Tolliver v. Sheets (530 F. Supp. 2d 957, 2008)

OPINION AND ORDER

GEORGE C. SMITH, District Judge.

On November 20, 2007, the Magistrate Judge issued a Report and Recommendation recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. Petitioner has filed objections to the Magistrate Judge’s Report and Recommendation. For the reasons that follow, petitioner’s objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.

Petitioner objects to all of the Magistrate Judge’s recommendations. Petitioner again raises all of the same arguments that previously were presented. Petitioner objects to the Magistrate Judge’s recommendation of dismissal of claims one and two on the merits. He again asserts that the Ohio Court of Appeals unreasonably applied or contravened Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), in rejecting his claim that his statements were unconstitutionally obtained by police. Petitioner complains that neither the state court of appeals nor the Magistrate Judge properly scrutinized the facts in considering at what point interrogation by police commenced. He contends that Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), is inapplicable to this case because he unequivocally invoked his right to counsel. Petitioner also again asserts that the state appellate court improperly conducted a harmless error review. Upon review of the record and for the reasons discussed by the Magistrate Judge and the Ohio Tenth District Court of Appeals, this Court is not persuaded by petitioner’s arguments. Further, this Court likewise concludes that any error in admission of' petitioner’s statement(s) to police was harmless in view of other evidence establishing his guilt.

Petitioner likewise objects to the Magistrate Judge’s recommendation of dismissal of claims three and four on the merits. Petitioner again argues that the prosecutor violated Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), in view of Wainwright v. Greenfield, 474 U.S. 284, 295 n. 13, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986), by stating, “Does a distraught person say, ‘Pm not of psychologically sound mind?’ ” during closing arguments, and that he was denied the effective assistance of counsel because his attorney did not object to this statement. For reasons already addressed in the Magistrate Judge’s Report and Recommendation, this Court does not agree.

Petitioner objects to the Magistrate Judge’s recommendation of dismissal of claim five on the merits. Petitioner complains that the Ohio Court of Appeals improperly failed to consider the entire record in its dismissal of this claim, and that its decision is objectively unreasonable as well as an unreasonable determination of the facts. Objections, at 971. As discussed by the Magistrate Judge, federal habeas corpus review of state evidentiary rulings is extremely limited. Waters v. Kassulke, 916 F.2d 329, 335 (6th Cir.1990); Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir.1988); Carter v. Jago, 637 F.2d 449, 457 (6th Cir.1980). The record fails to reflect that claim five warrants federal ha-beas corpus relief.

Petitioner objects to the Magistrate Judge’s recommendation of dismissal of claims eight and nine on the merits. He acknowledges that the United States Court of Appeals for the Sixth Circuit has held that a claim of cumulative error will not support habeas corpus relief, Scott v. Elo, 302 F.3d 598, 607 (6th Cir.2002) (citation omitted), but contends that the claim is nevertheless viable because the United States Supreme Court has yet to rule on the issue. Objections, at 974. Petitioner also contends that the Magistrate Judge accorded the state appellate court’s decision undue deference in consideration of claim nine. Neither of the foregoing arguments is persuasive. The Magistrate Judge properly referred to and applied the AEDPA in concluding that none of petitioner’s claims warranted relief in these habeas corpus proceedings. See 28 U.S.C. § 2254(d), (e); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

Petitioner objects to the Magistrate Judge’s recommendation of dismissal of claim seven based upon his failure to fairly present the claim to the state courts as a federal constitutional issue. He contends that the Magistrate Judge improperly sua sponte raised the issue of his waiver of this claim without providing him notice or an opportunity to respond. Further, petitioner asserts that he did fairly present to the state courts federal constitutional issues of denial of due process, a fair trial, and the effective assistance of counsel due to the trial court’s failure to make a timely ruling on his motion to compel disclosure of Claire Schneider’s diary. According to petitioner, fair presentment of the foregoing claims is established by the State’s reference to federal cases in response to petitioner’s appellate brief, and by the Court of Appeals’ decision reviewing the claim for harmless error. Petitioner’s arguments are not well taken.

Petitioner’s failure to fairly present his federal constitutional claims to the state courts preliminarily involves an issue under the doctrine of exhaustion.

As a necessary component of the exhaustion of state remedies doctrine, a petitioner’s claim must be “fairly presented” to the state courts before seeking relief in the federal courts. Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).

Whiting v. Burt, 395 F.3d 602, 612 (6th Cir.2005). The exhaustion requirement must be expressly waived by the respondent. 28 U.S.C. § 2254(b)(3). Additionally, exhaustion is properly raised sua sponte by the District Court. See Benoit v. Bock, 237 F.Supp.2d 804, 807 (E.D. Michigan 2003), citing 28 U.S.C. § 2254(b)(3); Rockwell v. Yukins, 217 F.3d 421, 423-24 (6th Cir.2000); Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir.1987). Further, a federal district court may in its discretion also sua sponte raise the issue of procedural default “generally after affording the petitioner an opportunity to respond.” Foti v. Bobby, 2007 WL 1577785 (N.D.Ohio May 31, 2007), citing Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir.2005); Lorraine v. Coyle, 291 F.3d 416, 426 (6th Cir.2002). Here, petitioner has been given the opportunity to respond to the Magistrate Judge’s recommendation of dismissal of claim seven in these objections to the Report and Recommendation.

Moreover, as discussed by the Magistrate Judge, petitioner did not refer to the United States Constitution, or a single federal case or state case relying on federal law in making his arguments to the state appellate court. Contrary to his allegation here, the record indicates that the state courts likewise reviewed his claim only for a violation of state law. Petitioner cannot claim that he fairly presented his claim to the state courts by the reference to due process and citations made in the prosecutor’s responsive brief.

Finally, petitioner objects to the Magistrate Judge’s recommendation of dismissal of claims five, six, ten, and eleven as procedurally defaulted. He again raises all of the same arguments in regard to these procedural defaults that he previously raised. For all the reasons discussed in detail in the Magistrate Judge’s Report and Recommendation, these objections likewise are not well taken.

