Full opinion text
MEMORANDUM OPINION KATZ, District Judge. This matter is before the Court upon Petitioner, Stanley T. Adams’s (“Adams” or “Petitioner”) Petition for Writ of Habe-as Corpus pursuant to 28 U.S.C. § 2254 filed with this Court on May 19, 2006. (ECF 16). Adams challenges his conviction and death sentences imposed by the Court of Common Pleas of Trumbell County, Ohio. The Court has before it the Petition, Respondent, Margaret Bradshaw’s (“Respondent”), Return of Writ (ECF 19), Adams’s Traverse, (ECF 57), and the Respondent’s Reply to Traverse. (ECF 58). For the following reasons, the Petition for Writ of Habeas Corpus will be denied. I. INTRODUCTION Adams appeals from his convictions and sentence of death for the aggravated murders of Esther Cook and Ashley Dawn Cook. Factual Background The following facts were set forth by the Ohio Supreme Court in State v. Adams, 103 Ohio St.3d 508, 817 N.E.2d 29 (2004). From Christmas 1998 until March 1999, Adams and his girlfriend, Janelle (“Nelly”) Hartle, lived with Esther and Ashley on Dickey Avenue in Warren. After March 1999, and at the time of the murders, Adams and Janelle and their infant daughter lived on Mahoning Avenue in Champion, Ohio. James Hartle, who sometimes lived with Esther, was the father of Ashley and Janelle, who were half-sisters. On the afternoon of October 11, 1999, Adams borrowed a blue 1991 Chevrolet Cavalier, Ohio license number BAB 2830, from his neighbors, Mike and Kelly Henry. Adams then drove to James Hartle’s house, where he asked to borrow $300 from Hartle to buy a car. Hartle declined to give Adams any money. Later that evening, Adams attended a drug party at the apartment of his friend, Mallory “Stacie” Jackson. In addition to Adams, guests included Renee Smith, Patricia Litsinger, and Derwin (“Stormin’ ”) Norman. That night Adams was wearing a white T-shirt, blue pants, and white tennis shoes. When Smith saw Adams, whom she had known for five years, he had $40 “and bought crack cocaine with it.” Later, Adams told Litsinger that he was “broke,” but he offered cocaine to her in exchange for oral sex. Litsinger refused. After that, Adams left and told Smith that he was leaving “to get some more money.” Smith reported that Adams was gone a long time. By the time Litsinger left, around 11:15 p.m., Adams had already left by himself in his search for more money. That same night, October 11, Luetta Simmons, who lived across the street from Esther and Ashley, noticed that a dark-colored car pulled into Esther’s driveway at 11:45 p.m., and that the car left around 12:15 a.m. The taillights on this car resembled the taillights on a Chevrolet Cavalier that Simmons had once owned. Simmons later noticed that neighborhood dogs were barking an in unusually “loud and obnoxious” manner. Adams returned to Jackson’s apartment. According to Smith, Adams “had blood all over his hands; * * * on his shirt, on his pants, and on the tip of his shoes,” and some of the blood appeared wet. In his pocket, Adams had “[m]oney with a whole bunch of blood on it.” Litsinger also observed that after Adams returned, he had blood on his hands and on his jeans. At some point after he returned, Adams took his bloody shirt off. Norman recalled seeing Adams at the apartment when he “didn’t have a shirt on,” had “blood on him,” and had a roll of money, some of which had blood on it. Later, Adams again left the apartment, but this time he left with Jackson and Norman to get more drugs. Adams, driving a blue Cavalier, dropped Norman off to buy the drugs. Around 2:00 a.m., while Adams was driving around the block, Warren Police Sergeant Robert Massucci pulled Adams over because the Cavalier had only one headlight. Sgt. Massucci noticed that although the weather was cold, Adams was not wearing a shirt, and that Adams had blood on his pants, including a spot approximately four inches by six inches. Warren Police Officer Jeff Miller, who stopped to assist Massucci, frisked Adams and discovered that “his pants were all wet and sticky, * * * gooey.” With the aid of his flashlight, Miller discovered that Adams had blood on his hands, right arm, and pants, and Miller reported that the amount of blood suggested that Adams had “field dressed a deer.” Adams told Miller that he had cut his hand, but Miller looked and saw no cuts. In the back of the Cavalier, Miller noticed tools and toolboxes. Adams told Sgt. Massucci that he lived on Dickey Avenue, although his driver’s license listed a different address. The officers then let Adams go with a warning about the headlight. Later, Janelle recalled that Adams had come home “in the middle of the night.” Around noon on October 12, 1999, Esther’s friend, Donna Frederick, found Esther’s “cold” body inside the front door of Esther’s home. Frederick called police. A neighbor reported that she had seen Esther and Ashley alive the previous afternoon around 5:30 p.m. Police found Esther’s body lying face-down in a pool of blood at the bottom of the stairs. On the stairs and stairwell walls, police found blood drops and smears. Police found Ashley’s body in an upstairs bedroom. Dr. Humphrey Germaniuk, a forensic pathologist, arrived at the crime scene around 1:00 p.m. that day and estimated that Esther and Ashley had been dead “eight, ten, 12 hours at least.” Dr. Germaniuk, who later performed an autopsy on Esther, concluded that she died as a result of “[m]ultiple blunt force traumatic injuries and multiple sharp force traumatic injuries” with “at least four distinct stab wounds involving the neck and head.” Although police found pieces of a broken broom near the bodies of Ashley and Esther, police found no weapon that might have caused Esther’s injuries. Dr. Germaniuk concluded that in inflicting the puncture wounds on Esther, the killer used “some type of tool that has an acute angle” and two prongs, such as a certain type of crowbar. Ashley’s body lay upstairs on a bedroom floor next to the bed. Her body was nude and posed, with her legs spread apart. An electric cord had been wrapped five times around her neck, and one end of the cord was in her hand. A bracelet and two earrings had been placed on Ashley’s lower abdomen. After an autopsy, Dr. Germaniuk concluded that Ashley had died as a result of “strangulation associated with blunt force trauma to the head.” Ashley’s body also revealed multiple injuries and bruises to the genitalia as well as brain swelling, contusions to the head, and lacerations to the mouth. Dr. Germaniuk also completed a rape kit examination during his autopsy of Ashley and obtained swab samples from her body cavities. Forensic Scientist Steve Wiechman, from the Ohio Bureau of Criminal Identification and Investigation (“BCI”), concluded that rectal, vaginal, and oral swabs from Ashley’s body tested positive for semen. After later tests, Meghan Clement, an expert in DNA analysis at LabCorp, an independent testing laboratory, conducted polymerase chain reaction (“PCR”) analysis of DNA on the oral and vaginal swabs from Ashley’s body and concluded that they contained