Brinkley v. Houk (866 F. Supp. 2d 747, 2011)

MEMORANDUM OF OPINION AND ORDER

JOHN R. ADAMS, District Judge.

Petitioner, Grady Brinkley (“Brinkley” or “Petitioner”), has filed a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. (ECF 15). He challenges his conviction and sentence for the aggravated murder of Shantae Smith that were imposed by the Lucas County, Ohio Common Pleas Court. Brinkley also asserts that the Ohio death penalty statutes, R.C. 2903.01 through 2929.05, are unconstitutional. Along with the Petition, the Court has reviewed the Respondent, Marc C. Houk’s (“Respondent”), Return of Writ (ECF 47), the Petitioner’s Traverse (ECF 53) and the Respondent’s Sur-reply. (ECF 54). For the following reasons, Brinkley’s Petition for Writ of Habeas Corpus is denied.

I. Factual Background

Brinkley was indicted three times. The first indictment, July 7, 2000, included counts of aggravated murder with prior calculation and design, the offense committed while the offender was committing aggravated robbery and aggravated murder in the course of an aggravated robbery. The second indictment on August 14, 2000, added the aggravating circumstance of committing the crime for the purpose of escaping detection, apprehension, or punishment for another offense committed by the offender. The final indictment, which occurred on October 24, 2000, consisted of five counts: (1) aggravated robbery of the City Diner on November 6, 1999, with a firearm specification, in violation of R.C. 2911.01(A)(1); (2) robbery of the City Diner, in violation of R.C. 2911.02(A)(2); (3) aggravated murder of Shantae Smith on January 7, 2000, in violation of R.C. 2903.01(A) (i.e., purposely causing death with prior calculation and design), and including the (A)(3) and (A)(7) aggravating circumstances; (4) aggravated murder of Shantae Smith on January 7, 2000, in violation of R.C. 2903.01(B) (i.e., felony murder), and including the (A)(3) and (A)(7) aggravating circumstances and; (5) aggravated robbery of Shantae Smith on January 7, 2000, in violation of R.C. 2911.01(A)(3).

Attorneys Timothy F. Braun and David L. Klucas were appointed to represent Brinkley on November 30,1999. Apx. Vol. 1, pg. 19. On September 15, 2000, July 18, 2000 and August 4, 2000, Donald Cameron and Ronnie L. Wingate were appointed to represent Brinkley replacing Klucas and Braun. Apx. Vol. 1, pg. 43, Vol. 2, pgs. 16, 31. He entered a plea of not guilty on November 3, 2000. Tr. Vol. 1, pgs. 2, 3. On the same day, the State requested, and the trial court granted, dismissal of the first two indictments as well as the case related to the City Diner robbery. Apx. Vol. 1, pg. 47.

Brinkley appeared in court on September 26, 2001. On that date the court set a trial date for January 9, 2002, a pretrial conference for October 4, 2001 and a suppression hearing for October 26, 2001. Tr. Vol. 4, pgs. 1-18. On January 16, 2002, the court denied Brinkley’s Motion to Suppress. Apx. Vol. 4, pg. 198.

At a hearing on December 4, 2001, the court, granting Brinkley’s Motion to Change the Trial Date, continued the trial until April 3, 2002. Tr. Vol. 4, pg. 3.

Another hearing was held on March 21, 2002 at which time Brinkley’s counsel moved to withdraw. Tr. Vol. 4, pgs. 2-16. On March 27, 2002, the court replaced them with Merle Dech and John Thebes. Trial was reset for September 23, 2002. Tr. Vol. 4, pgs. 2-10.

On May 1, 2002, Brinkley filed a Motion for Relief from Prejudicial Joinder to sever the City Diner robbery charge which the court denied on September 5, 2002. Apx. Vol. 4, pg. 238, Tr. Vol. 4, pg. 16.

Trial commenced on September 18, 2002. Tr. Vol. 5-9, pgs. 2-1160. Opening statements began on September 24, 2002. Tr. Vol. 10, pg. 1178. Before the opening statements began, counsel for Brinkley again moved for severance of the City Diner robbery charges. The Motion was denied, but counsel was allowed a continuing objection as to each witness that would testify as to those charges. Tr. Vol. 9, pgs. 1162-63.

The facts as stated by the Ohio Supreme Court are as follows:

On November 6, 1999, Grady “Snoop” Brinkley, defendant-appellant, robbed Rick’s City Diner in Toledo, and police pursued and arrested him that same afternoon. On December 17, 1999, Brinkley’s girlfriend, Shantae Smith, posted bond for him, and he was released from pretrial confinement. On January 7,2000, Brinkley killed Smith in her apartment by cutting her throat. Then he stole her ATM card and winter coat and fled to Chicago. On January 13, 2000, the FBI arrested Brinkley in Chicago. Thereafter, Brinkley was convicted of the aggravated robbery of the City Diner and the aggravated robbery and aggravated murder of Smith and was sentenced to death.

City Diner Robbery

In November 1999, Brinkley worked at Rick’s City Diner on Monroe Street in Toledo. Though scheduled, Brinkley did not report for work on November 6, but he arrived at the diner at 1:00 p.m. and told the staff that he was waiting for the owner. At times, Brinkley waited inside the diner and joked with Marissa Brown, the hostess. At other times, he waited outside with Olivia Hunter, who had driven him to the diner. After the 2:00 p.m. closing time, Brown counted the money in the cash register, placed a bank deposit slip and the day’s proceeds, $2,211, into a paper bag, and put the paper bag into her orange purse.

After Brown got into her car, Brinkley “came up with a [silver] gun and told [Brown] to give him the bag.” Brown “thought he was joking” and “slapped the gun out of [her] face.” In response, Brinkley “cocked the gun back and then punched [her] and told [her] he wasn’t playing, so [she] gave him the bag.” Brinkley then demanded her orange purse and car keys and “told [her] to get out of [her] car and run.” Hunter confirmed that Brinkley had a small, “silver” handgun with him that day.

After Hunter and Brinkley drove off, Brown went back into the diner and told the cook, “Snoop robbed us.” The cook noticed that Brown’s “mouth [was] full of blood” and “she was all scared.” Toledo police were called and responded. Hunter testified that after Brinkley got back into her car, he told her to drive him to ,the Greyhound bus station. He then changed his mind and directed Hunter to drive to a house on Junction Street. Once there, Brinkley introduced Hunter to his girlfriend, Shantae Smith, and gave the orange purse to an older man. Then Hunter drove Brinkley to an apartment complex in Toledo. Police later recovered the purse, which contained the City Diner bank-deposit slip, from a trash can behind that Junction Street house.

After talking with witnesses at the City Diner, police traced Hunter and Brinkley to the Toledo apartment complex and arrested them that afternoon. Police found $800 hidden in Brinkley’s sock and recovered $400 from Hunter. However, police never recovered the balance of the City Diner receipts, approximately $1,011.

