Loza v. Mitchell (705 F. Supp. 2d 773, 2010)

OPINION AND ORDER

EDMUND A. SARGUS, JR., District Judge.

Petitioner, a prisoner sentenced to death by the State of Ohio, has filed a habeas corpus action pursuant to 28 U.S.C. § 2254. Petitioner filed his original habeas corpus petition (Doc. # 6), to which Respondent responded with a Return of Writ (Doc. # 11). Thereafter, this Court issued a Opinion and Order dismissing the following claims as procedurally defaulted: seven, nineteen, twenty (paragraph 252), twenty-six, and thirty-three.

The Court permitted some factual development in this case. By prior order, this Court issued a decision granting Petitioner leave to conduct discovery on the following claims for relief: five and seventeen (as to the selective prosecution component). Petitioner proceeded to conduct numerous depositions and to collect certain documents. Thereafter, the Magistrate Judge issued an Opinion and Order expanding the record before this Comb to include certain deposition transcripts. (Doc. # 57.) Still to be resolved by the Court are Petitioner’s request for an evidentiary hearing (Doc. # 68-1), Respondent’s response (Doc. # 72), and Petitioner’s reply (Doc. # 73.) In addition, An amicus brief was filed on Petitioner’s behalf by counsel for the United Mexican States. (Doc. #71.)

This case is now ripe for a final decision on the merits of those claims that are properly before the Court: grounds one, two, three, four, five, six, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, twenty (except paragraph 252), twenty-one, twenty-two, twenty-three, twenty-four, twenty-five, twenty-seven, twenty-eight, twenty-nine, thirty, thirty-one, thirty-two, and thirty-four.

I. Factual and Procedural History

The facts and procedural history of this case were set forth by the Ohio Supreme Court in State v. Loza, 71 Ohio St.3d 61, 641 N.E.2d 1082 (1994):

On January 16, 1991, defendant-appellant, Jose Trinidad Loza, shot four members of the family of his girlfriend, Dorothy Jackson. The victims were shot in the head at close range while they slept in their home in Middletown, Ohio. Loza shot Jackson’s mother, Georgia Davis; her brother, Gary Mullins; and her two sisters, Cheryl (Mullins) Senteno and Jerri Luanna Jackson. Mullins die d almost immediately from his wound; Davis and Senteno survived several hours before dying. Jerri Jackson, six months pregnant at the time of the shooting, die d on January 31, 1991.

On the afternoon of January 16, 1991, Gary Hoertt observed an individual in a white Mazda pick-up truck with California plates loading trash into his dumpster at his shop in Middletown. Having had previous problems with the unauthorized use of his dumpster, Hoertt searched the dumpster for something with which to identify the individual. Hoertt found a letter in the dumpster signed by Loza with a return address in Butler County. Hoertt read the letter, the contents of which indicated that Loza was involved in a drive-by shooting in Los Angeles and that he came to Ohio to avoid apprehension by the Los Angeles police.

After reading the letter, Hoertt called the Warren County Sheriffs Department to report his discovery. Hoertt was informed that it would take some time before a deputy could respond. During that time, Hoertt was informed by an employee that the individual, later identified as Loza, and a female companion were seen in the vicinity of the nearby Greyhound bus station. Hoertt then called Middletown police detective Roger Enable.

After Enable arrived at Hoertt’s shop and read the letter, Enable and Hoertt went to the dumpster, where they retrieved other items that Loza had discarded, which included: a knife; an empty box for a .25 caliber Raven automatic handgun; a receipt signed by a Judy A. Smith for the purchase of the handgun on January 15, 1991; a woman’s purse; a blank check on the account of Georgia L. Davis; a general money order made payable to Jose Loza; clothing; and some other personal items.

As Hoertt and Enable were going through the items in Hoertt’s office, Hoertt saw Loza approach the dumpster. Enable went to his cruiser and requested his dispatcher to notify Warren County deputies that the individual had returned and that he was going to speak to him. Enable identified himself as a police officer, approached Loza with his gun in his hand, and instructed Loza to place his hands on the front of the car. Enable searched Loza and asked his name. At this time, Loza identified himself as “Jose Rodriguez.” Enable told Loza the reason he was being stopped was because of what he put in the dumpster. Loza responded “yes.” Enable said the letter indicated that Loza may have been involved in a drive-by shooting in Los Angeles. Loza again responded “yes.” Enable then informed Loza that he was going to handcuff him and hold him until Warren County deputies arrived. Enable then went to locate the woman who had been seen with Loza earlier. Loza said that the woman’s name was Cynthia Rodriguez, that she was his wife, and that they were headed to California.

Enable then went inside the bus station and approached Dorothy Jackson. He asked her name and she responded “Dorothy Jackson.” When asked, Jackson stated that Loza’s name was “Jose Rodriguez,” and that they were not married. Within a short time after Enable’s initial contact with Loza, Warren County deputies arrived. The deputies determined Jackson was under age and that she planned to travel to California with Loza. When asked, Jackson gave her mother’s telephone number to the deputies. Enable was unsuccessful in reaching Davis, Jackson’s mother, by phone. Detectives Enable and George Jeffery then went to Davis’s home at 1408 Fairmont, but did not receive any response when they knocked at the door. A neighbor approached the detectives and said that she had been trying unsuccessfully all day to get someone from the house to respond.

Because the police were unable to determine if Jackson had permission to travel out of state, she was arrested for being an unruly minor and was taken to the Warren County Juvenile Detention Center. Loza was arrested for contributing to the delinquency or unruliness of a minor and was taken to the Warren County Justice Center.

When the detectives began questioning Jackson at the juvenile detention center, she did not initially tell them of the murders. Shortly into the questioning, she began crying. She said she did not want to go to jail, and that Loza had killed her family. Jackson told the detectives what she knew about the murders.

Based upon Jackson’s statement, Detective Enable obtained a search warrant for the house at 1408 Fairmont. When the police entered the house, they discovered the victims.