a DNA mixture. Adams and Ashley could have both contributed DNA to the mixture, and nothing in the analysis suggested that anyone else had contributed DNA to these specimens. The rectal swab, while testing positive for semen, was insufficient to yield a DNA result other than Ashley’s DNA. Dr. P. Michael Conneally, a Distinguished Professor of Medical and Molecular Genetics at Indiana University Medical Center, who is an expert on genetic statistics, agreed that genetic markers for the secondary DNA contributor in the vaginal swab matched Adams, who is Caucasian. A similar DNA profile occurs only once in 77,000 Caucasians, once in 2.3 million African-Americans, and once in 128,000 Hispanics. At the crime scene, police found no money in the house. The bedroom where Ashley’s body was found was in disarray, as if it had been ransacked. Two dressers were overturned, and blood spatters were found on the ceiling, floor, and on dresser contents. BCI Forensic Scientist Wiechman subjected two bloody sheets from the bedroom to forensic analysis. Wiechman found 17 presumptive semen stains on different parts of one sheet, tested six of them, and confirmed that three of these were semen stains. Jennifer Duvall, an Ohio BCI forensic scientist, found DNA from semen stains in several areas on the same sheet. Adams could not be excluded as a contributor to the DNA in these stains, and his DNA was consistent with DNA in the stains. Duvall testified that DNA found at one particular site, which was identical to Adams’s DNA, would be found only once in 21.1 million Caucasians and once in 1.9 million African-Americans. When Adams and Janelle lived with Esther and Ashley seven months previously, they slept in a downstairs bedroom and never used any of the upstairs bedrooms. On October 13, police seized the blue Cavalier that Adams had driven on October 11 and 12, which Mike Henry had loaned him. Forensic testing disclosed that the steering wheel, one of the floor pedals, and the headlight lever in the Cavalier tested positive for blood, but the quantity was insufficient for analysis. On October 19, Mike Henry asked Adams why police had found blood in Henry’s car after Adams had borrowed it. During this conversation, Adams denied any responsibility for the murders. On October 20, police interviewed Adams after fully advising him of his Miranda rights. Adams waived those rights and gave both an audiotaped and videotaped statement of his activities on October 11 and 12. In these interviews, Adams initially denied any knowledge of the murders. After continued questioning, Adams admitted that he had stopped at Esther’s house the night she was killed and that he had briefly entered the residence. Adams claimed that he had fallen over Esther’s body and had then gone upstairs and found Ashley’s body. He quickly departed, and he did not tell anyone what he had found. Adams admitted that on October 12, he had burned his bloody tennis shoes and trousers. In Adams’s backyard police found a pile of ashes that contained a belt buckle and shoe eyelets. In addition to the police, Adams told others that he had discovered the bodies on the night of October 11 but had not notified authorities. On October 26, he was “on the verge of crying” when he told his friend, Kevin Clements, that he had found the bodies and had “tripped over Esther.” He also told his girlfriend, Janelle, and his sister, Tina Maus, that he had tripped over Esther’s body in the house that night. Later, he admitted to Tina that he had also found Ashley’s body. Defense case: The defense moved for acquittal under Crim.R. 29, and the trial court denied the motion. The defense then recalled Detective Jeffrey Hooli-han, one of the investigating detectives. Detective Hoolihan agreed that police did not take certain investigative steps, such as examining an open window or a jewelry box for fingerprints, searching the neighborhood for weapons, or pursuing James Hartle as a murder suspect. State v. Adams, 103 Ohio St.3d at 509-512, 817 N.E.2d 29. II. Procedural History On November 16, 2000, Adams was indicted by a Trumbell County, Ohio Grand Jury, charged with three counts of aggravated murder. Counts 1 and 2, related to the aggravated murder of Ashley Cook, and contained seven identical death penalty specifications alleging murder (1) as part of a “course of conduct,” R.C. 2929.04(A)(5), (2) while committing aggravated burglary, R.C. 2929.04(A)(7), (3) while committing a kidnapping, R.C. 2929.04(A)(7), (4) while committing vaginal rape, (5) anal rape, and (6) fellatio rape, all in violation of R.C. 2929.04(A)(7), and (7) rape of a child under 13 years of age, R.C. 2929.04(A)(9). Count 3, charging the aggravated murder of Esther Cook, included three specifications, i.e., murder (1) as part of a course of conduct, (2) during an aggravated burglary, and (3) during a kidnapping. Count 4 charged aggravated burglary while inflicting physical harm on Ashley Cook and Esther Cook with deadly weapons. Count 5 charged kidnapping of Ashley Cook by restraint to commit multiple rapes. Count 6 charged rape of Ashley Cook, age 12, vaginally. Count 7 charged the rape of Ashley Cook, age 12, anally, and count 8 contained the charge of the rape of Ashley Cook orally. (Apx.Vol.l, p. 37-48). Adams was arraigned on November 20, 2000 and pled not guilty to all charges. (Apx.Vol.l, pg.53). A jury trial commenced on August 28, 2001. (Tr. Vol.2, pg.262). On September 26, 2001, the jury returned a verdict of not guilty on count 7, the anal rape charge and the anal rape specifications, but convicted him of all remaining charges and specifications. (Tr. Vol.2, pgs.145-171). The sentencing phase of the trial began on October 2, 2001. (Tr. Vol.18, pg.4269). The jury found that the aggravated circumstances outweighed the mitigating factors and returned a sentencing verdict of death for the murder of Esther Cook and Ashley Dawn Cook. (Apx.Vol.2, pgs.201-202). On October 10, 2001, the trial court accepted the recommendation of the jury and sentenced Adams to death. (Apx.Vol.2, pgs.212-227). Direct Appeal Adams filed a timely Notice of Appeal to the Ohio Supreme Court on November 21, 2001 raising the following propositions of law. Proposition of Law No. 1 FAILURE OF TRIAL COUNSEL TO FILE A NON-SPURIOUS MOTION TO SUPPRESS EVIDENCE CONSTITUTES A DENIAL OF THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER U.S. CONST., AMEND. VI AND XIV AND UNDER OHIO CONST., ART. I, § 10. Proposition of Law No. 2 ADMISSION OF SCIENTIFIC OR EXPERT TESTIMONY AND EVIDENCE WITHOUT THE PRELIMINARY DETERMINATION OF THE RELIABILITY OF THE CONCLUSIONS TO BE PRESENTED VIOLATES THE FAIR TRIAL RIGHTS GUARANTEED BY U.S. CONST. AMEND VI, VIII, and XIV, AND BY OHIO CONST. ART. I, §§ 1, 2, 9, 10, AND 16. OHIO EVID.R. 104 AND 702 CONSTRUED. Proposition of Law No. 3 OHIO CONST., ART. I, § 10 AND U.S. CONST. AMEND. VI AND XIV, WHICH MANDATE A TRIAL BY A FAIR AND IMPARTIAL JURY, REQUIRE A COURT TO EITHER CONDUCT AN INVESTIGATION OR PERMIT AN INVESTIGATION TO BE CONDUCTED WHEN THERE APPEARS ANY INDICIA