Events After the Robbery and Before the Murder

On December 3, 1999, Brinkley was arraigned on the City Diner robbery charge, and a bond of $20,000 was set. A pretrial hearing was scheduled for January 6, 2000, and Brinkley’s trial was scheduled for January 18, 2000. Brinkley was confined in the county jail from November 6 until being released on bond on December 17, 1999. Brinkley’s 18-year-old girlfriend, Smith, changed her life after BrinHey’s arrest. She moved into an apartment on Collingwood, started a new job, and met new co-workers and friends, Lamont Pettaway and Valarie Vasquez. Smith told Vasquez that she wanted to “be free from” Brinkley, and she told Vasquez and Pettaway that she was afraid of Brinkley. Smith became romantically involved with Pettaway; they planned to live together and talked of marriage. While in the county jail, Brinkley talked with fellow inmate Samuel Miller about the City Diner robbery. Brinkley told Miller that he had “waited on [Brown] to come out and stuck the pistol in her face and took the money from her.” Brinkley told Miller that “the gun was real.” Brinkley told Miller that Brinkley’s girlfriend, Smith, had visited him every week during most of November but less frequently after Thanksgiving. Brinkley also told Miller that Smith “was sleeping with [a co-worker] and riding back and forth to work with him, and she [Smith] wanted to know * * * was [Brinkley] going to do anything to her if she got him out on bond.” Brinkley told Miller that “he played along with [Smith] so she can go ahead and pay the bond. * * * [But] when he got out he was going to hit a lick [i.e., get some cash],” and he “wasn’t coming back to court * *' * on the robbery charge.” Instead, he “was going back home, to Chicago.” Brinkley also said, “I’m going to kill that bitch [Smith] before I leave town.”

On December 17, 1999, Smith withdrew $2,000 from her Huntington Bank account and arranged with a bail bond company to post a $20,000 bond to secure Brinkley’s release. Smith and Brinkley each personally guaranteed payment of $20,000 if Brinkley did not show up for future court appearances. Brinkley was released that day, and after his release, he stayed with Smith at her Collingwood apartment.

On January 6, 2000, at approximately 12:35 p.m., Smith withdrew $50 from her bank account using her Huntington Bank automatic teller machine (ATM) card. That day, Smith worked her normal shift of 3:00 p.m. until 11:00 p.m. In the early morning of January 7, Pettaway dropped her off at home after work. Smith never arrived at work that afternoon.

On January 6, 2000, Brinkley did not appear for his pretrial hearing on the City Diner robbery charge, and the trial court issued a capias warrant for Brinkley’s arrest. Ameritech business records establish that on January 6 and 7, several telephone calls were made from Smith’s home telephone to the Greyhound bus terminal, and on January 7, a call was made to the Huntington Bank. Also on January 7, a call was placed from the Chicago residence of Brinkley’s mother to Smith’s telephone number. Huntington Bank records show that on January 7, 2000, someone tried 16 times to use Smith’s Huntington ATM card in various ATMs to access her bank funds. These attempts failed because no valid personal identification number (PIN) was entered. Nine of these attempts to use Smith’s ATM card occurred between 3:37 p.m. and 3:42 p.m. at the Madison Avenue ATM that Smith herself had successfully used the previous day. Photographs taken at the ATM do not fully reveal the face of the person who tried to withdraw funds. A Huntington Bank investigator explained that the ATM cameras, set for users of average height, did not capture the user’s face because the user was too tall. Brinkley is six feet, four inches tall. The photos do depict a male wearing a winter coat identical to a coat that Smith owned. Smith’s blue winter coat was later recovered from Brinkley in Chicago. According to Greyhound Bus Company business records, a prepaid ticket was purchased in Chicago at 3:29 p.m., CST, on January 7, 2000, and electronically forwarded for pickup in Toledo. The password needed to pick up the ticket was Alberta, the name of Brinkley’s mother. The ticket was issued for a Grady Brinkley to travel to Chicago and was in fact used to trayel on the 6:50 p.m. bus from Toledo to Chicago that night. Bus terminal surveillance video depicts Brinkley in the terminal at 6:29 p.m., when the ticket was claimed. A Greyhound manager identified Brinkley as the person who had claimed the ticket. Huntington Bank records revealed that two unsuccessful attempts to use Smith’s ATM card occurred at 6:33 p.m. and 6:34, p.m. on January 7 at the bus terminal ATM.

After 7:00 p.m. on January 8, 2000, Smith’s mother forced her way into her daughter’s locked apartment through a back door, found her daughter’s body, and called police. Deputy Coroner Dr. Diane Scala-Barnett concluded that at the time Smith’s mother found her, Smith had been dead for more than 30 hours. The killer had attempted to strangle Smith, rendering her unconscious, and had then cut her throat, killing her. .Smith’s body rested on a quilt, and police discovered at least four partial shoeprints in blood on the quilt. DNA from blood on the quilt exactly matched Smith’s DNA. Brinkley’s Nike tennis shoes were later recovered in Chicago. Ted Manasian, a forensic scientist for Ohio’s Bureau of Identification and Investigation (“BCI”), compared Brinkley’s tennis shoes with the bloody shoeprints. The patterns on Brinkley’s shoes were identical to those in the bloody shoeprints, and Manasian could not “find any differences that would allow [him] to eliminate [Brinkley’s] shoe” as having made the shoeprints.

On a shelf near the kitchen, police found a handwritten note to the landlord, worded as follows: “Will be gone to Atlanta for 7 days to see my friend, could you please not come fix my sink until I come back.” The note was dated “1-7-99 [sic],” and was signed with Smith’s name. However, the handwriting on the note, including the purported signature, appears to be Brinkley’s. Moreover, police found Brinkley’s left thumbprint on the note. No other evidence suggests that Smith had planned to go to Atlanta.

Police determined that the last person in the apartment before Smith’s mother broke in had left through the locked front door. The apartment’s back door had been locked from the inside with a security chain, and the front door had been locked from the outside with a key. On January 13, 2000, members of a fugitive task force arrested Brinkley at his mother’s Chicago residence. When Brinkley was arrested, the weather was cold, and Brinkley put on a winter- coat and a pair of size 15 Nike tennis shoes to walk to the FBI car. The coat looked odd on Brinkley because it was too small for his six-foot-four-ineh” frame. Witnesses verified that this coat belonged to Smith. Smith had been wearing that coat when she withdrew ATM funds on January 6. The person who tried to use her ATM card on January 7 had worn an identical coat.

When FBI Special Agent David Browne placed Brinkley into his car, he advised him of his Miranda rights but told him, “I would prefer if you didn’t talk.” Nevertheless, Brinkley began to talk. Brinkley said he doubted that “the FBI would have come and got him for a robbery.” Brinkley asked whether Ohio was a death-penalty state, and Browne told him he did not know but: would check. According to Browne, Brinkley then said “that he was willing to confess * * *, but he needed to talk to his- mother to find out whether or not Ohio was a death penalty state.” Browne then allowed Brinkley to call his mother on Browne’s cell phone.

