Full opinion text
ENTRY AND ORDER OVERRULING SAMUEL MORELAND’S OBJECTIONS (Doc. #110) TO MAGISTRATE JUDGE MICHAEL R. MERZ’S REPORT AND RECOMMENDATIONS (Doc. # 104); OVERRULING SAMUEL MORE-LAND’S OBJECTIONS (Doc. #116) TO MAGISTRATE JUDGE MICHAEL R. MERZ’S SUPPLEMENTAL REPORT AND RECOMMENDATIONS (Doc. # 114); ADOPTING MAGISTRATE JUDGE MERZ’S REPORT AND RECOMMENDATIONS AND SUPPLEMENTAL REPORT AND RECOMMENDATIONS IN THEIR ENTIRETY AND TERMINATING THIS CASE THOMAS M. ROSE, District Judge. This is a habeas action brought by Petitioner Samuel Moreland (“Moreland”) pursuant to 28 U.S.C. § 2254. Therein, More-land seeks relief from both his conviction for aggravated murder with death specifications and his resulting death sentence. On October 23, 2008, Magistrate Judge Merz issued a Report and Recommendations (doc. # 104) recommending that Moreland’s Petition for a Writ of Habeas Corpus be denied and dismissed with prejudice. Moreland objected (doc. # 110) and the Warden responded to Moreland’s Objections (doc. # 111). On February 17, 2009, Magistrate Judge Merz issued a Supplemental Report and Recommendations again recommending that Moreland’s Petition for a Writ of Habeas Corpus be denied and dismissed with prejudice. Moreland again objected. (Doc. 114.) The time has run and the Warden has not responded to Moreland’s Objections to the Supplemental Report and Recommendations. Thus, this matter is before the Court on Moreland’s Objections to the Report and Recommendations an on his Objections to the Supplemental Report and Recommendations. As required by 28 U.S.C. § 636(b) and Federal Rules of Civil Procedure Rule 72(b), the District Judge has made a de novo review of the record in this case. Upon said review, the Court finds that Moreland’s Objections to the Magistrate Judge’s Report and Recommendations and his Objections to the Magistrate Judge’s Supplemental Report and Recommendations are not well-taken, and they are hereby OVERRULED. The Magistrate Judge’s Report and Recommendations and Supplemental Report and Recommendations are ADOPTED in their entirety. Moreland’s Petition for a Writ of Habeas Corpus is dismissed with prejudice. The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton. REPORT AND RECOMMENDATIONS MICHAEL R. MERZ, United States Chief Magistrate Judge. This is a habeas corpus action brought by Petitioner Samuel Moreland pursuant to 28 U.S.C. § 2254 and seeking relief from both his conviction for aggravated murder with death specifications and his resulting death sentence. Mr. Moreland is represented in this proceeding by counsel appointed pursuant to 21 U.S.C. § 848(q) who did not represent him in any direct appeal proceedings. Statement of Facts The Supreme Court of Ohio described the facts and circumstances leading to Mr. Moreland’s indictment, trial, convictions, and adjudged sentence of death as follows: On November 1, 1985, Tia Talbott resided at 35 S. Ardmore, Dayton, Ohio, with her five children: Dayron Talbott, age eleven, Daytrin Talbott, age seven, Datwan Talbott, age six, Daniel Talbott, age four, and Glenna Talbott, age three. Also residing at 35 S. Ardmore at this time were Tia Talbott’s mother, Glenna Green, Glenna Green’s boyfriend, Samuel Moreland, appellant, and Thurston Jones, Tia Talbott’s boyfriend. Additionally, on November 1, 1985, Tia Talbott’s sister, Lana Green and Lana’s three children, Violana Green, Gregory Green and Tia Green, were spending the night at Tia Talbott’s residence. At approximately 10:30 p.m. on the evening of November 1, 1985, Tia Talbott, Thurston Jones and Gregory Green left the residence at 35 S. Ardmore to go to the grocery store. When Tia Talbott departed from the house, appellant was in Glenna Green’s bedroom. At about the time of, or shortly after, Tia Talbott’s departure, Glenna Green and appellant had an argument concerning appellant’s need for some money to purchase beer or wine. Glenna Green refused to give appellant any money. Appellant left Glenna Green’s bedroom and went to his own room in the house. Appellant then returned to Green’s bedroom where the argument continued until appellant again departed from Green’s bedroom and absented himself for one-half hour. When appellant returned, the argument continued. Again, appellant left the bedroom and was gone for approximately ten minutes. Upon his final return, appellant was armed with a rifle. Without any exchange of words, appellant pointed the gun at Glenna Green and shot her. Appellant then shot Dayron Talbott’s hand which was positioned in front of Dayron’s face. Appellant then shot Dayron in the face, began laughing, and hit Dayron in the face with the end of the rifle. Upon returning home from the grocery store, Thurston Jones and Tia Talbott discovered the bodies of Lana Green, Violana Green, Glenna Green, Datwan Talbott and Daytrin Talbott. Glenna Green died as a result of a gunshot wound to the head, as did Lana and Violana Green. Daytrin and Datwan Talbott each died as a result of multiple severe blunt force trauma to the head. Also discovered in the home was Tia Green, who had been injured as a result of a gunshot wound to the face; Glenna Talbott, who suffered numerous abrasions and contusions to her face and upper torso; and Dayron Talbott, who suffered an injury wound to his face and hand and significant number of fractures to his skull. In the early morning of November 2, 1985, a man was seen and was heard shouting that he had killed his family. Later that morning, this man was seen with Samuel Thomas. The unidentified individual was wearing a black jacket. Thomas and appellant were together following the murders. After purchasing some alcohol, Thomas and appellant went back to Thomas’ house. Subsequently, a car passed Thomas’ home and appellant said, “I bet it was a cruiser pass.” Thomas looked out of the window and saw a police cruiser passing by. Appellant also commented that he had shot a gun and the bullet hole went in small and came out big. Thomas did not know to what appellant was referring. Later, Thomas drove appellant home to the residence at 35 S. Ardmore and appellant was arrested. Appellant was wearing blue jeans and a black jacket. While appellant was being read his Miranda rights, he told the arresting officer that the officer was “too late.” Appellant was uncooperative when the police attempted to swab his hands in order to perform an atomic absorption test used to detect the presence or absence of gunshot residue. Appellant stated during this time, “I have Fifth Amendment rights.” “In fact, the Constitution is written for guys like me.” ‘You don’t have any evidence against me, and I’ll be damned if I’ll help you.” When the test was finally being conducted, appellant stated “[tjhis isn’t going to do any good anyway. I’ve been firing three to four hundred rounds at a range in Vandalia.” Appellant was then asked if he signed in and out at the range. At this point, appellant changed his story and stated he had been firing the shots along a river bank. A blood-alcohol test was performed on appellant. The test results showed .225 grams per 220 liters of breath