Full opinion text
MEMORANDUM OPINION SARA LIOI, District Judge. Petitioner, John Drummond (“Drummond” or “Petitioner”), has filed an Amended Petition for Writ of Habeas Corpus (“Amended Petition”) pursuant to 28 U.S.C. § 2254. (ECF No. 45.) He challenges his convictions by a Mahoning County jury and the sentence of death recommended by the jury and adopted by the judge. In addition to reviewing Drummond’s petition, the Court has reviewed the Return of Writ (ECF No. 49) filed by Respondent, Mark Houk (“Respondent”), Petitioner’s Traverse (ECF No. 57), Respondent’s Sur-Reply (ECF No. 58), and Petitioner’s Sur-Sur-Reply (ECF No. 59). For the reasons set forth below, Drummond’s Amended Petition for Writ of Habeas Corpus is GRANTED IN PART. I. Factual Background On April 3, 2003, Drummond was indicted by a Mahoning County grand jury, charging him with the following eight counts: (I) aggravated murder of Jiyen Dent Jr. with prior calculation and design; (2) aggravated murder of Jiyen Dent Jr., who was an individual under 13 years of age; (3) attempted murder of Jiyen Dent; (4) attempted murder of Latoya Butler; (5) attempt to cause bodily harm to Jiyen Dent through use of a deadly weapon; (6) attempt to cause bodily harm to Latoya Butler through use of a deadly weapon; (7) discharge of a firearm into an occupied structure; and (8) use of a firearm while under a disability. The two counts of aggravated murder each contained the following two death penalty specifications: (1) the aggravated murder was part of a course of conduct involving the killing or attempt to kill two or more persons; and (2) the aggravated murder that occurred involved the death of an individual under thirteen years of age. Ohio Rev.Code § 2929.04(A)(5) & (A)(9). Each count included a firearm specification. (ECF No. 34, App. Vol. I, at 35-39.) The trial court severed count eight from the other counts and subsequently dismissed it. A jury trial on the remaining counts began with jury selection on January 12, 2004. (ECF No. 35, Trial Tr., Vol. 2, at 101.) The presentation of evidence began on February 2, 2004. (Id., Vol. 12, at 2392.) The facts as stated by the Ohio Supreme Court are as follows: The state presented several witnesses who testified at Drummond’s trial that Drummond and Brett Schroeder were members of the Lincoln Knolls Crips gang and considered themselves “original gangsters,” or “OGs.” Schroeder died from gunshot wounds in May 1998 in a death ruled a homicide. The perpetrator was convicted and is serving time in prison. The Dent family, Jiyen Dent Sr., Latoya Butler, his girlfriend, and their son, Jiyen Dent Jr., had moved into a home at 74 Rutledge Drive in Youngstown around March 20, 1998. Dent did not know Drummond, Wayne Gilliam, or Schroeder. In the early evening of the shooting, a few days after Dent moved in, ten to 20 people gathered for a party outside the home of Gail Miller on Duncan Avenue in Youngstown to drink and listen to music. Sometime that evening, Drummond and Gilliam arrived. During the party, James “Cricket” Rozenblad overheard Drummond, Gilliam, and Andre Bryant talking about a “guy moving in in [their] neighborhood [who] could have had something to do with the death of Brett Schroeder.” Yaraldean Thomas also saw Drummond and Gilliam whispering to one another and heard Drummond say “It’s on” after they finished talking. Drummond left the party and returned a short time later with an assault rifle. He and Gilliam then got into Gilliam’s burgundy Chevrolet Monte Carlo and drove down Duncan Lane toward Rutledge Drive. Approximately five to 15 minutes later, 11 shots were fired from an assault rifle into the Dent home. Within a few seconds, a 9 mm round was fired into the Dent home, and five 9 mm rounds were fired into the home of Diane Patrick, the Dents’ next-door neighbor, who lived at 76 Rutledge Drive. At around 11:25 p.m. that evening, Dent was in the living room watching a movie, Butler was in the kitchen, and Jiyen was in a baby swing in the living room. While watching TV, Dent heard gunshots and saw “bullets start coming through the windows and the walls.” He then picked up the baby and ran down the hallway towards the bathroom. Dent fell in the hallway and noticed that Jiyen had been shot in the head. After making sure that his girlfriend was safe, Dent called 911. That same night, Rebecca Perez, who lived nearby on Rutledge Drive, heard two series of shots when taking her trash outside. She saw shots coming from the corner of Duncan Lane and Rutledge Drive and noticed “a shadow up the street.” Shortly thereafter, Perez saw a maroon car pull out of the driveway next to 65 Rutledge Drive, where Drummond lived. The car then drove without any headlights on past the Perez home. Approximately half an hour to 45 minutes later, Perez noticed that the maroon car had returned to the driveway next to Drummond’s home. At trial, Perez identified Gilliam’s Monte Carlo as the car she had seen that night. Leonard Schroeder, the brother of Brett Schroeder, who had been killed nearly five years before, lived near Rutledge Drive. On the evening of March 24, Leonard heard a series of gunshots. Shortly afterwards, Drummond and Gilliam arrived at Leonard’s home in Gilliam’s car. Leonard asked Drummond about the shots, and Drummond said that he “didn’t know who it is. It was probably Cricket and Wany.” Gilliam said only that “some fools are shooting over there.” Arriving police and paramedics found that Jiyen [Jr.] had been killed. Investigators secured the scene and began their investigation. Officer Kerry Wigley walked down Rutledge Drive, looking for shell casings, and noticed two men in the dark, leaning against a car parked in a driveway. Wigley intercepted the two men, asked for their identification, and identified them as Drummond and Gilliam. State v. Drummond, 111 Ohio St.3d 14, 15-16, 854 N.E.2d 1038 (2006). At the conclusion of the proceedings, the jury convicted Drummond on all counts and specifications. (ECF No. 34, App. Vol. 2, at 95-112.) The penalty phase of the trial began on February 19, 2004. (ECF No. 35, Trial Tr„ Vol. 18, at 3723.) Drummond presented the testimony of five witnesses during the mitigation hearing: his mother, father, the mother of his twin children, a neighbor, and Dr. John Fabian, a clinical psychologist.. Additionally, Drummond made a brief, unsworn statement to the jury. Further facts will be set forth as necessary to resolve the claims raised in the Amended Petition. II. Procedural History A. Direct Appeal Drummond filed a timely notice of appeal to the Ohio Supreme Court on April 8, 2004, challenging his convictions and sentence of death. (ECF No. 34, App. Vol. 3, at 5.) In a brief filed December 21, 2004, Drummond raised the following fourteen propositions of law: 1. Appellant was denied a fair trial when the trial court abused its discretion and overruled his motion in limine to exclude any trial evidence relating to other crimes, wrongs, or acts of appellant contrary to the protections of the Fifth and Sixth Amendments to the United States Constitution. 