohio’s mandatory capital sentencing scheme prevented appellant Montgomery’s jury from deciding whether death was the appropriate punishment in violation of appellant Montgomery’s rights as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and §§ 9 and 16, Article I of the Ohio Constitution. Proposition of Law No. TV [:] A juvenile conviction should not be considered by a capital jury during the sentencing phase of a capital trial where the defense does not raise the defendant’s lack of a criminal record as a mitigating factor. Proposition of Law No. V [:] A capital sentencer’s refusal to weigh mitigating evidence and its reliance on non-statutory aggravating circumstances render the sentence of death unreliable, inappropriate and constitutionally infirm under the Eighth and Fourteenth Amendments to the United States Constitution and § 9, Article I of the Ohio Constitution. Proposition of Law No. VI [:] It is error for a trial court to deny a capital defendant a one day continuance to prepare for the mitigation phase of his capital trial after a guilty verdict is returned. Proposition of Law No. VII [:] The trial court errs when it fails to grant appellant’s motion for acquittal when there is insufficient evidence to sustain a conviction. Proposition of Law No. VIII [:] A conviction and death sentence cannot stand when it is against the weight of the evidence presented at trial. Proposition of Law No. IX [:] Former R.C. 2923.03(D) prohibited a conviction based solely on the uncorroborated testimony of an accomplice and the trial court erred in overruling a Crim.R. 29 motion for judgment of acquittal where there was not sufficient evidence to corroborate the accomplice testimony. Proposition of Law No. X [:] A trial court errs when it fails to charge the jury on the lesser included offenses of involuntary manslaughter or voluntary manslaughter and incorrectly instructs the jury concerning a capital specification. Proposition of Law No. XI [:] A trial court errs by instructing a capital sentencing jury as to all the mitigating factors in R.C. 2929.04(B) when the defense had not raised all such factors in its mitigation presentation; the instruction violates an appellant’s rights as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and §§ 2, 9, and 16, Article I of the Ohio Constitution. Proposition of Law No. XII [:] Jury instructions requiring unanimity for a life verdict at the penalty phase deny the accused his right to a fair trial and freedom from cruel and unusual punishment in violation of 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. XIII [:] The trial court’s penalty phase instruction on reasonable doubt shifted the burden of proof to appellant, and allowed the state to prove fewer than every element needed to impose the death sentence in violation of appellant’s rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and §§ 2, 9, 10 and 16, Article I of the Ohio Constitution. Proposition of Law No. XIV [:] A prosecutor’s use of peremptory challenges to exclude prospective jurors with some reservations about the death penalty violates a capital defendant’s rights to a fair and impartial jury as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and §§ 5,10 and 16, Article I of the Ohio Constitution. Proposition of Law No. XV [:] The trial court erred in failing to excuse for cause two jurors that were biased against the appellant. This failure denied appellant a fair trial by an impartial jury as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and §§ 5, 10 and 16, Article I of the Ohio Constitution. Proposition of Law No. XVI [:] The appellant’s rights under the Fourteenth Amendment to the United States Constitution and § 2, Article I of the Ohio Constitution were violated when the prosecution used its challenges to remove a black member from appellant’s jury. Proposition of Law No. XVII [:] The Sixth and Fourteenth Amendments to the United States Constitution, §§ 10 and 16, Article I of the Ohio Constitution and §§ [sic] 2946.25(C) of the Ohio Revised Code, guarantee an accused a fair trial and an impartial jury. The exclusion of potential jurors Gorsuch, Faison and Serke denied appellant Montgomery these constitutional guarantees. Proposition of Law No. XVIII [:] When a capital defendant receives the ineffective assistance of counsel the reliability of his conviction and death sentence are undermined. Proposition of Law No. XIX [:] The failure to raise or adequately address substantial capital and other well-established criminal law issues on appeal as of right deprives the capital defendant of the effective assistance of appellate counsel and the meaningful appellate review of a capital conviction guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, §§ 10 and 16, Article I of the Ohio Constitution and R.C. 2929.05. Proposition of Law No. XX [:] The trial court’s instruction on the mens rea element of ‘purpose’ created an unconstitutional conclusive presumption and relieved the state of its burden to prove