Cowans v. Bagley (624 F. Supp. 2d 709, 2008)

OPINION AND ORDER

EDMUND A. SARGUS, JR., District Judge.

Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this Court a habeas corpus action pursuant to 28 U.S.C. § 2254. Petitioner filed his original habeas petition on July 31, 2000 (Doc. # 5) and an amended petition on May 3, 2001 (Doc. # 15). Petitioner amended his petition again on June 12, 2002, to add a claim that he had inadvertently omitted. (Doc. #45.) Finally, on September 9, 2005, this Court issued an Opinion and Order permitting petitioner to amend his petition to add recently-exhausted claims of ineffective assistance of appellate counsel. (Doc. # 72.)

On September 30, 2002, this Court issued an Opinion and Order granting in part and denying in part respondent’s motion to dismiss proeedurally defaulted claims. (Doc. # 49.) Specifically, this Court dismissed as proeedurally defaulted grounds 2(c), 2(f), 2(g), 6, and 11. Subsequently, in a March 26, 2003 opinion and order denying petitioner’s motion to conduct additional discovery, this Court granted respondent’s motion to dismiss ground 10 as proeedurally defaulted. (Doc. # 56.) On September 12, 2006, the Court issued an Opinion and Order granting petitioner’s motion for reconsideration of its procedural default order as to grounds 2(c), 2(f), 2(g), and 6, specifically to consider whether recently-exhausted claims of appellate counsel ineffectiveness constitute cause and prejudice to excuse the default of those claims. (Doc. # 84.) Thus, the Court will revisit those procedural default determinations in the instant order.

The Court permitted limited factual development, first issuing an order on April 18, 2001 granting petitioner’s motion for funds under the criminal justice act to conduct DNA testing, (Doc. # 14), and then issuing an order on December 6, 2001 granting petitioner’s motion for additional funds to complete the DNA testing (Doc. # 29). Petitioner filed a report summarizing the results of the testing on April 2, 2002. (Doc. # 37.) On September 30, 2002, this Court issued an Opinion and Order granting petitioner’s motion to conduct certain discovery. (Doc. #48.) On March 26, 2003, however, the Court issued an Opinion and Order denying petitioner’s request to conduct additional discovery. (Doc. # 56.) And on September 26, 2003, the Court issued an Opinion and Order denying petitioner’s motion for an evidentiary hearing. (Doc. # 60.)

This case is now ripe for a final decision on the merits of those claims that are properly before the Court: grounds 1, 2(a), 2(b), 2(d), 2(e), 2(h), 2(1), 2®, 2(k), 3, 4, 5, 7, 8, 9, 12, 13, and 14. Additionally, as noted above, the Court will revisit its procedural default determinations as to grounds 2(c), 2(f), 2(g), and 6.

I. Factual and Procedural History

The details of this capital murder and aggravated robbery are set forth in numerous state court opinions, including the Ohio Supreme Court’s published opinion in State v. Cowans, 87 Ohio St.3d 68, 717 N.E.2d 298 (1999):

Jessie J. Cowans, appellant, was convicted of the aggravated murder of Clara Swart and sentenced to death.

Mrs. Swart, a sixty-nine-year-old widow, lived alone in a rural section of Clermont County. One day in July 1996, when her son, Timothy, was taking some items to the side of the road to be picked up as trash, Cowans drove up and asked if he could take a glider-type swing that Timothy had placed by the road. Timothy agreed and helped him load the swing onto his truck.

On Wednesday, August 28, 1996, Mrs. Swart’s neighbor Mildred Kilgore went to Mrs. Swart’s house. Kilgore found Mrs. Swart standing outside talking to a man who looked like Cowans. When Kilgore approached, Mrs. Swart told the man that she was leaving with her friend, and he left. After he had gone, Mrs. Swart and Kilgore went inside, and Mrs. Swart said, “Oh, I’m scared. * * * He made me so nervous. * * * He scared me so bad.” Kilgore asked, “Who was it, Clara?” Mrs. Swart replied, “It was the man who came and got the chair [sic] off the garbage a few weeks ago.”

At 8:00 a.m. on Thursday, August 29, a Clermont County Senior Services bus arrived at Mrs. Swart’s house to pick her up. When Mrs. Swart did not respond to the sound of the driver’s horn, the driver went to the door and knocked. She heard some noise inside the house, but Mrs. Swart did not answer the door; nor did Mrs. Swart answer her telephone when the Senior Services office called. Mrs. Swart’s son came to visit her later in the day and found her body.

Mrs. Swart had been strangled with a purse strap, which was still around her neck. An electrical cord had been tied around her neck and to the handle of the refrigerator, and her hands had been tied with a telephone cord. She was still wearing her wedding ring and earrings. Officers found a palm print on a plastic bag covering a blender in Mrs. Swart’s kitchen.

After talking to Kilgore, sheriffs investigators began to consider Cowans a suspect. Investigators discovered that Cowans was on parole, so they called his parole officer, Sandra Higgins, to help them obtain Cowans’s fingerprints.

The investigators believed that they lacked enough evidence to obtain a search warrant for Cowans’s house. However, Higgins decided to search it herself in order to determine whether Cowans had violated his parole. Two deputies helped her. Once of the deputies testified that he found an Emmett Kelly clown figurine in the closet of Cowans’s bedroom. The figurine was later identified as belonging to Mrs. Swart. Subsequently, the deputies obtained Mrs. Cowans’s permission to continue searching. In the closet, they found a small wooden car.

While searching a wooded area behind Cowans’s house, a deputy found other items taken from Mrs. Swart’s house, including a wooden jewelry box. The little wooden car found in Cowans’s house appeared to have been broken off the lid of that box.

On the afternoon of September 2, Deputy Sheriff Jim DeCamp used a T-shirt belonging to Cowans to scent a bloodhound at Mrs. Swart’s residence. Once scented, the dog appeared to track the scent from Mrs. Swart’s backyard, over a fence, and for a short distance into a wooded area. The dog then lost the scent. After being rescented with the shirt, the dog appeared to follow it to the vicinity of a fallen tree where the handler was told that other deputies had found Mrs. Swart’s personal property. At this location, which was near the back end of Cowans’s property line, the dog was pulled off the scent. Again the dog was rescented and it continued to Cowans’s Chevrolet Blazer, which was parked at his house.

