Jones v. Bradshaw (489 F. Supp. 2d 786, 2007)

MEMORANDUM OPINION

KATZ, District Judge.

This matter is before the Court on Petitioner, Odraye Jones’s (“Jones”) Petition for a writ of habeas corpus, (Doc. No. 17), and Amended Petition, (Doc. No. 99). Respondent, Margaret Bradshaw, filed a Return of Writ, (Doc. No. 18), and Amended Return of Writ, (Doc. No. 103). Jones thereafter filed a Final Amended Traverse, (Doc. No. 114). The Respondent filed several responsive briefs, (Doc. Nos. 61, 63, 115). For the following reasons, Petitioner’s motion for a writ of habeas corpus will be denied.

I. Factual Background

On November 26, 1997, Jones was indicted by an Ashtabula County grand jury on one count of the aggravated murder of Police Officer William D. Glover with prior calculation and design in violation of Ohio Revised Code § 2903.01(A). That count contained the following four specifications: (1) that the offense was committed for the purpose of escaping detection, trial or punishment for another offense committed by the defendant in violation of Ohio Revised Code § 2929.041(A)(3); (2) the victim of the offense was a peace office whom the defendant had reasonable cause to know or knew such and that at the time of the offense, Officer Glover was engaged in his duties as a peace officer, in violation of Ohio Revised Code § 2929.04(A)(6); (3) that is was the defendant’s specific purpose to kill a peace officer at the time of the offense in violation of Ohio Revised Code § 2929.04(A)(6); and (4) that the defendant had a firearm on or about his person or under his control while committing the offense and displayed the firearm, ... or used it to facilitate the offense in violation of Ohio Revised Code § 2941.145.

Finding that Jones was indigent, the trial court appointed David L. Doughten as lead counsel and Robert L. Tobik as co-counsel to represent him during trial. After voir dire was complete and the jury sworn in, attorney David Per Due filed a notice of appearance on Jones’s behalf and asked for a four month continuance to prepare Jones’s defense. The trial court offered Per Due the opportunity to work with appointed counsel, but Per Due refused. The trial court then concluded that Per Due’s notice of appearance was filed for purposes of delay and barred him from representing Jones during trial.

Jones’s trial by jury commenced on May 5, 1998. The jury found Jones guilty on the capital murder count and all four specifications. The mitigation hearing commenced on June 2, 1998. The jury found that the aggravating circumstances outweighed the mitigating factors and recommended that Jones be sentenced to death. On June 11, 1998, the trial court accepted the jury’s recommendation and imposed a death sentence for the aggravated murder. It also sentenced Jones to a mandatory three-year term of incarceration for the firearm specification to run consecutively to the death sentence.

The Ohio Supreme Court set out the following factual history, as adduced by the evidence presented at trial, upon considering Jones’s direct appeal of his convictions and sentence:

On November 17, 1997, a dispatcher for the Ashtabula City Police Department advised officers that appellant Odraye G. Jones, an individual with outstanding felony warrants, had been spotted in the 900 block of West 43rd Street in Ashta-bula. A week earlier, appellant had told his cousin, Jimmie Lee Ruth, that he was facing a lot of time for robbing Isaac Coleman and that he “was going to shoot at the police if they ever tried to arrest him.”

Officer William D. Glover, Jr., responded to the dispatcher’s call. Officer Glover found appellant with a friend, Anthony Gene Barksdale, and Jimmie Lee Ruth walking together on West 43rd Street. Officer Glover followed the three men to the home of one of their friends, Flo Chapman. Barksdale knocked on the door of the Chapman home while Ruth and appellant stood behind him on the porch. Officer Glover approached the Chapman home, got out of his car, and beckoned to appellant. Ruth testified that Officer Glover told appellant, “[C]ome on, you know why I’m here. I don’t want no problem. I’m just doing my job.” Appellant jumped off the side of the porch and began running down the side of the Chapman home. Officer Glover pursued him. Not long after the pursuit commenced, appellant turned around, pulled a .38 caliber revolver from his pocket, and began firing shots at Officer Glover. After firing the first shot, appellant began to approach Officer Glover, firing several more shots. Officer Glover fell to the ground. Appellant turned and fled. He ran to a nearby fence and began to climb through a hole in it. Appellant then stopped, turned around, and ran back to where Officer Glover lay. Appellant kicked Officer Glover in the chest. The kick was done with such force that it left a large bruise on Officer Glover’s chest that was visible to the paramedics who later treated Officer Glover at the scene. After kicking Officer Glover, appellant fled the scene.

As Officer Glover was pursuing appellant, another Ashtabula City Police Officer, Robert Stell, was en route in his patrol car. Officer Stell located appellant several blocks away from the scene of the shooting, still running. Officer Stell got out of his car and ordered appellant to stop. Appellant ignored the command and continued running. Officer Stell pursued appellant on foot. Appellant led Officer Stell into a nearby apartment complex. He stopped at the door of an apartment and began attempting to force his way inside. While appellant managed to squeeze part of his body through the door, the occupant of the apartment prevented appellant from fully entering. As appellant was struggling to enter the apartment, Officer Stell began to approach appellant. Officer Stell drew his weapon and ordered appellant to the ground. Appellant did not immediately respond. Appellant threw his revolver behind him. The gun landed in some nearby shrubbery. Officer Stell again ordered appellant to the ground and, this time, appellant complied. Officer Stell held appellant at gunpoint until assistance arrived. Officers recovered the weapon and appellant was placed under arrest. This gun was later matched to fired cartridge casings recovered at the scene of the shooting, live cartridges found on appellant at the time of his arrest, and bullets taken from Officer Glover’s body. All of the ammunition was hollow point. This type of ammunition is designed to open up on impact, causing larger wounds.