Enable and Jeffery then returned to the Warren County Justice Center and began questioning Loza. The detectives’ interview with Loza was videotaped. At the beginning of the interview, Loza waived his Miranda rights. Initially, Loza said that he and Jackson were traveling to California with her mother’s permission. The detectives told Loza they knew what had happened, and that it would be in his, Jackson’s and the unborn baby’s best interest if he just told the truth. About one hour into the interview, Loza confessed to the murders. Loza detailed the murders, including the order in which he shot the victims. Loza stated that Jackson was not in the house at the time of the murders, and that she did not know that he was going to kill her family members.

The detectives asked Loza when he began thinking about murdering Jackson’s family members. Loza responded that he had been thinking about it since he had obtained the gun and particularly after Davis had threatened to have him arrested if he tried to leave the state with Jackson. Loza explained that he shot Davis because of her threats. When asked why he shot the others, he responded: “Knowing I had to do one, I had to do all. * * * Because if I only done one, they would have — they would have known it was me. If I would have done all of them, nobody would have found out.”

Loza was indicted on four counts of aggravated murder, with three death penalty specifications and a gun specification added to each murder charge. Death specification number one alleged murder to escape detection and arrest, R.C. 2929.04(A)(3); death specification number two alleged “course of conduct” murders, R.C. 2929.04(A)(5); and death penalty specification number three alleged murder during an aggravated robbery, R.C. 2929.04(A)(7). Appellant pleaded not guilty to all the charges.

Appellant waived his right to a jury trial and proceeded to trial before a three-judge panel. During cross-examination of the state’s final witness, the defense moved for a mistrial on the basis that the stated had failed to disclose certain exculpatory evidence during discovery. Over the state’s objection, the court granted a mistrial without prejudice. The trial court denied appellant’s subsequent motion to bar his retrial on double jeopardy grounds.

After the court denied appellant’s pretrial motion to suppress all statements and evidence seized in this matter, a trial by jury commenced on October 21, 1991.

Prior to submitting the case to the jury, the court dismissed the aggravated-robbery specification with respect to the aggravated murder of Jerri Jackson. The jury found appellant guilty on all four counts of aggravated murder. The jury also found appellant guilty of all remaining specifications except for the R.C. 2929.04(A)(3) specification with respect to the aggravated murders of Senteno and Jerri Jackson.

At the conclusion of the penalty phase, the court merged the R.C. 2929.04(A)(3) and 2929.04(A)(5) specifications with respect to the aggravated murders of Davis and Mullins. The jury recommended the death sentence for the aggravated murders of Mullins, Senteno, and Jerri Jackson and thirty years to life imprisonment for the aggravated murder of Davis. The court accepted the recommendation and sentenced appellant to death for the aggravated murders of Senteno, Mullins, and Jerri Jackson. The court also sentenced appellant to thirty years to life imprisonment for the aggravated murder of Davis and imposed a three-year term of actual incarceration for the firearm specification. The court ordered the life and three-year firearm sentences to be served consecutively to appellant’s death sentences.

{Loza, 71 Ohio St.3d at 61-64, 641 N.E.2d 1082; App. Vol. Ill, at 1232-34.)

Represented by two new attorneys from the Ohio Public Defender’s Office, as he would be throughout the remainder of his state court proceedings, Petitioner appealed first to the Court of Appeals for the Twelfth Appellate District. Counsel for Petitioner raised twenty-nine assignments of error. On April 19, 1993, the appellate court issued an opinion affirming Petitioner’s convictions and sentences, and further finding that the aggravating circumstances outweighed the mitigating factors and that Petitioner’s death sentences were not disproportionate. (State v. Loza, Case No. CA91-11-198 (Ohio App. 12 Dist.); App. Vol. I, at 556.)

Represented again by the Ohio Public Defender’s Office, Petitioner pursued his second appeal of right to the Ohio Supreme Court. Counsel for Petitioner raised thirty-three propositions of law. On November 30, 1994, the Ohio Supreme Court affirmed Petitioner’s convictions and sentences, and further concluded that the death sentences were appropriate and proportionate. (State v. Loza, 71 Ohio St.3d 61, 641 N.E.2d 1082 (1994); App. Vol. III, at 1223.) On December 28, 1994, the Ohio Supreme Court summarily denied Petitioner’s motion for reconsideration. (App. Vol. Ill, at 1263.)

On November 27,1995, Petitioner filed a postconviction action to vacate or set aside the judgment or sentence pursuant to R.C. § 2953.21 He raised thirteen claims for relief. On September 24, 1996, the trial court issued findings of fact and conclusions of law denying Petitioner’s postconviction action. (App. Vol. Ill, at 1604.) Petitioner appealed to the Court of Appeals for the Twelfth Appellate District. On October 13, 1997, the appellate court issued an opinion affirming the trial court’s judgment denying Petitioner’s postconviction action. (State v. Loza, Case No. CA96-10-214, 1997 WL 634348 (Ohio App. 12 Dist. Oct. 13, 1997); App. Vol. IV, at 1990-2012.) Petitioner sought discretionary review by the Supreme Court of Ohio and filed his memorandum in support of jurisdiction on November 26, 1997. On January 28, 1998, the Ohio Supreme Court issued an entry summarily declining to accept jurisdiction over Petitioner’s appeal. (State v. Loza, Case No. 97-2470, 81 Ohio St.3d 1429, 689 N.E.2d 49 (Jan. 28, 1998); App. Vol. IV, Exh. KK, at 2199.)

II. Standards for Habeas Review

The provisions of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which became effective prior to the filing of the instant petition, apply to this case. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under the AEDPA, a federal court shall not issue a writ of habeas corpus on a claim that the state courts adjudicated on the merits unless the state court adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or was based on “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2). Section 2254(d)(1) circumscribes a federal court’s review of claimed legal errors, while § 2254(d)(2) places restrictions on a federal court’s review of claimed factual errors.

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

Further, § 2254(d)(2) prohibits a federal court from granting an application for habeas relief on a claim that the state courts adjudicated on the merits unless the state court adjudication of the claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). In this regard, § 2254(e)(1) provides that the findings of fact of a state court are presumed to be correct and that a petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence.