OF JUROR MISCONDUCT. Proposition of Law No. 4 A FAIR TRIAL UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION CANNOT BE HAD WHEN PRE-TRIAL PUBLICITY HAS PERVADED A COMMUNITY TO THE EXTENT THAT A CHANGE OF VENUE IS THE ONLY REMEDY. Proposition of Law No. 5 INCOMPLETE AND INEFFECTIVE VOIR DIRE DENIES A CAPITAL DEFENDANT DUE PROCESS AND A FAIR TRIAL BY AN IMPARTIAL JURY UNDER THE U.S. CONST. AMEND. VI AND XIV AND OHIO CONST. ART. I, §§ 1, 2, 10, AND 16, AS WELL AS THE RIGHT TO COMPETENT COUNSEL UNDER U.S. CONST. AMEND. VI AND XIV AND OHIO CONST. ART. I, §§ 10 AND 16. Proposition of Law No. 6 OHIO’S MULTIPLE COUNTS STATUTE, OHIO REV. CODE ANN. § 2941.25, IS DESIGNED TO PROTECT AN ACCUSED FROM DOUBLE JEOPARDY IN VIOLATION OF UNITED STATES CONSTITUTION AMENDMENT V AND XIV, AND THE OHIO CONST., ART. I, 10; ACCORDINGLY, CONVICTION FOR TWO SEPARATE OFFENSES ARE CONSTITUTIONAL ONLY WHEN A SEPARATE ANIMUS FOR EACH IS DEMONSTRATED BY PROOF BEYOND A REASONABLE DOUBT. Proposition of Law No. 7 A CAPITAL SENTENCING PROCEEDING LACKS THE GUIDED DISCRETION COMMANDED BY U.S. CONST/ AMEND/ VIII AND XIV AND OHIO CONST. ART. I, §§ 1, 2, 9, AND 16. WHEN DUPLICATIVE AGGRAVATING SPECIFICATIONS ARE SUBMITTED FOR THE JURY TO WEIGH AND CONSIDER AGAINST MITIGATION EVIDENCE. Proposition of Law No. 8 FAILURE OF COUNSEL TO REQUEST MERGER OF DUPLICATIVE AGGRAVATING CIRCUMSTANCES AND FAILURE TO REQUEST SPECIFIC INSTRUCTIONS TO THE JURY IN THE PENALTY PHASE, WHEN SUPPORTED BY THE FACTS OF THE CASE AND THE LAW, DENIES A CAPITAL DEFENDANT THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL. U.S. CONST., AMEND. VI AND XIV; OHIO CONST. ART. I, §§ 1, 2, 10 AND 16. Proposition of Law No. 9 FAILURE TO FILE GENERAL CONSTITUTIONAL MOTIONS TO DISMISS IN A DEATH PENALTY CASE CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL, EVEN WHERE ALL OF THE ARGUMENTS WHICH WOULD HAVE BEEN ASSERTED IN SUCH A MOTION HAVE BEEN OVERRULED BY THE COURTS OF OHIO. U.S. CONST., AMEND. VI AND XIV; OHIO CONST., ART. I, § 10. Proposition of Law No. 10 CONVICTION OF AN INCOMPETENT DEFENDANT VIOLATES DUE PROCESS UNDER THE U.S. CONST. AMEND. XIV AND THE ABILITY TO HAVE A FAIR TRIAL, OHIO CONST. ART. I, §§ 1, 2, 10, AND 16; FURTHER, FAILURE OF A CRIMINAL DEFENDANT’S COUNSEL TO CHALLENGE A FINDING OF COMPETENCE TO STAND TRIAL WHEN THERE IS A GOOD FAITH FACTUAL PREDICATE CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL. U.S. CONST. AMEND. VI AND XIV; OHIO CONST., ART. I, §§ 1, 2, 10, AND 16. Proposition of Law No. 11 WHEN THE TRIAL COURT INSTRUCTS THE JURY THE VICTIM IS OF A CERTAIN AGE, THE COURT IMPERMISSIBLY DIRECTS A VERDICT AGAINST THE DEFENDANT ON THAT ELEMENT, IN VIOLATION OF THE PRESUMPTION OF INNOCENCE AND DUE PROCESS OF LAW. U.S. CONST., AMEND. V AND XIV; OHIO CONST., ART. I, §§ 10 AND 16. Proposition of Law No. 12 USE OF A PHYSICAL RESTRAINT THAT PRODUCES AN ELECTRIC SHOCK DURING TRIAL WITHOUT ANY FACTUAL BASIS FOR DOING SO VIOLATES THE FAIR RIGHTS GUARANTEED BY THE U.S. CONST., AMEND. VI AND XIV AND BY OHIO CONST., ART. I, §§ 2, 10, AND 16. ADAMS v. BRADSHAW Cite as 484 F.Supp.2d 753 (N.D.Ohio 2007) 763 Proposition of Law No. 13 DEATH BY LETHAL INJECTION VIOLATES U.S. CONST., AMEND. VII AND XIV AND OHIO CONT., ART. I, §§ 1, 2, 9, AND 16 BECAUSE LETHAL INJECTION CAUSES UNNECESSARY PAIN, AND IT THEREFORE VIOLATES THE FUNDAMENTAL STANDARDS OF DECENCY OF A MATURING SOCIETY AS EXPRESSED IN THOSE CONSTITUTIONAL PROVISIONS. Proposition of Law No. 14 BECAUSE “DEATH-QUALIFIED” JURIES ARE MORE CONVICTION-PRONE THAN OTHER CRIMINAL JURIES, AND GIVEN THE NEED TO INSURE RELIABILITY IN THE PROCESS OF DECIDING WHETHER A CAPITAL DEFENDANT SHOULD RECEIVE THE DEATH PENALTY, THE NUMBER OF PEREMPTORY CHALLENGES IN A CAPITAL CASE IS TWELVE PER SIDE. U.S. CONST., AMEND. VI AND XIV; OHIO CONST., ART. I, §§ 1, 10, AND 16; OHIO REVISED CODE ANN. § 2945.21(A)(2). Proposition of Law No. 15 REFERENCE TO THE CAPITAL JURY PENALTY PHASE VERDICT AS A “RECOMMENDATION” VIOLATES THE CONSTITUTIONAL COMMAND THAT A DEATH SENTENCE BE RELIABLY DETERMINED. U.S. CONST., AMEND. VIII AND XIV; OHIO CONST., ART. I, §§ 1, 2, 9, 10 AND 16; Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), ..., FOLLOWED; State v. Poindexter, 36 Ohio St.3d 1, 520 N.E.2d 568 (1988), ..., OVERRULED IN PART. Proposition of Law No. 16 PERMITTING THE INTRODUCTION OF PHOTOGRAPHS WHICH ARE SHOCKING AND GRUESOME DEPRIVES A DEFENDANT OF A FAIR TRIAL BY AN IMPARTIAL JURY AND DUE PROCESS OF LAW. U.S. CONST., AMEND. VI AND XIV; OHIO CONST., ART. I, §§ 10 AND 16. Proposition of Law No. 17 THE CUMULATIVE EFFECT OF ERRORS DENY A CRIMINAL DEFENDANT FAIR TRIAL AND DUE PROCESS; ACCORDINGLY, NEITHER CONVICTIONS NOR SENTENCES MAY STAND UNDER U.S. CONST. AMEND. XIV AND OHIO CONST. ART. I, §§ 1, 2, 9, 10, AND 16. (Apx. Vol. 3, pg. 92-472; continued to Vol. 4, pg. 1-77). The Ohio Supreme Court affirmed the trial court’s decision on November 17, 2004. However, the court vacated and dismissed the felony kidnapping count with regard to Ashley Cook, and vacated and dismissed the kidnapping specification as to each victim. (Apx.Vol.4, pg. 287); State v. Adams, 103 Ohio St.3d at 513, 817 N.E.2d 29. Adams filed a Motion for Reconsideration on November 24, 2001. (Apx.Vol.4, pg.313). On December 29, 2004, the Ohio Supreme Court denied this Motion. (Apx.Vol.4, pg.328). Thereafter, on January 7, 2005, Adams filed a Motion for Stay of Execution Pending Appeal to the Ohio Supreme Court. (Apx.Vol.4, pg.335). The United States Supreme Court granted the Motion on January 13, 2005. (Apx.Vol.4, pg.342). Adams then filed a Petition for Writ of Certiorari in the United States Supreme Court, which was denied on May 16, 2005. (Apx.Vol.4, pg.345). Post-conviction Relief On January 6, 2003, Adams filed a Motion for Post-conviction Relief with the trial court under R.C. § 2953.21, raising the following five causes of action. First Cause of Action THE PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO REMAIN SILENT AND HAVE COUNSEL PRESENT. Second Cause of Action TRIAL COUNSEL WAS INEFFECTIVE F OR FAILING TO FILE A MOTION TO SUPPRESS Third Cause of Action PETITIONER DID NOT MAKE A KNOWING, VOLUNTARY AND INTELLIGENT WAIVER OF HIS CONSTITUTIONAL RIGHTS Fourth Cause of Action TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO SUPPRESS STATEMENTS MADE AFTER PETITIONER’S SEIZURE Fifth Cause of Action. PETITIONER WAS DENIED HIS RIGHT TO REPRESENTATION BECAUSE HE WAS NOT PERMITTED TO MEET PRIVATELY WITH HIS COUNSEL (Apx.Vol.5, pg.37). The trial court denied the petition without permitting discovery or conducting a hearing on the merits on March 26, 2003. (Apx.Vol.5, pg.279). Adams filed his Notice of Appeal to the Eleventh District Court of Appeals on April 25, 2003, raising the following four assignments of error. Assignment of Error No. 1: THE TRIAL COURT ERRED IN DENYING THE PETITION WITHOUT CONDUCTING AN EVIDENTIARY HEARING WHEN APPELLANT SUPPLIED SUFFICIENT EVIDEN-TIARY MATERIAL CORROBORATIVE OF THE ALLEGATIONS IN HIS PETITION. Assignment of Error No. 2: THE TRIAL COURT ERRED IN DENYING THE