alcohol. Further, appellant had been seen by Bruce Shackleford at approximately 11:00 p.m. on November 1,1985. Shackleford testified that appellant did not appear to be drunk nor did appellant have difficulty walking or talking. Also, Richard Cunningham saw appellant on November 1, 1985, and at that time appellant did not seem to have difficulty walking. The police subsequently recovered a .22 caliber rifle. Bullets found in some of the victims’ bodies were .22 caliber. Fired and misfired casings found at the murder scene were also .22 caliber. Imprints from the butt of the rifle matched indentations on Datwan Talbott’s forehead. The rifle, found by the police, was test-fired and the test bullets were compared to the bullets found in the victims’ bodies. The test bullets and the bullets retrieved from the victims’ bodies had the same characteristics. The test cartridges matched the fired and misfired cartridge casings found at the murder scene. With the exception of one unfired cartridge casing, all the cartridge casings found at the murder scene had been fired or misfired from a gun which was of the same make as that recovered by the police. Dayron testified that after he was shot and beaten by appellant, Dayron saw appellant with “ * * * this long little thing that * * * [appellant] was putting through the barrel of the gun. And then * * * [appellant] pulled it out and took some kind of rag and wiped it off.” The rifle recovered by police as a “magazine tube” positioned below the barrel of the gun. A rod used to compress the cartridge casings, and which causes the cartridges to feed into the chamber of the rifle, moves in and out of the magazine tube. State v. Moreland, 50 Ohio St.3d 58, 58-60, 552 N.E.2d 894 (1990). State Court Proceedings On November 8, 1985, the Montgomery County Grand Jury indicted Mr. Moreland on the following seventeen counts: ten counts of aggravated murder (firearm specifications three counts: aggravated circumstance specification on each count); one count aggravated robbery (firearm specification) and six counts of attempt to commit aggravated murder (firearm specification on each count). Return of Writ, Appendix attached thereto (“Appendix”), Vol. 1, at 13-26 (Doc. 23). Trial to a three-judge panel commenced on April 14, 1986. Id., Trial Transcript attached thereto (“Transcript”), Vol. 1, p. 1. On April 22,1986, the panel rendered its verdict as follows: (1) Count One-guilty of the aggravated murder of Glenna Green with prior calculation and design and guilty of the First and Third Specifications and not guilty of the Second and Fourth Specifications; (2) Count Two-not guilty of aggravated robbery [related to Glenna Green’s death] and all Specifications contained therein; (3) Count Three-not guilty of theft and the Specifications contained therein; (4) Count 4-guilty of the aggravated murder of Lana Green with prior calculation and design and guilty of the First and Third Specifications and not guilty of the Second and Fourth Specifications; (5) Count Five-not guilty of aggravated robbery [related to Lana Green’s death] and all Specifications contained therein; (6) Count Six-guilty of the aggravated murder of Violana Green with prior calculation and design and guilty of the First and Third Specifications contained therein and not guilty of the Second and Fourth Specifications; (7) Count Seven-not guilty of aggravated robbery [related to Violana Green’s death] and all Specifications contained therein; (8) Count Eight-guilty of the aggravated murder of Daytrin Talbott with prior calculation and design and guilty of the First and Third Specifications contained therein and not guilty of the Second and Fourth Specifications contained therein; (9) Count Nine-not guilty of aggravated robbery [related to Daytrin Talbott’s death] and all Specifications contained therein; (10) Count Ten-guilty of the aggravated murder of Datwan Talbott with prior calculation and design and guilty of the First and Third specifications contained therein and not guilty of the Second and Fourth Specifications contained therein; (11) Count Eleven-not guilty of aggravated robbery [related to Datwan Talbott’s death] and all Specifications contained therein; (12) Count Twelve-guilty of the attempted aggravated murder of Tia Green with prior calculation and design and guilty of the Specifications contained therein; (13) Count Thirteen-not guilty of aggravated robbery [related to Tia Green] and the Specifications contained therein; (14) Count Fourteen-guilty of the attempted aggravated murder of Glenna Talbott with prior calculation and design and guilty of the Specifications contained therein; (15) Count Fifteen-not guilty of aggravated robbery [related to Glenna Talbott] and the Specifications contained therein; (16) Count Sixteen-guilty of the attempted aggravated murder of Dayron Talbott with prior calculation and design and guilty of the Specification contained therein; (17) Count Seventeen-not guilty of aggravated robbery [related to Dayron Talbott] and the Specifications therein. Transcript, Vol. 3 at 790-93; Appendix, Vol. 1 at 236-39. The three-judge panel heard mitigation testimony on April 28 and 29, 1986. Transcript Vol. 3 at 794-809. On April 29, 1986, the panel returned with its verdict sentencing Mr. Moreland as follows: (1) on Counts Twelve, Fourteen, and Sixteen, the panel sentenced Mr. Moreland to seven (7) to twenty-five (25) years on each count plus two years actual on each count to be served consecutively; and (2) on Counts One, Four, Six, Eight, and Ten, the panel sentenced Mr. Moreland to death. Transcript, Vol. 3 at 925-27; Appendix, Vol. 1 at 263-64. On May 13, 1986, the panel issued its written sentencing opinion as required by Ohio Revised Code § 2929.03(F). Id., Vol. 3 at 278-81. On May 18, 1986, Mr. Moreland appealed his conviction and sentence to the Montgomery County Court of Appeals raising the following seventeen Assignments of Error which are reproduced verbatim in the Appendix hereto. On September 16, 1988, the court of appeals overruled all of Mr. Moreland’s assignments of error and affirmed the trial court’s verdict and sentence. Moreland, 1988 WL 95894 at *7; Appendix, Vol. 2 at 300-13. On October 19, 1988, the court of appeals denied Mr. Moreland’s Application for Reconsideration. Id., Vol. 2 at 327-28. Mr. Moreland filed his notice of appeal to the Ohio Supreme Court on November 11, 1988. Id., Vol. 3 at 6. On April 24, 1989, Mr. Moreland filed his brief raising thirteen Propositions of Law which are reproduced verbatim in the Appendix hereto. The Ohio Supreme Court rejected all of Mr. Moreland’s propositions of law and affirmed the judgment of the court of appeals. Id.; Appendix, Vol. 4 at 231-43; In addition, the Ohio Supreme Court independently reviewed Mr. Moreland’s death sentence for appropriateness and proportionality and determined that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt and that the sentence was neither excessive nor disproportionate. Moreland, 50 Ohio St.3d at 70, 552 N.E.2d 894. The United States Supreme Court denied certiorari. Moreland v. Ohio, 498 U.S. 882, 111 S.Ct. 