Mamie Trammel, one of Cowans’s neighbors, testified that she had a conversation with Cowans two days after the murder. Trammel testified that when she asked Cowans if he had heard about the murder, he said, ‘Yeah, isn’t that terrible * * * to hang a lady by the refrigerator with her hands behind her back.” This detail had not been made public by the sheriffs department.

Cowans was arrested on September 2. Deputy Sheriff Robert Evans drove him to the Clermont County Jail on a route that led past Mrs. Swart’s house. Evans slowed down as he passed the house, as he later testified, “just to see what Mr. Cowans would do.” Staring at the house, Cowans began to talk about the case. He complained that, as an “ex-con,” he was being “singled out.” Evans testified that Cowans said he had heard on the news that Mrs. Swart “was hung” and had later heard that she was strangled — information that had not been made public. Cowans also said “that he had been there [at Mrs. Swart’s house] on one occasion * * * for the purpose of picking up a swing.”

While confined in jail, Cowans discussed the charges against him with a fellow inmate, Marvin A. Napier. He told Napier at first that “he had chased some kids out of his backyard” and they “threw [some items] down on the ground. And he * * * went through some stuff and left what he didn’t want and took what he did want.”

Napier testified that Cowans later admitted to killing and robbing Mrs. Swart and gave details consistent with the facts of the case. For example, Napier testified that Cowans said he had found Mrs. Swart in the bathroom and “jerked [her] up off the toilet.” This was consistent with the fact that investigators found urine in the toilet bowl. Napier also testified that Cowans said he had tied Mrs. Swart with the phone cord, strangled her with a purse strap, and “ransacked” the house; also, that an “old people’s bus” arrived while he was there, and “[t]hey knocked on the door.”

Napier further testified that Cowans said he left Mrs. Swart’s house and walked home through the woods, that he went through the stolen property as he went, and that he left most of it in the woods as “junk” but brought home “[s]ome clown figurines” and some jewelry. Cowans allegedly told Napier “that he wished he’d have took the earrings and the wedding band off the lady’s finger.”

Cowans was indicted on four counts of aggravated murder. Count One alleged murder with prior calculation and design under R.C. 2903.01(A). Counts Two through Four alleged felony-murder under R.C. 2903.01(B). Each count carried four death specifications: one under R.C. 2929.04(A)(5), alleging that

Cowans had a prior murder conviction, and three felony-murder specifications under R.C. 2929.04(A)(7). Other counts charged kidnapping under R.C. 2905.01(A)(2) (to facilitate commission of felony), kidnapping under R.C. 2905.01(A)(3) (with purpose to terrorize or inflict serious physical harm), aggravated robbery, and aggravated burglary.

Cowans was convicted of all counts and specifications. (The prior-conviction specification was tried to the court pursuant to R.C. 2929.022.) After the verdict of guilty was announced, Cowans continued to profess his innocence and refused to attend or participate in the sentencing phase. He refused to present mitigating evidence and asked that the witnesses who were prepared to testify in mitigation also refuse to cooperate. The jury recommended the death sentence, and the trial judge imposed it.

State v. Cowans, supra, 87 Ohio St.3d at 68-71, 717 N.E.2d 298.

Petitioner Cowans was indicted by the Clermont County Grand Jury on September 11, 1996. At that time, attorneys R. Daniel Hannon and Timothy Smith were appointed to represent him. On November 21, 1996, petitioner notified the trial court that he wanted his attorneys to withdraw from the case and new counsel to be appointed. The trial court acquiesced and appointed Attorneys Bruce Wallace and Michael Kelly.

In February, 1997, one month before his trial was scheduled to begin, petitioner notified the trial court that he wanted his attorneys to withdraw and new counsel to be appointed. Petitioner was of the view that his attorneys believed that he was guilty and wanted petitioner to lie. The trial court denied petitioner’s motion and petitioner was removed from the courtroom after becoming disruptive. Subsequently, counsel for petitioner, at his express request, asked to withdraw and for new counsel to be appointed. That motion came for a hearing on February 28, 1997, during which counsel explained that they had had disputes with petitioner concerning certain evidence and theories for how to deal with that evidence and petitioner insisted that he could not work with his attorneys. The trial court denied counsel’s request to withdraw.

On March 6, 1997, counsel filed another motion to withdraw and for appointment of new counsel, explaining that they had had disputes with petitioner concerning certain evidence, that petitioner had refused to speak to them, and that the lack of communication was especially complicating their efforts to deal with the recently-revealed evidence that petitioner had allegedly made incriminating statements to a jailhouse informant. The trial court never held a hearing and it does not appear that the trial court ever ruled on that motion.

The culpability phase of the trial commenced on March 25, 1997. The jury began its deliberations on March 31, 1997 and was sequestered during the entirety of those deliberations. On April 1,1997, petitioner was convicted as charged. As the verdicts were being read, petitioner interrupted and asked to leave the proceedings. He was taken to a room where he could view the proceedings via closed circuit television, but he subsequently overturned the television monitor.

Following the verdicts, jurors were sent home for several days prior to the commencement of the sentencing phase. Petitioner had elected to try before the trial court, not the jury, the specification that he had previously been convicted of murder. The trial court heard evidence, during which petitioner was intermittently absent due to his disruptive behavior, and ultimately found petitioner guilty of the specification.

The sentencing phase of the trial began on April 11, 1997. At that time, counsel for petitioner expressly stated that they wanted neither a presentence investigation report nor a psychological evaluation. Further, petitioner instructed his attorneys to present no mitigation evidence and his friends and family members not to cooperate with his attorneys. After the State proffered evidence and defense counsel explained why they would not be presenting evidence, the jury listened to opening statements, closing arguments, and the trial court’s jury instructions. The jury recommended that petitioner be sentenced to death and, on April 16, 1997, the trial court accepted the jury’s recommendation and sentenced petitioner to death.