According to Browne, Brinkley also said that he “didn’t think- that it was right to make the State of Ohio pay 30 thousand dollars a year to keep him alive and that he wanted to get this all over with.” At the police station, Browne again allowed Brinkley to call his mother. After he did so, Brinkley told Browne that “he was not going to make a confession, but he would talk to [Browne] if [he] had some questions to ask.” Browne again advised Brinkley of his Miranda rights. Brinkley then waived his rights and agreed to talk with Browne. Brinkley said that he had thrown away his key to Smith’s apartment. He admitted that the Nike tennis shoes he was wearing were his and claimed that Smith had given him her winter coat, a blue down jacket. While at the station, Brinkley also “[s]aid he was going to kill [Browne]” .and “could do [Browne] like he had done other people.”

State v. Brinkley, 105 Ohio St.3d 231, 231-235, 824 N.E.2d 959 (2005).

The defense rested its case on September 26, 2002 without putting on any evidence. Tr. Vol. 13, pgs. 1794-96, 1806-07. On September 26, 2002, the jury convicted Brinkley as charged. Tr. Vol. 13, pgs. 1975-80. The mitigation phase of the trial began on September 30, 2002. The State rested without presenting any evidence. Tr. Vol. 14, pg. 2039. Brinkley presented five family members as witnesses and made an unsworn statement. On the same day, the jury found that the State had proved beyond a reasonable doubt that the aggravating circumstances which Brinkley was found guilty of committing outweighed the mitigating factors and recommended the death penalty. Tr. Vol. 14, pgs. 2131-34.

On October 2, 2002, the court found that the aggravating circumstances outweighed the mitigating factors and that a sentence of death be imposed on Brinkley. Apx. Vol. 4, pg. 361. Further, the court sentenced Brinkley to 10 years plus three years for the firearm specification for the aggravated robbery of the City Diner and ten years for the aggravated robbery of the murder victim. Tr. Vol. 15, pgs. 10-16. The sentences were to be served consecutively to each other. Tr. Vol. 15, pg. 14.

II. Procedural History

A. Direct Appeal

Brinkley filed a direct appeal to the Ohio Supreme Court on November 25, 2002 raising the following issues:

PROPOSITION OP LAW NO. 1: ABSENT PROOF BEYOND A REASONABLE DOUBT THAT A CAPITAL DEFENDANT COMMITTED THE AGGRAVATED MURDER “FOR THE PURPOSE OF ESCAPING DETECTION, APPREHENSION, TRIAL, OR PUNISHMENT FOR ANOTHER OFFENSE,” A TRIAL COURT SHOULD GRANT A MOTION FOR JUDGMENT OF' ACQUITTAL ON AN R.C. 2929.04(A)(3) SPECIFICATION.

PROPOSITION OF LAW NO. 2: WHEN CHARGES ARE IMPROPERLY AND PREJUDICIALLY JOINED DUE TO BAD FAITH BY THE PROSECUTOR, THE REMEDY IS A NEW TRIAL.

PROPOSITION OF LAW NO. 3: WHEN AN APPELLATE COURT REVIEWING A SENTENCE OF DEATH BASED ON FINDINGS OF MULTIPLE R.C. 2929.04(A) SPECIFICATIONS DETERMINES THAT ONE OF THE SPECIFICATIONS IS NOT SUPPORTED BY SUFFICIENT EVIDENCE IN THE RECORD, THE DEATH SENTENCE MUST EITHER BE REFORMED TO ONE OF THE LIFE SENTENCES OR THE CASE MUST BE REMANDED FOR A NEW SENTENCING HEARING AT WHICH A JURY WILL DETERMINE WHETHER THE REMAINING SPECIFICATION OR SPECIFICATIONS OUTWEIGH BEYOND A REASONABLE DOUBT THE MITIGATING FACTORS PRESENTED.

PROPOSITION OF LAW NO. 4: A TRIAL COURT ERRS TO THE PREJUDICE OF A CRIMINAL DEFENDANT WHEN IT DENIES A MOTION TO SUPPRESS ORAL STATEMENTS TO POLICE OFFICERS TAKEN IN VIOLATION OF HIS DUE PROCESS RIGHTS GUARANTEED UNDER THE FOURTH, FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION.

PROPOSITION OF LAW NO. 5: IT IS ERROR FOR A TRIAL JUDGE TO INDICATE TO PROSPECTIVE CAPITAL JURORS, DURING THE DEATH QUALIFICATION PROCESS, THAT IF THE LAW REQUIRES A DEATH SENTENCE THEY MUST VOTE TO IMPOSE DEATH AS A SENTENCE BUT IF THE LAW REQUIRES A LIFE SENTENCE THEY MUST CONSIDER VOTING FOR LIFE AS A SENTENCE.

PROPOSITION OF LAW NO. 6: A TRIAL COURT MAY NOT DISQUALIFY A JUROR FOR CAUSE PURSUANT TO WITHERSPOON AND WITT ON THE BASIS THAT THE JUROR WILL NOT VOTE FOR DEATH BASED ON ONE OF THE PARTICULAR AGGRAVATING CIRCUMSTANCES CHARGED AND ON AN INACCURATE STATEMENT OF THE LAW.

PROPOSITION OF LAW NO. 7: A TRIAL COURT COMMITS ERROR TO THE PREJUDICE OF A CRIMINAL DEFENDANT WHEN IT DENIES A DEFENSE MOTION FOR MISTRIAL WHERE A WITNESS TESTIFIES IN VIOLATION OF A RIGID COURT ORDER REGARDING EXCLUDED TESTIMONY.

PROPOSITION OF LAW NO. 8: A CRIMINAL DEFENDANT IS ENTITLED TO CROSS-EXAMINE A JAILHOUSE SNITCH WITH QUESTIONS DESIGNED TO DEMONSTRATE THAT HIS TESTIMONY IS MADE WITH THE HOPE OR EXPECTATION OF SUBSTANTIAL GAIN.

PROPOSITION OF LAW NO. 9: A TRIAL COURT COMMITS ERROR TO THE PREJUDICE OF A CRIMINAL DEFENDANT WHERE IT PERMITS A WITNESS TO RENDER AN EXPERT OPINION WHEN THAT WITNESS HAS NOT BEEN QUALIFIED AS AN EXPERT AS REQUIRED BY EVID. R. 702

PROPOSITION OF LAW NO. 10: A CRIMINAL DEFENDANT IS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILS TO OBJECT TO THE TESTIMONY OF A WITNESS WHO RENDERS AN EXPERT OPINION WITHOUT BEING QUALIFIED AS REQUIRED BY EVID. R. 702.

PROPOSITION OF LAW NO. 11: THE FAILURE OF THE TRIAL COURT TO SECURE THE PRESENCE OF THE ACCUSED OR TO OBTAIN A WAIVER OF SUCH RIGHT, VIOLATES THE ACCUSED’S RIGHT UNDER THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

PROPOSITION OF LAW NO. 12: A TRIAL COURT ERRS TO THE PREJUDICE OF A CRIMINAL DEFENDANT WHEN IT DENIES A MOTION FOR ACQUITTAL PRESENTED BY THE DEFENSE AT THE CONCLUSION OF THE PRESENTATION OF EVIDENCE WHERE THE EVIDENCE DOES NOT

PROPOSITION OF LAW NO. 13: THE ACCUSED’S RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION IS VIOLATED WHEN THE STATE IS PERMITTED TO CONVICT UPON A STANDARD OF PROOF BELOW PROOF BEYOND A REASONABLE DOUBT.