231, 112 L.Ed.2d 185 (1990); Appendix, Vol. 4 at 270. On May 30, 1991, Mr. Moreland filed in the Montgomery County Court of Common Pleas a petition for post-conviction relief pursuant to O.R.C. § 2953.21, raising forty causes of action which are reproduced in the Appendix. On the same date that Mr. Moreland filed his petition for post-conviction relief, he also filed a Motion to Stay All Proceedings Under R.C. 2953.21 Pending in the Court of Common Pleas to allow time for the resolution of his action against the City of Dayton seeking certain public records. Appendix, Vol. 6 at 1-33; see Appendix, Vol. 5 at 451-96. The Court of Common Pleas granted Mr. Moreland’s Motion to Stay. Appendix, Vol. 6 at 38. Subsequently, the court lifted the stay, the State filed a Motion for Summary Judgment as to all forty Causes of Action, and on January 12, 1998, the court granted the State’s Motion. Appendix, Vol. 6 at 359-90. However, in its Order Sustaining Motion for Summary Judgment, Subject to Review, the trial court also granted leave to Mr. Moreland to conduct discovery. Id. On February 11, 1998, Mr. Moreland filed a Notice of Appeal from the trial court’s January 12, 1998, Order sustaining the state’s motion for summary judgment. Id. at 448-49. The Montgomery County Court of Appeals issued a Decision and Entry on May 12, 1998, in which it determined that the trial court’s January 12, 1998, Order in which it sustained the state’s motion for summary judgment but granted Mr. Moreland leave to conduct discovery resulted in at least part of the matter “conditionally unresolved”. Id. at 112-14. The appeals court sua sponte dismissed the appeal for lack of a final appealable order. Id. On November 9, 1998, the trial court then granted the state’s motion for reconsideration and vacated its previous order allowing discovery. Appendix, Vol. 8 at 39-40. Mr. Moreland appealed the trial court’s November 9, 1998, Order Sustaining Respondent’s Motion to Reconsider and Vacating Order for Discovery. Id. at 4. On appeal, Mr. Moreland raised the following-claims: ASSIGNMENT OF ERROR NO. I THE TRIAL COURT ERRED IN DENYING APPELLANT ANY OPPORTUNITY TO CONDUCT DISCOVERY OF FACTS AND EVIDENCE NECESSARY TO JUSTIFY HIS OPPOSITION TO SUMMARY DISMISSAL, OR TO DEVELOP AND SUPPORT HIS CLAIMS FOR RELIEF ONCE STATE MISCONDUCT BECAME APPARENT, THUS VIOLATING HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION. ASSIGNMENT OF ERROR NO. II THE TRIAL COURT ERRED IN ISSUING INSUFFICIENT FINDINGS OF FACT AND CONCLUSIONS OF LAW IN REGARD TO APPELLANT’S PETITION FOR POSTCONVICTION RELIEF. ASSIGNMENT OF ERROR NO. Ill THE TRIAL COURT ERRED IN GRANTING THE APPELLEE’S SUMMARY JUDGMENT MOTION. ASSIGNMENT OF ERROR NO. IV THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT MORE-LAND AN EVIDENTIARY HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF, THUS VIOLATING HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION. ASSIGNMENT OF ERROR NO. V THE TRIAL COURT ERRED IN ITS APPLICATION OF THE DOCTRINE OF RES JUDICATA TO APPELLANT’S CLAIMS FOR RELIEF, THUS VIOLATING HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION. ASSIGNMENT OF ERROR NO. VI OHIO’S POST-CONVICTION PROCESS IS NOT AN ADEQUATE AND CORRECT PROCESS. ASSIGNMENT OF ERROR NO. VII THE TRIAL COURT ERRED IN DENYING THE MERITS OF APPELLANT’S POST-CONVICTION PETITION. Id. at 79-188. On January 7, 2000, the Court of Appeals for Montgomery County partially sustained Mr. Moreland’s Assignments of Error No. Ill, IV, and V. State v. More-land, No. 17557, 2000 WL 5933 (Ct.App. Montgomery Cty. Jan. 7, 2000); Appendix, Vol. 8 at 184-211. Specifically, the court sustained those Assignments of Error in regard to the issue of jury waiver. Id. The court of appeals therefore reversed the judgment of the trial court and remanded the matter for the purpose of conducting an evidentiary hearing on the issue of whether Mr. Moreland would have waived a jury had he been aware of the consequences of such a waiver. Id. The court noted that on remand, the question of whether Mr. Moreland was aware of the consequence of his waiver was limited to the specific issue of whether he was aware that he would forego the opportunity, present in a jury trial, to require two (2) independent fact finders to determine that the death penalty was warranted before that penalty could be imposed and whether he would have waived the right had he been so informed.” Id. Mr. Moreland appealed to the Ohio Supreme Court those portions of the court of appeals’ Opinion that were unfavorable to him. Id. at 237. In his Memorandum in Support of Jurisdiction, Mr. Moreland raised the following Propositions of Law: PROPOSITION OF LAW NO. I A TRIAL COURT’S FAILURE TO PROVIDE A CAPITAL POST-CONVICTION PETITIONER WITH ANY OPPORTUNITY TO CONDUCT DISCOVERY OF FACTS AND EVIDENCE NECESSARY TO JUSTIFY HIS OPPOSITION TO SUMMARY DISMISSAL, OR TO DEVELOP AND SUPPORT HIS CLAIMS FOR RELIEF ONCE STATE MISCONDUCT BECAME APPARENT, VIOLATES THE PETITIONER’S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, §§ 1, 2, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION. PROPOSITION OF LAW NO. II A TRIAL COURT’S ISSUANCE OF INADEQUATE AND ERRONEOUS FINDINGS OF FACT AND CONCLUSIONS OF LAW IN REGARD TO A PETITION FOR POST-CONVICTION RELIEF, VIOLATES THE PETITIONER’S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE I, §§ 1, 2, 9,10,16, AND 20 OF THE OHIO CONSTITUTION, AND OHIO REV. CODE ANN. § 2953.21. PROPOSITION OF LAW NO. Ill WHEN A TRIAL COURT GRANTS AN APPELLEE’S MOTION FOR SUMMARY JUDGMENT DESPITE THE EXISTENCE OF GENUINE ISSUES AS TO MATERIAL FACTS, SUCH RULING VIOLATES THE PETITIONER’S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, §§ 1, 2, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION. PROPOSITION OF LAW NO. IV A TRIAL COURT’S DENIAL OF AN EVIDENTIARY HEARING TO A POST-CONVICTION PETITIONER WHEN HIS PETITION IS SUFFICIENT ON ITS FACT TO RAISE CONSTITUTIONAL CLAIMS WHICH DEPEND UPON FACTUAL ALLEGATIONS WHICH CANNOT BE DETERMINED FROM THE RECORD, DEPRIVES THE PETITIONER OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENT[S] OF THE UNITED STATES CONSTITUTION AND ARTICLE I, §§ 1, 2, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION. PROPOSITION OF LAW NO. V A TRIAL COURT’S IMPROPER USE OF THE DOCTRINE OF RES JUDI-CATA TO BAR A POST-CONVICTION PETITIONER’S CLAIMS FOR RELIEF VIOLATES THE PETITIONER’S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, §§ 1, 2, 5, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION. PROPOSITION OF LAW NO. VI A TRIAL COURT MAY NOT DENY A POST-CONVICTION PETITIONER’S PETITION TO VACATE OR SET ASIDE SENTENCE FILED PURSUANT TO OHIO REV. CODE ANN. § 2953.21 WHEN EACH OF THE FORTY CLAIMS FOR RELIEF SET FORTH CONSTITUTIONAL VIOLATIONS UPON WHICH RELIEF SHOULD HAVE BEEN GRANTED. Appendix, Vol. 10 at 7-173. The Ohio Supreme Court declined jurisdiction and dismissed the appeal on May 17, 2000. State v. Moreland, 88 Ohio St.3d 1511, 728 N.E.2d 400 (2000); Appendix, Vol. 10 at 304. On remand, the trial court held an evidentiary hearing at which Mr. Moreland testified. Id. at 37-174. In addition, Mr. Moreland’s