Scott v. Anderson (58 F. Supp. 2d 767, 1998)

OPINION & ORDER

O’MALLEY, District Judge.

Jay D. Scott petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Scott challenges the constitutional sufficiency of his jury convictions for aggravated robbery and aggravated murder, and also challenges the constitutionality of the trial court’s imposition of a sentence of death for his murder conviction.

For the reasons stated below, the Court GRANTS IN PART Scott’s petition for writ of habeas corpus. Specifically, the Court finds that Scott’s challenges to the constitutionality of his underlying convictions are without merit. The Court further finds, however, that Scott’s challenge to the constitutionality of the trial court’s imposition of the death penalty is well-taken, because the trial judge improperly instructed the jurors that they must unanimously recommend a life sentence.

Accordingly, the Court issues a writ of habeas corpus as follows. The respondent shall either: (1) set aside Scott’s sentence of death and instead impose a life sentence; or (2) conduct another sentencing trial. The respondent shall resentence Scott or conduct a new sentencing proceeding 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.

1. Procedural History.

On May 6, 1983, Ms. Vinnie Prince, the owner and operator of the V & E Delicatessen in Cleveland, Ohio, was shot and killed during an attempted armed robbery of her store. On May 17, 1983, petitioner Scott and three others were indicted by the Cuyahoga County Grand Jury on two counts: (1) aggravated robbery, in violation of Ohio Rev.Code § 2911.01; and (2) aggravated murder, in violation of Ohio Rev.Code § 2903.01. Regarding the murder count, the Grand Jury added two specifications: (a) a death penalty specification, for violation of Ohio Rev.Code § 2929.04(A)(7); and (b) a firearm specification, for violation of Ohio Rev.Code § 2941.141.

Scott entered a plea of not guilty and went to trial on March 12, 1984. The jury returned a verdict of guilty as charged on March 23, 1984. The trial court then held a sentencing hearing, pursuant to Ohio Rev.Code §§ 2929.022(A) & 2929.03. On March 28, 1984, the jury returned with the recommendation that Scott be given the death penalty. The trial judge adopted this recommendation and sentenced Scott to death for his murder conviction. In addition, the trial judge sentenced Scott to a term of imprisonment of 7-25 years for his conviction of aggravated burglary, and imprisonment of 3 years for the gun specification.

Scott timely appealed his convictions and also the imposition upon him of the death penalty. The Ohio Court of Appeals affirmed, as did the Ohio Supreme Court. State v. Scott, 1985 WL 9047 (Ohio Ct.App. May 23, 1985); State v. Scott, 26 Ohio St.3d 92, 26 O.B.R. 79, 497 N.E.2d 55 (1986). The United States Supreme Court denied his petition for a writ of certiorari, although two justices (Marshall and Brennan) dissented. Scott v. Ohio, 480 U.S. 923, 107 S.Ct. 1386, 94 L.Ed.2d 699 (1987).

Scott petitioned for post-conviction relief in state court, pursuant to Ohio Rev.Code § 2953.21. Scott also filed a motion asking the trial judge to recuse himself frtan the post-conviction proceedings. The day after the State filed a motion to dismiss Scott’s post-conviction petition, the state trial court judge denied the motion to re-cuse and granted the motion to dismiss. Ohio v. Scott, No. CR 182521 (Cuyahoga Cty. Ct. Common Pleas Jan. 28,1988). On appeal, the Ohio Court of Appeals affirmed the denial of Scott’s motion to recuse, but reversed in part the dismissal of Scott’s petition and remanded the case for a hearing only on the issue of whether Scott was denied effective assistance of counsel at the mitigation hearing. State v. Scott, 63 Ohio App.3d 304, 578 N.E.2d 841 (1989). The Ohio Supreme Court denied the appeals of this ruling filed by both parties, so the case returned to the trial court for the mandated hearing. State v. Scott, 47 Ohio St.3d 705, 547 N.E.2d 986 (1989). Scott renewed his motion to recuse, but the trial judge implicitly overruled the motion by proceeding to hold the hearing. After holding this hearing, the trial court again denied Scott’s petition for post-conviction relief. Scott unsuccessfully appealed this denial. State v. Scott, 1993 WL 267109 (Ohio Ct.App. 8th Dist. July 15, 1993), motion overruled, 68 Ohio St.3d 1426, 624 N.E.2d 1064 (1994). The United States Supreme Court denied Scott’s petition for writ of certiorari, with Justice Blackmun dissenting. Scott v. Ohio, 512 U.S. 1213, 114 S.Ct. 2694, 129 L.Ed,2d 825 (1994).

In addition to these post-conviction proceedings, Scott also pursued post-conviction relief pursuant to Ohio v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204, 1209 (1992), which holds that an appellant who claims he was denied the effective assistance of appellate, counsel may obtain relief by applying for delayed reconsideration in the Court of Appeals, or fifing a delayed appeal directly to the Ohio Supreme Court. Specifically, Scott first filed a motion to reopen his appeal in the Ohio Court of Appeals. This motion-was denied. State v. Scott, Cuyahoga App. No. 48609 (Ohio Ct.App. 8th Dist. Sept. 17, 1992). The Ohio Supreme Court affirmed this decision, with Justice Wright dissenting, State v. Scott, 67 Ohio St.3d 1485, 621 N.E.2d 407 (1993), and the United States Supreme Court denied certiorari, with Justice Blackmun dissenting, Scott v. Ohio, 512 U.S. 1246, 114 S.Ct. 2769, 129 L.Ed.2d 883 (1994). Scott also filed a motion with the Ohio Supreme Court to accept a direct delayed appeal, but the Ohio Supreme Court refused. State v. Scott, 67 Ohio St.3d 1485, 621 N.E.2d 407 (1993).

The State of Ohio then filed a motion to set an execution date. The Ohio Supreme Court granted the motion, setting the date of execution for October 25, 1995. On September 20, 1995, Scott filed in this Court a notice of intent to file a petition for writ of habeas corpus. Scott then moved for a stay of .execution, and on October 12, 1995, this Court granted an indefinite stay of execution, pending decision on the instant petition for writ of habeas corpus.