2. The trial court erred to the prejudice of appellant by prohibiting trial counsel from cross-examining appellee’s witnesses relative to their credibility and veracity involving pending criminal charges. 3. The trial court abused its discretion by overruling appellant’s motions to dismiss the death penalty specifications and denied him a fair trial, contrary to the protections of the Fifth and Fourteenth Amendments to the United States Constitution. 4. Appellant’s right to the effective assistance of counsel was violated when trial counsel’s performance was extremely deficient to appellant’s prejudice, in violation of U.S. Constitution, Amendment VI and Ohio Constitution, Article I, Section 10. 5. The trial court abused its discretion regarding contested evidence and witnesses during the trial, in violation of U.S. Constitution, Amendments V and VI and Ohio Constitution, Section 10. 6. Appellant was denied due process and a fair trial in violation of the United States and Ohio Constitutions when the trial court: A. Failed to record and preserve all sidebar conferences on substantial and significant evidentiary and legal issues. B. Repeatedly permitted leading questions by Appellee on direct examination. C. Repeatedly permitted hearsay testimony and evidence by Appellee’s witnesses on direct examination. 7. The jury view as permitted by the court violated Appellant’s right to a fair trial and due process. 8. A criminal defendant’s due process right to a fair trial is violated when the prosecution engages in extensive, deliberate, misleading and prejudicial misconduct. U.S. Constitution, Amendment VI, XIV; Ohio Constitution, Article I, Section 14. 9. It is prejudicial error for a trial court to sentence Defendant to the death penalty, when, based upon the law and the record of this case, the sentence of death herein is inappropriate and is disproportionate to the penalty imposed in similar cases, in violation of Defendant’s rights as guaranteed to him by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 5, 9, 10, and 16 of Article One of the Ohio Constitution. 10. The proportionality review that this Court must conduct in the present capital case pursuant to Ohio Revised Code Section 2929.05 is fatally flawed and therefore the present death sentence must be vacated pursuant to the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, Sections 5 and 10, Article I of the Ohio Constitution and Ohio Revised Code 2929.05, in violation of Defendant’s rights as guaranteed to him by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 5, 9, 10, and 16 of Article One of the Ohio Constitution. 11. It is error for a trial court to impose a death sentence when the death penalty law as currently applied in Ohio violates R.C. 2929.05(A) by requiring appellate courts and the Supreme Court, in conducting their R.C. 2929.04(A) review of “similar cases” for proportionality, to examine only those cases in which a death sentence was imposed and ignore those in which a sentence of life with parole eligibility after twenty-five full years or life with parole eligibility after thirty full years was imposed. The current method also violated the rights to a fair trial and due process, results in cruel and unusual punishment, and implicates others of Appellant’s protected rights as well, all as set forth in the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and in Sections 1, 2, 5, 9,10,16 and 20, Article I of the Ohio Constitution. 12. R.C. 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04, and 2929.05 as read together and as applied in this case violate the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10, and 16 of Article I of the Ohio Constitution. 13. Ohio’s death penalty law is unconstitutional!.] Ohio Revised Code Ann. & 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04, and 2929.05, do not meet the prescribed constitutional requirements and are unconstitutional on their face and as applied to Appellant. U.S. Const. Amends. V, VI, VIII, XIV, Ohio Const. Art. I, Sections 2, 9, 10, 16, further, Ohio’s death penalty statute violates the United States’ obligations under international law. 14. The trial court denied Appellant due process under the Fourteenth Amendment due to the fact his conviction for aggravated murder with specifications was against the manifest weight of the evidence and the jury’s verdict was inconsistent with the evidence and testimony presented at trial. (ECF No. 34, App. Vol. 3, at 44-47.) On November 4, 2005, the Ohio Supreme Court sua sponte asked the parties to file additional briefs addressing two specific issues: 1. Was the appellant denied his Sixth Amendment right to a public trial when the trial court closed the courtroom to spectators on February 4 and February 5, 2004? 2. What is the appropriate remedy should this Court find that the trial court erred in ordering the courtroom closed? (ECF No. 34, App. Vol. 3, at 219.) Drummond filed his supplemental brief addressing these issues. (ECF No. 34, App. Vol. 3, at 235.) The Ohio Supreme Court affirmed the convictions and sentences, including the sentence of death, on October 18, 2006. State v. Drummond, 111 Ohio St.3d 14, 854 N.E.2d 1038 (2006). B. Post-conviction Proceedings Drummond filed a petition for post-conviction relief on January 28, 2005. He asserted the following 21 grounds for relief: 1. Drummond’s convictions and sentence are void or voidable because he was denied effective assistance of counsel during his capital trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Drummond’s attorneys failed to use the ballistics and firearms reports of a key state’s forensic witness to support the defense’s case at trial. 2. Drummond’s convictions and sentence are void or voidable because he was denied effective assistance of counsel during his capital trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Strickland v. Washington, 466 U.S. 668[, 104 S.Ct. 2052, 80 L.Ed.2d 674] (1984). Defense counsel failed to cross-examine Chappell on why he included a 30-06 bolt-action rifle as “a possible source weapon” in his report. 3. Drummond’s convictions and sentence are void and/or voidable because he was denied effective assistance of counsel during his capital trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Strickland v. Washington, 466 U.S. 668[, 104 S.Ct. 2052, 80 L.Ed.2d 674] (1984). Counsel’s failure to investigate and use Carlini’s ballistics report was unreasonable and prejudicial. Their failure allowed the jury to believe that Drummond was responsible for the fatal shot. 4. Drummond’s convictions and sentence are void and/or voidable because he was denied effective assistance of counsel during his capital trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Strickland v. Washington, 466 U.S. 668[, 104 S.Ct. 2052, 80 L.Ed.2d 674] (1984). Drummond’s trial counsel failed to investigate Jiyen Dent Sr. and his gang affiliations. They also failed to use an audio expert to analyze the critical 9-1-1 tape. 5. The death sentence imposed on Drummond is void or voidable because he did not receive effective assistance of counsel during the penalty phase of his capital trial. Defense counsel’s failure to present available and relevant mitigating evidence from a qualified gang expert prejudiced Drummond. 