this material element beyond a reasonable doubt. Proposition of Law No. XXI [:] Inflammatory and gruesome photos of the victim were admitted during the guilt phase of appellant Montgomery’s trial in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and §§ 10 and 16, Article I of the Ohio Constitution. Proposition of Law No. XXII [:] When a capital defendant’s arrest is based on outstanding forgery warrants, the arrest is pretextual and any evidence obtained concerning the murder is inadmissible. Proposition of Law No. XXIII [:] Failure of the trial court to adequately admonish the jury violates appellant’s right to a fair trial by an impartial jury as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and §§ 10 and 16, Article I of the Ohio Constitution. Proposition of Law No. XXIV [:] It is error to instruct a capital sentencing jury that its verdict is only a recommendation, thereby diminishing the jury’s responsibility for its decision and misleading the jury concerning its key role in sentencing and is in violation of the Eighth and Fourteenth Amendments to the United States Constitution and §§ 9 and 16, Article I of the Ohio Constitution. Proposition of Law No. XXV [:] A capital defendant is denied his right to remain silent when the prosecutor comments to the jury concerning that silence in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and §§ 10 and 16, Article I of the Ohio Constitution. Proposition of Law No. XXVI [:] Death qualification of a jury denies the accused equal protection of the law as guaranteed by the Fourteenth Amendment to the United States Constitution and § 2, Article I of the Ohio Constitution. Proposition of Law No. XXVII [:] Appellant Montgomery’s rights under the Eighth and Fourteenth Amendments to the United States Constitution, Section 9, Article I of the Ohio Constitution, and R.C. 2929.04(B)(7), were violated when the trial judge prevented the sentencing jury from considering relevant proffered evidence in mitigation of the death sentencing. Proposition of Law No. XXVIII [:] The death sentence imposed in appellant Montgomery’s case was inappropriate and disproportionate and violated the Eighth and Fourteenth Amendments to the United States Constitution and §§ 9 and 16, Article I of the Ohio Constitution. Proposition of Law No. XXIX [:] A motion for a change of venue should be granted when it is apparent that a fair and impartial trial cannot be had in the county in which the case is pending. Proposition of Law No. XXX [:] The felony-murder specification in R.C. 2929.04(A)(7) fails to narrow the class of persons eligible for the death penalty and therefore violates the Eighth and Fourteenth Amendments to the United States Constitution and Section 9, Article I of the Ohio Constitution. Proposition of Law No. XXXI [:] The Fifth, Eighth and Fourteenth Amendments to the United States Constitution, §§ 10 and 16, Article I of the Ohio Constitution and Ohio Revised Code Section 2929.05 guarantee a convicted capital defendant a fair and impartial review of his death sentence. The statutorily mandated proportionality process in Ohio is fatally flawed thereby denying appellant Montgomery the above rights. Proposition of Law No. XXXII [:] The Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and §§ 2, 9, 10 and 16, Article I establish the requirements for a valid death penalty scheme. Ohio’s statutory provisions governing the imposition of the death penalty, contained in [R.C.] 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05 do not meet the prescribed requirements and, thus, are unconstitutional, both on their face and as applied to appellant Montgomery. The United States Supreme Court denied Montgomery’s petition for a writ of certiorari. Montgomery v. Ohio, 502 U.S. 1111, 112 S.Ct. 1215, 117 L.Ed.2d 452 (1992). B. Application for Delayed Reconsideration 1. Ohio Court of Appeals On November 27, 1992, Montgomery filed an application in the Ohio Court of Appeals for delayed reconsideration claiming ineffective assistance of appellate counsel (i.e., a Mumahan petition). On March 3, 1993, the Court of Appeals denied Montgomery’s application for delayed reconsideration. State v. Montgomery, 1993 WL 110901. Montgomery appealed. 2. Ohio Supreme Court Before the Ohio Supreme Court, Montgomery argued the following four claims: (1)the application of the doctrine of res judicata denies meaningful consideration of Appellant’s claims of ineffective assistance of appellate counsel in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, §§ 9, 10, and 16, of the Ohio Constitution; (2) the Court’s failure to order that the Court of Appeals record be delivered in Appellant’s direct appeal of right in the above captioned case violated Appellant’s rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, §§ 2, 9, 10, and 16 of the Ohio Constitution; (3) the Court of appeals improperly addressed the merits of four claims without permitting briefing by the Appellant and without having a complete record in violation of