Sheppard v. Bagley (604 F. Supp. 2d 1003, 2009)

OPINION AND ORDER

GREGORY L. FROST, District Judge.

Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this Court a habeas corpus action under 28 U.S.C. § 2254. This matter is before the Court upon the Magistrate Judge’s Report and Recommendation of June 1, 2004 (Doc. # 94), in which the Magistrate Judge recommended granting relief on the allegations of prosecutorial misconduct during penalty phase closing arguments set forth in Petitioner’s fifth ground for relief and certain allegations of ineffective assistance of appellate counsel set forth in Petitioner’s tenth ground for relief. Also before the Court are Respondent’s objections (Doc. # 95), Petitioner’s limited objections (Doc. # 100), Respondent’s response to Petitioner’s limited objections (Doc. # 102), Petitioner’s memorandum in opposition to respondent’s response (Doc. # 103), and Petitioner’s reply in support of his limited objections (Doc. # 106).

This matter is also before the Court on upon the Magistrate Judge’s Supplemental Report and Recommendation of December 16, 2004 (Doc. # 108), in which the Magistrate Judge essentially rescinded his recommendation to grant relief on certain allegations of appellate counsel ineffectiveness set forth in Petitioner’s tenth ground for relief and stood by the original recommendation to grant relief on the allegations of prosecutorial misconduct during penalty phase arguments set forth in Petitioner’s fifth ground for relief. Also before the Court are Respondent’s objections (Doc. # 110), Petitioner’s objections (Doc. # 112), Petitioner’s response to Respondent’s objections (Doc. # 113), and Respondent’s response to Petitioner’s objections (Doc. # 114).

I. Standards of Review

This Court reviews de novo those portions of the Report and Recommendations to which the parties objected. See, e.g., Lardie v. Birkett, 221 F.Supp.2d 806, 807 (E.D.Mich.2002). In that regard, Fed. R.CivJP. 72(b)(3) provides:

The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.

Fed.R.Civ.P. 72(b)(3). Further, although “[i]t does not appear that Congress intended to require district court review of a magistrate’s factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings,” Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), this Court has reviewed both Report and Recommendations de novo. See, e.g., Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir.1986).

Because this is a habeas corpus case, provisions of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) that became effective prior to the filing of the instant petition, apply to this case. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under the AEDPA, a federal court shall not issue a writ of habeas corpus on a claim that the state courts adjudicated on the merits unless the state court adjudication “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,” 28 U.S.C. § 2254(d)(1), or “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)(2). Section 2254(d)(1) circumscribes a federal court’s review of claimed legal errors, while § 2254(d)(2) places restrictions on a federal court’s review of claimed factual errors.

Under § 2254(d)(1), a state court decision is “contrary to” Supreme Court precedent “when the state court confronts facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from its precedent” or “when the state court ‘applies a rule that contradicts the governing law set forth in’ Supreme Court cases.” Williams v. Coyle, 260 F.3d 684, 699 (6th Cir.2001) (quoting Williams v. Taylor, 529 U.S. 362, 406-07, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). A state court decision involves an unreasonable application of Supreme Court precedent if the state court identifies the correct legal principle from the decisions of the Supreme Court but unreasonably applies that principle to the facts of the petitioner’s case. Coyle, 260 F.3d at 699. A federal habeas court may not find a state adjudication to be “unreasonable” simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Id. Rather, a state court’s application of federal law is unreasonable “only if reasonable jurists would find it so arbitrary, unsupported or offensive to existing precedent as to fall outside the realm of plausible credible outcomes.” Barker v. Yukins, 199 F.3d 867, 872 (6th Cir.1999).

Further, § 2254(d)(2) prohibits a federal court from granting an application for habeas relief on a claim that the state courts adjudicated on the merits unless the state court adjudication of the claim “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)(2). In this regard, § 2254(e)(1) provides that the findings of fact of a state court are presumed to be correct and that a petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence.

II. Petitioner’s Claims

A. Ground One: Improper Exclusion of Prospective Juror for Cause.

In his first ground for relief, Petitioner argued that the trial court erred by excluding for cause a prospective juror who had stated that a defendant’s expression of remorse would be an important factor to her in determining whether to recommend a death sentence. (First Amended Petition, Doc. # 77, at ¶¶ 1-16.)

The Magistrate Judge recommended denying Petitioner’s claim as procedurally defaulted and without merit. (Doc. # 94, at 1071-73.) Specifically, the Magistrate Judge concluded that Petitioner had procedurally defaulted this claim because he had argued in the state courts that the State violated his Fourteenth Amendment rights by failing to abide by its own statutory standard governing the exclusion of jurors who express scruples about the death penalty, while arguing in this habeas corpus proceeding that the State violated his Sixth, Eighth, and Fourteenth Amendment rights by failing to abide by clearly established federal law governing the exclusion of jurors who express scruples against the death penalty. In so doing, the Magistrate Judge acknowledged his unusual, albeit not inappropriate, action in raising sua sponte a procedural default that Respondent failed to raise. But the Magistrate Judge concluded that it was particularly appropriate to do so “where the petitioner explicitly argued in the state courts that state law provided him with more protections tha[n] the corresponding federal law, and where he rested his state claims exclusively on state law....” (Id. at 1072-73.)

The Magistrate Judge went on to recommend denying Petitioner’s claim on the merits. Specifically, the Magistrate Judge explained:

Although the prosecutor and judge interrupted [prospective juror number 23] and prevented her from fully answering some of the questions they themselves had asked her, she stated that she could not impose the death penalty on someone who was repentant, and conversely, could only impose it on someone who was not sorry for what he had done. (Trial Tr. at 327-31.) Given the deference the trial judge’s credibility determinations are due, this Court could not say that the judge’s decision to excuse PJ-23 for cause “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or that it “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).

