Full opinion text
AMENDED OPINION AND ORDER GWIN, District Judge. On June 30, 1998, Petitioner-Defendant Adremy Dennis filed a petition for a writ of habeas corpus in this death penalty case [Doc 9]. In seeking release, Petitioner Dennis says constitutional error attended his conviction and resulting death penalty. Dennis further argues that the standard of review of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) does not apply to his petition. In response, Respondent Betty Mitchell first argues that Dennis has procedurally defaulted many of his constitutional claims. As for the remaining claims, Respondent Mitchell contends that Dennis makes no showing of a constitutional-violation, especially under the deferential review required under the AEDPA. In deciding Dennis’s petition for a writ of habeas corpus, the Court first describes the factual background of Dennis’s crime. Second, the Court describes Dennis’s direct appeal and his later efforts at state postconviction relief. Third, the Court decides whether the AEDPA applies to this petition. After finding the AEDPA’s provisions applicable to this petition, the Court next discusses whether Petitioner Dennis exhausted his state court remedies and whether Dennis defaulted certain claims under a state procedural rule. Having established this background, the Court then decides Dennis’s request for an evidentiary hearing and discovery. After deciding that Dennis is not entitled to an evidentiary hearing or discovery, the Court discusses the merits of Dennis’s individual claims. Upon reviewing the claims, the Court finds Dennis shows no right to a writ of habeas corpus. The Court therefore denies Dennis’s application for a writ of habeas corpus. I. Factual and Procedural Background A. Factual Background The State of Ohio convicted Petitioner Dennis of the murder of Kurt 0. Kyle. The State alleged, and the jury found, that on June 5, 1994, Dennis killed Kurt Kyle by shooting him in the head with a sawed-off shotgun at point blank range. The jury further found that Dennis killed Kyle during a robbery attempt and as part a course of conduct involving the killing or attempt to kill two or more persons — both death specifications under Ohio law. The jury recommended the death penalty, and the court imposed a death sentence on Dennis. On the night of Kyle’s murder, Dennis and a friend, Leroy “Lavar” Anderson, went out together. At the time they went out, they spoke of “robbing somebody.” They armed themselves: Dennis with a sawed-off shotgun and Anderson with a .25 caliber handgun. As the pair proceeded to a bar, they smoked marijuana. At the bar, Dennis and Anderson had a few drinks. After leaving the bar, they encountered Pizer in an alley near West Market Street and South Highland Avenue, in Akron, Ohio. Pizer testified that Dennis was wearing a long black leather coat. After approaching Pizer, Dennis told Pizer, “Give me your money. Don’t try and run, don’t try and run. You are going to die tonight, you are going to die.” Pizer moved backwards, slid and rolled down a hill. As he ran, he heard a gunshot “just left of me. There was a trash can or something got hit....” He then ran away unharmed. As Dennis and Anderson were confronting Pizer, Kurt Kyle hosted a cookout at his home. Later, Kyle escorted a departing guest, Martin Eberhart, to Eberhart’s car. At the car, Kyle continued his conversation with his friend. While Eberhart was seated in his car talking with Kyle, they heard a loud noise. Kyle told Eber-hart the sound was that of a gunshot. Shortly after the gun shot, Dennis and Anderson approached Kyle and Eberhart in Kyle’s driveway. At this location, they were out of the view of Kyle’s other guests. As he approached with Dennis, Anderson demanded money while pointing a gun at Eberhart’s neck. Eberhart slowly reached under the car seat for his wallet and handed Anderson $15. At the same time, Dennis demanded money from Kyle. As Dennis threatened him, Kyle searched his pockets and told Dennis that he had no money with him. Dennis then took the sawed-off shotgun and shot Kyle in the head at point-blank range. The shotgun blast severed both of victim Kyle’s carotid arteries. Kyle died instantly of hypovolemic shock. Dennis and Anderson then ran away together “sprinting very fast.” About a minute after the blast to Kyle’s head, Anita Foraker, a neighbor, walked her dog on Bloomfield Road. At that time, she saw two young black males near her on the other side of Bloomfield Road. She heard one say to the other, “Did you get it?” ' Within a few days of the murder, an anonymous caller told the Akron Police that someone at 371 Grand Avenue had information about Kyle’s killing. Akron detectives went to the address, where they met Shirley Morgan. Ms. Morgan gave the detectives permission to enter her house, to look around the house, and to speak to her son, seventeen-year-old Lavar Anderson. In the basement of Morgan’s house, the detectives noticed clothing similar to the clothing identified as having been worn by the assailants who robbed Eberhart and Kyle. After viewing the clothing, the detectives took Anderson into custody. While in custody, Anderson gave detectives information about the location of the murder weapon. With this information, the detectives obtained a search warrant. Executing this search warrant, the police seized several items from Morgan’s basement, including the two coats, a .25 caliber pearl handle handgun, a 20 gauge sawed-off shotgun, and seven shotgun shells. Soon after, police arrested Dennis. After his arrest, Dennis waived his Miranda rights. In interviews following this waiver, Dennis told several versions of where he had been on June 4 and 5, 1994. An Akron detective then confronted Dennis with the sawed-off shotgun obtained from Anderson’s residence. Dennis identified the shotgun as his own. After further questioning, Dennis admitted that he and Anderson had planned to commit robberies. He then admitted robbing Pizer, Eberhart, and Kyle. Dennis confessed to aiming the sawed-off shotgun at Kyle, but claimed the gun went off accidentally. Dennis agreed to allow detectives to tape his statement. In this taped statement, Dennis said that he and Anderson had smoked marijuana and then drank at a bar before the robberies and murder. Dennis admitted firing the sawed-off shotgun in the incidents with Pizer and Kyle, but claimed the shots were accidental. In examining the scene, police found yellow shotgun shell casings near where Pizer reported being accosted, and also in front of Kyle’s home. A forensic scientist from the Ohio Bureau of Criminal Identification and Investigation gave the opinion that the two casings were fired from the sawed-off shotgun that Dennis acknowledged as his own. The grand jury indicted Dennis on one count of aggravated murder, one count of attempted murder, three counts of aggravated robbery, and one count of possession of dangerous ordnance. All counts carried a firearms specification, and the dangerous ordnance charge also carried a physical-harm specification. The aggravated