Represented by new counsel, petitioner appealed as of right to the Supreme Court of Ohio. On October 20, 1999, the Ohio Supreme Court issued a decision affirming the judgment against petitioner. State v. Cowans, supra, 87 Ohio St.3d 68, 717 N.E.2d 298. Chief Justice Moyer wrote a dissenting opinion in which he expressed his belief that the court should have applied to petitioner’s case the rule set forth in State v. Ashworth, 85 Ohio St.3d 56, 706 N.E.2d 1231 (1999), requiring the trial court to determine on the record, when a capital defendant evinces a desire to waive mitigation evidence, that the defendant’s waiver is knowing and voluntary, and that the defendant is competent to effect the waiver. Cowans, supra 87 Ohio St.3d at 89-97, 717 N.E.2d 298 (Moyer, C.J., dissenting). The United States Supreme Court denied certiorari on May 1, 2000.

During the time that he was litigating his direct appeal, petitioner also pursued postconviction relief in the state courts. Represented by the Ohio Public Defender’s Office, petitioner filed a postconviction action in the trial court, which action the trial court denied on September 21, 1998. The Ohio Court of Appeals for the Twelfth Appellate District issued a decision affirming the trial court’s judgment denying the postconviction action on September 7, 1999. The Ohio Supreme Court issued an entry on January 16, 2000 declining to accept jurisdiction over petitioner’s appeal, thereby letting stand the decisions of the court of appeals and trial court below.

During the pendency of these habeas corpus proceedings, petitioner, again represented by the Ohio Public Defender’s Office, filed in the Ohio Supreme Court on January 23, 2004, an Application for Delayed Reopening of his direct appeal — the procedure in Ohio for raising claims of ineffective assistance of appellate counsel. The Ohio Supreme Court issued an entry on August 4, 2004 denying the application without opinion.

II. Standards for Habeas Review

The provisions of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which 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.

III. Petitioner’s Claims

This case is now ripe for a final decision on the merits of those claims that are properly before the Court: grounds: grounds 1, 2(a), 2(b), 2(d), 2(e), 2(h), 2(i), 2(j), 2(k), 3, 4, 5, 7, 8, 9, 12, 13, and 14. Additionally, as noted above, the Court will revisit its procedural default determinations as to grounds 2(c), 2(f), 2(g), and 6. First Ground for Relief: Petitioner was denied the equal protection and due process of the laws when the Ohio Supreme Court failed to afford petitioner the benefit of the rule in State v. Ashworth, 85 Ohio St.3d 56, 706 N.E.2d 1231 (1999).

In his first ground for relief, petitioner argues that his Fourteenth Amendment rights to equal protection and due process were violated when the Ohio Supreme Court failed to apply its decision in State v. Ashworth, 85 Ohio St.3d 56, 706 N.E.2d 1231 (1999) to petitioner’s case, which was pending on direct review at the time Ash-worth was decided. In Ashworth, the Ohio Supreme Court recognized that “[w]hile Crim.R. 11 addresses what must be done when a person charged with aggravated murder pleads guilty, there is no corollary procedure for the waiver of mitigation.” Id. at 61, 706 N.E.2d 1231. The Ohio Supreme Court went on to state:

We now hold that in a capital case, when a defendant wishes to waive the presentation of all mitigating evidence, a trial court must conduct an inquiry of the defendant on the record to determine whether the waiver is knowing and voluntary. The trial court must decide whether the defendant is competent and whether the defendant understands his or her rights both in the plea process and in the sentencing proceedings. (Citations omitted). The trial court must inform the defendant of the right to present mitigating evidence and explain what mitigating evidence is. The court must then inquire of the defendant, and make a determination on the record, whether the defendant understands the importance of mitigating evidence, the use of such evidence to offset the aggravating circumstances, and the effect of failing to present that evidence. After being assured that the defendant understands these concepts, the court must inquire whether the defendant desires to waive the right to present mitigating evidence, and, finally, the court must make findings of fact as to the defendant’s understanding and waiver of rights. (Citation omitted).

Id. at 62, 706 N.E.2d 1231.

The Ohio Supreme Court also made clear that absent a request by counsel or other indicia of incompetence, “[w]e are not holding that a competency evaluation must be done in every case in which a defendant chooses to waive the presentation of mitigating evidence.” Id. (citing State v. Tyler, 50 Ohio St.3d 24, 29, 553 N.E.2d 576 (1990).) The Ohio Supreme Court further held that when a defendant seeks to waive the presentation of all mitigating evidence, and his competency is brought into issue, the following standard is to be used for determining competency:

A defendant is mentally competent to forgo the presentation of mitigating evidence in the penalty phase of a capital case if he has the mental capacity to understand the choice between life and death and to make a knowing and intelligent decision not to pursue the presentation of evidence. The defendant must fully comprehend the ramifications of his decision, and must possess the ability to reason logically, ie., to choose the means that relate logically to his ends.

Ashworth, 85 Ohio St.3d at 69, 706 N.E.2d 1231.

The Ohio Supreme Court decided Ash-worth on March 24, 1999, nearly a year after Petitioner Cowans had filed his merit brief to the Ohio Supreme Court and approximately four months after petitioner’s oral argument before the Ohio Supreme Court. The Ohio Supreme Court decided petitioner’s appeal on October 20, 1999, seven months after it had decided Ash-worth.

Petitioner’s eighth proposition of law on direct appeal challenged, in part, the failure of the trial court to determine whether petitioner’s waiver of the right to present mitigating evidence was knowing and voluntary. Although petitioner had not expressly raised the issue of the applicability of Ashworth, the Ohio Supreme Court of its own volition took note of its holding in Ashworth that any waiver of the right to present mitigating evidence had to be knowing and voluntary and that the trial court was required to conduct an inquiry of the defendant on the record. The court then proceeded to set forth what, pursuant to Ashworth, the record must affirmatively demonstrate when a defendant seeks to forgo the presentation of mitigating evidence. Cowans, 87 Ohio St.3d at 85, 717 N.E.2d 298. Concluding that “the procedures used in this case to advise Cowans of the potential consequences of his decision were substantially similar to those adopted in Ashworth[] ” the Ohio Supreme Court nevertheless conceded that “the trial court failed to address all six Ashworth requirements in its colloquy with Cowans.” Id. at 86, 717 N.E.2d 298. Specifically, the Ohio Supreme Court found that the record demonstrated neither an explanation by the trial court to petitioner of what mitigating evidence was nor a finding that petitioner both fully understood the ramifications of failing to present mitigating evidence and desired to waive his rights. Id.