PROPOSITION OF LAW NO. 14: A CRIMINAL DEFENDANT IS DENIED DUE PROCESS AND,THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE ACTIONS OF HIS TRIAL COUNSEL FALL BELOW ANY ACCEPTED STANDARD OF COMPETENCE IN VIOLATION OF HIS FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION.

PROPOSITION OF LAW NO. 15: ERRORS IN THE MITIGATION PHASE JURY INSTRUCTIONS OF A CAPITAL TRIAL VIOLATE A DEFENDANT’S CONSTITUTIONAL RIGHTS AND REQUIRE RESENTENCING.

PROPOSITION OF LAW NO. 16: A CRIMINAL DEFENDANT AND A CRIMINAL APPELLANT IN A DEATH PENALTY CASE IS DENIED DUE PROCESS OF LAW GUARANTEED UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHERE THE ABILITY TO CONDUCT AN INDEPENDENT ANALYSIS OF THE APPROPRIATENESS OF THE DEATH SENTENCE IS RESTRICTED BY THE OHIO SUPREME COURT’S DECISION IN STATE V. McGUIRE.

PROPOSITION OF LAW NO. 17: PERVASIVE PROSECUTORIAL MISCONDUCT- DENIES A CAPITAL DEFENDANT HIS RIGHTS TO FAIR TRIAL AND DUE PROCESS AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT.

PROPOSITION OF LAW NO. 18: THE TRIAL JUDGE IN A CAPITAL CASE MAY NOT HOLD AN OFF-THE-RECORD, EX PARTE DISCUSSION WITH THE JURY AFTER THEY RETURN THEIR SENTENCING VERDICT BUT BEFORE THE JUDGE IMPOSES THE SENTENCE.

PROPOSITION OF LAW NO. 19: A CAPITAL DEFENDANT CANNOT BE CHARGED AND CONVICTED OF A SINGLE SPECIFICATION ALLEGING THAT HE WAS THE PRINCIPLE (sic) OFFENDER OR THAT, IF HE WAS NOT, HE ACTED WITH PRIOR CALCULATION AND DESIGN.

PROPOSITION OF LAW NO. 20: WHEN A TRIAL COURT MAKES UP FACTS NOT IN EVIDENCE, AND CONSIDERS AS AN ADDITIONAL AGGRAVATING CIRCUMSTANCE ONE THAT SHOULD HAVE MERGED, TO SUPPORT ITS DECISION THAT THE AGGRAVATING CIRCUMSTANCES OF A CAPITAL CRIME OUTWEIGH THE MITIGATING FACTORS AND THAT A SENTENCE OF DEATH SHOULD BE IMPOSED, THE DEFENDANT IS DENIED HIS RIGHTS TO FAIR TRIAL AND DUE PROCESS AND SUBJECTED TO CRUEL AND UNUSUAL PUNISHMENT.

PROPOSITION OF LAW NO. 21: CUMULATIVE ERRORS MAY DEPRIVE A CRIMINAL DEFENDANT AND CRIMINAL APPELLANT OF A FAIR TRIAL IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE CORRESPONDING PROVISIONS OF THE OHIO CONSTITUTION.

PROPOSITION OF LAW NO. 22: WHEN A CRIMINAL DEFENDANT’S TRIAL COUNSEL IS DEEMED TO HAVE WAIVED OR FAILED TO PRESERVE ISSUES HE WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.

PROPOSITION OF LAW NO. 23: IN ORDER TO COMPORT WITH DUE PROCESS, THE RIGHT TO MEANINGFUL APPEAL, AND AVOID CRUEL AND UNUSUAL PUNISHMENT, THE UNIVERSE OF CASES TO BE EXAMINED FOR REVIEW OF PROPORTIONALITY MUST INCLUDE ALL THOSE IN WHICH A CAPITAL SPECIFICATION HAS BEEN CHARGED.

PROPOSITION OF LAW NO. 24: OHIO’S DEATH PENALTY LAW IS UNCONSTITUTIONAL BOTH IN THE ABSTRACT AND AS APPLIED.

The Ohio Supreme Court affirmed Brinkley’s conviction and death sentence on April 13, 2005. State v. Brinkley, 105 Ohio St.3d 231, 824 N.E.2d 959 (2005).

B. Post-conviction Relief

• On September 8, 2003, while his direct appeal was pending, Brinkley filed a Motion for Postconviction Relief with the trial court under R.C. 2953.21 raising the following fifteen grounds for relief:

1. Petitioner’s judgment and/or sentence are void or voidable because the State presented false material evidence through the trial testimony of State’s witness, Samuel Miller. This action by the prosecutor violated Petitioner’s rights guaranteed by the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the U.S. Constitution and Article I, Sections 2, 5, 9, 10, 16 and 20 of the Ohio Constitution.

2. Petitioner’s judgment and/or sentence are void or voidable because defense counsel ineffectively cross-examined State’s witness Samuel Miller about the timing and substance of his sentences immediately before and after Miller spoke to the lead investigator in Petitioner’s case. This action by the defense attorney violated Petitioner’s rights guaranteed by the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the U.S. Constitution and Article I, Sections 2, 5, 9, 10, 16 and 20 of the Ohio Constitution.

3. Petitioner’s judgment and/or sentence are void or voidable because the State withheld impeachment evidence that would have shown bias on the part of State’s witness, Lamont Pettaway. This action by the prosecutor violated Petitioner’s rights guaranteed by the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the U.S. Constitution and Article I, Sections 2, 5, 9, 10, 16 and 20 of the Ohio Constitution.

4. Petitioner’s judgment and/or sentence are void or voidable because the State withheld impeachment evidence that would have shown dishonesty on the pai't of State’s witness, Lamont Pettaway. This action by the prosecutor violated Petitioner’s rights guaranteed by the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the U.S. Constitution and Article I, Sections 2, 5, 9, 10, 16 and 20 of the Ohio Constitution.

5. Petitioner’s judgment and/or sentence are void or voidable because trial counsel failed to cross-examine Lamont Pettaway when material impeachment evidence was available. This action by the defense counsel violated Petitioner’s rights guaranteed by the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the U.S. Constitution and Article I, Sections 2, 5, 9, 10, 16 and 20 of the Ohio Constitution.

6. Petitioner’s conviction and/or sentence are void or voidable because he was denied the effective assistance of counsel when trial counsel failed to obtain and utilize the expert services of a trained mitigation specialist at the penalty phase of his capital trial. Therefore, Petitioner’s rights were denied under the Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution and Sections 1, 2, 5, 9, 10, 16 and 20 of Article I of the Ohio Constitution.