(Id.) Quoting from State v. Williams, 99 Ohio St.3d 493, 499-500, 794 N.E.2d 27, 39 (2003), the Magistrate Judge further concluded that even assuming that Petitioner had presented to this Court an argument that the State had violated his Fourteenth Amendment right to due process by not following its own law, the argument would have been unavailing because it was based upon an incorrect interpretation of the state law.

Subsequently, in a Supplemental Report and Recommendations, the Magistrate Judge reiterated his initial finding that Petitioner’s claim was procedurally defaulted. (Doc. # 108, at 1124-26.) Specifically, the Magistrate Judge concluded that Petitioner had not fairly presented to the state courts the federal claim that he advanced in his habeas petition because Petitioner had explicitly and deliberately eschewed federal cases employing constitutional analysis and terms particular to federal constitutional rights in favor of state constitutional and statutory law. By arguing that state law afforded him greater protection than federal law, the Magistrate Judge concluded, Petitioner actually deprived rather than provided the state courts an opportunity to remedy the constitutional violation that Petitioner alleged in his habeas petition. Finally, the Magistrate Judge concluded that nothing in the statutory language relied upon by Petitioner, Ohio Rev.Code § 2945.25, created a life, liberty, or property interest sufficient to trigger the Fourteenth Amendment’s due process protections.

Petitioner objects not only to the Magistrate Judge’s sua sponte procedural default determination, but also to the Magistrate Judge’s decision recommending denial of his claim on the merits. (Doc. # 100, at 21-34.) Regarding the former, Petitioner begins by arguing that the issue of whether or to what extent he properly preserved the claim is a question of whether he exhausted or fairly presented his claim to the state courts, rather than a question of whether he defaulted the claim by violating an adequate and independent state procedural rule. Framed as such, Petitioner argues that he did fairly present his federal claim to the state courts because he sufficiently alerted the state courts to the federal nature of his claim and afforded them a fair opportunity to apply controlling legal principles to the facts bearing upon his claim. (Doc. #28-31.) He argues that a fair reading of his arguments on direct appeal reveals that he clearly was basing his argument in the state courts on state statutory law in addition to federal constitutional law and that he accomplished the latter not only by setting forth facts that were well within the mainstream of constitutional litigation but also by referencing federal constitutional case law and discussing certain Supreme Court cases at length.

Petitioner further argues that the Magistrate Judge erred in recommending denial of this claim on the merits. Petitioner relies extensively the Sixth Circuit decision of Gall v. Parker, 231 F.3d 265, 330-32 (6th Cir.2000). There, according to Petitioner, the Sixth Circuit acknowledged the deference that generally is owed to a trial judge’s credibility determinations, but nevertheless looked at the trial transcript as a whole in finding reversible error in the trial judge’s dismissal of a particular juror for cause. Petitioner argues that prospective juror Wells’ statements in his case were even less of a cause for exclusion than those of the juror in Gall v. Parker who, according to the Sixth Circuit, the trial judge wrongly excluded for cause. Whereas the prospective juror in Gall stated that he was undecided about whether he could impose a death sentence, Petitioner argues, Wells stated that she could. Petitioner argues that the most that Wells indicated, when her voir dire is read in its whole, was that if remorse were an appropriate mitigating factor to consider, it would be very important to her in determining whether to recommend a death sentence. Petitioner argues that, contrary to what the Magistrate Judge concluded, Wells never stated that remorse on the part of the defendant was dispositive. Further, Petitioner argues, there is no evidence in Wells’ voir dire that she was irrevocably opposed to recommending a death sentence. Petitioner also argues that the situation was exacerbated by the prosecutor’s misleading statement that remorse was not a lawful mitigating factor; by the prosecutor’s possible ulterior motive to remove Wells because of a bad experience that she had had with law enforcement in the past; by the prosecutor’s cutting Wells off in mid-sentence and then immediately moving to dismiss her for cause; by the trial judge’s leading questions to Wells; by the trial judge’s cutting off defense counsel during their questioning of Wells;- and by the trial judge failing to wait for Wells to answer his question whether remorse was a “bottom line” dis-positive factor before removing her for cause.

Having conducted de novo review of the Report and Recommendations, the Supplemental Report and Recommendations, the voir dire transcript, Petitioner’s appellate briefs on direct appeal to the state courts, the decisions of the state court of appeals and the Ohio Supreme Court on direct appeal, and the objections by Petitioner and Respondent, the Court overrules Petitioner’s objections and agrees with both of the Magistrate Judge’s Report and Recommendations rejecting this claim as waived. For the reasons set forth by the Magistrate Judge, upon which the Court expands below, this Court concludes that Petitioner waived this claim by failing to fairly present it to the state courts. Because this Court concludes that the claim is waived, the Court does not reach the merits and expresses no opinion about the Magistrate Judge’s recommendation that the claim be denied on the merits.

In order to satisfy the exhaustion requirement in habeas corpus, a petitioner must fairly present the substance of his constitutional claim to the state courts. Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Although the fair presentment requirement is a rule of comity, not jurisdiction, see Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); O’Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999), it is rooted in principles of comity and federalism designed to allow state courts the opportunity to correct the State’s alleged violation of a federal constitutional right that threatens to invalidate a state criminal judgment. A petitioner fairly presents the “substance of his federal habeas corpus claim” when the state courts are afforded sufficient notice and a fair opportunity to apply controlling legal principles to the facts bearing upon the constitutional claim. Harless, 459 U.S. at 6, 103 S.Ct. 276. Although a certain degree of tinkering is permissible, a petitioner does not fairly present a claim if he presents an issue to the state courts under one legal theory and set of facts, and then presents the issue to the federal courts under a different legal theory or a different set of facts. Rather, he must present to the federal court essentially the same facts and legal theories that were considered and rejected by the state courts. See, e.g., Lott v. Coyle, 261 F.3d 594, 607 (6th Cir.2001) (finding that relatedness of claim of involuntary jury waiver to claim of failure of trial court to follow statutory requirements for effectuating valid jury waiver was not enough to preserve the former for habeas review).