murder count also carried two death specifications: (1) murder during an aggravated robbery, where Dennis was the principal offender (OH Rev. Code § 2929.04[A][7]); and (2) murder committed as a course of conduct involving the lolling or attempt to kill two or more persons (OH Rev.Code § 2929.04[A][5]). B. Procedural Background On December 12, 1994, Dennis’s trial began. After trial, the jury found him guilty as charged. The 'trial court then conducted a mitigation hearing where Dennis presented evidence. In mitigation, Dennis gave unsworn testimony claiming he did not intend to shoot Kyle, and that he “was drunk and nervous and scared and the gun went off and I ran.” Dennis expressed remorse for what he had done and stated that he was sorry for what he had done to the Kyle family. On December 20, 1994, the jury returned a unanimous verdict and recommended the death penalty. On December 29, 1994, the Summit County Common Pleas Court adopted the jury’s recommendation and sentenced Dennis to death. Dennis appealed to the Summit County Court of Appeals. On May 8, 1996, the court of appeals upheld Dennis’ conviction and death sentence. See State v. Dennis, No. 17156, 1996 WL 233501 (Summit County Ct.App. May 8, 1996) (unreported). On June 14, 1996, Dennis filed a notice of appeal to the Ohio Supreme Court. On September 24, 1997, the court affirmed the conviction and sentence. See State v. Dennis, 79 Ohio St.3d 421, 683 N.E.2d 1096 (1997). Dennis then filed a petition for a writ of certiorari to the Supreme Court of the United States. On February 23, 1998, the Supreme Court of the United States denied Dennis’s petition for certiorari. See Dennis v. Ohio, 522 U.S. 1128, 118 S.Ct. 1078, 140 L.Ed.2d 136 (1998). After all of Dennis’s avenues for relief on direct appeal ended, Dennis filed a petition for postconviction relief. On September 20, 1996, Dennis filed this petition under Ohio Revised Code § 2953.21 in the Summit County Common Pleas Court. On February 11,1997, the common pleas court denied all of Dennis’s claims for relief. Dennis next appealed the denial of his postconviction petition to the Summit County Court of Appeals. On November 19, 1997, the court of appeals affirmed the trial court’s dismissal of Dennis’s postcon-viction petition. See State v. Dennis, No. 18410, 1997 WL 760680 (Summit County Ct.App. November 19, 1997) (unreported). On January 5,1998, Dennis filed a Memorandum in Support of Jurisdiction in the Ohio Supreme Court. On March 11, 1998, the court declined to hear the case and dismissed Dennis’s postconviction appeal. See State v. Dennis, 81 Ohio St.3d 1468, 690 N.E.2d 1287 (1998). On June 30, 1998, Dennis filed a petition for a writ of habeas corpus with this Court. The Court now considers Dennis’s petition. II. AEDPA A. Applicability of the AEDPA Petitioner Dennis brings this action for habeas relief under 28 U.S.C. § 2254(d)(1). On April 24, 1996, President Clinton signed the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub.L. 104-132, 110 Stat. 1214, into law. The AEDPA made significant changes in habe-as law, chief among them for purposes of this opinion is a heightened respect for state court factual and legal determinations. Petitioner Dennis argues that the AED-PA does not apply to his case because his conviction occurred before the enactment of the AEDPA. Respondent Mitchell asserts that AEDPA applies to this case because Dennis filed his petition after the effective date of the act. Dennis filed this petition on June 30, 1998, two years after the AEDPA was signed into law. Despite Dennis’ contention, the Court finds that the AEDPA applies to this case and all habeas cases filed after April 24,1996. Both the United States Supreme Court and the United States Court of Appeals for the Sixth Circuit have found the AEDPA applicable to petitions filed after the act became law. In Breard v. Greene, the Supreme Court dismissed a petition for a writ of habeas corpus filed after the enactment of the AEDPA. 523 U.S. 371, 118 S.Ct. 1352, 1355, 140 L.Ed.2d 529 (1998). In so doing, the Court found the petitioner’s relief subject to the new law, even though his conviction and the violation he complained of in his petitioner occurred before the AEDPA’s enactment. Likewise, in Harpster v. Ohio, the Sixth Circuit recognized the applicability of the AEDPA to subsequently-filed petitions: This court reviews the District Court’s grant of habeas corpus relief de novo. Our review of the state trial court’s decisions, however, is governed by the standards established by the Antiterrorism and Effective Death Penalty Act of 1996.... Because petitioner filed his application for a writ of habeas corpus on July 26, 1996, after the effective date of AEDPA, the revised § 2254(d) governs our inquiry into whether habeas corpus relief was appropriate in this case. 128 F.3d 322, 326 (6th Cir.1997), cert. denied, 522 U.S. 1112, 118 S.Ct. 1044, 140 L.Ed.2d 109 (1998). To like effect, the Sixth Circuit decided Franklin v. Francis, 144 F.3d 429 (6th Cir.1998). There, a petition filed after the enactment of the AEDPA challenged the constitutionality of a conviction predating the act. On review, the court found that the petition was governed by the deferential standards of the recently-enacted law. Id. at 433. Under clear authority, the AEDPA applies to Petitioner Dennis’s petition. The Court now examines the standard of review provided by the AEDPA. B. Deferential Standard of Review under the AEDPA With the AEDPA, Congress limited federal courts’ review of state court determinations under 28 U.S.C. § 2254. Specifically, § 2254(d) now prohibits a federal district court from granting a writ of habe-as corpus with respect to a claim that was adjudicated on the merits in state court proceedings. The law provides two exceptions to this prohibition: (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 an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). As the United States Court of Appeals for the First Circuit has observed, the “AEDPA is hardly a model of clarity ... and its standard of review provision is far from self-explicating.” O’Brien v. Dubois, 145 F.3d 16, 20 (1st Cir.1998); see also Nevers v. Killinger, 169 F.3d 352, 357-58 (6th Cir.1999). This ambiguity has led to a split among the circuits with respect to the proper interpretation of § 2254(d). See Nevers, 169 F.3d at 358. The circuit split reflects a divergence in view as to how much deference the AEDPA requires federal courts to give state court judgments on habeas review. On one end of the continuum, the Fifth Circuit has adopted a construction of § 2254(d) that provides considerable deference to state court judgments. See Drinkard v. Johnson, 97 F.3d 751, 767 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under the Fifth Circuit’s approach, the level of deference depends on whether the challenge to the state comb’s judgment depends on a question of law, fact, or a mixed question of law and fact. If the challenge involves a question of pure law, a federal habeas court must determine if the state comb’s