6. The death sentence imposed on Drummond is void or voidable because he did not receive effective assistance of counsel during the penalty phase of his capital trial. Defense counsel’s failure to present available, relevant, and compelling mitigating evidence to the jury prejudiced Drummond. 7. The death sentence imposed on John Drummond is void or voidable because he did not receive effective assistance of counsel during the penalty phase of his capital trial. Drummond’s attorneys unreasonably delayed their mitigation investigation and failed to properly prepare their expert witness. As a result, jurors did not have relevant, compelling mitigating evidence to weigh and give effect. 8. The death sentence imposed on John Drummond is void or voidable because he did not receive effective assistance -of counsel during the penalty phase of his capital trial. Defense counsel’s failure to present available, relevant, and compelling mitigating evidence to the jury prejudiced Drummond. At Drummond’s trial, defense counsel failed to investigate, prepare, and present mitigating evidence regarding Drummond’s character, history, and background — namely, the dysfunction in his family. This available evidence would have humanized John Drummond and provided the jurors with reasons to spare his life. 9. At Drummond’s trial, defense counsel failed to investigate, prepare, and present mitigating evidence regarding Drummond’s character, history, and background. This available evidence would have humanized John Drummond and provided jurors with reasons to spare his life. Defense counsel failed to present personal firsthand accounts of the environment in which John Drummond lived. 10. At Drummond’s trial, defense counsel failed to investigate, prepare, and present mitigating evidence regarding the negative influences that abounded within Drummond’s family. This evidence would have humanized John Drummond and would have provided his jurors with reasons to spare his life. Drummond was prejudiced by his counsel’s ineffectiveness. A sound mitigation theory cannot be developed unless counsel conducts a reasonable, competent investigation and carefully considers all available evidence. See Powell v. Collins, 328 F.3d 268 (6th Cir.2003). 11. At Drummond’s trial, defense counsel failed to investigate, prepare, and present mitigating evidence regarding Drummond’s character, history, and background. This kind of evidence includes his family background. The evidence available, but not investigated by counsel, would have shown the jury that Drummond’s father was not a proper adult male role model. 12. At Drummond’s trial, defense counsel failed to investigate, prepare, and present mitigating evidence regarding Drummond’s character, history, and background — namely the amputation of his leg when he was sixteen years old. 13. At Drummond’s trial, defense counsel failed to investigate, prepare, and present mitigating evidence regarding Drummond’s character, history, and background. Counsel also failed to object to the prosecutor’s improper mitigation-phase closing argument. 14. Drummond’s convictions and sentence are void or voidable because he did not receive his Sixth Amendment right to effective assistance of counsel at his capital trial. Defense counsel’s failure to investigate left the defense unprepared to rebut the state’s case. 15. Drummond’s convictions and sentence are void or voidable because he did not receive his Sixth Amendment right to effective assistance of counsel at his capital trial. At trial, the state called a neighbor, Wanda Greer, to testify against Drummond. Mrs. Greer’s testimony recounted the party at Dean Thomas’s house on the evening of the shootings. She said that she heard gunshots and that she saw Wayne Gilliam’s car driving back and forth. (T.p. 2607, 2612, 2615) The state also elicited testimony from Mrs. Greer about gang activity in the neighborhood. (T.p. 2617, 2619-20) 16. Drummond had Sixteenth and Fourteenth Amendment rights to a fair trial and due process. The trial judge had an obligation to enforce those rights. But the judge in Drummond’s case entered the proceedings with preconceived notions that tainted Drummond’s capital trial. The judge’s bias violated Drummond’s right to have a fair trial presided over by an impartial judge. 17. The death penalty scheme does not work. Jurors neither understand the law nor apply it when deciding capital cases. In Drummond’s case, members of his jury either misunderstood or completely disregarded the trial court’s instructions, resulting in a death sentence that is void or voidable. Drummond’s case is an example of a capital trial system that is defective. Drummond’s rights under the United States Constitution’s Fifth, Sixth, Eighth, and Fourteenth Amendments were violated, and he was prejudiced. 18. Drummond’s Sixth, Eighth, and Fourteenth Amendment rights to a fair trial and reliable sentence were violated when members of his jury failed to follow the trial court’s instructions of law. Under Ohio’s death penalty scheme, the jury is instructed to weigh aggravating circumstances against mitigating factors. R.C. 2929.04(B). The judge specifically instructed the jurors: “Only the aggravating circumstances may be considered and weighed against the mitigating factors in determining the penalty.” (T.p. 3915) The judge then listed the two indicted statutory aggravating circumstances. (T.p. 3915-16) She went on to instruct the jury: “You may only consider the aggravating circumstances that were just described to you and which accompanied the aggravated murder.” (T.p. 8916) The jury failed to follow these instructions, and Drummond was prejudiced. 19. Drummond’s constitutional right to due process was violated when he was not informed of, and thus not present for, a court proceeding at his capital trial. Drummond states in an affidavit that he did not waive his presence at any court hearings or trial proceedings. (Ex. 24) Yet, the court announced that “John Drummond waived his right to be present during the discussion of the exhibits.” (T.p. 3545) If, as the record seems to reflect, Drummond’s attorneys told the court that their client waived his presence, they did so without his knowledge and consent. 20. The judgment and sentence against Drummond are void or voidable because the death penalty as administered by lethal injection in the state . of Ohio violates his constitutional right to protection from cruel and unusual punishment and to due process of law. U.S. Const. amends. VIII, XIV; Ohio Const. art. I §§ 9, 10, 16; Ohio Adult Parole Authority v. Woodard, 523 U.S. 272[, 118 S.Ct. 1244, 140 L.Ed.2d 387] (1998) (five justices holding that the Due Process Clause protects the “life” interest at issue in capital cases.). 