Officer Glover had sustained gunshot wounds to the top of his head and to the area just below his right eye. He also sustained a bullet wound to his right shoulder. The gunshot wound to the top of Officer Glover’s head and the wound to his face were both fired from a distance of less than one foot. The suddenness of appellant’s attack had apparently caught Officer Glover by surprise. Officer Glover’s duty weapon was found in Officer Glover’s holster. The holster’s strap was snapped securely shut. Paramedics transported Officer Glover to Ashtabula County Medical Center for emergency treatment. After Officer Glover’s condition had been stabilized, he was life-flighted to Cleveland’s Metro-Health Hospital. X-rays and CT scans revealed substantial damage to Officer Glover’s brain. Officer Glover had severe cerebral swelling and profuse bleeding from his nose and mouth. Neurological assessments revealed minimal brain stem function. Officer Glover died from his gunshot wounds the following morning, November 18,1997.

State v. Jones, 91 Ohio St.3d 335, 744 N.E.2d 1163 (2001).

II. Procedural History

Represented by Stephen A. Ferrell of the Ohio Public Defender’s Office and Robert A. Dixon, Jones filed a timely direct appeal of the trial court judgment to the Ohio Supreme Court on July 24, 1998, raising fifteen propositions of law. The Ohio Supreme Court affirmed the conviction and sentence on April 18, 2001. State v. Jones, 91 Ohio St.3d 335, 744 N.E.2d 1163 (2001). Jones concluded his direct appeal by petitioning the United States Supreme Court for certiorari. The Supreme Court denied the petition. Jones v. Ohio, 534 U.S. 1004, 122 S.Ct. 483, 151 L.Ed.2d 396 (2001).

On November 5,1999, Jones filed a petition for post-conviction relief pursuant to Ohio Revised Code § 2953.21 in the Ashta-bula County Court of Common Pleas, alleging twenty-six (26) claims for relief. The court found that Jones could not substantiate his claims for post-conviction relief and dismissed the petition. Jones appealed the dismissal on November 20, 2000, to the Eleventh District Court of Appeals, raising three assignments of error. Finding that the appeal was without merit, the court dismissed it. State v. Jones, No.2000-A-0083, slip op., 2002 WL 737074 (Ohio Ct.App. Apr. 26, 2002). Jones appealed the Eleventh District’s decision, filing a memorandum in support of jurisdiction in the Ohio Supreme Court on June 12, 2002. He asserted three propositions of law. The Ohio Supreme Court declined to hear the case and dismissed the petition on September 11, 2002. State v. Jones, 96 Ohio St.3d 1495, 774 N.E.2d 767 (2002)(Table).

Jones also filed an application to reopen his direct appeal with the Ohio Supreme Court, raising four propositions of law. On September 26, 2001, the Ohio Supreme Court denied the application. State v. Jones, 93 Ohio St.3d 1434, 755 N.E.2d 356 (2001)(Table). Jones filed a second application to reopen his direct appeal but the Ohio Supreme Court denied that appeal as untimely and not allowed under the Rule. State v. Jones, 108 Ohio St.3d 1409, 841 N.E.2d 315 (2006)(Table).

III. Habeas Proceeding

On June 13, 2003, Jones filed a Notice of Intent to file a habeas corpus petition pursuant to 28 U.S.C. § 2254, (Doc. No. 1). Concurrently, Jones filed a Motion for a Stay of Execution, which the Court granted, (Doc. No. 6). Jones did not file a motion for appointment of counsel, as he retained counsel to represent him. On August 7, 2003, the Court issued a Case Management Order, requiring that the petition be filed by September 11, 2003. (Doc. No. 11). Jones filed a Motion for Reconsideration of the Court’s Case Management Order on August 13, 2003. (Doc. No. 12). Therein, Jones asserted that his motion for relief from judgment, pursuant to Ohio Rule of Civil Procedure 60(b), was pending in the Ohio courts until April 23, 2003. Thus, Jones maintained, the federal habeas statute of limitations was tolled, pursuant to 28 U.S.C. § 2244(d)(2), while the Ohio courts adjudicated the Rule 60(b) motion. The Court held that it could not determine whether Jones’s Rule 60(b) motion tolled the statute of limitations and denied Jones’s Motion. (Doc. No. 13). Thereafter, Jones filed a Motion for an extension of time to file the Petition, (Doc. No. 14), which the Court granted. (Doc. No. 16). Jones filed a Petition on October 10, 2003. (Doc. No. 17). Respondent filed the Return of Writ on December 8, 2003. (Doc. No. 18). After requesting and receiving four extensions, Jones filed a Traverse on May 3, 2004. (Doc. No. 59), and a Supplement to the Traverse on May 7, 2004. (Doc. No. 60). The Respondent filed responsive pleadings to both these documents. (Doc. Nos. 61, 63).

Jones thereafter filed a motion to expand the record, amend the petition, and to appear as co-counsel with his retained counsel, Paul Mancino. (Doc. No. 62). He subsequently filed a motion for an eviden-tiary hearing and a second motion to expand the record. The Court denied without prejudice all the motions except the motion to appear as co-counsel. (Doc. No. 72). Finding that Jones was either entitled to proceed pro se or with attorney representation, but could not proceed with “hybrid representation,” the Court ordered Jones to chose whether he wished to have Mancino continue to represent him, whether he wished the Court to appoint him new counsel, or whether he wished to proceed pro se. Id. at 3. On August 27, 2004, Jones notified the Court that he wished to have counsel appointed to represent him. (Doc. No. 73). The Court granted Jones’s request, removing Manci-no as counsel and appointing Jeffrey Hel-mick and Spiros Cocoves to represent Jones. (Doc. No. 77).

