Full opinion text
MEMORANDUM OPINION KATZ, District Judge. This matter is before the Court on Petitioner’s motion for a writ of habeas corpus and corrected' motion for a writ of habeas corpus (Doc. Nos. 22 & 25); the State’s motion to strike Petitioner’s traverse (Doc. No. 67); and on Petitioner’s motion for an evidentiary hearing (Doc. No. 70). For the following reasons, Petitioner’s motion for a writ of habeas corpus will be denied. The State’s motion to strike will be denied. Petitioner’s motion for an evidentiary hearing will be denied. Background In February, 1993, Petitioner Maurice Mason, an African-American man, was a resident of Marion, Ohio. Decedent Robin Dennis, a white woman, was a resident of Richwood, Ohio, and was acquainted with Mason. Dennis was last seen alive on February 8, 1993. On February 15, 1993, Dennis’ body was found in an abandoned building in a rural area north of Marion, Ohio. The coroner determined that she had died several days earlier as a result of blunt force trauma causing multiple skull fractures. The probable weapon, a bloodstained board with protruding nails, was found twenty feet from Dennis’ body. Evidence that Dennis had been raped was also found at the scene. When Dennis’ body was discovered, she was wearing only a bra; her jeans and panties were positioned around her ankles and lower leg. She had been strangled, and there were bruises on her head, face, and body. Inside and around Dennis’ car, which was found near the murder site, forensic investigators discovered Nike tennis shoe impressions and type B blood, Dennis’ blood type; the location of the tennis shoe marks and the blood were consistent with a struggle having taken place inside and around the car. Semen was found in Dennis’ vagina and on her panties; DNA testing determined that the semen was Mason’s. Two witnesses saw a person fitting Mason’s description walking in the area of the murder site between 4:10 and 4:15 p.m. on the day Dennis disappeared. Police found Mason’s car keys on the front seat of Dennis’ car. Type B blood was found on the side of a Nike tennis shoe Mason was wearing on February 12,1993. Petitioner Mason was charged with the rape and aggravated murder of Robin Dennis. The case was tried to a jury between May 31, and June 29, 1994. The jury convicted Mason and recommended imposition of the death penalty. On July 7, 1994, the trial court adopted the jury’s recommendation that Mason be sentenced to death. The conviction and sentence were upheld on direct appeal. On July 15, 1999, Petitioner filed this petition for a writ of habeas corpus, challenging both his conviction and sentence. He raises the following twenty-five challenges to the proceedings in the trial court and on appeal: 1. Petitioner claims he was denied his right to investigative and expert assistance in preparing and presenting his defense because the trial court refused to authorize the expenditure of funds for experts in the areas of: soil analysis; shoe print analysis; blood analysis; DNA analysis; the reliability of eyewitness identification; homicide investigation; mass media; and mental health. He further argues that the Supreme Court of Ohio used a too-deferential standard in its review of the trial court’s denial of Petitioner’s requests for the aforementioned experts. 2. Petitioner raises a claim of ineffective assistance of counsel arising out of counsel’s preparation of the motions for expert assistance; preparation of Petitioner’s motions to suppress; the amount of time Petitioner’s counsel spent preparing for the trial; the trial court’s denial of Petitioner’s request for a continuance; counsel’s performance during the jury selection process; counsel’s performance during the guilt/innocence phase of the case; counsel’s failure to present mitigation evidence during the penalty phase of the case; lead counsel’s absence from the courtroom during portions of the case; failure to object to an Allen charge; and failure properly to present a motion for a new trial. He also claims that his appellate counsel’s performance was deficient because appellate counsel either (a) failed on appeal to present his complaints arising out of the trial, or (b) improperly defaulted such claims by failing to address them on appeal. 3. Petitioner claims that the State improperly failed to disclose Brady material. 4. Petitioner claims that the Ohio Supreme Court erred by deferring to the jury and trial court’s determination that the death penalty was proper in this case. 5. Petitioner claims that the imposition of the death penalty was improper because the state was allowed to give the first and last arguments during the mitigation phase closing arguments. 6. Petitioner claims that the imposition of the death penalty by electrocution constitutes cruel and unusual punishment in all cases. 7. Petitioner claims that the imposition of the death penalty constitutes an unconstitutional violation of international law in all cases. 