Appellant’s rights to the effective review under the Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States, Article I, §§ 2, 10, and 16, of the Ohio Constitution, and Ohio Rev.Code Ann. § 2929.05; and (4) the failure to exercise reasonable professional judgment in raising and preserving constitutional issues in the direct appeals of capital cases denies Mr. Montgomery the effective assistance of appellate counsel guaranteed by the Due process Clause of the Fourteenth Amendment. (Ex. E to Petition.) The Ohio Supreme Court affirmed the denial of the application on October 27, 1993. State v. Montgomery, 67 Ohio St.3d 1487, 621 N.E.2d 409 (1993). C. Posh-Conviction Proceedings 1. Trial Court Montgomery then filed a post-conviction petition with the trial court. His petition included the following claims for relief and was summarily dismissed without an evi-dentiary hearing, State v. Montgomery, No. CR86-5450, slip op. (Ohio .Ct. Common Pleas, Aug. 28,1996): 1. The state engaged in four specific instances of prosecutorial misconduct during the voir dire of petitioner’s jury. 2. The state engaged in eight specific instances of prosecutorial misconduct during the culpability phase of petitioner’s trial. 3. The state engaged in nine specific instances of prosecutorial misconduct during the penalty phase of petitioner’s trial. 4. One of the jurors was biased against petitioner, irrational, and incompetent to serve as a juror. 5. The jury was erroneously instructed that if it should find that no mitigating factors exist, or that the aggravating circumstances outweighed the mitigating factors, then it must sentence petitioner to death. 6. The state was allowed to present evidence during the penalty phase of the trial regarding petitioner’s prior juvenile adjudications. 7. The trial court’s sentencing opinion impermissibly took into consideration non-statutory aggravating circumstances while ignoring relevant mitigating factors. 8. The trial court denied petitioner’s motion for continuance, thus forcing the case to proceed to the penalty phase on the day after the jury returned a verdict of guilty. 9. There was insufficient evidence presented at trial for a reasonable juror to find beyond a reasonable doubt that petitioner committed or attempted to commit aggravated robbery. 10. There was insufficient evidence presented at trial for a reasonable juror to find beyond a reasonable doubt that petitioner purposefully caused the death of Debra Ogle while committing or attempting to commit aggravated robbery. 11. The only direct evidence that petitioner killed either Debra Ogle or Cynthia Tincher came from the uncorroborated testimony-of an admitted accomplice. At the time of petitioner’s trial, R.C. 2923.03(D) dictated that no conviction could be based solely upon the uncorroborated testimony of an accomplice. 12. The trial court failed to instruct the jury on the lesser included offenses of voluntary manslaughter and involuntary manslaughter. 13. The trial court incorrectly charged the jury that the state had proven a death specification if they found beyond a reasonable doubt that petitioner purposefully killed Ogle and/or Tincher while committing aggravated robbery, and that petitioner was the principal offender in the aggravated robbery. 14. The trial court improperly instructed the jury on all seven mitigating factors found in R.C. 2929.04(B), despite the fact that petitioner only presented evidence on three of those factors. 15. The trial court improperly instructed the jury that in order to sentence petitioner to life in prison, it was necessary to reach a unanimous verdict. 16. The trial court erroneously instructed the jury that “reasonable doubt is present when after you have carefully considered and compared all the evidence, you cannot say you are firmly convinced of the truth of the charge.” 17. The state used peremptory challenges to exclude from the jury three members of the venire who expressed reservations about the death penalty despite those jurors’ assertions that they could be fair and follow the court’s instructions. 18. The trial court improperly refused to excuse for cause two venirepersons who harbored biases against petitioner. 19. The state was allowed to systematically eliminate African-Americans from the petitioner’s jury. 20. The trial court did not require the state to provide a racially neutral reason for its use of a peremptory challenge after petitioner objected. 21. The trial court improperly excused for cause three jurors because of their expressed views on capital punishment. 22. The trial court erroneously charged the jury that “If a wound is inflicted upon a person with a deadly weapon in a manner calculated to destroy life, the purpose to cause the death may be inferred from the use of the weapon.” 23. The trial court improperly precluded petitioner from introducing relevant mitigation evidence that mistakes can be made in our justice system. 