III. Petitioner’s Claims

This case is ripe for review of the merits of all but the following claims for relief: seven, nineteen, twenty (paragraph 252), twenty-six, and thirty-three.

First Ground for Relief: The trial court erroneously deprived Petitioner of his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution when it prohibited the introduction to the jury of defense evidence regarding the reliability and credibility of Loza’s confession.

In the First Ground for Relief, Petitioner alleges that the trial court violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights by preventing him from introducing expert testimony regarding the credibility and reliability of his confession. (Petition, Doc. # 6, at ¶¶ 1-9; Memorandum in Support, Doc. # 62, at 4-11; Reply, Doc. # 70, at 1-9.)

On January 17, 1991, Petitioner was interviewed by Detective Knabel and Sergeant Jeffrey of the Middletown Police Department. The interview began at 12:21 a.m. and concluded one hour and ten minutes later. As soon as the interview began, the officers read to Petitioner his Miranda rights, which Petitioner indicated both orally and in writing that he understood.

The undersigned initially notes that he has watched the videotape of the statements and has reviewed the written transcript of the questioning. The Court notes that the questioning began in a low key, somewhat casual, albeit professional, manner. The interrogation room was small, but not particularly restrictive. In general, the questioning began by covering preliminary matters. After approximately thirteen minutes, the officer began asking pointed questions. At no time did either officer raise his voice or otherwise appear menacing.

The officers did tell Petitioner that “Luanna is alive,” which was true. (App. Vol. VII, at 3654.) Although she never regained consciousness and die d two weeks later, the officers told Petitioner that Luanna had given them a statement inculpating him. (App. Vol. VII, at 3658.)

Thirty-seven minutes into the questioning, the following exchange took place between Petitioner and Knabel:

Q. Do you know what Luanna was-Do you know what Luanna was wearing this morning?

A. No. 1 didn’t see her—

Q, How about a black t-shirt that come down just below her butt, a pair of white pan ties.

A. I’ve never seen her. After I went to work, she was outside. Last time I seen her it was on the street which was walking with Dorothy.

Q. Jose, we’ve talked to her.

A. Well, what can I say?

Q. You can say the truth.

A. Well, that’s what I am trying to tell you.

Q. No. That’s not the case. What you’re trying to do is put yourself in an electric chair or a gas chamber right along with Dorothy, and this child is going to go off into never, never land and never be seen again.

(App. Vol. VII, at 3648.)

In addition, Petitioner stated in multiple answers that his only fear was what was going to happen to Dorothy and their unborn child. (App. Vol. VII, at 3670, 3701, 3711, 3713, 3968.) Knabel also told Petitioner:

Q. Dorothy stands to do the same thing you do, man. Dorothy stands not only to lose her child, she’s 16 years old. She could lose the next 60 years.

(App. Vol. VII, at 3667.)

The officers also discussed with Petitioner what they could do for him if he cooperated. They told him that they did not “have the authority to make that deal.” (App. Vol. VII, at 3666.) When Petitioner asked Knabel how long Petitioner could spend in prison, Knabel told him, “I don’t know. That’s the judge’s decision, Jose.” (App. Vol. VII, at 3666.) Jeffrey also told Petitioner:

Q. Jose, we can’t make you any promises, okay. You know that. We can’t make any promises.

A. I’m not asking for none.

Q. I didn’t say you asked us for any. Okay. But we can’t make you any promises. But there’s one thing we can do. We can explain to the court what happened and why it happened. Okay. And surely you have some-some remorse over all of this. Okay. Surely it bothers you in here a little bit, I would think, because I think you got a heart,

(App. Vol. VII, at 3658-59.)

Approximately one hour and three minutes into the interview, Petitioner confessed to the killings. At the time he began the confession, Petitioner appeared to be calm.

In the first phase of the trial, Petitioner’s counsel sought to introduce the testimony of Dr. Roger Fisher, a clinical psychologist. The following exchange occurred outside of the presence of the jury:

THE COURT: We will allow counsel to state what he would expect the doctor to testify to if permitted to do so.

MR. SHANKS: We would expect that he would have testified if permitted to do so that he was a qualified psychologist, that he reviewed the taped confession, taped statement, of Jose Loza which was introduced into evidence by the State of Ohio in this case and that he reviewed other personal records of the Defendant in regard to his school records, juvenile records, employment records and summaries of interviews from Mr. Casey Cone in the State of California.

I believe he also testified that he reviewed the psychological history of Mr. Jose Loza present in the file from the Center for Forensic Psychology of Butler County Court System and that based upon his training, skill and experience and the documents reviewed and his review of the videotaped statement of Mr. Loza, that the videotaped statement specifically in reference to Mr. Loza’s acknowledgment of his participation in the offense and his desire to take full responsibility would have been product of psychological coercion and duress brought upon by the statements of the police officer that his girlfriend would be placed in the electric chair and his child would be sent to never-never land and that the letters and repeated affirmations of that statement would have been consistent with Mr. Loza’s coerced desire to protect his girlfriend and unborn child.

THE COURT: The Court, of course, has already ruled on motions to suppress in this case and found the confession has already been admitted as being a voluntary, knowing confession on the part of the Defendant.

The expert’s opinion as to duress at this time is not appropriate at this time. The Court has already been advised, as counsel has already been advised, the Court will exclude that testimony in this phase of the case.

(App. Vol. VI, at 3176-78.)

Petitioner contends that he was deprived of his right to present testimony as to the “physical and psychological environment that yielded the confession.” Crane v. Kentucky, 476 U.S. 683, 689, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986.) Petitioner asserts that Dr. Fisher should have been allowed to explain to the jury Petitioner’s psychological make-up and unique characteristics which rendered his confession unreliable.

The Ohio Supreme Court made the following determination in rejecting Petitioner’s claim on direct appeal:

In his first proposition of law, appellant asserts that psychological testimony concerning the voluntariness of his confession should have been admitted during the guilt phase of his trial.