II. Factual History.

When it considered Scott’s direct appeal of his convictions and sentence, the Ohio Supreme Court set out the factual history of this case, as revealed by the evidence adduced at Scott’s trial. State v. Scott, 26 Ohio St.3d 92, 497 N.E.2d 55, 56-58 (1986). This Court repeats that evidence here, using the Ohio Supreme Court’s language.

On May 6, 1983, Vinhie M. Prince, owner and operator of the V & E Delicatessen at East 86th Street and Quincy Avenue in Cleveland, was shot and killed during an attempted armed robbery of her shop. An autopsy later revealed that Prince died from a gunshot wound to the chest.

Octavia Hickman, a nearby resident, testified that while walking back to her home after shopping at the nearby Sav-more Market, she noticed a' greenish-blue Cadillac without a rear license plate pull up across from her house. She observed two black males inside the car, one behind the wheel and the other in the back seat. She later observed another black male come over a nearby fence and dive through the open window of the Cadillac. The car then drove away.

Another witness near the delicatessen when the incident occurred was Clifford Roberson. Roberson was heading toward the store with a female companion when they heard a shot fired inside the store. He immediately grabbed his friend and pushed her up against the wall of the building, in an effort to protect her. When he heard a screen door slam, he turned around and saw' two black males running from the store. Roberson testified that the taller man was about five feet eleven inches tall, wearing “some type of rag around his head,” and holding a long-barreled pistol. Upon opening the store’s door, Roberson observed Prince lying “almost to the door as if she was trying to chase them or something.” Roberson proceeded to flag down a nearby police car and informed the officers of the situation.

Another witness to this incident, Solomon Smith, testified he saw “two men run across the street, and run down to the corner of Mr. Cooper’s house, and turn through the alley, and jump the fence.” He described these assailants as two black males, one 5'10/6" tall, the other “a little shorter.” Smith did not observe anything in either of the fleeing mens’ hands.

Sometime after this incident, Detective Robert Moore received a telephone call from Ricky Tramble, and Moore arranged a meeting. Tramble testified at trial that, at this meeting, he informed Officer Moore that on the day Vinnie Prince was killed, he was with Edward O’Neal, Michael Streeter, Danny Jones, and Jay D. Scott; they were all at O’Neal’s girlfriend’s house, “to get high.” Tramble stated he overheard Scott say, “Well, I did what I had to do. She shouldn’t have made me move like that. Fuck it. It’s over with.” Tramble testified that, later that day, Scott told Tramble, “[t]hese niggers don’t know what they’re doing. * * * [T]hey get to crying about this and crying about that. This is what I do.” Scott professed to Tramble he was “a stick-up man” Tram-ble further related that, the next day, O’Neal informed him that Scott and O’Neal were involved in the V & E Delicatessen incident, including the shooting of Prince.

Pursuant to this information, the police subsequently apprehended and arrested Danny Jones. The police confiscated Jones’s automobile, an older model, blue, turquoise-bottom Cadillac with a white top and no license plate, but with a thirty-day tag. Jones signed a typewritten statement stating that he and O’Neal, Streeter, and Scott had been driving around, looking for a place to rob. After selecting the V & E Delicatessen as a target, Scott requested “front money” in order to fabricate a purchase, and wanted someone to go into the store with him. O’Neal finally agreed to accompany Scott into the store. At this time, Jones observed Scott was armed with a .38 caliber pistol that looked like a police revolver, and O’Neal was armed with a .25 caliber automatic handgun. Jones pulled his car around the corner from the V & E Delicatessen, and O’Neal and Scott got out of the car while Jones and Streeter waited for them. Later, Scott and O’Neal came running through a yard and climbed over a fence. O’Neal ran to the car and got in and Scott dove into the car through a window. Jones was told to “pull- off.” Later, Jones asked O’Neal what happened and O’Neal replied “that J.D. shot her * * * cause she went for her shit (her gun).” When Jones asked Scott if he had killed her, Scott replied, “naw she was still standing up when we ran out the door.” At trial, Jones repudiated that part of his typewritten statement wherein he acknowledged their intent to rob the V & E Delicatessen. Instead, Jones contended that Scott and O’Neal had gone into the store to get cold beer.

The police also apprehended Edward O’Neal, who also gave a typewritten statement to the police. O’Neal stated that he, Jones, Streeter, and Scott were driving around in Jones’s Cadillac. They stopped in front of the V & E Delicatessen because Scott told them he wanted to get some bologna and crackers. O’Neal followed Scott into the store. Scott asked for bologna and crackers and, when the old woman minding the store turned to obtain them, Scott pulled out a pistol. Scott told the woman to “freeze” and when the woman began to “holler” and “yell,” Scott fired a single shot at the woman, striking her. O’Neal related that he was momentarily stunned by this occurrence and it wasn’t until Scott grabbed him and pulled him out of the store that he began to run. They jumped a fence and ran to Jhe car. O’Neal stated that he did not observe the old woman in the store reach for a weapon.

At trial, O’Neal’s testimony differed from this written statement in that he testified it was he who ordered the bologna and crackers at the store. In addition, O’Neal asserted that he was unarmed throughout this ordeal and that Michael Streeter had the .25 caliber weapon in his possession while waiting in the car. O’Neal confirmed that he had talked with Ricky Tramble about what had transpired at the V & E Delicatessen.

Barbara Campbell, a trace-evidence analyst with the Cuyahoga County Coroner’s office, testified that, pursuant to the Walker Nitrate Test, the' muzzle of the gun which killed Vinnie Prince was estimated to have been twelve inches from her body when it was fired. Campbell further testified that a trace metal test conducted on the victim’s hands indicated that Prince did not handle or fire a weapon prior to her death. However, Detective David Hicks testified that Prince had a fully loaded .38 caliber revolver on her person when she was found.

On May 17, 1983, the grand jury charged Scott with: (1) aggravated murder, with an aggravated robbery specification and a firearm • specification, and (2) aggravated robbery. Also charged in the same indictments were co-defendants Danny Jones, Edward O’Neal and Michael Streeter. On November 10, 1983, Scott was apprehended in Philadelphia by Detective James Svekric of the Cleveland Police Department. During the trip back to Cleveland, Scott inquired who was using his name in connection with a homicide and robbery. Up to that point, the arresting officers had informed Scott that he was wanted in' connection with a homicide, but had made no mention that Scott was also charged with aggravated robbery. Scott maintained he had been in Reading, Pennsylvania when the incident occurred.