21. Drummond’s judgment and sentence are void or voidable because, assuming arguendo that none of the grounds for relief in his post-conviction petition individually warrant the relief sought from this court, the cumulative effects of the errors and omissions presented in the petition’s foregoing paragraphs have been prejudicial and have denied Drummond his rights secured by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and Article I, Sections 1, 2, 5, 9, 10, 16, and 20 of the Ohio Constitution. (ECF No. 34, App. Vol. 5, at 35-99.) On February 14, 2006, the trial court granted the State’s motion for summary judgment. Drummond filed a timely notice of appeal with the Seventh District Court of Appeals. He raised the following four assignments of error: 1. The trial court erred by dismissing Appellant’s postconviction petition, where he presented sufficient operative facts and supporting exhibits to merit an evidentiary hearing and discovery. 2. The trial court erred by failing to rule on Appellant’s motion for voluntary recusal of the trial judge and then dismissing the postconviction petition without a hearing, thus tainting the postconviction process. 3. Ohio’s postconviction procedures neither afford an adequate corrective process nor comply with due process and equal protection under the Fourteenth Amendment. 4. Considered together, the cumulative errors set forth in Appellant’s substantive grounds for relief merit reversal and remand for a proper post-conviction process. (ECF No. 34, App. Vol. 8, at 41-42.) On December 20, 2006, the Ohio court of appeals affirmed the trial court’s disposition of the post-conviction petition. State v. Drummond, No. 05 MA 197, 2006 WL 3849295 (Ohio Ct.App. Dec. 20, 2006). Thereafter, the Ohio Supreme Court declined to accept Drummond’s appeal for review. State v. Drummond, 113 Ohio St.3d 1512, 866 N.E.2d 512 (Table) (2007). C. Application to Reopen Direct Appeal/ Supreme Court Practice Rule XI Drummond filed a timely application to reopen his direct appeal (“application to reopen” or “Murnahan appeal”) with the Ohio Supreme Court on January 16, 2007. He alleged that his appellate counsel had been ineffective for failing to raise the following four propositions of law, as alleged below: 1. Appellant’s Sixth Amendment right to effective assistance of counsel was violated when his defense attorneys failed to devote sufficient time to preparing for trial; failed to maintain the attorney-client relationship; failed to object to prosecutorial misconduct; failed to object when the trial court vouched for a state’s witness with inappropriate humor; failed to object when the trial court demeaned the proceedings with inappropriate humor; failed to object to or move to strike speculative answers and a state witness’s prejudicial answer regarding remorse; failed to prepare their penalty-phase expert witness; and failed to prepare and present relevant mitigating evidence. U.S. Const. amends. VI, VIII, XIV; Ohio Const. Art. I, §§ 10, 16. 2. The trial court violated Appellant’s Sixth and Fourteenth Amendment rights to a fair trial and due process when it admitted prejudicial photographs during the trial; demeaned the proceedings by using inappropriate humor during trial; improperly vouched for a state witness by using inappropriate humor; failed to grant defense counsel’s objection to a prejudicial identification of an audience member; failed to grant defense counsel’s objection to improper evidence of the defendant’s alleged lack of remorse; and made rulings that prejudiced the defense. U.S. Const. amends. VI, XIV; Ohio Const. Art. I, §§ 10, 16. 3. A capital defendant is denied substantive and procedural due process rights to a fair trial and a reliable sentence when the prosecutor commits acts of misconduct during the capital trial. U.S. Const. Amends. VI, VIII, XIV; Ohio Const. Art. I, §§ 9, 10, 16. 4. The cumulative effect of the errors at trial renders a capital defendant’s trial unfair and his sentence arbitrary and unreliable. U.S. Const. amends. VI, XIV; Ohio Const. Art. I, §§ 9, 16. (ECF No. 34, App. Vol. 4, at 7-8.) The Ohio Supreme Court denied Drummond’s application on April 18, 2007. State v. Drummond, 113 Ohio St.3d 1463, 864 N.E.2d 651 (Table) (2007). With this decision, Drummond’s state court appeals concluded. III. Federal Habeas Corpus Proceeding Drummond filed a notice of intent to file a habeas corpus petition on June 15, 2007. (ECF No. 1.) Although the Court initially appointed counsel to represent Drummond, appointed counsel filed a Motion to Withdraw as Attorney and Request for New Counsel on September 12, 2007. (ECF No. 13.) The Court initially denied the request but later reconsidered its decision, allowing Drummond fourteen (14) days to decide whether he wished to retain his current counsel or request that the Court appoint new counsel. (ECF No. 19.) Drummond indicated that he wished to be represented by new counsel. (ECF No. 23.) The Court granted Drummond’s request and, on November 16, 2007, appointed Timothy C. Ivey of the Office of the Federal Public Defender (“FPD”) and David L. Doughten to represent him. (ECF No. 28.) New counsel sought and obtained permission to file an Amended Petition, which they subsequently filed on May 5, 2008. (ECF No. 45.) Drummond also requested discovery, which the Court denied in part and granted in part. Specifically, the Court permitted Drummond to obtain a ballistics expert to examine the trajectory of the bullets that caused the murder. The Court also permitted habeas counsel to depose defense psychologist Dr. John Fabian and trial counsel James Gentile and Ron Yarwood. (ECF No. 42.) Additionally, the Court granted Drummond’s motion to unseal state court records. (ECF No. 46.) Drummond also made three requests to expand the record pursuant to Habeas Rule 7, to include materials he had obtained during discovery. (ECF Nos. 53, 55, 56.) On October 16, 2008, in three non-document orders, the Court granted each request. Respondent filed his Return of Writ on July 7, 2008. (ECF No. 49.) After requesting and receiving permission for an extension of time, Drummond filed a Traverse on September 22, 2008. (ECF No. 57.) Respondent thereafter filed a SurReply (ECF No. 58), to which Drummond filed a Sur-Sur-Reply (ECF No. 59). In the Amended Petition, Drummond raises the following 13 grounds for relief: 1. The trial court violated Drummond’s right to a public trial under the Sixth and Fourteenth Amendments when, without adequate grounds, the judge closed the courtroom, denying the public access to the trial. (Denial of Public Courtroom) 2. Trial court error deprived Drummond of his rights to confront and cross-examine witnesses, to due process, and a fair trial under the Sixth and Fourteenth Amendments. (Confrontation Violation) 3. Drummond’s constitutional rights to due process and a fair trial were violated when the trial court permitted the introduction of highly prejudicial evidence relating to gangs and weapons unrelated to the charged crimes. (Trial Violated Due Process) 4. The [Petitioner’s] convictions and sentence of death are void or voidable as the trial court violated the [Petitioner’s] rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution by failing to excuse jurors for cause who had indicated that they could not be fair and impartial and the improper dismissal of a juror for cause [who] said he could be fair and impartial. (Improper Juror Dismissal Rulings) 5. The evidence used to support Drummond’s