After requesting and receiving permission for an extension of time to file a motion to amend the petition and other pre-petition- motions, Jones filed a motion to stay this proceeding pending his return to state court to exhaust his ineffective assistance of appellate counsel claim. (Doc. No. 89). On October 14, 2005, the Court granted the motion. (Doc. No. 93). On March 30, 2006, the Respondent notified the Court that the Ohio Supreme Court had ruled on Jones’s application, concluding the state court litigation.

Jones filed an Amended Petition on May 3, 2006. (Doc. No. 99). The Respondent filed an Amended Return of Writ shortly thereafter. (Doc. No. 103). After asking for several extensions of time, Jones filed a Final Amended Traverse on November 30, 2006. (Doc. No. 114). The Respondent filed a Sur-Reply on December 14, 2006, (Doc. No. 115), rendering this matter ripe for disposition.

IV. Statute of Limitations Issue

Prior to reviewing the merits of Jones’s petition, the Court must first decide whether it is timely pursuant to the statute of limitations set forth in 28 U.S.C. § 2244(d). That statute states in pertinent part:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from-filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D)the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(l)(A)-(D). As stated above, the statutes further provide that “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2).

Both parties agree that Jones’s direct appeal concluded on October 29, 2001, when the United States Supreme Court denied Jones’s petition for certiorari to that Court. Moreover, neither party alleges that the limitations period should commence later than that date because one of the circumstances depicted in (d)(l)(A)-(D) has occurred in Jones’s case. Finally, both parties agree that Jones’s petition for post-conviction relief and motion for relief from judgment pursuant to Ohio Rule of Civil Procedure 60(b) were pending in the state courts at the time his direct appeal concluded.

The point of contention arises when determining at what point Jones’s “properly filed application for State post-conviction or other collateral relief’ concluded in state court and the limitations period began running. Jones alleges that the limitations period began to run on April 23, 2003, when the Ohio Supreme Court rejected Jones’s Rule 60(b) motion. Thus, he maintains, the limitations period did not conclude until April 23, 2004. Because he filed his petition on October 10, 2003, Jones contends that his Petition is timely.

The Respondent asserts that Jones’s petition is untimely on two grounds. First, the Respondent asserts that this Court should not consider Jones’s Rule 60(b) motion to be “properly filed” pursuant to § 2244(d)(2). She claims that because Jones raised issues in that motion that should have been raised in his post-conviction relief petition, and because the Ohio courts concluded that the claims Jones raised in the motion were either barred by the doctrine of res judicata or failed to allege new evidence not in existence at the time of the trial, this Court should find that Jones’s Rule 60(b) motion did not toll the limitations period.

Although the United States Supreme Court has not specifically defined what constitutes a “properly filed” state post-conviction application, in Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000), the Court provided some guidance as to its meaning. In that case the Court held that an application for state post-conviction relief containing claims that are procedurally barred under state law is “properly filed” within the meaning of the statute. Id. at 11, 121 S.Ct. 361. In so holding the Court distinguished between an application that is filed from an application that is properly filed. It opined that while an application is considered filed when it is delivered to and accepted by the court, it is not properly filed unless “its delivery and acceptance are in compliance with the applicable laws and rules governing filings.” Id. at 8, 121 S.Ct. 361. It elaborated that these laws and rules “usually prescribe, for example, the form of the document, the time limits of its delivery, the court and office in which it must be lodged, and the requisite filing fee.” Id.

Here, neither party alleges that Jones filed his Rule 60(b) motion outside the time limits set forth pursuant to that Rule. The fact that the state court said the 60(b) motion had no merit, or that its claims should have been raised in a post-conviction petition does not bear on its timeliness pursuant to the Artuz Court’s definition of that term. Thus, under Artuz, Jones’s Rule 60(b) motion would be a “properly filed” application for collateral relief that was pending in state court and would therefore toll the § 2244(d)(1) limitations period.

The Respondent also alleges that Jones’s Rule 60(b) motion does not toll the limitations period under the Sixth Circuit’s holding in Austin v. Mitchell, 200 F.3d 391 (6th Cir.2000). In that case, the Sixth Circuit held that an application for collateral relief in state court would not toll the statute of limitations under § 2244(d)(2) unless it alleged federal constitutional violations that were later the subject of a habeas petition in federal court. Thus, the Respondent maintains, and this Court held in its prior order denying Jones’s request to reconsider its Case Management Order, that Jones failed to comply with the Austin holding.

Since the time Respondent filed the Return of Writ (and since this Court issued its Order), the Sixth Circuit issued its opinion in Cowherd v. Million, 380 F.3d 909 (6th Cir.2004), which overruled Austin. In Cowherd, the Sixth Circuit noted that several other Circuit Courts had criticized the Austin opinion as failing to give meaning to the phrase “pertinent judgment” in § 2244(d)(2). Thus, because the Austin court did not consider that “judgments” of a state court could also toll the limitations period, the Cowherd court held that the Austin decision must be overruled. Accordingly, a federal habeas petitioner need not present federal claims that he or she subsequently raises in a federal habeas petition to the state courts in order to toll the statute of limitations. Contrary to the Respondent’s assertions, the content of Jones’s Rule 60(b) Motion in state court is rendered irrelevant under the Cowherd holding. The Court finds that the Rule 60(b) Motion tolled the commencement of the limitations period until April 23, 2003. The limitations period expired one year later, on April 23, 2004. Thus, Jones’s filing of his Petition on October 10, 2003, was timely.

V. Petitioner’s Grounds for Relief

In his Petition and Amended Petition, Jones raises the following thirty-four (34) grounds for relief:

1. Petitioner was denied his constitutional right to [a] reliable death sentence under the Constitution and his right to a fair and impartial jury. Petitioner was prohibited during the jury empaneling and unduly restricted about asking questions of prospective jurors concerning their ability to consider mitigating factors.