8. Petitioner claims that Ohio’s statutory requirement that the defendant prove the existence of mitigating factors in the penalty phase is unconstitutional. 9. Petitioner claims that it was impossible for him to get a fair trial in the venue in which he was tried because of pretrial publicity. 10. Petitioner claims that his conviction and sentence were unconstitutional because his trial was infested with racial discrimination. 11. Petitioner claims that inculpatory statements he made to police officers were improperly introduced during trial in violation of his Fourth Amendment rights. 12. Petitioner claims that he was denied his right to trial by a fair and impartial jury because the trial court improperly limited counsel’s investigation into jurors’ attitudes about race; because the trial court inappropriately expressed his personal view on the death penalty; because the prosecutor repeatedly referred to the first phase of Petitioner’s trial as the “guilt” phase; because counsel failed to question two jurors who were victims of domestic violence in detail about that issue; and because counsel failed to examine potential jurors about their feelings about the victim being pregnant at the time of her death. 13. Petitioner claims that he was denied his right to trial by a fair and impartial jury because the prosecution (a) successfully challenged for cause all potential jurors who stated that their beliefs about the death penalty would prevent them from fairly considering death as a penalty, and (b) used its peremptory challenges to remove three potential jurors who expressed scruples about the death penalty. 14. Petitioner claims that he was denied due process because of the admission into evidence of inflammatory color photographs of the murder victim. He claims that the prejudicial impact of those photographs outweighed their probative value. 15. Petitioner claims that the jury was provided with transcripts of statements Petitioner made to the police, and that those statement were transcribed in such a manner as to suggest racial stereotypes. 16. Petitioner claims that the trial court inappropriately prevented him from presenting evidence that the victim’s husband had a history of violence in order to show that the murder had, in fact, been committed by the victim’s husband. 17. Petitioner claims that the prosecutor engaged in prosecutorial misconduct, and that the trial court improperly failed to give a curative instruction. 18. Petitioner claims that the trial court erred by instructing the jury that it must determine that Petitioner was not guilty of the greater charge of aggravated murder before considering the lesser charge of murder brought against Petitioner. 19. Petitioner claims that the prosecution failed to present evidence from which a reasonable jury could find all the elements of aggravated murder beyond a reasonable doubt. 20. Petitioner claims that the trial court’s instructions at the penalty phase of the trial were improper. 21. Petitioner claims that he was denied his right to a trial free of racial bias because the only African-American venireperson was successfully challenged for cause after he stated that he could not vote for the death penalty, and because some of the jurors made racially derogatory remarks while they were sequestered and during deliberations. 22. Petitioner claims that the trial court gave an improper Allen charge during jury deliberations at the penalty phase of the trial. 23. Petitioner claims that imposition of the death penalty in this case is so disproportionate to the offense as to violate the Eighth Amendment. 24. Petitioner claims the trial court improperly rejected his allegations of juror misconduct — namely, racial bias by several jurors, sleeping by Juror Straub, and an improper investigation by Juror Downs. 25. Petitioner claims that Ohio’s death penalty statute is facially unconstitutional. Respondent filed her return of writ on September 2, 1999. Thereafter, Petitioner requested and was granted numerous extensions of time in which to file his traverse; the final such extension made Petitioner’s traverse due on January 7, 2000. Petitioner filed his traverse on January 18, 2000, without seeking leave for a further extension of time. Respondent has moved the Court to strike Petitioner’s traverse as untimely filed. Petitioner responds that he was delayed because counsel encountered numerous technical difficulties with his computer. In addition, Petitioner has filed a motion for an evidentiary hearing on his claims numbered 1, 2, 6, 10, 12, 21, 23, and 24. The State has filed opposition to that motion. The Court discusses the parties’ contentions below. Motion To Strike Petitioner’s Traverse Respondent has moved to strike Petitioner’s traverse as untimely. The Court agrees with Respondent — and Petitioner admits — that it was improper for Petitioner to file his traverse late without leave of Court, especially in light of the number of extensions Petitioner was given. However, in light of the seriousness of the penalty Petitioner faces, the Court finds it proper to consider