III. Habeas Proceedings.

On September 20, 1995, Scott filed a notice of intent to file alabeas petition, a motion to proceed in forma pauperis, and a motion for appointment of counsel. The Court granted the latter two motions and appointed John S. Pyle and Timothy Sweeney as co-counsel for Scott. Scott also moved for a stay of execution. On October 12, 1995, this Court granted an indefinite stay of execution, pending decision on the instant petition for writ of habeas corpus.

Scott filed his petition on February 2, 1996, and respondent filed a return on April 4, 1996. Scott then moved for a ruling that the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) did not apply to his habeas action. After the parties briefed the issue, this Court ruled that “Section 107 (Chapter 154) of the [AEDPA] is not applicable to this proceeding[ and] Section 104 of the [AEDPA] is.” Order at 2 (March 7, 1997). Specifically, the Court concluded that Chapter 154 “is not applicable to this matter because Ohio is not an ‘opt-in’ state under the express terms of that Chapter.” Id. at 10. The Court further concluded that Section 104— which increased the deference this Court must give to prior state court determinations, both of law and fact, and redefined the burdens applicable in evidentiary hearings held in connection with habeas corpus petitions filed by prisoners in state custody — was “applicable to the Court’s resolution of the issues raised in the petition in this matter,” even though Scott filed his petition about three months before the AEDPA became law. Id.

Scott filed a traverse on April 21, 1997, and respondent filed a reply to the traverse on May 5, 1997. Scott then filed a motion for leave to conduct discovery. The Court denied this motion for lack of a specific showing of necessity, but allowed Scott to move again for narrow discovery after his investigator’s work was complete. Hearing tr. at 17-19 (May 80, 1997); Order at 1 (June 2, 1997). Scott then filed a supplemental motion for leave to conduct discovery, which the Court denied because Scott had not shown good cause. Order at 1 (Oct. 27, 1997). By separate Order of the same date, the Court also denied Scott’s motion for an evidentiary hearing.

On June 23, 1997, the supreme Court decided Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). Lindh interpreted the AEDPA to mean that, in cases like this one, which were pending at the date of enactment, federal courts must apply the former statute’s presumption of correctness regarding state court determinations, 28 U.S.C. § 2254(d) (1994), rather than the new standards requiring greater deference to the state court determinations required under the amended statute, 28 U.S.C. § 2254(e) (1998). Accordingly, in its Order dated October 27, 1997, this Court vacated that part of its March 7, 1997 Order which had held that Section 104 of the AEDPA applied to this case.

On November 12, 1997, the parties presented lengthy oral argument regarding the procedural issues raised by, and substantive merits of, Scott’s petition. Following this oral argument, the Court invited the parties to present post-hearing briefs regarding certain points and suggested that further briefing might be necessary to address any impact the Lindh decision might have on the parties’ respective arguments. The parties each tendered post-hearing briefs on December 12, 1997. Having had the benefit of all of these habeas proceedings, the Court is now well-educated to all the substantive and procedural issues that Scott and respondent raise.

IV. Scott’s Grounds for Relief.

In his petition, Scott asserts 21 separate grounds for relief, which he divides into three categories: (1) constitutional violations which tainted the entire course of the state court proceedings (grounds 1-6); (2) constitutional violations which prejudiced Scott during specific stages of the state court proceedings (grounds 7-19); and (3) constitutional violations relating generally to the Ohio death penalty scheme (grounds 20-21). Scott’s 21 separate grounds for relief are quoted below.

A. Category One — Violations Which Tainted the Entirety of the State Court Proceedings.

1. Mr. Scott was denied his right to a fair trial with an impartial jury in violation of the Fifth, Eighth and Fourteenth Amendments to the United States Constitution because the trial judge told the prospective jurors that, according to newspaper reports, the Petitioner and other men were involved in the murder.

2. Mr. Scott’s death sentence is in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution because the only statutory “aggravating circumstance” he was charged with (felony murder) merely duplicated elements of the underlying death-eligible offense (murder in the course of committing a felony) and was unconstitutionally vague, over-broad and imprecise as applied to him.

3. Mr. Scott’s death sentence is further invalid because it was obtained through the use of a non-statutory aggravating circumstance; to wit, a firearm specification, in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

4. Petitioner was denied the effective assistance of counsel during the guilt/innocence phase of his trial as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

5. Petitioner was denied the effective assistance of counsel in the mitigation phase of his trial.

6. The Petitioner was denied the effective assistance of appellate counsel as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.

B. Category Two — Violations Which Tainted A Portion of the State Court Proceedings.

7. The Petitioner was denied his right to a fair trial with an impartial jury .because prospective jurors who expressed any reservation about the death penalty were excused while jurors favoring the death penalty in homicide cases were retained.

8. The Petitioner was denied his right to a fair trial in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution because of prosecutorial misconduct during the guilt/innocence phase of the trial.

9. The Petitioner’s conviction and death sentence were obtained with evidence which was insufficient as a matter of law in violation of the Fifth Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

10. The Petitioner was denied his constitutional rights to due process and a fair trial in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution because the trial judge refused to give several essential jury instructions.

11. The Petitioner was denied his right to a fair trial because the trial judge provided the jury with an erroneous definition of “reasonable doubt” in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

12. The Petitioner was denied his rights to a fair trial and an individualized sentencing determination in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution because of prosecutorial misconduct during the sentencing phase of the trial.

13. The Petitioner was denied his right to a fair trial in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution because of comments made by the prosecutor and the trial judge concerning the un-sworn statement Petitioner made during the mitigation hearing.

14. The Petitioner was denied his right to a fair trial in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution because the trial judge instructed the jury that their death recommendation was not binding on the court.

15. The Petitioner was denied his right to a fair trial in violation of the Fifth, Sixth, Eighth and Four-_ teenth Amendments to the United States Constitution because the trial judge improperly instructed the jury concerning mitigating circumstances and applied the same erroneous standards in his decision to impose the death penalty.