2. Petitioner was denied a fair and impartial jury when prospective jurors who had been previously convicted of criminal offenses were automatically excluded from participation even though the jurors had their civil rights restored which included their right to vote.

3. Petitioner was unconstitutionally sentenced to death when mitigating factors presented at trial were not outweighed by any aggravating circumstances proven by the prosecution.

4. Petitioner was denied his constitutional right where he was sentenced to death where the trial judge instructed the jury in such a manner that the jury could not consider a penalty less than death until they had unanimously found that the prosecution had failed to prove aggravating circumstances beyond a reasonable doubt.

5. Petitioner, who was charged with a capital offense, was denied his constitutional rights where during voir dire petitioner was denied a fair and impartial jury. Jurors were seated who were all death qualified.

6. Petitioner was denied a fair and impartial jury when the court refused the motion for a change of venue based upon a racial imbalance of jurors since petitioner, an African-American, was tried by an all-white jury.

7. Petitioner was denied his constitutional right to have counsel of choice when the court would not permit petitioner to have his own counsel of choice participate in his trial.

8. Petitioner was denied a fair trial where because of cumulative errors committed during the course of his trial he was denied a fair trial.

9. Petitioner was denied his constitutional rights because the state failed to present evidence of a deliberate plan to kill in order to sustain a conviction for a killing with prior calculation and design and failed to present proof beyond a reasonable doubt as [to] all of the essential elements of the offense and attendant specifications.

10. Petitioner was denied a fair trial where there were multiple errors committed during the trial phase of the trial and various instructions given by the court.

11. Petitioner was denied his constitutional rights where it was claimed that petitioner caused the death of a police officer to prevent petitioner’s arrest for another offense which were all aggravating circumstances which were duplicative and arose from the same conduct.

12. Petitioner was denied a fair trial by reason of misconduct by the prosecutor.

13. Petitioner was denied his constitutional rights where the jury was instructed in such a manner that allowed the jury to decide what evidence was admissible concerning the aggravating circumstances and where the jury instructions did not conform to federal constitutional law.

14. Petitioner was denied effective assistance of counsel where, through errors and omissions, counsel’s representation fell below an objective standard of representation. Petitioner was prejudiced by reason of these errors and omissions.

15. Petitioner was unconstitutionally sentenced to death where the trial court failed to accord the proper weight to mitigating evidence claiming it did not qualify as mitigating evidence and the court used an aggravating circumstance to outweigh the mitigating evidence.

16. Petitioner was convicted under a death penalty statute which did not meet minimum constitutional requirements and which was otherwise unconstitutional on its face or as applied to petitioner.

17. Petitioner was denied his constitutional right to effective assistance of counsel where petitioner presented evidence after his trial in a post-conviction petition demonstrating that petitioner’s trial counsel had rendered ineffective assistance.

18. Petitioner was denied effective assistance of counsel where counsel failed to investigate the case and present mitigating evidence which would have prevented petitioner from being receiving [sic] a death sentence.

19. Petitioner was denied his constitutional rights where exculpatory evidence was withheld from trial counsel by the prosecution.

20. Petitioner was denied fundamental fairness and substantive due process where his conviction was based on perjured testimony of Anthony Barksdale. The state withheld impeachment evidence. Moreover, trial counsel was ineffective because trial counsel did not use available information needed to impeach Barksdale.

21. Petitioner did not receive effective assistance of counsel when petitioner was denied his right to counsel where there was animosity between court-appointed counsel which prevented a client-attorney working relationship.

22. Petitioner was denied a fair and impartial jury when counsel failed to probe potential jurors about the issue of race and prejudice where the victim was white and petitioner was an African-American youth.

23. Petitioner was denied a fair trial where the state withheld exculpatory evidence regarding discovery of the alleged murder weapon.

24. Petitioner was improperly sentenced to death because he did not receive effective assistance of counsel during his mitigation hearing. Defense counsel did not properly prepare expert witnesses or present proper mitigation evidence.

25. Petitioner, who had a distrust of his own court-appointed attorneys, was unable to assist in his defense. Moreover, objective evidence manifestations were presented that petitioner did not understand the nature and object of the proceedings. Thus, petitioner’s competency should have been the subject of inquiry prior to trial.

26. Petitioner was denied a fair trial when the trial was had in the county where the death occurred. Petitioner’s trial should have been moved to a neutral setting as petitioner could not obtain a fair trial in Ashtabula County because the jury pool was saturated with prejudicial pretrial publicity.

27. Petitioner was denied a fair and impartial jury where the court allowed alternate jurors into the jury room deliberations during the guilt phase of the trial.

28. Petitioner was denied due process of law and equal protection of the law where Ohio’s post-conviction procedures failed to afford one convicted of a criminal offense, such as petitioner, an adequate corrective process to indicate [sic] constitutional violations.

29. Petitioner was denied effective assistance of counsel where petitioner produced evidence that defense counsel failed to fully investigate and cross-examine a key state’s witness with readily impeachment material. Moreover, counsel failed to fully investigate and impeach the credibility of Anthony Barksdale.

30. Petitioner was convicted of aggravated murder which requires prior calculation and design. However there was insufficient evidence to prove pri- or calculation and design and thus petitioner’s conviction and sentence offends due process of law.

31. During the state court proceedings, the trial court ... closed the courtroom to the public without objection by the defense. The lack of an objection by the defense is contrary to acceptable levels of constitutionally effective representation and also contrary to established United States Supreme Court precedent.

32. Prior to and during the course of Mr. Jones’s capital trial, a number of in-chambers hearings took place, as well as pre-trial hearings where defense counsel were present but not Mr. Jones.

33. During Mr. Jones’s trial, the State introduced, through argument and witness testimony, numerous instances of prejudicial victim impact testimony and prosecutorial misconduct by way of improper argument. Most, if not all, of this victim impact testimony and improper argument was introduced to the jury without objection by trial counsel.