Pursuant to 28 U.S.C. § 636(b)(1), this Court has conducted a de novo review of the Report and Recommendation. This Court has carefully considered the entire record, all of the cases referred to by petitioner, as well as all of the arguments presented herein. For all the foregoing reasons, and for the reasons discussed in the Magistrate Judge’s Report and Recommendation, petitioner’s objections are OVERRULED. The record fails to indicate that petitioner is entitled to federal habeas corpus relief. The Report and Recommendation is ADOPTED and AFFIRMED and this action is hereby DISMISSED.

The Clerk shall enter FINAL JUDGMENT in this action.

IT IS SO ORDERED.

ORDER and REPORT AND RECOMMENDATION

NORAH McCANN KING, United States Magistrate Judge.

Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the amended petition, respondent’s return of writ, petitioner’s traverse, and the exhibits of the parties.

For the reasons that follow, petitioner’s motion for an order directing respondent to supplement and expand the record, Doc. No. 35, is DENIED; the Magistrate Judge RECOMMENDS that this action be DISMISSED.

REQUEST TO SUPPLEMENT AND EXPAND THE RECORD

Petitioner requests the Court to direct respondent to supplement the record with the supplemental transcripts filed in the Ohio Court of Appeals on March 25, 2003, and April 3, 2003, in connection with habeas corpus claims one and two, in which petitioner asserts that he was denied a fair trial because his statements to police were improperly submitted to the jury. Both of these transcripts have already been made a part of the record before this Court. See Transcripts, manually filed, Doc. No. 9. Petitioner’s request for supplementation of the record with the transcripts is therefore DENIED as moot.

Petitioner also requests expansion of the record to include a copy of Claire Schneider’s journal or diary (Court’s Exhibit 1); video recordings belonging to petitioner and Claire Schneider that were removed from the apartment by Claire’s family (Court’s Exhibits 2 and 3); and the videotape of petitioner’s statement to police (Joint Exhibit 1). Motion to Expand Record, at 3. Petitioner states that Claire Schneider’s diary is material to this Court’s consideration of habeas corpus claim seven, in which he asserts that he was denied due process, a fair trial and the right to the effective assistance of counsel because the trial court failed to issue a timely ruling on his motion to compel disclosure of the diary. However, for the reasons that follow, the Magistrate Judge concludes that petitioner failed to fairly present the federal constitutional issue(s) raised in claim seven to the state courts, and recommends dismissal of the claim on that basis. Therefore, review of the diary is not required. Petitioner contends that review of the video recordings are material to this Court’s consideration of habeas corpus claim eleven, in which he asserts the ineffective assistance of appellate counsel. However, for the reasons that follow, the Magistrate Judge concludes that claim eleven is procedurally defaulted. Therefore, review of the video recordings is likewise not required. Finally, petitioner states that review of the videotape of his statement to police is needed for resolution of habeas corpus claims one and two, in which he asserts that his statement was unconstitutionally obtained by police and submitted as evidence against him at trial. However, the transcripts of those videotaped statements are already a part of the record before this Court. Petitioner does not identify, and this Court is unable to discern from the record, any additional support that the videotape of his statement would provide for his claims that the transcripts of the police interview do not. Therefore, petitioner’s request for expansion of the record is DENIED.

I. FACTS AND PROCEDURAL HISTORY

The facts and procedural history are detailed in this Court’s Report and Recommendation, July 19, 2007, Doc. No. 29, but will be repeated here. The Ohio Tenth District Court of Appeals summarized the facts and procedural history of this case as follows:

On January 9, 2002, defendant was indicted by a Franklin County Grand Jury on one count of murder with a firearm specification, in violation of R.C. 2903.02 and 2941.145, respectively, and one count of tampering with evidence in violation of R.C. 2921.12. Prior to trial, defendant’s motion to suppress statements made by defendant was denied. A jury trial commenced on June 3, 2002. Following opening statements, the court, on motion of defendant, dismissed the tampering with evidence count. The court’s oral decision was reaffirmed in a subsequently filed written decision. After a three-week trial, the jury returned a verdict finding defendant guilty of murder with a firearm specification. The trial court sentenced defendant to 15 years to life on the murder charge, with an additional three years incarceration on the firearm specification. Thereafter, defendant filed a motion for judgment of acquittal or, in the alternative, motion for new trial, to which the state responded. By decision and entry filed August 13, 2002, the trial court denied defendant’s motion without a hearing. Claire Schneider began dating defendant in the fall of 1999. Defendant was divorced from his ex-wife, Natasha Tol-liver, with whom he shared custody of their young daughter. Claire, a student at The Ohio State University (“OSU”) and a part-time nail technician, moved into Apartment 120 in the Olentangy Village Apartment complex located at 100 North Street, Columbus, Ohio, in January 2001. Defendant began living with Claire in September 2001. Claire and defendant planned to move out of the apartment and into a house, once defendant’s extensive remodeling of the house was completed in January 2002. Claire obtained a loan to purchase the house.

Claire had been accepted into OSU’s Program in International Development and was scheduled to study in the Dominican Republic from January 5, 2002 to February 16, 2002. Defendant was scheduled to meet Claire in the Dominican Republic at the conclusion of the program and spend a week vacationing with her. Claire told both her father, Walter Schneider, and her friend and coworker, Gail Isenberg Hayes, that she was excited about the upcoming trip. She never mentioned to either of them that she had any plans to marry defendant.

In August 2001, Claire went to Dr. Stanley McCloy complaining of sleeping difficulty, nightmares, panic attacks and an inability to concentrate. Dr. McCloy diagnosed moderate depression and prescribed Paxil. Pharmacy records indicated that Claire’s Paxil prescription was last filled on November 24, 2001.

On December 28, 2001, Claire attended the closing on the house. Problems arose with some of the documentation, so the transaction was not completed.

