Full opinion text
ORDER GRANTING IN PART AND DENYING IN PART SUPPLEMENTAL PETITION FOR WRIT OF HABEAS CORPUS SUSAN J. DLOTT, District Judge. In this case, Chief Judge Magistrate Michael R. Merz has recommended that the Supplemental Petition for Writ of Ha-beas Corpus (“Supplemental Petition”) (doc. 29) filed by Petitioner Lee E. Moore be conditionally granted in part and denied in part. Pending before the Court are Chief Magistrate Judge Michael R. Merz’s Report and Recommendations (“the R & R”) (doc. 128), the Warden’s Objections to the R & R (doc. 130), and Petitioner’s Objections to the R & R (doc. 132); plus Chief Magistrate Judge Merz’s Supplemental Report and Recommendations (“the Supp. R & R”) (doc. 135), the Warden’s Objections to the Supp. R & R (doc. 136), and Petitioner’s Objections to the Supp. R & R (doc. 137). The Warden and Petitioner have also filed briefs in opposition to each other’s Objections. For the reasons that follow, the Court will CONDITIONALLY GRANT IN PART AND DENY IN PART the Supplemental Petition. Accordingly, Petitioner’s Objections are GRANTED IN PART AND DENIED IN PART and the Warden’s Objections are DENIED. I. FACTUAL AND PROCEDURAL HISTORY A. Factual Background of the Crime The Ohio Supreme Court described the underlying facts of the crimes for which Petitioner was convicted and sentenced to death as follows: On the evening of January 14, 1994, defendant-appellant, Lee Edward Moore, Jr., and Jason Holmes abducted Melvin Olinger at gunpoint and forced him into the trunk of his blue Ford Taurus. Moore drove Olinger’s car to Mt. Healthy, dropped Holmes off, and picked up Larry Kinley. .The two drove Olinger’s car to a factory area in Cincinnati, where Moore ordered Olinger out of the trunk, robbed him of his wallet, and shot him in the head, killing him. Moore later admitted committing the crimes but claimed that the shooting was accidental. Moore was subsequently convicted of aggravated murder, kidnapping [sic], and aggravated robbery, and sentenced to death. On January 14, at approximately 7:20 p.m., Melvin Olinger, a suburban Chicago businessman, visited his parents in Fairfield. Olinger then went to a funeral home during calling hours for a friend who had passed away. Later, he went to Gina’s, a bar, around 9:00 to 9:30 p.m., where he talked with Charlotte James. He told her that he was going to visit his mother that evening before returning to Chicago the next day. Olinger stayed in the bar for about fifteen minutes. That same evening, Moore and Jason Holmes drove to Fairfield, intending to steal a car. Moore waited outside Gina’s and saw Olinger get out of his blue Ford Taurus and enter the bar. When Olinger returned to his car, Moore confronted him with a gun and told Olinger to get in. Moore drove the Taurus to the rear of the bar and forced Olinger to climb into the trunk. Moore drove the Taurus to Larry Kinley’s house in Mt. Healthy while Holmes followed in Moore’s Ford Fairmont. Moore and Kinley drove to a store in the Taurus, leaving Holmes behind to babysit. Moore told Kinley how he had stolen the car and that he was going to get it painted and modified. Moore told Kinley that he was driving to the Cum-minsville area of Cincinnati to show the car to a friend. Instead, Moore drove to a factory area at 3366 Llewellyn Street. On the way, Moore told Kinley that he was going to kill the man in the trunk. When Kinley asked Moore why he was going to kill the man, Moore responded, “This ain’t nothing. * * * We’re not going to get caught for it.” Upon driving into the factory area, Moore headed toward a dumpster. He stopped the car and let Olinger out of the trunk while Kinley remained in the car. Kinley testified that he didn’t see what happened because the trunk lid was up, but that he heard Moore tell Olinger to empty his pockets. Kinley testified that Moore directed Olinger to the corner by the dumpster and that he heard Olinger beg and plead to Moore about Olinger’s sick mother. Kinley heard a gunshot, then Moore jumped into the car. According to Kin-ley, Moore laughed and asked him, “Did you see his dome get shot off?” After leaving the scene, Moore directed Kinley to take the credit cards out of Olinger’s wallet. Kinley said that Moore sounded upset because he had forgotten to ask Olinger for the personal identification number to his Jeanie card. In a taped statement to police, Moore claimed that he asked Olinger for his wallet after directing him to the dumpster. When Olinger dropped the wallet and stepped forward, Moore said that he panicked and “accidently pulled the trigger. But it was an accident. * * * I had a large amount of drinks an’ * * * some marijuana. An’ it truly truly was an accident.” Moore and Kinley returned to Kinley’s house, where Moore told Holmes what had happened. Moore told Holmes that he planned to keep the Taurus and that Holmes could use his Fairmont any time he wanted. At Moore’s request Kinley took the Michigan plates off Olinger’s Taurus. Kinley then took one of the plates off Moore’s Fairmont and put it on the Taurus. The next day, Moore and Kinley went out to get “some stuff.” Moore used Olinger’s credit card to purchase over $1,000 worth of clothing and jewelry at two J.C. Penney stores in the Cincinnati area. A sales clerk became suspicious and contacted Penney’s loss prevention officer. The officer observed two black males place their purchases in the trunk of a blue Ford Taurus with Ohio tags and drive away. At approximately 5:30 p.m. on January 20, police apprehended Moore and Kin-ley as they waited for an order in the drive-through lane of a McDonald’s restaurant. Moore was placed in a holding cell at the Mt. Healthy police station. Officers confiscated several items of clothing from Moore which were believed to have been purchased with Olinger’s credit card. Shortly after midnight, Moore was advised of his Miranda rights and signed a waiver of rights form. Moore was then taken to the downtown Cincinnati police station for questioning. Although the weather was cold and snowy, Moore was required to walk a short distance to and from the police car in his stocking feet, since his shoes had been confiscated as evidence. At approximately 6:30 a.m., while “crying a little bit” and sniffling, Moore admitted to police that he had robbed and kidnapped [sic] Olinger and that he had shot and killed Olinger. He claimed that the shooting was accidental. Based on information supplied by Kin-ley, police located Olinger’s body. The chief deputy coroner determined that Olinger had died of a single gunshot wound to the head fired from a distance of between six and twenty-four inches away. State v. Moore, 81 Ohio St.3d 22, 22-24, 689 N.E.2d 1 (1998). B. Procedural History-State Court Proceedings The Ohio Supreme Court summarized the procedural history of Petitioner’s conviction and sentencing as follows: The grand jury indicted Moore on three counts of aggravated murder, one count of aggravated robbery, and one count of kidnapping. All counts carried a firearm specification. All three aggravated murder counts carried three death-penalty specifications: (1) aggravated murder to escape detection for kidnapping and/or aggravated robbery (R.C. 2929.04[A][3]); (2) aggravated murder committed in connection with kidnapping where Moore either was the principal offender or committed the aggravated murder with prior calculation and design (R.C. 2929.04[A][7]); and (3) aggravated murder committed in connection with aggravated robbery where Moore either was the principal offender or committed the aggravated murder with prior calculation and design (R.C. 2929.04[A][7]). The defense essentially admitted Moore’s involvement in the crimes. It argued that Moore had not formed the specific intent to kill Olinger. After deliberation, the jury found Moore guilty as charged. Prior to the mitigation hearing, the trial court merged the three death specifications of Count I (aggravated murder committed with prior calculation and design) into one specification: murder to escape detection for kidnapping and/or aggravated robbery. The court also merged the two felony murder counts into one count and merged the three specifications attached to these counts into two: murder during kidnapping and murder during aggravated robbery. During the mitigation hearing, several witnesses testified on Moore’s behalf, and Moore gave a remorseful unsworn statement admitting the wrongfulness of his actions. The jury recommended death, and the court imposed the death penalty. The court also imposed consecutive prison sentences for Moore’s other convictions. Id. at 24, 689 N.E.2d 1. Moore appealed his conviction and sentence to the Court of Appeals, First Appellate District, Hamilton County, Ohio. After reviewing the merits of Moore’s assignment of errors, re-weighing the aggravating circumstances against the mitigating factors, and independently assessing the appropriateness of the penalty of death, the court of appeals affirmed Moore’s conviction and the sentence of death. State v. Moore, No. C-950009, 1996 WL 348193 (Ohio App. June 26,1996). Moore then filed an appeal with the Ohio Supreme Court. On February 4, 1998, the Ohio Supreme Court, likewise, affirmed the judgment of the appeals court and upheld the death sentence after independently weighing the appropriateness and proportionality of the sentence of death. Moore, 81 Ohio St.3d at 42-44, 689 N.E.2d 1. On September 20, 1996, Moore filed his petition for Post-Conviction Relief under Ohio Revised Code (“O.R.C.”) § 2953.21 in the Hamilton County Court of Common Pleas. (Doc. 31, Ex. M.) The Common Pleas Court found that Moore was not entitled to relief on any of his claims and denied the petition for post-conviction relief. (Id., Ex. Q.) Moore appealed to the court of appeals. (Id., Ex. R.) He alleged his counsel did not receive notice of the trial court’s November 20, 1996, order. (Id., Ex. S.) The court granted Rule 60(B) relief from the judgment and a new order was entered dismissing the petition. (Id.) Petitioner filed a timely appeal from that second order. (Id.) In the court of appeals, Petitioner made the argument that throughout the post-conviction relief proceedings, his entire record had been before the court of appeals or Ohio Supreme Court on direct appeal. (Id.) The Clerk of the Ohio Supreme Court refused to relinquish the records to the lower courts for review while the case was pending argument in the Ohio Supreme Court, thus denying the trial court the ability to review the entire record in evaluating the post-conviction petition. (Id.) Additionally, Petitioner Moore raised five assignments of error in his merit brief (Id., Ex. T.) The court of appeals granted the motion for a remand to allow for the trial court to certify which portions of the record had been reviewed for the purpose of post-conviction relief. (Id., Ex. V.) On March 18, 1998, the Hamilton County Common Pleas Court issued an Entry on Remand stating that it had no present recollection as to what materials were reviewed. (Id., Ex. X.) The Court of Appeals then affirmed the judgment of the trial court on September 18, 1998. (Id., Ex. Y.) Moore then appealed to the Ohio Supreme Court which declined to review the judgment of the lower courts. State v. Moore, 84 Ohio St.3d 1472, 704 N.E.2d 579 (1999). On September 7, 2000, Moore filed an Application for Reopening of Direct Appeal Under Ohio R.App. P. 26(B) (“Rule 26(B) Application”), alleging that his direct appeal counsel had been constitutionally ineffective for their failure to raise fourteen assignments of error. (Doc. 79, Vol. I at 2-10.) The Hamilton County Court of Appeals declined to hear the Rule 26(B) Application on the merits because it found Petitioner had not shown good cause for failing to file within the ninety days allowed for such motions by Ohio R.App. P. 26(B); the Application was filed more than four years after the Court of Appeals had journalized its decision that was sought to be reopened. (Doc. 60, Ex. A at 1.) The Court of Appeals also held that all of the claims were barred by res judicata because they could have been raised on direct appeal to the Ohio Supreme Court and were not. (Id. at 3.) On appeal, Moore presented six propositions of law to the Ohio Supreme Court. In his first three propositions of law, he presented the merits of all of the proposed assignments of error which he had raised in the Court of Appeals. (Doc. 79, Vol. Ill at 20-85.) The Court denied those propositions on the grounds that “Moore has failed to raise ‘a genuine issue as to whether [he] was deprived of the effective assistance of counsel on appeal’ before the application to reopen can be granted, as required under App.R. 26(B)(5).” State v. Moore, 93 Ohio St.3d 649, 651, 758 N.E.2d 1130 (2001). As to another proposition of law, the Ohio Supreme Court decided that Mr. Moore had not shown good cause for filing his Rule 26(B) Application late because he had not raised a genuine issue as to whether he was deprived of the effective assistance of counsel on appeal. Id. at 650-51, 758 N.E.2d 1130. In her concurring opinion, Justice Deborah Cook noted that it was illogical to find a failure to demonstrate good cause for late filing on the basis that Moore failed to raise genuine issues because these are entirely separate questions. Id. at 651, 758 N.E.2d 1130 (Cook, J., concurring). She also noted that the majority had unnecessarily reached the merits because the Court of Appeals had correctly held the claims were barred by res judicata. Id. at 652, 758 N.E.2d 1130. C. Procedural History — Proceedings in Federal Court Petitioner filed his' Supplemental Petition on June 1, 2000.' He asserted twenty-five Grounds for Relief therein. Petitioner was granted the right to conduct limited discovery. (Docs. 93, 100.) Subsequently, the parties briefed the merits. (Docs. 115, 116, 117.) After briefing, Petitioner expanded the record by filing numerous depositions and documents. (Notice, July 15, 2005; Docs. 120,124.) On February 15, 2007, Chief Magistrate Judge Merz issued the first R & R. He recommended granting a conditional writ of habeas corpus as to part of Petitioner’s Second Ground for Relief, but denying it as to all other Grounds for Relief. (Doc. 128 at 138.) Thereafter, the Warden filed Objections to the R & R as to the recommendation that the Court issue a conditional writ as!to part of the Second Ground for Relief and Petitioner filed Objections as to the recommendation that the Court deny the remaining Grounds for Relief. On ■ August 13, 2007, Chief Magistrate Judge Merz issued the Supp. R & R and again recommended conditionally granting a portion of the Second Ground for Relief, but denying all other Grounds for Relief. The Warden and the Petitioner again filed Objections. The R & Rs and the Objections are now ripe for review. II. STANDARD FOR HABEAS CORPUS PETITIONS Moore’s petition was filed after April 24, 1996 so it is subject to the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Hamilton v. Morgan, 474 F.3d 854, 857 (6th Cir.2007). A habeas petitioner must exhaust all remedies available to him in state court before filing a habeas petition. 