34. During both phases of Mr. Jones’s trial, the prosecutor engaged in numerous and blatant instances of pros-ecutorial misconduct.

VI. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which amended 28 U.S.C. § 2254, was signed into law on April 24, 1996. In Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), the United States Supreme Court held that the provisions of the AEDPA apply to habeas corpus petitions filed after that effective date. See also Woodford v. Garceau, 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003); Barker v. Yukins, 199 F.3d 867, 871 (6th Cir.1999)(“It is now well settled that AEDPA applies to all habeas petitions filed on or after its April 24, 1996 effective date.”). Because Jones’s initial Petition was filed on October 10, 2004, the AEDPA governs this Court’s consideration of his Petition.

The AEDPA was enacted “to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases, and ‘to further the principles of comity, finality, and federalism.’” Wood ford, 538 U.S. at 206, 123 S.Ct. 1398 (citing Williams v. Taylor, 529 U.S. 362, 386, 120 5.Ct. 1495, 146 L.Ed.2d 389 (2000)). In advancing such goals, Section 2254(d) places new constraints on “the power of a federal habeas court to grant a state prisoner’s application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court.” Williams, 529 U.S. at 412, 120 S.Ct. 1495. Section 2254(d) provides:

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).

With respect to Section 2254(d)(1), “clearly established federal law” refers to the holdings, as opposed to dicta, of the United States Supreme Court’s decisions as of the time of the relevant state-court decision. Williams, 529 U.S. at 412, 120 S.Ct. 1495; Barnes v. Elo, 231 F.3d 1025, 1028 (6th Cir.2000). The “contrary to” and “unreasonable application” clauses of the Section 2254(d)(1) are independent tests and must be analyzed separately. Williams, 529 U.S. at 412-13, 120 S.Ct. 1495; Hill, 337 F.3d at 711. A state court decision is “contrary to” federal law only “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13, 120 S.Ct. 1495.

Even if the state court identifies the “correct governing legal principle,” a federal habeas court may still grant the Petition if the state court makes an “unreasonable application” of “that principle to the facts of the particular state prisoner’s case.” Williams, 529 U.S. at 413, 120 S.Ct. 1495. A state-court decision also involves an unreasonable application if it unreasonably extends a legal principle from Supreme Court 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. Id. at 407, 120 S.Ct. 1495; Hill, 337 F.3d at 711. For a state court’s application of clearly established federal law to be unreasonable, the state court’s decision must be more than incorrect or erroneous; rather, it must be objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Williams, 529 U.S. at 411, 120 S.Ct. 1495; Simpson v. Jones, 238 F.3d 399, 405 (6th Cir.2000). The reasonableness of the application of a particular legal principle depends in part on the specificity of the relevant rule. Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). While the application of specific rules may be plainly correct or incorrect, courts may have more leeway in reasonably applying more general rules in the context of a particular case. Id

As to the “unreasonable determination of the facts” clause in Section 2254(d)(2), the Supreme Court applied that section of 2254(d)(2) in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). In that case, the Court noted a “clear factual error” such as making factual findings regarding the contents of social service records contrary to “clear and convincing evidence” presented by the defendant constitutes an “unreasonable determination of the facts in light of the evidence presented.” Id. at 528-29, 123 S.Ct. 2527. In other words, a state court’s determination of facts is unreasonable if its findings conflict with clear and convincing evidence to the contrary. This analysis mirrors the “presumption of correctness” afforded factual determinations made by a state court which can only be overcome by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Mitchell v. Mason, 325 F.3d 732, 737-38 (6th Cir.2003); Clark v. O’Dea, 257 F.3d 498, 506 (6th Cir.2001)(“regardless of whether we would reach a different conclusion were we reviewing the case de novo, the findings of the state court must be upheld unless there is clear and convincing evidence to the contrary”). This presumption only applies to basic, primary facts, and not to mixed questions of law and fact.

By its express terms, however, Section 2254(d)’s constrained standard of review only applies to claims adjudicated on the merits in the state court proceeding. Clinkscale v. Carter, 375 F.3d 430, 436 (6th Cir.2004). When a state court does not assess the merits of a petitioner’s habeas claim, the deference due under the AEDPA does not apply. Id; Newton v. Million, 349 F.3d 873, 878 (6th Cir.2003); Maples v. Stegall, 340 F.3d 433, 436-37 (6th Cir.2003). In such a case, the habeas court is not limited to deciding whether that court’s decision was contrary to or involved an unreasonable application of clearly established federal law, but rather conducts a de novo review of the claim. Maples, 340 F.3d at 436-37; Benge v. Johnson, 312 F.Supp.2d 978, 987 (S.D.Ohio 2004). If the state court conducts a harmless error analysis but does not indicate whether its finding is based on state or federal constitutional law, however, a habeas court, while conducting an independent review of the facts and applicable law, must nonetheless determine “whether the state court result is contrary to or unreasonably applies clearly established federal law.” Maldonado v. Wilson, 416 F.3d 470, 476 (6th Cir.2005)(citing Harris v. Stovall, 212 F.3d 940, 943 (6th Cir.2000)).

VII. 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.

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

1. General Law

In general, a federal court may not consider “contentions of general law which 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, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). To be independent, a state procedural rule and the state courts’ application of it “must rely in no part on federal law.” Fautenberry v. Mitchell, No. C-1-00-332, 2001 WL 1763438, at *24 (S.D.Ohio Dec.26, 2001)(citing Coleman, 501 U.S. at 732-733, 111 S.Ct. 2546). To be adequate, a state procedural rule must be “firmly established and regularly followed” by the state courts at the time it was applied. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991); Williams v. Coyle, 260 F.3d 684, 693 (6th Cir.2001). If a petitioner fails to fairly present any federal habeas claims to the state courts but has no remaining state remedies, then the petitioner has procedurally defaulted those claims. O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Rust v. Zent, 17 F.3d at 160.