7. Petitioner’s convictions and sentence are void or voidable because his trial counsel failed to reasonably investigate and present adequate evidence to mitigate the sentence of death after he was convicted of aggravated murder. Therefore, Petitioner’s rights were denied under the Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution and Sections 2, 5, 9, 10, 16 and 20 of Article I of the Ohio Constitution.

8. Petitioner’s conviction and sentence are void or voidable because he was denied the effective assistance of counsel at the penalty phase of his capital trial by his trial counsel’s failure to prepare the witnesses before they testified. Therefore, Petitioner’s rights were denied under the Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution and Sections 2, 5, 9, 10, 16 and 20 of Article I of the Ohio Constitution.

9. Petitioner’s conviction and sentence are void or voidable because his trial counsel failed to present adequate expert psychological assistance in his defense during the capital trial and mitigation hearing. This action by the defense attorneys violated Petitioner’s rights as guaranteed by the Sixth, Eighth, Ninth and Fourteenth Amendments to the U.S. Constitution and Article I, Sections 2, 5, 9, 10, 16 and 20 of the Ohio Constitution.

10. Petitioner’s judgment and sentence are void or voidable because his trial attorneys failed to present evidence to support their argument that the death penalty is applied in an arbitrary manner. As a re-suit, Petitioner was denied his rights to effective assistance of counsel, due process, and a fair trial as guaranteed by the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the U.S. Constitution and Sections 2, 5, 9, 10, 16 and 20, Article I of the Ohio Constitution.

11. Petitioner’s convictions and sentence are void or voidable because his death sentence was disproportionate to similarly situated capital defendants in Lucas County, Ohio. As a result, Petitioner was denied his rights as guaranteed by the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the U.S. Constitution and Sections 2, 5, 9, 10, 16 and 20 of Article I of the Ohio Constitution.

12. Petitioner’s convictions and sentence are void or voidable because the death penalty law permits the imposition of capital punishment in an arbitrary, capricious and discriminatory manner due to the uncontrolled discretion afforded elected Lucas County prosecutors in determining when to seek the death penalty. The arbitrary, capricious, and discriminatory application of the death penalty in Lucas County is obvious from the analysis of Lucas County’s indictments and case dispositions. As a result, Petitioner’s rights as guaranteed by the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the U.S. Constitution and §§ 2, 5, 9, 10, 16 and 20 of Article I of the Ohio Constitution are violated.

13. Petitioner’s convictions and sentence are void or voidable because the statutory proportionality reporting system for death penalty cases is inaccurately and ineffectively processed in Lucas County, Ohio. Consequently Petitioner’s rights as guaranteed by the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the U.S. Constitution and Sections 2, 5, 9, 10, 16 and 20 of Article I of the Ohio Constitution are violated.

14. Petitioner’s conviction and sentence are void or voidable because the death penalty as administered by lethal injection in the State of Ohio violates his constitutional rights to protection from cruel and unusual punishment and to due process of law. U.S. Const, amends. VIII, IX, XIV; Sections 1, 2, 5, 9, 10, 16, and 20, Article I of the Ohio Constitution; 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 “life” interest at issue in capital cases).

15. Petitioner’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 Petitioner his rights secured by the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution, and Article I, Sections 1, 2, 5, 9, 10, 16, and 20 of the Ohio Constitution.

On February 10, 2004, the Lucas County Common Pleas Court dismissed his Petition without a hearing. Apx. Vol. 10, pg. 273.

Brinkley filed an appeal to the Ohio Sixth District Court of Appeals which affirmed the trial court’s denial of his Petition for Post-conviction Relief on October 22, 2004. State v. Brinkley, 2004 WL 2384455 (Ohio App. 6th Dist., Oct. 22, 2004). He raised the following three assignments of error:

Assignment of Error No. 1: The trial court erred by dismissing appellant’s post-conviction petition where he presented sufficient operative facts and supporting exhibits to merit an evidentiary hearing and discovery.

Assignment of Error No. 2: Ohio’s post-conviction procedures neither afford an adequate corrective process nor comply with due process and equal protection under the Fourteenth Amendment.

Assignment of Error No. 3: Considered together, the cumulative errors set forth in appellant’s substantive grounds for relief merit reversal or remand for a proper post-conviction process.

Brinkley then sought review in the Ohio Supreme Court which declined jurisdiction on June 29, 2005. State v. Brinkley, 106 Ohio St.3d 1412, 830 N.E.2d 345 (2005). The following five propositions of law of error were presented to that court:

PROPOSITION OF LAW NO. 1: The Court of Appeals erroneously upheld the trial court’s determination that all but appellant’s first post-conviction claim was barred by the doctrine of res judicata, thereby violating appellant’s rights under the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the U.S. Constitution and Article I, §§ 1, 2, 9, 10, 16, and 20 of the Ohio Constitution.

PROPOSITION OF LAW NO. 2: The presentation of perjured testimony by the State violates the Appellant’s rights under the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the U.S. Constitution and Article I, §§ 1, 2, 9, 10, 16, and 20 of the Ohio Constitution.

PROPOSITION OF LAW NO. 3: The trial court erred by dismissing Appellant’s post-conviction petition, where he presented sufficient operative facts and supporting exhibits to merit an evidentiary hearing and discovery.

PROPOSITION OF LAW NO. 4: Ohio’s post-conviction procedures neither afford an adequate corrective process nor comply with due process and equal protection under the Fourteenth Amendment.

PROPOSITION OF LAW NO. 5: Considered together, the cumulative errors set forth in appellant’s substantive grounds for relief merit reversal or remand for a proper post-conviction process.

A Petition for Writ of Certiorari was submitted to the United States Supreme Court. That Court denied the Petition on December 5, 2005. Brinkley v. Ohio, 546 U.S. 1063, 126 S.Ct. 799, 163 L.Ed.2d 631 (2005).

C. Murnahan

On July 12, 2005, Brinkley filed an Application for Reopening Pursuant to App. R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), in the Ohio Supreme Court raising the following two propositions of law:

PROPOSITION OF LAW NO. I: Where Trial Counsel’s performance in a capital case falls below professional standards for reasonableness, counsel has rendered ineffective assistance, thereby prejudicing the defendant in violation of his constitutional rights.

Voir Dire Issues:

Failure to rehabilitate or challenge for cause a juror who possessed an incorrect predetermined concept of who should be sentenced to death (Prospective Juror No. 16).

Trial Phase Issues:

1. Failure to make a motion that all references to State’s Exhibit 20 be stricken from the record and that the court give curative instructions.

2. Failure to object to prosecution’s misstatement of facts related to the use of the victim’s ATM card while telephone calls were made from Shantae Smith’s apartment after the state claimed she was dead.

3. Trial counsel provided ineffective representation when he conceded Appellant was guilty of the City-Diner robbery.

PROPOSITION OF LAW NO. II: Prosecutorial misconduct denied appellant his rights to a fair trial and due process guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution.

1. The state suppressed material evidence related to blood in the kitchen sink that appeared in State Exhibit 20.

2. In its opening remarks and closing argument the prosecutor misstated crucial facts related to the use of Shantae Smith’s ATM card while telephone calls were being made from her apartment.