judgment is “contrary to” Supreme Court precedent. See id. at 767. However, if the challenge involves a mixed question of law and fact, a federal habeas court must give the state court judgment deference, determining only if the judgment involved an “unreasonable application” of Supreme Court precedent. See id. at 767-68. Similarly, if the challenge centers on a state court’s factual determination, a federal habeas court reviews only the reasonableness of that determination. See id. at 767. In contrast, the First Circuit has construed § 2254(d) as less deferential to state court judgments. See O’Brien v. Dubois, 145 F.3d 16 (1st Cir.1998). Specifically, the First Circuit interprets § 2254(d)(1) to drastically limit the number of state court decisions a federal habe-as court will review under the deferential “reasonable application” standard. A federal habeas court following the First Circuit’s approach must first determine whether a Supreme Court rule, by virtue of its factual similarity or by its formulation of a framework applicable to variant factual situations, “can be fairly said to require a particular result in a particular case.” Id. at 25. If a state comb judgment reaches a result “contrary to” that prescribed by the Supreme Court rule, a federal court may grant a writ of habeas corpus. Thus, under the First Circuit’s approach, the “contrary to” standard of review applies to more than just questions of law. State court decisions involving the application of the Supreme Court’s “framework” for analyzing a particular set of facts also trigger the less deferential “contrary to” standard of review under § 2254(d)(1). Only in the absence of an applicable Supreme Court rule will a federal habeas court review a state court judgment for its reasonableness in applying related Supreme Court precedent. See id. Petitioner Dennis advocates construction of § 2254(d)(1) that, like the First Circuit’s approach, gives minimal deference to state court judgments. Dennis believes that the “contrary to” language in § 2254(d)(1) encompasses plenary federal court review of a state court judgment that can “sensibly” be called contrary to Supreme Court precedent, whether involving a question of law or mixed question of law and fact. A federal habeas court, according to Dennis, applies the “unreasonable application” standard of review only to state court judgments regarding a question the Supreme Court has never addressed. In such an instance, Dennis argues, the federal habeas court must determine whether the state court applied “the Supreme Court’s peripherally pertinent precedents in an ‘unreasonable manner.’ ” In support of his interpretation of the AEDPA, Dennis asserts that a more deferential construction of the AEDPA would violate the separation of powers principle embodied in the United States Constitution. The Constitution, Dennis notes, vests Article III courts with the power to interpret, declare, and apply federal law. Requiring federal courts to defer to state court decisions interpreting and applying federal law would, according Dennis, render the “Judicial Power” invested in Article III courts practically inoperative. To date, neither the United States Supreme Court nor the Sixth Circuit has adopted a general interpretation of the AEDPA’s standard of review provision. However, the Supreme Court has granted certiorari in Williams v. Taylor, a Fourth Circuit case interpreting § 2254(d). 163 F.3d 860 (4th Cir.1998), cert. granted — U.S. -, 119 S.Ct. 1355, 143 L.Ed.2d 516. Thus, the Supreme Court will likely provide guidance as to the proper construction of this provision in the near future. Yet, at present, the Court finds an absence of binding authority with respect to the proper interpretation of the AEDPA’s standard of review provision. As a result, the Court must independently analyze § 2254(d) to determine the standard of review applicable to Dennis’s claims. However, Petitioner Dennis objects to such an independent analysis. Rather, Dennis asks the Court to hold its decision on his petition in abeyance until the Supreme Court renders its decision in Williams. In its discretion, the Court refuses Dennis’s request. The Court does so for two reasons. First, the Court finds that a textual analysis of the AEDPA strongly supports a deferential interpretation of the § 2254(d), such as that fashioned by the Fifth Circuit. Second, the Court finds Dennis’s constitutional objection to a deferential construction of the AEDPA lacks merit. 1. Textual Analysis of the AEDPA An exercise in statutory interpretation must begin with an examination of the relevant statutory text. See Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990); Appleton v. First Nat’l Bank of Ohio, 62 F.3d 791, 801 (6th Cir.1995) (“In all cases of statutory construction, the starting point is the language employed by Congress.”). In this case, § 2254(d) sets forth three grounds upon which a federal court may set aside a state court judgment on habeas review. Section § 2254(d)(1) contains the first two grounds, providing that a federal court may grant a writ of habeas corpus when a state court judgment “resulted in a decision that was contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Section § 2254(d)(2) contains the third ground for granting a writ of habeas corpus, available when a state court judgment “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.” Like the Fifth Circuit in Drinkard, the Court construes the above provisions as encompassing “the fundamental proposition that judicial decisions rest on the answers to one or more of three types of questions: questions of law, questions of fact, and mixed questions of law and fact....” Drinkard, 97 F.3d at 767. By its plain terms, § 2254(d)(2) concerns a state court’s factual determinations. See id. Thus, § 2254(d)(1) provides the standard of review for state court decisions regarding both questions of law and mixed questions of law and fact. A mixed question of law and fact essentially involves the application of law to facts. Thus, as the Fifth Circuit found in Drinkard, “[t]he second clause of subsection (d)(1), by its own language, refers to mixed questions of law and fact because it speaks of ‘an unreasonable application of ... clearly established law....’” Id. The “contrary to” language of § 2254(d)(1), therefore, refers solely to questions of law. Under this clause, the reasonableness of a state court’s legal conclusions is of no moment. Instead, a federal habeas court has license to independently review state court legal conclusions for error. See Lindh, 96 F.3d at 869. Petitioner Dennis’s relegation of the “unreasonable application” language of § 2254(d)(1) to situations where the Supreme Court has offered no relevant precedent lacks textual support. As one commentator has observed: “The error of this construction is patent on the face of the statute. Application is not extrapolation. If there is no clearly established law governing the situation, then nothing the state court did could possibly be an unreasonable application of nonexistent law.” Kent S. Scheidegger, Habeas Corpus, Relitigation, and the Legislative Power, 98 Colum.L.Rev. 888, 949 (1998). A sensible textual analysis of § 2254(d), therefore, indicates that Congress fashioned a statute that provides considerable deference to state court judgments. A federal habeas court reviews de novo only a state court’s legal conclusions. A state court’s application of federal law to facts, in contrast, warrants deference unless it involves an unreasonable application of Supreme Court precedent. 