28 U.S.C. § 2254(b)(1)(A). The AEDPA requires federal courts to respect any determination on the merits made by a state court unless it: (1) “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) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.” 28 U.S.C. §§ 2254(d)(1)-(2); see also Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In Williams, the Supreme Court further explained the meaning of § 2254(d)(1) as follows: Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case. 529 U.S. at 412-13, 120 S.Ct. 1495. An unreasonable application is more than simply incorrect; it must be objectively unreasonable. Id. at 409, 411, 120 S.Ct. 1495; see also Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). “Clearly established Federal law” under § 2254(d)(1) means “the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). “Under [the] AEDPA, if there is no clearly established Federal law, as determined by the Supreme Court, that supports a habeas petitioner’s legal argument, the argument must fail.” Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir.2005) (internal citation omitted). Pursuant to 28 U.S.C. § 2254(e)(1), a determination of a factual issue by a state court shall be presumed correct and the applicant shall have the burden of rebutting the presumption by clear and convincing evidence. McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir.2004). This presumption does not apply to mixed questions of law and fact. Mitchell v. Mason, 325 F.3d 732, 738 (6th Cir.2003). Instead, the “unreasonable application” prong of § 2254(d)(1) applies to mixed questions of law and fact. Id. A federal court will not review a question of federal law decided by an Ohio court if the decision rests “on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). This is true whether the state law ground is substantive or procedural. Id. 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.” Id. at 750, 111 S.Ct. 2546. That is, a petitioner may not raise on federal habeas a federal constitutional right he could not raise in state court because of procedural default. Engle v. Isaac, 456 U.S. 107, 128-29,102 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). Absent cause and prejudice, a federal habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal habe-as corpus review if the State court relied on that procedural bar. Murray v. Carrier, 744 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Engle, 456 U.S. at 128-29, 102 S.Ct. 1558; Boyle v. Million, 201 F.3d 711, 716 (6th Cir.2000). The failure to raise a constitutional issue on direct appeal is subject to the cause and prejudice standard of Wain-might v. Sykes. Murray, 477 U.S. at 485, 106 S.Ct. 2639; Mopes v. Coyle, 171 F.3d 408, 413 (6th Cir.1999); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir.1994). The failure to present an issue to the state supreme court on discretionary review constitutes procedural default. O’Sullivan v. Boerckel, 526 U.S. 838, 845-48, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). As is well-established (although sometimes muddled by courts), two types of procedural barriers might preclude federal review of claims in a habeas petition. The first type, procedural default, is a judicially created rule, grounded in fealty to comity values and requiring federal courts to respect state court judgments that are based on an “independent and adequate” state procedural ground. Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Maupin v. Smith, 185 F.2d 135, 138 (6th Cir.1986) (establishing a four-part test for determining whether a procedural rule is an independent and adequate state ground). In procedural default cases, the state court or courts reject a direct or post-conviction appeal because the defendant failed to comply with some state law or rule concerning timeliness, pleading requirements, sufficient evidence, or the like. The second type of bar, exhaustion, is similarly grounded in respect for state court procedures, but it is federally mandated by AEDPA, see 28 U.S.C. § 2254(b)(1)(A),(c), and requires petitioners to give state courts a “fair opportunity” to assess petitioners’ claims. O’Sullivan, 526 U.S. at 844, 119 S.Ct. 1728. Often, federal courts will rule that a petitioner’s claim is “defaulted” because the petitioner failed to exhaust his remedies and the time for refiling an appeal in the state court has passed. The unexhausted claim is then classified as “procedurally defaulted” and deemed forfeited absent a showing of cause and prejudice. See In re Cook, 215 F.3d 606, 607-08 (6th Cir.2000).... But exhaustion and procedural default are distinguishable in an important sense. A defendant could fail to exhaust a claim without procedurally defaulting if he could return to the state courts to exhaust. Alternatively, as in this case, the defendant could fail to exhaust without defaulting if a clarification in procedural law indicates that he has already taken the necessary action to exhaust. That is, forfeiture by failure to exhaust entails a legal fiction, of sorts. The state court has not rejected an appeal based on a state rule violation; there is no declaration by the state court of an independent and adequate state ground to which the federal court must defer. Instead, the federal court makes a presumption that the state court would reject the appeal on independent and adequate state grounds if the petitioner tried to file it. But, by declaring the claim forfeited, the federal court saves the petitioner and the state court from respectively preparing and rejecting a futile filing. The federal court then views the claim through the lens of procedural default to determine whether there is cause and prejudice to excuse the default. In short, the crux of forfeiture by failure to exhaust is that the federal court’s default decision rests upon a presumption about what the state court would do, rather than respect for what a state court actually did. Abdur’Rahman v. Bell (In re AbdurRah-man), 392 F.3d 174, 186-187 (6th Cir.2004), vacated on other grounds, 545 U.S. 1151, 125 S.Ct. 2991, 162 L.Ed.2d 909 (2005). The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a habeas claim is precluded by procedural default. Reynolds v. Berry, 146 F.3d 345, 347-48 (6th Cir.1998) (citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986)); accord Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir.2001). 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. * H* * * Second, the court must decide whether the state courts actually enforced the state procedural sanction. s|í H* Third, the court must decide whether the state procedural forfeiture is an “adequate and independent” state ground on which the state can rely to foreclose review of a federal constitutional claim. % # ijc í¡< Once the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate under Sykes that there was “cause” for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error. Maupin, 785 F.2d at 138. III. ANALYSIS A. General Objections In his first general objection, Petitioner Moore contends that Chief Magistrate Judge Merz erred when he refused to consider the merits of underlying claims that Petitioner raised in his Rule 26(B) Application and that he contends the Ohio Supreme Court addressed on the merits. Petitioner- in his Rule 26(B) Application raised issues that he contends his former appellate attorneys should have raised in the initial state court appeal of his conviction. That is, he asserted that his appellate attorneys provided ineffective assistance of counsel because they did not raise certain underlying issues during his direct appeal. The Ohio Supreme Court addressed the merits of three of Petitioner’s six propositions (grounds for the Rule 26(B) Application) and held that Moore “failed to raise a genuine issue as to whether he was deprived of the effective assistance of counsel on appeal.” Moore, 93 Ohio St.3d at 651, 758 N.E.2d 1130. The Ohio Supreme Court thus ruled on the merits of whether Moore had received ineffective assistance of appellate counsel; it did not directly address the merits of the underlying claims that Petitioner asserted his appellate counsel should have raised on the direct appeal. The Sixth Circuit has found that an ineffective assistance of appellate counsel claim is “analytically distinct” from the underlying claim about which it is asserted the appellate counsel should have raised. White v. Mitchell, 431 F.3d 517, 526 (6th Cir.2005). Because the Ohio Supreme Court did not address the merits of the underlying claims, Chief Magistrate Judge Merz did not err in refusing to consider the merits of the underlying claims absent a showing of cause and prejudice. In his second general objection, Petitioner Moore contends that Chief Magistrate Judge Merz erred in rejecting certain arguments that Petitioner had made regarding the legal standard for the prejudice aspect of an ineffective assistance of counsel claim. Chief Magistrate Judge Merz cited McFarland v. Yukins, 356 F.3d 688 (6th Cir.2004), for the proposition that appellate counsels’ “failure to raise an issue on appeal could only be ineffective assistance if there is a reasonable probability that inclusion of the issue would have changed the result of the appeal.” Id. at 699. The quoted passage from McFarland case remains good law in this Circuit. See Valentine v. United States, 488 F.3d 325, 338 (6th Cir.2007) (quoting McFarland with approval). Petitioner’s objection to the use of McFarland in examining issues of the effectiveness of appellate counsel is overruled. B. Specific Objections as to Grounds for Relief First Ground for Relief Petitioner Moore’s mitigation specialist, Chuck Stidham, had an undisclosed, actual conflict of interest when he simultaneously represented Petitioner Moore and one of Petitioner Moore’s co-defendant [sic] on his appeal of convictions and sentences for the same crime. This conflict violated Petitioner Moore’s rights, including his right to counsel, due process, equal protection, a fair proceeding, and a reliable sentence. (Doc. 29 at 4.) Petitioner Moore alleges in this Ground for Relief that his mitigation specialist, Chuck Stidham, an attorney, had an actual conflict of interest when he simultaneously represented both Moore and his co-defendant, Jason Holmes, who was tried in a separate trial. Stidham was Holmes’s appointed counsel for Holmes’s appeal. Stid-ham did not reveal to Moore that he represented Holmes until after Moore’s trial. Moore was never given the opportunity to waive any potential conflict and the trial court was never given the opportunity to inquire about the potential conflict. The potential for conflict in this situation is obvious. Holmes could have benefltted from having as much culpability for the murder of Olinger placed on Moore as possible. Petitioner failed to present this Ground for Relief as a claim to the Ohio state courts in his direct appeal or post-conviction proceedings. Petitioner did raise his appellate counsel’s failure to raise the issue on appeal as a claim for relief in his Rule 26(B) Application. (Doc. 79, Yol. I at 3.) Petitioner contends that the Ohio Supreme Court addressed the merits of the underlying claim (regarding Stidham’s alleged conflict of interest) in its Order denying the Rule 26(B) Application, but as explained above in the discussion of Petitioner’s General Objections, Petitioner is mistaken. The Ohio Supreme Court summarily addressed the merits of the analytically distinct ineffective assistance of appellate counsel claim, not the merits of the underlying claim. Moore, 93 Ohio St.3d at 651, 758 N.E.2d 1130. Accordingly, Chief Magistrate Judge Merz correctly held that the underlying claim was procedurally defaulted. Nonetheless, the Ohio Supreme Court’s decision on the Rule 26(B) Application did preserve the merits of Petitioner’s ineffective assistance of appellate counsel claims for review in this Court, either insofar as such claims, if meritorious, might constitute excusing cause for a procedural default in presenting the underlying claims (e.g., the Stidham conflict of interest claim) or in themselves as justifying the writ conditioned on Petitioner’s being granted a reopened appeal. See Edwards v. Carpenter, 529 U.S. 446, 451, 453, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); Haliym v. Mitchell, 492 F.3d 680, 691-94 (6th Cir.2007); Landrum v. Anderson, 185 F.Supp.2d 868 (S.D.Ohio 2002). Because the Ohio Supreme Court decided Petitioner’s ineffective assistance of appellate counsel claim on the merits, this Court must consider if that decision was contrary to or an unreasonable application of law clearly established by the United States Supreme Court. 28 U.S.C. § 2254(d); Williams, 529 U.S. at 402-03, 120 S.Ct. 1495. However, in this case, the Ohio Supreme Court’s conclusion is so summary that it is not possible to determine whether it is in any way an application of clearly established federal law. All the Ohio Supreme Court said in disposing of these claims was “Moore has failed to raise ‘a genuine issue as to whether [he] was deprived of the effective assistance of counsel on appeal’ before the application to reopen can be granted, as required under App.R. 26(B)(5).” Moore, 93 Ohio St.3d at 651, 758 N.E.2d 1130. The test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) — constitutionally deficient performance plus prejudice resulting therefrom — applies to appellate counsel. Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). An appellate attorney need not advance every argument, regardless of merit, urged by the appellant. Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (“Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.”). Effective appellate advocacy is rarely characterized by presenting every non-frivolous argument which can be made. Williams v. Bagley, 380 F.3d 932, 971 (6th Cir.2004). However, failure to raise an issue can amount to ineffective assistance. McFarland, 356 F.3d at 710; Mapes, 171 F.3d at 427-29. “In order to succeed on a claim of ineffective assistance of appellate counsel, a petitioner must show errors so serious that counsel was scarcely functioning as counsel at all and that those errors undermine the reliability of the defendant’s convictions.” McMeans v. Brigano, 228 F.3d 674, 682 (6th Cir.2000). Courts “strongly presume[]” that an attorney’s performance was constitutionally sufficient. Strickland, 466 U.S. at 690, 104 S.Ct. 2052; McFarland, 356 F.3d at 710. To prevail on a claim of ineffective assistance of appellate counsel, a petitioner must show that appellate counsel ignored issues that are clearly stronger than those presented. Smith, 528 U.S. at 288, 120 S.Ct. 746. Under the prejudice prong of the Strickland test, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694, 104 S.Ct. 2052. A reasonable probability is one that “is sufficient to undermine confidence in the outcome.” Id. The Supreme Court further explained: When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. When a defendant challenges a death sentence ... the question is whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Id. at 695, 104 S.Ct. 2052. Counsels’ failure to raise an issue on appeal could only be ineffective assistance if there is a reasonable probability that inclusion of the issue would have changed the result of the appeal. McFarland, 356 F.3d at 699. A petitioner has not established prejudice if a court is left with only speculation on whether the outcome would have been different. See Baze v. Parker, 371 F.3d 310, 322 (6th Cir.2004). Turning to the facts of the underlying claim, to prevail on a conflict of interest claim, Petitioner Moore must demonstrate an actual conflict of interest that adversely affected counsel’s performance. Cuyler v. Sullivan, 446 U.S. 335, 348-49, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Chief Magistrate Judge Merz found that Moore could not establish that Stidham actively represented conflicting interests or that the Stidham’s presumptive conflict of interest affected his performance. Id. Prejudice is presumed “only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance.” Burger v. Kemp, 483 U.S. 776, 783, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987) (internal quotations and citations omitted). Petitioner Moore “must make a factual showing of inconsistent interests and must demonstrate that the attorney made a choice between possible alternative courses of action, such as eliciting evidence helpful to one client but harmful to the other.” Thomas v. Foltz, 818 F.2d 476, 481 (6th Cir.1987) (internal quotations and citations omitted). Petitioner’s claim fails because he has not established that Stidham made choices which were helpful to Holmes, but prejudicial to Moore. Stidham did not testify as a mitigation witness himself. Petitioner asserts that Stidham recommended the use of Dr. David Chiappone as a mitigation expert. As will be explained infra in regards to the Second Ground for Relief, Dr. Chiappone’s testimony at mitigation was damaging and clearly prejudicial to Moore. However, the Stidham deposition testimony Petitioner relies upon does not provide support for the assertion that Stidham suggested Dr. Chiappone’s involvement. (Doc. 132 at 7; Stidham Dep. at 111 lines 11-13.) Stidham testified as to the reason “probably why Dr. Chiappone was requested to become involved,” but he does not state or imply that he requested that Dr. Chiappone become involved. (Stidham Dep. at 111 lines 11-13.) Stid-ham had testified earlier in his deposition that he did not recall how Dr. Chiappone had become involved in the case. (Stid-ham Dep. at 86.) Moore’s trial counsel and Dr. Chiappone himself, likewise, were unable to recall how Dr. Chiappone had become involved in the case, but no one suggested that Stidham was responsible for Dr. Chiappone’s involvement. (James Dep. 10/16/2003 at 33-34; James Dep. 12/3/2003 at 9; Deardorff Dep. at 40; Chi-appone Dep. at 31.) Petitioner also relies on the fact that Stidham provided “some background information” to Dr. Chiappone for Dr. Chiap-pone’s testimony. (T.p. at 1110.) However, Petitioner does not cite to any portion of the record specifying what particular background material Stidham provided to Dr. Chiappone or how that particular material influenced his mitigation testimony, if at all. Accordingly, Petitioner has not provided any evidence that Stidham’s presumptive conflict of interest influenced his performance. Petitioner has not established that his appellate attorneys provided ineffective assistance of counsel when they failed to assert the Stidham claim during his state appeals process and Petitioner has not established cause for his procedural default of the underlying Stid-ham claim. The First Ground for Relief is DENIED. Second Ground for Relief Petitioner Moore’s trial counsel rendered ineffective assistance at the mitigation phase by (A) employing a mitigation specialist who never discussed substantive mitigation issues with Petitioner Moore and failed to adequately assist in the preparation of the mitigation phase; (B) failing to adequately prepare for the mitigation phase, during which Dr. Chiappone, the expert offered by trial counsel, impeached Petitioner Moore’s entire liability and mitigation case; (C) presenting a hopelessly ineffective mitigation argument which actually damaged Petitioner Moore’s mitigation case and failed to emphasize Petitioner Moore’s youth, remorse, and psychosocial background; and (D) failing to seek or offer an expert to testify as to the effects of extensive alcohol and drug abuse on Petitioner Moore. This ineffective assistance violated Petitioner Moore’s rights, including his rights to counsel, not to incriminate himself, due process, equal protection, a fair proceeding, and a reliable sentence. (Doc. 29 at 7.) 1. Subclaim (A): Trial Counsel employed a mitigation specialist who never discussed substantive mitigation issues with Petitioner Moore and failed to adequately assist in the preparation of the mitigation phase. Chief Magistrate Judge Merz summarized Petitioner Moore’s evidentiary support for this subelaim in the R & R as follows: Petitioner argues that defense counsel were ineffective due to the performance of members of the defense team, specifically mitigation specialist Chuck Stid-ham. Petitioner argues that Stidham’s efforts were half-hearted and inadequate. He argues that this inadequate preparation carried over to an ineffective and incomplete presentation of mitigation evidence. Id. In support of this claim he details the communication between Stidham and other members of the defense: Stidham met with Moore on only one occasion, for approximately twenty-five minutes, and did‘not discuss any substantive mitigation issues; it was difficult for defense counsel to obtain the materials prepared by Stidham, finally obtaining them approximately two weeks prior to the start of trial; Stidham had no communication or direct contact with Dr. Chiappone; and failed to recommend that defense counsel hire an expert in substance abuse. (Doc. 128 at 40 (citations omitted).) Petitioner’s trial counsel made a strategic decision to shy away from Mr. Stidham during the sentencing phase. (Deardorff Dep. at 50-51.) Chief Magistrate Judge Merz, however, also found that the neither the Constitution nor the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (2003) (“ABA Death Penalty Guidelines”) guarantee or mandate the right to an “effective mitigation specialist.” In regards to this latter finding, Petitioner Moore cites to provisions in the ABA Death Penalty Guidelines which call for the use of a mitigation specialist: Guideline 4.1(A)(1) (“The defense team should consist of no fewer than two attorneys qualified in accordance with Guideline 5.1, an investigator, and a mitigation specialist.”); and Guideline 10.4(C)(2) (requiring lead attorneys to retain a mitigation specialist as soon a possible after being designated as counsel). While the Court might be persuaded that trial counsel were deficient in failing to obtain the services of an effective mitigation specialist, the subclaim would nonetheless fail because Petitioner Moore has not established prejudice therefrom under the Strickland standard. “In the context of a death sentence, the question of prejudice turns on ‘whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.’ ” Hill v. Mitchell, 400 F.3d 308, 314 (6th Cir.2005) (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052). With the exception of helping prepare for the testimony of Dr. Chiappone, which is discussed in reference to a separate subclaim below, Petitioner Moore has not established what mitigation evidence could have been presented to the jury which might have tipped the scales away from a death sentence. “[I]n order to establish prejudice, the new evidence that a habeas petitioner presents [in post-conviction proceedings] must differ in a substantial way — in strength and subject matter— from the evidence actually presented at sentencing.” Hill, 400 F.3d at 319. Petitioner cannot and does not argue that his trial counsel failed to complete any mitigation investigation or present any mitigation evidence. Prejudice must be proven, and will not be presumed, in these circumstances. Johnson v. Bagley, No. 1:02cv220, Dkt. No. 74 slip op. at 109 (S.D.Ohio Apr. 24, 2006) (citing Martin v. Mitchell, 280 F.3d 594, 613 (6th Cir.2002)). This subclaim is DENIED. 2. Subclaim (B): Trial counsel failed to adequately prepare for the mitigation phase, during which Dr. Chiappone, the expert offered by trial counsel, impeached Petitioner Moore’s entire liability and mitigation case. Chief Magistrate Judge Merz recommended conditionally granting the writ in regards to one portion of this subclaim which concerns the testimony of Dr. Chi-appone. Petitioner has not presented objections in regards to the other portions of this subclaim on which Chief Magistrate Judge Merz recommended denying the writ and the Court considers those portions of the subclaim to be abandoned. The Warden, however, has objected to the Chief Magistrate’s recommendation to grant the writ as it concerns Dr. Chiap-pone’s testimony. Petitioner had raised the Dr. Chiappone portion of this subclaim to the Ohio Supreme Court on direct appeal. Dr. Chiap-pone, a psychologist, was retained by Moore’s trial counsel to present expert testimony in favor of Moore during mitigation. Unfortunately for Moore, Dr. Chiap-pone offered devastating testimony that Moore intentionally killed Olinger, testimony which undercut trial counsel’s theory of defense and mitigation. The Ohio Supreme Court held that Dr. Chiappone’s testimony did not demonstrate that trial counsel had been ineffective in failing to prepare with witnesses for the sentencing phase. Moore, 81 Ohio St.3d at 35-37, 689 N.E.2d 1. Chief Magistrate Judge Merz reached the opposite conclusion in his R & R and Supp. R & R and it is to this conclusion that the Warden objects. The relevant portion of the R & R to which Respondent objected is as follows: When put on the stand, Dr. Chiappone undercut the defense mitigation theory by testifying that Moore admitted lying to the police when giving his statements concerning the “accidental shooting” of Olinger. Dr. Chiappone further testified that Moore admitted to having shot the victim to avoid being identified. The exchange between Dr. Chiappone and the prosecutor during the mitigation phase was as follows: Q: Dr. Chiappone, you reviewed all these tests, all these records. And again, you’re still trying to find out why Lee Moore did what he did. Did you ever ask him why he killed Melvin Olinger? A: Yes, I did. Q: What did he tell you? A: Well what struck me is he had a difficult time explaining it, if you will. I asked him several times. It’s almost like he didn’t know what to do. He said he wasn’t sure what to do. He said that he was afraid the man would identify him. Q: So he shot him so he would not be identified? A: That’s the implication.... Q: Doctor, you are familiar with the previous statement that Lee Moore gave to the police, wherein he claimed this was all an accident? A: Yes, I am aware of that. Q: Did you specifically confront Lee Moore with that and ask him whether or not this was an accident when he shot Melvin Olinger? A: I am not sure if he used the word accident, but I did confront him about the information regarding his report to the police officers. Q: About the way he characterized it to the police? A: Correct. Q: What is your memory of how he characterized it at the time? A: Well, he told me that he made that up when he talked to the police, because he wanted to make it look like an accident. Q: So when he gave that statement to the police about dropping the wallet and the gun just went off and it was an accident, he told you that he made that up? A: That is correct. (T.p. 1115-17.) In Combs v. Coyle, 205 F.3d 269, 288 (6th Cir.2000), the only expert witness put on by defense counsel undercut their entire defense theory that the defendant was too drunk and high on drugs to form intent. The court held that: Although Comb’s counsel’s decision may be considered a strategic one, it was a decision made without undertaking a full investigation.... However, Stidham testified that defense counsel put Fisher on the stand in an effort “to establish that Combs could not act purposely and intentionally because of his diminished capacity,” and Stidham admitted that he was “surprised” when Fisher testified to the opposite. Fisher’s opinion regarding