16. The Petitioner was denied his right to a fair trial in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution because the trial judge instructed the jury to exclude considerations of mercy.

17. The Petitioner was denied his right to a fair trial in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution because the trial judge failed to instruct the jury that it must make a specific finding as to the specific intent to kill.

18. The Petitioner was denied his right to a fair trial in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution because the trial judge improperly instructed the jurors that they must unanimously recommend a life sentence.

19. The Petitioner was denied his right to a fair trial in violation of the Fifth Sixth, Eighth and Fourteenth Amendments to the United States Constitution because the Ohio Court of Appeals and the Ohio Supreme Court applied improper standards of review in denying relief for federal constitutional violations.

C.Category Three — Violations Relating Generally to the Ohio Death Penalty Scheme.

20. The statutory provisions governing the Ohio capital punishment scheme violate the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well of the Supremacy Clause of Article VI of the United States Constitution. This scheme is unconstitutional on its face.

A. Constitutional flaws in trial proceedings created by the Ohio statutory scheme.

B. Constitutional flaws in sentencing proceedings created by the Ohio death penalty statute.

C. Constitutional flaws in appellate proceedings created by the Ohio death penalty statutes.

D. Societal interests are not served by the Ohio death penalty statutes.

E. Imposition of the death penalty demonstrates a blatant disregard for the value of human life, entails unnecessary and wanton infliction of pain and diminishes the dignity of man.

F. The Ohio death penalty statute violates the Supremacy Clause of the United States Constitution and various international laws including, but not limited to, the Organization of American States Treaty and the American Declaration of the Rights and Duties of Man.

21. The Ohio death penalty scheme is unconstitutional as applied to the Petitioner.

V The Law of Procedural Default.

The respondent argues that Scott is precluded from pursuing half of his stated grounds for issuance of the writ, on the basis of procedural default. Later in this opinion, the Court addresses the question of procedural default with respect to each individual ground asserted. First, however, the Court here sets out the applicable law and addresses a few of Scott’s overriding arguments.

Normally, a federal court may not consider “contentions of federal 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, 749, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

In Maupin v. Smith, 785 F.2d 135 (6th Cir.1986), the Sixth Circuit Court of Appeals set out the analytical framework for determination of claims of procedural, default. “When a state argues that a habeas claim is precluded by the petitioner’s failure to observe a state procedural rule, the federal court must go through a complicated [four-step] analysis.” Id. at 138.

First, the court must determine that there is a state procedural rule that is applicable to the petitioner’s claim and that the petitioner failed to comply with the rule.... Second, the court must decide whether the state courts actually • enforced the state procedural sanction .... Third, the court must decide whether the state procedural forfeiture is an “adequate and independent” state ground on which the state can rely to foreclose review of a federal constitutional claim. [And fourth, if] 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 ... that there was “cause” for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error.

Id. (citations omitted).

Regarding the first step of the Maupin analysis, respondent points to three different Ohio procedural rules applicable to Scott’s claims, with which Scott failed to comply. Specifically, respondent asserts that: (1) Scott’s grounds for relief 3, 4, 5, and 8 are procedurally barred because Scott did not raise these grounds on direct appeal, as Ohio requires pursuant to Ohio R.App. P. 16(A)(4) and State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967); (2) Scott’s grounds for relief 11, 14, 16, and 18 are procedurally barred because Scott did not make a contemporaneous objection at trial, as Ohio requires pursuant to State v. Glaros, 170 Ohio St. 471, 166 N.E.2d 379 (1960) and Ohio R.Crim. Pro. 30(A); and (3) Scott’s grounds for relief 12, 19, and 20 are procedurally barred because Scott did not ever present these grounds to any • Ohio court, either on direct appeal or during post-conviction proceedings, as is obviously required before the state can address the issues.

Scott attacks respondent’s procedural bar arguments in two ways. First, to at least some extent, Scott undertakes an individualized Maupin analysis with respect to each of the grounds that respondent claims Scott has waived. The Court examines these arguments below, in the context of its analysis of each individual ground.

Second, Scott presents several broad defenses, challenging respondent’s procedural bar arguments in general. For example, Scott asserts that this Court must decide the Maupin analysis in his favor, as a matter of law, as to every ground he has allegedly waived by not raising it on direct appeal, because this Court cannot find under the second prong of the Maupin test that Ohio “courts actually enforced the state procedural sanction” through a valid process. Id. More specifically, Scott argues that, although the Ohio courts enforced state procedural sanctions against him by refusing to consider, during post-conviction proceedings, claims he had not made on direct appeal, the entire post-conviction process in Ohio is constitutionally defective; thus, this Court should consider the state courts’ enforcement of Ohio’s procedural sanctions void.

The Court is not persuaded by this argument. First, Scott cannot excuse his own failure to present claims to the state appellate courts based on the allegation that the entire post-conviction review process is systemically infirm. To quote another district court that rejected the same argument:

Petitioner’s argument that the Perry rule rests on an Ohio postconviction system which does not meet the requirements of due process lacks merit. Petitioner knew of the availability of direct appeal for of record claims and knew that if he failed to present the claims on direct appeal they were waived. Any perceived deficiencies in Ohio’s postcon-viction system did not relieve petitioner of the obligation to raise these waived claims on direct appeal. He was not misled in any way by the Ohio courts about what remedy he could pursue.

Beuke v. Collin, Case no. C-l-92-507, slip op. at 19 (S.D.Ohio Oct. 19, 1995) (emphasis in original); see id. at 68-69 (discussing and reaffirming this conclusion). Furthermore, despite Scott’s eloquent argument, the Court is not convinced that the entire state post-conviction review process is, in fact, “futile” and “doomed from the start.” Traverse at 79-80. As Scott himself notes, in 8 out of 68 cases—and one of those 8 cases is this case—courts of appeals have vacated at least part of the trial court’s post-conviction judgment. It is not overly deferential to the state courts to assume that the vast majority of such trials proceed without error of a constitutional magnitude. It is notable, moreover, that the universe of cases that the state courts of appeals subject to post-conviction review does not include cases where the same appellate courts earlier found error on direct appeal, as occurred in Scott’s own subsequent murder trial. Scott’s argument that the scope of post-conviction review in Ohio has narrowed substantially over time, and that the state appellate courts’ track record in post-conviction proceedings bespeaks futility, though articulate, is ultimately not convincing.