2. Constitutional Objections Dennis claims that a deferential interpretation of the AEDPA does violence to the constitutional authority of the federal courts. The Court finds this claim unavailing for two reasons. First, even under a deferential construction of the AEDPA, federal courts bear the ultimate responsibility for declaring federal law. Second, construing the AEDPA to require deference to state courts’ application of federal law is consistent with our constitutional system of government. a. Declaring Federal Law The Court’s construction of the AEDPA preserves the federal judiciary’s constitutional role in declaring federal law. The “contrary to” language in 2254(d)(1) allows a federal court to review de novo a state court’s legal determinations. Thus, a federal habeas court is free to correct a state court’s error in the choice or interpretation of applicable federal law. The AEDPA limits a federal court’s review to one based on reasonableness only when the state court’s decision involves the application of federal law. As the Seventh Circuit has noted: How much leeway does the ‘unreasonable application’ language create? None on questions of interpretation. It does not authorize or permit state courts to deviate from the Constitution. Federal courts acting within their jurisdiction are always entitled to interpret the law independently. Lindh, 96 F.3d at 870. Article III courts, and ultimately the United States Supreme Court, determine “what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). The AEDPA, as interpreted by this Court, does nothing to endanger their role in this regard. See Barker v. Yukins, 993 F.Supp. 592, 599 (E.D.Mich.1998). b. Federal System of Government Contrary to Dennis’s contention, the Court’s deferential construction of the AEDPA is fully consistent with our constitutional system of government. With our Constitution, Congress established neither a strictly “national” government, in which the states would be consolidated and lose their sovereign character, nor a strictly “federal” one, in which the states would retain their full sovereignty. Instead, the new government had characteristics of both types. See The FedeRAList No. 39, Madison; Scheidegger, supra, at 898. America’s judicial structure reflects this dual, and often parallel, structure. That structure was formed by the Judiciary Act of 1789, the Constitution, and the preexisting state judicial systems. Although there have been changes in the details, the broad outlines of that structure remain to this day. See Scheidegger, supra, at 898. Under this structure, both state and federal Article III courts have power to decide both state and federal issues of fact and law. Alone, the Supreme Court has appellate jurisdiction over both state and federal courts. See Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 1064 n. 11, 137 L.Ed.2d 170 (1997). Consistent with this parallel judicial structure, both the federal and state court systems are expected to apply the same law. The Constitution commands state judges, through the Supremacy Clause, to apply federal law despite any conflict with state law. At the same time, Congress directs federal judges to apply state law in the absence of conflicting federal law. The Supreme Court alone is the final arbiter of the inevitable conflicts that arise when these two court systems construe the same law. In enacting the AEDPA, Congress comported with the structure of our federal system. Central to our system is the right and obligation of state courts to apply the U.S. Constitution and laws to their decisions. Equally central to our system is the general rule that state court determinations are not subject to appellate review by Article III federal courts. See Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 287, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970) (“Proceedings in state courts should normally be allowed to continue unimpaired by intervention of the lower federal courts, with relief from error, if any, through the state appellate courts and ultimately this Court”). Indeed, far from exercising appellate review of state court judgments, federal courts are statutorily required to give preclusive effect to those judgments. Under the Full Faith and Credit Act, now codified at 28 U.S.C § 1738, state court judgments have the same force as res judicata in federal courts as they have in the state’s own courts. See Mills v. Duryee, 11 U.S. (7 Cranch) 481, 484, 3 L.Ed. 411 (1813); see also Scheidegger, supra, at 912. This statute makes no exception for appeal rights to Article III federal courts. The United States Supreme Court has consistently enforced this statute by giving preclusive effect to state court judgments. For instance, in Montana v. United States, the Montana Supreme Court had upheld a state tax as against a challenge by the United States. 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). After voluntarily dismissing a petition for certiorari to the Supreme Court, the government filed suit in district court. Although the Montana Supreme Court’s ruling implicated federal supremacy, the Supreme Court held that the state court decision was res judicata, even in the Supreme Court, even against the government itself, and even on a subject going to the very heart of federal supremacy. See id. at 153-55, 162-64, 99 S.Ct. 970; see also Scheidegger, supra, at 912. Likewise, in Allen v. McCurry, the Supreme Court rejected the position that the Constitution requires an independent federal judgment on a question passed upon in state court. 