The Application was denied without opinion on October 5, 2005. State v. Brinkley, 106 Ohio St.3d 1529, 835 N.E.2d 379 (2005).

III. Federal Habeas Corpus

On January 17, 2006, Brinkley filed a Notice of Intent to File a Petition for Writ of Habeas Corpus. His Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 was filed on November 22, 2006 raising the following twenty-eight grounds for relief:

Ground I: There Was Insufficient Evidence to Establish the Capital Specification that the Aggravated Murder Was Committed “For the Purpose of Escaping Detection, Apprehension, Trial, or Punishment for Another Offense.”

Ground II: There Was Insufficient Evidence to Establish the Capital Specification that the Aggravated Murder Was Committed in the Course of an Aggravated Robbery and Insufficient Evidence that Brinkley was Guilty of An Aggravated Robbery of Shantae Smith on January 7, 2000.

Ground III: There Was Insufficient Evidence to Establish Brinkley’s Guilt of the Offense of Aggravated Murder.

Ground IV: Brinkley Was Denied His Rights to Due Process and a Fair Trial Because of the Prosecutor’s Misconduct in Improperly and Prejudicially Joining Unrelated Criminal Charges. Those Unrelated Charges Should Have Been Severed as Requested by the Defense. The Failure of the Trial Court To Dp So, and to Bar Evidence of the City Diner Robbery, Denied Brinkley’s Constitutional Rights.

Ground V: Brinkley’s Oral Statements to Police Officers Must Be Suppressed. All Statements Obtained in Violation of Miranda Violate the Protections Under the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments.

Ground VI: Brinkley Was Denied His Right to a Fair Trial with an Impartial Jury Because a Prospective Juror Who Expressed Reservation About the Death Penalty Was Improperly, Excused by the State.

Ground VII: The Failure of the Trial Court to Secure Brinkley’s Presence at Critical Stages of the Proceedings, and to Obtain Knowing, Intelligent and Voluntary Waivers of His Presence When He Did Not Attend, Violated Brinkley’s Rights Under the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

Ground VIII: The Trial Court’s Failure to Permit a Meaningful Cross Examination of the Jailhouse Snitch That Would Challenge His Veracity and Expose His Bias Deprived Brinkley of His Rights under the Fifth, Sixth, Eighth and Fourteenth Amendments.

Ground IX: The Trial Court Gave Constitutionally Defective “Reasonable Doubt” Instructions During Both Phases of the Trial.

Ground X: The Ineffective Assistance of Trial Counsel During the Guilt/Innocence Phase of the Case Denied Brinkley His Rights Under the Fifth, Sixth, Eighth and Fourteenth Amendments.

Ground XI: The Ineffective Assistance of Trial Counsel During the Sentencing Phase of the Case Denied Brinkley His Rights under the Fifth, Sixth, Eighth and Fourteenth Amendments, and Deprived Him of a Reliable Sentence.

Ground XII: The Ineffective Assistance of Appellate Counsel Denied Brinkley His Rights Under the Fifth, Sixth, Eighth and Fourteenth Amendments.

Ground XIII: Brinkley Was Denied His Right to a Fair Trial Because the Trial Judge Provided the Jury with Erroneous Jury Instructions in the Penalty Phase of the Trial.

A. Instruction Concerning Sympathy and Mercy.

B. Instruction Regarding “Equipoise”.

C. Mistakes in the Instructions Submitted to the Jurors.

Ground XIV: The Trial Court Committed Numerous Other Errors of Fact and Law Thereby Depriving Brinkley of His Rights to a Farr Trial, Due Process of Law, and Equal Protection Under the Law.

A. The Trial Court Applied the Wrong Standard in Conducting the Death Penalty Voir Dire.

B. The Trial Court Permitted a Witness to Testify About the Victim’s Fear of Brinkley in Violation of a Court Order.

C. The Trial Court Permitted a Witness to Testify as an Expert with Regard to Matters on Which the Witness Had Not Been Qualified as an Expert.

D. Mistakes in the Instructions Submitted to the Jurors.

Ground XV: The Trial Judge’s Ex Parte Meeting with Jurors after Their Sentencing Recommendation, But Before the Judge Imposed the Sentence, Deprived Brinkley of His Rights to Due Process, a Fair Trial, and a Reliable Sentencing Proceeding, and Subjected Him to Cruel and Unusual Punishment.

Ground XVI: Brinkley Was Denied His Right to a Fair Trial Because of Repeated Instances of Prosecutorial Misconduct Throughout Both Phases of His Trial.

Ground XVII: Because the Capital Specifications in the Indictment Charged Brinkley Both as Being the Principal Offender in the Commission of the Aggravated Murder and as Committing the Aggravated Murder with Prior Calculation and Design, the Indictment and the Subsequent Flawed Proceedings Thereon Violated Brinkley’s Constitutional Rights.

Ground XVIII: The State Improperly, Illegally and Unconstitutionally Withheld Exculpatory, Mitigation and/or Impeachment Evidence from the Defense in Violation of its Obligations Under Brady v. Maryland.

Ground XIX: Brinkley’s Conviction And/or Death Sentence Violate His Rights to Due Process and a Fair Trial Because They Were Obtained as a Result of the State’s Presentation of False Material Evidence Through the Trial Testimony of State’s Witness, Samuel Miller.

Ground XX: Brinkley Was Denied Due Process Because Both The Trial Court and The Ohio Supreme Court Failed To Fulfill Their Statutory Duties in Imposing and Reviewing His Sentence of Death, and the Ohio Supreme Court Failed to Fulfill Its Obligation to Meaningfully Review the Proportionality of Brinkley’s Death Sentence.

Ground XXI: Brinkley Was Denied the Effective Assistance of Counsel Because His Attorneys Failed to Investigate and Present Available Evidence to Support Their Argument That the Death Penalty is Applied in an Arbitrary Manner.

Ground XXII: Ohio’s Post-Conviction Procedures, and Its Mumahan/App. Rule 26(B) Procedures for Re-Opening a Direct Appeal, Neither Afford an Adequate Corrective Process Nor Comply With Due Process and Equal Protection Under The Fourteenth Amendment.

A. The PosNConviction Process.

B. The MurnahanlA$ip. Rule 26(B) Process.

Ground XXIII: Brinkley’s Death Sentence Is Unconstitutional Because It Is Not Reliable, It Is Based on “Facts” Not Established by the Evidence and On Invalid “Aggravators,” and Because the Mitigating Factors Outweigh The Aggravating Circumstances.

Ground XXIV: The Ohio Supreme Court Denied Brinkley Due Process By Failing To Properly Consider the Proportionality of His Death Sentence and to Conduct a Meaningful Independent Analysis of its Appropriateness.

Ground XXV: The Death Penalty Is Applied Arbitrarily and Capriciously in Lucas County, Ohio.

Ground XXVI: Ohio’s Death Penalty Statute Is Unconstitutional in Numerous Respects.