Scott presents another broad defense challenging respondent’s procedural bar arguments in general: Scott asserts that this Court must decide the Maupin analysis in his favor, as a matter of law, as to every ground he has allegedly waived, because this Court cannot find under the third prong of the Maupin test that any of the state procedural rules relied upon by the respondent are “adequate.” A procedural rule is not “adequate” unless, among other things, it is regularly and consistently applied. Warner v. United States, 975 F.2d 1207, 1213 (6th Cir.1992), cert. denied, 507 U.S. 932, 113 S.Ct. 1314, 122 L.Ed.2d 702 (1993). Scott argues that Ohio courts are very inconsistent in their application of the procedural rules upon which the respondent bases his waiver arguments, especially the Perry rule and especially in capital cases, and that he thus cannot be held to have proeedurally defaulted under Maupin. Again, the Court is not persuaded by this argument. While the Ohio courts of appeals may not be paradigms of consistency, they do not ignore or arbitrarily deny Ohio’s procedural bars, including the Perry rule, on a regular basis. See Beuke v. Collin, slip op. at 65 (“[petitioner has not cited a single case holding that a consistently enforced state procedural bar[,] which on some occasions is not invoked for unexplained reasons generally consistent with plain error review[,] should not be enforced in federal habeas corpus”).

A third broad defense challenging some of respondent’s procedural bar arguments relates to Scott’s assertions of ineffective assistance of counsel. The merits of these assertions are discussed below in section VIII of this opinion, but the Court addresses one aspect of these assertions here. On direct appeal, Scott did not assert he was deprived of his right to effective assistance of trial counsel. As discussed below, Scott thereby waived this ground. Scott now also asserts he was deprived of his right to effective appellate counsel, and that his appellate counsel should have raised certain grounds on direct appeal, including ineffective assistance of trial counsel. Scott then attempts to use this argument to bootstrap himself around the procedural bar. Scott suggests that: (1) appellate counsel’s failure to claim ineffective assistance of trial counsel led to waiver of certain grounds; (2) appellate counsel’s failure to assert other grounds led to further waivers; and (3) Scott should thus be allowed to raise all waived grounds under the rubric of ineffective trial and appellate counsel. This position is untenable. Scott’s logic would completely eviscerate the doctrine of procedural bar, as otherwise-waived grounds could always be resurrected by asserting prior counsel’s ineffective failure to raise them.

Scott also presents a few other broad defenses to respondent’s procedural bar arguments in general. The Court addresses these arguments below, to the extent necessary, in its discussion of each of Scott’s individual grounds for relief.

VI. Scott’s Attacks on His Sentence of Death.

Scott’s various grounds for relief tend to focus on either the constitutionality of his conviction, or the constitutionality of his death sentence. The Court first addresses those grounds that focus on the constitutionality of his death sentence.

A. Scott’s Second Ground for Relief.

Scott’s second ground for relief is that his death sentence was unconstitutional “because the only statutory ‘aggravating circumstance’ he was charged with (felony murder) merely duplicated elements of the underlying death-eligible offense (murder in the course of committing a felony) and was unconstitutionally vague, overbroad and imprecise as applied to him.” Essentially, Scott argues that Ohio’s capital sentencing scheme does not,' as it must, “genuinely narrow the class of persons eligible for the death penalty and ... reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). The respondent does not argue that Scott has procedurally defaulted on this claim.

Scott’s indictment charged him with committing aggravated murder, in violation of Ohio Rev.Code § 2903.01(B), by “purposely caus[ing] the death of another, to-wit: Vinney [sic] Prince while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit Aggravated Robbery.” The indictment additionally specified that, in violation of Ohio Rev. Code § 2929.04(A)(7), Scott committed the aggravated murder while he “was committing or attempting to commit or fleeing immediately after committing or attempting to commit Aggravated Robbery and either [he] was the principal offender in the commission of the Aggravated Murder or, if not the principal offender, committed the Aggravated Murder with prior calculation and design.”

Scott argues that the aggravating specification contained in § 2929.04(A)(7) merely duplicates the definition of felony murder in § 2903.01(B), and thus that the same act both convicts and aggravates. This argument is not well-taken. As noted by the Ohio Supreme Court, “while a conviction under R.C. § 2903.01(B) cannot be sustained unless the defendant is found to have intended to cause the death of another, the [S]tate, in order to prevail upon an aggravating circumstance under R.C. § 2929.04(A)(7), must additionally prove that the offender was the principal offender in the commission of the aggravated murder or, if the offender was not the principal offender, that the aggravated murder was committed with prior calculation and design.” State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264, 280 n. 17 (1984), cert. denied, 472 U.S. 1032, 105 S.Ct. 3514, 87 L.Ed.2d 643 (1985) (emphasis added). Thus, “[t]he trial court had to find that [Scott] committed murder while committing or attempting to commit [aggravated robbery] and, further, that [Scott] was the principal offender or that the murder was premeditated.” State v. Barnes, 25 Ohio St.3d 203, 495 N.E.2d 922, 925 (1986), cert. denied, 480 U.S. 926, 107 S.Ct. 1388, 94 L.Ed.2d 701 (1987) (emphasis added). This additional factor does “narrow the class of persons eligible for the death penalty,” Zant, 462 U.S. at 877, 103 S.Ct. 2733—Scott’s “accomplice could be convicted of aggravated murder but would not be subject to the death penalty.” Id. “By such a limitation, the category of death-eligible aggravated murderers is narrowed in compliance with Zant and no constitutional violation arises.” Id.