The Ohio Supreme Court concluded, however, that “[w]hile this procedure fell short of that established in Ashworth, we hold that our ruling in Ashworth is prospective only. We cannot hold the trial court accountable for not following a procedure that was not established or even foreshadowed, when the case was tried.” Id. The court went on to explain:

We are not holding today that substantial compliance is enough to satisfy the requirements of Ashworth; however, the trial court here, like the trial court in Ashworth, did engage the defendant in a colloquy concerning the waiver of mitigation, even though no guidelines were in place when Cowans was tried. Given the content of the trial court’s colloquy, there is nothing to indicate that Cowans did not knowingly and voluntarily relinquish his right to present mitigating evidence. Since the decision in Ashworth is prospective only, the failure to comply with all of the procedural requirements set forth in Ashworth is not error in this case.

To sum up: Cowans’s desire to waive mitigation did not automatically require a competency hearing, nor did the record create a doubt as to his competence such as to require a competency hearing; the record indicates that Cowans’s waiver was knowing and voluntary; and, although the specific procedural requirements of State v. Ashworth were not complied with in full, they are prospective only and hence do not apply here. Accordingly, Cowans’s eighth proposition of law is overruled.

Cowans, 87 Ohio St.3d at 86, 717 N.E.2d 298.

Petitioner argues herein that Ashworth created a bright line rule to be applied in capital cases where the defendant seeks to waive presentation of all mitigating evidence and that the Ohio Supreme Court erred in not applying Ashworth to his own case, which was still pending on direct appeal. The Ohio Supreme Court’s holding in his own case that Ashworth was to be given only prospective application and failing to apply it to criminal cases pending on direct review, petitioner argues, “violates basic norms of constitutional adjudication.” (First Amended Petition, Doc. # 15, at ¶ 5.) Characterizing the Ohio Supreme Court’s failure to apply Ashworth to his own case as “[selective application of new rules[,]” petitioner argues that he was denied his rights to due process and equal protection embodied in the Fourteenth Amendment. (Id. at ¶ 8.)

Respondent offers several arguments against granting relief on petitioner’s first ground. “Initially,” respondent argues, “it should be noted that this argument only involves state law, and as such, fails to state a cognizable claim in habeas corpus.” (Return of Writ, Doc. # 36, at 28.)

The crux of respondent’s opposition, however, is that the United States Supreme Court decision of Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), requiring new rules for the conduct of criminal prosecutions to be applied retroactively to all cases pending on direct review or not yet final, applies only to newly declared constitutional rules, not to “every state-declared common law rule.” (Doc. # 36, at 29.) Respondent argues that because the Ash-worth decision had nothing to do with the constitutionality of Ohio’s criminal procedure, the Ohio Supreme Court was not required to apply it to petitioner’s case. (Doc. #36, at 29 (discussing Mason v. Duckworth, 74 F.3d 815 (7th Cir.1996)).) Respondent further argues that the principles of Griffith v. Kentucky do not mandate retroactive application of Ashworth to petitioner’s case because Ashworth enunciated a new state-declared common law rule, rather than establishing new constitutional rule. (Doc. # 36, at 30.)

A related argument advanced by respondent against granting relief on petitioner’s claim is that notwithstanding what the Ohio Supreme Court mandated in Ash-worth, trial courts are not constitutionally required under applicable federal law to conduct a record colloquy with a defendant who seeks to waive his right to a jury trial. Respondent reasons from that jurisprudence that Ashworth simply established a state procedural rule to ensure a knowing and voluntary waiver of the right to present mitigation, which does not rise to a constitutional magnitude sufficient to require retroactive application to cases pending on direct review pursuant to Griffith v. Kentucky.

Respondent goes on to argue at length that, contrary to petitioner’s assertions, the record demonstrates both that petitioner was competent to waive his right to present mitigating evidence and that petitioner made a knowing, intelligent, and voluntary waiver of that right. (Doc. # 36, at 31-36.) In so arguing, respondent appears to concede without equivocation that, “[t]he Eighth Amendment guarantees the right to present mitigating evidence of a sentence.” (Doc. # 36, at 31 (citations omitted).) Respondent argues that petitioner failed to point to any actual indica of incompetence in the trial record that would have alerted either the trial court or his own defense attorneys to question his competency, asserting that petitioner’s decision not to participate in the presentation of mitigating evidence and to instruct any potential witnesses not to cooperate do not, without more, demonstrate incompetence. (Doc. # 36, at 34.) Respondent further argues that petitioner fails to provide evidence that he did not knowingly and intelligently waive his right to present mitigating evidence. Specifically, respondent asserts that it is reasonable to infer from the fact that defense counsel were prepared to go forth with a mitigation case that petitioner was informed, during that process, of what constituted mitigation evidence, and that the totality of the circumstances demonstrates that petitioner understood the ramifications for waiving his right to present mitigation evidence — • namely, that the jury was likely to recommend the death penalty. (Doc. # 36, at 35.)

Respondent’s final argument is that “because there is no clearly established case directly on point, this court may not grant habeas relief on this claim under the ‘new rule’ doctrine of Teague v. Lane, 489 U.S. 288, 297-98, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).” (Doc. # 36, at 35.) In support, respondent cites Stewart v. LaGrand, 526 U.S. 115, 119, 119 S.Ct. 1018, 143 L.Ed.2d 196 (1999) (per curiam), in which the United States Supreme Court overruled a decision by the United States Court of Appeals for the Ninth Circuit holding that Eighth Amendment protections may not be waived, stating that such a holding would create and apply a new procedural rule in violation of Teague. (Doc. # 36, at 36.)