PETITION WITHOUT CONDUCTING AN EVIDENTIARY HEARING ON THE CLAIM OF A VIOLATION OF APPELLANT’S MIRANDA AND EDWARDS RIGHTS. Assignment of Error No. 3: THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT AN EVI-DENTIARY HEARING ON HIS CLAIM THAT HE WAS DENIED MEANINGFUL ACCESS TO COUNSEL. Assignment of Error No. 4: THE TRIAL COUNSEL ERRED IN DENYING THE PETITION WITHOUT CONDUCTING AN ■ EVIDEN-TIARY HEARING ON APPELLANT’S CLAIM THAT HE WAS UNDER A DISABILITY CAUSED BY EPILEPSY. (Apx.Vol.6, pg.30). The court of appeals affirmed the trial court’s decision on January 28, 2005. (Apx. Vol. 6, pg 132); State v. Adams, 2005 WL 238144 (Ohio App. 11th Dist. Jan 28, 2005). On March 11, 2005, Adams filed a Notice of Appeal to the Ohio Supreme Court (Apx.Vol.7, pg.3). He raised two propositions of law. Proposition of Law No. 1: THE DOCTRINE OF RES JUDICATA MAY NOT BE LICENTIOUSLY APPLIED IN POST-CONVICTION RELIEF PROCEEDINGS TO INCLUDE SITUATIONS WHERE A PARTY COULD HAVE BUT DID NOT MAKE CERTAIN EVIDENTIARY MATERIAL PART OF THE TRIAL RECORD, FOR TO DO SO IS TO DENY MEANINGFUL ACCESS TO THE COURTS. SEE U.S. CONST., AMEND. XIV; OHIO CONST., ART. 1, §§ 1, 2, AND 16. RES JUDICATA MAY ONLY BE APPLIED WHEN REVIEWING THE TRIAL RECORD AS IT EXISTS, NOT AS IT COULD HAVE EXISTED. Proposition of Law No. 2: OHIO REV. CODE ANN. § 2953.21 ENFORCES THE CONSTITUTIONAL GUARANTEES OF U.S. CONST., AMEND. XIV AND OHIO CONST., ART. I, §§ 1, 2, AMD 16, AND PRESUMES THAT A HEARING WILL BE HELD ON A PETITION FOR POST-CONVICTION RELIEF UNLESS THE PETITION AND EVI-DENTIARY MATERIALS INDICATE THAT A VALID CLAIM HAS NOT BEEN STATED. (Apx.Vol.7, pg.6). On April 7, 2005, the State filed a Memorandum in Opposition to Jurisdiction. (Appendix Vol. 7, p. 54). The Ohio Supreme Court declined jurisdiction and dismissed the appeal on June 29, 2005. (Apx.Vol.7, p. 73); State v. Adams, 106 Ohio St.3d 1414, 830 N.E.2d 346 (2005). III. Federal Habeas Corpus On August 1, 2005, Adams filed a Notice of Intent to File a Petition for Writ of Habeas Corpus. His Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 was filed on May 19, 2006 raising the following twenty claims for relief. FIRST CLAIM FOR RELIEF Conviction of an Incompetent Defendant Violates Due Process-counsel Ineffective in Not Challenging a Finding of Competence. SECOND CLAIM FOR RELIEF Improper First Phase Jury Instructions that Relieves the State from Proving Each Element of the Offense Beyond a Reasonable Doubt. THIRD CLAIM FOR RELIEF Use of a Stun Belt Without Sufficient Cause Nor any Factual Basis Justifying its Use. FOURTH CLAIM FOR RELIEF The Use of Lethal Injection Constitutes Cruel and Unusual Punishment Under the Eighth Amendment. FIFTH CLAIM FOR RELIEF Use of the Term “recommendation” by the Trial Court During the Penalty Phase. SIXTH CLAIM FOR RELIEF Fact Finder Reliance on Invalid Aggravated Factor. SEVENTH CLAIM FOR RELIEF Racially Motivated Peremptory Strikes by Prosecutor in Violation of Batson v. Kentucky. EIGHTH CLAIM FOR RELIEF Ineffective Assistance of Appellate Counsel for Failure to Pursue Batson Claim. NINTH CLAIM FOR RELIEF Failure of Trial Court to Conduct Hearing on Post Conviction Petition Where Movant has Supplied Sufficient Eviden-tiary Material to Corroborate Allegations Contained in Petition. TENTH CLAIM FOR RELIEF Trial Counsel’s Failure to Seek Suppression of Petitioner’s Miranda and Edwards rights. ELEVENTH CLAIM FOR RELIEF Denial of Meaningful Access to Counsel, in Private, without the Presence of Law Enforcement Officers. TWELFTH CLAIM FOR RELIEF Inability of Petitioner, Due to His Epileptic Condition, to Voluntarily, Knowingly and Intelligently Waive Constitutional Rights and Trial Counsel’s Failure to Adequately Investigate the Epileptic Condition. THIRTEENTH CLAIM FOR RELIEF Ineffective Assistance of Trial Counsel for Failing to Move to Suppress Petitioner’s Statements. FOURTEENTH CLAIM FOR RELIEF Trial Court’s Failure to Conduct Preliminary Daubert Inquiry and Insist on Necessary Foundation of the State’s DNA Evidence. FIFTEENTH CLAIM FOR RELIEF Juror Misconduct. SIXTEENTH CLAIM FOR RELIEF Failure to Receive a Fair and Impartial Trial due to Pre-trial Publicity. SEVENTEENTH CLAIM FOR RELIEF Ineffective Assistance of Counsel in Jury Selection for Failure to Conduct Meaningful Inquiry on Death Qualification. EIGHTEENTH CLAIM FOR RELIEF Duplicative Aggravating Circumstances Presented in Jury Weighing Aggravation against Mitigation. NINETEENTH CLAIM FOR RELIEF Ineffective Assistance of Counsel for Failure to Offer Specific Mitigating Factors for the Jury to Weigh Against Aggravating Circumstances. TWENTIETH CLAIM FOR RELIEF Ineffective Assistance of Counsel for Failure to Raise Constitutional Objections to the Death Penalty. On June 6, 2006, Adams amended his Petition withdrawing the seventh and eighth grounds. (ECF 17). IV. Standard of Review Adams filed his Petition on May 19, 2006, well after the effective date of the Anti-Terrorism and Effective Death Penalty Act (hereinafter “AEDPA”). Consequently, the Court will utilize this standard when analyzing Adams’s claims. The AEDPA changed federal habeas corpus law in several important respects. Among the most significant of these changes is the standard of review to be applied to state court legal and factual determinations. Under the Act: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). The Supreme Court, in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), set forth the standard of review a federal habeas court must apply under § 2254(d). The Supreme Court provided definitions for the phrases “contrary to,” “unreasonable application of,” and “clearly established federal law” in § 2254(d)(1). Id. The Supreme Court first pointed out that the phrases “contrary to” and “unreasonable application of’ must be given independent meanings. Id. at 404-05, 120 S.Ct. 1495. A state court decision can be “contrary to” the Supreme Court’s clearly established precedent in two ways: (1) “if the state court arrives at a conclusion opposite to that reached by this Court on a question of law,” and (2) “if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to” that decision. Id. The Williams Court also stated that the word “contrary” “is commonly understood to mean ‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually opposed.’” Id. Thus, § 2254 “suggests that the state court’s decision must be substantially different from the relevant precedent of [the Supreme Court].” Id. The Supreme Court suggested that this phrase would be applicable if the state court applies a rule that contradicts the governing law set forth in prior Supreme Court cases, such as if a state court were to hold that, in order to establish an ineffective assistance of counsel claim, a defendant must prove by a preponderance of the evidence, instead of only a “reasonable probability,” that the results of the trial would have been different. Id. at 405-06, 120 S.Ct. 1495. The Supreme Court held that an “unreasonable application” occurs when “the state identifies the correct legal principle from this