The Sixth Circuit has held that a petitioner fairly presents his federal claim to the state courts in one of four ways: (1) relying on federal cases employing constitutional analysis; (2) relying on state cases that employ federal constitutional analysis; (3) phrasing the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) alleging facts that are well within the mainstream of constitutional law. Whiting v. Burt, 395 F.3d 602, 613 (6th Cir.2005) (quoting McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir.2000)). Review of these facts supports the Magistrate Judge’s conclusion that Petitioner waived this claim and underminds the arguments set forth in Petitioner’s objections insisting that he did fairly present the claim.

Petitioner insists that he satisfied the fair presentment requirement by setting forth facts that are well within the mainstream of constitutional litigation, by citing federal constitutional case law, and by discussing certain United States Supreme Court cases in detail. But his argument is belied by the fact that he set forth those facts and cited those cases for the express purpose of distinguishing them in urging the state courts to ignore them in favor of state statutory law. As demonstrated below, Petitioner made several statements in his state appellate briefs that reflect a clear effort to remove his claim from the province of federal law and to place it instead exclusively within the reach of state law.

Petitioner began his argument on appeal to both the state appellate court and Ohio Supreme Court by explaining that in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the Supreme Court held that a juror may be excused for cause only if he makes it unmistakably clear that he would automatically vote against imposition of the death penalty regardless of the evidence presented or that his views on capital punishment would prevent him from making an impartial decision about the defendant’s guilt. (App. Vol. VI, at 129-30.) Petitioner went on to explain that subsequently, in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Supreme Court “severely modified the Witherspoon standard” by holding that a juror could be excused for cause if his views on capital punishment would prevent or substantially impair his ability to perform his duties as a juror. (App. Vol. VI, at 130.) Petitioner then argued in unmistakable terms that “the criteria of Witherspoon are codified under Ohio law, O.R.C. 2945.25(C) and remain the law of Ohio.” (Id.)

After setting forth the state statutory standard governing dismissal for cause of jurors who express reservations about capital punishment, Petitioner argued that Ohio statutory law and the Ohio Constitution, which guaranteed an impartial jury, governed analysis of this issue “regardless of the decisions of the Supreme Court of the United States with respect to the Sixth Amendment.” (App. Vol. VI, at 131 (emphasis added).) In arguing that four veniremen in particular were improperly excluded for cause on the basis of their views on capital punishment, Petitioner couched his argument using language from Ohio Rev.Code § 2945.25(C), rather than language from the controlling federal standard set forth in Wainwright, stating:

[T]he jury which recommended the death sentence ultimately imposed upon appellant here was unconstitutionally tainted by the exclusion for cause of venirepersons who, while they perhaps had some scrupulous objection to capital punishment under some circumstances, did not unambiguously state on the record that such scruples would automatically result in a vote against guilt, or the imposition of the death penalty, nor that they could not conscientiously follow the instructions of the trial court of their oaths as jurors because of such scruples, (emphasis added).

(App. Vol. VI, at 132.) Petitioner then expressly urged the state courts to ignore Wainwright v. Witt, arguing that “[h]ere, we have a state statute which codified Witherspoon, and even made that rule more stringently favorable to the defense.” (Id.)

The only federal constitutional argument that Petitioner offered in the alternative to his state law argument was that “the federal constitution requires reversal of the death sentence as well, because the due process clause of the Fourteenth Amendment protects the accused where the state unfairly deprives him of a right previously extended by the state, even where the federal constitution guarantees no such right____” (Id.) It tests the limits of credulity to suggest that that argument was tantamount to a claim that the Petitioner’s jury was tainted by the improper exclusion for cause of jurors in violation of his Sixth and Eighth Amendment rights as set forth in Wainwright v. Witt. Indeed, Petitioner concluded by reiterating that “the decision in Wainwright v. Witt must be held to be ineffective to broaden O.R.C. 2945.25(C) beyond its clear requirement.” (Id. at 133.)

In light of the foregoing, Petitioner will not be heard to argue that his citation to and discussion of federal case law and Supreme Court decisions satisfied the “fair presentment” requirement; he cited those cases for the purpose of distinguishing them in an effort to remove his claim from their reach. Nor will Petitioner be heard to argue that his reliance on facts within the mainstream of constitutional litigation satisfied the “fair presentment” requirement; he unmistakably couched his argument in language from the state statute, not controlling federal law. Finally, Petitioner cannot be said to have apprised the state courts of the federal nature of the claim when in fact he urged the state courts to ignore controlling federal case law and to apply state statutory law — and only state statutory law — instead. Upon de novo review of the Report and Recommendation, Petitioner’s direct appeals briefs, and Petitioner’s objections to the Report and Recommendation, this Court agrees with and adopts the Magistrate Judge’s conclusion that petitioner waived this claim by failing to fairly present it to the state courts as a federal claim.

This Court has no reservations about the Magistrate Judge’s decision to sua sponte raise the “fair presentment” issue. As a general rule, procedural default is an affirmative defense that must be raised by the state at the first possible opportunity, or it will be waived. Trest v. Cain, 522 U.S. 87, 89, 118 S.Ct. 478, 139 L.Ed.2d 444 (1997) (holding that state’s failure to raise procedural default normally constitutes waiver of the default); Gray v. Netherland, 518 U.S. 152, 166, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996) (holding that procedural default is normally an affirmative defense that will be waived if not raised). Although federal courts are not required to raise procedural default sua sponte, Trest, 522 U.S. at 89, 118 S.Ct. 478, neither are they precluded from raising or recognizing a procedural default that was not expressly raised by the state. That is especially true where, as here, petitioner has been given the opportunity to respond to the procedural default. Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir.2005), r’hng and r’hng en banc denied July 6, 2005 (citing Lorraine v. Coyle, 291 F.3d 416, 426 (6th Cir.2002)); Elzy v. United States, 205 F.3d 882, 886 (6th Cir.2000). Petitioner had an opportunity to respond via his objections to the Report and Recommendation, which this Court found unpersuasive. Moreover, this Court fully agrees with the Magistrate Judge’s rationale that “it is particularly appropriate” for the Court to sua sponte recognize a procedural default where, as here, Petitioner went out of his way to argue that state law provided him more protection than corresponding federal law and to urge the state courts to apply only state law to his claim. (Doc. # 94, at 1072-73.)