Moreover, even if it were true that the same act both convicted and aggravated under § 2903.01(B) and § 2929.04(A)(7), this alone would not provide grounds for issuance of the requested writ. “[T]he fact that the aggravating circumstance duplicate^] one of the elements of the crime does not [alone] make [a death] sentence infirm.” Lowenfield v. Phelps, 484 U.S. 231, 246, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). The narrowing function required by Zant may be performed by the state legislature. Id. at 246^17, 108 S.Ct. 546; see id. 108 S.Ct. at 561 (Brennan, J., dissenting) (“the critical narrowing function may be performed [by the legislature] pri- or to and distinct from the sentencing process” to ensure “that the number of those eligible for the death penalty [are] smaller than the number of those convicted of murder”). With § 2929.04(A), the Ohio General Assembly “narrow[ed] the class of felony murders subject to the death penalty by excluding those who commit [murder in the course of an] arson, robbery, burglary or escape, unless they are 'charged with a different aggravating circumstance.” State v. Buell, 22 Ohio St.3d 124, 489 N.E.2d 795, 807 (1986), cert. denied, 479 U.S. 871, 107 S.Ct. 240, 93 L.Ed.2d 165 (1986). Thus, Scott’s second ground for relief is not well-taken.

B. Scott’s Third Ground For Relief.

Scott’s third ground for relief is that his death sentence was unconstitutional “because it was obtained through the use of a non-statutory aggravating circumstance; to wit, a firearm specification.” As noted above, Scott’s indictment for aggravated murder included two specifications: (a) a death penalty specification, for violation of Ohio Rev.Code § 2929.04(A)(7); and (b) a firearm specification, for violation of Ohio Rev.Code § 2941.141. The second specification charged that, when. Scott committed Prince’s murder, he “had a firearm on or about [his] person or under [his] control.” The jury found Scott guilty of this specification.

The trial court and counsel made reference to both the firearm and death penalty specifications during voir dire and the guilt phase of Scott’s trial. After the jury found Scott guilty, the trial court turned to the penalty phase of the trial. The trial court instructed the jurors on what aggravating circumstances they could consider, and how to weigh them against any mitigating circumstances, when they deliberated over the penalty Scott should receive. Specifically, the trial court instructed the jurors that they could only recommend death if they found Scott was guilty of the death penalty specification. The trial court made no reference to the firearm specification — neither including it nor explicitly excluding it as an aggravating circumstance.

Scott insists that, because the trial court did not explicitly instruct the jury that it could not consider the firearm specification as an aggravating circumstance during their penalty deliberations, the jury was “hopelessly confused as to what it could and could not consider as aggravating circumstances in the weighing process, thereby virtually guaranteeing that invalid, non-statutory aggravating factors were considered as part of the calculus that resulted in Mr. Scott’s death sentence.” Traverse at 26. Scott notes that the trial court and the prosecutor referred to “aggravating circumstances” (plural) during the penalty phase, which Scott argues further misled the jury. The respondent argues that Scott has procedurally defaulted this ground because he did not present it on direct appeal, and further that it is merit-less in any event.

The Court agrees that Scott procedurally defaulted on this ground, and thus that this Court may' hot consider it under Wainwright. Scott raised this ground for relief for the first time in his state post-conviction proceedings. The state court' of appeals, in post-conviction review, concluded Scott had failed to follow the Perry rule, and thus procedurally defaulted on this ground. The state court held:

The indictment contained two specifications. The first was an aggravating circumstance that must be proven before the death penalty may be imposed. The second was a gun specification. Appellant contended that the record reveals repeated references to aggravating circumstances (in the plural) and thus the jury believed that both were aggravating circumstances.

This issue could have been determined without resort to evidence dehors the record and res judicata was a proper grounds for dismissal.

State v. Scott, 63 Ohio App.3d 304, 578 N.E.2d 841, 846 (1989), motion overruled, 47 Ohio St.3d 705, 547 N.E.2d 986 (1989). This Court agrees that: (1) Scott’s new counsel on direct appeal could have raised the issue of the trial court’s failure to explicitly instruct the jury that it could not consider the firearm specification as an aggravating circumstance during penalty deliberations; and (2) the issue presented itself by reference to the trial record itself, and not significantly or even partly by reference to evidence outside the trial record. Whether Scott’s appellate counsel failed to raise this issue as a result of a strategic decision or mere oversight, respondent’s assertion that this ground is procedurally barred must be upheld, under the Maupin test. Accordingly, the Court finds Scott’s third ground for relief is not well-taken.

C. Scott’s Twelfth and Eighth Grounds for Relief.

Scott’s twelfth ground for relief is that he was unconstitutionally “denied his rights to a fair trial and an individualized determination ... because of prosecutorial misconduct during the sentencing phase of the trial.” In his eighth ground for relief, Scott asserts he was the victim “of prose-cutorial misconduct during the guilt/innocence phase of the trial.” Although this latter ground focuses more on the constitutionality of his conviction, not his death sentence, the Court addresses these two related grounds together.

Scott contends the prosecutor engaged in misconduct when, during the course of the guilt phase of trial, the prosecutor repeatedly described Scott as a person who made his living by robbing people, and referred to Scott during closing argument as “Jesse James.” Scott contends these statements were improper because they were “evidence” of unproven and uncharged acts of robbery, and because they suggested to the jury that it should convict Scott because he was a habitual criminal. Scott also asserts the prosecutor engaged in further misconduct when, during the penalty phase of trial, the prosecutor stated, “you saw him up here—this certainly was my impression, but it is your impression that counts, but an angry, almost frighteningly so, individual and I saw no remorse.” Scott argues that this statement improperly converted a mitigating factor (remorse) into an aggravating circumstance (lack of remorse).

The respondent argues that both of these related grounds are procedurally barred because Scott did not raise a contemporaneous objection to the comments at trial, nor did Scott object that the comments were improper on direct appeal. The first time Scott raised these grounds for relief was during his state post-conviction proceedings. The state court of appeals, in post-conviction review, concluded Scott had failed to follow the Perry rule and thus had procedurally defaulted on these grounds, holding that claims of pros-ecutorial misconduct “could have been raised on direct appeal. Res judicata was a proper grounds for dismissal.” State v. Scott, 63 Ohio App.3d 304, 578 N.E.2d 841, 847 (1989), motion overruled, 47 Ohio St.3d 705, 547 N.E.2d 986 (1989).