A. Constitutional Flaws in Trial Proceedings Created by the Ohio Statutory Scheme.

B. Constitutional Flaws in Sentencing Proceedings Created by the Ohio Death Penalty Statute.

C. Constitutional Flaws in Appellate Proceedings Created by the Ohio Death Penalty Statutes.

D. Societal Interests are Not Served by the Ohio Death Penalty Statutes.

E. Imposition of the Death Penalty Demonstrates a Blatant Disregard for the Value of Human Life, Entails Unnecessary and Wanton Infliction of Pain and Diminishes the Dignity of Man.

F. The Ohio Death Penalty Statute Violates the Supremacy Clause of the United States Constitution and Various International Laws Including, but not Limited to, the Organization of American States Treaty and the American Declaration of the Rights and Duties of Man.

Ground XXVII: Brinkley Is Entitled to Habeas Relief as to His Conviction and Sentence Because the Death Penalty as Administered by Lethal Injection in the State of Ohio Violates His Constitutional Rights to Protection from Cruel and Unusual Punishment and to Due Process of Law.

Ground XXVIII: Brinkley’s Conviction and Sentence Are Unconstitutional Because of the Cumulative Effect of the Many Errors That Occurred During His Trial and in All Subsequent Proceedings.

A. Cumulative errors at trial and sentencing.

Cumulative errors at all stages of the case.

IV. Standard of Review

The Anti Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) amending 28 U.S.C. § 2254, became effective on April 24, 1996. The AEDPA changed the standard of review to be applied by the federal court to Petitions for Writ of Habeas Corpus. Brinkley filed his Petition on November 22, 2006, after the AEDPA became effective, so the Court will utilize the amended standard which gives deference to the state court’s decision. The AEDPA provides in pertinent part:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2264(d)(1)-©.

The United States Supreme Court explained the applicable AJEDPA provision in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). First, the Court determined that the words “contrary to” and “unreasonable” have independent meanings. Id. at 404, 120 S.Ct. 1495. Every clause and every word of a statute must be given effect. Id. (citing United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 (1955)). A state court decision is “contrary to” Supreme Court precedent if (1) “the state court arrives at a conclusion opposite to that reached by this Court in a question of law” or (2) “if the state court confronts facts that are materially undistinguishable from a relevant Supreme Court precedent and arrives at a result opposite” to it. Id. at 405, 120 S.Ct. 1495. Since the word “contrary” means “diametrically different,” “opposite in character or nature,” or “mutually opposed,” as defined in Websters Third New International Dictionary 495 (1976), the state court’s decision must be substantially different from the Supreme Court precedent. Id. Further, a state court decision would be contrary to clearly established Supreme Court law if (1) the state court applies a rule that contradicts the governing law set forth in Supreme Court cases or if (2) the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and still arrives at a result different from the Court’s precedent. Id. at 405-06,120 S.Ct. 1495.

A state court decision can be considered an “unreasonable application” of clearly established precedent if “the state court identifies the correct governing legal rule from the Supreme Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s case.” Id. at 407, 120 S.Ct. 1495. An unreasonable application is distinguishable from an incorrect application of federal law. A writ of habeas corpus may not be issued just because the court concludes that a state court decision applied clearly established law erroneously or incorrectly. The application must be unreasonable. Id. at 411, 120 S.Ct. 1495. See Bell v. Cone, 535 U.S. 685, 698-99, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (petitioner must show that he would have satisfied applicable Supreme Court precedent if his claim was analyzed in the first instance because petitioner must show more than that the state-court decision applied Supreme Court precedent incorrectly, but must show that the court applied precedent in an objectively unreasonable manner).

The Williams Court referred to Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), for aid in interpreting the “clearly established law” requirement. The Teague case involved a determination of whether a new rule of law was retroactive. The Court did not attempt to define what may or may not constitute a new rule for retroactivity purposes. It stated that in general, a case announces a new rule when it breaks new ground or imposes a new obligation on the states or federal government. A case sets forth a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final. Williams considered the Teague case the equivalent of a statutory provision requiring exclusive reliance on “clearly established law.” Id. 529 U.S. at 379, 120 S.Ct. 1495. What would qualify as an old rule under Teague constitutes “clearly established law.” Id. 529 U.S. at 412, 120 S.Ct. 1495; Harris v. Stovall, 212 F.3d 940, 943-44 (6th Cir.2000), cert. denied, 532 U.S. 947, 121 S.Ct. 1415, 149 L.Ed.2d 356 (2001) (district court cannot look to lower federal court decisions in determining whether the state court decision is contrary to, or an unreasonable application of, clearly established federal law).

V. Exhaustion and Procedural Default

A. Exhaustion

A state prisoner must exhaust his state remedies before bringing a claim in a federal court for habeas corpus relief. O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Exhaustion is satisfied when the highest court in the state in which the prisoner has been convicted has had a full and fair opportunity to rule on the claims. O’Sullivan, 526 U.S. at 842, 119 S.Ct. 1728. If the petitioner has the right under state law to raise a claim under any available procedure, he has not exhausted his state remedies. 28 U.S.C. § 2254(b), (c); Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994). The petitioner has the burden of demonstrating that he has exhausted all his available remedies. Prather v. Rees, 822 F.2d 1418, 1420 n. 3 (6th Cir.1987).

B. Procedural Default.

A federal court cannot consider any claim raised in a Petition for Writ of Habeas Corpus that has not been resolved on the merits in state court. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). “In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas corpus 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, 749, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). See Buell v. Mitchell, 274 F.3d 337, 348 (6th Cir.2001).

In Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986), the Sixth Circuit set forth a four part test to determine if a claim is procedurally defaulted: “(1) the court must determine that there is a state procedural rule that is applicable to the petitioner’s claim and that the petitioner failed to comply with the rule; (2) the court must determine whether the state courts actually enforced the state procedural sanction; (3) it must be decided whether the state procedural forfeiture is an adequate and independent state ground upon which the state can rely to foreclose review of a federal constitutional claim; and (4) if the court has determined that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner is required to demonstrate that there was cause for him not to follow the procedural rule and that he was actually prejudiced by the alleged constitutional error.” In order to show cause, the petitioner must demonstrate that an objective factor external to the defense impeded counsel’s efforts to comply with the state procedural rule. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Prejudice is proven by showing a disadvantage infecting the trial with constitutional error. United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). The claim must be presented to the state courts under the same theory in which it is later presented in federal court. Lott v. Coyle, 261 F.3d 594, 607, 611, 617, 619 (6th Cir.2001), cert. denied, 534 U.S. 1147, 122 S.Ct. 1106, 151 L.Ed.2d 1001 (2002); Wong v. Money, 142 F.3d 313, 322 (6th Cir.1998).