24. The death sentence imposed upon petitioner was inappropriate and disproportionate to the nature of the crime of which he was convicted and to the leniency afforded his co-defendant. 25. Petitioner’s conviction and/or sentence are void or voidable because the trial court refused to grant petitioner’s motion for a change of venue based on excess media coverage. 26. The state used the same underlying offense, aggravated robbery, both to elevate the killing of Ogle from murder to aggravated murder and to represent an aggravating circumstance in the penalty phase of the trial. 27. Petitioner was not afforded a fair proportionality review by either the trial court or any of the courts that have reviewed his appeal. 28. The capital punishment provisions of the Ohio Revised Code are unconstitutional on their face and as applied to petitioner. 29. The trial court refused to respond to a request for additional instructions from the jury. 30. The state was allowed to give the first and last closing arguments during the penalty phase of petitioner’s trial. 31. The death penalty in Ohio is administered arbitrarily and capriciously and execution by means of electrocution is cruel and unusual. 32. The Ohio death penalty violates international laws and Article VI of the United States Constitution. 33. The grand jury proceedings were not recorded in violation of Crim.R. 22. 34. On appeal, the state failed to prove beyond a reasonable doubt that any constitutional error which occurred during petitioner’s trial did not contribute to petitioner’s conviction and sentence. 35. R.C. 2929.03(D)(1) is unconstitutional. 36. Petitioner was required to prove the existence of mitigating factors by a preponderance of the evidence. 37. Article I, Section 9 of the Ohio Constitution, which allowed the state to hold petitioner without bond, is unconstitutional. 38. Petitioner was illegally held without bond for five months pending trial. 39. Statements made by petitioner to police officers in response to interrogations should have been suppressed because they were made before petitioner was given his Miranda warnings. 40. Petitioner was not adequately advised of his Miranda warnings. 41. The trial court failed to maintain a complete record of all proceedings. 42. Neither the jury, the trial court nor the reviewing courts have considered the mitigating factor of extreme intoxication. 43. The jury erroneously considered the absence of statutory mitigating factors as non-statutory aggravating circumstances in the penalty phase of the trial. 44. The jury and trial court erroneously considered petitioner’s juvenile adjudication for involuntary manslaughter to be a non-statutory aggravating circumstance in the penalty phase of the trial. 45. Petitioner was deprived of a fair and impartial jury in that two of petitioner’s jurors were acquainted with police officers who testified for the state at trial. 46. Petitioner was deprived of a fair and impartial jury because one of the jurors was predisposed to automatically vote for the death penalty in all cases where the alternative was life in prison. 47. The state failed to prove that petitioner intended to permanently deprive Ogle of her motor vehicle and thus failed to prove the associated felony of aggravated robbery.. 48. Petitioner is factually and actually innocent. 49. The state knowingly and purposefully withheld relevant, exculpatory evidence, to wit: information in its possession that on March 12, 1986, during a search of the residence of co-defendant, Glover Heard, the police found a pair of Nike shoes which had bloodstains on them. 50. The state knowingly and purposefully withheld relevant, exculpatory evidence, to wit: information in its possession that at approximately 1:20 a.m. on March 12, 1986, Debra Ogle was seen alive by seven witnesses, with whom she had gone to high school, in the parking lot of her apartment complex. 51. The state knowingly and purposefully withheld relevant, exculpatory evidence, to wit: information in its possession that stains found in the seat of Tincher’s car were bloodstains. 52. The state knowingly and purposefully withheld relevant, exculpatory evidence, to wit: information in its possession that stains found on petitioner’s jacket were in fact saliva stains and not, as the state represented at trial, bloodstains. 53. The state knowingly and purposefully withheld relevant, exculpatory evidence, to wit: information in its possession that police had received numerous reports that Tincher and Ogle were killed by a third suspect, an alleged “hit-man” for a drug cartel. 54. The state knowingly and purposefully withheld relevant, exculpatory evidence, to wit: information in its possession that on March 8, 1986, four witnesses, in addition to the three who testified at trial, saw the car on the corner of Wenz and Angola in which Tincher’s body was discovered and that these four witnesses described an individual very different in appearance from petitioner running away from the car. 55. The state knowingly and purposefully withheld relevant, exculpatory evidence, to wit: information in its possession that on March 8, 1986, at approximately 7:30 a.m., a witness saw a-second car parked at the intersection of Wenz and Angola and saw Tincher’s car stop as if to meet that car. 56. The state knowingly and purposefully withheld relevant, exculpatory evidence, to wit: information in its possession that on March 8, 1986, neighbors heard unidentified male voices arguing all night long in Tincher’s and Ogle’s apartment. 