The trial court did not permit the jury to hear testimony of Dr. Roger Fisher, a clinical psychologist, who would have testified that appellant’s confession resulted from police coercion and duress caused by statements made by the police officers during the interrogation. Dr. Fisher would have testified that, in his opinion, appellant confessed because his background, psychological makeup, and his personal code of conduct required that he not “snitch” and that he “protect Dorothy.” Dr. Fisher would have testified that because Loza had a difficult childhood he was compelled to confess to protect his girlfriend and unborn child. The trial court concluded that since it had made a pretrial determination that Loza’s confession was voluntary, Dr. Fisher’s testimony was not appropriate during the guilt phase.

Appellant argues that Crane v. Kentucky (1986), 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636, requires the admission of Dr. Fisher’s testimony. In Crane, a sixteen-year-old defendant sought to introduce testimony regarding the psychological impact of the length of his interrogation and the manner in which it was conducted. FN1 The United States Supreme Court held that the exclusion of the testimony about the circumstances of the defendant’s confession deprived him of his fundamental constitutional right to a fair opportunity to present a defense. The court recognized that while the issue of whether a confession is voluntary is a question of law for the court, the jury was entitled to hear the excluded testimony in order to make a factual determination of whether the manner in which the confession was obtained east doubts on its credibility. Id. at 689, 106 S.Ct. at 2146, 90 L.Edüd at 644.

FN1. The defendant in Crane testified that he had been detained in a windowless room for a protracted period of time, that he had been surrounded by as many as six police officers during the interrogation, that he had repeatedly requested and been denied permission to telephone his mother, and that he had been badgered into making a confession.

The testimony of Dr. Fisher is clearly outside the holding of Crane. The testimony of the witnesses in Crane related to how the physical and psychological environment of the interrogation could have impacted the voluntariness and credibility of the confession. Dr. Fisher’s proffered testimony relates to how Loza’s individual, psychological makeup, independent of the circumstances surrounding the interrogation, could have impacted the voluntariness and credibility of the confession. Consequently, Crane does not require the admission of Dr. Fisher’s testimony.

The jury was able to accurately consider the credibility and weight of the confession by watching it on videotape. They could see and hear the tone and manner of the interrogation, the number of officers present, the physical characteristics of the room, and the length of the interrogation. The jury had the opportunity to evaluate the credibility of the appellant and to give the confession its appropriate probative weight. See State v. Jamison (1990), 49 Ohio St.3d 182, 191, 552 N.Eüd 180, 189 (the weight to be given evidence and the credibility of witnesses are jury issues).

Because the trial court already had ruled on the voluntariness of the confession and the jury had the opportunity to evaluate the credibility of the confession, the trial court did not abuse its discretion by excluding the testimony of Dr. Fisher during the guilt phase of the trial.

This proposition of law is overruled.

{Loza, 71 Ohio St.3d at 65-66, 641 N.Eüd 1082; App. Yol. Ill, at 1234-35.)

This Court must determine whether the decision of the Ohio Supreme Court contravened or unreasonably applied clearly established Supreme Court precedent or involved an unreasonable determination of the facts based on the evidence presented. Petitioner relies primarily upon Crane v. Kentucky, supra to support his contention that the Constitution required that he be permitted to offer evidence regarding the circumstances surrounding his confession. Petitioner argues that 28 U.S.C. § 2254(d)(1) does not preclude habeas corpus relief because the Ohio Supreme Court’s decision was contrary to the language of Crane and an unreasonable application of the principles underlying Crane. In Crane, the trial judge made a preliminary, evidentiary ruling that the confession was admissible. Crane, 476 U.S. at 685, 106 S.Ct. 2142. During the trial, the trial court excluded any testimony regarding the methods used to obtain the confession. Crane, 476 U.S. at 686, 106 S.Ct. 2142. These circumstances included the fact that Crane, then age 16, was questioned by six police officers over an extended period of time. Crane, 476 U.S. at 685, 106 S.Ct. 2142. Crane repeatedly asked to see his mother, and was denied his request. None of those facts were presented to the jury. Crane did not offer expert testimony and the Supreme Court did not address the admissibility of such offered evidence.

In contrast, the jury in this case watched the entire encounter between Petitioner and the interrogating officers. All of the circumstances surrounding Petitioner’s confession, including the Miranda warning, were observed by the jury. To this extent, Crane is inapposite.

What Petitioner essentially challenges is the trial court’s exclusion of Dr. Fisher’s opinions that the confession was “the product of psychological coercion and duress.” (App. Vol. VI, 3177.) The Ohio Supreme Court found that the jury had the ability to obsexxve the entirety of circumstances leading to the confession. The question of whether an expert in psychology may opine on the voluntariness of a confession is a matter of state law and not subject to review in this habeas corpus proceeding, unless a state evidentiary rule, by itself or in concert with other state rules, “undermine[s] fundamental elements of the defendant’s defense.” United States v. Scheffer, 523 U.S. 303, 315, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998).

Although not mentioned in its decision in this case, the Ohio Supreme Court has held that expert witnesses may not, under the Ohio Rules of Evidence, offer opinions as to the truthfulness of a witness’s statement. State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220 (1989). The Ohio Supreme Court held that the veracity of an alleged victim of child abuse was “the key issue in the case” and that expert testimony on the issue “infringed upon the role of the fact finder, who is charged with making determinations of veracity and credibility.” Boston, 46 Ohio St.3d at 129, 130, 545 N.E.2d 1220 (citing State of Ohio v. Eastham, 39 Ohio St.3d 307, 312, 530 N.E.2d 409 (1988)). Further, as the United States Supreme Court explained in Montana v. Egelhoff:

In the absence of any valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecutor’s case encounter and survive the crucible of meaningful adversarial testing. Our holding that the exclusion of certain evidence in that case violated the defendant’s constitutional rights rested not on a theory that all “competent, reliable evidence” must be admitted, but rather on the ground that the Supreme Court of Kentucky’s sole rationale for the exclusion (that the evidence “did not relate to the credibility of the confession”) was wrong. Crane does nothing to undermine the principle that the introduction of relevant evidence can be limited by the State for a “valid” reason, as it has been by Montana.