Around 12:00 a.m. on December 29, 2001, Claire and defendant had drinks at a restaurant with a friend and later went to a nearby nightclub. At one point, Claire’s co-worker, Abby Warner, noticed Claire and defendant dancing together; however, Warner later saw Claire dancing without defendant. Warner noticed that defendant was watching Claire as if he were angry.

Collin Bumgarner, the manager of the nightclub, saw defendant and Claire leave the nightclub and walk to defendant’s vehicle. The couple attracted Bumgarner’s attention because they were speaking loudly to one another; however, Bumgarner did not view the incident as alarming.

Defendant and Claire returned to the apartment at approximately 12:36 a.m. Approximately five minutes later, defendant, wearing a light-colored shirt, exited the apartment building and searched the parking lot with a flashlight. He returned, to the building approximately four minutes later.

At 1:15 a.m., Janet Parady, who resided in Apartment 220, was awakened to a man screaming “No, No. Don’t, don’t. Oh, please. Please.” (Vol.- I, Tr. 76.) She called 911 and reported that she thought the screaming came from Apartment 320, the apartment directly above her. She further reported that the people who lived in apartment 320 had been fighting for approximately one-half hour, and that it sounded like someone had fallen down.

Columbus Police Officer David Shots responded to Parady’s 911 call at 1:18 a.m. While he was in Parady’s apartment, he heard a noise that sounded like “moaning or crying.” (Vol. I, Tr. 139.) He could not determine what the sound was or where it originated, so he conducted no further investigation. Because Para-dy reported that the earlier disturbance came from Apartment 320, Shots proceeded there. In response to questioning by Shots, the occupants denied that any arguing or fighting had occurred. At approximately 1:45 a.m., Natasha Tolliver received a telephone call from defendant. Defendant was sobbing and told Natasha that if she ever loved him, she would come to his apartment immediately. Natasha put her daughter in her car and drove to the apartment complex at approximately 1:55 a.m. When she arrived at defendant’s apartment, she saw blood smeared on the front door. Defendant was dressed in a blood-stained bathrobe and had blood on his hands and legs. She also noticed blood on the living room wall and kitchen floor. Natasha told defendant she was going to take their daughter back to the car. Defendant followed her outside. When she asked defendant what had happened, he told her that he was “really in trouble.” (Vol. XII, Tr. 1727.) Natasha told defendant to call the police. Defendant was crying so hysterically that Natasha thought he was having a breakdown. Defendant said he was going to kill himself and that he wanted to see his daughter. Natasha called 911 and reported what had happened. She then drove to the other side of the parking lot because she was afraid defendant might kill himself in front of then-daughter.

Peter Kovarik, the resident of Apartment 215, returned to the apartment complex at approximately 2:00 a.m. As he walked inside the building, he noticed defendant, dressed in a bathrobe, standing in the hallway outside Apartment 117. Defendant seemed startled to see Kovarik and ducked into the alcove outside Apartment 117. Seconds later, defendant stepped out from the alcove and asked Kovarik “how’s it going?” (Vol. I, Tr. 107.) In response, Kovarik asked defendant “how is it going with you?” Defendant responded “good.” (Vol. I, Tr. 108.) According to Kovarik, defendant did not act as if he were upset about anything and did not ask him for assistance.

Officers Shots and Paul Coulter responded to Natasha’s 911 call between 2:00 and 2:05 a.m. Natasha met the officers outside the building and reiterated what she had reported in her 911 call. Thereafter, the officers proceeded to defendant’s apartment. Defendant emerged from the apartment, dressed only in a bathrobe. The bathrobe had blood on it, as did defendant’s feet and legs. Defendant was talking on a cell phone (later determined to be Claire’s) and holding a bloody dishtowel. Defendant told the officers, “[s]he shot herself.” (Vol. I, Tr. 149.) According to both Shots and Coulter, the door to Apartment 117 had smeared blood on it, as if someone had tried to wipe blood off the door. There was also blood spatter on the door jamb of Apartment 117. Defendant was immediately handcuffed and placed in Shots’ cruiser. Defendant said, “I can’t believe she did this. She has only held a gun-she has never even held a gun.” (Vol. I, Tr. 152.) Defendant then started to cry and said “her dad is going to be mad at me.” Id. Defendant also averred that he could not find a telephone. Defendant ultimately fell asleep in the cruiser and was thereafter transported to the police station. While searching the apartment, Officer Coulter found blood on the walls and floor, as well as on several items in the apartment. An overturned floor lamp and potted plant lay on the living room floor. Coulter discovered Claire’s dead body lying face-up on the bathroom floor on top of a black nylon jacket. Her arms were partially inside the sleeves of the jacket, which was saturated with blood. A blood-covered 9mm Ruger semiautomatic pistol, an envelope containing $3, and a handwritten note were found on the vanity in the bathroom. The note said “she did not know gun was loaded. I loved her. Could not find the phone.” (Vol. II, Tr. 308, State’s Exhibits D120, D121, E12.) Inside the sink lay two live shells and the gun’s magazine clip containing 12 live shells. The gun did not contain a live round in the chamber. The bathroom door contained a single bullet hole that had several strands of hair attached to it. A spent 9mm shell casing was found in the hallway just outside the bathroom. A spent 9mm bullet was found behind the door in the bathroom. Two pens and a semiautomatic weapon magazine clip containing live rounds of ammunition were found underneath Claire’s body. Columbus Police Detective Robert Vidu-ya arrived at the scene after defendant was secured in the cruiser. Viduya instructed the transport officers not to allow defendant to go to the bathroom at the police station, so that blood evidence on defendant’s body could be collected. Photographs taken of defendant at the police station show blood on defendant’s face, legs and feet; however, no blood appears on defendant’s hands.

A videotaped interview of defendant was conducted at the police station. The substance of the interview will be discussed below.