convictions and sentence is insufficient under the Sixth and Fourteenth Amendments. (Actual Innocence-Sufficiency of Evidence) 6. The trial court violates a capital defendant’s rights to a fair trial and due process when, as in Drummond’s case, the judge manifests the appearance of bias against the defendant, in violation of the Sixth and Fourteenth Amendments to the United States Constitution. (Manifested Judicial Bias) 7. Trial counsel violated Drummond’s Sixth Amendment right to effective assistance of counsel when they failed to reasonably investigate the case, use available evidence to present a defense, and advocate on their client’s behalf. (Culpability Phase IAC [Ineffective Assistance of Counsel]) 8. Trial counsel violated Drummond’s Sixth Amendment right to effective assistance of counsel at the penalty phase when they failed to make a timely and reasonable investigation of his character, history, and background. Counsel’s mitigation presentation was deficient and deprived the jurors of evidence that was worthy of weight and effect. (Penalty Phase IAC [Ineffective Assistance of Counsel]) 9. Drummond was denied his right to effective assistance of counsel in his direct appeal to the Ohio Supreme Court, in violation of the Sixth and Fourteenth Amendments to the United States Constitution. (Ineffective Assistance of Counsel-Direct Appeal) 10. The prosecutors committed acts of misconduct during the capital trial, violating Drummond’s substantive and procedural due process rights to a fair trial and reliable sentence under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (Misconduct of Prosecutor) 11. The Ohio Supreme Court’s arbitrary refusal to review life sentences imposed in similar cases as part of the statutorily mandated proportionality review denied Drummond due process of law guaranteed by the Fourteenth Amendment. (Proportionality) 12. Petitioner Drummond’s convictions and death sentence are invalid because the cumulative effect of the constitutional errors set forth in this Habeas Corpus Petition violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Cumulative Error) 13. [The] Ohio statutory scheme for the implementation of the death penalty is unconstitutional. (Constitutional Challenge) (ECF No. 45, passim.) Upon reviewing the parties’ briefs, on January 26, 2010, the Court issued an Order to Show Cause (ECF No. 61) wherein the Court required Respondent to show cause why the Court should not hold an evidentiary hearing on Drummond’s claim of ineffective assistance of counsel during the mitigation, or penalty, phase of the trial. Drummond asserted in the Amended Petition that trial counsel provided Dr. Fabian, the defense expert, with insufficient time and records to present a constitutionally adequate representation during the penalty phase of his trial. The depositions of Dr. Fabian and trial counsel Gentile and Yarwood presented competing pictures of the defense team’s mitigation investigation and preparation. While both parties conceded that Dr. Fabian did not perform well during his mitigation testimony, Dr. Fabian faulted counsel for his failures. He maintained that counsel did not provide him with adequate time to prepare, did not obtain a gang expert despite his request for one, and failed to provide him with information regarding Drummond’s half-brother, Michael Brooks. Trial counsel disputed most of Dr. Fabian’s allegations. First, counsel claimed that Dr. Fabian indicated he could testify about Drummond’s involvement with gangs. Counsel also disputed that Dr. Fabian ever asked them for additional time to prepare for his testimony. Counsel also were unaware of any documents or information that Dr. Fabian believed he lacked, including information regarding Michael Brooks. The Court therefore issued the Order to Show Cause for Respondent to explain why an evidentiary hearing was not necessary to resolve these factual disputes. When neither party articulated a reason why the Court should not hold a hearing, the Court set a hearing date for May 20, 2010. (ECF No. 66.) After habeas counsel requested and received two continuances, the Court re-set the evidentiary hearing for July 19 and 20, 2010. (ECF No. 75.) Thereafter, the parties filed a Joint Motion to Clarify Scope of Evidentiary Hearing. (ECF No. 83.) Habeas counsel argued that Drummond’s family members should be permitted to testify to demonstrate the prejudice necessary to establish an ineffective assistance claim. Conversely, Respondent believed that the purpose of holding an evidentiary hearing was to resolve the factual disputes between Dr. Fabian and Petitioner’s trial counsel, and the hearing therefore should be limited to their testimony alone. The Court determined that it would allow the testimony of Drummond’s family members, if only to obviate the need for it at some later date and to create a full record for appellate purposes. (ECF No. 85.) Thereafter, the Court held the evidentiary hearing. The pertinent testimony and outcome of this evidentiary hearing is discussed below under Section VI(H), which addresses Petitioner’s Eighth Ground for Relief. IV. Standard of Review The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which amended 28 U.S.C. § 2254, was signed into law on April 24, 1996. In Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), the Supreme Court held that the provisions of AEDPA apply to habeas corpus petitions filed after that effective date. See also Woodford v. Garceau, 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003); Barker v. Yukins, 199 F.3d 867, 871 (6th Cir.1999) (“It is now well settled that AEDPA applies to all habeas petitions filed on or after its April 24, 1996 effective date.”). Because Drummond’s petition was filed on October 12, 2007, AEDPA governs this Court’s consideration of his petition. AEDPA was enacted “to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases, and ‘to further the principles of comity, finality, and federalism.’ ” Woodford, 538 U.S. at 206, 123 S.Ct. 1398 (quoting Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000)). The requirements of AEDPA “create an independent, high standard to be met before a federal court may issue a writ of habeas corpus to set aside state-court rulings.” Uttecht v. Brown, 551 U.S. 1, 10, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007) (citations omitted). Section 2254(d) provides: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). This legal standard establishes a multi-faceted analysis involving a consideration of both the state court’s statement and/or application of federal law and its finding of facts. With respect to Section 2254(d)(1), “clearly established federal law” refers to the holdings, as opposed to dicta, of the Supreme Court’s decisions as of the time of the relevant state-court decision. Williams, 529 U.S. at 412, 120 S.Ct. 1495; Barnes v. Elo, 231 F.3d 1025, 1028 (6th Cir.2000). The “contrary to” and “unreasonable application” clauses of Section 2254(d)(1) are independent tests and must be analyzed separately. Williams, 529 U.S. at 412-13, 120 S.Ct. 1495; Hill v. Hofbauer, 337 F.3d 706, 711 (6th Cir.2003). A state court decision is “contrary to” federal law only “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13, 120 S.Ct. 1495. Even if the state court identifies the “correct governing legal principle,” a federal habeas court may still grant the petition if the state court makes an “unreasonable application” of “that principle to the facts of the particular state prisoner’s case.” Williams, 529 U.S. at 413, 120 S.Ct. 1495. A state court decision also involves an unreasonable application if it unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Hill, 337 F.3d at 711 (citing Williams, 529 U.S. at 407, 120 S.Ct. 1495). As the Supreme Court has advised, “[t]he question under AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (citing Williams, 529 U.S. at 410, 120 S.Ct. 1495). The reasonableness of the application of a particular legal principle depends in part on the specificity of the relevant rule. Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). While the application of specific rules may be plainly correct or incorrect, courts may have more leeway in reasonably applying more general rules in the context of a particular case. Id. As to the “unreasonable determination of the facts” clause in Section 2254(d)(2), the Supreme Court’s application of that section in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), provides guidance. In Wiggins, the Court noted that a “clear factual error,” such as making factual findings regarding the contents of social service records contrary to “clear and convincing evidence” presented by the defendant, constitutes an “unreasonable determination of the facts in light of the evidence presented.” Id. at 528-29, 123 S.Ct. 2527. In other words, a state court’s determination of facts is unreasonable under Section 2254(d)(2) if its findings conflict with clear and convincing evidence to the contrary. This analysis mirrors the “presumption of correctness” afforded factual determinations made by a state court which can only be overcome by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Mitchell v. Mason, 325 F.3d 732, 737-38 (6th Cir.2003); Clark v. O’Dea, 257 F.3d 498, 506 (6th Cir.2001) (“[RJegardless of whether we would reach a different conclusion were we reviewing the case de novo, the findings of the state court must be upheld unless there is clear and convincing evidence to the contrary.”). This presumption only applies to basic, primary facts, and not to mixed questions of law and fact. See Mitchell, 325 F.3d at 737-38 (holding ineffective assistance of counsel is mixed question of law and fact to which the unreasonable application prong of Section 2254(d)(1) applies). By its express terms, however, Section 2254(d)’s constrained standard of review only applies to claims that were adjudicated on the merits in the state court proceeding. See Clinkscale v. Carter, 375 F.3d 430, 436 (6th Cir.2004). When a state court does not assess the merits of a petitioner’s habeas claim, the deference due under AEDPA does not apply. In such a case, the habeas court is not limited to deciding whether the state court’s decision was contrary to or involved an unreasonable application of clearly established federal law, but rather conducts a de novo review of the claim. See Morales v. Mitchell, 507 F.3d 916, 929 (6th Cir.2007) (citations omitted); Newton v. Million, 349 F.3d 873, 878 (6th Cir.2003); Maples v. Stegall, 340 F.3d 433, 436 (6th Cir.2003). However, if the state court conducts a harmless error analysis but does not indicate whether its finding is based on state or federal constitutional law, a habeas court, while conducting an independent review of the facts and applicable law, must nonetheless determine “whether the state court result is contrary to or unreasonably applies clearly established federal law.” Maldonado v. Wilson, 416 F.3d 470, 476 (6th Cir.2005) (citing Harris v. Stovall, 212 F.3d 940, 943 (6th Cir.2000)). V. Exhaustion and Procedural Default A. Exhaustion A state prisoner must exhaust his state remedies before bringing his claim in a federal habeas corpus proceeding. 28 U.S.C. § 2254(b), (c); see Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Exhaustion is fulfilled once a convicted defendant seeks review of his or her claims on the merits from a state supreme court. O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). A habeas petitioner satisfies the exhaustion requirement when the highest court in the state in which the petitioner has been convicted has had a full and fair opportunity to rule on the claims. Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994) (citing Manning v. Alexander, 912 F.2d 878, 881 (6th Cir.1990)). If, under state law, there remains a remedy that a petitioner has not yet pursued, exhaustion has not occurred, and the federal habeas court cannot entertain the merits of the claim. See id. A petitioner “ ‘cannot obtain federal habeas relief under 28 U.S.C. § 2254 unless he has completely exhausted his available state court remedies to the state’s highest court.’ ” Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir.2001) (quoting Coleman v. Mitchell, 244 F.3d 533, 538 (6th Cir.2001)). Rather than dismiss certain claims the court deems unexhausted, however, a habeas court need not wait for exhaustion if it determines that a return to state court would be futile. See Lott v. Coyle, 261 F.3d 594, 608 (6th Cir.2001). In circumstances where the petitioner has failed to present a claim in state court, a habeas court may deem that claim procedurally defaulted because the Ohio state courts would no longer entertain the claim. See Buell, 274 F.3d at 349. To obtain a merit review of the claim, the petitioner must demonstrate cause and prejudice to excuse his failure to raise the claim in state court, or that a miscarriage of justice would occur were the habeas court to refuse to address the claim on its merits. Seymour v. Walker, 224 F.3d 542, 550 (6th Cir.2000) (citing Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). B. Procedural Default In general, a federal court may not consider “contentions of federal law which are not resolved on the merits in the state proceeding due to petitioner’s failure to raise them as required by state procedure.” Sykes, 433 U.S. at 87, 97 S.Ct. 2497. If a “state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims 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). To be independent, a state procedural rule and the state courts’ application of it “must rely in no part on federal law.” Fautenberry v. Mitchell, No. C-1-00-332, 2001 WL 1763438, at *24 (S.D.Ohio Dec. 26, 2001) (citing Coleman, 501 U.S. at 732-733, 111 S.Ct. 2546). To be adequate, a state procedural rule must be “ ‘firmly established and regularly followed’ ” by the state courts at the time it was applied. Beard v. Kindler, - U.S. -, 130 S.Ct. 612, 618, 175 L.Ed.2d 417 (2009) (quoting Lee v. Kemna, 534 U.S. 362, 375, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002)). If a petitioner failed to timely present any federal habeas claims to the state courts but has no remaining state remedies, then the petitioner has procedurally defaulted those claims. See Boerckel, 526 