For the foregoing reasons, the Court overrules Petitioner’s objections and agrees with the Magistrate Judge’s Report and Recommendations to deny this claim as waived due to Petitioner’s failure to fairly present the claim to the state courts as a federal claim. Because this Court concludes that Petitioner waived this claim, the Court does not reach the merits and expresses no opinion about the Magistrate Judge’s Report and Recommendations rejecting the claim on the merits. The Court DENIES Petitioner’s first ground for relief as waived.

An appeal from the denial of a habeas corpus action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063, 1073 (6th Cir.1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483, 120 S.Ct. 1595; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir.2001). When the Court dismisses a claim on procedural grounds, a certifícate of appealability is warranted when petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595.

Because the Court agrees with and adopts the Magistrate Judge’s decision to sua sponte recognize and enforce the default of Petitioner’s first ground for relief, and because the Court views as a “close call” whether the dismissal of prospective juror Wells was proper under Wainwright v. Witt, 469 U.S. at 424,105 S.Ct. 844, even though the Court was prevented by the procedural default from addressing the merits of the claim, the Court is satisfied that reasonable jurists could find debatable or wrong the Court’s decision rejecting this claim. Accordingly, the Court hereby CERTIFIES for appeal not only its decision rejecting ground one as procedurally defaulted, but also, if appropriate, the merits of ground one.

B. Ground Two: Improper Weighing of Duplicative Specifications.

Petitioner argued in his second ground for relief that his death sentence is constitutionally infirm and in violation of his rights under the Eighth and Fourteenth Amendments because the jury and trial judge improperly weighed duplicative aggravating circumstances in sentencing Petitioner to death. (Doc. # 77, at ¶¶ 17-24.) Petitioner further argued that the state courts failed to recognize, much less correct, the error, insofar as the appellate court invalidated one of the duplicative specifications in its independent weighing process, while the Ohio Supreme Court went on in its independent weighing process to consider both aggravating circumstances.

The Magistrate Judge recommended denying Petitioner’s claim as procedurally defaulted. (Doc. # 94, at 1073-75.) Specifically, the Magistrate Judge concluded that Petitioner had defaulted the claim because he failed to raise a contemporaneous objection to the trial court’s instructions to the jury to weigh both aggravating circumstances or to the failure of the trial court to merge the duplicative aggravating circumstances and because the state appellate court enforced the procedural default. The Magistrate Judge further concluded that Petitioner had not demonstrated cause and prejudice to excuse the default. The Magistrate Judge rejected Petitioner’s argument that the Ohio Supreme Court had revived the otherwise defaulted claim when it included both aggravating circumstances during its independent reweighing of the aggravating circumstances and mitigating factors. The Magistrate Judge explained that the Ohio Supreme Court’s reweighing, even if it included both aggravating circumstances, did not revive Petitioner’s claim because the Ohio Supreme Court did not address the merits of Petitioner’s claim that his death sentence resulted from the consideration of duplicative aggravating circumstances. The Magistrate Judge concluded by finding that because the Ohio Supreme Court ignored the merits of Petitioner’s actual claim, the Magistrate Judge would “look through” the Ohio Supreme Court’s decision to the state appellate court’s decision, which definitively rejected the claim as procedurally defaulted.

It does not appear that Petitioner objected to the Magistrate Judge’s conclusion or even once mentioned his second ground for relief in any of the objections or responses that he filed in response to the Magistrate Judge’s two Reports and Recommendations. For the reasons set forth by the Magistrate Judge and because Petitioner did not object, this Court adopts the Magistrate Judge’s Report and Recommendation to DENY Petitioner’s second ground for relief as procedurally defaulted.

Because Petitioner did not object to the Magistrate Judge’s decision recommending denial of this claim as procedurally defaulted and because the default of Petitioner’s second ground for relief was, in this Court’s review, so definitive and beyond question, this Court concludes that the issue is not deserving of further review on appeal. The Court hereby DECLINES to certify ground two for appeal.

C. Ground Three: Trial Court’s Exclusion of Relevant Mitigating Evidence.

In his third ground for relief, Petitioner charged that the trial court violated his rights to due process and a fair and reliable sentencing determination, guaranteed by the Eighth and Fourteenth Amendments, by improperly excluding certain relevant mitigating evidence. (Doc. # 77, at ¶¶ 25-40.) Petitioner argued that the trial court improperly excluded: (1) testimony from his mother Dolores about how the prosecution of Petitioner had affected his family and about whether there was anything that she wanted to tell the jurors about Petitioner; (2) testimony from social worker Gwen Bradbury, who had assisted and known the family for ten years, about how the prosecution of Petitioner had affected his family and about whether there was anything she wanted to tell the jurors about Petitioner; (3) demonstrative evidence prepared by defense counsel to assist testimony by Dr. Jeffrey Smalldon, to wit: a chart illustrating in “family tree” form relatives on Petitioner’s mother’s side who had suffered from mental illness and a chart illustrating the differences between mental illness supporting a Not Guilty By Reason of Insanity defense (“NGRI”) and mental illness supporting a mitigating factor under Ohio Rev.Code § 2929.04(B)(3); (4) virtually all records documenting the history of mental illness in Petitioner’s family, consisting primarily of records regarding the hospitalization of Petitioner’s mother and the multiple hospitalizations of her brother, Petitioner’s uncle; and (5) the psychiatric textbook upon which Dr. Small-don relied in opining that there was a connection between a head injury that Petitioner had suffered from a car accident and the onset of psychotic illness in Petitioner. Petitioner argued that the prejudice and unfairness stemming from the exclusion is evident when juxtaposed against the prosecution’s penalty phase closing arguments and the trial court’s sentencing opinion. Petitioner argued that he was entitled by the Eighth and Fourteenth Amendments to great latitude in the presentation of mitigating evidence and that the trial court violated those rights.