57. The state knowingly and purposefully withheld relevant, exculpatory evidence, to wit: information in its possession that Tincher was terrified of her step-father, a Toledo police officer, who had once, allegedly, sexually molested Tincher and who was allegedly stalking her around the time of the murders. 58. The state knowingly and purposefully withheld relevant, exculpatory evidence, to wit: information in its possession that prior to their deaths a witness observed both Tincher and Ogle as being nervous and upset, thus rebutting the state’s representation at trial that this was a “spur of the moment” crime. 59. The state knowingly and purposefully withheld relevant, exculpatory evidence, to wit: information in its possession that Ogle and Tincher were killed by someone other than petitioner and that Ogle’s prior and current boyfriends were primary suspects in the murders. 60. The state knowingly and purposefully withheld relevant, exculpatory evidence, to wit: that contrary to testimony at trial, Detective Marx, not Detective Przeslawski, was the author of all police reports in the instant matter. 61. The state knowingly and purposefully withheld relevant, exculpatory evidence, to wit: information in its possession that its representation of how it obtained an alleged confession from co-defendant Glover Heard was a complete fabrication. 62. Evidence was manufactured against petitioner by Detective Keefe Snyder to advance his racist agenda. Snyder’s claim that petitioner made in-culpatory statements during a polygraph examination is therefore totally incredible. 63. Petitioner’s trial counsel was ineffective in that they failed to adequately investigate in preparation for the penalty phase of petitioner’s trial. 64. Petitioner’s trial counsel was ineffective in that they failed to adequately investigate in preparation for the culpability phase of petitioner’s trial and failed to uncover exculpatory information concealed by the state. 65. The state engaged in prosecutorial misconduct throughout all phases of petitioner’s trial in that the state was in possession of material exculpatory evidence which it concealed from petitioner. 66. Petitioner’s convictions and sentence are unconstitutional because of systemic racism existing in the capital charging system utilized by Lucas County. 67. The capital sentencers did not have before them relevant mitigating evidence of petitioner’s excellent disciplinary record since his incarceration on death row. 68. Jurors were erroneously informed that their decision to sentence petitioner to death was only a recommendation. 69. Because of the existence of a sufficient amount of residual doubt, the aggravating factors cannot possibly outweigh the mitigating evidence presented in this case. 70. The cumulative effect of the errors and omissions presented in this petition establish that petitioner was deprived of a fair trial. 2.Ohio Court of Appeals Montgomery appealed that decision to the Ohio Court of Appeals, raising the following claims of error: 1. The trial court erred in dismissing the Petition without ruling on Discovery issues. 2. The trial court erred in granting summary judgment without giving petitioner the opportunity to respond to the motion under State v. Pless, 91 Ohio App.3d 197[, 632 N.E.2d 524] (1993) 3. The trial court erred in denying an evidentiary hearing in post-conviction. 4. The trial court erred in denying relief on Petitioner’s Brady claims. 5. The trial court erred in dismissing the post-conviction petition. 6. The trial court erred in denying post-conviction claims 5, 6,12,13,14, 15, 16, 36, 43, and 44 on the basis of res judicata. The Court of Appeals reversed the trial court’s denial of post-conviction relief as to issue 2 on October 24, 1997, and remanded the case to allow Montgomery to respond to the State’s motion for summary judgment. State v. Montgomery, No. L-96-308, slip. op. (Ohio Ct.App. Oct. 24, 1997) (Exh. 42). The Lucas County Court of Common Pleas again dismissed the petition on December 31,1997. State v. Montgomery, No. CR86-5450, slip. op. (Ohio Ct. of Common Pleas, Dec. 31, 1997). The Ohio Court of Appeals affirmed the dismissal on February 5, 1999. State v. Montgomery, 1999 WL 55852. On June 16, 1999, the Ohio Supreme Court dismissed Montgomery’s appeal. State v. Montgomery, 86 Ohio St.3d 1402, 711 N.E.2d 231 (1999). D. Habeas Corpus On June 13, 2000, Montgomery filed this Petition for Writ of Habeas Corpus. (ECF No. 13.) In his petition, Montgomery identified forty-eight general areas of alleged constitutional violation. Those are: 1. Petitioner was denied his right to a fair trial by an impartial jury in a capital case, as guaranteed by the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution by the trial court’s failure to excuse an obviously biased and incompetent juror. 