Montana v. Egelhoff, 518 U.S. 37, 53, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (quoting Crane, 476 U.S., at 687, 690-691, 106 S.Ct. 2142; Crane v. Commonwealth, 690 S.W.2d 753, 755 (1985)) (quotation marks omitted).

This Court cannot say that state law-authorized limitations placed upon experts opining on truthfulness “undermines fundamental elements of the ... defense.” Scheffer, 523 U.S. at 315, 118 S.Ct. 1261. This is paxticularly so when the jury has the opportunity to view a videorecording of the entire interview which culminated in the confession. This Court concludes that the Ohio Supreme Court’s decision rejecting Petitioner’s claim did not violate the rule established in Crane v. Kentucky. Petitioner’s constitutional rights were not violated by the exclusion of the testimony of Dr. Fisher. Accordingly, Petitioner’s first ground for relief is DENIED.

Second Ground for Relief: The admission of a coerced and involuntary statement at his capital trial denied Petitioner of his rights as guaranteed by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

A. Loza’s Statement [Was] The Result of Coercion

1. Coercive Police Tactics

2. Improper Inducements

3. Trickery

4. The Personal Characteristics of the Suspect

5. Conclusion

B. The trial court erred by denying Petitioner’s motion to suppress using an erroneous legal standard in deprivation of Petitioner’s rights as guaranteed by the Fourth, Eighth and Fourteenth Amendments to the United States Constitution.

C. The trial court failed to explain the suppression denial.

Petitioner contends that his confession was coerced and involuntary in violation of his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. Petitioner asserts that he confessed only after police threatened his pregnant girlfriend. Petitioner also notes that he had not slept in twenty-four hours and was only eighteen years old. Petitioner further contends that the interrogating officers lied to and made certain promises to Petitioner in order to obtain his confession. (Petition, Doc. # 6, at ¶¶ 10-49; Doc. # 62, at 11-18; Doc. # 70, at 9-13.)

The Ohio Supreme Court rejected Petitioner’s claim as follows:

Appellant contends in his second and fifth propositions of law that his confession was involuntary because of psychological coercion, trickery, and deception by the police.

Appellant’s pretrial motion to suppress was based upon what he contended was an illegal arrest at the Greyhound station. Although he did not raise the issue of voluntariness in the motion to suppress, we will address the issue here.

A confession is involuntary and violative of the United States and Ohio Constitutions if it is the product of “coercive police activity.” Colorado v. Connelly (1986), 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473, 484. “In deciding whether a defendant’s confession is involuntarily induced, the court should consider the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement.” State v. Edwards (1976), 49 Ohio St.2d 31, 3 O.O.3d 18, 358 N.E.2d 1051, paragraph two of the syllabus, vacated in part on other grounds (1978) 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155.

Appellant contends that his confession was involuntary because detectives Enable and Jeffery were psychologically abusive during the interrogation. Appellant asserts that the detectives were aware of his deep feelings for Jackson and his unborn child and they played upon those feelings in order to coerce appellant into confessing. Additionally, appellant asserts the detectives offered a plethora of promises, including lenient treatment from the court, a visit with Jackson, and a promise to release Jackson if he could just “tell * * * the truth.”

Admonitions to tell the truth are considered to be neither threats nor promises and are permissible. State v. Cooey (1989), 46 Ohio St.3d 20, 28, 544 N.E.2d 895, 908; State v. Wiles (1991), 59 Ohio St.3d 71, 81, 571 N.E.2d 97, 112. The detectives did no more than urge the appellant to tell the truth.

The detectives’ references to Jackson were made in response to appellant’s repeated inquiries about what would happen to her. No threats were made concerning Jackson or what would happen if appellant did not confess. The detectives merely informed appellant of the possible consequences of his actions. By the time the detectives were questioning appellant, Jackson had already told the police about appellant’s involvement in the murders. Appellant sought the release of Jackson and he initiated the bargaining for her release. Under these circumstances, the statements made to the detectives were voluntary beyond doubt. See State v. Melchior (1978), 56 Ohio St.2d 15, 25-26, 10 O.O.3d 8, 14-15, 381 N.E.2d 195, 201-202.

The detectives made no promises regarding the treatment appellant would receive from the court. They did say that they would be willing to testify that appellant was cooperative. Promises that a defendant’s cooperation would be considered in the disposition of the case, or that a confession would be helpful, does not invalidate an otherwise legal confession. Edwards, supra, 49 Ohio St.2d at 40-41, 3 O.O.3d at 23-24, 358 N.E.2d at 1058-1059.

The detectives made no promises regarding a visit with Jackson; the detectives did say that they would try to make arrangements for appellant and Jackson to visit “after all of this [was] done.” Contrary to the interpretation proffered by the defense, taken in the proper context of the entire confession the detectives’ statements could not be viewed as a coercive tactic used by the police to elicit the confession.

Appellant also contends that the police used trickery to induce his confession. Enable told appellant that Jerri [Luanna] Jackson was alive. He also stated that she had identified her assailant, which was not the case. However, all the other circumstances surrounding the confession indicate that it was made voluntarily, and the confession is admissible even though the police misled appellant by suggesting that they received certain information from the victim of the crime. See Wiles, supra, 59 Ohio St.3d at 81, 571 N.E.2d at 112.

Applying the test of voluntariness set forth in State v. Edwards, supra, and in carefully reviewing the totality of the circumstances in this case, we concur in the trial court’s finding that the appellant’s statements were voluntarily made and that the appellant’s will to resist was not overborne by threats or improper inducements. Appellant was of majority age and was in command of his faculties at the time he confessed. He was not interrogated for an unreasonable length of time, and was not subjected to physical abuse or harsh conditions. We note that before the interrogation began, appellant waived his Miranda rights. Upon completion of the interrogation, when the detectives asked if he felt threatened by them or if they had made any promises to him, appellant responded that “no,” they had not threatened him, and agreed they had not made any promises to him. Through these affirmations, appellant has confirmed that his confession was voluntarily made.

Thus, we reject appellant’s propositions of law two and five.