Respondent argued in her Return of Writ that Petitioner’s claim was procedurally defaulted in part and without merit in its entirety. (Doc. # 12, at 67-72.) Respondent argued that the only category of excluded evidence that Petitioner challenged on direct appeal was the neurological treatise referenced by Dr. Smalldon in opining that Petitioner’s paranoid schizophrenia was precipitated in part by a mild head injury that he had suffered prior to the murder of Dennis Willhide. Respondent argued in the alternative that Petitioner’s claim is without merit. Reasoning that the United States Supreme Court has never held that the Eighth Amendment requires it to fashion general evidentiary rules for capital sentencing proceedings to supersede state evidentiary rules, Respondent argues that the Ohio Supreme Court’s decision rejecting Petitioner’s claim did not contravene clearly established federal law as determined by the Supreme Court. Respondent further points out that although the trial court excluded certain items of evidence, Petitioner was not prevented from otherwise presenting the underlying information set forth or demonstrated in those items of evidence.

The Magistrate Judge recommended denying Petitioner’s claim, in part as procedurally defaulted and in part as without merit. (Doc. # 94, at 1075-78.) The Magistrate Judge concluded that Petitioner had preserved his claim on direct appeal as to all but the first two categories of evidence. Regarding those two categories, the Magistrate Judge noted that Petitioner had raised them in his Rule 26(B) application for delayed reopening as instances of appellate counsel ineffectiveness and that the Magistrate Judge would address in connection with Petitioner’s tenth ground for relief whether appellate counsel ineffectiveness constituted cause and prejudice sufficient to excuse the default of Petitioner’s claim that the trial court erred in excluding testimony from Petitioner’s mother and a social worker.

As to the remaining three categories of evidence, the Magistrate Judge recommended denying on the merits Petitioner’s claim that exclusion thereof by the trial court was improper and to his prejudice sufficient to warrant habeas relief. The Magistrate Judge found no error in the trial court’s exclusion of two charts prepared by defense counsel for use during Dr. Smalldon’s testimony — one to demonstrate in “family tree” form the history of mental illness in Petitioner’s family the other to illustrate the differences between mental illness sufficient to support a NGRI defense and mental illness as a mitigating factor under Ohio Rev.Code § 2929.04(B)(3) — because the charts were essentially summaries and nothing about the trial court’s exclusion of them prevented Petitioner from otherwise eliciting the same information, albeit not in demonstrative form, from Dr. Smalldon. With respect to the trial court’s exclusion of a collection of records detailing the mental health hospitalizations of Petitioner’s mother and one of Petitioner’s maternal uncles, the Magistrate Judge concluded that even assuming that Petitioner could demonstrate that the exclusion was improper, Petitioner could not demonstrate prejudice because those records had never been made a part of the record. Finally, the Magistrate Judge found no error in the trial court’s exclusion of Dr. Smalldon’s reference to a neurological treatise in support of his diagnosis that Petitioner suffered from paranoid schizophrenia, the onset of which was precipitated in part by a head injury that Petitioner had suffered. The Magistrate Judge explained that state evidentiary law at the time of Petitioner’s trial clearly prohibited such evidence as hearsay and that the Supreme Court has declined to hold that the Eighth Amendment requires certain general evidentiary rules for capital sentencing proceedings that supersede state evidentiary rules. (Doc. # 94, at 1077-78 (quoting Romano v. Oklahoma, 512 U.S. 1, 11-12, 114 S.Ct. 2004,129 L.Ed.2d 1 (1994)).)

In his limited objections filed on July 2, 2004, Petitioner challenges only the Magistrate Judge’s rejection of Petitioner’s claim that the trial court erred in excluding the collection of medical records detailing the psychiatric hospitalizations of Petitioner’s mother and maternal uncle. (Doc. # 100, at 34-43.) Petitioner faults the Magistrate Judge for concluding that Petitioner could never demonstrate prejudice sufficient to warrant habeas relief, due to the fact that Petitioner raised the claim on direct appeal (where review is confined to the trial record) and never made the excluded documents a part of the record. Petitioner insists that he not only proffered the documents for review on direct appeal, but also added them to the record in this habeas corpus proceeding. Citing several Supreme Court decisions in support of the general proposition that the sentencer in a capital trial must not be precluded from considering any relevant mitigating evidence, Petitioner argues that it is “practically undeniable” that the trial court in his case erred in excluding the psychiatric hospital records. (Doc. # 100, at 41.) Petitioner argues that the content of those records not only corroborated his family history of mental illness, but also presented firm, factual evidence from disinterested witnesses concerning the family history of mental illness. Thus, Petitioner argues, it is reasonable to conclude that the exclusion of such evidence may have affected the jury’s decision to recommend death, contrary to the Magistrate Judge’s conclusion that Petitioner could not demonstrate prejudice from the exclusion of the documents.

Respondent takes issue with Petitioner’s objections in two key aspects. (Doc. # 102, at 8-10.) First, according to Respondent and contrary to Petitioner’s assertion, the Magistrate Judge in this case reviewed each item of excluded evidence, took note of Dr. Smalldon’s extensive testimony about the family history of mental illness, and still explicitly found no constitutional violation or fundamental prejudice. Further, Respondent distinguishes the Supreme Court cases upon which Petitioner relies, insisting that those cases, unlike the instant case, involved the categorical exclusion of relevant mitigating evidence.