2. Petitioner’s conviction and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that the trial count excluded, for cause, jurors based on their views about capital punishment. 8. Petitioner’s conviction and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that the trial court failed to excuse for cause two jurors who were biased against him. Jp. Petitioner’s conviction and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution because the State of Ohio used its peremptory challenges to exclude individuals who expressed reservations about the death penalty. 5. Death qualification of the jury that convicted and sentenced him to death denied Petitioner of his rights under the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. 6. Misconduct by the prosecuting attorney in the voir dire stage of the trial proceedings deprived Petitioner of his rights as guaranteed by the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. 7. Petitioner was denied his right to remain silent when the prosecutor improperly commented to the jury concerning his silence in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. 8. Petitioner’s conviction and sentence are in violation of the Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. 9.Petitioner’s sentence of death is in violation of the Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution because a complete record of all of the proceedings was not maintained and the appellate. review was done from an incomplete record. 10. Petitioner’s conviction and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that statements were taken from him in violation of the requirements of Miranda v. Arizona, 396 U.S. 868, 90 S.Ct. 140, 24 L.Ed.2d 122 (1969). 11. Petitioner’s conviction and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that the state was not required to provide a race-neutral explanation for its use of peremptory challenges. 12. Petitioner’s conviction and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution as the state systematically eliminated Africam-Americans from the jury. 13. Petitioner’s conviction and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that the capital charging system of Lucas County is infected with systemic racism. U. Petitioner’s conviction and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that two of the jurors who convicted him and sentenced him to death were acquainted with police officers who testified at his trial. 15. Misconduct by the prosecuting attorney in withholding evidence favorable to the petitioner on the issue of guilt deprived Petitioner of his rights as guaranteed by the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. 16. Misconduct by the prosecuting attorney in the guilt stage of the trial proceedings deprived Petitioner of his rights as guaranteed by the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. 17. Petitioner’s conviction and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that the jury was shown inflammatory and gruesome photos of the victim during the guilt phase of his trial. 18. Petitioner’s conviction and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that evidence that was presented against him was manufactured for the advancement of an investigating officer’s racist agenda. 19. Petitioner’s conviction and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution as he received the ineffective assistance of counsel during both the guilt determination and penalty phases of his capital trial. 20. Petitioner’s convictions and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that the evidence was insufficient as a matter of law to sustain his capital felony murder and murder convictions. 21. Petitioner’s convictions and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that the trial court failed to adequately admonish the jury both before and during Petitioner’s capital trial. 22. Petitioner’s convictions and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that the trial court failed to properly instruct the jury at the guilt phase of the trial. 23. Petitioner’s conviction and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that there is a sufficient amount of residual doubt that exists to cause the sen-tencer to find that the mitigation outweighs the aggravating circumstances in this case. 2p Petitioner’s sentence is in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that the trial court and jury did not have before them nor did they consider all relevant mitigating evidence. 25.Petitioner’s sentence is in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that the jury considered the absence of mitigation as an aggravating factor. 