Court’s decision but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 410, 413, 120 S.Ct. 1495 (“For purposes of today’s opinion, the most important point is that an unreasonable application of federal law is different from an incorrect application of federal law.”) (emphasis in original). See also Bell v. Cone, 535 U.S. 685, 698-99,122 S.Ct. 1843, 152 L.Ed.2d 914 (2002)(holding that, for a petitioner to succeed on a habe-as claim, “he must do more than show that he would have satisfied [the applicable Supreme Court] test if his claim were being analyzed in the first instance, because under 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state court applied [Supreme Court precedent] incorrectly.... Rather, he must show that the [state court] applied [Supreme Court precedent] to the facts of his ease in an objectively unreasonable manner.”). The Supreme Court also pointed out that, to determine the reasonableness of the state court’s decision, a court must employ an objective test, not a subjective one. The Williams Court, thus, rejected the Fourth Circuit’s holding that a state court’s application of federal law was only unreasonable “if the state court has applied federal law in a manner that reasonable jurists would all agree is unreasonable.” Williams, 529 U.S. at 376, 120 S.Ct. 1495. The Court reasoned that this test was too subjective because a court might “rest its determination ... on the simple fact that at least one of the Nation’s jurists has applied the relevant federal law in the same manner the state court did in the habeas petitioner’s case.” Id. at 410, 120 S.Ct. 1495. The Williams Court also provided further guidance for the phrase “clearly established holdings of the Supreme Court.” Id. at 412, 120 S.Ct. 1495. The Court stated that this statutory phrase “refers to the holdings as opposed to its dicta, of this Court’s decisions as of the time of the relevant state-court decision.” Id. The Sixth Circuit has noted that “this provision marks ‘significant change’ and prevents the district court from looking to lower federal court decisions in determining whether the state court decision is contrary to, or an unreasonable application of, clearly established federal law....” Harris v. Stovall, 212 F.3d 940, 944 (6th Cir.2000) (quoting Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir.1998)). The Williams Court referred to the jurisprudence it has developed under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), to help guide federal courts as to what qualifies as “clearly established Federal law.” Williams, 529 U.S. at 412, 120 S.Ct. 1495. The Court stated “[w]hatever would qualify as an ‘old rule’ under Teague will constitute ‘clearly established Federal law, as determined by [this] Court.’ ” Id. Under Teague, “a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government.” Teague, 489 U.S. at 301, 109 S.Ct. 1060. Thus, a case announces a new rule if the result was not predicated on precedent existing at the time the defendant’s conviction became final. Id. “In determining whether the relief requested would constitute a new rule, the question becomes, ‘whether a state court considering [the petitioner’s] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution.’ ” Harris, 212 F.3d at 944 (quoting Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994)); Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). Y. Exhaustion and Procedural Default A. Exhaustion A state prisoner must exhaust his state remedies before bringing his claim in a federal habeas corpus proceeding. 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Exhaustion is fulfilled once a state supreme court provides a convicted defendant an opportunity to review his or her claims on the merits. O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). A habe-as petitioner satisfies the exhaustion requirement when the highest court in the state in which the petitioner has been convicted has had a full and fair opportunity to rule on the claims. Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir.1990). If under state law there remains a remedy that a petitioner has not yet pursued, exhaustion has not occurred and the federal habeas court cannot entertain the merits of the claim. Rust, 17 F.3d at 160. Claims that were never raised at any juncture of the state-court proceedings are both unexhausted and procedurally defaulted because no Ohio court has had an opportunity to decide them. If a habeas petitioner sought to return to state court and attempted to present new claims to the Ohio Supreme Court, that court would find them procedurally barred. “The Ohio Supreme Court has stated that it will not consider constitutional claims not raised and preserved in the Ohio Court of Appeals.” Fornash v. Marshall, 686 F.2d 1179, 1185 n. 7 (6th Cir.1982), (citing State v. Phillips, 27 Ohio St.2d 294, 272 N.E.2d 347, 352 (1971)). Thus, Adams’s failure to raise a claim to the Ohio court of appeals would preclude Ohio Supreme Court review. This preclusion, in turn, would prevent Adams from satisfying the exhaustion requirement as the Ohio Supreme Court has not had a “fair and full opportunity” to review these claims as Rust requires. A petitioner “cannot obtain federal habeas relief under 28 U.S.C. § 2254 unless he has completely exhausted his available state court remedies to the state’s highest court.” Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir.2001)(quoting Coleman v. Mitchell, 244 F.3d 533, 538 (6th Cir.2001)) (internal quotation marks omitted). Rather than dismiss certain claims the court deems unexhausted, however, a habeas court need not wait for exhaustion if it determines that a return to state court would be futile. Lott v. Coyle, 261 F.3d 594, 608 (6th Cir.2001). In circumstances where the petitioner has failed to present a claim in state court, a habeas court may deem that claim procedurally defaulted because the Ohio state courts would no longer entertain the claim. Buell, 274 F.3d at 349. To obtain a merit review of the claim, the petitioner must demonstrate cause and prejudice to excuse his failure to raise the claim in state court, or that a miscarriage of justice would occur were the habeas court to refuse to address the claim on its merits. Seymour v. Walker, 224 F.3d 542, 550 (6th Cir.2000),(citing Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). B. Procedural Default For purposes of comity, a federal court may not consider “contentions of federal law that are not resolved on the merits in the state proceeding due to petitioner’s failure to raise them as required by state procedure.” Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). If a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 749-50, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). As the United States Supreme Court recently explained, “[t]he procedural default rule is neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law’s important interest in the finality of judgments.” Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). In Maupin v. Smith, 785 F.2d 135 (6th Cir.1986), the Sixth Circuit Court of Appeals set out the analytical framework for determining the defaulted status of a claim: “When a state argues that a habeas claim is precluded by the petitioner’s failure to observe a state procedural rule, the federal court must go through a complicated [four-prong] analysis.” Id. at 138. Specifically, the Sixth Circuit stated: First, the court must determine that there is a state procedural rule that is applicable to the petitioner’s claim and that the petitioner failed to comply with the rule.... Second, the court must decide whether the state courts actually enforced the state procedural sanction .... Third, the court must decide whether the state procedural forfeiture is an “adequate and independent” state ground on which the state can rely to foreclose review of a federal constitutional claim. [Fourth, if] the court determines that a state procedural rule was not complied with and that rule was an adequate and independent state ground, then the petitioner must demonstrate ... that there was “cause” for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error. Id. (citations omitted). The Respondent asserts that all or part of seven claims raised in the Petition are barred from review by this Court because they are . procedurally defaulted. The Court will address each individual claim of procedural default on that basis. At this time, however, the Court will address the Ohio doctrine of res judicata pursuant to State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Adams argues that Ohio’s post-conviction relief system does not meet federal constitutional requirements because of the Ohio Supreme -Court’s interpretation of the post-conviction statutes in Perry. Under the Perry doctrine, a final judgment of conviction bars a convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial on the merits, or on appeal from that underlying judgment. Id. at 108; see also State v. Roberts, 1 Ohio St.3d 36, 437 N.E.2d 598, 601 (1982)(holding policy behind Perry bars post-conviction petitioners from raising issues that could have been raised on direct appeal in a collateral proceeding to avoid reversal of conviction based on collateral, rather than constitutional, issues). Thus, unless a claim is based on evidence dehors the record, it must be raised during direct appeal, or be deemed waived. Adams cites no persuasive authority requiring this court to find Perry unconstitutional. The Sixth Circuit has expressly found that the Perry rule is an adequate and independent state ground to bar a merit review of a petitioner’s claim where such claim is asserted in non-compliance with that rule. Buell, 274 F.3d at 349 (“This court has held that [the Perry rule] is regularly and consistently applied by Ohio courts as required by the four part Maupin test.”)(citing Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir.2000)). See also Mapes v. Coyle, 171 F.3d 408, 420 (6th Cir.1999)(noting that the Perry rule has been consistently applied); Brooks v. Edwards, 96 F.3d 1448, 1996 WL 506505, at *5 (6th Cir.1996)(“The procedural rule [of res judicata] applicable to petitioner’s claims is an adequate and independent state ground for refusal to hear the claim by the Ohio Supreme Court.”). Consequently, this Court holds that any claim that the Ohio courts refused to address based on Perry is procedurally defaulted and barred from habeas review absent a showing of cause and prejudice. Ohio has a contemporaneous objection rule under which an appellant who fails to object waives later review of the issue unless plain error can be shown. Williams v. Bagley, 380 F.3d 932, 968 (6th Cir.2004), cert. denied, 544 U.S. 1003, 125 S.Ct. 1939, 161 L.Ed.2d 779 (2005) (citing State v. Smith, 89 Ohio St.3d 323, 332, 731 N.E.2d 645 (2000)). The Sixth Circuit has held that Ohio’s contemporaneous objection rule constitutes an adequate and independent state ground barring federal review absent a showing of cause for the waiver and resulting prejudice. Id.; Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir.2001); Stojetz v. Ishee, 2006 WL 328155 *12 (S.D.Ohio Feb. 10, 2006). A state court’s review of an issue for plain error is considered by the Sixth Circuit as the enforcement of a procedural default. Williams, 380 F.3d at 968; Hin-kle, 271 F.3d at 244. The federal court, in determining whether a state court has relied on a procedural rule to bar review of an issue, examines the latest reasoned opinion of the state courts and presumes that later courts enforced the bar instead of rejecting the claim on the merits. Hinkle, 271 F.3d at 244 (citing Ylst, v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)). Returning to the issue of procedural default generally, if the district court concludes that the state prisoner has procedurally defaulted his federal claims in state court, federal review is barred unless the prisoner can demonstrate “cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 749, 111 S.Ct. 2546. Demonstrating “cause” requires showing that some factor external to the defense impeded counsel’s efforts to comply with the State procedural rule. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Demonstrating “prejudice” requires showing a disadvantage “infecting” the trial with constitutional error. United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Absent cause and prejudice, federal courts may not review issues that are pro-eedurally defaulted unless the petitioner shows that his conviction is the result of a fundamental miscarriage of justice. A fundamental miscarriage of justice is a conviction of one who is “actually innocent.” See Coleman, 501 U.S. at 750, 111 S.Ct. 2546; Murray, 477 U.S. at 496, 106 S.Ct. 2639. The Supreme Court requires the petitioner to demonstrate not merely a reasonable doubt in light of new evidence, but rather that “it is more likely than not that no reasonable juror would have convicted [the Petitioner] in light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). The petitioner fails to meet his burden if “at least one juror, acting reasonably and properly instructed would have found” him guilty. Id. at 329, 115 S.Ct. 851. VI. Individual Grounds for Relief A. First, Tenth, Twelfth, Thirteenth, Seventeenth, Eighteenth, Nineteenth and Twentieth — Ineffective Assistance of Counsel Adams alleges ineffective assistance of counsel at both the guilt and penalty phases of trial in his first, tenth, twelfth, thirteenth, seventeenth, eighteenth, nineteenth and twentieth claims for relief. The Court will discuss procedural default as it pertains to each ground for relief as it addresses each individual claim. Here, the Court sets forth the applicable law and standard of review it will apply to each claim. Counsel’s performance during a criminal trial must be sufficient to ensure a defendant’s trial was fair. Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To assert a successful ineffective assistance of counsel claim, a habeas petitioner must satisfy the two-prong test for ineffective assistance of counsel set forth in Strickland. First, the petitioner must demonstrate that counsel’s errors were so egregious that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Second, the petitioner must show that he was prejudiced by counsel’s errors. “This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. Prejudice exists when there is a reasonable probability, that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. 466 U.S. at 694, 104 S.Ct. 2052; Hicks v. Collins, 384 F.3d 204, 214 (6th Cir.2004), cert. denied, 544 U.S. 1037, 125 S.Ct. 2260, 161 L.Ed.2d 1066 (2005). To demonstrate ineffective assistance of counsel, a petitioner must point to specific errors in counsel’s performance. United States v. Cronic, 466 U.S. 648, 666, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Thereafter, a reviewing court must subject the allegations to rigorous scrutiny, determining “whether, in light of all circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. A reviewing court must strongly presume that counsel’s conduct was reasonable and might be part of a trial strategy. Id. at 689, 104 S.Ct. 2052. “Judicial scrutiny of a counsel’s performance must be highly deferential and ... ‘every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.’” Bell, 535 U.S. at 698, 122 S.Ct. 1843(quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). To ascertain whether counsel’s performance prejudiced a criminal proceeding, a reviewing court does not speculate whether a different strategy might have been more successful, but a court must “focus on the question of whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). First Claim for Relief In his first claim for relief, Adams asserts that his counsel were ineffective for fading to challenge Adams’s competence to stand trial. Adams had three competency examinations which were allegedly inadequate. He contends that counsel should have sought a more extensive competency examination. The Respondent concedes that this claim was properly presented to the Ohio courts and is preserved for federal habeas review. Adams’s counsel requested a determination of competency before trial. The court and defense each selected a psychologist while the prosecutor utilized a psychiatrist. The Ohio Supreme Court addressed this claim as follows, finding it to be without merit. In proposition of law X, Adams argues that his counsel provided ineffective assistance by failing to adequately challenge at trial the competence of Adams to stand trial when a good-faith basis existed to do so. Before trial, counsel requested a determination of competency. The court selected clinical psychologist Dr. Stanley J. Palumbo, the defense selected psychologist Dr. Douglas C. Darnall, and the prosecutor selected a psychiatrist, Dr. Steven J. Zuehowski. After interviewing Adams and examining relevant records, each expert found Adams competent to stand trial. At a pretrial conference, the parties stipulated to the competency-evaluation reports and agreed that each expert would testify as his report indicated. The court then found Adams competent to stand trial. Admittedly, a person who “lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.” Drope v. Missouri (1975), 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103. “Fundamental principles of due process” prohibit trial of a criminal defendant who is legally incompetent. State v. Berry (1995), 72 Ohio St.3d 354, 359, 650 N.E.2d 433, citing Pate v. Robinson (1966), 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815. Although Adams suggests that he was not competent to stand trial, he primarily argues that his counsel provided ineffective assistance by not pursuing the issue. Nonetheless, we find that Adams has not established deficient performance. Counsel’s decision to stipulate to the content of three competency evaluations and not cross-examine these experts or otherwise challenge the competence of Adams was grounded on a reasoned tactical judgment. First, the record reflects no basis to challenge the reports. The competency reports were comprehensive and satisfied the statutory requirements for competency evaluations. See R.C. 2945.371(G). Each expert explained in detail why Adams was competent to stand trial. For example, Dr. Palumbo interviewed Adams for two hours and reviewed other relevant records such as his own September 1996 evaluation of Adams. After reviewing relevant history, Dr. Palumbo articulated detailed reasons for concluding, “with reasonable scientific certainty, [that] Stanley Adams is presently able to understand the nature and objective of the proceedings against him and to presently assist in his defense.” According to Dr. Palumbo, Adams understood and described the charges against him, the role of witnesses, the judge, the jury, the prosecutor, and the defense counsel, as well as his role as the defendant. Adams also understood types of pleas, the plea-bargain process, and the potential penalties. Dr. Darnall, the expert selected by Adams, also explained in detail why he could “find no evidence of a significant mental disorder that would hinder [Adams’s] capacity to understand the judicial process or to contribute to his own defense.” Dr. Zuchowski detailed five reasons why he found that Adams understood the nature and objective of the proceedings against him and eight specific reasons why Adams could assist his lawyers. Although all three experts reported that Adams had abused drugs and alcohol, no one diagnosed any psychosis or mental limitations that would affect the competence of Adams to stand trial. Under R.C. 2945.37(G), “[a] defendant is presumed to be competent to stand trial.” This presumption remains valid under R.C. 2945.37(G) unless “after a hearing, the court finds by a preponderance of the evidence” that the defendant is not competent. Faced with these strong conclusions that Adams was competent to be tried, counsel reasonably decided to stipulate to their testimony and not challenge the presumption of competency. When judging professional decisions of counsel, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. Second, counsel knew their client and could best determine if he understood the trial process and was able to assist them in the defense. Counsel could also decide if cross-examination of the experts or further evaluations were needed. See State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4164, 793 N.E.2d 446, at ¶ 63; State v. Spivey, 81 Ohio St.3d 405, 410-411, 692 N.E.2d 151 (1998). We grant deference on these issues to those “who see and hear what goes on in the courtroom.” State v. Cowans, 87 Ohio St.3d 68, 84, 717 N.E.2d 298 (1999). Third, later events at trial vindicated counsel’s decision not to challenge the competence of Adams. During the trial, Adams made a pro se request for witnesses to be recalled, personally asked for an additional DNA test, and argued about a polygraph examination. These personal requests by Adams demonstrated his understanding of the trial process and his ability to assist his defense. In addition, the