The Magistrate Judge issued a Supplemental Report and Recommendation standing by his initial rejection of Petitioner’s claim that the trial court erred to Petitioner’s prejudice in excluding the bulk of the documents detailing the psychiatric hospitalizations of Petitioner’s mother and maternal uncle. (Doc. # 108, at 1127.) The Magistrate Judge noted that the trial court had admitted a one-page summary of the conditions suffered by Petitioner’s mother and a two-page summary of the conditions suffered by Petitioner’s maternal uncle. Those summaries, the Magistrate Judge concluded, met Petitioner’s stated goal of providing the jury with disinterested accounts of his family history of mental illness and corroborating Dr. Smalldon’s testimony. The Magistrate Judge also noted that defense counsel had acquiesced to the admission of only the one-page summary concerning Petitioner’s mother. In that regard, the Magistrate Judge opined that defense counsel may well have wanted to keep from the jury documents indicating that the weight gain and depression suffered by Petitioner’s mother was attributable in part to medication that she was taking, insofar as such evidence contradicted defense counsel’s theory that there was a genetic predisposition to Petitioner’s mental illness, and specifically to paranoid schizophrenia. The Magistrate Judge concluded that the trial court’s exclusion of the hospital documents in question did not contravene or unreasonably apply clearly established federal law.

It does not appear that Petitioner objected to the Magistrate Judge’s recommendation that Petitioner’s claim challenging the trial court’s exclusion of the first two categories of evidence appeared to be barred by procedural default — although, to be fair, the Magistrate Judge deferred his final determination as to whether the claim was procedurally defaulted until consideration in connection with Petitioner’s tenth ground for relief of whether appellate counsel ineffectiveness constitutes cause and prejudice sufficient to excuse the default of ground three as to the first two categories of excluded evidence. Nor does it appear that Petitioner objected to the Magistrate Judge’s recommendation that Petitioner’s claim challenging the exclusion of the third and fifth categories of evidence be denied on the merits. For the reasons set forth by the Magistrate Judge and because Petitioner did not object, this Court adopts the Magistrate Judge’s Report and Recommendations in those respects.

Regarding the fourth category of excluded evidence — documents detailing the psychiatric hospitalizations of Petitioner’s mother and maternal uncle — upon de novo review of the Report and Recommendations, the Supplemental Report and Recommendations, and Petitioner’s briefs on direct appeal to the intermediate court of appeals and the Ohio Supreme Court, this Court overrules Petitioner’s objections and adopts the Magistrate Judge’s Report and Recommendations and Supplemental Report and Recommendations. The Sixth Circuit has consistently recognized the United States Supreme Court’s reluctance, even in light of its cases holding that the sentencer in a capital case cannot be precluded from considering or giving effect to relevant mitigating evidence, to hold that the Eighth Amendment forbids a state court from applying state evidentiary rules or exercising discretion in limiting the introduction of evidence as irrelevant or unduly prejudicial. In Stanford v. Parker, 266 F.3d 442 (6th Cir.2001), for example, the Sixth Circuit explained:

Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), require that juries be allowed to consider all relevant mitigating evidence with the limitation that “[n]othing ... limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense.” Lockett, 438 U.S. at 604 n. 12, 98 S.Ct. 2954.

Stanford, 266 F.3d at 461. See also Alley v. Bell, 307 F.3d 380, 398-99 (6th Cir.2002) (finding that state courts did not exclude from jury’s consideration the petitioner’s multiple personality disorder simply by precluding admission of videotapes allegedly showing manifestation of the disorder as irrelevant and unreliable). In light of the foregoing, this Court does not believe that the trial court’s decision excluding all but summaries of the conditions of Petitioner’s mother and maternal uncle contravened or unreasonably applied clearly established federal law.

For the foregoing reasons, the Court overrules Petitioner’s objections and adopts the Magistrate Judge’s Report and Recommendations to DENY Petitioner’s third ground for relief as to the third, fourth, and fifth categories of excluded evidence. The Court, as the Magistrate Judge did, DEFERS until consideration of Petitioner’s tenth ground for relief whether Petitioner’s third ground for relief as to the first and second categories of evidence is barred by procedural default.

Notwithstanding the determination of the Magistrate Judge and this Court, within the constraints of 28 U.S.C. § 2254(d)(1), that the trial court’s exclusion of evidence that Petitioner sought to introduce during the penalty phase did not contravene or unreasonably apply clearly established federal law, the Court is of the view that reasonable jurists could find its decision debatable or wrong. Given the lengths to which the United States Supreme Court has gone to emphasize that the Eighth Amendment requires that the sentencer in capital cases be permitted to consider and give effect to relevant mitigating evidence, as well as the wide latitude capital defendants must be afforded in presenting mitigation evidence, the Court CERTIFIES for appeal Petitioner’s third ground for relief as to the exclusion of the fourth category of evidence. Because Petitioner did not object to the Magistrate Judge’s Report and Recommendations to deny ground three as to the third and fifth categories of evidence, this Court DECLINES to certify for appeal that portion of ground three. Because the Court defers until consideration of Petitioner’s tenth ground for relief as to whether the first and second categories of evidence are barred by procedural default, the Court DECLINES to certify for appeal those portions of ground three.

D. Ground Four: Trial Court’s Penalty Phase Instructions.

In his fourth ground for relief, Petitioner alleged five errors in the penalty phase jury instructions. (Doc. # 77, at ¶¶ 41-53.) Specifically, Petitioner alleged as error: (1) the trial court’s refusal to grant defense counsel’s request for an instruction that the jury was not to consider the aggravated murder itself as an aggravating circumstance; (2) the trial court’s instruction, over defense counsel’s objection, that the jury was to consider the nature and circumstances of the aggravating circumstances; (3) the trial court’s instruction on an invalid aggravating circumstance, i.e., an instruction that the jury was to consider both aggravating circumstances, even though they were duplicative and should have been merged; (4) the trial court’s instruction, over defense counsel’s objection, that the prosecution had not been afforded access to Petitioner for a psychological evaluation; and (5) the trial court’s refusal to grant defense counsel’s request for an instruction that the jury could consider one of the life sentence options if it could not unanimously agree on the death sentence.