U.S. at 848, 119 S.Ct. 1728; Rust, 17 F.3d at 160. In Maupin v. Smith, 785 F.2d 135 (6th Cir.1986), the Sixth Circuit outlined the now familiar test to be followed when the State argues that a habeas claim is defaulted because of a prisoner’s failure to observe a state procedural rule. The Circuit later summarized the Maupin four-part test as follows: First, the federal court must determine whether there is a state procedural rule that is applicable to the petitioner’s claim and whether the petitioner failed to comply with that rule. Second, the federal court must determine whether the state courts actually enforced the state procedural sanction — that is, whether the state courts actually based their decisions on the procedural rule. Third, the federal court must consider whether the state procedural rule is an adequate and independent state ground on which the state can rely to foreclose federal review of a federal constitutional claim. [¶]... ] Fourth, if the federal court answers the first three questions in the affirmative, it would not review the petitioner’s procedurally defaulted claim unless the petitioner can show cause for not following the procedural rule and that failure to review the claim would result in prejudice or a miscarriage of justice. Williams v. Coyle, 260 F.3d 684, 693 (6th Cir.2001) (citing Maupin, 785 F.2d at 138) (further citations omitted). In determining whether the Maupin factors are met, the federal court looks to the “last explained state-court judgment.” Ylst v. Nunnemaker, 501 U.S. 797, 805, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Combs v. Coyle, 205 F.3d 269, 275 (6th Cir.2000). “ ‘[A] procedural default does not bar consideration of a federal claim on habeas corpus review unless the last state court rendering a reasoned opinion in the case clearly and expressly states that its judgment rests on a state procedural bar.’ ” Morales, 507 F.3d at 937 (quoting Frazier v. Huffman, 343 F.3d 780, 791 (6th Cir.2003)). Conversely, if the last state court to be presented with a particular federal claim reaches the merits, then the procedural bar is removed and a federal habeas court may consider the merits of the claim in its review. See Ylst, 501 U.S. at 801, 111 S.Ct. 2590. If the first three Maupin factors are met, the claim is procedurally defaulted. However, the federal court may excuse the default and consider the claim on the merits if the petitioner demonstrates that (1) there was cause for him not to follow the procedural rule and that he was actually prejudiced by the alleged constitutional error, or (2) a fundamental miscarriage of justice would result from a bar on federal habeas review. See Maupin, 785 F.2d at 138; Hutchison v. Bell, 303 F.3d 720, 735 (6th Cir.2002); Combs, 205 F.3d at 274-275 (citing Coleman, 501 U.S. at 750, 111 S.Ct. 2546). A petitioner can establish cause in two ways. First, a petitioner may “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); Mohn v. Bock, 208 F.Supp.2d 796, 801 (E.D.Mich.2002). Objective impediments include an unavailable claim or interference by officials that made compliance impracticable. Murray, 477 U.S. at 488, 106 S.Ct. 2639; Mohn, 208 F.Supp.2d at 801. Second, constitutionally ineffective assistance of counsel constitutes cause. Murray, 477 U.S. at 488-89, 106 S.Ct. 2639; Rust, 17 F.3d at 161; Mohn, 208 F.Supp.2d at 804-05. If a petitioner asserts ineffective assistance of counsel as cause for a default, that ineffective assistance claim must itself be presented to the state courts as an independent claim before it may be used to establish cause. Murray, 477 U.S. at 488-489, 106 S.Ct. 2639. If the ineffective assistance claim is not presented to the state courts in the manner that state law requires, that claim is itself procedurally defaulted and can only be used as cause for the underlying defaulted claim if the petitioner demonstrates cause and prejudice with respect to the ineffective assistance claim. Edwards v. Carpenter, 529 U.S. 446, 452-53, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). To establish prejudice, a petitioner must demonstrate that the constitutional error “ ‘worked to his actual and substantial disadvantage.’ ” Perkins v. LeCureux, 58 F.3d 214, 219 (6th Cir.1995) (quoting United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (emphasis in original)). “When a petitioner fails to establish cause to excuse a procedural default, a court does not need to address the issue of prejudice.” Simpson v. Jones, 238 F.3d 399, 409 (6th Cir.2000) (citations omitted). Because “the cause and prejudice standard is not a perfect safeguard against fundamental miscarriages of justice,” the Supreme Court has recognized “a narrow exception to the cause requirement where a constitutional violation has ‘probably resulted’ in the conviction of one who is ‘actually innocent’ of the substantive offense.” Dretke v. Haley, 541 U.S. 386, 392, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004) (quoting Murray v. Carrier, 477 U.S. at 495-96, 106 S.Ct. 2639). When the Supreme Court extended this exception to claims of capital sentencing error, it limited the exception in the capital sentencing context to cases in which the petitioner could show “ ‘by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.’ ” Id. (quoting Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992)). VI. Analysis of Grounds for Relief A. First Ground for Relief — Denial of Public Courtroom Drummond asserts that his Sixth Amendment right to a public trial was violated when the trial court closed the courtroom for portions of his trial on February 4 and February 5. This issue was addressed by the Ohio Supreme Court on direct appeal and, therefore, this Court may review this ground for habeas relief. 1. Factual Background and Procedural History On February 4, 2004, the direct examination of James “Cricket” Rozenblad during Drummond’s trial took place. (ECF. No. 35, Trial Tr. Vol. 14 at 2933-2951.) At the start, Rozenblad testified that he was nervous. (Id. at 2933.) Before his cross-examination began and immediately following the luncheon recess, outside the presence of the jury, the trial court announced: Ladies and gentlemen that are here to watch the trial, the Court is going to clear the courtroom for the remainder of the afternoon. You are invited back tomorrow morning at 9 o’clock in the morning. Okay? Deputies, clear the courtroom. And leave the building, not only to leave the courtroom but leave the building. See everybody tomorrow at 9:00. (ECF No. 35, Trial Tr., Vol. 14, at 2967-68.) After the courtroom was cleared of spectators, and still outside the presence of the jury, the trial court explained the reasons for the partial closure: The Court: It’s come to the attention of the Court that some of the jurors — or witnesses feel threatened by some of the spectators in the court. The Court’s making a decision that until we get through the next couple of witnesses I’m going to clear the courtroom. That includes the victim’s family, the defendant’s family and all other spectators. The Court had two incidents yesterday involving one of the spectators where he showed total