Columbus Police Crime Scene Search Unit Detectives Thomas Seevers and Mark Henson processed the scene on December 29, 30 and 31, 2001. Over the course of three days, 181 photographs were taken and 23 bags of evidence were collected. Seevers noted that that there was no land line telephone in the apartment. No fingerprint lifts were taken from the bullets found in the bathroom, nor was the gun checked for latent fingerprints. No gunshot residue analysis was performed on Claire because gunshot victims are assumed to have residue on them. No gunshot residue analysis was performed on defendant due to defendant’s close proximity to Claire at the time of the shooting and because defendant said he had washed his hands. Two cell phones were recovered from defendant’s vehicle, which was in the parking lot adjacent to the building. Claire’s wallet was recovered from the parking lot.

After the police completed processing the scene, the locks on the apartment were changed. The only persons with keys to the apartment were apartment manager Molly Bringarner and maintenance supervisor Kenneth Smith. On January 7, 2002, two employees of Serv-pro, a biohazard cleanup company, were permitted entrance to clean the apartment of blood residue. An insurance claims representative was also permitted access to the apartment on January 7, 2002 to assess damage.

On January 9, 2002, Claire’s stepmother, Amy Schneider, and Claire’s aunt, Teresa Reid, went to the apartment to sort and pack items in preparation for removing them. While sorting through clothes in the master bedroom, Reid discovered a pair of men’s black slacks with blood on the inside of one of the pockets lying on the floor, and a man’s white dress shirt with blood on it near the bottom of a clothes hamper, underneath some other clothes. Because she assumed the police had retrieved everything they needed from the apartment, Reid placed the items in two separate garbage bags and left them in the apartment. Later that day, Reid informed Claire’s father, Walter Schneider, of her discovery. After conferring with the police and one of the prosecutors, Mr. Schneider contacted Reid and asked her to meet him at the apartment the next day. Mr. Schneider retrieved the items from Reid when the two met at the apartment on January 10, 2002. While in the apartment, Mr. Schneider noticed blood on a pair of defendant’s black boots; however, he did not retrieve the boots at that time. Mr. Schneider put the slacks and shirt in the back of his vehicle. On January 13, 2002, Mr. Schneider asked his son-in-law to retrieve the boots from the apartment. After the son-in-law retrieved the boots, Mr. Schneider stored the slacks, shirt and boots in the basement of his home. Later that evening, Mr. Schneider contacted the police. Detective Michael Cone retrieved the items from Mr. Schneider’s residence and submitted them to the Columbus Police Department (“CPD”) property room.

Keith Norton, forensic pathologist and deputy coroner at the Franklin County Coroner’s office, performed an autopsy on Claire. During the autopsy, Norton discovered several contusions on Claire’s legs and several small abrasions on the right side of her face near her mouth. He also discovered an abrasion and a contusion on the left side of Claire’s neck which he estimated to be less than 48-hours old. He further discovered that the right side of Claire’s lips were severely burned. There was no damage to Claire’s front teeth, but several of the back teeth on the upper right side of Claire’s mouth had been fractured. Based on the damage to Claire’s teeth and lips, Norton determined that the bullet entered the corner of the right side of Claire’s mouth, and that her mouth was open when the bullet entered. Norton could not visualize the entrance wound in the back of the mouth because it was so far back; however, he could see the exit wound in the back of the neck. Norton determined that the trajectory of the bullet was front to back, slightly left to right, and upward.

A toxicology screen of Claire’s blood measured 0.16 grams of alcohol; no other drugs were found. Norton concluded that the cause of death was a loose contact wound to the head; however, he could not determine the manner of death, as it was unclear whether it was suicide or homicide. Norton found it unlikely that Claire’s death was an accident due to the proximity of the gun to her mouth at the time the gun was discharged. According to Norton, it would have been an unusual form of suicide to have fired a weapon from outside the mouth into the mouth. He conceded, however, that Claire, who was left-handed, could have caused the wound if she held the gun in her left hand. He estimated that after sustaining the gunshot wound, Claire would have become unconscious within seconds and would have died within 30 minutes. He also reported that the autopsy findings were not inconsistent with cardiopulmonary resuscitation (“CPR”) having been performed.

Columbus Police Criminalist Amoreena Clarkson performed a blood analysis of several items of evidence. Claire’s blood was confirmed to be present on a dishtowel, gloves, paper towel, defendant’s bathrobe, defendant’s body, the magazine clip, white shirt, black slacks and black boots.

Columbus Police Detective and bloodstain expert Robert Young viewed the crime scene on December 30, 2001. He also reviewed photographs of the crime scene, laboratory reports, police reports, and defendant’s statement. Young noted diluted blood droplets in the kitchen, which indicated that some cleanup effort had occurred. He also identified several blood transfer stains on Claire’s body which Young opined were made by the repositioning of her body after her death. Young determined that Claire had been shot while standing in the bathroom and that the bullet passed through the bathroom door approximately 62 inches from the floor. He further determined that because the pen used to write the note discovered on the sink was found under Claire’s body, defendant repositioned Claire’s body on top of the pen after she was shot.

Young also noted 18 impact spatterings on the right forearm of the white shirt found in the clothes hamper. According to Young, the entrance wound in Claire’s mouth produced high velocity back spatter, which landed on the right sleeve of the shirt, demonstrating that the shirt was in close proximity to Claire’s face at the instant she was shot. Impact droplets in the button line on the front of the shirt indicated that the shirt was worn unbuttoned at the time of the spattering. Young candidly admitted that he did not think the shooting was a homicide until he saw photographs of the shirt. Young conceded that expirated blood from Claire’s mouth or nose expelled during CPR might appear as high velocity spatter, but he did not believe that the bloodstains on the shirt were expirated. Young concurred in Norton’s opinion that the fact that only Claire’s back teeth sustained damage indicated that her mouth was open at the time she was shot. Young agreed that the blood spat-terings found on the shirt are consistent with the theory that someone fired the gun with the left hand while holding Claire by the throat with the right hand. Young conceded, however, that the blood spatter evidence did not provide a direct indication of who fired the gun.