The Magistrate Judge recommended denying all five sub-parts of Petitioner’s claim, the third sub-part on the basis of procedural default and the first, second, fourth, and fifth sub-parts on the merits. (Doc. # 94, at 1078-85.) As to sub-part three, Petitioner’s claim challenging the trial court’s instruction on duplicative aggravating circumstances, the Magistrate Judge concluded that the claim was barred by procedural default, albeit not the procedural default that Respondent advanced. Although Respondent argued that Petitioner defaulted the claim by failing to contemporaneously object to the instruction during trial, the Magistrate Judge concluded that Petitioner actually defaulted the claim by failing to raise it at all in the state courts. Specifically, the Magistrate Judge concluded that Petitioner’s claim on direct appeal challenging his death sentence as resulting from the weighing of duplicative aggravating circumstances was insufficient to constitute fair presentment of a claim challenging the trial court’s instructions on duplicative aggravating circumstances. The Magistrate Judge further rejected Petitioner’s attempt to offer ineffective assistance of trial counsel as cause and prejudice to excuse the default. The Magistrate Judge noted that the only trial counsel ineffectiveness claim that Petitioner had asserted in the state courts, and was accordingly permitted to offer as cause, alleged only counsel’s failure to request merger of the aggravating circumstances, not counsel’s failure to object to the trial court’s instructions on duplicative aggravating circumstances.

The Magistrate Judge addressed and rejected together sub-parts one and two of this ground. Specifically, the Magistrate Judge rejected Petitioner’s claims challenging the trial court’s refusal to give an instruction that the jury was not to consider the aggravated murder itself as an aggravating circumstances and challenging the trial court’s instruction that the jury was to consider the nature and circumstances of the aggravating circumstances. The Magistrate Judge looked through the Ohio Supreme Court’s decision, which was silent on the claims, to the appellate court’s decision addressing and rejecting those claims. The Magistrate Judge explained that the Sixth Circuit in Cooey v. Coyle, 289 F.3d 882, 927-28 (6th Cir.2002), rejected an argument that Ohio’s statutory scheme requiring the sentencer to consider the nature and circumstances of the aggravating circumstances as aggravating and the nature and circumstances of the offense as mitigating is unconstitutionally vague. That being so, the Magistrate Judge concluded, the instructions at issue were consistent with Ohio law and required no clarification.

As to sub-part four, Petitioner’s claim challenging the trial court’s instruction that the prosecution had not been afforded access to Petitioner for purposes of conducting a psychological evaluation, the Magistrate Judge found that although the instruction may very well have been an erroneous statement of Ohio law, it did not warrant habeas corpus relief because it was highly unlikely that any juror would have been persuaded to vote for life had he or she known that the prosecution’s access was actually precluded by state statute. The Magistrate Judge also rejected' Petitioner’s argument that the trial court’s instruction was tantamount to punishing Petitioner for exercising a constitutional right, much the way that prosecutors and trial courts are forbidden to comment on or otherwise punish defendants for exercising their right to remain silent. Specifically, the Magistrate Judge reasoned that Petitioner had no constitutional right to be free from a psychological evaluation by a prosecution expert once he put his mental health at issue.

Finally, the Magistrate Judge recommended denying Petitioner’s claim alleging that the trial court erred in refusing to instruct the jury that it could consider one of the life sentence options in the event that it could not reach unanimity on a death sentence. The Magistrate Judge rejected Petitioner’s reliance on Davis v. Mitchell, 318 F.3d 682 (6th Cir.2003), noting that, “[i]n Madrigal v. Bagley, 276 F.Supp.2d 744, 783-85 (N.D.Ohio 2003), the district court observed that Davis was in conflict with three earlier Sixth Circuit cases, specifically Roe v. Baker, 316 F.3d 557 (6th Cir.2002), Scott v. Mitchell, 209 F.3d 854 (6th Cir.2000), and Coe v. Bell, 161 F.3d 320 (6th Cir.1998).” (Doc. # 94, at 1082.) Evaluating Petitioner’s claim under Coe, Roe, and Scott, the Magistrate Judge concluded that the jury instructions in Petitioner’s case did not offend Mills v. Maryland, 486 U.S. 367, 373-75, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), because in Mills, the Supreme Court held that it was error only to require unanimity as to the existence of a mitigating factor, not to require unanimity as to the weighing process. The Magistrate Judge also noted that all three Sixth Circuit decisions rejected any claim that a trial court must inform the jury of the consequences of deadlock in sentencing deliberations.

Petitioner directed his objections to only the Magistrate Judge’s decision rejecting the claim that the trial court should have instructed the jurors that they could consider the life sentence options if they could not reach unanimity concerning a death sentence. (Doc. # 100, at 43-58.) The crux of Petitioner’s argument is that it is the Sixth Circuit’s discussion of this issue in Mapes v. Coyle, 171 F.3d 408 (6th Cir.1999) — not Coe, Scott, and Roe — that controls. To support that argument, Petitioner offers Davis v. Mitchell, where, according to Petitioner, the Sixth Circuit recognized that instructions like those that Petitioner challenges herein create a substantial possibility that jurors could rest their verdict recommending the death penalty on an improper basis-namely, the misconception that they must unanimously reject a death sentence in order to recommend a life sentence. Petitioner emphasizes that Coe involved Tennessee’s death penalty statute, while Mapes involved Ohio’s death penalty statute, and that the Sixth Circuit in Scott and Roe erred in following Coe’s holding and in dismissing Mapes’ holding as dicta.

Addressing Petitioner’s objections in a Supplemental Report and Recommendation, the Magistrate Judge concluded: “No further analysis is required beyond that set forth in the original Report and Recommendation.” (Doc. # 108, at 1127.)

As noted above, it does not appear that Petitioner objected to the Magistrate Judge’s conclusion rejecting the first four sub-parts of his fourth ground for relief. For the reasons set forth by the Magistrate Judge and because Petitioner did not object, this Court adopts the Magistrate Judge’s Report and Recommendations to deny those claims, the first sub-part as procedurally defaulted and sub-parts two, three, and four as without merit.