This Court again agrees that: (1) Scott’s new counsel on direct appeal could have raised the issue of prosecutorial misconduct, during either the guilt or penalty phases of trial; and (2) this issue presented itself by reference to the trial record itself, and not significantly or even partly by reference to evidence outside the trial record. Again, whether Scott’s appellate counsel failed to raise these issues as a result of a strategic decision or mere oversight, the respondent’s claim that these grounds are procedurally barred must be upheld, under the Maupin test. Accordingly, the Court finds Scott’s eighth and twelfth grounds for relief are not well-taken.

D. Scott’s Thirteenth Ground for Relief.

Scott’s thirteenth ground for relief is that his death sentence was unconstitutional “because of comments made by the prosecutor and the trial judge concerning the unsworn statement [that Scott] made during the mitigation hearing.” After Scott was found guilty, he elected to make an unsworn statement to the jury for the purpose of presenting factors in mitigation of his sentence. Scott made this statement pursuant to Ohio Rev.Code § 2929.03(D)(1), which states: “The defendant shall be given great latitude in the presentation of evidence of the [statutory] mitigating factors ... and of any other factors of mitigation of the imposition of the sentence of death. If the offender chooses to make a statement, the offender is subject to cross-examination only if the offender consents to make the statement under oath or affirmation.”

After Scott made his statement to the jury, Scott’s trial counsel moved in limine to preclude the prosecutor from commenting during closing argument on the un-sworn nature of Scott’s statement. The trial court denied this motion, and the prosecutor proceeded to comment that Scott’s declaration was not under oath and that the prosecution could not cross-examine Scott. Scott asserts these comments prejudiced him to an unconstitutional degree, and further that the trial court’s subsequent jury instructions only compounded the error: the trial court stated, “Now, ladies and gentlemen, you will remember that the mitigation that has been offered to you by the. defendant is his unsworn statement. No evidence or testimony from other witnesses has been offered to you.” Respondent does not argue that this ground for relief is procedurally barred.

Scott did raise this grounds for relief on direct appeal, and the Ohio court of appeals found it not well-taken:

A prosecutor does not cause prejudicial error by arguing that the defendant’s unsworn statement lacks the same credibility as sworn testimony subject to cross-examination.

The prosecutor’s argument in this ' case did not unfairly prejudice the defense. It asserted that the unsworn statement had less value as evidence than the earlier formal testimony of witnesses. It made no suggestion that the jury could draw an adverse inference from the defendant’s decision not to testify:

The court instructed the jurors during the earlier guilt phase of the trial that the defendant had a constitutional right ,not to testify. It directed them to draw no inference from his failure to testify. In the penalty phase of the trial, the court explained that the jurors, had heard the defendant’s unsworn statement but no evidence or testimony from other witnesses. The court then repeated the instructions about the defendant’s constitutional right and the jurors! inability to draw any inference from his decision not to testify. Neither the prosecutor’s argument nor the court’s instructions about the unsworn statement unfairly prejudiced the defense. This claimed error lacks merit.

State v. Scott, 1985 WL 9047 at * 10-11 (Ohio Ct.App. May 23, 1985) (citation omitted). The Ohio Supreme Court affirmed this conclusion. State v. Scott, 26 Ohio St.3d 92, 497 N.E.2d 55, 67-68 (1986).

This Court finds itself in agreement with the Ohio appellate courts that Scott’s thirteenth ground does not present any error of constitutional dimension. “The prosecutor said nothing more than what the jury already knew to be true, namely, ... that appellant did not [testify under oath].” State v. Jenkins, 15 Ohio St.3d 164, 15 O.B.R. 311, 473 N.E.2d 264, 309 (1984), cert. denied, 472 U.S. 1032, 105 S.Ct. 3514, 87 L.Ed.2d 643 (1985). Moreover, regarding “the alleged prejudicial effect of the court’s instruction, [Scott’s] negative inference argument is far too speculative upon which to premise a valid constitutional argument.” State v. Scott, 26 Ohio St.3d 92, 497 N.E.2d 55, 68 (1986). Accordingly, the Court finds Scott’s thirteenth ground for relief is not well-taken.

E. Scott’s Fourteenth, Sixteenth, and Eighteenth Grounds for Relief.

Scott’s fourteenth, sixteenth, and eighteenth grounds for relief all refer to allegedly improper jury instructions given by the trial judge at the penalty phase of trial. Scott’s fourteenth ground is that his death sentence is unconstitutional “because the trial judge instructed the jury that their death recommendation was not binding on the court.” Scott’s sixteenth ground is that his death sentence is unconstitutional “because the trial judge instructed the jury to exclude considerations of mercy.” Scott’s eighteenth ground is that his death sentence is unconstitutional “because the trial judge improperly instructed the jurors that they must unanimously recommend a life sentence.” The respondent asserts that Scott has procedurally defaulted on all three of these grounds because Scott did not raise any objection to the challenged jury instructions at trial, thus violating the “contemporaneous objection rule” contained in Ohio R.Crim. Proc. 30(A).

Scott raised these three grounds for the first time on direct appeal, and the Ohio Supreme Court found that Scott had pro-eedurally defaulted by not objecting to the challenged jury instructions at trial. State v. Scott, 26 Ohio St.3d 92, 497 N.E.2d 55, 64, 68, 69 (1986). Scott asserts, however, that the state supreme court did not “actually enforce the state procedural sanction,” as required under the second prong of the Maupin test, because the court “forgave” the procedural bar and proceeded to examine his grounds on the merits. Scott notes that, in a federal habeas court, the “cause and prejudice standard is not applied ... when the state court overlooks the procedural default and instead disposes of the issue on the merits.” McBee v. Grant, 763 F.2d 811, 813 (6th Cir.1985).

It is- questionable whether the Ohio Supreme Court truly overlooked Scott’s procedural defaults and examined the merits of Scott’s three grounds regarding jury instructions. For example, with regard to Scott’s fourteenth ground, the Ohio Supreme Court noted Scott’s procedural default but also noted that Scott “may still argue that the instructions constitute!] plain error.” State v. Scott, 497 N.E.2d at 64. Thus, the Ohio Supreme Court examined Scott’s fourteenth ground for plain error, instead of applying a de novo review. The Ohio Supreme Court followed this same analysis in examining Scott’s sixteenth ground, id. at 68, and arguably in examining Scott’s eighteenth ground, as well, id. at 69. A plain error analysis is not tantamount to a review on the merits, so the Ohio Supreme Court did not wholly overlook Scott’s procedural default.

Scott also argues, however, that, even assuming the Ohio Supreme Court enforced the contemporaneous objection rule as a procedural bar by changing its level of review from de novo to plain error—so that the respondent passes the second step of the Maupin test—this Court should examine the merits of his fourteenth, sixteenth, and eighteenth grounds because the respondent cannot pass the third prong of the Maupin test. This prong requires that, before this Court may enforce a procedural bar, it must conclude “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.” Maupin, 785 F.2d at 138. Scott argues that Ohio’s contemporaneous objection rule is not an “independent” state ground because it is not independent of federal law.

The Sixth Circuit Court of Appeals has suggested it agrees with Scott on this point. In Knuckles v. Rogers, 1993 WL 11874 (6th Cir. Jan.21, 1993), the Court ruled as follows:

it is clear that Ohio has a contemporaneous objection rule, and that the Ohio courts treat the failure to object to a claimed error as a procedural default. Ohio R.Crim. P. 52; State v. Williams, 51 Ohio St.2d 112, 5 0.0.3d 98, 364 N.E.2d 1364 (1977). Since Knuckles failed to object contemporaneously to the allegedly improper remarks, he violated Ohio’s contemporaneous objection rule and committed a procedural default. However, the procedural default did not foreclose all consideration by the Ohio appellate court; the Ohio court examined the record to determine if the allegedly improper remarks were “plain error.”

The basic inquiry in the plain error analysis in Ohio is whether the defendant has been denied a “fair trial.” Whether a person is denied a fair trial is a question to be resolved by applying principles of federal constitutional law. Therefore, we conclude that the Ohio appellate court’s decision was not independent of federal law.

Id. 1993 WL 11874, at *2-3 (footnote omitted).

Given the reasoning recited in Knuckles, this Court must conclude that Ohio’s application of its contemporaneous objection rule in this case was not independent of federal law. As such, the respondent’s assertion that Scott’s fourteenth, sixteenth, and eighteenth grounds are procedurally barred cannot be upheld, under the Maupin test. Accordingly, the Court examines these grounds on the merits.

1. Scott’s Fourteenth Ground.

With his fourteenth ground, Scott complains that one of the trial judge’s instructions to the jury, during the penalty phase, had the effect of unconstitutionally diminishing the jury’s responsibility for imposition of the death penalty. The challenged instruction is quoted below:

If all 12 members of the jury find, by proof beyond a reasonable doubt, that the aggravating circumstances which Jay Scott was found guilty of committing outweigh the mitigating factors, then you must return such finding to the Court. I instruct you as a matter of law that if you make such a finding, then you have no choice and must recommend to the Court that the sentence of death be imposed upon the defendant, Jay Scott.

A jury recommendation to the Court that the death penalty be imposed is just that — a recommendation.

On the other hand, if ... you find that the State of Ohio failed to prove that the aggravating circumstances which the defendant, Jay Scott, was found guilty of committing, outweigh the mitigating factors, then you will return your verdict reflecting your decision.

In this event, you will then proceed to determine which of two possible life imprisonment sentences to recommend to the Court. Your recommendation to the Court shall be one of the following: That Jay Scott be sentenced to life imprisonment with parole eligibility after 20 full years of imprisonment; or that Jay Scott be sentenced to life imprisonment with parole eligibility after 30 full years of imprisonment.

This particular recommendation which you make is binding upon the Court, and I, the Judge, must impose the specific life sentence which you recommend.

Trial Tr. at 3173-74 (emphasis added). As Scott notes, this instruction draws a clear contrast between the jury’s decision to recommend a sentence of death versus a decision to recommend a sentence of life imprisonment: a recommendation of death is not binding, while a recommendation of life imprisonment is.

Scott insists this instruction unconstitutionally misled the jury, because it imper-missibly alleviated the jury’s responsibility for its decision. As authority for his position, Scott cites Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). In Caldwell, the prosecutor “urged the jury not to view itself as determining whether the defendant would die, because a death sentence would be reviewed for correctness by the State Supreme Court.” Id. at 323, 105 S.Ct. 2633. The Caldwell Court concluded that the defendant’s death sentence was unconstitutional, because “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Id. at 328-29, 105 S.Ct. 2633. Scott relies on this language and argues that the trial court’s instruction impermissibly led the jury to believe that final responsibility for determining whether Scott should suffer a death sentence lay with the judge, and not with it.

A critical difference between this case and Caldwell, however, is that, in Caldwell, “[t]he [prosecutor’s] argument was inaccurate, both because it was misleading as to the nature of the appellate court’s review and because it depicted the jury’s role in a way fundamentally at odds with the role that a capital sentencer must perform.” Id. at 336, 105 S.Ct. 2633 (plurality opinion); id. at 342, 105 S.Ct. 2633 (O’Connor, J., concurring) (“[i]n my view, the prosecutor’s remarks were impermissible because they were inaccurate and misleading”). The Supreme Court has carefully noted that it

read[s] Caldwell as “relevant only to certain types of comment — those that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision.” Darden v. Wainwright, 477 U.S. 168, 184, n. 15, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Thus, “[t]o establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned' to the jury by local law.” Dugger v. Adams, 489 U.S. 401, 407, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989); see also Sawyer v. Smith, 497 U.S. 227, 233, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990).

Romano v. Oklahoma, .512 U.S. 1, 114 S.Ct. 2004, 2010, 129 L.Ed.2d 1 (1994) (emphasis added). As Justice O’Connor notes in her controlling opinion in Caldwell, the Supreme Court has never held that “the Federal Constitution prohibits the giving of accurate instructions regarding post-sentencing procedures.” Caldwell, 472 U.S. at 342, 105 S.Ct. 2633 (O’Connor, J., concurring).

In this case,' the jury instruction that Scott challenges is in no way inaccurate or misleading. The version of Ohio Revised Code § 2929.03(D)(2) then applicable provided that:

If the trial jury unanimously finds ... that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on the offender. Absent such a finding, the jury shall recommend that the offender be sentenced to one of the following: ...