(Loza, 71 Ohio St.3d at 66-68, 641 N.E.2d 1082; App. Vol. Ill, at 1235-36.)

Petitioner is entitled to habeas corpus relief only if this Court determines that the Ohio Supreme Court’s decision was contrary to or involved an unreasonable application of clearly established federal law or involved an unreasonable determination of the facts. This Court is not persuaded that is the case.

The Court first addresses the circumstances of the confession. As noted above, the entire interview was tape recorded. The videotape does not demonstrate that Petitioner was reacting to a loss of sleep or that, at age eighteen, he was vulnerable or unsophisticated.

Petitioner claims that he confessed only after officers threatened his pregnant girlfriend, Dorothy Jackson, and their unborn child. On the videotape, Petitioner expressed concern for the welfare of Jackson and the unborn child. As Petitioner became evasive, Detective Knabel told him:

No. That’s not the case. What you’re trying to do is put yourself in an electric chair or gas chamber right along with Dorothy, and this child is going to go off into never, never land and never be seen again.

(App. Yol VII, at 3648.) Although only Knabel knew the true intent of this statement, the literal words suggested that Jackson could be a codefendant with Petitioner and both could face capital charges. As to the child “going to go off into never, never land and never be seen again,” this implicates that the child would enter foster care and adoption, if both mother and father were convicted of murder. From this statement alone, Petitioner might have inferred that direct harm would come to the child. Prior to the confession, however, Knabel explained:

Dorothy stands to do the same thing you do, man. Dorothy stands to lose not only her child, she’s 16 years old. She could lose the next 60 years.

(App. Vol. VII, at 3667.)

Petitioner was arrested as he was in the company of Dorothy Jackson. They were at a bus station preparing to leave town. Jackson lived in the same house where the murders occurred. Knabel had good reason in the early stages of the investigation to question the extent of Jackson’s involvement. Knabel’s questions to Petitioner, although no doubt pointed, probed the involvement of Petitioner’s pregnant girlfriend. Taken as a whole, prior to the confession, and contrary to Petitioner’s claim, the officers did not threaten that the child would be executed.

Petitioner also contends that the officers made unkept promises to him in order to induce a confession. After reviewing the entire videotape, the Court is of a different view. The officers made it clear that they could only advise a judge of Petitioner’s level of cooperation; they told Petitioner quite explicitly that they could not make other promises.

Finally, Petitioner contends that the officers lied to him by telling Petitioner that Luanna Jackson was alive and had told them what happened. Although Luanna Jackson was alive at that time, she was unconscious and had made no statement.

Even though a defendant is Mirandized, a confession may be unconstitutionally compelled if the same was the product of coercive state action. The Supreme Court noted in Colorado v. Connelly:

Thus the cases considered by this Court over the 50 years since Brown v. Mississippi [297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936) ] have focused upon the crucial element of police overreaching. While each confession case has turned on its own set of factors justifying the conclusion that police conduct was oppressive, all have contained a substantial element of coercive police conduct. Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.

Colorado v. Connelly, 479 U.S. 157, 164-65, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (footnote omitted).

As to Petitioner’s claim that the officers lied to him, thereby inducing an involuntary confession, the case of Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) is instructive. Frazier was told by police officers that his cousin had already confessed to the crime. This statement was false. The Supreme Court held that, “[t]he fact that the police misrepresented the statements that Rawls had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible. These cases must be decided by viewing the ‘totality of the circumstances,’ ” 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (citing Clewis v. Texas, 386 U.S. 707, 708, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967)).

The Sixth Circuit has acknowledged that psychological coercion may render a confession involuntary. Ledbetter v. Edwards, 35 F.3d 1062 (1994). The Sixth Circuit described a number of relevant factors, including (1) the recitation of Constitutional rights; (2) the age, education and intelligence of the defendant; (3) the length of questioning; and (4) any deprivation of food or sleep. Also, the Sixth Circuit considered the impact of misrepresentations made by law enforcement in reviewing the totality of the circumstances.

Petitioner contends that Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959), is analogous to his case. In Spano, a pre-Miranda case, the defendant was questioned for over eight hours, during which Spano asked for and was denied an attorney. During the interrogation, a police officer who was a close friend of Spano told the defendant that he (the police officer) would be fired if Spano did not cooperate. The Court does not find the facts in this case similar to those in Spano. Petitioner was Mirandized and never asked for counsel. The interrogation lasted only one hour, was videotaped, and did not reveal other forms of coercion.

The Court concludes that the Ohio Supreme Court’s decision rejecting Petitioner’s claim did not contravene or unreasonably apply controlling United States Supreme Court precedent and did not involve an unreasonable determination of the facts. That being so, Petitioner’s second ground for relief must be DENIED.

Third Ground for Relief: The State of Ohio ignored its international treaty obligations thereby depriving Petitioner of his rights as guaranteed by the Supremacy Clause, and the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Petitioner’s third ground for relief asserts that his rights under Article 36 of the Vienna Convention on Consular Relations were violated when local law enforcement officers not only failed to notify him without delay that, as a Mexican national, Petitioner had an absolute right to communicate with the Mexican consulate, but also failed to notify the Mexican consulate without delay that Petitioner had been arrested. (Petition, Doc. # 6, at ¶¶ 50-71.) In fact, according to Petitioner, to this day neither he nor the Mexican government have received formal notification. Arguing that the Supremacy Clause of the United States Constitution confers upon treaties the same force and effect as the Bill of Rights and other federal laws, Petitioner argues that the violation of his Vienna Convention rights warrants federal habeas corpus relief. Specifically, Petitioner argues that the violation of his Vienna Convention rights mandates the same sort of remedy as would a violation of his Miranda rights — namely the exclusion of Petitioner’s inculpatory statements. In the absence of those inculpatory statements, Petitioner argues, the capital convictions against him cannot stand. In this regard, Petitioner points out that there was no scientific evidence or eyewitnesses that linked him to the homicides and that for a host of reasons, Dorothy Jackson’s self-serving statements implicating Petitioner are not reliable.