Issues that could be raised on direct appeal are barred by the doctrine of res judicata. In State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), the Ohio Supreme Court ruled that “[U]nder the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on appeal from that judgment.” Id. at 180, 226 N.E.2d 104. See State v. Roberts, 1 Ohio St.3d 36, 39, 437 N.E.2d 598 (1982). The Sixth Circuit has held that the “Perry” rule is regularly and consistently applied by Ohio courts and is an adequate and independent state ground upon which to procedurally bar consideration of habeas claims. Buell, 274 F.3d at 349; Coleman v. Mitchell, 244 F.3d 533, 538 (6th Cir. 2001), cert. denied, 534 U.S. 977, 122 S.Ct. 405, 151 L.Ed.2d 307 (2001).

Post-conviction issues supported by evidence de hors the record as well as evidence appearing on the record are not subject to res judicata. State v. Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985). Evidence outside the record will permit issues to be litigated that were not raised or could have been raised on appeal. Res judicata will not apply if the evidence outside the record shows that the petitioner could not have appealed the constitutional claim based upon information in the original trial record. State v. Combs, 100 Ohio App.3d 90, 97, 652 N.E.2d 205 (Ohio App., 1st Dist.1994). Any evidence presented outside the record must satisfy the same restricted standard of validity, otherwise it would be too easy to defeat the doctrine of res judicata as set forth in Perry. State v. Lawson, 103 Ohio App.3d 307, 315, 659 N.E.2d 362 (Ohio App. 12th Dist.1995). The evidence that was available to the petitioner at the time of the direct appeal is not de hors the record simply because it was not raised at that time. State v. Blackmon, 1997 WL 423047 *1 (Ohio App., 9th Dist. Jul. 16, 1997). Nor could the evidence be in existence and available for use at time of trial. State v. Smith, 1994 WL 273267 * 5 (Ohio App., 1st Dist. Jun. 22, 1994). See State v. Williams, 149 Ohio App.3d 434, 442-43, 777 N.E.2d 892 (Ohio App., 6th Dist.2002), cert. denied, 541 U.S. 963, 124 S.Ct. 1722, 158 L.Ed.2d 406 (2004) (evidence de hors the record must demonstrate that the petitioner could not have appealed the claim based on information in the trial record). The evidence de hors the record presented during post-conviction proceedings cannot be excessive or cumulative to the evidence on record. It must support the claim in a manner that the record lacked. Cowans v. Bagley, 236 F.Supp.2d 841, 862 (S.D.Ohio 2002) (citing State v. Powell, 90 Ohio App.3d 260, 268, 629 N.E.2d 13 (Ohio App., 1st Dist.1993)).

Under Ohio law, errors which are not preserved by objection at the trial are considered waived and may not be raised upon appeal. Stores Realty Co. v. Cleveland Bd. of Bldg. Standards and Bldg. Appeals, 41 Ohio St.2d 41, 43, 322 N.E.2d 629 (1975). The objection must be made contemporaneous to the challenged testimony. See Engle v. Isaac, 456 U.S. 107, 124, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), overruled in part on other grounds, Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) (violation of Ohio’s contemporaneous objection rule barred appellate review). The Sixth Circuit has held that Ohio’s contemporaneous objection rule constitutes an adequate and independent state ground. Williams v. Bagley, 380 F.3d 932, 968 (6th Cir.2004), cert. denied, 544 U.S. 1003, 125 S.Ct. 1939, 161 L.Ed.2d 779 (2005). “Moreover, we view a state appellate court’s review for plain error as the enforcement of a procedural default.” (citations omitted). Further, plain error review by an appellate court constitutes enforcement of Ohio’s contemporaneous objection rule. Id.; Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir.2001).

The federal court, in determining whether a state court has relied on a procedural rule to bar review of an issue, examines the latest reasoned opinion of the state courts and presumes that later courts enforced the bar instead of rejecting the claim on the merits. Hinkle, 271 F.3d at 244 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)).

A state procedural bar may be invalidated because of later actions by a state court. Ylst, 501 U.S. at 801, 111 S.Ct. 2590. The procedural bar is removed if the last state court to be presented with-a particular issue reaches its merits. Id. If the last state court bases its ruling both on the merits and alternatively on a procedural ground, the procedural ground ruling prevails. Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Baze v. Parker 371 F.3d 310, 320 (6th Cir.2004), cert. denied, 544 U.S. 931, 125 S.Ct. 1670, 161 L.Ed.2d 495 (2005). Where the decision rests primarily on federal law, it is presumed that the state court did not rely on procedural default unless it clearly stated that it did so. Harris, 489 U.S. at 262-263, 109 S.Ct. 1038. The question whether a state court relied on procedural default is often a difficult one. Id. 489 U.S. at 263, 109 S.Ct. 1038. Before the Harris presumption can be applied, the federal court must make a preliminary finding that there is no independent and adequate state ground for the decision. Coleman, 501 U.S. at 738, 111 S.Ct. 2546. Therefore, the habeas court must examine the wording used in the state court decision.

Failure to show cause and prejudice for procedural default may be overcome if petitioner can show that his conviction is a result of a fundamental miscarriage of justice. Coleman, 501 U.S. at 750, 111 S.Ct. 2546; Murray, 477 U.S. at 496, 106 S.Ct. 2639. This is accomplished by the petitioner demonstrating that he is actually innocent of the crime for which he was convicted. Schlup v. Delo, 513 U.S. 298, 316, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Lott, 261 F.3d at 602. Proof of innocence must be so strong that a court cannot have confidence in the outcome of the trial. Schlup, 513 U.S. at 316, 115 S.Ct. 851.

When a defendant was represented by the same counsel at trial and on direct appeal, claims of ineffective assistance of trial counsel are not defaulted because appellate counsel will rarely assert his own ineffectiveness at, trial. Hicks v. Collins, 384 F.3d 204, 211 (6th Cir.2004), cert. denied, 544 U.S. 1037, 125 S.Ct. 2260, 161 L.Ed.2d 1066 (2005).

Procedural default may be excused by proving counsel’s ineffectiveness in failing to properly raise the claims on direct appeal. Franklin v. Anderson, 434 F.3d 412, 418 (6th Cir.2006); Burroughs v. Makowski, 411 F.3d 665, 667 (6th Cir. 2005), cert. denied, 546 U.S. 1017, 126 S.Ct. 653, 163 L.Ed.2d 529 (2005). An ineffec tive assistance of counsel claim raised as cause for procedural default of another claim can be procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 453, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); Jamison v. Collins, 100 F.Supp.2d 521, 551 (S.D.Ohio, 1998) (a petitioner may not bring an ineffective assistance of counsel claim as cause for a default when that ineffective assistance of counsel claim itself is procedurally barred). A claim of ineffective assistance of appellate counsel must be raised in a motion for reconsideration in the court of appeals under Rule 26(B). Monzo v. Edwards, 281 F.3d 568, 577 (6th Cir.2002); Mumahan, 63 Ohio St.3d at 65, 584 N.E.2d 1204.

VI. Analysis of Grounds for Relief

First, Second, and Third Grounds for Relief

The first, second and third claims for relief raise the issue of insufficiency of the evidence. Since they involve the same issue, they will be discussed together.

The United States Supreme Court set forth the standard of review to be used by a habeas court when reviewing an insufficiency of the evidence claim in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), overruled on other ground by Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (19