Stallings v. Bagley (561 F. Supp. 2d 821, 2008)

MEMORANDUM OF OPINION & ORDER

KATHLEEN McDONALD O’MALLEY, District Judge.

Michael Stallings petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Stallings challenges the constitutional sufficiency of his conviction by a jury for aggravated capital murder and also challenges the constitutionality of the imposition of a sentence of death.

For the reasons set forth below, StaE-ings’s petition for a writ of habeas corpus wEl be GRANTED in part and DENIED in part. Specifically, the Court grants Stallings a writ of habeas corpus as it pertains to his claim of ineffective assistance of trial counsel at the mitigation phase of trial. The Court denies habeas relief for all other grounds for relief raised in the petition. The Respondent shall either: (1) set aside Stallings’s sentence of death; or (2) conduct another penalty phase. This shall be done within 180 days from the effective date of this Order. On this Court’s own motion, execution of this Order and, hence, its effective date, is stayed pending appeal by the parties.

I. PROCEDURAL HISTORY

On June 3, 1997, Stallings was indicted on five counts. The first count was for aggravated murder in violation of Ohio Revised Code § 2908.01(B)(felony murder). This charge contained two death penalty specifications pursuant to Ohio Revised Code § 2929.04(A)(7): that Stallings killed the victim, Rolisha “Michelle” She-phard, during the commission of an aggravated robbery and aggravated burglary; and, that he was the principal offender of this murder. Stallings was also charged with the following: attempted aggravated murder of Christopher Williams, Jr., in violation of Ohio Revised Code § 2923.02 and § 2903.01(B); two counts of aggravated robbery in violation of Ohio Revised Code § 2911.(A)(1) and (A)(3); and aggravated burglary in violation of Ohio Revised Code § 2911.11(A)(1) and (A)(2). Each charge contained a firearm specification. The charges of aggravated attempted murder and one count of aggravated robbery were dismissed prior to trial. Stallings pled not guilty to all charges and specifications in the indictment on June 4, 1997.

On September 11, 1997, Stallings moved and was granted permission to sever his trial from co-defendants Marc Lee and Donzell Lewis. Concurrently, Stallings filed a motion to suppress statements he had previously made. After conducting a hearing on the issue, the trial court denied the motion.

A jury trial began on February 10, 1998. The jury found Stallings guilty of all counts and specifications remaining in the indictment. The penalty phase of trial commenced on February 17, 1998. One day later, the jury found that the aggravating circumstances outweighed the mitigating factors and recommended a sentence of death. The trial court accepted the jury’s recommendation on February 25, 1998. The court also sentenced Stallings to ten years of imprisonment on the aggravated robbery charge, ten years on the aggravated burglary charge, and three years on each of the three firearm specifications.

Stallings appealed the verdict and sentences on April 3, 1998. Represented by Lawrence J. Whitney and Renee W. Green, Stallings filed a brief in the Ohio Supreme Court alleging sixteen propositions of law. The Ohio Supreme Court affirmed the convictions and sentences on July 19, 2000. State v. Stallings, 89 Ohio St.3d 280, 731 N.E.2d 159 (2000).

While his direct. appeal was pending, Stallings also filed a petition for post-conviction relief pursuant to Ohio Revised Code § 2953.21. Represented by Laney J. Hawkins and Jonathan A. Woodman of the Ohio Public Defender’s Office, Stallings raised twenty grounds for relief. Unpersuaded by Stallings’s allegations, the post-conviction court dismissed the petition on April 26, 1999. State v. Stallings, No. CR-97-05-1118(A), 1999 WL 34842362 (Ohio Ct. Common Pleas Apr. 26, 1999). Stallings appealed the post-conviction court’s decision to the Ninth District Court of Appeals. That court affirmed the post-conviction court’s findings. State v. Stallings, No. 19620, 2000 WL 422423 (Ohio Ct.App. Apr. 19, 2000). Stallings appealed the Ninth District Court’s ruling to the Ohio Supreme Court on June 5, 2000. The court declined to exercise jurisdiction. State v. Stallings, 90 Ohio St.3d 1404, 734 N.E.2d 835 (2000)(Table). Stallings petitioned for a writ of certiorari to the United States Supreme Court, but the Court denied certiorari on February 20, 2001. Stallings v. Ohio, 531 U.S. 1158, 121 S.Ct. 1112, 148 L.Ed.2d 981 (2001).

Alleging that his appellate counsel were ineffective on his first appeal as of right, Stallings filed an application to reopen his direct appeal pursuant to Ohio Rule of Supreme Court Practice XI(6). The Ohio Supreme Court denied the application to reopen on February 7, 2001. State v. Stallings, 91 Ohio St.3d 1429, 741 N.E.2d 893 (2001)(Table). Although Stallings appealed this decision to the United States Supreme Court, the Court denied Stall-ings’s petition for a writ of certiorari on October 1, 2001. Stallings v. Ohio, 534 U.S. 836, 122 S.Ct. 89, 151 L.Ed.2d 51 (2001).

Stallings filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on January 14, 2002. Stallings v. Bagley, No. 5:02 CV 24 (N.D.Ohio Jan. 14, 2002)(Doc. No. 10). The parties thereafter filed motions and briefs in this action until June 19, 2002. On that date, the United States Supreme Court issued its opinion in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), holding that it is unconstitutional to execute the mentally retarded. Asserting his mental disabilities qualified him for this status, Stallings filed a motion to stay his federal habeas action pending a return to state court to pursue a claim under the Atkins holding. (Doc. No. 28). On September 30, 2002, the Court denied Stall-ings’s motion and instead dismissed his petition without prejudice so that he could litigate his mental retardation claim. (Doc. No. 45).

Stallings filed a successor post-conviction petition in state court on July 3, 2002. The post-conviction court held a hearing on the matter on August 28 and September 4, 2003. On January 16, 2004, the post-conviction court denied Stallings’s successor post-conviction petition on the merits. State v. Stallings, No. CR 1997 05 1118(A), slip op. (Ohio Ct. Common Pleas Jan. 16, 2004). Stallings appealed the post-conviction court’s decision on February 11, 2004. The Ninth District Court of Appeals affirmed the post-conviction court’s decision. State v. Stallings, No. 21969, 2004 WL 1932869 (Ohio Ct.App. Sept. 1, 2004). Stallings appealed that decision to the Ohio Supreme Court. That court declined to exercise jurisdiction and dismissed the appeal on January 26, 2005. State v. Stallings, 104 Ohio St.3d 1460, 821 N.E.2d 577 (2005)(Table). Stallings renewed his request for habeas corpus relief in this Court on March 11, 2005. The procedural history of this current action is described in Section III, below.

II. FACTUAL HISTORY

In its consideration of Stallings’s direct appeal, the Ohio Supreme Court set out the factual history of this case, as revealed by the evidence adduced at Stallings’s trial. The facts surrounding the underlying incident are as follows:

On December 15, 1996, in Akron, Ohio, Michael Stallings, defendant-appellant, agreed with two gang accomplices, Marc Lee (“Lee”) and Donzell Lewis (“Lewis”), to rob Eric Beverly (“Beverly”), a reputed local marijuana dealer. Lee furnished a shotgun to defendant, and defendant went with Lewis to an apartment belonging to Beverly’s girlfriend where Beverly was visiting.

Defendant entered, demanded money and marijuana from Beverly, and shot sixteen-year-old Rolisha “Michelle” She-phard. Defendant then left Akron and was arrested in May 1997 in Cleveland. The evidence reveals that a few days before December 15, 1996, Stacy Lewis (“Stacy Lewis”), who lived at the Edge-wood Apartment complex in Akron, overheard her boyfriend, Marc Lee, age twenty (also known as “Locc Up”), talking with her fourteen-year-old cousin, Donzell Lewis, about a robbery. However, because the intended victim knew both Lewis and Lee, they decided to get somebody else to rob the victim for them.

Coincidentally, on December 15, defendant (also known as “St. Ides”) and Clara Redd, his girlfriend, along with another woman, were driving back to Cleveland from Columbus. Around 6:00 or 7:00 p.m. that day, defendant and his two friends stopped in Akron at Stacy Lewis’s apartment to see Lee, whom defendant knew as a fellow “Crips” gang member from Cleveland. Lee held the rank of an “OG” or “original gangster,” a leadership position in the Crips, and Lewis and defendant were “BGs” (baby gangsters), or ordinary soldiers.

After defendant arrived at Stacy Lewis’s apartment, he agreed with Lee and Lewis to rob a neighborhood marijuana dealer, Eric Beverly. Lee picked defendant as the gunman because he was unknown in Akron. Their plan was to have Lewis, who had previously purchased marijuana from Beverly, secure entry to the apartment of Erika White, Beverly’s girlfriend, on the pretext of wanting to purchase marijuana. Once Lewis got inside, defendant, armed with a shotgun, would force his way inside and rob Beverly. Lee gave defendant a breakdown type, single-shot, sawed-off 12-gauge shotgun to carry out the agreed-upon robbery. The plan was to carry out a “simple robbery,” and Lewis was to pretend that he was also a robbery victim.

Sometime after 10:00 p.m., Lewis and defendant went to Erika White’s apartment. Redd waited in her car, having been told that defendant left “to go buy some weed.” Lewis knocked on the back door at Erika White’s apartment, and Kimberly White, Erika’s sister, answered the door. When Kimberly White opened the door, she recognized Lewis as Beverly’s friend, and called out to Beverly, who was sitting on the couch, “EJ, somebody want[s] you.” When Kimberly White turned around, she noticed that another man, whom she did not know, was holding a gun.

Then Kimberly White screamed and yelled, “He[’s] got a gun,” and tried to get her cousin, Michelle Shephard, who was also visiting the apartment with Kimberly White, to leave. But She-phard did not leave, and instead picked up her fourteen-month-old son, Christopher Williams, who was sitting on the floor. Kimberly White fled out the front door. While outside, she heard She-phard say, “Please.” Kimberly White later identified defendant from a photo lineup as the gunman.

Lewis testified that Kimberly White answered the back door, screamed, and then ran out the front door. Beverly was asleep on the couch, and Shephard was the only other person in the apartment aside from Christopher and one other young child upstairs.

Lewis also testified that after they entered, he stood against the wall and held his hands up, pretending that he was a robbery victim. Defendant stood about three or four feet away from Beverly, pointed the shotgun at him, and told him, “Give me the money and the weed.” Shephard, who was standing by the couch holding her son, asked Beverly to “give him the marijuana and the money.” Lewis also told Beverly, “Give it to him.” Beverly never said anything; he was “just looking” at defendant. According to Lewis, defendant then told Beverly, “Give me the money and the weed or I’m going to shoot your girlfriend.”

While Lewis had his back turned, he heard a shot, turned around and saw Shephard on the ground. Christopher, her baby, was also on the ground, crying. Beverly went to help Shephard, and defendant left through the back door.

In his testimony, Beverly claimed to remember very little of the events that evening, since he had been sleeping, drinking, and smoking marijuana. Beverly recalled that Kimberly White and Shephard were at the apartment, but claimed he did not hear anyone come in or hear any gunshot. Beverly did hear “people hollering” and woke up to find Shephard lying on the floor bleeding. He attempted to revive her and then left. On cross-examination, Beverly admitted that he had been charged with obstruction of justice because of his lack of cooperation.

The state presented other witnesses also. Holly Setser, who lived at the Edgewood Apartments, heard a woman at 722 Edgewood screaming, “He’s got a gun.” Then she heard a loud “pop” noise and saw a man carrying a “sawed-off shotgun” running across a parking lot. When the man got in a parked car, the car took off. While waiting in her car, Redd also heard a shot and saw defendant running to her car, carrying a gun like a “sawed-off shotgun.” After defendant jumped in Redd’s car, he told her, “Get out of here.”

Redd drove back to Stacy Lewis’s apartment, and defendant put the shotgun in the trunk. Lee borrowed Redd’s car keys in order to retrieve the shotgun. Defendant said he gave the shotgun back to Lee, but Lee denied receiving the shotgun, and police never recovered the weapon. After an hour, Redd drove to Cleveland, and then she and defendant drove to Detroit, where Redd lived. When a police officer entered the crime-scene apartment, he first noticed a “nice big blast of [marijuana] smoke,” as well as wet, clean ashtrays. Police found Shephard in the living room, lying on her back, with wounds on her left side and lots of blood. Although she had no pulse, medics took her to a hospital. Later, police discovered that Shephard’s son, Christopher, had been in the apartment and had blood coming from his ear. (The evidence suggests he was injured when his mother dropped him.) Within a few days, detectives knew defendant’s physical description, that he was called “St. Ides,” and that he was from Cleveland or Detroit. Lewis also described that evening’s events to police, but did not disclose his participation in the robbery.

The coroner found that Shephard had a large shotgun wound in her left arm and chest, causing “severe trauma to the chest, lungs, heart, veins * * * [and] bleeding was the cause of death.” Her death was instantaneous, and her life could not have been saved by any medical intervention. The coroner found gunpowder stippling on the wound and concluded that the gun muzzle was about six inches away from Shephard when she was shot.

Michael Roberts, a state forensic expert, examined the shirt that Shephard was wearing when she was shot. A hole in the shirt was consistent with having been caused by a “loose-contact” gunshot wound, and Roberts concluded that the muzzle of the shotgun must have been touching the shirt.

Following an extensive investigation, police discovered that “St. Ides” was Michael Stallings from Cleveland. Following his arrest in May 1997, defendant told police that he had stopped in Akron on December 15 to see Lee. While there, he agreed to act as the gunman for a “weed lick,” i.e., a robbery of a local marijuana dealer. Lee furnished him the shotgun, which was supposed to be unloaded. According to defendant, the gun had a hair trigger and accidentally went off as defendant left the apartment. Defendant asserted that he did not think the gun was operable, that he never meant to shoot Shephard, and that Shephard was about five feet away when she was shot.

In a plea bargain, both Lewis and Lee pled guilty to certain felonies and testified at trial against defendant. In his defense at trial, defendant testified that when he agreed to do the robbery, Lee gave him a sawed-off shotgun and told him the shotgun “wasn’t supposed to be loaded.” After Lewis knocked on the door, he and Lewis went inside together. According to defendant, Beverly was awake, but did not hand over any money or drugs. Lewis, standing by the wall, hands up, pretending to be a victim, also told Beverly to “Give him the money and the weed.” Shephard also encouraged Beverly to give up the money and drugs by telling Beverly, “Give it to him, give it to him.”

After a while, defendant said he “realized [he] wasn’t going to stand here and constantly argue with this man about the money and marijuana; so, [he] turned around to leave, * * * heard something drop, * * * turned around[,] and that’s when the gun went off.” He denied that he pulled the hammer back on the gun. After he saw Shephard fall back, he left the apartment and went to Redd’s car.

Defendant admitted that he pointed the shotgun at Beverly and twice told Beverly, “Give me the money and the weed,” but Beverly said nothing. Defendant denied that he ever threatened to shoot Beverly’s “girlfriend,” and denied that he ever saw a child in the room. Defendant admitted, however, that Lewis told Beverly to give up the money or defendant would shoot his girlfriend. Defendant also denied that he loaded the shotgun or knew that it was loaded. Defendant claimed that Lee told him the gun was unloaded, but he admitted he never checked to make sure. Defendant asserted that he knew how the gun was loaded because he had seen Lee load it before. “[I]t took a lot of work to shut it.” He agreed that to load it you had to break the gun open, put the shell in, then close it, and that “it was hard to close.”

State v. Stallings, 89 Ohio St.3d 280, 731 N.E.2d 159, 164-166 (2000). Other relevant facts will be set forth when necessary during the Court’s discussion of Stallings’s individual claims for relief.

III. FEDERAL HABEAS PROCEEDING

As noted above, Stallings initially filed a notice of intent to file a petition for federal habeas relief on January 14, 2002. Stallings v. Bagley, No. 5:02 CV 24 (N.D.Ohio Jan. 14, 2002)(Doc. No. 10). The Court dismissed that action once Stallings informed it that he intended to assert an Atkins claim in state court. (Doc. No. 45).

Upon completion of the state court proceedings, Stallings returned to this Court, filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on March 11, 2005. Stallings v. Bradshaw, No. 5:05 CV 722 (N.D.Ohio Mar. 11, 2005). Stallings moved for, and the Court appointed, Joseph E. Wilhelm and Rachel G. Troutman from the Office of the Ohio Public Defender to represent him. (Doc. Nos. 4; 6). The Respondent filed a return of writ on August 1, 2005. Stallings thereafter filed a traverse, (Doc. No. 20), to which the Respondent filed a sur-reply on November 21,2005. (Doc. No. 22).

On December 13, 2005, the Court granted the parties’ joint request for discovery. (Doc. No. 23). Because some discovery issues remained in dispute, both parties thereafter filed motions for further discovery. (Doc. Nos. 24; 25). On February 28, 2006, the Court issued an order granting in part and denying in part Stallings’s requested discovery, and granting the Respondent’s requested discovery. (Doc. No. 31). Stallings thereafter filed a motion for expanded discovery and a motion to expand the record to include the depositions of trial counsel. (Doc. Nos. 33; 37). The Court granted Stallings’s motion to expand the record but found that Stallings set forth insufficient good cause to extend discovery. (Doc. Nos. 37; 46).

On March 8, 2007, Stallings filed a motion for an evidentiary hearing. (Doc. No. 48). After both parties requested and received permission to the enlarge the timé in which to file responsive briefs, the motion became ripe for disposition on May 7, 2007. Thereafter, the Court granted Stall-ings’s motion for an evidentiary hearing but limited the testimony. Stallings could present to no more than three hours of witness testimony (not counting time for cross-examination); the Court allowed each party one hour for oral argument. (Doc. No. 55). The Court set the hearing date for August 29, 2007.

After ruling on several motions in limine prior to that date, the Court held an evi-dentiary hearing regarding Stallings’s ninth claim for relief — ineffective assistance of counsel during the mitigation phase of trial for failure to investigate and present mitigating evidence — on August 29, 2007. Stallings presented three witnesses for testimony and presented records regarding Stallings and his history that were not presented at trial. First, Stallings called George Hoffman, a guidance counselor and the acting principal at the Cuyahoga Hills Boys School, a Department of Youth Services (“DYS”) facility, at the time Stallings attended that school. Hoffman both authenticated Stallings’s records from his time at Cuyahoga Hills and discussed his personal recollections of Stallings. Although he had been a guidance counselor for DYS and had overseen the education of over 60,000 students as one of its employees, he had an independent recollection of Stallings because he was the only student Hoffman had ever encountered who had both a severely low I.Q. (below a score of 80), and a Severe Behavioral Handicap, or SBH, diagnosis. While at the time Stallings attended the institution he was almost seventeen years old, Hoffman testified that Stallings’s day-to-day functioning level was approximately that of a seven-year-old and his academic abilities were those of a first grader. (Doc. No. 94, at 14-15). He described Stallings as a follower who was “picked on” much of the time by other students housed in his cottage or dorm. Id. at 14. Hoffman stated that, while he was willing to testify at Stallings’s trial, defense counsel never contacted him. Id. at 20.

Stallings next called Dorian Hall, the current supervisor of mitigation specialists and criminal investigators in the Office of the Ohio Public Defender, to testify. Hall provided her opinion regarding the sufficiency of defense counsels’ investigation for mitigating evidence. While Hall conceded that it is the trial attorneys who ultimately formulate mitigation strategy, she emphasized the importance of conducting a thorough mitigation investigation by interviewing the client and contacting former educators. Hall averred that medical records of a client may be scant if the client comes from a poor background for a variety of reasons. She stated that much of her past clients’ medical care came from clinics and emergency rooms. Hall also testified that if there was abuse in the home, parents typically would not seek medical treatment for a child’s injuries for fear of involving the Department of Children’s Services. (Doc. No. 94, at 52).

As a mitigation specialist, Hall stated that, she routinely would review a client’s file for indications of organic brain damage even if medical records did not document any. She noted in Stallings’s case in particular that the record was replete with “red flags” that should have triggered counsel’s duty to investigate for organic brain impairment. Specifically, she underscored Stallings’s low I.Q. and difficulty mastering long and short vowel sounds. Id. at 59. Most blatant were the school evaluations that indicated organic impairment or the SBH designation for Stallings. Based on her experience with reviewing these types of records, Hall testified that, without question, counsel should have requested a neurological psychiatric evaluation to investigate for possible brain damage. During cross-examination, Hall admitted that she is not an attorney and does not assess what information should be presented to a jury.

Stallings’s final witness was Dr. Kathleen Burch, a psychologist who examined Stallings during state post-conviction proceedings. After reviewing records from DYS, Cuyahoga Hills, and Dr. Bendo, and performing several psychological tests, Dr. Burch stated that Stallings suffers from “a moderate level of cerebral brain impairment.” (Doc. 94, at 88). She explained that the diagnosis “moderate” is approximately a score of six in a range of one through nine. She concluded that Stall-ings’s brain impairment manifested in his limited ability to read and write, to plan and organize, and to self-monitor and direct his behavior. When asked what caused this brain damage, Dr. Burch responded that several factors, such as heredity, Stallings’s head injuries, and his early abuse of alcohol and drugs were all likely factors. Id. at 97.

Dr. Burch also testified that the circumstances surrounding the murder were consistent with Stallings’s limited intellectual functioning. For instance, it is undisputed that Stallings was recruited to participate in the robbery by gang members who were in a position of influence over him, even though he had no prior involvement with the robbery victim and no prior interest in obtaining the victim’s property. She noted, moreover, that, while his co-defendant had testified that Stallings was directed not to enter the house they intended to rob until after the others had entered, Stall-ings apparently could not follow that direction and proceeded to enter with them. She also observed Stallings’s lack of motive for shooting the victim and his level of remorse about doing so. During cross-examination, however, Dr. Burch did admit that, despite his impairments, Stallings had the ability to differentiate right from wrong. Id. at 149.

Dr. Burch testified that even a psychologist who is not trained specifically in neu-ropsychological evaluations, but had read the DYS documents that stated Stallings suffers from “organic impairment,” documentation demonstrating that he had suffered from head injuries as a child, and reports that he began abusing drugs at an early age, should have inquired further into the possibility of brain damage. Id. at 153-54.

The Respondent thereafter called Dr. Joseph Bendo, the psychologist hired by the defense team, to testify. Dr. Bendo stated that, at the time of trial, the only indicator of brain damage he believed was present in Stallings’s case was his history of head injuries. He said he had reviewed five psychological reports, but found nothing contained therein to indicate the presence of brain damage. He stated that he found no evidence of brain damage in his own psychological testing and, thus, did not raise the specter of its existence in his testimony. (Doc. No. 94, at 177). During cross-examination, however, Dr. Bendo admitted that he had reviewed files indicating that Stallings had abused drugs at an early age and that Stallings had two siblings who were low functioning, with a low I.Q. Dr. Bendo also reviewed the Bender Gestalt test results that post-conviction counsel had procured from the DYS records indicating organic impairment. When habeas counsel asked Dr. Bendo whether the results of this test indicated that Stallings suffered from brain damage, he replied that it is “possible.” Id. at 189. Importantly, Dr. Bendo indicated that he discussed the possibility of Stallings’s brain damage with trial counsel, but was not asked by counsel to pursue the matter further. He testified as follows:

Q: Did you have — did you indicate to [habeas co-counsel] that you discussed with counsel the possibility of Michael having brain damage with trial counsel?

A: Yes, based on the head injuries, yes.

Q: So did you — you did — I’m trying to — I’m trying to be fair with you. You did discuss with trial counsel the possibility that Michael could have brain damage based on head injuries?

A: Yes.

Id. at 190. He did not know what counsel did by way of follow-up to that discussion.

After this testimony, both parties were given an opportunity to present arguments with respect to Stallings’s claim of ineffective assistance of counsel at the mitigation phase — both as that claim related to the evidence presented at the hearing and as it related to the remainder of the record. The Court thereafter adjourned the proceeding. On December 20, 2007, after the evidentiary hearing transcripts were filed with the Court, this matter became ripe for disposition. (Doc. No. 94).

IV. GROUNDS FOR RELIEF

In his petition, Stallings asserts ten (10) grounds for relief:

1. Petitioner’s right to due process was violated by prosecutor misconduct at the culpability phase of Petitioner’s trial.

2. Petitioner’s right to due process was violated by prosecutor misconduct at the penalty phase of Petitioner’s trial.

3. Petitioner’s right to equal protection was violated when the State of Ohio used a peremptory challenge to exclude an African-American prospective juror, Autumn Hill, from the jury on the basis of that juror’s race.

4. Petitioner’s due process right to a fair trial was violated by instructional errors on the aggravated murder charge at the culpability phase of his capital trial.

5. Petitioner’s right against cruel and unusual punishment and his right to due process were violated by constitutionally infirm jury instructions at the penalty phase of his capital trial.

6. Petitioner’s right to a fair and impartial jury and his right to due process was violated by an improper contact between a witness and members of the jury.

7. Petitioner’s right to due process was violated by the ineffective assistance of counsel in Petitioner’s direct appeal to the Supreme Court of Ohio.

8. Petitioner’s Sixth Amendment right to the effective assistance of trial counsel was violated by counsel’s failure to object to various errors that denied Petitioner a fair trial.

9. Petitioner’s Sixth Amendment right to the effective assistance of trial counsel was violated by counsel’s failure to investigate, prepare, and present compelling mitigation evidence during the penalty phase of Petitioner’s trial.

10. Petitioner’s death sentence is unconstitutional because he is mentally retarded.

V. THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which amended 28 U.S.C. § 2254, was signed into law on April 24, 1996. In Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), the United States Supreme Court held that the provisions of the AEDPA apply to habeas corpus petitions filed after that effective date. See also Woodford v. Garceau, 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003); Barker v. Yukins, 199 F.3d 867, 871 (6th Cir.1999)(“It is now well settled that AEDPA applies to all habeas petitions filed on or after its April 24, 1996 effective date.”). Because Stallings’s petition was filed on March 11, 2005, the AEDPA governs this Court’s consideration of his petition.

The AEDPA was enacted “to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases, and ‘to further the principles of comity, finality, and federalism.’ ” Woodford, 538 U.S. at 206, 123 S.Ct. 1398 (quoting Williams v. Taylor, 529 U.S. 362, 364, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). The requirements of the AEDPA “create an independent, high standard to be met before a federal court may issue a writ of habeas corpus to set aside state-court rulings.” Uttecht v. Brown, — U.S. —, 127 S.Ct. 2218, 2224, 167 L.Ed.2d 1014 (2007) (citations omitted). Section 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). This legal standard establishes a multi-faceted analysis involving a consideration of both the state court’s statement and/or application of federal law and its finding of facts.

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

Even if the state court identifies the “correct governing legal principle,” a federal habeas court may still grant the petition if the state court makes an “unreasonable application” of “that principle to the facts of the particular state prisoner’s case.” Id. at 413, 120 S.Ct. 1495. A state-court decision also involves an unreasonable application if it unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Id. at 407, 120 S.Ct. 1495; Hill, 337 F.3d at 711. As the Supreme Court recently advised, “[t]he question under AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold.” Schriro v. Landrigan, - U.S. -, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007)(citing Williams, 529 U.S. at 410, 120 S.Ct. 1495). The reasonableness of the application of a particular legal principle depends in part on the specificity of the relevant rule. Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). While the application of specific rules may be plainly correct or incorrect, courts may have more leeway in reasonably applying more general rules in the context of a particular case. Id.

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

By its express terms, however, Section 2254(d)’s constrained standard of review only applies to claims that were adjudicated on the merits in the state court proceeding. Clinkscale v. Carter, 375 F.3d 430, 436 (6th Cir.2004). When a state court does not assess the merits of a petitioner’s habeas claim, the deference due under the AEDPA does not apply. In such a case, the habeas court is not limited to deciding whether that court’s decision was contrary to or involved an unreasonable application of clearly established federal law, but rather conducts a de novo review of the claim. Morales v. Mitchell, 507 F.3d 916, 930 (6th Cir.2007) (citations omitted); Newton v. Million, 349 F.3d 873, 878 (6th Cir.2003); Maples v. Stegall, 340 F.3d 433, 436-37 (6th Cir.2003). If the state court conducts a harmless error analysis but does not indicate whether its finding is based on state or federal constitutional law, however, a habeas court, while conducting an independent review of the facts and applicable law, must nonetheless determine “whether the state court result is contrary to or unreasonably applies clearly established federal law.” Maldonado v. Wilson, 416 F.3d 470, 476 (6th Cir.2005)(citing Harris v. Stovall, 212 F.3d 940, 943 (6th Cir.2000)).

YI. PROCEDURAL DEFAULT

In general, a federal court may not consider “contentions of general law which are not resolved on the merits in the state proceeding due to petitioner’s failure to raise them as required by state procedure.” Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). If a “state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). To be independent, a state procedural rule and the state courts’ application of it “must rely in no part on federal law.” Fautenberry v. Mitchell, No. C-1-00-332, 2001 WL 1763438, at * 24 (S.D.Ohio Dec. 26, 2001)(citing Coleman, 501 U.S. at 732-733, 111 S.Ct. 2546). To be adequate, a state procedural rule must be “firmly established and regularly followed” by the state courts at the time it was applied. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991); Williams v. Coyle, 260 F.3d 684, 693 (6th Cir.2001). If a petitioner fails to present fairly any federal habeas claims to the state courts but has no remaining state remedies, then the petitioner has procedurally defaulted those claims. O’Sullivan v. Boerckel, 526 U.S. at 848, 119 S.Ct. 1728; Rust v. Zent, 17 F.3d at 160.

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

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

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

In determining whether the Maupin factors are met, the federal court looks to the last explained state court judgment. Ylst v. Nunnemaker, 501 U.S. 797, 805, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Combs v. Coyle, 205 F.3d 269, 275 (6th Cir.2000). ‘“[A] procedural default does not bar consideration of a federal claim on habeas corpus review unless the last state court rendering a reasoned opinion in the case clearly and expressly states that its judgment rests on a state procedural bar.’ ” Morales v. Mitchell, 507 F.3d 916, 937 (6th Cir.2007)(quoting Frazier v. Huffman, 343 F.3d 780, 791 (6th Cir.2003)). Conversely, if the last state court to be presented with a particular federal claim reaches the merits, then the procedural bar is removed and a federal habeas court may consider the merits of the claim in its review. Ylst, 501 U.S. at 801, 111 S.Ct. 2590.

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

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

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

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

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

In his traverse, Stallings concedes that grounds for relief 1, 2, 3, part of 4 (the subpart addressing the foreseeability instruction), and 5 were raised only as ineffective assistance of appellate counsel claims in his application to reopen the direct appeal, rather than as distinct grounds for relief. As Stallings acknowledges, the Sixth Circuit has held that a habeas claim is exhausted only if it is raised under the same theory in federal court as it was in state court. Lorraine v. Coyle, 291 F.3d 416, 425 (6th Cir.2002). Thus, the underlying merits of these grounds for relief are not ripe for habeas review.

Each of these issues is raised, however, in the context of Stallings’s ineffective assistance of counsel claims&emdash;claims 7 and 8 of his petition. While the standards to be employed in assessing these issues differ when presented solely in the context of ineffective assistance of trial and appellate counsel claims, their presence in that context requires a discussion of the merits of each. For ease of reference, accordingly, the Court discusses the merits of each of the subparts of claims 7 and 8 in the order in which they appeared in the original petition (ie., as claims 1 through 5), and then discusses the impact of those initial conclusions when it reaches claims 7 and 8. In doing so, the Court is neither ignoring, nor forgiving, the admitted procedural default as to the underlying merits of claims 1, 2, 3, part of 4, and 5 as asserted in those claims.

VII. INDIVIDUAL GROUNDS FOR RELIEF

A. First and Second Grounds for Relief: Prosecutorial Misconduct

In these grounds for relief, Stallings asserts that the prosecution made several improper remarks during both the culpability and penalty phases of trial. To assert a successful prosecutorial misconduct claim it “is not enough that the prosecutors’ remarks were undesirable or even universally condemned. The relevant question is whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)(qouting Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)); Durr v. Mitchell, 487 F.3d 423, 439 (6th Cir.2007). This question must be answered in light of the totality of the circumstances in the case. Lundy v. Campbell, 888 F.2d 467, 473 (6th Cir.1989), cert. denied, 495 U.S. 950, 110 S.Ct. 2212, 109 L.Ed.2d 538 (1990). The prosecutor’s comments must be so egregious as to render the trial fundamentally unfair. Simpson v. Jones, 238 F.3d 399, 409 (6th Cir.2000).

A habeas court must examine the allegedly improper remarks and determine whether they were both improper and flagrant. Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir.2006). When reviewing claims of prosecutorial misconduct, a court must consider the following four factors: “(1) the likelihood that the remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and (4) the total strength of the evidence against the defendant.” United States v. Davis, 514 F.3d 596, 613 (6th Cir.2008)(quoting Broom, 441 F.3d at 412)(further citations and internal quotation marks omitted). If a statement is not flagrant but is improper, a habeas petitioner is not entitled to relief on that claim unless the court finds that: “(1) the proof of the defendant’s guilt is not overwhelming; (2) the defense counsel objected; and (3) the trial court failed to cure the impropriety by failing to admonish the jury.” Id. (citing United States v. Tocco, 200 F.3d 401, 420-21 (6th Cir.2000)).

1. First Ground for Relief — Culpability Phase of Trial

In this ground for relief, Stallings asserts that the prosecution made improper comments when it: (a) discussed and introduced evidence about the harm caused to the victim’s infant son, Christopher Williams, even though the prosecution dropped attempted murder charges pertaining to Christopher; (b) discussed and introduced evidence regarding the good character of the victim; and (c) attempted to shift the burden of proof to Stallings. Stallings also asserts that the cumulative effect of these improper comments prejudiced the outcome of the culpability phase of trial. The Court now subjects these comments to the tests articulated above, finding that, while some comments were improper, the overwhelming evidence of Stallings’s guilt negates any prejudicial effect on the outcome of the culpability phase of trial.

a. Sub-claim (a) — comments regarding Christopher Williams

Stallings asserts that the prosecution commented on and elicited testimony regarding harm that befell Christopher after the shooting in an effort to evoke sympathy from the jury. Although the prosecution initially charged Stallings with the attempted murder of Christopher, it later dismissed that charge. Stallings maintains that, because no charges pertaining to Christopher were at issue during trial, his injuries, if any, were irrelevant. He points to several instances during the State’s witness testimony in which the prosecution queried about Christopher’s whereabouts and well-being, asserting that these questions were improper. Stallings also argues that the prosecutor improperly discussed Christopher during the culpability phase closing argument.

The Court finds that the testimony the prosecution elicited about Christopher’s whereabouts prior to, during, and after the murder, while unnecessary, was neither “flagrant” nor improper. The prosecution was permitted to provide the jury with an understanding of the events surrounding the murder, even if a description of those events might also have a tendency to arouse sympathy. Thus, when questioning co-defendant, Donzell Lewis, about the events that occurred directly after the shooting, the prosecutor asked where the occupants of the apartment were located at that time:

Q: And what were you doing?

A: Standing over [Eric Beverly] looking.

Q: Where was the baby at that point?

A: The baby was standing by me.

Q: This baby was right by Michelle?

A: By me.

Q: By you?

A: Yes.

Q: Still on the floor?

A: Uh-huh. He got up. The baby got up.

Q: I’m sorry?

A: The baby got up.

Q: The baby got up?

A: Yeah.

Q: The baby is about 14 months old, the baby was walking, right?

A: Yeah.

Q: All right. The baby got up and did what?

A: The baby was just standing there crying.

Q: Okay. What, if anything, did Eric Beverly do then?

(Trial Tr., Vol. 11, at 1296). It is clear from the context of this colloquy that the prosecution’s questioning about Christopher’s whereabouts, which was both preceded and followed by queries regarding the location of others in the room, had the effect of informing the jury about the circumstances surrounding the murder, ie., the res gestae of the event. Because they neither misled the jury, nor overly prejudiced Stallings, these questions were not “flagrant.” Moreover, as is apparent from the quote, the inquiry about Christopher was isolated, or at least relatively so, within the meaning of the third Davis factor. At that point in the testimony, questions regarding the identity and location of individuals immediately following the shooting were legitimate lines of inquiry to establish the events occurring before and after the murder. Accordingly, Stallings’s assertion that questions put to State witnesses regarding Christopher’s whereabouts constituted prosecutorial misconduct is not well-taken.

The prosecutor’s closing statements in the culpability phase, however, are problematic. After underscoring some of the testimony the prosecution elicited from its witnesses, the prosecutor argued that Michelle Shephard also “testified” through the evidence presented at trial. He depicted the “evidence” regarding Michelle’s attempts to spare Christopher’s life as follows:

Then what does Michelle Shephard tell you happened? That man right there, Michael Stallings, pulls back the hammer on that shotgun and Michelle Shephard says clearly at that point I know I am going to be shot and, worse than that, my son Christopher is in harm’s way.

So, what do I do? I do the only thing I can think of to protect my son, and that is with that shotgun almost touching my chest, I turn to get my body between the shotgun and my son Christopher.

And Michelle Shephard tells you, and the last word that she would be able to say is, I did that and I saved my son.

He pulled back the hammer, he purposely pulled the trigger, he used the most deadly small arm we have to inflict that wound upon Michelle Shephard’s body in a fatal area but Michelle She-phard saved her son. He fell to the ground, he was injured but saved.

(Trial Tr., Vol. 13, at 1564).

It is clear that these comments constitute prosecutorial misconduct pursuant to the first three Davis factors. The comments were undoubtedly prejudicial to Stallings, particularly in light of the fact that the State had dismissed the charges of attempted murder of Christopher prior to trial. It is also clear that the prosecutor deliberately placed these comments before the jury and that the argument regarding Michelle’s “testimony” about Christopher was extensive. There is simply no excuse for the prosecution to have engaged in such blatant pandering. Ultimately, however, despite such intentional misconduct by the prosecution, Stallings cannot establish “flagrancy” under Davis because, as described above, evidence that Stallings shot and killed Shephard was overwhelming. Thus, the Court would not have granted relief on this claim even if Stallings had preserved it for federal habe-as review.

b. Sub-claim (b) — comments about good character of victim

Stallings also takes issue with the prosecution’s introduction of testimony about Shephard’s church attendance on the morning of the murder. He claims that the prosecutor elicited these statements to demonstrate Shephard’s good character, thus prejudicing the jury against her killer.

As with the statements regarding Christopher’s location, it is at least arguable that the prosecutor was merely attempting to enlighten the jury about the events that occurred on the day of the murder. She questioned Shephard’s mother, Brenda Shephard, regarding her daughter’s activities on that day, as follows:

Q: Okay. And where did you all go or did you go anywhere?

A: We went to church that morning.

Q: Okay. When you say “we,” who all went?

A: It was me, Michelle, Kimberly, Christopher and Samuel and Kenneth.

Q: Okay. You went to church all together and then what happened after that?

A: We wasn’t there that long because they had to go to church — another church that evening; so we had left kind of early.

Q: Who had to go to — I hate to keep interrupting.

A: Shiloh Baptist Church was going to another church that evening; so, they had let out about 1:00 and we had went to get on the van and Michelle had asked me could she go to Edgewood. She wanted to go to Edgewood because she wanted to go see Tonya.

(Trial Tr., Vol. 10, at 1030).

It is clear from the context of the questions that, even if calculated to arouse some sympathy, the prosecutor’s comments were not flagrant. A description of Shephard’s purpose for being in Beverly’s apartment that day was relevant. The prosecutor did not, moreover, expound on Shephard’s church involvement or attendance practices beyond this limited colloquy. This sub-claim has no merit.

c. Sub-claim (c) — prosecution’s alleged “burden shifting”

Stallings argues that the prosecution acted improperly to his prejudice by shifting the burden of proof to the defense during closing argument. This claim is based on one sentence of the prosecutor’s closing argument. After the prosecutor asserted that the State’s evidence proved Stallings’s guilt beyond a reasonable doubt, he stated, “[a]nd, again, if the Defense attorneys don’t agree with that, they will tell you what elements are missing from those offenses.” (Trial Tr., Vol. 13, at 1539). This comment did not call upon the defendant to produce evidence, it merely pointed out defense counsel’s right to question the adequacy of the State’s proof. Because it was an isolated comment, moreover, even if improper, the statement was clearly not flagrant. Again, such comments do not warrant habeas relief where, as here, the evidence of Stall-ings’s guilt was abundant. Moreover, as the Sixth Circuit noted in Davis, the trial court admonished the jury while charging it that the State bears the burden of proof on all elements of the crime. Id. at 1578. Thus, this claim has no merit.

d. Sub-claim (d) — cumulative effect

Stallings’s final sub-claim of his first ground for relief is that the cumulative effect of the prosecutorial misconduct that occurred during the culpability phase of the trial entitles him to habeas relief. Here, the Court finds that only the prosecutor’s closing argument comments were improper, but that Stallings cannot establish that they were flagrant within the meaning of Davis, because the evidence of his guilt was overwhelming. Accordingly, no error occurred here that would accumulate to prejudice Stallings’s trial. Thus, this claim is not well-taken.

2. Second Ground for Relief — Prose-cutorial Misconduct at Penalty Phase

Stallings argues that prosecutorial misconduct also tainted the penalty phase of his trial. He claims that the prosecution’s introduction of the culpability phase exhibits during the penalty phase of the trial prejudiced the jury against him. He also contends that the prosecution improperly cross-examined a defense witness about the finality of life sentences. Finally, Stallings maintains that one of the prosecutors acted improperly when he urged the jury to consider the “nature and circumstances” of the crime as it deliberated its sentencing verdict. The Court addresses each sub-claim sequentially.

a. Sub-claim (a) — culpability phase exhibits

In this sub-claim, Stallings complains that the prosecution sought, and received, the trial court’s permission to introduce the culpability phase exhibits and testimony at the penalty phase of trial. He claims that permitting the jury to consider the testimony and exhibits from the culpability phase, particularly evidence regarding the victim’s good character and the injury to Christopher, was prejudicial and irrelevant to the penalty phase of the trial.

As explained above, the testimony and exhibits the prosecutor presented during the culpability phase were not improper. While the closing arguments were inflammatory, they did not constitute evidence, and the jury was so instructed. (Trial Tr., Vol. 13, at 1589). Accordingly, Stallings cannot reasonably assert that the introduction of evidence, as distinct from argument, tainted the penalty phase of trial.

Moreover, as the Respondent observes, the Ohio Supreme Court has held that, pursuant to Ohio Revised Code § 2929.03(D)(1), “the prosecutor, at the penalty stage of a capital proceeding, may introduce any evidence raised at trial that is relevant to the aggravating circumstances the offender was found guilty of committing.” State v. DePew, 38 Ohio St.3d 275, 528 N.E.2d 542, 552 (1988)(internal quotation marks and citation omitted), rev’d on other grounds, DePew v. Anderson, 311 F.3d 742 (6th Cir.2002). Although the Ohio Supreme Court recognized that its ruling in DePew “appears to permit repetition of much or all that occurred during the guilt stage” of trial, it nonetheless found that the Ohio legislature intended this result, particularly in light of the State’s burden to prove that the aggravating circumstances a criminal defendant is found guilty of committing outweigh any mitigating factors beyond a reasonable doubt. Id. Thus, while the prosecution is at no time relieved of its duty to conduct its case in a constitutionally compliant manner, its motion to introduce this material in the penalty phase of Stallings’s trial, especially where one of the aggravating circumstances was the underlying felony (ie., the robbery of Beverly) that was the focus of the liability phase, is not improper in light of the Ohio Supreme Court’s De-Pew decision.

b. Sub-claim (b) — cross-examination of Robert Cox

Stallings claims that the prosecution tainted the penalty phase of the proceedings during the cross-examination of defense wi