26. Petitioner’s death sentence is in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution because the state was allowed to present evidence of a prior juvenile conviction and the sentencers considered the conviction as an aggravating circumstance. 27. The requirement that Petitioner prove the existence of mitigating factors by a preponderance of the evidence precluded the sentencer from considering all of the mitigating evidence and compelled a presumption of death in violation of his Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. 28. Petitioner’s death sentence is in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that Ohio’s statutory scheme provides that findings of pre-sentence investigations be furnished to the judge, jury, and prosecutor who may use the evidence against him in determination of his sentence. 29. Petitioner’s sentence is in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that the state was permitted to argue first and last at the mitigation phase of the proceedings. 30. Petitioner’s sentence is in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution because he was not permitted a continuance between the guilt and mitigation phases of the trial. 31. Petitioner’s sentence is in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution because the trial court improperly considered nonstatutory aggravating circumstances, ignored relevant mitigating factors, and submitted an inadequate sentencing opinion. 32. Misconduct by the prosecuting attorney in the mitigation stage of the trial proceedings deprived Petitioner of his rights as guaranteed by the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. 33. Petitioner’s sentence is in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution because the trial court improperly instructed the jury at the mitigation phase of the trial. 34- Petitioner’s convictions and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that the trial court refused to answer the jury’s request for additional instructions. 35. Petitioner’s sentence is in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that it is inappropriate and disproportionate to the sentence received by his co-defendant. 36. Petitioner’s conviction and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that he was denied the procedural safeguards of a meaningful proportionality review. 37. Petitioner’s conviction and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that his appellate counsel failed to raise or adequately address substantial capital and other well-established criminal law issues on appeal. 38. Petitioner’s conviction and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that the state failed to prove beyond a reasonable doubt that any Constitutional error which occurred at his trial was harmless. 39. Petitioner Montgomery’s death ■ sentence is unreliable, inappropriate, and violates the Eighth and Fourteenth Amendments to ■the United States Constitution. 40. Petitioner’s conviction and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution because the evidence presented at trial was insufficient as a matter of law to sustain conviction. 41. Petitioner’s conviction and sentence are in violation of the Eighth and Fourteenth Amendments to the United States Constitution due to the use of the same specifications elevates the crime with which he was charged to a higher level and to make him death eligible. 42. Petitioner’s conviction and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that he was made death-eligible by the commission of a misdemeanor. 43. Petitioner’s conviction and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that the trial court failed to grant a change of venue. 44. Petitioner’s rights as guaranteed by the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution were violated in that he was improperly denied his right to bond. 45. The statutory provisions governing the Ohio capital punishment scheme violate the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. Petitioner’s conviction and sentence are improper in that the scheme is unconstitutional on its face and as applied to him. 46. The Ohio death penalty statute violates Article VI of the United States Constitution and various international laws. Petitioner’s conviction and sentence are improper in that the statute has been applied to him. 47. Petitioner’s sentence is improper as death by electrocution constitutes a blatant disregard for the value of human life, entails unnecessary and wanton infliction of pain, and diminishes the dignity of man and violates the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. 