Columbus Police Criminalist and ballistics expert Mark Hardy examined both the shell casing and spent bullet found in the bathroom and determined that the bullet had been fired from the 9mm weapon found at the scene. Hardy further determined that the gun was capable of being fired without the magazine clip being inserted.

Hardy further determined that the gun was fired so close to Claire’s mouth that the gasses projected out of the muzzle burned Claire’s lips. Using a transparent overlay that showed the forward face of the gun, and placing that overlay over a photograph of the burned area on the right side of Claire’s mouth, Hardy determined the orientation of the gun when it was fired. An unburned area on the right corner of Claire’s mouth showed that the gun had been in contact with her mouth and that the recoil guide of the weapon had protected the corner of her mouth from the hot outgassing that otherwise burned her lips. Hardy determined that the gun was positioned on its side with the butt of the gun facing to the left; in other words, the gun was turned 90 degrees clockwise. Defense bloodstain expert Stuart James determined that Claire was standing no more than 6 to 12 inches from the bathroom door when she was shot. With regard to the bloodstain spatters on the white shirt, James concluded that it was impossible to state with scientific certainty whether the spatters were produced by gunshot back spatter.

Claire’s cell phone records demonstrate that between 1:29 and 2:15 a.m. on December 29, 2001, seven calls were made to Natasha Tolliver’s cell phone, one call was made to Claire’s cell phone, one call was made to defendant’s cell phone, and one call was made to a friend of defendant.

While defendant was awaiting trial, he was confined with an inmate named Joseph Adams. After Adams discovered that defendant had been charged with murder, he decided to try to coerce defendant into revealing details about the murder so that he could then provide that information to the state in exchange for a reduction in his sentence. After Adams provided the information obtained from defendant, the state agreed to an eight-year reduction in Adams’ 16-year sentence in exchange for his testimony. Adams testified that he obtained all the details about the murder from defendant and did not get any details from the prosecutor, the police, or television news.

According to Adams, defendant told him that Claire worked as a nail technician and that she was going to study in the Dominican Republic. Defendant said he did not want Claire to go to the Dominican Republic because he might lose her. He also told Adams that they were preparing to move into a house and that they were planning to get married in the Dominican Republic.

Adams testified that defendant initially told him that Claire was depressed and committed suicide by shooting herself in the chest. He later admitted that a discussion about her finalizing plans for her trip led him to 'kill her with a 9mm weapon. Defendant initially said that he did not call 911 immediately because he was in shock. However, he later confessed that he did not call 911 because he had to get rid of evidence, move the body to make it look like Claire killed herself, and get blood on himself to make it look like he had held her. Defendant also told Adams that his defense would be that Claire killed herself and he would look remorseful and cry in front of the jury so they would believe him.

An inmate incarcerated with defendant and Adams, David Dye, testified on behalf of defendant. According to Dye, Adams approached him prior to defendant’s trial and asked him if he wanted to testify against defendant in order to “help myself (Dye) out.” (Vol. XII, Tr. 1670.) Dye told Adams that he could not testify against defendant because he did not know anything about defendant’s case. He further stated that although Adams never told him he had made up the story about defendant, Dye got the impression that Adams had done so.

State v. Tolliver, 2004 WL 625683 (Ohio App. 10 Dist. March 30, 2004), Exhibit F to Return of Writ. Represented by the same counsel, petitioner filed a timely appeal. He raised the following assignments of error:

[I.] THE TRIAL COURT ERRED IN FAILING TO SUPPRESS APPELLANT’S STATEMENTS DURING HIS CUSTODIAL INTERROGATION WHERE THE STATEMENTS WERE TAKEN IN VIOLATION OF MIRANDA v. ARIZONA (1966), 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694.

[II.] THE CONVICTION OF THE DEFENDANT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THERE WAS INSUFFICIENT EVIDENCE OF A PURPOSEFUL KILLING.

[III.] DEFENDANT’S FIFTH AMENDMENT RIGHTS WERE VIOLATED WHEN THE PROSECUTION ARGUED THAT DEFENDANT’S INVOCATION OF HIS RIGHT TO SILENCE INDICATED THAT HE WAS GUILTY. THIS VIOLATED DEFENDANT’S RIGHTS AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS UNDER THE U.S. CONSTITUTION AND ARTICLE 2, § 2, 10 AND 16 OF THE OHIO CONSTITUTION.

[IV.] THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY ALLOWING ADMISSION OF THE WHITE SHIRT WHEN THERE WAS AN INSUFFICIENT CHAIN OF CUSTODY AND THE SHIRT WAS MORE PREJUDICIAL THAN PROBATIVE THEREBY DENYING DEFENDANT HIS RIGHTS TO DUE PROCESS, AND A FAIR TRIAL UNDER THE STATE AND FEDERAL CONSTITUTIONS.

[V.] A DEFENDANT IS DENIED HIS RIGHTS TO A FAIR TRIAL, DUE PROCESS AND A RELIABLE DETERMINATION OF HIS GUILT AND SENTENCE AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION WHEN THE PROSECUTOR REPEATEDLY ENGAGES IN IMPROPER ARGUMENT AND OTHER MISCONDUCT.

[VL] THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN REFUSING THE DEFENSE ACCESS TO CLAIRE SCHNEIDER’S DIARY, COURT EXHIBIT 1, PARTICULARLY AFTER THE PROSECUTOR PRESENTED EVIDENCE IN DIRECT CONTRAST TO ENTRIES IN THE DIARY.

[VII.] THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO GRANT AN EVIDEN-TIARY HEARING ON THE MOTION FOR NEW TRIAL.

[VIII], A CONVICTION MUST BE REVERSED WHEN THE CUMULATIVE EFFECT OF ERRORS DEPRIVES A DEFENDANT OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

Id. On March 30, 2004, the appellate court affirmed the trial court’s judgment. Id. Still represented by counsel, petitioner filed a timely appeal to the Ohio Supreme Court. He raised the following propositions of law:

1. A defendant’s statements in response to express questioning during custodial interrogation must be suppressed when there are no Miranda warnings and no voluntary, knowing and intelligent waiver of the right against self-incrimination as they violate the Fifth and Fourteenth Amendments to the United States Constitution.