In Maupin v. Smith, 785 F.2d 135 (6th Cir.1986), the Sixth Circuit outlined the now familiar test to be followed when the State argues that a habeas claim is defaulted because of a prisoner’s failure to observe a state procedural rule:

First, the federal court must determine whether there is a state procedural rule that is applicable to the petitioner’s claim and whether the petitioner failed to comply with that rule. Second, the federal court must determine whether the state courts actually enforced the state procedural sanction-that is, whether the state courts actually based their decisions on the procedural rule. Third, the federal court must decide whether the state procedural rule is an adequate and independent state ground on which the state can rely to foreclose federal review of a federal constitutional claim. Fourth, if the federal court answers the first three questions in the affirmative, it would not review the petitioner’s procedurally defaulted claim unless the petitioner can show cause for not following the procedural rule and that failure to review the claim would result in prejudice or a miscarriage of justice.

Williams v. Coyle, 260 F.3d 684, 693 (6th Cir.2001)(citing Maupin, 785 F.2d at 138)(further citations omitted).

In determining whether the Maupin factors are met, the federal court looks to the last explained state court judgment. Ylst v. Nunnemaker, 501 U.S. 797, 805, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Combs v. Coyle, 205 F.3d 269, 275 (6th Cir.2000). If the last reasoned opinion on a claim explicitly imposed a procedural default, there is a presumption, which can be rebutted with strong evidence to the contrary, that “a later decision rejecting the claim did not silently disregard the bar and consider the merits.” Ylst, 501 U.S. at 803, 111 S.Ct. 2590. “If the last state court to be presented with a particular federal claim reaches the merits, it removes any bar to federal-court review.” Id. at 801, 111 S.Ct. 2590.

If the three Maupin factors are met, the claim is procedurally defaulted. However, the federal court may excuse the default and consider the claim on the merits if the petitioner demonstrates (1) there was cause for him not to follow the procedural rule and that he was actually prejudiced by the alleged constitutional error or; (2) a fundamental miscarriage of justice would result from a bar on federal review. Maupin, 785 F.2d at 138; Hutchison v. Bell, 303 F.3d 720, 735 (6th Cir.2002); Combs, 205 F.3d at 274-275.

A petitioner can establish cause in two ways. First, a petitioner may “show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Mohn v. Bock, 208 F.Supp.2d 796, 801 (E.D.Mich.2002). Objective impediments include an unavailable claim or interference by officials that made compliance impracticable. Murray, 477 U.S. at 488, 106 S.Ct. 2639; Mohn, 208 F.Supp.2d at 801. Second, constitutionally ineffective assistance of counsel constitutes cause. Murray, 477 U.S. at 488-489, 106 S.Ct. 2639; Rust v. Zent, 17 F.3d 155, 161 (6th Cir.1994); Mohn, 208 F.Supp.2d at 801, 804.

If a petitioner asserts ineffective assistance of counsel as cause for a default, that ineffective assistance claim must itself be presented to the state courts as an independent claim before it may be used to establish cause. Murray v. Carrier, 477 U.S. 478, 488-489, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). If the ineffective assistance claim is not presented to the state courts in the manner that state law requires, that claim is itself procedurally defaulted and can only be used as cause for the underlying defaulted claim if the petitioner demonstrates cause and prejudice with respect to the ineffective assistance claim. Edwards v. Carpenter, 529 U.S. 446, 452-53, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).

To establish prejudice, a petitioner must demonstrate that the constitutional error “worked to his actual and substantial disadvantage.” Perkins v. LeCureux, 58 F.3d 214, 219 (6th Cir.1995)(quoting United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). “When a petitioner fails to establish cause to excuse a procedural default, a court does not need to address the issue of prejudice.” Simpson v. Jones, 238 F.3d 399, 409 (6th Cir.2000).

Because the cause and prejudice standard is not a perfect safeguard against fundamental miscarriages of justice, the United States Supreme Court has recognized a narrow exception to the cause requirement where a constitutional violation has “probably resulted” in the conviction of one who is “actually innocent” of the substantive offense. Dretke v. Haley, 541 U.S. 386, 392, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004)(citing Murray v. Carrier, 477 U.S. 478, 495-96, 106 S.Ct. 2678, 91 L.Ed.2d 397 (1986)). When the Supreme Court extended this exception to claims of capital sentencing error, it limited the exception in the capital sentencing context to cases in which the petitioner could show “ ‘by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.’ ” Id. (quoting Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992)).

2. Jones’s Challenges to the Application of Procedural Default

a. Post-conviction relief claims

Jones asserts in his Final Amended Traverse that claims raised in post-conviction relief proceedings that were based on evidence outside the record or unavailable to him at the time of the direct appeal should not be barred from this Court’s review on grounds of res judica-ta. The Court declines to express a general conclusion regarding this issue and will address this argument as it is raised in regard to Jones’s individual grounds for relief.

b. Actual Innocence

It is unclear from the Final Amended Traverse whether Jones is asserting an actual innocence claim to excuse any procedural default — a so-called “gateway” actual innocence claim — a free-standing actual innocence claim, or both. The Court will review Jones’s actual innocence claim pursuant to the standard as set forth in Schlup v. Delo, 513 U.S. 298, 314-15, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), the “gateway” actual innocence claim, because that standard is easier to meet. See Herrera v. Collins, 506 U.S. 390, 442, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)(holding that to prevail on a free-standing actual innocence claim “the petitioner must show that he probably is innoeent.”)(Blackmun, J., dissenting). The Court finds that Jones cannot meet the Schlup standard and therefore cannot use his actual innocence as either a means to excuse procedurally defaulted claims or as a free-standing claim to obtain habeas relief. The Court sets forth its reasoning below.