In his traverse, petitioner takes issue with respondent’s argument that the determination of whether the rule created in Ashworth should apply retroactively to cases pending on direct review turns on whether it was a “rule of constitutional procedure” or a “state-declared common law rule.” (Traverse, Doc. #42, at 6 (quoting Return of Writ, Doc. # 36, at 30-33).) Petitioner dismisses respondent’s position, arguing that “the distinction between a constitutional right and the procedure used to prevent the violation of the right is surely a distinction without a difference.” (Doc. # 42, at 6.) In so arguing, petitioner emphasizes that the right to present mitigating evidence is a constitutional right and that even respondent admits the same. (Id.) Petitioner reasons that any waiver of the right to present mitigating evidence must be knowing, intelligent, and voluntary, and that even assuming the Constitution does not require a particular procedure, it nevertheless requires some procedure to ensure that any waiver thereof comports with due process. (Id. at 6-7.) Petitioner goes on to argue:

Prior to Ashworth, Ohio courts had no procedure to ensure a voluntary waiver of the right to present evidence in mitigation of a sentence. Ashworth established the minimum inquiry that must be present in the record in order for the courts to determine whether the waiver was knowing, intelligent and voluntary. To this extent then, the Ashworth rule is of “constitutional magnitude.” (Emphasis in original.)

(Doc. #42, at 7.) Petitioner argues that even if. this Court were to conclude that the Ashworth rule is not of constitutional magnitude, this Court would still be required to determine whether petitioner’s waiver of his right to present mitigating evidence comported with due process. The record, according to petitioner, does not support such a finding.

Part and parcel to any determination whether his waiver comported with due process, according to petitioner, is a determination whether he was competent to voluntarily relinquish his rights. (Doc. #42, at 9.) In this regard, petitioner argues that he can prevail on both a claim of procedural competency, because the record established a bona fide doubt regarding his competence to stand trial into which the trial court failed to inquire, and a claim of substantive competency, because he “probably was not competent” to voluntarily waive his right to present mitigating evidence. (Doc. # 42, at 11.) Germane to both inquiries, according to petitioner, is the wealth of indicia in the record sufficient to alert a reasonable judge that petitioner’s competency was in doubt. Citing at length facts set forth in Chief Justice Moyer’s dissenting opinion, (Doc. # 42, at 12-13, 14-18), petitioner argues flatly that “[d]ue process is violated where a hearing is not held despite the presence of evidence creating doubt regarding a Defendant’s competence.” (Doc. #42, at 14.) Chief Justice Moyer’s dissenting opinion included observations that petitioner’s disruptive behavior could have been a rationally-based, but misguided, protest against the criminal proceedings against him or the result of instability, and that petitioner’s outbursts demonstrated an inability to control his behavior that also might have stemmed from a mental disorder. (Doc. # 42, at 14.) Chief Justice Moyer also emphasized incidents in the record demonstrating petitioner’s “unreasonable belief, approaching paranoia,” that everyone involved in the proceedings against him— from his defense attorneys and the prosecutors, to the trial court and the jury, to the female law enforcement officer who controlled the stun belt that he was compelled to wear — was working against him. (Doc. # 42, at 14-18.) Petitioner argues that, because the trial court failed to conduct a hearing in the face of the wealth of indicia calling petitioner’s mental state into question, its competency determination is not entitled to a presumption of correctness. (Doc. # 42, at 19.)

Petitioner concludes by arguing that the record is either silent or equivocal on all of the factors identified in Ashworth as being critical to the determination of competency and voluntariness and that this Court may not presume a knowing, intelligent, and voluntary waiver based on such a record. (Doc. # 42, at 20-22.) Specifically, petitioner insists (1) that the trial court engaged not in a colloquy with petitioner, but in an argument in seeking to control petitioner’s behavior; (2) that petitioner was never advised on the record about this right to present mitigating evidence; (3) that the trial court never explained to petitioner what mitigating evidence was; (4) that the trial court never inquired into petitioner’s understanding of mitigating evidence, of its role in offsetting aggravating circumstances, or of the effect of failing to present it; and (5) that the trial court never made findings of fact that petitioner understood and waived his rights. (Doc. # 42, at 21-22.)

In a reply to petitioner’s traverse, respondent not only reiterates her initial arguments against granting relief on petitioner’s first ground, but also assails as “somewhat misguided” petitioner’s “continued reliance” on Chief Justice Moyer’s dissent in support of his claim that his waiver was invalid. (Doc. # 43, at 4.) Respondent asserts that the record reviewed in its entirety, as opposed to the several, isolated outbursts by petitioner that Chief Justice Moyer discussed at length in his dissent, fails to support petitioner’s assertion that his waiver was not knowing, intelligent, and voluntary. Specifically, respondent asserts that it is fair to presume that, through defense counsel’s process of preparing witnesses for mitigation, petitioner was informed about the nature and content of mitigating evidence. Respondent further asserts that the trial court clearly informed petitioner that his refusal to present any mitigating evidence would almost surely result in the jury imposing a death sentence. Thus, according to respondent, petitioner has not established that he was unaware of the consequences of waiving the presentation of mitigating evidence.

In determining whether the Ohio Supreme Court’s decision denying petitioner’s claim on direct appeal that he did not competently execute a knowing, intelligent, and voluntary waiver of his right to present mitigating evidence, this Court must address the following issues: (1) whether the Ohio Supreme Court erred in failing to apply its Ashworth decision to petitioner’s case and, if so, whether the error warrants habeas corpus relief; (2) whether petitioner’s waiver of his right to present mitigating evidence comported with Due Process; and (3) whether petitioner was competent to execute a valid waiver of his right to present mitigating evidence.

A. The Ohio Supreme Court’s Failure to Apply Ashworth

The initial query before the Court is whether the Ohio Supreme Court was obligated to apply Ashworth retroactively to petitioner’s case, which was pending on direct appeal at the time the Ohio Supreme Court decided Ashworth. In Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), the United States Supreme Court held that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Ohio law on retroactivity appears to fall in line with Griffith. See, e.g., State v. Reynolds, 79 Ohio St.3d 158, 162, 679 N.E.2d 1131 (1997) (declining, in the interest of finality, to apply new decision retroactively to case on collateral review); State v. Hill, 160 Ohio App.3d 324, 334, 827 N.E.2d 351 (Ohio App. 8 Dist.2005) (applying Crawford Confrontation Clause case to state criminal case pending on direct appeal at the time Crawford was announced); State v. Jenkins, 42 Ohio App.3d 97, 101, 536 N.E.2d 667 (Ohio App. 8 Dist.1987) (following Griffith in declining to apply new decision to state case on collateral review).