2. The use of statements made by a defendant after his request for an attorney violates the Fifth and Fourteenth Amendments to the United States Constitution.

3. Defendant’s Fifth Amendment rights were violated when the prosecution argued that defendant’s invocation of his right to silence indicated that he was guilty. This violated defendant’s rights as guaranteed by the Fifth, Sixth and Fourteenth Amendments under the U.S. Constitution and Article 2, § 2, 10 and 16 of the Ohio Constitution. Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91.

4. Counsel’s failure to object to the Doyle v. Ohio error was ineffective assistance of counsel and violated appellant’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

5. Admission of evidence when there is an insufficient chain of custody and the evidence is more prejudicial than probative denies a defendant his rights to due process, and a fair trial under the state and federal constitutions.

6. A defendant is denied his rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution when the prosecutor repeatedly engages in improper argument and other misconduct.

7. A court denies due process, a fair trial and the effective assistance of counsel as guaranteed by the U.S. Constitution when it withholds material information and documents available to the prosecution from the defense.

8. A conviction must be reversed when the cumulative effect of errors deprives a defendant of his state and federal constitutional right to a fair trial.

Exhibit G to Return of Writ. On August 4, 2004, the Ohio Supreme Court declined jurisdiction to hear the case and dismissed the appeal. Exhibit I to Return of Writ. Petitioner filed a motion for reconsideration. On September 29, 2004, the Ohio Supreme Court denied the motion. Exhibits J and K to Return of Writ.

Meanwhile, on June 9, 2003, petitioner filed a pro se petition for post conviction relief with the state trial court. He asserted the following claims:

1.' Counsels’ ineffectiveness in failing to introduce evidence of “Paxil withdrawal syndrome” to show the victim Claire Schneider committed suicide.

2. Ineffectiveness in failing to have the white shirt tested for gun shot residue.

3. Ineffectiveness in failing to have the brown coat tested for gun residue.

4. Ineffectiveness in failing to elicit evidence from Claire’s family members regarding Claire’s emotional state.

5. Actual innocence.

See Exhibits L and N to Return of Writ. On May 7, 2004, the trial court denied the petition. Exhibit N to Return of Writ. Petitioner filed a timely appeal. He asserted the following claims:

I. THE TRIAL COURT ERRED IN NOT HOLDING AN EVIDENTIARY HEARING PURSUANT TO R.C. 2953.21(E); AND 2953.22.

II. THE TRIAL COURT ERRED IN FINDING THE CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WAS BARRED BY DOCTRINE OF RES JUDICATA, [sic] WHEN SUCH EVIDENCE THAT COUNSEL FAILED TO INVESTIGATE DEHOURED [sic] THE TRIAL RECORD IN ITS ENTIRETY.

See State v. Tolliver, 2005 WL 534897 (Ohio App. 10 Dist. March 8, 2005), Exhibit R to Return of Writ. On March 8, 2005, the appellate court affirmed the trial court’s dismissal. Petitioner filed a timely appeal to the Ohio Supreme Court in which he raised the following propositions of law:

1. The trial court erred in not holding an evidentiary hearing pursuant to R.C. 2953.21(E).

2.The trial court erred in finding the claim of ineffective assistance of trial counsel’s failure to investigate pre-trial to be barred by res judicata.

Exhibit S to Return of Writ. On August 10, 2005, the Ohio Supreme Court declined jurisdiction to hear the ease and dismissed the appeal as not involving any substantial constitutional question. Exhibit U to Return of Writ

Additionally, on December 29, 2004, petitioner filed a delayed application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). Exhibit V to Return of Writ. On May 5, 2005, the appellate court denied petitioner’s delayed application as untimely. Exhibit Y to Return of Writ. Petitioner filed a motion for reconsideration, which motion was denied. Exhibits Z and BB to Return of Writ. Petitioner filed a timely appeal to the Ohio Supreme Court; however, on August 10, 2005, the Ohio Supreme Court dismissed the appeal as not involving any substantial constitutional question. Exhibits CC and EE to Return of Writ.

Represented by the Ohio Public Defender, on December 28, 2005, petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the respondent in violation of the Constitution of the United States based upon the following grounds:

1. Mr. Tolliver’s rights under the Fifth and Fourteenth Amendments to the United States Constitution were violated when the trial court failed to suppress, and the State presented to the jury, Mr. Tolliver’s statements made in response to express questioning that occurred during custodial interrogation conducted without the benefit of Miranda warnings and in the absence of a voluntary, knowing and intelligent waiver of Mr. Tolliver’s right against self-incrimination.

2. Mr. Tolliver’s rights under the Fifth and Fourteenth Amendments to the United States Constitution were violated when the trial court failed to suppress, and the State presented to the jury, statements Mr. Tolliver made after his request for an attorney.

3. Mr. Tolliver’s rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution were violated when the prosecution argued that Mr. Tolliver’s invocation of his right to remain silent indicated that he was guilty.

4. Mr. Tolliver’s right to the effective assistance of trial counsel was violated when counsel failed to lodge a contemporaneous objection to the State’s use of Mr. Tolliver’s invocation of his right to remain silent to infer his guilt.

5. Mr. Tolliver was denied his federal constitutional rights to due process and a fair trial when the trial court allowed the admission of physical evidence that was the product of a highly unreliable chain of custody and unduly prejudicial to Mr. Tolliver.

6. Mr. Tolliver was denied his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution when the prosecutor repeatedly engaged in improper argument and other misconduct.

7. Mr. Tolliver’s rights to due process, a fair trial, and the effective assistance of counsel were denied by the trial court’s withholding from the defense material information and documents that were available to the prosecution.