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). In Allen, a federal appellate court found that a state court determination of probable cause was not res judicata in a later federal civil trial under 42 U.S.C. § 1983 for violation of constitutional rights. The Court reversed, finding that the state court determination of probable cause was res judicata: The actual basis of the Court of Appeals’ holding appears to be a generally framed'principle that every person asserting a federal right is entitled to one unencumbered opportunity to litigate that right in a federal district court, regardless of the legal posture in which the federal claim arises. But the authority for this principle is difficult to discern. It cannot lie in the Constitution, which makes no such guarantee, but leaves the scope of the jurisdiction ... to the wisdom of Congress. Id. at 103, 101 S.Ct. 411. Federal courts are required to respect final state judgments, regardless of whether the issue is one of state or federal law and regardless of whether the federal court agrees with the state court’s decision. The only exceptions are those that Congress has made. See Kremer v. Chemical Constr. Corp., 456 U.S. 461, 468, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982) (“[A]n exception to § 1738 will not be recognized unless a later statute contains an express or implied partial repeal”). With the AEDPA, Congress has made such an exception, albeit a narrow one. The broad preclusive effect ordinarily due state court judgments is abrogated under the AEDPA to the extent such a judgment is “contrary to, or an unreasonable application of, clearly established Federal law.” Again, Congress’s restrained approach in providing a limited habeas remedy at minimal cost to the autonomy of state courts is fully consistent with our federal system of government. C. Standard of Review Applicable to Dennis’s Claims As noted above, § 2254(d) provides different standards of review depending on whether a state court judgment involves a question of law, fact, or mixed question of law and fact. Thus, in order to determine the specific standard applicable to Petitioner Dennis’s claims, the Court must decide whether Dennis’s claims involve legal, factual, or mixed questions. Dennis’s claims, discussed more fully in Part V, involve mixed questions of law and fact. At no point does Dennis claim the Ohio Supreme Court applied the wrong legal standard or rule to the facts presented. Rather, Dennis essentially complains that the court misapplied the correct legal standards to the relevant facts. Section 2254(d)(1) provides that a federal habeas court must determine whether a state court’s resolution of mixed questions involves an “unreasonable application” of clearly established federal law, as declared by United States Supreme Court precedent. Therefore, the Court must review the Ohio Supreme Court’s judgment to decide if it reflects an unreasonable application of Supreme Court precedent. Sixth Circuit precedent aids the Court in this endeavor. Though it has yet to adopt a general interpretation of § 2254(d), the Sixth Circuit has addressed the scope of review under the “reasonable application” clause of § 2254(d)(1). A reasonable application of Supreme Court precedent, according to the Sixth Circuit, is one “ ‘debatable among reasonable jurists.’ ” Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir.1998) (quoting Drinkard, 97 F.3d at 769). An unreasonable application of precedent, in contrast, is one “so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that -it is outside the universe of plausible, credible outcomes.” Nevers v. Killinger, 169 F.3d 352, 361 (6th Cir.1999) (quoting O’Brien v. Dubois, 145 F.3d 16, 25 (1st Cir.1998)). III. Exhaustion and Procedural Default A. Exhaustion A petitioner must have exhausted his state remedies before a writ of habeas corpus can be granted. See 28 U.S.C. § 2254(b). The United States Supreme Court in O’Sullivan v. Boerckel recently explained the petitioner’s duty to present his cause in state court: In order to satisfy the exhaustion requirement, a state prisoner must present his claims to a state supreme court in a petition for discretionary review when that review is part of the State’s ordinary appellate review procedure. As a matter of comity, § 2254(c) — which provides that a habeas petitioner ‘shall not be deemed to have exhausted [state court] remedies ... if he has the right under [state] law ... to raise, by any available procedure, the question presented’ — requires that state prisoners give state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts. See e.g., Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989). State prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process. 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). To determine whether the exhaustion requirements are met, the Court must examine whether the petitioner “has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). As explained in Part II, Petitioner Dennis has pursued all opportunities for relief at the state level, both on direct appeal and in postconviction proceedings. Petitioner Dennis has exhausted all available state court remedies. Even if Petitioner Dennis has not exhausted all available state court remedies, the State has waived the exhaustion requirement in this case. (See Respondent’s Return of Writ at 31 (“The claims in the petition as presently constituted are exhausted”).) The Court acknowledges this assertion as a waiver pursuant to 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to have waived the exhaustion requirement ... unless the State, through counsel, expressly waives the requirement”). B. Procedural Default Respondent Mitchell argues that Petitioner Dennis is precluded from pursuing Claims 6, 11, 13, 14, 17, and 19 due to procedural default. Federal courts “will not review questions of federal law decided by a state court if the decision of that court rests upon a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Applied to the habeas context, this doctrine acts to bar federal review of federal claims that a state court has declined to address because of the petitioner’s noncompliance with a state procedural requirement. See Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). “In these cases, the state judgment rests on independent and adequate state procedural grounds.” Coleman, 501 U.S. at 730, 111 S.Ct. 2546. Although the AEDPA does not expressly include procedural default rules, several courts have determined that pre-AEDPA law regarding procedural default applies under the AEDPA. See, e.g., Truesdale v. Moore, 142 F.3d 749, 753 n. 2 (4th Cir.1998), cert. denied, 498 U.S. 932, 119 S.Ct. 380, 142 L.Ed.2d 314 (1998) (“We reject [the] novel suggestion that the AEDPA somehow abolished procedural default.”); Breard v. Pruett, 134 F.3d 615 (4th Cir.1998), cert. denied, 523 U.S. 371, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) (finding procedural default in an AEDPA case); Moleterno v. Nelson, 114 F.3d 629, 633-34 (7th Cir.1997) (noting that “the substantive changes ... made by the [AEDPA] made no change in the procedural default rules”); Richardson v. Elo, 974 F.Supp. 1100, 1104 n. 2 (E.D.Mich.1997) (same); Williams v. Coyle, No. 96-CV-793 (N.D.Ohio April 2, 1998) (applying pre-AEDPA procedural default rules). The Sixth Circuit has established a four-step analysis to determine whether a claim has been procedurally defaulted. See Maupin v. Smith, 785 F.2d 135 (6th Cir.1986). Based on this test, the Court must determine (1) whether the petitioner failed to comply with an' applicable state procedural rule; (2) whether the state courts actually enforced the state procedural sanction; (3) whether the state procedural bar is an “adequate and independent” state ground on which the State can foreclose federal review; and (4) if the above are met, whether the petitioner has demonstrated “cause” and “prejudice.” Id. The Court now analyzes the claims Respondent Mitchell asserts Dennis procedurally defaulted. 1. First Mawpin Factor The first Mawpin factor requires the Court to decide whether Dennis failed to comply with an applicable state procedural rule. Respondent Mitchell argues that Petitioner Dennis has violated procedural rules with respect to Claims 6, 11, 13, 17, and 19. For the reasons discussed below, the Court finds that Petitioner Dennis has failed to comply with Ohio procedural rules with regard to Claims 6, 11, 13, 17, and portions of Claim 7. Dennis, however, has complied with Ohio procedural rules with regard to Claim 19 and the remaining portions of Claim 7. a. Claims 6, 11, 13, and 17 Petitioner Dennis did not present Claims 6, 11, 13, and 17 on direct appeal. Respondent Mitchell contends that the doctrine of res judicata therefore bars these claims. Ohio has long relied upon the doctrine of res judicata to dismiss constitutional claims based upon the record that are raised for the first time in state postcon-viction proceedings. In State v. Perry, the Ohio Supreme Court commented on this application of res judicata: Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at trial, which resulted in that judgment of conviction, or on an appeal from that judgment. 10 Ohio St.2d 175, Syl. ¶ 9, 226 N.E.2d 104, Syl. ¶ 9 (1967). Despite his failure to raise various claims on direct appeal, Dennis argues that he has not violated the Perry rule. Rather, Dennis asserts that his claims fall within exceptions to the Perry rule. Specifically, Dennis contends that his claims either were not ripe for adjudication or depend on evidence outside the record. First, Dennis says that Claim 11 (lack of competent expert assistance at trial) and Claim 13 (lack of expert assistance as to drug and alcohol abuse) were “not ripe for adjudication during the direct appeals process.” (See Petitioner’s Traverse at 7.) According to Dennis, it did not become apparent that he had been denied effective expert assistance at trial until after the Ohio Court of Appeals and the Ohio Supreme Court found that various issues raised were not error. Thus, Petitioner Dennis believes he should be excused from the res judicata implications under Perry for not having brought the claims on direct appeal. The Court fails to see how Petitioner Dennis can be excused from failing to assert Claims 11 and 13 on direct appeal. The record reflects that Petitioner Dennis could have brought these claims on direct appeal. Dennis’s conviction alerted him to the potential weakness of his expert’s testimony (Claim 11). Dennis’s conviction also should have alerted him to issues regarding the effect of his drug and alcohol use (Claim 13), which both Dennis and his expert testified about during the mitigation phase. The evidence does not suggest a lack of “ripeness” regarding either of these claims that would support excusing Dennis from the Perry rule. Beyond ripeness, Dennis says the claims he failed to assert on direct appeal depend on evidence outside the record, and are thus exempt from the Perry rule. See State v. Smith, 17 Ohio St.3d 98, 101 n. 1, 477 N.E.2d 1128, 1131 n. 1 (1985); State v. Milanovich, 42 Ohio St.2d 46, 50, 325 N.E.2d 540, 543 (1975). However, Dennis offers only evidence from the record to support Claims 6 (prosecutorial misconduct), 13, and 17 (improper jury instruction). These claims are therefore subject to the Perry rule. With regard to Claim 11, Petitioner Dennis purports to offer evidence from outside the record to support his argument concerning the weakness of his mitigation expert’s testimony. This evidence consists of a report offered by Dr. McPherson questioning the sufficiency and competency of Dr. Brown’s mitigation testimony. Dennis contends that Dr. McPherson’s report reveals that Dennis was denied his constitutional right to competent expert assistance during the mitigation phase, as established by the United States Supreme Court in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). The Court finds that the report offered by Dennis does not support Claim 11, and thus Claim 11 is barred under the Perry rule. Dr. McPherson’s report does not establish any incompetence by Dr. Brown. In fact, though Dr. McPherson disputes the manner in which Dr. Brown obtained his results, she reports that Dr. Brown’s conclusions “can be generally supported in the information obtained” in Dr. McPherson’s “elaborated evaluation.” Dr. McPherson asserts only that Dr. Brown could and should have gone further in certain aspects of his analysis. However, establishing that Dr. Brown did not carry out his task perfectly does not show constitutional error. The Court in Ake did not require that appointed expert mitigation testimony be the best testimony possible. Rather, Ake requires an expert to assist a defendant competently and independently. Again, Dr. McPherson’s report suggests a lack of neither competence nor independence on- Dr. Brown’s part. Instead, Dr. McPherson’s report serves only as an interpretation that is somewhat more favorable to Dennis’s interests. However, habeas corpus is not a forum in which to reargue a case. Habeas review is an extraordinary remedy and “will not be allowed to do service for an appeal.” Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994); Eaton v. Angelone, 139 F.3d 990, 995 (4th Cir.1998), cert. denied, — U.S. -, 118 S.Ct. 2338, 141 L.Ed.2d 709 (1998) (“We refuse to transform a federal habeas proceeding into a second trial”). Based on the above, the Court finds that Claims 6, 11, 13, and 17 are barred under the Perry rule. b. Claim 19 In Claim 19, Petitioner Dennis argues that the Ohio Supreme Court’s alleged failure to consider a relevant mitigating factor in reviewing Dennis’s death sentence violates his constitutional rights. Respondent Mitchell asserts that Dennis failed to raise Claim 19 on direct appeal, and is therefore barred from now bringing the claim under the doctrine of res judicata. The Court finds that Dennis did raise Claim 19 on direct appeal, and thus Claim 19 is not procedurally defaulted. Petitioner Dennis included in his petition seeking a writ of certiorari from the United States Supreme Court the following question: “Can a reviewing court refuse to consider in its independent review and proportionality analysis a proper mitigating factor which arose at trial due to the misconduct of the foreperson of the jury?” The Supreme Court denied the petition. Here, in Claim 19, Petitioner Dennis contends that the Ohio Supreme Court’s failure to consider the misconduct of the jury’s foreperson as a relevant mitigating factor unconstitutionally denied Dennis a fair sentencing procedure and appellate review. Thus, Claim 19 raises the same issue Dennis first raised in his petition to the United States Supreme Court. The Supreme Court has held that a state conviction becomes final “when availability of direct appeal to the state courts has been exhausted and time for filing petition for writ of certiorari has elapsed or a timely filed petition has been finally denied.” Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994). Because Petitioner Dennis raised Claim 19 in his petition before the United States Supreme Court, the claim was raised on direct appeal. Therefore, Claim 19 is not barred from federal review on the grounds of procedural default. Having found that Petitioner Dennis has violated state procedural rules with regard to Claims 6, 11, 13, and 17, the Court reviews these claims under the second step of the Maupin analysis. The Court discusses the merits of Claim 19 in Part V below. 2. Second Maupin Factor The second factor in the Maupin analysis requires this Court to determine whether the state courts actually enforced the state procedural sanction at issue during postconviction proceedings. Answering this question, the Court finds that the Ohio courts did refuse to consider Claims 6, 11, 13, and 17 based on the Perry Rule. The Summit Court of Common Pleas and the Summit County Court of Appeals explicitly refused to consider Claims 6, 11, 13, and 17 on grounds of res judicata. The Ohio Supreme Court implicitly adopted this approach when it denied jurisdiction of Dennis’s postconviction appeal. For a federal court to consider a habeas petitioner’s claims, those claims must have been considered on their merits by the last state court. “If the last state court to be presented with a particular federal claim reaches the merits, it removes any bar to federal court review that might otherwise have been available.” Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Here, the Ohio courts refused to consider the merits of Claims 6, 11, 13, and 17. Therefore, the state courts enforced the procedural sanction of res judicata regarding these claims. 3. Third Maupin Factor The third factor in the Maupin analysis requires that the Court determine whether the state procedural bar is an “adequate and independent” state ground on which the a state can foreclose federal review. The Court finds that it is. Dennis argues that the Perry rule has been applied selectively and therefore cannot now stand as a sufficient reason for procedural default. This argument lacks merit. The Sixth Circuit has consistently recognized the Perry rule as an independent and adequate ground upon which to proee-durally bar consideration of habeas claims. See Norris v. Schotten, 146 F.3d 314, 332 (6th Cir.1998); Wong v. Money, 142 F.3d 313, 322 (6th Cir.1998); see also Amos v. Scott, 61 F.3d 333, 342 (5th Cir.1995), cert. denied, 516 U.S. 1005, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995) (stating that “an occasional act of grace by a state court in excusing or disregarding a state procedural rule does not render the rule inadequate ...”). Therefore, unless Petitioner Dennis can meet the requirements of the fourth Maupin factor, he will be procedurally barred from raising Claims 6, 11, 13, and 17. 4. Fourth Maupin Factor When a petitioner cannot overcome the first three Maupin factors, the claims are procedurally barred unless the petitioner shows cause and actual prejudice for not raising the claims earlier: In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Demonstrating “cause” requires a petitioner to show that “some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Demonstrating “prejudice” generally requires a petitioner to show that an error “infected” the trial with constitutional error. United States v. Frady, 456 U.S. 152, 169, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Petitioner Dennis has not shown cause or prejudice sufficient to overcome Ohio’s Perry rule. In extreme cases, a federal habeas court may hear a defaulted constitutional claim where cause and prejudice cannot be shown if the petitioner shows that his conviction is the result of a fundamental miscarriage of justice. A fundamental miscarriage of justice is the conviction of one who is “actually innocent.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Petitioner Dennis has not argued that there has been a fundamental miscarriage of justice and has not alleged actual innocence. The evidence as determined below demonstrates no basis for such a claim. To the contrary, the State offered persuasive evidence that Petitioner Dennis murdered Kyle while committing felony robbery. Because Petitioner Dennis has not shown cause and actual prejudice, Claims 6, 11, 13, and 17 are procedurally barred from federal habeas review. Accordingly, the Court proceeds to consider the remaining claims on the merits. IV. Evidentiary Hearing and Discovery Petitioner Dennis requests an evidentia-ry hearing and a chance to conduct discovery to develop facts in support of his claims. Dennis asserts that Ohio’s post-conviction relief procedure effectively denied him the opportunity to develop the factual record in state court. Evidentiary hearings in federal habeas proceedings are controlled by 28 U.S.C. § 2254(e): 1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgement of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. 2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that A) the claim relies on— i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. The plain language of § 2254(e) provides that state court findings of fact “shall be presumed to be correct.” Thus, federal habeas courts are directed to defer to state court findings of fact. See Cooey v. Anderson, 988 F.Supp. 1066 (N.D.Ohio, 1997) (“In general, when reviewing any habeas petition, including a petition in a capital case, a district court must defer to the findings of fact made by the state trial court”). This deference applies to factual determinations made by either a state trial court or a state appellate court. See Sumner v. Mata, 449 U.S. 539, 546, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Section 2254 provides only two exceptions to this presumption of correctness: (1) if a new rule of constitutional law applies; and (2) when the claim relies on a “factual predicate that could not have been previously discovered through the exercise of due diligence,” and that such facts would establish “by clear and convincing evidence that ... no reasonable factfinder would have found him guilty of the offense.” 28 U.S.C. § 2254(e)(A)(ii). Dennis does not claim that a new rule of constitutional law applies. The Court therefore limits its analysis to the second exception. The findings of fact for the purposes of this proceeding were determined by the Ohio Supreme Court in State v. Dennis, 79 Ohio St.3d 421, 683 N.E.2d 1096 (1997). In reviewing Dennis’s request for postcon-viction relief, the Ohio courts deferred to these findings. Dennis must show that the factual predicate for his claim could not have been discovered through due diligence. Under § 2254(e), a petitioner is required to attempt to develop facts at trial. If that attempt fails after due diligence, then an evidentiary hearing may be proper. Dennis argues that he tried to develop the facts when he requested a hearing in his state postconviction relief petition. When the state court rejected this request, Dennis argues he was denied a constitutional right to develop the record. He claims that Ohio’s postconviction proceedings do not satisfy due process requirements by failing to afford him a fair and adequate hearing. Petitioners in Ohio state courts can request an evidentiary hearing in postcon-viction relief proceedings. Under Ohio Revised Codé § 2953.21, the court will conduct an evidentiary hearing unless “the petition and the files and records of the case show the petitioner is not entitled to relief.” In Dennis’s case, the Summit County Court of Appeals stated that “the defendant must submit evidentiary documents containing sufficient operative facts to demonstrate that his constitutional rights were violated.” State v. Dennis, 1997 WL 760680, at *5 (Ohio App.9th Dist. Nov. 19, 1997). In denying Dennis’s request for an evidentiary hearing, the court explained: “nothing contained in these documents establishes sufficient operative facts to demonstrate a constitutional violation.” Id. Here, Dennis essentially claims Ohio’s postconviction system is constitutionally infirm because it makes it too difficult for petitioners to receive an evidentiary hearing. This argument is unpersuasive. While strict, Ohio’s postconviction system does not violate the Constitution. The United States Supreme Court has stated that a postconviction system is unconstitutional when state rules act as “snarls or obstacles [and] preclude an effective state remedy against unconstitutional convictions.” Bartone v. United States, 375 U.S. 52, 54, 84 S.Ct. 21, 11 L.Ed.2d 11 (1963). Ohio’s system does not preclude a remedy; it merely forces a petitioner to prove he or she is entitled to a remedy. Dennis offers only his unsuccessful constitutional attack on Ohio’s postconviction system as grounds for a hearing and discovery. Dennis has not attempted to show to ’ this Court a previously undiscovered factual predicate that establishes, by clear and convincing evidence, that no reasonable factfinder could find him guilty of the offense. Thus, the Court denies Dennis’s request for an evidentiary hearing and discovery. The Court now turns to the merits of Dennis’s individual claims for relief. V. Individual Claims for Relief A. First Claim for Relief Petitioner Dennis’s first claim for relief states that: Petitioner Dennis was Denied his right to a fair trial in violation of the Fifth, Sixth, ’Eighth, and Fourteenth Amendments to the United States Constitution because the trial court failed to remove the foreperson of the jury from the panel when it was discovered that she was being represented by the state as a victim of sexual abuse. Dennis argues’ that because of her status as a victim of sexual abuse, Juror Harris could not execute her duties as a juror in an impartial manner. The Court finds no merit in this argument. The trial court became aware that Juror Harris had been a victim of sexual abuse when a detective asked the court to momentarily excuse Harris from deliberations in order to sign a criminal complaint. When the trial court judge learned of this, he brought Harris into chambers with the parties and conducted a voir dire. In voir dire, Harris explained that she had decided not to mention the sexual abuse during the original voir-dire examination because she did not feel it fit the definition of violent crime. Harris told the trial court judge that her experience was not “violent” when compared to murder. Therefore, she did not bring it to the court’s attention. Under extensive questioning, Harris was adamant that her experience with sexual abuse had nothing to do with Dennis’s case. She stated she could separate the two experiences and serve impartially as a juror. The court asked defense counsel if they had anything they wished to put on the record. The defense counsel said they did not. After Harris returned to the jury room, counsel for Petitioner Dennis and the State told the trial court that before the trial they became aware that Harris had been a witness to sexual abuse. With this information, Dennis did not act before trial to excuse Juror Harris or to seek more particular questioning of her. Dennis says he did not, however, know that Juror Harris had been a purported victim of sexual abuse. After this voir dire, Petitioner Dennis did not ask the court to excuse Juror Harris. However, at the end of the trial, defense counsel filed a motion for mistrial. In rejecting Dennis’s direct appeal of this issue, the Ohio Supreme Court ruled that a trial court has broad discretion in determining a juror’s ability to be impartial. The court found that the trial court’s decision to allow Harris to remain on the jury was not an abuse of discretion, especially in light of the court’s voir-dire examination of Harris conducted in chambers during penalty-phase deliberations. With respect to this claim, the Ohio Supreme Court’s decision was not an unreasonable application of clearly established federal law. At the time of the trial and appeal, the United States Supreme Court’s opinion in McDonough Power Equipment, Inc., v. Greenwood controlled this issue. 464 U.S. 548, 556, 104 S.Ct. 845, 78 L.Ed.2d 668 (1984). In McDonough, a juror failed to reveal during the voir dire in a products liability case that his son had suffered a broken leg from an exploding tire. The juror had been asked if any immediate family member had ever sustained a serious injury. In denying a new trial, the Supreme Court found that the juror “apparently believed that his son’s broken leg sustained as a result of an exploding tire was not such an injury.” Id. at 555, 104 S.Ct. 845. The Court observed that jurors “may be uncertain as to the meaning of terms which are relatively easily understood by lawyers and judges.” Id. The Court in McDonough noted that a litigant “is entitled to a fair trial but not a perfect one, for there are no perfect trials.” Id. at 553, 104 S.Ct. 845 (quoting Brown v. United States, 411 U.S. 223, 231-32, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973)). The Court thus urged reviewing courts to “ignore errors that do not affect the essential fairness of the trial.” Id. at 553, 104 S.Ct. 845. Under McDonough, in order “to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause ... but only those reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial.” McDonough, 464 U.S. at 555, 104 S.Ct. 845. Therefore a party must show that a juror dishonestly answered a question on voir dire and that a correct response would have provided a challenge for cause. Petitioner Dennis makes no showing that Juror Harris failed to answer a material question honestly. When questioned in chambers, Juror Harris said, “I decided what happened to me by your definition of violent would not be violent.” (See Trial Tr. at 1508.) After observing her demeanor, the trial judge accepted Juror Harris’s explanation and stated that “I think we would understand how you interpret it, that it might not have been as clear as it probably should have.” (Id.) This misunderstanding of a word or phrase is similar to the facts of McDonough, where the Supreme Court stated that a juror misunderstanding certain legal words is to be expected. Petitioner Dennis also fails to show that Juror Harris could h