48. Petitioner’s conviction and sentence are in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that he is actually innocent of the offenses for which he was convicted and sentenced to death. III. INITIAL CONSIDERATIONS A. Standard of Review: The AEDPA A federal court’s consideration of a petition for a writ of habeas corpus filed by a person imprisoned under the judgment of a state court is governed by 28 U.S.C. § 2254(a). Section 2254 permits the state prisoner to challenge his custody “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” Id. Federal habeas corpus relief “does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990). Thus, “it is not the province of a federal habeas court to re-examine state-court determinations of state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”), signed into law on April 24, 1996, amended Title 28 of the United States Code and applies to all habeas petitions filed on or after its April 24,1996 effective date. Barker v. Yukins, 199 F.3d 867, 871 (6th Cir.1999) (citations omitted); Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir.1998). The AED-PA made significant changes in habeas law, including increasing the restrictions on which issues can be appealed and heightening the respect for state court factual and legal determinations. Because Montgomery filed this habeas petition on June 16, 2000, long after the AEDPA effective date, the AEDPA applies to this petition. See, e.g., Williams v. Coyle, 167 F.3d 1036, 1040 (6th Cir.1999). Having determined that the AEDPA applies to the petition, the court will next address the appropriate standard of review. Under 28 U.S.C. § 2254(d) (enacted as a part of the AEDPA), a petition for writ of habeas corpus: shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Id.; Staley v. Jones, 239 F.3d 769, 775 (6th Cir.2001). The United States Supreme Court interpreted § 2254(d) in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), explaining that with respect to the first clause of § 2254(d), the phrases “contrary to” and “unreasonable application of’ must be given independent meanings: First, a state-court decision is contrary to this Court’s precedent if the state court arrives at a conclusion opposite to that reached by this Court on a question of law. Second, a state-court decision is also contrary to this Court’s precedent if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours. Williams, 529 U.S. at 405, 120 S.Ct. 1495 (citing Green v. French, 143 F.3d 865, 869-70 (4th Cir.1998), cert. denied, 525 U.S. 1090, 119 S.Ct. 844, 142 L.Ed.2d 698 (1999)). The Supreme Court construed the second clause of § 2254(d) as follows: [A] state-court decision involves an unreasonable application of this Court’s precedent if the state court identifies the correct governing legal rule from this Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s case. [Additionally,] a state-court decision also involves an unreasonable application of this Court’s precedent if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Williams, 529 U.S. at 407, 120 S.Ct. 1495. The Court pointed out that, in determining the reasonableness of the state court’s decision, the federal court must employ an objective, not subjective, test. When viewing the objective reasonableness of the state court decision, however, a federal court may not find an application to be unreasonable merely because it finds that the state court decision was erroneous or incorrect. Williams, 529 U.S. at 410-12, 120 S.Ct. 1495; Maranian v. Jackson, 14 Fed.Appx. 310 (6th Cir.2001). The Williams Court also clarified that “clearly established federal law, as determined by the Supreme Court of the United States” refers to “the holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the relevant state-court decision.” 529 U.S. at 412, 120 S.Ct. 1495. The Sixth Circuit later held that this holding “prevents the district court from looking to lower federal court decisions in determining whether the state court decision is contrary to, or an unreasonable application of, clearly established federal law.” Harris v. Stovall, 212 F.3d 940, 944 (6th Cir.2000) (quoting Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir.1998)), cert. denied, 532 U.S. 947, 121 S.Ct. 1415, 149 L.Ed.2d 356 (2001). A habeas court may thus only rely on that class of Supreme Court precedent that would qualify as an “old rule” under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Williams, 529 U.S. at 412, 120 S.Ct. 1495. Under the AEDPA, state determinations of factual issues are presumed to be correct. 28 U.S.C. § 2254(e)(1). This presumption of correctness is rebuttable only by clear and convincing evidence otherwise. Id. B. Exhaustion The process of presenting a constitutional claim to the state’s highest court is called exhaustion. Under the AEDPA, as under the former habeas statute, a prisoner must exhaust his available state court remedies before petitioning for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1)(A). Habeas relief cannot be granted based on claims that have not been exhausted. Id.; see also Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). A state cannot be deemed to have waived the exhaustion requirement unless the state, through counsel, expressly waives it. 28 U.S.C. § 2254(b)(3). Here, although not expressly waiving the exhaustion requirement, Ohio concedes that Montgomery has exhausted all of his habeas claims. Responde