Petitioner argues that although he need not demonstrate prejudice, he was in fact prejudiced by the violation of his rights under the Convention. Petitioner asserts that the Mexican consulate would have advised him of his rights, would have provided him with Spanish-speaking attorneys, would have assisted Petitioner’s counsel with the investigation of Petitioner’s background, would have attended Petitioner’s trial to ensure that the proceedings were full and regular, and would have assisted Petitioner in demonstrating that his confession was the result of police coercion — threats directed at Petitioner’s girlfriend and unborn child — to which Petitioner was particularly susceptible because of his cultural background.

In sum, Petitioner argues that by failing to honor a treaty into which the United States entered, local law enforcement not only violated the Supremacy Clause, but in doing so implicated Petitioner’s due process rights and additionally violated Petitioner’s Fifth Amendment right to remain silent.

Petitioner expands upon these arguments in his memorandum in support of his habeas corpus petition. (Doc. # 62, at 18-35.) Petitioner turns his focus first on the import of the International Court of Justice’s LaGrand Case decision. That decision, according to Petitioner, defined the scope of rights guaranteed by Article 36 of the Vienna Convention, is authoritative, and must be followed by this Court. Petitioner asserts that the International Court of Justice (“ICJ”) set out five principle holdings:

First, “Article 36 ... creates individual rights” for a detained foreign national to be informed, following his detention and prior to trial, that he is entitled to receive assistance from his nation’s consul if he so chooses. La Grand ¶ 77 (emphasis added). Second, this right is separate and distinct from, and not cumulative of, rights accorded under the laws of a state or the U.S. Constitution. Id. ¶ 91. Third, a showing of prejudice is not necessary to establish a violation of Article 36. Id. ¶ 74. Fourth, a state that denies a defendant his Article 36 rights cannot invoke waiver as a defense to a challenge based on that violation. Id. ¶ 60. Finally, neither the United States, nor any of its constituent states, including Ohio, may apply its procedural default rules to deprive a foreign national of the opportunity to challenge his conviction and death sentence on the ground that he was deprived of his rights under Article 36 to seek and obtain consular assistance from his own government without delay. Id. ¶¶ 90-91.

(Doc. # 62, at 22.) Petitioner argues that Ohio is bound by the Supremacy Clause to follow the Convention and that the ICJ’s LaGrand decision prescribes the rule of law for this Court regarding Article 36 rights.

Petitioner argues that there are additional reasons why LaGrand is binding on this Court, to wit: because the United States recognized when it signed and ratified the Vienna Convention that the ICJ’s interpretations and applications of the Convention would be binding and under the United Nations charter that it would undertake to comply with any decision by the ICJ to which the United States was a party; because the principles of stare decisis should apply to give the ICJ’s decision, binding effect on similarly situated detainees; because the related doctrines of “issue preclusion” and “offensive collateral estoppel” prohibit the United States from disregarding the rulings on a case to which the United States agreed- to be a party; because the “paramount international law rule of pacta sunt servanda” mandates that treaties must be observed; because disregarding La Grand would result in German and non-German detainees being treated differently — (the detainees in the La Grand case were German nationals and Petitioner is a Mexican national) — and because “ ‘[tjreaties that lay down rules to be enforced by the parties [to the treaty] through their internal courts or administrative agencies should be construed so as to achieve uniformity of result despite differences between national legal systems.’ ” (Doc. # 62, at 26 (quoting Restatement (Third) of Foreign Relations of Law of the United States Restatement at Section 325 cmt. d (1987)).)

Petitioner also points out that the ICJ’s La Grand decision reinforces his argument that he need not show prejudice from the violation of his Article 36 rights in order to obtain relief. Asserting that the denial of Article 36 rights affects the entire proceeding, Petitioner reiterates his arguments that relief does not require a showing of prejudice and cannot be denied through the application of harmless error review. In any event, Petitioner argues as he did in his petition that he in fact suffered “overwhelming prejudice” from the denial of his Article 36 rights. (Doc. # 62, at 30.) Specifically, Petitioner argues that the Mexican consulate would have found Petitioner different counsel familiar with the critical cultural issues implicated in both the culpability and sentencing phases of Petitioner’s trial and that the involvement of the consulate would have provided invaluable resources and inhibited the racism that Butler County law enforcement officers displayed toward Petitioner.

Respondent argues that Petitioner is not entitled to relief on his third ground for relief because his rights under a treaty are not constitutional in dimension. (Doc. # 67, at 39.) Respondent argues that the state trial court and court of appeals were correct in rejecting Petitioner’s claim in postconviction on the basis that Petitioner’s claim did not constitute a substantive ground entitling him to postconviction relief. Respondent argues that Petitioner is incorrect in his assumption that a breach of international law automatically constitutes a ground upon which federal habeas corpus relief can be granted and that Petitioner’s reliance on the La Grand decision in making that assumption is misplaced. Respondent additionally asserts that the Eleventh Amendment forecloses habeas relief on Petitioner’s claim. Respondent concludes that the state courts’ rejection of Petitioner’s claim did not contravene or unreasonably apply federal law and did not involve an unreasonable determination of the facts.

Petitioner presents three primary arguments in his reply brief. First, Petitioner argues that the determination by the state courts in postconviction that his argument did not state a claim upon which postconviction relief could be granted was not a ruling on the merits. Accordingly, Petitioner argues, this Court must review his claim de novo rather than merely determine whether the state courts’ decision contravened or unreasonably applied controlling federal law. (Doc. # 70, at 13-14.) Second, Petitioner presents multiple arguments disputing “Respondent’s sole contention” that “a violation of the Vienna Convention does not constitute a violation of the constitution.” (Id. at 14.) Citing 28 U.S.C. § 2241(c)(3) and § 2254(a), Petitioner argues that Congress expressly empowered federal district courts to grant habeas relief on a violation of a treaty. Petitioner argues that the United States Supreme Court recognized as much in Breard v. Greene, 523 U.S. 371, 376, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998). Regarding Respondent’s argument that the Eleventh Amendment forecloses relief on this claim, Petitioner argues simply that his claim does not implicate the Eleventh Amendment because Petitioner is not suing the State of Ohio.