Griffith itself did not define what constitutes a “new rule for the conduct of criminal prosecutions” sufficient to require retroactive application. But it left some clues. For one thing, the Supreme Court began its discussion by setting forth the history of its retroactivity jurisprudence as to “constitutional rules of criminal procedure.” Griffith, 479 U.S. at 320, 107 S.Ct. 708 (emphasis added). Further, the Supreme Court held in Griffith that its decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which required a prosecutor to articulate a neutral, fact-based justification for use of a peremptory challenge during voir dire which limited or eliminated a racial group, was to be applied retroactively to all cases pending on direct review or not yet final. Accordingly, many courts, state and federal, have concluded that Griffith’s holding applies only to new constitutional rules for the conduct of criminal prosecutions, and not to rules involving or based upon state law or procedural rules distinct from or broader than the underlying constitutional rights they were designed to protect. In answering the question before it — namely, whether the Ohio Supreme Court violated Petitioner Cowans’s rights to Due Process and Equal Protection when it failed to apply its Ashworth decision to his case-the Court finds it helpful to examine a number of those decisions.

When the Ohio Supreme Court declined to apply its Ashworth decision to petitioner’s case on direct appeal, it did not cite any retroactivity cases or discuss any retroactivity principles. Rather, it stated that, “[w]e cannot hold the trial court accountable for not following a procedure that was not established, or even foreshadowed, when the case was tried.” Cowans, 87 Ohio St.3d at 86, 717 N.E.2d 298. Most of the state court decisions that this Court has reviewed, in which the state courts addressed the issue squarely, concluded that Griffith v. Kentucky does not govern a state court’s retroactivity analysis as to state supreme court decisions announcing new rules not based on the federal constitution.

At issue in Taylor v. State, 10 S.W.3d 673 (Tex.Crim.App.2000), was whether the abolition of the juvenile exception to the accomplice witness rule, announced in the decision of Blake v. State, 971 S.W.2d 451 (Tex.Crim.App.1998), should apply retroactively to cases not yet final on direct review. Texas’s highest court answered that query in the negative, explaining:

The Supreme Court’s retroactivity analysis for federal constitutional errors is binding upon the states when federal constitutional errors are involved. (Citation omitted). Conversely, Griffith and Teague do not bind the states on the retroactivity of new rules under state laws.

Taylor, 10 S.W.3d at 679.

People v. Sexton, 458 Mich. 43, 580 N.W.2d 404 (1998), involved three cases consolidated to address the issue of whether to apply retroactively to cases on direct review the Michigan Supreme Court’s People v. Bender, 452 Mich. 594, 551 N.W.2d 71 (1996), decision requiring police to inform a suspect when retained counsel is available for consultation. The Bender decision itself stated that the rule was not required by the state constitution and announced that, just as the Supreme Court of the United States had done in Miranda v. Arizona, it was creating a prophylactic rule. In ultimately deciding to use a three-part analysis, rather than Griffith, for determining whether to give its Bender decision retroactive effect to cases pending on direct review, the Michigan Supreme Court concluded, “Griffith is not applicable to the cases at bar because it applies only to rules of criminal procedure that are grounded on the United States Constitution.” Sexton, 458 Mich. at 54, 580 N.W.2d at 410.

In Cooper v. State, 889 P.2d 293 (Okl.Cr.1996), rev’d on other grounds, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996), the defendant challenged the fact that the trial court had given a standard instruction on inferences able to be drawn from a defendant’s flight. In so challenging, the defendant sought the benefit of retroactive application to his case the Mitchell v. State, 876 P.2d 682 (Okl.Cr.1994), decision, in which Oklahoma’s high court had decided that such instructions were improper where the defendant had not explained his departure. The court rejected the defendant’s reliance on Griffith v. Kentucky, stating:

“Griffith and the retroactivity principle is indeed applicable in all questions concerning federal questions. However, the Supreme Court has never held we must apply the same standard to holdings by this Court dealing with issues of state law.”

Cooper, 889 P.2d at 308.

In Farbotnik v. State, 850 P.2d 594 (Wyo.1993), the defendant sought retroactive application to his case on direct review of the Wyoming Supreme Court’s Bearpaw v. State, 803 P.2d 70 (1990), decision announcing the requirements for a complete record necessary for direct appeal. The Wyoming Supreme Court framed the issue before it as follows:

The effective debate is whether Bear-paw articulates a constitutional right with respect to a complete record in a criminal case or whether, on the other hand, Bea'rpaw represents the exercise of this court’s supervisory power. Retrospective application normally would be associated with a constitutional proposition, but a prospective application is generally indicated for rules arising out of the court’s supervisory power except for those rules that are intended to substantially improve the fact finding at trial.

Farbotnik, 850 P.2d at 597. After concluding that the defendant’s record complied with federal due process mandates and rejecting the defendant’s attempt to inject constitutional principles into its Bearpaw decision, the court elected to follow the three-part analysis set forth in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), for determining whether to give Bearpaw retroactive effect to cases pending on direct appeal. In using that analysis, rather than Griffith, the court explained:

The application of Griffith is limited, however, to new rules of criminal procedure that “(1) are binding on the federal courts pursuant to the Supreme Court’s supervisory powers in the federal system, or (2) are binding on state and federal courts as a matter of federal constitutional law.” People v. Carrera, 49 Cal.3d 291, 261 Cal.Rptr. 348, 369-70, 777 P.2d 121, 142 (1989); People v. Murtishaw, 48 Cal.3d 1001, 258 Cal.Rptr. 821, 773 P.2d 172 (Cal.1989). If neither of those conditions pertains, a state court is free to define the limits of prospective or retroactive application of any precedent because the constitution of the United States is silent on that issue. (Citations omitted).

Farbotnik, 850 P.2d at 602.

The issue before New York’s highest court in People v. Mitchell, 80 N.Y.2d 519, 591 N.Y.S.2d 990, 606 N.E.2d 1381 (1992), was whether to apply to the defendant’s case on direct appeal its People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95 (1992), decision, decided the same day, concerning the right of a defendant to be present for certain voir dire questioning. The court concluded that Griffith was not controlling because, “[i]f no Federal constitutional principles are involved, however, the question of retroactivity is one of State law.” Mitchell, 80 N.Y.2d at 526, 591 N.Y.S.2d 990, 606 N.E.2d 1381. The court went on to conclude that it had decided Antommarchi as a matter of state law because the basis of the decision was found in New York’s criminal procedural law. In so concluding, the court explained: “[ajlthough the statute has underlying due process concerns, its protective scope is broader than the constitutional rights it encompasses.” Id. (citations omitted).