In Schlup, the United States Supreme Court determined that the petitioner in that case should have been afforded a merit review of his claims after evidence suggested that he had been the victim of mistaken identity in the murder of a prison inmate. The Schlup Court held that, where a petitioner seeks to utilize claims of actual innocence as a gateway to assert he was wrongly convicted of the crime, rather than merely objecting to the death sentence, the petitioner must demonstrate that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Id. at 327, 115 S.Ct. 851 (quoting Murray v. Carrier, 477 U.S. at 496, 106 S.Ct. 2639). To constitute the necessary “probability,” the petitioner must show “that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Id. The Schlup Court described the specific analysis the district court must employ when faced with a petitioner’s allegation of actual innocence:

It is not the district court’s independent judgment as to whether reasonable doubt exists that the standard addresses; rather the standard requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do. Thus, a petitioner does not meet the threshold requirement unless he [or she] persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him [or her] guilty beyond a reasonable doubt.

Id. at 329, 115 S.Ct. 851.

Recently, the United States Supreme Court affirmed that the Schlup holding remains the standard by which actual innocence claims are reviewed. In House v. Bell, 547 U.S. -, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006), the Court held that a death row inmate had met the Schlup standard by introducing new evidence sufficient to permit him to obtain a merit review of his procedurally defaulted claims. Before reaching its conclusion, the House Court meticulously detailed the new evidence that the jury had been deprived the opportunity to examine, finding it to be substantial enough to meet the Schlup standard. Id. at 2078-87.

In the instant case, Jones does not specify what “new evidence” he offers to persuade the Court that he is actually innocent and/or actually innocent of the death penalty. While he reviews in detail the trial testimony of Theresa Taylor and her description of the coat the shooter wore, this testimony was the subject of a thorough cross-examination by defense counsel during trial. Thus, unlike the petitioners in Schlup and House, Jones does not proffer new evidence that, along with the trial evidence, would support his claim of innocence. Accordingly, the Court finds that the miscarriage of justice exception to the procedural default bar is unavailable to Jones.

VIII. Individual Grounds for Relief

A. First, Second, and Fifth Grounds for Relief — Voir Dire Issues

1. First Ground for Relief

Jones asserts in his first ground for relief that the trial court erred when it refused to allow defense counsel the opportunity to question venire members about their views of specific mitigating factors. He claims that the court’s ruling on this issue led to prospective jurors’ confusion about the definition of mitigating factors, which resulted in the selection of a jury that was pre-disposed to imposing a death sentence. The Respondent acknowledges that this claim is not procedurally defaulted. The Court can therefore review it on the merits.

Prior to trial, Jones moved the court to permit defense counsel to question the ve-nire about whether they were able to consider specific mitigating factors. Defense counsel indicated that they wished to ask each prospective juror during the individual sequestered voir dire whether he or she could give effect to the (B)(7) mitigating factor, under which defense counsel wanted to introduce evidence of Jones’s dysfunctional upbringing, as well as the (B)(4) mitigating factor, which would support Jones’s youth at the age of the offense. (Doc. No. 30, at 90; 92). In its ruling on the motion, the trial court found such questioning inappropriate. It opined:

In the case of State v. Lundgren, 73 OS 3d [Ohio St.3d] 474 at 48,[ 653 N.E.2d 304] the Ohio Supreme Court clearly held that hypothetical questions regarding specific mitigating factors should not be permitted by the Court during voir dire. The inquiry to be made is whether a juror will properly weigh and consider the mitigating factors, or whether they will automatically impose the death sentence without consideration of the mitigating factors.

This Court believes that the inquiry made of prospective Jurors must be a general inquiry as to whether or not they would automatically vote for the death penalty, and whether or not they will consider mitigating factors as later instructed by the Court. To permit questioning on specific mitigating factors is not proper because certain mitigating factors my not be presented in evidence and, at this stage, it is wholly speculative as to what mitigating factors may be presented to the Jury. In addition, it is a Jury function to weigh the mitigating factors and to place such weight upon the established mitigating factors as they deem proper. To question a juror during voir dire to determine whether or not they would give weight to any specific mitigating factor evades [sic] the province of the Jury, since the Jury may determine to give specific mitigating factors, no weight at all.

(Doc. No. 23, at 518-19).

On direct appeal to the Ohio Supreme Court, Jones raised this issue, contending that the trial court erred in its decision. The court rejected Jones’s assertion, holding that:

During voir dire, a trial court is under no obligation to discuss, or to permit the attorneys to discuss, specific mitigating factors. See State v. Wilson (1996), 74 Ohio St.3d 381 385-6, 659 N.E.2d 292; State v. Lundgren (1995), 73 Ohio St.3d 474, 481, 653 N.E.2d 304. Realistically, jurors cannot be asked to weigh specific factors until they have heard all the evidence and been fully instructed on the applicable law. Id.

State v. Jones, 91 Ohio St.3d 335, 744 N.E.2d 1163, 1171 (2001)(parallel citations omitted).

The Court must now decide whether the Ohio Supreme Court’s decision was an unreasonable application of United States Supreme Court precedent. While the Supreme Court has yet to adjudicate this precise issue, Jones cites to several cases in his briefs in which the Court opined about capital jury selection. In Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), the Court reviewed a so-called “reverse Witherspoon ” case in which the Court determined that a trial court must excuse for cause any juror who would automatically impose the death penalty. The Morgan Court concluded that “[a]ny juror who states that he or she will automatically vote for the death penalty without regard to the mitigating evidence is announcing an intention not to follow the instructions to consider the mitigating evidence and to decide if it is sufficient to preclude imposition of the death penalty.” Id. at 738, 112 S.Ct. 2222. Thus, the Court instructed trial courts that, regardless of a juror’s personal beliefs, the juror must be able to follow the law to ensure a defendant’s right to a fair trial.