Finally, after reiterating his arguments in support of relief, Petitioner for the first time and in the alternative “requests an evidentiary hearing to present evidence that he has been prejudiced by Ohio’s failure to comply with the Convention.” (Doc. # 70, at 18-19.) Respondent opposes Petitioner’s request. (Doc. # 72.)

The evolving state of law on this issue resulted in the parties filing numerous supplemental pleadings. Petitioner filed a notice on April 16, 2004 stating that the International Court of Justice ruled on March 31, 2004 that the United States had violated the Vienna Convention on Consular Relations in securing the convictions and death sentences of Mexican nationals. (Doc. # 74.) The ICJ made four specific findings as to Petitioner’s case: (1) that Petitioner’s rights were violated when Ohio did not provide Petitioner information regarding his right to consular access; (2) that Petitioner’s rights were violated when Ohio did not notify the Mexican consulate without delay of Petitioner’s arrest; (3) that Petitioner was denied his rights to communicate with, receive visits from, and have access to the consulate; and (4) that Petitioner was denied his rights to have the consulate arrange for legal counsel. (Id. at 1-2.) Petitioner attached a copy of the ICJ’s decision (“Avena decision”).

On December 7, 2004, Petitioner filed notice of additional authority in support of his third and fourth grounds for relief — his claims that his rights under the Vienna Convention were violated and that his defense counsel were ineffective in their representation of a foreign national. (Doc. # 75.) Petitioner argues specifically that ABA Guideline 10.6 concerning the obligations of counsel representing a foreign national and the decision of Hamblin v. Mitchell, 354 F.3d 482 (6th Cir.2003), where the Sixth Circuit recognized the applicability of the ABA Guidelines in determining the prevailing professional norms by which counsel’s performance is to be judged bolster his third and fourth grounds for relief.

On April 20, 2005, Petitioner filed notice of relevant proceedings, explaining that in Medellin v. Dretke, Case No. 04-5928, the United States Supreme Court had accepted the following questions for review:

1. In a case brought by a Mexican national whose rights were adjudicated in the Avena Judgment, must a court in the United States apply as the rule of decision, notwithstanding any inconsistent United States precedent, the Avena holding that the United States courts must review and reconsider the national’s conviction and sentence, without resort to procedural default doctrines?

2. In a case brought by a foreign national of a State party to the Vienna Convention, should a court in the United States give effect to the LaGrand and Avena Judgments as a matter of international judicial comity and in the interest of uniform treaty interpretation?

(Doc. # 77, at 1.)

On July 21, 2006, Petitioner filed notice of additional authority, to wit: Sanchez-Llamas v. Oregon, 548 U.S. 331, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006). In Sanchez-Llamas, according to Petitioner, the Supreme Court considered whether the exclusionary rule was an appropriate remedy for a Vienna Convention claim and whether procedural default is applicable to such claims. (Doc. # 82, at 1.) Petitioner argues that the decision lends support to his second, third, and fourth grounds for relief by, among other things, endorsing Petitioner’s claim that the Supremacy Clause requires Ohio to comply with the Vienna Convention and assuming without deciding that the Vienna Convention grants individuals enforceable rights.

On March 27, 2008, Respondent filed notice of additional authority — namely, the Supreme Court’s decision in Medellin v. Texas, — U.S.-(2008). In Medellin, according to Respondent, the Supreme Court held that the ICJ’s Avena decision is not enforceable in domestic courts and accordingly does not provide the basis for a viable claim in federal habeas corpus. (Doc. # 86.) Respondent argues that the petitioner in Medellin, like Petitioner herein, was specifically named in the ICJ’s Avena decision and that the Supreme Court decided as to the petitioner in Medellin that Avena was not enforceable in United States courts because the Vienna Convention was not a self-executing treaty and constituted only an obligation of the political branches.

Disagreeing with Respondent’s interpretation, Petitioner filed a response on April 3, 2008 setting forth his own interpretation of the Medellin decision. (Doc. # 87.) In short, according to Petitioner, Medellin does not impact this Court’s review of arguments that Petitioner has made showing how he was prejudiced by the denial of his Article 36 rights. Petitioner argues in the first instance that because Medellin concerned procedurally defaulted claims and Petitioner’s claim is properly before the Court on the merits, Medellin has no application. Petitioner insists that “[t]he heart of the challenge rejected in Medellin was the Mexican National’s attempt to overcome state procedural bars that prevented the consideration of his successive habeas petition by citing the ICJ’s ruling that procedural bars could not be invoked to prevent merits review of Article 36 violations.” (Id. at 3.) Petitioner’s second argument is that because Medellin did not go so far as to bar any domestic remedy for the denial of Article 36 rights, Medellin did not foreclose the availability of habeas corpus relief. Petitioner concludes by reiterating his argument that his claim is meritorious — that his Article 36 rights were violated and that he suffered overwhelming prejudice as a result.

Petitioner presented a bare-bones version of this claim to the state courts in postconviction, obviously without the legal and factual arguments that recent decisions by the ICJ and United States Supreme Court gave rise to. Petitioner argued in his first claim for relief that his trial attorneys were ineffective for failing to utilize the services of a cultural expert and in his fourth claim for relief that Ohio’s death penalty violated international laws and the Supremacy Clause of the United States Constitution. (App. Vol. Ill, at 1412.) Subsequently Petitioner supplemented those claims with the argument that his right of consular access under Article 36 of the Vienna Convention was violated. (Id. at 1607-08.) The trial court rejected his argument, finding among other things that Article 36’s right to consular access “does not equate to a fundamental right, such as the right to an attorney;” that the trial court was aware “of no law, treaty, or judicial precedent which imposes on law enforcement officials an affirmative duty to inform an alien detainee of a right to contact consul;” that Petitioner “fail[ed] to demonstrate how the failure to contact the Mexican consul prejudiced his defense;” and that “[t]he Vienna Convention does not establish any basis for vacation of petitioner’s sentence.” (Id. at 1608-09,