fact that Adams at times complained about tactical decisions that his lawyers made also established that Adams understood the trial process and was fully engaged in his defense. Further, Adams “displayed no outrageous, irrational behavior during trial, and counsel never complained about his lack of cooperation.” State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4164, 793 N.E.2d 446, at ¶ 63. “[I]t is noteworthy that nobody on the spot thought [that the defendant’s] behavior raised any question as to his competence.” (Emphasis sic.) State v. Cowans, 87 Ohio St.3d at 84, 717 N.E.2d 298. Cf. State v. Thomas, 97 Ohio St.3d 309, 316, 779 N.E.2d 1017; State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶ 29-32; State v. Carter, 89 Ohio St.3d 593, 603-605, 734 N.E.2d 345 (2000). Finally, nothing in the record suggests prejudice, which Strickland requires. The record fails to reflect any reasonable probability that if counsel had cross-examined the experts or requested further evaluations, the trial court’s decision that Adams was competent would have been different. See State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus. Accord State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4164, 793 N.E.2d 446, at ¶ 66. Thus, we overrule proposition X. State v. Adams, 103 Ohio St.3d at 521-24, 817 N.E.2d 29. The Ohio Supreme Court thoroughly addressed this issue, summarizing the opinion of each expert that Adams understood the charges against him. None of them diagnosed any psychosis or mental limitations. Further, there is nothing before the Court showing that another opinion would result in a different evaluation. The decision by the Ohio Supreme Court was not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States. Tenth and Thirteenth Claims for Relief Adams contends that his counsel were ineffective for failing to file a motion to suppress non-custodial and custodial statements made to police. The tenth claim contains the issue of non-custodial interrogation while the latter issue was set forth in the thirteenth claim for relief. As both claims were presented to the Ohio Supreme Court, the Respondent concedes that they have been preserved for federal habeas review. Adams allegedly made statements to law enforcement officers while ostensibly not in custody, which were made at a law enforcement office with officers present but without counsel. Trial counsel, through discovery, were aware of these statements and their importance to the State’s case, but refused to file a motion to suppress them. After his arrest, Adams made incriminating statements without being informed of his constitutional rights. The Ohio Supreme Court addressed this claim stating: In proposition of law I, Adams argues that his counsel provided ineffective assistance by failing to file a motion to suppress pretrial statements that Adams made to the Warren police on October 20, 1999. In those audiotaped and videotaped statements, Adams admitted that he had discovered the bodies of Esther and Ashley, but he denied any responsibility for their deaths. For Adams to obtain a reversal of a conviction or sentence based on ineffective assistance of counsel, he must prove (a) deficient performance (“errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”) and (b) prejudice (“errors * * * so serious as to deprive the defendant of a fair trial, a trial whose result is reliable”). Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accord State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). We conclude, however, that Adams’s claim of ineffective assistance of counsel lacks merit. First, Adams has not demonstrated deficient performance. Trial counsel cannot be second-guessed as to trial strategy decisions. In fact, the “ ‘[fjailure to file a suppression motion does not constitute per se ineffective assistance of counsel.’ ” State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000), quoting Kimmelman v. Morrison (1986), 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305. “Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.” Strickland, 466 U.S. at 693, 104 S.Ct. 2052, 80 L.Ed.2d 674. Moreover, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. In this case, counsel for Adams appear to have made a tactical judgment that the best way to defend Adams would be to permit his strong claims of innocence to be admitted into evidence. In these October 20 statements, Adams persistently denied any thefts from the house, any sexual contact with the victims, and any responsibility for their deaths. Counsel’s trial strategy took advantage of the fact that Adams strongly proclaimed to police before trial that he was innocent of these charges. To illustrate this strategy, defense counsel in his opening statement noted that two “trained, experienced police officers” subjected Adams to “an intense interrogation * * * for almost three hours.” Counsel further noted “[tjhere are no less than accusations of assaults, beatings, on these two decedents, and there are just as many explained denials by Stanley that, T did not do this, I did not have anything to do with this.’ ” In closing argument, counsel resumed this strategy by stressing Adams’s protestations of innocence, e.g., “Stanley does not waiver [sic], and his statement remains the same, I didn’t do this.” By deciding not to attempt to suppress these pretrial statements, counsel had the benefit of having Adams’s exculpatory explanation of events in evidence, without the risk of having Adams take the stand in his own defense. By not testifying, Adams never had to face a prosecutor’s cross-examination. Further, Adams never had to face devastating impeachment by means of his prior felony convictions, which included a recent murder conviction. See, e.g., State v. Beckett, No. 00CA008, 2001 WL 520970 (May 11, 2001) (“[b]y allowing the admission oí [pretrial] statements to police * * *, counsel was able to present this defense * * * without putting appellant on the witness stand”); People v. Newman, 2000 WL 33522090 (Mich.App.2000) (allowing into evidence a voluntary, exculpatory pretrial statement is a matter of trial strategy, not ineffective assistance). Second, in order to demonstrate deficient performance, Adams must establish that a basis existed to suppress his pretrial statements. See, e.g., State v. Tibbetts, 92 Ohio St.3d 146, 165-166, 749 N.E.2d 226 (2001) (where the record contains no evidence justifying a motion to suppress, defendant has not met his burden of proving that his attorney violated an essential duty by failing to file the motion). In fact, the record strongly indicates that counsel would have been unsuccessful in attempting to suppress Adams’s pretrial statements. Police advised Adams of his Miranda rights by reading the form to him, and Adams freely signed a waiver of those rights. Adams said that he understood his rights, and the record shows that his Miranda waiver and ensuing statements were voluntary. The audiotaped and videotaped statements reveal that Adams remained in control of himself throug