In State v. Royer, 436 N.W.2d 637 (Iowa 1989), the defendant urged the Iowa Supreme Court to apply retroactively to his case on direct appeal its State v. Jeffries, 430 N.W.2d 728 (Iowa 1988) decision regarding the standard trial courts were to follow when deciding whether to give a lesser included offenses instruction. The state urged the court to use a three-part analysis for determining whether Jeffries should be applied. The Iowa Supreme Court applied Jeffries to the defendant’s case, but not because it felt obligated by Griffith v. Kentucky to do so, explaining: “Although we are not required to follow the Griffith case because lesser-included offenses do not infringe on a constitutional right, the reasoning adopted therein is applicable to this situation.” Royer, 436 N.W.2d at 640 n. 2.

The question before the California Supreme Court in People v. Carrera, 49 Cal.3d 291, 261 Cal.Rptr. 348, 777 P.2d 121 (1989), was whether to apply retroactively to the defendant’s case on direct appeal its De Lancie v. Superior Court, 31 Cal.3d 865, 183 Cal.Rptr. 866, 647 P.2d 142 (1982), decision recognizing a statutory right of privacy for pretrial detainees. The California Supreme Court had held in Donaldson v. Superior Court, 35 Cal.3d 24, 196 Cal.Rptr. 704, 672 P.2d 110 (1985), that its De Lancie decision was inapplicable to antecedent conduct, but that was before the United States Supreme Court issued its Griffith v. Kentucky decision. Looking at the issue in light of Griffith, the California Supreme Court concluded:

We are not compelled to follow Griffith, as it specifies only the rule of retroactivity that the Supreme Court has decreed for those new rules of criminal procedure it announces that (1) are binding on the federal courts pursuant to the Supreme Court’s supervisory powers in the federal system, or (2) are binding on state and federal courts as a matter of federal constitutional law. That is, nothing in Griffith purports to establish a new rule of retroactivity for rules of criminal procedure founded on state constitutional or statutory law. (Citation omitted).

Carrera, 49 Cal.3d at 326-27, 261 Cal.Rptr. 348, 777 P.2d 121.

In Commonwealth v. Waters, 400 Mass. 1006, 511 N.E.2d 356 (1987), the Massachusetts Supreme Court considered whether Griffith v. Kentucky required it to apply to the defendant’s case its Commonwealth v. Allen, 395 Mass. 448, 480 N.E.2d 630 (1985), decision requiring a judicial determination of the voluntariness of a defendant’s statements whenever the issue is raised. The court declined, explaining as follows:

From our reading of Griffith, we conclude that this holding is ancillary to the constitutional rule of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and is not based on equal protection or due process grounds. Accordingly, Griffith does not require this court to give retroactive application to rules that are not based on the Federal Constitution.

Waters, 400 Mass. at 1007, 511 N.E.2d at 357.

In Farthing v. Commonwealth, NO.2002-CA-002283-MR, 2004 WL 758337 (Ky.App. Apr. 9, 2004), the Kentucky Court of Appeals declined to apply retroactively a Kentucky Supreme Court decision, Kotila v. Commonwealth, 114 S.W.3d 226 (Ky.2003), interpreting a Kentucky statute setting forth the essential elements for a conviction for complicity to manufacture methamphetamine. Although the appellate court appeared to base its decision primarily on the defendant’s failure to preserve his insufficiency-of-the-evidence claim for appeal, stating, “[a] new decision should not be applied retroactively unless the issue was properly preserved for appellate review,” 2004 WL 758337 at * 7, the appellate court also rejected the defendant’s Griffith v. Kentucky argument, stating, “Farthing’s reliance on Griffith is misplaced, however, as Griffith applies only to rules of criminal procedure that are grounded on the United States Constitution.” Id. at n. 45 (citations omitted).

By way of contrast, in Smith v. State, 598 So.2d 1063 (Fla.1992), the Florida Supreme Court appeared not to distinguish between constitutional and non-constitutional rules in determining that Griffith v. Kentucky required retroactive application of any new rules of criminal procedure to cases not yet final on direct review. At issue was whether to give retroactive effect to the Florida Supreme Court’s Pope v. State, 561 So.2d 554 (Fla.1990), decision, in which that court held that when an appellate court reverses a departure sentence because of the absence of written reasons for the departure, the court must remand the case for resentencing with no possibility of departure from the guidelines. The Florida Supreme Court decided to apply Pope to the defendant’s case, explaining:

Thus, we hold that any decision of this Court announcing a new rule of law, or merely applying an established rule of law to a new or different factual situation, must be given retrospective application by the courts of this state in every case pending on direct review of not yet final.

Smith, 598 So.2d at 1066. In so holding, the Florida Supreme Court qualified that the claim at issue had to have been preserved for appellate review.

In Murtishaw v. Woodford, 255 F.3d 926 (9th Cir.2001), the petitioner argued that he was entitled to habeas corpus relief based on the failure of the California Supreme Court to apply to his case on direct appeal its People v. Flannel, 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1 (1979), decision. In Flannel, the California Supreme Court held that an honest though unreasonable belief of the need for self-defense is sufficient to negate the existence of malice and that the trial court must instruct the jury as much when the evidence warrants it. The California Supreme Court had declined to apply Flannel to Murtishav/s case, holding that Griffith applied only to rules based on the federal Constitution or upon the federal supervisory power, and that “[w]e need not extend this analysis to rules of criminal procedure derived solely from state law.” People v. Murtishaw, 48 Cal.3d 1001, 1013, 258 Cal.Rptr. 821, 773 P.2d 172 (1989). The Court of Appeals for the Ninth Circuit agreed with the California Supreme Court’s analysis, explaining:

Griffith requires retroactive application only of “new constitutional rules of criminal procedure,” Griffith, 479 U.S. at 322, 107 S.Ct. 708, 93 L.Ed.2d 649. It does not require retroactive application of every new state-declared common law. Murtishaw argues that Flannel was implicitly based on constitutional principles because it contained overtones of due process. The Flannel court, however did not cite to the federal or state Constitution in reaching its decision that trial courts must give sua sponte instructions of the unreasonable self-defense theory. (Citation omitted). Furthermore, in Murtishaw II, the California Supreme Court expressly held that the Flannel rule was based on state common law, not on the Federal Constitution. (Citation omitted). Murtishaw cannot cite to any authority indicating that the federal constitution requires a sua sponte instruction on the imperfect self-defense theory.

Murtishaw v. Woodford, 255 F.3d at 956.

United States ex rel. Franklin v. Gilmore, 993 F.Supp. 1162 (N.D.Ill.1998), involved a habeas corpus action challenging the failure of the Illinois Supreme Court to apply retroactively to petitioner’s case on direct appeal a new Illinois Supreme Court decision, People v. Gacho, 122 Ill.2d 221, 119 Ill.Dec. 287, 522 N.E.2d 1146 (1988), requiring the trial court to instruct the jury in any case where the defendant was convicted of two or more murders that a natural life sentence was mandatory if the jury did not impose the death penalty. Citing Griffith v. Kentucky, the petitioner argued that the state courts had erred in not applying its Gacho decision to his case in violation of his rights under the Fourteenth Amendment. The District Court for the Northern District of Illinois rejected the petitioner’s argument because Griffith was limited in its scope “to new rules of federal constitutional magnitude.” United States ex rel. Franklin, 993 F.Supp. at 1178 (citation omitted). Noting that another Illinois Supreme Court decision had construed the right to a natural life instruction as a statutory right rather than a constitutional right, the district court explained that, “[sjtate courts are entitled to refuse to apply new state court decisions retroactively, and the Supreme Court has ‘reemphasize[d] that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.’ ” Id. (quoting Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)).

Mason v. Duckworth, 74 F.3d 815 (7th Cir.1996), involved a habeas corpus action in which the petitioner had challenged his conviction based on the failure of Indiana’s highest court to apply to his case on direct appeal its Modesitt v. State, 578 N.E.2d 649 (Ind.1991), decision. Modesitt overruled a previous decision and adopted Fed. R.Evid. 801(d)(1)(A), which added a requirement for admissibility of certain out-of-court statements. Modesitt expressly stated that it was to be applied only prospectively. The Court of Appeals for the Seventh Circuit rejected the petitioner’s argument, based on Griffith v. Kentucky, that Modesitt should have been applied retroactively to his case on direct appeal, explaining, “[a]s Judge McKinney in the district court noted, however, there is an ‘explicit caveat’ to the holding: Griffith only applies to new rules of federal constitutional magnitude.” Mason, 74 F.3d at 818. Determining that Modesitt’s overruling of the previous controlling decision had nothing to do with the constitutionality of that decision and everything about curbing abuse and harmonizing Indiana’s evidentiary rules with those of other jurisdictions, the Seventh Circuit concluded that, “[t]his change in the rules of evidence is simply not one of constitutional proportions, and for that reason Griffith does not apply.” Id. at 819.

In Lackey v. Scott, 28 F.3d 486 (5th Cir.1994), the habeas corpus petitioner argued that the state’s highest court had violated his constitutional rights by failing to apply retroactively to his case on direct appeal a new state decision, Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991), requiring a definition of the term “reasonable doubt” in jury instructions in criminal trials. The Texas Court of Criminal Appeals also ruled in Geesa that the decision would apply only prospectively. The petitioner argued that Geesa was based on federal constitutional law and that, accordingly, Griffith v. Kentucky required that it be given retroactive application to cases not yet final on direct appeal. The Fifth Circuit rejected the petitioner’s argument, holding that, “[cjontrary to Lackey’s assertions, the rule announced in Geesa was not required by the federal constitution or law. (Citations omitted). Thus, the federal retroactive principles discussed in Griffith have no bearing on the state’s application of its new rule. (Citation omitted).” Lackey, 28 F.3d at 491. The Fifth Circuit also rejected the petitioner’s argument that the failure to give Geesa retroactive application under Griffith principles violated his Equal Protection rights, reasoning that the petitioner had failed to attempt to demonstrate that the state had no rational basis for giving Geesa only prospective effect.

In Diggs v. Owens, 833 F.2d 439 (3rd Cir.1987), the petitioner argued that he was entitled to habeas corpus relief because he had been tried for first degree murder and kidnapping in Pennsylvania in violation of several articles of the Interstate Agreement on Detainers Act (IADA). The petitioner’s claim was largely based on United States v. Mauro, 436 U.S. 340, 349, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), wherein the Supreme Court held, with qualifications, that a writ of habeas corpus ad prosequendum was not a detainer for purposes of the IADA. However, the Third Circuit had held in United States v. Williams, 615 F.2d 585, 592-93 (3rd Cir.1980), that Mauro was not to be applied retroactively. The petitioner argued that Griffith v. Kentucky required that Mauro be applied retroactively to his case. The Third Circuit rejected his argument, explaining:

Griffith, however, was concerned with the retroactive application of the constraints on a prosecutor in jury selection established in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and thus dealt with constitutionally mandated procedures. * * * Accordingly, we hold that Griffith should be confined to constitutional rules of criminal procedure and thus does not require retroactive application of new procedural decisions not constitutionally grounded.

There is no reason to apply the Griffith constitutional retroactivity holding here as the IADA is “nothing more that a set of procedural rules” and remains distinct from the rights it was fashioned to serve.

Diggs, 833 F.2d at 442 (quoting United States v. Palmer, 574 F.2d 164, 167 (3rd Cir.1978)).

The weight of authority persuades this Court that the Ohio Supreme Court was required to apply its Ashworth decision to Petitioner Cowans’s case on direct appeal only if it can be said that the Ashworth decision was constitutionally mandated. The parties appear to agree. Respondent argues that the Ashworth rule announced by the Ohio Supreme Court is merely a state-declared common law rule that does not deserve or require retroactive application under Griffith. Petitioner, on the other hand, argues that the Ash-worth rule is of constitutional magnitude because