Regarding Petitioner’s claim that the trial court erred in failing to instruct the jury that it could consider the life sentence options in the event that it failed to achieve unanimity on imposition of the death penalty, the Court overrules Petitioner’s objections and adopts the Magistrate Judge’s recommendation to deny that claim. As the Magistrate Judge did, this Court declines Petitioner’s invitation to follow Davis v. Mitchell rather than Roe v. Baker, Scott u Mitchell, and Coe v. Bell. In fact, Petitioner’s claim does not warrant relief under any of those decisions because the instructions at issue in his trial simply did not give rise to a risk that the jurors mistakenly believed either that they had to unanimously reject a death sentence before considering the life sentence options or that they had to achieve unanimity on the existence of mitigating factors. Further, the trial court’s instruction that the final verdict had to be unanimous and that all twelve jurors had to sign the verdict form was a correct statement of law. Thus, Petitioner has not shown that the trial court’s refusal to instruct the jury that it could consider the life sentence options in the event that it could not unanimously agree to impose death did not contravene or unreasonably apply clearly established federal law.

For the foregoing reasons, the Court overrules Petitioner’s objections and adopts the Magistrate Judge’s Report and Recommendations to DENY Petitioner’s fourth ground for relief, the first sub-part as procedurally defaulted and the four remaining sub-parts as without merit.

Notwithstanding the determination of the Magistrate Judge and this Court, within the constraints of 28 U.S.C. § 2254(d)(1), that the trial court’s refusal to instruct the jury as set forth above did not contravene or unreasonably apply clearly established federal law, the Court is of the view that reasonable jurists could find its decision debatable or wrong. The instructions at issue are frequently problematic because with a misplaced word here or there, they can easily go from being constitutional to violating the Eighth and Fourteenth Amendments by misleading jurors into believing that they must unanimously reject the death sentence or be unanimous in finding the existence of mitigating factors. The Supreme Court has held that reviewing courts, when faced with ambiguous jury instructions, must determine whether there was a reasonable likelihood that the jury applied the instructions at issue in an unconstitutional manner. Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). Further, review of caw law reveals that the Sixth Circuit has been compelled to revisit this issue often to ensure that such instructions do not violate the Eighth and Fourteenth Amendments. Accordingly, the Court CERTIFIES for appeal Petitioner’s fourth ground for relief as to the failure of the trial court to instruct the jury that it could consider the life sentence options in the event that it could not achieve unanimity on imposing the death penalty. Because Petitioner did not object to the Magistrate Judge’s Report and Recommendations to deny ground four as to the first, second, third, and fourth sub-parts, this Court DECLINES to certify for appeal those components of ground four.

E. Ground Five: Prosecutorial Misconduct.

In his fifth ground for relief, Petitioner argued that the prosecution committed prejudicial misconduct during the penalty phase. (Doc. # 77, at ¶¶ 54-63.) Petitioner argued that the prosecution made baseless assertions, factual misstatements, and legal misstatements in an effort to undercut the mitigating factors upon which Petitioner presented evidence, to wit: his youth under Ohio Rev.Code § 2929.04(B)(4) because he was barely 18-years-old at the time of the offense; his lack of a significant criminal history pursuant to Ohio Rev.Code § 2929.04(B)(5) because he had been adjudicated only of juvenile truancy; and his suffering from paranoid schizophrenia under Ohio Rev. Code § 2929.04(B)(3) and/or § 2929.04(B)(7). As summarized, Petitioner argued that the prosecution:

1. By urging jurors to consider everything from the first phase; emphasizing the brutality of the crime; urging jurors to balance the cold-blooded murder against mitigation; arguing that jurors must balance the sham mitigation with Petitioner’s crime; and telling jurors they could consider the nature and circumstance of the offense, suggested that the jurors could consider the crime itself as an aggravating circumstance and that defense counsel were required to prove that the mitigation evidence outweighed the aggravating factors rather than the other way around.

2. By repeatedly referring to the videotape of the crime, replaying it, and using it to assert that Petitioner did not look or act mentally ill, suggested that the crime itself should be considered as an aggravating circumstance and that Petitioner was not mentally ill because of how he appeared on two or three minutes of videotape.

3. Told jurors that Petitioner’s youth could not be considered as a mitigating factor because he had street smarts, was an old 18-years-old, was a very mature 18-years-old, and knew how to acquire beer and marijuana illegally.

4. Asserted during cross examination and closing arguments that Petitioner’s behavioral changes as reported by family members were the result of a substance abuse problem, rather than mental illness, when this was not necessarily the case and when, even if accurate, it ignored the fact that mentally ill individuals often abuse substances in an effort to self-medicate.

5. Attempted to negate Petitioner’s lack of a significant criminal history by arguing, without any evidentiary basis and knowing that Petitioner had been convicted only of juvenile truancy, that Petitioner simply had never been caught or convicted for other crimes.

6. Misrepresented mitigating evidence by trivializing the history of mental illness in Petitioner’s family; by referring to Petitioner’s concussion from a car accident as a slight bump on the head; by undermining Dr. Smalldon’s testimony that the concussion may have caused the onset of Petitioner’s mental illness; and by giving an unsupported opinion that there could not possibly have been a nexus between Petitioner’s head injury and the onset of mental illness because no CAT scan or MRI had been conducted.

7.By suggesting, inaccurately, that defense counsel and Dr. Smalldon had “ambushed” the prosecution with their mental illness mitigation evidence and railing that it was unscrupulous for defense counsel to have presented the mental health evidence as a mitigation factor instead of a Not Guilty By Reason of Insanity defense, when the standards for the two are different, made pervasive arguments that defense counsel and Dr. Smalldon were using underhanded tactics and essentially fabricating Petitioner’s mental illness.

Petitioner argued that the prosecutorial misconduct summarized above warranted habeas corpus relief because it violated his rights to a fundamentally fair trial and due process.

Respondent argued th