trial counsel, Louis Hoffman and Dennis Lieberman both testified. Id. On December 22, 2003, the trial court issued its Decision, Entry, and Order Dismissing Samuel Moreland’s Petition for Post-Conviction Relief Which Requests Such Relief Based Upon the Assertion that Samuel Moreland Did Not Knowingly, Voluntarily, and Intelligently Waive His Right to the Benefit of the Two-Tiered Sentencing Process Available to a Defendant in a Capital Jury Trial. Id. at 227-42. Mr. Moreland filed his Notice of Appeal on January 21, 2004, Appendix, Vol. 12 at 12, and in his appeal, he raised the following claims: FIRST ASSIGNMENT OF ERROR THE LOWER COURT ERRED WHEN IT DENIED MR. MORE-LAND RELIEF ON THE GROUNDS THAT HIS JURY WAIVER WAS CONSTITUTIONALLY, STATUTORILY, PROCEDURALLY FLAWED. SECOND ASSIGNMENT OF ERROR THE LOWER COURT ERRED WHEN IT RULED THAT MR. MORELAND IS NOT ENTITLED TO BE COMPETENT DURING HIS CAPITAL POST-CONVICTION PROCEEDINGS. THIRD ASSIGNMENT OF ERROR OHIO’S POST-CONVICTION PROCEDURES NEITHER AFFORD AN ADEQUATE CORRECTIVE PROCESS NOR COMPLY WITH DUE PROCESS AND EQUAL PROTECTION UNDER THE FOURTH AMENDMENT. Appendix, Vol. 12 at 31-64. On October 8, 2004, the Montgomery County Court of Appeals overruled Mr. Moreland’s assignments of error and affirmed the trial court’s dismissal of his petition for post-conviction relief. State v. Moreland, No. 20331, 2004 WL 2436589 (2nd Dist. Oct. 8, 2004). Mr. Moreland appealed to the Ohio Supreme Court raising the following claims: PROPOSITION OF LAW NO. I According to the United States’ and Ohio’s Constitution, a waiver of the right to a jury trial must be voluntarily, knowingly, and intelligently given; any conviction reached without a jury and absent a valid waiver must be reversed. PROPOSITION OF LAW NO. II Under both the United States and the Ohio Constitutions, a criminal defendant has the constitutional right to be competent, which derives from his constitutional right to due process, equal protection, and his right to freedom from a capital sentence rendered arbitrarily and capriciously. PROPOSITION OF LAW NO. Ill Ohio’s post-conviction procedures neither afford an adequate corrective process nor comply with due process and equal protection under the Fourteenth Amendment of the United States Constitution. Appendix, Vol. 13 at 6-36. The Ohio Supreme Court declined to accept Mr. Moreland’s case for review. State v. Moreland, 105 Ohio St.3d 1452, 823 N.E.2d 457 (2005) (table); 2005 WL 488916 (Mar. 2, 2005); Appendix, Vol. 13 at 62. Proceedings in this Court On May 18, 2005, Mr. Moreland filed a Notice of Intention to File Habeas Corpus Petition. (Doc. 1). This Court granted Mr. Moreland’s Motion for Appointment of Counsel, (Doc. 8, 9), and on September 30, 2005, Mr. Moreland filed his Petition for Writ of Habeas Corpus. (Doc. 14). Subsequently, this Court granted in part and denied in part Mr. Moreland’s first Motion for Discovery and granted his Motion for Additional Discovery. (Doc. 31, 43). In addition, the Court granted in part and denied in part Mr. Moreland’s Motion for Evidentiary Hearing. (Doc. 53). The Court held an evidentiary hearing on October 3 and October 25, 2007, at which the Court heard testimony from attorneys Louis Hoffman, Mathias Heck, Dennis Lieberman, and James Cole on the issues surrounding Mr. Moreland’s waiver of his right to a jury trial. (Doc. 65, 68, 71, 73). In addition, there was briefing by the parties on the issue of the admission of Dr. Arthur Schramm’s deposition testimony. (Doc. 65, 71, 75, 77, 80, 81, 83). The parties have filed post-hearing briefs, (Doc. 88; 91, 96), and the matter is ripe for Report and Recommendations on the merits. Mr. Moreland has raised the following Grounds for Relief in his Petition: First Ground for Relief Samuel Moreland’s right to a jury trial under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States’ Constitution was violated because he did not knowingly, voluntarily and intelligently waive his right to a jury trial in an Ohio capital murder case. Second Ground for Relief Samuel Moreland’s right to effective assistance of counsel as guaranteed under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States’ Constitution was violated when counsel did not inform him of the consequences of a jury waiver in a capital case in the State of Ohio. Third Ground for Relief Samuel Moreland’s right to effective assistance of counsel under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States’ Constitution was violated during the penalty [sic] phase of Mr. Moreland’s trial. Fourth Ground for Relief Samuel Moreland’s right to effective assistance of counsel under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States’ Constitution was violated during the mitigation phase of Mr. Moreland’s trial. Fifth Ground of Relief Samuel Moreland’s right to due process under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States’ Constitution was violated because his convictions for Aggravated Murder with a prior calculation and design rests upon insufficient evidence. Sixth Ground for Relief Samuel Moreland’s right to a fair trial, due process and confrontation under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States’ Constitution was [sic] violated when the Trial Court failed to conduct a full and meaningful evidentiary hearing into the competency and admissibility of the child witness Daron [sic] Talbott’s testimony. Seventh Ground for Relief Samuel Moreland’s right to a fair trial, due process and right of confrontation under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States’ Constitution was [was] violated when the Trial Court excluded opinion testimony from a defense expert on the issue of Daron [sic] Talbott’s susceptibility to suggestion and influence from others regarding his eyewitness identification. Eighth Ground for Relief Samuel Moreland’s right to due process and freedom from cruel and unusual punishments under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States’ Constitution was [sic] violated when the death penalty was imposed in this case. Ninth Ground for Relief Samuel Moreland’s right to a fair trial under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States’ Constitution was violated when the State Trial Court failed to permit discovery in Mr. Moreland’s post-conviction relief hearing. (Doc. 14). Standard of Review I. Antiterrorism and Effective Death Penalty Act of 1996 The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996) (“AEDPA”) applies to all habeas cases filed after April 25, 1996. Herbert v. Billy, 160 F.3d 1131 (6th Cir.1998), citing, Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Since Mr. Moreland filed his Petition well after the AEDPA’s effective date, the amendments to 28 U.S.C. § 2254 embodied in the AEDPA are applicable to his Petition. Title 28 U.S.C. § 2254, as amended by the AEDPA, provides: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254. The AEDPA also provides that a factual finding by a state court is presumed to be correct, and a petitioner must rebut the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e). In