whether Combs lacked the requisite intent to commit the crimes was crucial to the defense theory; defense counsel’s failure to have questioned Fisher in this regard prior to trial is inexcusable. Defense counsel should have known Fisher’s opinion on this ultimate issue and should have prepared accordingly. Regardless of whether Comb’s counsel should have known or instead actually knew Fisher’s opinion regarding Comb’s intent, however, counsel’s decision to put him on the stand was objectively unreasonable. Combs, 205 F.3d at 288. The Court finds that this case is similar to the Combs case. While the testimony in Combs occurred during the culpability phase and here it occurred in the penalty phase, it was no less detrimental. Counsel should have interviewed their expert witness before putting him on the stand where his testimony would contradict the defense mitigation theory. They should have been aware of the information he was going to testify to regarding Moore’s statements to him about the shooting and confession. The State relied on this testimony in closing arguments in an attempt to show that Petitioner killed Olinger for the purpose of avoiding identification and to counter Petitioner’s mitigation argument of remorse. The trial judge also relied on this testimony in sentencing as evidenced from his opinion, “[t]he defendant did not do this accidently, but, rather, as he told Dr. Chiappone, the victim was executed because the defendant was worried about being identified.” (T.p. 1265.) Petitioner has shown prejudice: trial counsels’ lack of preparation and Dr. Chiappone’s testimony severely damaged the defense’s mitigation case. (Doc. 128 at 46-48.) The Warden objected to the R & R in part on the basis that Combs was a pre-AEDPA case and that Chief Magistrate Judge Merz applied the wrong legal standard in evaluating the case under Combs. The Warden asserted that the Sixth Circuit had reviewed Combs’ claims of ineffective assistance of counsel de novo, but that after the adoption of the AEDPA this Court had to apply the more deferential standard of 28 U.S.C. § 2254(d). The Warden contends that the Ohio Supreme Court’s conclusion that trial counsel could not be considered ineffective based solely on Dr. Chiappone’s damaging testimony was not an unreasonable application of Strickland. Chief Magistrate Judge Merz clarified in the Supp. R & R that it was his recommendation that the Court find that the Ohio Supreme Court’s decision on this issue was objectively unreasonable under Strickland, as well as under Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (finding that trial counsel’s inadequate investigation for mitigation was ineffective assistance of counsel which prejudiced the petitioner), and Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (finding trial counsel ineffective for not reviewing the petitioner’s prior conviction file despite being forewarned that the prosecution would use it to establish the petitioner’s prior violent history and undercut the petitioner’s residual doubt theory). The Chief Magistrate reiterated that trial counsel rendered ineffective assistance when they did not know that their own expert witness would testify that Moore committed to the crime in order to avoid identification by the victim. Upon consideration of the merits de novo, this Court agrees with the analysis and conclusion of Chief Magistrate Judge Merz. Respondent’s objection is overruled. The Court conditionally GRANTS the writ as to subclaim (B) of the Second Ground for Relief. 3. Subclaim (C): Trial counsel presented a hopelessly ineffective mitigation argument which actually damaged Petitioner Moore’s mitigation case and failed to emphasize Petitioner Moore’s youth, remorse, and psychosocial background. In this subclaim, Petitioner Moore asserts that his trial counsel were ineffective in how they presented the opening and closing statements during the sentencing phase. Chief Magistrate Judge Merz disagreed and recommended denying the sub-claim on the merits. The Court has carefully reviewed the opening and closing statements. (T.p. 1080-88, 1200-22). Petitioner points to the following sample of isolated comments made by his trial counsel which he purports damaged his mitigation case: Comments that suggested his guilt and diminished an argument for residual doubt: • “[C]ut out all the garbage — he shot Mr. Olinger and stole his car and used his credit cards. That’s the bottom line.” (T.p. 1202.) • “Larry [Kinley, a co-defendant who testified against Moore] was not be-lieveable, but that doesn’t matter, because that’s — as Mr. Deters said, we showed you other things to find him guilty.” (T.p. 1204.) • “And I think the bottom line is Lee [Moore] just doesn’t want to believe that he did this.... And I think that’s what he’s trying to say to you today.” (T.p. 1208.) Comments that emphasized the brutal nature of the crime: • “You can put as much weight on remorse as you want on him pulling that trigger. You can put as much weight on him admitting that he did this as you can have throwing Mr. Olinger in the trunk.” (T.p. 1213-14.) Comments that suggested the jury should vote for the death penalty: • “Maybe a long-term imprisonment, a very long term in prison would be fair. Or, if not, if I cannot convince you, and you feel he deserves the death penalty, then maybe, for his family, I can tell you why this happened.” (T.p. 1082.) • “So what does [sending Lee to prison] mean? Oh, that’s great. We’re going to send Lee off to a place where he’s going to get along great. That doesn’t sound fair to the Olinger family, that he’s going to go to jail where he can do well. I think what that means is, if Lee went to jail for the next fifty-three years, he could be beneficial to other people in our prison system. I don’t know how. I don’t know how.” (T.p. 1214.) A comment that suggested that a death sentence was preferable to a lengthy prison term: • “I know I wouldn’t want to go to jail for seventy-three years. I’d rather you put me to death.” (T.p. 1221.) On the other hand, trial counsel repeatedly pointed in his arguments to several mitigating factors for the jury to consider in favor of a life sentence: • Moore’s remorse and acceptance of responsibility for the crime (T.p. 1213, 1219,1220,1222); • Moore’s young age (19) when he committed the crime (T.p. 1084, 1200, 1209); • Moore’s history of alcohol and drug use (T.p. 1200,1217,1218); and • Moore’s childhood during which his parents divorced and he was bullied (T.p. 1216-18). The theme of the closing argument was that Moore accepted responsibility for his crime and expressed sincere remorse for it. Petitioner’s trial attorney also expressed his personal opposition to the death penalty, his opinion that the death penalty was not an effective means of deterrence, and his opposition to the concept that the death penalty could be justified as retribution or revenge. (T.p. 1212-13.) The trial attorney described for the jury a young man who made a horrible decision, but did not deserve to die. Petitioner seeks to analogize his case to that of Rickman v. Bell, 131 F.3d 1150 (6th Cir.1997), where the Sixth Circuit held that defendant’s attorney, Robert I. Livingston, was constitutionally ineffective when he painted a picture of his client worse than that painted by the prosecutor in that case. The Sixth Circuit summarized: But our thorough review of the record and consideration of the circumstances of the overwhelming evidence of Rick-man’s guilt leave us, like the district court below, appalled by Livingston’s performance. As we shall describe, Livingston combined a total failure to actively advocate his client’s cause with repeated expressions of contempt for his client for his alleged actions. The effect of all this was to provide Rickman not with a defense counsel, but with a second prosecutor. And while the State makes a claim that Livingston was pursuing a strategy of painting a picture of his client that would make the jury find him too pitiable to convict or sentence to death, this simply stretches imagination past the point of credulity. Livingston succeeded in creating a loathsome image for Rickman — one that would make a juror feel compelled to rid the world of him. Id. at 1157. Trial counsel’s advocacy for Petitioner Moore is clearly distinguishable. Though he made a series of unfortunate remarks which might have been misinterpreted by the jury when taken in isolation, on the whole Moore’s trial attorney showed empathy for Moore and pleaded for his life. The Court holds that Petitioner has not demonstrated ineffective assistance of counsel in this regard. The Court DENIES subclaim (C) of the Second Ground for Relief. 4. Subclaim (D): Trial Counsel failed to seek or offer an expert to testify as to the effects of extensive alcohol and drug abuse on Petitioner Moore. Petitioner Moore did not object to Chief Magistrate Judge Merz’s conclusion that he failed to demonstrate prejudice as a result of trial counsel’s failure to call on expert witness regarding Moore’s alcohol and drug use. This subclaim is abandoned. The Court DENIES subclaim (D) of the Second Ground for Relief. Third Ground for Relief Petitioner Moore’s trial counsel rendered ineffective assistance at the liability phase by (A) inadequately preparing the sole defense, lack of a purposeful state of mind; (B) failing to present or seek a jury instruction on the voluntary intoxication defense; and (C) failing to seek or offer a forensic expert, thus violating Petitioner Moore’s rights, including his rights to counsel, due process, equal protection, and a fair proceeding. (Doc. 29 at 14.) Petitioner has abandoned subclaim (A) of the Third Ground for Relief. (Doc. 115 at 43.) Chief Magistrate Judge Merz recommended denying subclaims (B) and (C) on the merits. 1. Subclaim (B): Trial counsel failed to present or request a jury instruction on the voluntary intoxication defense. Petitioner asserts that his trial counsel should have requested a jury instruction on voluntary intoxication because (1) trial counsel argued in his opening argument that Petitioner’s intoxication the night of the murder affected him, (2) the State introduced evidence regarding Petitioner’s use of alcohol and marijuana (T.p. 712-13), (3) the trial court instructed the jury on a lesser offense of involuntary manslaughter, and (4) voluntary intoxication may be considered in determining whether an act was done intentionally under Ohio law. Indeed, at the time of the crime the law in Ohio stated that “evidence of voluntary intoxication ‘may be considered in determining whether an act was done intentionally or with deliberation and premeditation.’ ” Hicks v. Collins, 384 F.3d 204, 214 (6th Cir.2004) (quoting Combs, 205 F.3d at 288); see also Ohio v. Wolons, 44 Ohio St.3d 64, 68, 541 N.E.2d 443 (1989). Voluntary intoxication is a defense to a crime where specific intent is a necessary element of the crime and “the intoxication was such as to preclude the formation of such intent....” Ohio v. Fox, 68 Ohio St.2d 53, 55, 428 N.E.2d 410 (1981). “[E]vidence of voluntary intoxication may be taken in order to show defendant was thereby precluded from forming the necessary ‘purpose’ to commit murder.” Id. The Ohio Supreme Court in Fox held that a jury instruction on intoxication might be appropriate where evidence supported the instruction, but it left it to a trial court’s discretion whether to issue the instruction. Id. at 56, 428 N.E.2d 410. Following Fox, the Sixth Circuit noted that the United States Supreme Court has not held that “the Constitution requires trial courts to give jury instructions on intoxication as a defense to a murder charge.” Hill, 400 F.3d at 322. “[E]ven severe intoxication can co-exist with purpose to kill.” Id. at 324 (quoting Ohio v. Dennis, 79 Ohio St.3d 421, 683 N.E.2d 1096,1109 (1997)). Chief Magistrate Judge Merz set forth the reasons why the trial court in this case might have properly concluded that the evidence was overwhelming that Moore’s conduct had been intentional and an intoxication instruction was not warranted: He drove to another county with the intentions of stealing a car with out of state plates. He kidnaped Olinger at gunpoint, put him in the trunk, and drove to multiple locations before going to the desolate area in which Olinger was shot. Once there Moore had Olinger empty his pockets and then walk over to the dumpster. Following the murder, Moore used Olinger’s credit cards at local JC Penny department stores. (Doc. 128 at 57-58.) In these circumstances, trial counsel either did not err in not requesting the instruction and/or Petitioner cannot establish prejudice as a result of the trial counsel’s decision not to request the instruction. The Court DENIES subclaim (B) of the Third Ground for Relief. 2. Subclaim (C): Trial counsel failed to seek or offer a forensic expert. Petitioner asserts in this subclaim that his trial counsel provided ineffective assistance of counsel when they failed to offer forensic evidence in an effort to corroborate Petitioner’s theory of the shooting— that the gun held by Moore accidently discharged as he bent down — despite promising in their opening statement to present such evidence. Petitioner’s trial counsel had stated during opening statements as follows: I think the evidence that you will hear will indicate that when [Moore] talked to the police, he told them that he didn’t mean to kill anybody. He had no intention to do that; ... he had been smoking marijuana that night; he had been drinking beer and alcohol; and that when the unfortunate shooting occurred it was an accident; that the gun went off; that he didn’t mean to hurt anybody; he didn’t hope to hurt anybody. (T.p. 558-54.) As Chief Magistrate Judge Merz found, Petitioner’s subclaim fails because he cannot establish that he was prejudiced by his trial counsel’s failure to present forensic expert testimony. The deputy chief coroner testified at trial that the gun was at a distance of six inches to twenty-four inches away from the head of Melvin Olinger when it was fired. (T.p. 841.) He also testified that the exit wound from the bullet that killed Melvin Olinger was higher on the skull than the entrance wound. (T.p. 889.) Finally, the