8. The cumulative effect of trial error violated Mr. Tolliver’s rights due process and a fair trial.

9. Mr. Tolliver’s trial counsel were constitutionally ineffective in failing to procure and present additional evidence and argument concerning Paxil, Paxil Withdrawal Syndrome, Claire Schneider’s medical and psychological history, and the relationship of these matters to Claire Schneider’s death.

10. Mr. Tolliver’s trial counsel were constitutionally ineffective in failing to have the white shirt and the brown coat tested for gunshot residue.

11. Mr. Tolliver’s appellate counsel provided constitutionally ineffective assistance in failing to raise two assignments of error:

1. Counsel provided constitutionally deficient performance and was ineffective in failing to identify the state’s witness Joseph Adams as an agent of the state and attacking his questioning of the defendant as reinterrogation or secret interrogation....

2. Counsel provided constitutionally deficient performance and was ineffective in failing to recognize the defendant was not present at a critical stage of the trial proceedings....

On November 6, 2006, petitioner filed a motion to amend the petition to include an unexhausted claim that he was denied the right to present a defense. Doc. No. 19. The Court granted petitioner’s request, but denied his request for a stay pending exhaustion as improper under Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). Doc. No. 29. On August 28, 2007, the Court granted petitioner’s subsequent request to delete his unexhausted claim and proceed on the remaining exhausted claims in lieu of dismissal of the petition as unexhausted. Doc. Nos. 32-33.

It is the position of the respondent that claims four through six, ten and eleven are procedurally defaulted, and that the remainder of petitioner’s claims are without merit.

II. PROCEDURAL DEFAULT

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

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

In claim four, petitioner asserts that he was denied the effective assistance of trial counsel because his attorney failed to object to comments by the prosecutor during closing argument, allegedly in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). According to respondent, this claim has been waived because petitioner failed to assert the claim on direct appeal; however, the record indicates that, although petitioner did not present the claim as an assignment of error on appeal, he did argue in his appellate brief (in support of his claim that he was denied a fair trial by the prosecutor’s Doyle violation) that, should the appellate court conclude the claim had been waived due to his failure to object at trial or fail to find plain error, he also asserted the ineffective assistance of counsel for failing to object to the error. See Appellate Brief, Exhibit C to Return of Writ, at 37. Thereafter, petitioner asserted the ineffective assistance of counsel due to his attorney’s failure to object to the prosecutor’s comment in proposition of law IV before the Ohio Supreme Court. See Exhibit G to Return of Writ. Thus, he appears to have preserved claim four for federal ha-beas corpus review. In any event, however, and for reasons discussed infra, the claim is without merit.

In claim five, petitioner asserts that he was denied a fair trial by admission of physical evidence, ie., a white shirt, that was the product of a “highly unreliable chain of custody” and unduly prejudicial. Petition, at 5. Respondent contends that petitioner has waived this claim by failing to object to admission of the shirt on that basis at trial. The state appellate court therefore reviewed the claim for plain error only:

[Defendant contends that the trial court abused its discretion in admitting the white shirt into evidence without the state having maintained a proper chain of custody. Defendant also maintains that the probative value of the shirt was substantially outweighed by the danger of unfair prejudice, resulting in the denial of a fair trial to defendant.

Defendant ... contends, pursuant to Evid.R. 403(A), that the trial court erred in admitting the shirt because its probative value was substantially outweighed by the danger of unfair prejudice.

Evid.R. 403(A) provides that, “[a]l-though relevant, evidence is not admissible if the probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.”

Initially, we note that defendant’s trial counsel objected to the admission of the shirt only on the ground that the chain of custody was not properly established. Therefore, a reversal on the ground that the shirt was inadmissible under Evid.R. 403(A) is proper only if it was plain error. Plain error is an obvious error that affects a substantial right. It does not exist unless it can be said that, but for the error, the outcome of the trial court clearly would have been otherwise. State v. Yarbrough, 95 Ohio St.3d 227, 767 N.E.2d 216, 2002-Ohio-2126, at ¶ 139.

Based upon a review of the entire record, we cannot say the result of the trial would clearly have been different without the admission of the shirt. As we have previously noted, other evidence supports defendant’s conviction. The fourth assignment of error is not well taken, and is overruled.

State v. Tolliver, 2004 WL 625683 (Ohio App. 10th District March 30, 2004), Exhibit F to Return of Writ.

Petitioner, however, contends that his claim that admission of the white shirt was unduly prejudicial may properly be considered in these habeas corpus proceedings because the state court’s plain error review was not independent of federal law and fails the third part of the Maupin test.

This Court is not persuaded by petitioner’s argument. The United States Court of Appeals for the Sixth Circuit has held that plain error review does not constitute a waiver of the state’s procedural default rules. Seymour v. Walker, 224 F.3d 542, 557 (6th Cir.2000). As explained by the United States District Court for the Northern District of Ohio in Adams v. Bradshaw, 484 F.Supp.2d 753, 771 (N.D.Ohio 2007):

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; Hinkle, 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)).

Id. This Court therefore likewise concludes that petitioner has waived the right to present claim five in these habeas corpus proceedings.

In claim six, petitioner asserts that he was denied a fair trial due to prosecutorial misconduct. Again, petitioner properly raised this claim on direct appeal; however, Ohio’s Tenth District Court of Appeals reviewed the claim only for plain error due to petitioner’s failure to object at trial:

Defendant’s claims of prosecutorial misconduct pertain to the prosecutor’s closing arguments. We note initially that defendant failed to object to any of the challenged statements; accordingly, defendant has waived all but plain error. State v. Slagle (1992), 65 Ohio St.3d 597, 604, 605 N.E.2d 916.

State v. Tolliver, supra; Exhibit F to Return of Writ.

Still, petitioner contends that claim six is properly considered in these habeas corpus proceedings because the Court of Appeals went on to address the merits of his claim of prosecutorial misconduct and did not clearly and expressly enforce any procedural bar, thus failing the second part of Maupin. Traverse, at 30-31. This Court is not persuaded by petitioner’s argument.

Under the second prong of the Mawpin analysis, the court must actually rely on the procedural bar as an independent basis for its disposition of the case. Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); see also Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (The last state court rendering a reasoned judgment on the matter must “clearly and expressly” state that its judgment rests on such a procedural bar for the doctrine of procedural default to apply). However, the court may actually enforce its procedural sanction and still review the merits of the case, as long as the decision on the merits is considered an alternative holding. See Bowling v. Parker, 344 F.3d 487, 2003 FED App. 0330P (6th Cir. Sept.17, 2003); see also Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989)[.]

Gooden v. Jeffreys, 2005 WL 2002362 (N.D.Ohio 2005). In Harris v. Reed, supra, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308, the Supreme Court noted that a state court “need not fear reaching the merits of a federal claim as an alternative holding.” Such were the circumstances here.

The cases referred to by petitioner in support of his argument to the contrary do not assist him. In Clinkscale v. Carter, 375 F.3d 430, 441 (6th Cir.2004), the Ohio Court of Appeals declined to reach the merits of a claim of ineffective assistance of counsel due to its preference that the claim be raised in post conviction proceedings. The United States Court of Appeals for the Sixth Circuit concluded that no procedural default had occurred, stating that the petitioner had properly raised his claim on direct appeal and that

The Ohio Court of Appeals’ decision denying relief does not even mention an applicable procedural rule, let alone “clearly and expressly state [] that its judgment rests on a state procedural bar.” Frazier, 343 F.3d at 791 (quoting Harris, 489 U.S. at 263, 109 S.Ct. 1038, 103 L.Ed.2d 308). Therefore, not even the first Maupin procedural default factor is satisfied.

Id. Such are not the circumstances here. Similarly, in Patterson v. Haskins, 316 F.3d 596, 605 (6th Cir.2003), the Sixth Circuit concluded that no procedural default had occurred where “the Ohio Court of Appeals made no mention of Patterson’s failure to object to the jury instructions during trial” in its dismissal of the claim on its merits, stating “the court did not commit error, plain or otherwise in giving of the jury instructions.” Id. (emphasis in original.) Finally, Frazier v. Huffman, 343 F.3d 780, 791 (6th Cir.2003), also involved the Ohio Supreme Court’s merits review of the issue being presented. For all the foregoing reasons, this Court deems the first and second parts of the Maupin test to have been met as to claim six. Moreover, because Ohio’s contemporaneous objection rule constitutes an adequate and independent state ground barring federal review, see Williams v. Bagley, supra, 380 F.3d at 968, this Court concludes that the third part of the Maupin test has also been met.

In claim ten, petitioner asserts that he was denied the effective assistance of counsel because his attorney failed to test evidence, i.e. a white shirt and brown coat, for gunshot residue. This claim is readily apparent from the face of the record and should have been raised on direct appeal, but was not. See Exhibit F to Return of Writ. Further, petitioner may now no longer present this claim to the state courts under Ohio’s doctrine of res judicata. See State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982); State v. Ishmail, 67 Ohio St.2d 16, 423 N.E.2d 1068 (1981); State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Petitioner did raise the claim in post conviction proceedings; however, the state appellate court affirmed the trial court’s dismissal of the claim as barred under Ohio’s doctrine of res judicata:

Here, the trial court applied res judicata to deny appellant’s ineffective assistance of counsel claims related to trial counsel’s failure to: (1) test the coat and white shirt for gunshot residue, and (2) elicit evidence from Schneider’s family regarding her emotional state before her death. We rejected these arguments above, noting appellant’s insufficient conclusory allegations and referencing trial counsel’s effective performance. Thus, Cole justifies the trial court’s application of res judicata on these claims.

Exhibit R to Return of Writ. This Court therefore deems the first and second parts of the Maupin test to have been met as to claim ten.

The Court must now determine whether the procedural rule barring review of claim ten constitutes an adequate and independent basis upon which to foreclose review of the his federal constitutional claim. This task requires the Court to balance the state’s interests behind the procedural rules against the federal interest in reviewing federal claims. See Maupin v. Smith, 785 F.2d at 138. Under this analysis, the procedural rule barring claim ten constitutes adequate and independent state grounds for denying relief. The state courts must be given a full and fair opportunity to remedy alleged constitutional defects. The time limitations for filing appeals and the requirement that all available claims be asserted at the first opportunity to do so serve the state’s interests in finality and in ensuring that claims are adjudicated at the earliest possible opportunity. Additionally, the doctrine of res judicata is stated in unmistakable terms in numerous Ohio decisions and Ohio courts have consistently refused to review claims on the merits under that doctrine. See State v. Cole, supra; State v. Ishmail, supra; State v. Perry, supra. The Court therefore concludes that the procedural bar for this claim is an adequate and independent basis upon which to foreclose review of claim ten.

In claim eleven, petitioner asserts the ineffective assistance of appellate counsel. Petitioner presented this claim in his delayed application to reopen the appeal pursuant to Ohio Appellate Rule 26(B); however, the appellate court refused to consider the merits of the claim, dismissing his rule 26(B) application as untimely:

On December 28, 2004, defendant-appellant, Kevin A. Tolliver, filed an application for reopening his appeal and the judgment of this court rendered in State v. Tolliver, Franklin App. No. 02AP-811, 2004 WL 625683, 2004-Ohio-1603. On appeal, this court affirmed appellant’s judgment of conviction and sentence in the Franklin County Court of Common Pleas for murder with a firearm specification. This court’s judgment entry was filed on March 30, 2004.

App.R. 26(B) provides that an application for reopening shall contain a showing of good cause for untimely filing if the application is filed more than 90 days after journalization of the appellate judgment.

Appellant’s application was filed almost nine months from journalization of this court’s judgment in the appeal. Because the application was not filed within the 90-day period, appellant must show good cause for the untimely filing. Following this court’s journalization of its judgment, appellate counsel filed a notice of appeal in the Supreme Court o