addition, pursuant to the AEDPA, before a writ may issue on a claim that was evaluated by the state courts, the federal court must conclude that the state court’s adjudication of a question of law or mixed question of law and fact was “contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). A state court’s decision is contrary to the Supreme Court’s clearly-established precedent if: (1) the state court applies a rule that contradicts the governing law as set forth in Supreme Court case law; or (2) the state court confronts a set of facts that are materially indistinguishable from those in a decision of the Supreme Court and nevertheless arrives at a result different from Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court’s decision involves an unreasonable application of clearly established federal law “if the state court identifies the correct governing legal rule [from Supreme Court cases] but unreasonably applies it to the facts of the particular state prisoner’s case”, “if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply[,] or [if the state court] unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407-08, 120 S.Ct. 1495. For a federal court to find a state court’s application of Supreme Court precedent unreasonable, the state court’s decision must have been more than incorrect or erroneous; it must have been “objectively unreasonable.” Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Williams, 529 U.S. at 407, 409, 120 S.Ct. 1495. An unreasonable application of federal law is different from an incorrect application of federal law. Id. at 410, 120 S.Ct. 1495 (emphasis in original). In sum, Section 2254(d)(1) places a new constraint on the power of a federal court to grant a state prisoner’s application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Id. at 412, 120 S.Ct. 1495 (Justice O’Connor, concurring). A state court decision is not “contrary to” Supreme Court law simply because it does not specifically cite Supreme Court cases. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). Indeed, “contrary to” does not even require awareness of Supreme Court cases, so long as neither the reasoning nor the result of the state-court decision contradicts them. Id. at 8, 123 S.Ct. 362. The AEDPA prohibits the overturning of state decisions simply because the federal court believes that the state courts incorrectly denied the petitioner relief: By mistakenly making the “contrary to” determination and then proceeding to a simple “error” inquiry, the Ninth Circuit evaded Section 2254(d)’s requirement that decisions which are not “contrary to” clearly established Supreme Court law can be subjected to habeas relief only if they are not merely erroneous, but “an unreasonable application” of clearly established federal law, or based on “an unreasonable determination of the facts”. Id. at 11,123 S.Ct. 362. For the purposes of the AEDPA, the court reviews the last state court decision on the merits. Howard v. Bouchard, 405 F.3d 459, 469 (6th Cir.2005). The AEDPA standard of review applies only to “any claim that was adjudicated on the merits in State court proceedings.” Danner v. Motley, 448 F.3d 372, 376 (6th Cir.2006). A state court’s failure to articulate reasons to support its decision is not grounds for reversal under the AEDPA. Williams v. Anderson, 460 F.3d 789, 796 (6th Cir.2006), citing, Harris v. Stovall, 212 F.3d 940 (6th Cir.2000), cert. denied, 532 U.S. 947, 121 S.Ct. 1415, 149 L.Ed.2d 356 (2001). Where the state court fails to adjudicate a claim on the merits, the habeas court conducts an independent review of a petitioner’s claims. Williams, supra. That independent review, however, is not a full, de , novo review of the claims, but remains deferential because the court cannot grant relief unless the state court’s result is not in keeping with the strictures of the AEDPA. Williams, supra. II. Procedural Default The standard for evaluating a procedural default defense is as follows: In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause of the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 749, 111 S.Ct. 2546,115 L.Ed.2d 640 (1991); see also, Simpson v. Jones, 238 F.3d 399, 406 (6th Cir.2000). That is, a petitioner may not raise on federal habeas a federal constitutional right he could not raise in state court because of procedural default. Waimuright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Absent cause and prejudice, a federal habeas petitioner who fails to comply with a state’s rules of procedure waives his right to federal habeas corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir.2000); Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright, 433 U.S. at 87, 97 S.Ct. 2497. The Sixth Circuit Court of Appeals requires a four-part analysis when determining whether a habeas claim is barred by procedural default. Reynolds v. Berry, 146 F.3d 345, 347-48 (6th Cir.1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986); accord Lott v. Coyle, 261 F.3d 594 (6th Cir.2001), cert. denied, 534 U.S. 1147, 122 S.Ct. 1106, 151 L.Ed.2d 1001 (2002). First the court must determine that there is a state procedural rule that is applicable to the petitioner’s claim and that the petitioner failed to comply with the rule. Second, the court must decide whether the state courts actually enforced the state procedural sanction, citing County Court of Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). Third, the court must decide whether the state procedural forfeiture is an “adequate and independent” state ground on which the state can rely to foreclose review of a federal constitutional claim. Once the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate under Sykes that there was “cause” for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error. Maupin, 785 F.2d at 138. Merits of the Petition First Ground for Relief Samuel Moreland’s right to a jury trial under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States’ Constitution was violated because he did not knowingly, voluntarily and intelligently waive his right to a jury trial in an Ohio capital murder case. In this Ground for Relief, Mr. Moreland raises two subclaims. The first is that he did not knowingly, voluntarily, and intelligently waive his right to a jury and the second is that he was under the influence of sodium pentothal when he executed the jury waiver form. As noted above, Mr. Moreland raised his claims with respect to his jury trial right in the post-conviction remand proceedings. After holding a hearing and taking testimony on the issue, the trial court rejected that claim. The Montgomery County Court of Appeals affirmed. The Ohio Supreme Court implicitly adopted the appeals court’s determinations when it declined to take jurisdiction of the appeal. Therefore, this Court looks to the post-conviction appeals court’s decision for purposes of habeas review. In affirming the trial court, the court of appeals wrote: Lieberman testified that Moreland signed the waiver in open court, on the record (which cannot now be located) before the presiding judge, Carl Kessler (now deceased). He testified that whether to waive a jury was up to the client, informed by his professional advice, and that he would not permit a client to sign a waiver if “he didn’t ... know what was going on .... ” Lieberman testified that he did not recall Moreland having “any difficulties” that would have prevented him from understanding the effect of waiving trial by jury, nor Moreland ever questioning why a jury wasn’t hearing his case. In response to questions by the trial court, Lieberman testified that his and Hoffman’s advice to waive a jury was based on their desire to avoid the death penalty, that Moreland understood this objective that the attorneys believed that this objective had a better chance of success with a three-judge panel, and that More-land bought into this strategy. Lieberman could not recall whether the in-court execution of the jury waiver occurred April 11, 1986-the date it was filed at 4:02 p.m.