disrespect to the Court in chambers and gave the deputies a very hard time. I didn’t hold him in contempt of court, but just after that then another individual — there was a physical altercation between that individual who also came to watch the trial. His name’s Damian Williams. * * * * * The Court: Who ultimately got charged with assault on a peace officer. So over the objection of the defendant I’m clearing the courtroom just for today only. Mr. Gentile? [Defense Counsel] Mr. Gentile: Yes, your Honor. We would object to the Court’s ruling. The defendant is entitled to a public trial under the United States Constitution. I don’t disagree that there has been some sort of misconduct here that has been brought to my attention. However, that has not been attributable to the defendant, to Mr. Drummond, and we, therefore, don’t think that he should be punished in terms of not having the support, people — his family, that in the nature of this case, a capital case, that he would require making. The Court: Just to perfect the record, I do believe that the one individual who was not charged with contempt of court yesterday, Michael Peace, is in fact John Drummond’s brother. [Prosecuting Attorney] Mr. Franken: No. The Court: No? Mr. Franken: Michael Peace says he’s family. Others have said he isn’t. He told Deputy Schmuck that he was family to Drummond. He’s not a brother though. The Court: Right. And we go back to when we were seating the jury and John Drummond approached a potential juror’s husband in the jail, so. There’s been a string of things. Just to make the record. * * * * * * The Court: * * * We would all agree that the media is permitted in so at least we have a record by a disinterested outside source. Mr. Gentile: Yes, Your Honor. The Court: Let me see the prosecutor, [sic] Kelly. I’m going to allow the press in at least so we can have — . Id. at 2968-71 (ellipses added). Following this explanation, the jurors were brought in and the trial continued with only the parties, attorneys, court staff, and members of the media. The trial court memorialized its order in an entry dated February 5, 2004, stating, in full: Due to the behavior of some of the Courtroom spectators and the fear of retaliation expressed by various witnesses, the Court, upon motion of the State, ordered all spectators removed from the Court for the duration of February 4, 2004 beginning at 1:30 p.m. This over the objection of the Defendant. The media will be permitted access. (ECF No. 34, App. to Return, Vol. 2, at 81.) The clearing of the courtroom occurred for the testimony of three witnesses for the prosecution: James “Cricket” Rozenblad (cross-examination only), Nathaniel Morris, and Yaraldean Thomas, who were the last three witnesses for the day. See Drummond, 111 Ohio St.3d at 22, 854 N.E.2d 1038. After Rozenblad and Morris testified, they, too, were directed by the Court to “leave the building.” (ECF No. 35, Trial Tr., Vol. 14, at 2993 (Rozenblad) 3061, (Morris).) The next day, on February 5, 2004, prior to calling witness Leonard Schroeder, the prosecuting attorney asked for a side bar, after which the trial court announced in front of the jury: [A]t this time I’m going to clear the courtroom until another witness is called. So for the people that are spectators in the courtroom, you may remain in the courthouse but you probably will not be permitted back in till about quarter till 3:00 or so. (ECF No. 35, Trial Tr., Vol. 15, at 3262.) The court cleared the courtroom, again allowing only Drummond, attorneys, court staff, jurors, and members of the media to be present for the testimony of Leonard Schroeder. Id. That same day, the trial court memorialized its order in an entry stating: Due to the safety concerns expressed by witness Leonard Schroeder Jr., the Court ordered the Courtroom closed (February 5, 2004) to all except the media during his testimony only. This without objection from either party. (ECF No. 49, App. to Return, Vol. 2, at 82.) Drummond appealed his conviction and sentence to the Ohio Supreme Court as of right. On November 4, 2005, the Ohio Supreme Court ordered supplemental briefing on the issue of whether the partial closures deprived Drummond of his Sixth Amendment right to a public trial. Drummond, 111 Ohio St.3d at 19, 854 N.E.2d 1038. The Ohio Supreme Court ultimately determined that Drummond’s right to a public trial was not violated, and it affirmed his conviction and sentence. See id. at 24, 854 N.E.2d 1038; infra. Drummond alleges in his Amended Petition that he was deprived of his right to a public trial. 2. Analysis Drummond contends that the February 4 and February 5 partial closures each violated his Sixth Amendment right to a public trial. Drummond procedurally defaulted his claim with respect to the February 5 partial closure. As to the February 4 partial closure, this Court finds that the Ohio Supreme Court’s rejection of Drummond’s claim was objectively unreasonable. Each will be discussed seriatim. a. February 5 Partial Closure The Ohio Supreme Court held that Drummond failed to object to the February 5 partial closure, and thus his claim of right to a public trial was waived with respect to that partial closure. Drummond, 111 Ohio St.3d at 24, 854 N.E.2d 1038. “The failure to object contemporaneously is a generally recognized, firmly established independent and adequate state law ground for refusing to review trial errors.” Burton v. Bock, 187 Fed.Appx. 465, 470 (6th Cir.2006) (citing Coleman, 501 U.S. at 747, 111 S.Ct. 2546). Because Drummond failed to comply with a state procedure to have his February 5 partial closure claim heard by the state courts, he has procedurally defaulted this claim. Edwards, 529 U.S. at 451, 120 S.Ct. 1587. Thus, for his claim to be cognizable in this Court, Drummond must show cause and prejudice for his procedural default. Id. Drummond argues that his trial counsel were ineffective for failing to object to the February 5 partial closure, and that this constitutes cause for his procedural default. As stated above, ineffective assistance of counsel can constitute cause and prejudice excusing a procedural default of an underlying claim. Beuke v. Houk, 537 F.3d 618, 631 (6th Cir.2008) (citing Franklin v. Anderson, 434 F.3d 412, 418 (6th Cir.2006)). However, a claim of ineffective assistance of counsel, asserted as cause for procedural default, can itself be procedurally defaulted. Edwards, 529 U.S. at 452-53, 120 S.Ct. 1587. In his briefing, Drummond never presented to the Ohio Supreme Court the issue of ineffective assistance with respect to failing to object to the February 5 partial closure. Drummond argues that a closed, off-record, in-chambers discussion preceded the trial judge’s decision to close the courtroom on February 5, 2004, and that, as a result, “there is no indication in the transcript as to whether or not Drummond or his defense counsel did object in chambers to the subsequent closure.” (ECF No. 57, at 10 (emphasis in original).) Put another way, Drummond argues that, because there was no record as to whether his trial counsel objected to the February 5 partial closure, his appellate counsel w