The United States Supreme Court has also held that a federal habeas court’s ability to review voir dire proceedings in state court is limited to “enforcing the commands of the United States Constitution.” Mu’Min v. Virginia, 500 U.S. 415, 422, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991). In that case, the Court determined that while a trial court must question potential jurors about their exposure to pretrial publicity, the court need not inquire about what media coverage each had viewed. Id. at 431, 111 S.Ct. 1899. In upholding the trial court’s questioning of the venire, the Court reiterated that “[a] trial court’s findings of juror impartiality may be overturned only for ‘manifest error.’ ” Id. at 428, 111 S.Ct. 1899 (citations omitted).

It is clear in the instant case that the Ohio Supreme Court was not unreasonable in finding no such error occurred prior to Jones’s trial. The trial court meticulously questioned the venire members regarding their ability to follow the instructions it would give to them in the event the trial reached a penalty phase. Moreover, it secured from each prospective juror a commitment to follow the law, putting aside any personal beliefs each may have held. By exacting each juror’s promise to follow the law, the trial court met the requirements imposed on it under Morgan. Thus, the Ohio Supreme Court’s opinion upholding the trial court’s decision was not an unreasonable one.

Moreover, Jones’s assertions that a certain venire member, Mary Risley, who had “very strong inclinations toward the death penalty,” was permitted to sit on the jury because of the trial court’s failure to provide an adequate definition of mitigation is not supported by the trial-record. While it does appear, as Jones asserts, that Ms. Risley appeared to be confused by the term mitigation, believing that it pertained to circumstances that would limit a defendant’s criminal liability, she ultimately stated that she could follow the law as provided through the trial court’s instructions. The trial court’s explanation and Ms. Risley’s reply are as follows:

THE COURT: What we’re going to do in that final phase, I’m going to define aggravating circumstances. I’m going to tell you what they were and the final phase the Court is going to tell you what mitigating factors there has been evidence on, what you should consider and then you’re going to have to make a factual decision were these proven and how do they weigh. That’s what you decide, see?

MS. RISLEY: Right, and you’re asking can I do that and I’m saying yes.

(Doc. 35, at 889-90).

The Court distinguishes Ms. Risley and her expressed willingness to follow the law as instructed by the trial court from a juror who was the subject of a recent Sixth Circuit opinion. In White v. Mitchell, 431 F.3d 517 (6th Cir.2005), the court held that a juror who had been exposed to media publicity regarding the case was not impartial, denying the petitioner the right to a fundamentally fair trial. There, the juror, who equivocated several times regarding her ability to fairly decide the case, also stated that, “if the facts prove that [the defendant] is guilty,” she would have a “strong belief’ regarding the appropriateness of the death penalty. Id. at 540. The Sixth Circuit held that given the juror’s repeated self-expressed doubts about whether she could be fair in rendering a sentencing verdict, her presence on the penalty phase jury had a substantial influence on the outcome of that portion of the trial. Id. at 542.

In the instant case, Ms. Risley expressed no such misgivings about her ability to put aside any personal beliefs and abide by the law as provided to her. Other than her confusion regarding the definition of “mitigating” and at what point this term would be utilized during trial, she demonstrated a willingness to follow the law. The Morgan holding requires nothing further. Jones’s first ground for relief is not well-taken.

2. Second Ground for Relief

Jones next asserts that the trial court excused several venire members with prior felony convictions or pending felony charges. He claims this action somehow deprived him of the right to be tried by a fair and impartial jury. The Respondent asserts this claim is procedurally defaulted because defense counsel did not object to these prospective jurors’ dismissal and Jones failed to raise this claim on direct appeal. Jones cannot overcome this procedural default. Thus, the Court will not entertain the claim on the merits.

Were it to do so, it would find this claim lacks merit. Under Ohio law, a juror who has been convicted of a felony cannot serve as a juror absent a full pardon. Ohio Rev.Code § 2961.01. The United States Supreme Court has never held such statutes or their application in criminal proceedings to be unconstitutional.

3. Fifth Ground for Relief

Jones argues in this ground for relief that the prosecution improperly used its peremptory challenges to excuse venire members who equivocated about their ability to impose the death penalty. Jones raised this as his third proposition of law and the Ohio Supreme Court addressed it on the merits. Thus, it is not procedurally defaulted.

The United States Supreme Court has guided reviewing courts on how to conduct them analyses in instances where a defendant alleges improper juror inclusion or exclusion. In Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987), the Court determined that, because the right to an impartial jury was so intrinsic to the right to a fair trial, a harmless error analysis could not remedy such a trial defect. Id. at 668, 107 S.Ct. 2045. Rather than employ a harmless error analysis, a reviewing court must determine “whether [the trial court’s] findings are supported by the record.” Wainwright v. Witt, 469 U.S. 412, 434, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

Subsequently, in Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), the Court limited Gray’s applicability to instances in which the trial court erroneously excluded a juror pursuant to Witherspoon. In that ease, the defendant argued that his constitutional rights were violated when he was forced to use peremptory challenges to exclude prospective jurors who appeared to favor the death penalty. The Ross Court “rejectfed] the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury.” Id. at 88, 108 S.Ct. 2273. Noting that the Court has never held peremptory challenges to be of constitutional significance, the Court held that, “[s]o long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.” Id. While the Ross circumstances are somewhat distinct from the prosecution’s decision to utilize peremptory challenges, as Jones alleges here, its holding is apposite. Jones cannot reasonably argue that his trial jury not was impartial. Thus, the fact that the prosecution chose to exercise its peremptory challenges to