-or at an earlier date. (He said the jury waiver was contingent on the selection of two “acceptable” judges to complete the panel with Judge Kessler, and would have been withdrawn if two acceptable judges could not be seated on the panel. Judge Kessler may have obtained the waiver prior to final selection of the other two panel members). Moreland argues that the requirements of R.C. 2945.05 were not followed and that reversal is necessary citing State v. Pless (1996), 74 Ohio St.3d 333, 658 N.E.2d 766.... We reject this argument. The jury waiver filed in this case April 11, 1986, was signed by Moreland. The waiver language is identical to the language except “a Panel of Three Judges” is substituted in place of “a Judge”. Lieberman recalled that Moreland executed the waiver in open court before Judge Kessler.... Although it is unfortunate that a transcript of the waiver proceeding cannot be found, this is not a basis for reversing Moreland’s conviction given the other evidence of record. Although not essential to the disposition of this argument, we do note that Pless also holds that “failure to comply with R.C. 2945.05 may be remedied only in a direct appeal from a criminal conviction.” ... In our judgment, the items of evidence relied upon by Moreland do not affect the propriety of the trial court’s determination of the remanded issues. The facts that the waiver does not show a date of signature or witness signatures, that there is no transcript of the waiver proceeding, and that a newspaper article reports the waiver occurred April 11, are, at most, matters affecting the weight of the evidence. This is also true of Hoffman’s and Lieberman’s affidavits and their lack of capital case defense work under the 1981 revision of Ohio’s death penalty statutes. It is obvious that Moreland did not prepare the affidavit that he signed in 1991, and the trial court acted within its discretion in crediting Lieberman’s testimony over that affidavit. Moreland claims that his waiver is invalid because he underwent a sodium pentothal interview around midday on April 11, 1986, the same day the jury waiver was filed. The trial court concluded that this should not affect its determination that Moreland had failed to carry his burden of proof on the remanded issues. As the trial court observed, it is not certain that the waiver was even executed on April 11, and Lieberman had testified that he would not have allowed the waiver proceeding to continue had he thought Moreland was incapable of understanding what was going on. Taking into account this evidence, and the lack of any evidence that the sodium pentothal actually affected Moreland’s judgment, we believe the trial court properly disposed of this contention. We reject Moreland’s contention in the alternative that this matter must be remanded for yet another hearing on whether the sodium pentothal interview influenced his judgment. Moreland clearly bore the burden of proof on the remanded issues and failed to carry that burden. Moreland, 2004 WL 2436589 at *1-4; Appendix, Vol. 12, p. 223. The right to a jury is fundamental. Haliym v. Mitchell, 492 F.3d 680, 698 (6th Cir.2007), citing Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). The Sixth Amendment’s guarantee of the right to trial by jury is applicable to the States under the Fourteenth Amendment. Duncan, 391 U.S. at 149, 88 S.Ct. 1444. Waivers of constitutional rights not only must be voluntary but must also be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences. Haliym, supra, citing Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Whether or not there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case. Haliym, supra, citing Adams v. United States ex rel. McCann, 317 U.S. 269, 278, 63 S.Ct. 236, 87 L.Ed. 268 (1942). A petitioner bears the burden of proving that his waiver of a jury trial was not knowing, voluntary, or intelligent. Haliym, supra, citing Sowell v. Bradshaw, 372 F.3d 821, 832 (6th Cir. 2004). Although the Sixth Circuit has not stated the precise formula for what constitutes the constitutionally minimum understanding that a defendant must possess in order to validly waive his right to a jury, a waiver satisfies the “voluntary, knowing, and intelligent” requirement, if the defendant “understood that the choice confronting him was, on the one hand, to be judged by a group of people from the community, and on the other hand, to have his guilt or innocence determined by a judge.” Haliym, supra, citing Sowell, 372 F.3d at 836(additional citations omitted). Although an on-the-record colloquy with the court is advisable, it is not constitutionally required. Haliym, supra, citing Sowell, 372 F.3d at 832 n. 5. At the outset, this Court notes that the record contains a copy of a “Waiver of Jury” form which Mr. Moreland signed. The form reads: I, Samuel Moreland, defendant in the above cause [State of Ohio vs. Samuel Moreland, Case No. 85-CR-2117], hereby voluntarily waive and relinquish my right to a trial by jury, and elect to be tried by a Panel of Three Judges of the Court in which the said cause may be pending, I fully understand that under the laws of this state, I have a constitutional right to a trial by jury. Appendix, Vol. 1 at 216. There is no dispute that there is no transcript of any proceedings which reflect that that Mr. Moreland signed the waiver in open court. In other words, there is nothing in the record of the original state court proceedings to indicate that Mr. Moreland was advised of the consequences of waiving his right to a jury trial or that there was a colloquy between Mr. More-land and the court. Nevertheless, as more specifically described below, the transcripts of both the post-conviction hearing in state court and the evidentiary hearing in this Court, establish that Mr. Moreland executed the waiver after his counsel discussed with him his right to a trial by jury. Additionally, Mr. Moreland’s counsel explained to him the strategy for preferring trial to a three-judge panel as opposed to a jury- Although Mr. Hoffman, Mr. Moreland’s lead trial counsel, testified at the post-conviction hearing that he did not specifically recall being in the courtroom for Mr. Moreland’s execution of the jury waiver, he testified that he recalled that at least two weeks before trial he discussed with Mr. Moreland various things regarding waiving a jury. Appendix, Vol. 11 at 54 (Transcript of Post-Conviction Relief Hearing held Sept., 2002). Similarly, Mr. Hoffman testified before this Court that although he did not recall being in the courtroom when Mr. Moreland waived his jury right, he had a “reconstituted memory” of being in the bailiffs office prior to other counsel going into the courtroom for the waiver. Transcript of October 3, 2007, hearing (“Habeas Hearing Transcript”) at 10-11 (filed Oct. 27, 2007) (Doe. 68). Mr. Hoffman also testified that he believed that at the time Mr. Moreland waived his right to a jury, he was competent to do so. Id. at 38. In addition, Mr. Hoffman testified that the primary consideration in advising Mr. Moreland as to waiving a jury was the inflammatory nature of the evidence in the case and his impression that a panel of judges might be more dispassionate with regard to the display of the gruesome pictures in the case. Id. at 48-49. Mr. Hoffman testified that the fact Mr. Moreland was not testifying at trial was another factor that he considered in advising Mr. Moreland about the waiver. Id. at 49. Additionally, Mr. Hoffman testified that the fact that there were five victims, some of whom were children, weighed in his advice to Mr. Moreland regarding waiving a jury. Id. at 60. Mr. Lieberman, Mr. Moreland’s co-counsel at trial, testified in the state hearing that he recalled reviewing with Mr. More-land the procedural issues and choices involved in trying a case before a jury and trying it to a three-judge panel. Transcript, Vol. 11 at 72. Mr. Lieberman also testified that: conversations with Mr. Moreland related to whether to waive a jury took place over days, if not weeks, Id. at 71, 79; a critical consideration was what judges would be on a panel, Id. at 72; could not recall whether he specifically covered the issue of the benefit of a judge reviewing a jury’s recommendation for death, Id. at 73; he believed that a three-judge panel might be sympathetic to a non-death penalty argument as opposed to a jury which might be inflamed by “what were some pretty gruesome pictures of women and children”, Id. at 74; counsels’ opinion was that the best way to avoid the death penalty was for Mr. Moreland to be tried by a three-judge panel, Id.; he had a specific memory that a courtroom proceeding took place during which Mr. Moreland and Judge Kessler had a discussion about jury waiver, but that he could not recall if it occurred on April 11, 1986; Id. at 77-78, 80; Mr. Moreland may have executed the jury waiver form on some date different than when it was filed with the clerk, Id. at 42; the form was not filed until such time as. counsel were “concrete on who the three-judge panel was going to be”, Id. at 82; that in every case in which a client of his waived a jury, it was his practice to explain to the client the procedures of a jury trial and the procedures of what would happen if the client waived a jury, Id. at 104; he would never have allowed a client to sign a jury waiver if he had any impairment where he didn’t know what was going on, Id. at 118; Mr. Moreland signed the form in front of him (Mr. Lieberman), Judge Kessler, and [prosecutor] Jim Cole in open court and there was no indication that Mr. Moreland was under any type of inhibition nor was there any type of problem that would prevent him from knowing he was signing a waiver form that he [Mr. Lieberman] had previously explained to Mr. Moreland, Id.; at no time during the trial did Mr. Moreland say anything about three judges being there or question where his jury was, or say that he wanted a jury, Id. at 120; and that Mr. Moreland made a statement, not under oath, to the three-judge panel and never said anything about the absence of a jury. Id. Mr. Lieberman testified before this Court that his recollection was vague as to when the jury trial waiver was done before Judge Kessler. Habeas Hearing Transcript at 218. Mr. Lieberman testified further that: his experience with Judge Kessler was that he would receive an executed waiver of jury on one day, but not file it until another day, Id. at 219; the actual jury waiver may have been signed a day or two or three or four before the day it was filed because they were trying to determine what judges would sit on the panel, Id.; he recalled the court reporter, the bailiff, the judge, Mr. Cole, and himself present in the courtroom for the jury waiver, Id. at 223; at the time of the post-conviction hearing he did not have a specific memory of Mr. Moreland signing the jury waiver document, but that he now had a recollection of Mr. Moreland sitting at counsel table writing on the document, Id. at 229; the discussions with Mr. Moreland about the jury waiver took place for perhaps weeks before the waiver actually occurred, Id. at 236; the number of deaths involved, the gruesome nature of the pictures, and the inflammatory evidence, were prominent in the strategy for waving a jury and having it tried by a three-judge panel, Id.; prior to being co-counsel for Mr. Moreland, he (Mr. Lieberman) had tried about 20-25 first and second degree felony cases in state court and federal court, Id. at 262; he had conversations with Mr. Moreland over days, if not weeks, on the issue of waiving a jury, Id. at 266; as a standard practice, he would have reviewed with Mr. Moreland the nature of the jury process including the fact that the jury would have issued a sentencing verdict in the form of a recommendation and the fact that if the jury recommended death, the judge would determine whether to accept that recommendation but if the jury recommended life, the court would sentence him to life, Id. at 272-73; he could not recall the exact words he used, but it would have been his practice to explain those things, Id. at 274; although Mr. Moreland’s was his first death penalty case, he had previous clients who waived the jury right and his practice was to explain the procedures and consequences of doing so, Id. at 275; Mr. Moreland never said he did not want to waive his jury trial right, Id. at 279; he had no reason to believe that Mr. Moreland was not able to knowingly, voluntarily, and intelligently waive his right to a trial by jury, Id. at 267; he remembered that at the waiver proceeding looking at and speaking with Mr. Moreland and thinking that he was fíne and that he knew what he was doing, Id. at 298; he had no recollection of Mr. Moreland indicating that he did not understand the proceedings and if he had thought he did not understand, he (Mr. Lieberman) would not have let the proceedings take place; Id. at 289; he made it clear to Mr. Moreland that one of the goals was to save his life and keep him from being sentenced to death, Id. at 300; and that he had no specific recollection of anything that Judge Kessler said to Mr. Moreland as it related to the jury waiver, Id., at 304. James Cole testified at the Habeas Hearing that at the time of Mr. Moreland’s 1986, trial, he was an assistant prosecutor for Montgomery County and he participated in the prosecution of Mr. Moreland. Habeas Hearing Transcript at 311. Mr. Cole testified further that: Matt Heck, Jr. and Herb Jacobson [since deceased] also participated in the prosecution, Id. at 312; he (Mr. Cole) participated in all open sessions in court relating to Mr. Moreland’s case, Id. at 319; he recalled that prior to the trial there were discussions with Mr. Moreland’s attorneys, himself, and Mr. Heck about the possible waiver of Mr. Moreland’s right to trial by jury, Id. at 321; the discussions accelerated probably a week before trial and included discussing the members of a three-judge panel; Id. at 321-22; Judge Kessler indicated that if Mr. Moreland waived a jury trial he would allow the prosecutors and defense counsel the opportunity to give input regarding who would compose the three-judge panel, Id. at 323; he recalled that Mr. Moreland ultimately did waive trial by jury, Id. at 326; he was present in open court when Mr. Moreland signed the jury waiver document as were Judge Kessler, the bailiff, the court reporter, Mr. Moreland, Mr. Hoffman, and Mr. Lieberman, Id. at 326-27; he could not recall the precise colloquy between the parties at the time of the waiver, Id. at 329; he did not see Mr. Moreland engage in any type of behavior nor did he indicate that he did not understand the information that Judge Kessler was giving him; Id. at 333; he saw no indication by Mr. Moreland that he wanted to change his mind, Id. at 336; he did not have an independent recollection of seeing him actually, physically signing the document; Id.; he never saw Mr. Moreland do anything nor hear him say anything during subsequent proceedings that indicated he was surprised or concerned that there was no jury present; Id. at 337; and that he observed neither demeanor or speech by Mr. Moreland that raised any concerns that Mr. Moreland was under the influence of anything that would affect his decision to waive his jury right. Id. at 357. Mathias Heck testified at the Habeas Hearing that along with two other prosecutors, he represented the State of Ohio in the prosecution of Mr. Moreland. Habeas Hearing Transcript at 125. Mr. Heck also testified that: he was not present when Mr. Moreland waived a jury trial, Id. at 134; the prosecutors and Mr. Moreland’s counsel had conversations about waiving a jury for six weeks to two months before trial, Id. at 135; during that time, the discussions were about who would be on the three-judge panel if Mr. Moreland waived a jury, Id. at 137-38; during the time of the discussions about the make-up of the panel, Mr. Moreland’s counsel would tell the prosecutors that they would speak with Mr. Moreland about it, Id. at 143; he was present at the entire trial of the matter and he never saw Mr. Moreland make any statement, outcry, or display any sign that he was surprised, or did not understand why, he was not being tried before a jury, Id. at 145; during the penalty phase, Mr. Moreland never said anything about a jury not being present, Id. at 146; he searched the records center and transcripts and could not find any transcript of a hearing in which Mr. Moreland waived his jury right, Id. at 151-52; and that within a week or so of the trial, because of the representations that Mr. Moreland’s counsel made, he knew that the trial would not be before a jury and the only issue to be resolved was who would be on the three-judge panel. Id. at 162. Mr. Moreland did not testify at the Habeas Hearing, but at the Post-Conviction Hearing he testified that his counsel wanted him to be tried before a three-judge panel but that he didn’t like the odds of a three-judge panel and wanted a jury and that it “infuriated” Mr. Hoffman and Mr. Lieberman that he wanted a jury. Appendix, Vol. 11 at 145. Mr. Moreland testified further that: his counsel told him that a three-judge panel would not sentence him to death, Id.; his counsel was so infuriated that they took him to the hospital and drugged him up, Id. at 146; the prosecutors and police were there at the hospital and they all took him into a room and told him that Judge Kessler ordered it, Id.; when he was in the bed at the hospital, they gave him a paper and told him to sign it and then they would let him go; Id.; he didn’t have any option but to sign it and that it was a good, clever scheme, Id. at 147; he did not know that he was going to be taken out of his jail cell and brought to the hospital, Id. at 148; the police and prosecutors and his counsel were all in cahoots together, Id. at 151; he thought he was signing his release from the hospital and didn’t know it was a jury waiver, Id. at 152; he was laying on his back, “hogtied, dressed up like a Christmas turkey” when they told him to sign the form, Id. at 154; his attorneys didn’t file a motion for the drugs and Judge Kessler was the perpetrator who put him in the hospital for the drugs, Id. at 156; he didn’t sign the waiver in open court but signed it in the hospital, Id. at 159; the only time his counsel discussed a three-judge panel with him was at the hospital, Id. at 160-63; and that during the mitigation phase of his trial, his counsel purposely asked him questions to get him into trouble so that he would be sentenced to death, Id. at 167. The court of appeals properly determined, and this Court likewise concludes, that Mr. Moreland failed to show that his waiver of a jury trial was not knowing or voluntary. With the exception of Mr. Moreland’s self-serving and, at times incomprehensible, testimony the evidence introduced at both the Post-Conviction Hearing and the Habeas Hearing is consistent as to the following. First, all of the attorneys involved in the trial of the matter testified that they began having discussions at least several weeks before the beginning of the trial as to a jury trial waiver and that the only issue that needed to be resolved before Mr. Moreland’s waiver became effective was what judges would be on the three-judge panel. In addition, all of the attorneys involved in the case, with the exception of Mr. Hoffman, testified that they recalled being in open court when Mr. Moreland waived his jury trial right. Further, each of the attorneys involved in Mr. Moreland’s case, both defense and prosecution, testified that he never observed Mr. Moreland engage in any behavior or verbalize any concern which indicated he did not know why a jury was not present during the trial or why there was a three-judge panel instead of a jury. Finally, each of the attorneys testified that he did not observe Mr. More-land engage in any behaviors or express anything verbally that indicated he did not understand the proceedings or the fact that he was waiving his right to a trial by jury. As noted above, Mr. Moreland also argues that his waiver was invalid because he was under the influence of sodium pentothal when he executed the written waiver. There is no dispute that Mr. Moreland was taken to St. Elisabeth’s Hospital where a physician administered sodium pentothal and another physician, a psychiatrist, interviewed Mr. Moreland. The evidence shows that the administrat