the arguments contained in Petitioner’s traverse. Accordingly, the Court will consider the parties’ arguments on their merits. The Court has reorganized Petitioner’s arguments into six separate categories, and will consider them in somewhat chronological order. The Court will address Petitioner’s request for an evidentiary hearing as it addresses Petitioner’s arguments on the merits. Motions For Habeas Corpus And For Evidentiary Hearing Petitioner has filed his motion for a writ of habeas corpus under 28 U.S.C. § 2254, which permits a prisoner in state custody to challenge his incarceration “on the ground that he is in custody in violation of the Constitution or law or treaties of the United States.” Petitioner raises numerous challenges to his conviction and. sentence. A. Claims Arising out of State’s Pretrial Conduct 1. Fourth Amendment Violation Arising out of Police Interrogation The first chronologically occurring event about which Petitioner complains appears in claim number eleven of his petition. Petitioner claims that the police improperly interrogated him in violation of his Fourth Amendment rights, and that incul-patory statements he made during that interrogation were improperly admitted at trial in violation of Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). At the hearing on Mason’s motion to suppress the statements he made during the two challenged interrogations, the evidence showed that Petitioner was first interrogated on February 10, 1993, two days after the victim disappeared, and five days before her body was discovered. The first interrogation was conducted at the police station, was tape recorded, and lasted eighteen minutes. Both Petitioner Mason and Detective Dennis Potts testified that Mason voluntarily accompanied Potts to the police station, that Mason was never told he could not leave, and that Potts drove Mason back to his home after the interview. The second interrogation took place on February 12, 1993, and lasted approximately four hours. Both Mason and Potts testified that Mason voluntarily accompanied Potts to the police station, and that Mason was not formally arrested or told he could not leave at any time during the interview. Mason’s parole officer, Doug Schiefer, observed the February 12, 1993 interview through a one-way mirror and determined, on the basis of information adduced during that interview, that Mason should be arrested for parole violations including alcohol consumption and associating with known felons. Half an hour after the interview ended, Schiefer arrested Mason for violation of his parole. Mason was given his Miranda warnings at that time, refused to waive his rights, and the interview concluded. There seems to be no dispute that Mason was a suspect at the time of both interrogations. There also seems to be no dispute that Mason was not arrested until after the second interview had concluded, and could have left prior to that time. During the second interview, Mason asked several times whether he was under arrest, and was repeatedly assured that he was not. Mason himself testified as follows at the hearing on his motion to suppress: Q Now, basically what happened is that on February 10th, that’s the first time you talked to Detective Potts. You didn’t believe at all that they thought you had anything to do with this crime, did you? A I didn’t, no, sir. Q And so you agreed to cooperate with ‘em? A Um-hum. Q And that was a voluntary choice on your part, wasn’t it? A Right. Q And on February 12th when Detective Potts came to your house, you still didn’t believe that they thought you had anything to do with this case? A Why should I? Q And so you made a voluntary choice to cooperate with them? A Yes, I did. Q And that really was your opinion throughout the entire interview on the 12th, until the very end when they started turning up the heat in the interview, and then what you say pointing the fingers at you, isn’t that what happened? A Basically, yeah. Q And when they came in and read you your rights — they came in and read you your rights, and you said, “so what? I’m under arrest or something?” That’s what you said at 4:03, isn’t it? A Um-hum. Q Because that’s the first time that you understood that you were going to be placed under arrest, isn’t it? A Right. Q And prior to that, you were never placed under arrest, were you? A Hum-um. The issue before the trial court at the motion to suppress, and the issue before this Court, is whether Petitioner was “in custody” for purposes of the Fourth Amendment at the time of the two interrogations, so as to trigger his right to Miranda warnings. If Petitioner was “in custody,” the police officers who interviewed him violated his rights, and the inculpatory statements he made during those interviews should not have been admitted into evidence. If Petitioner was not “in custody,” his right to Miranda warnings was not triggered, and it was proper to admit Petitioner’s inculpatory statements. See Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. An individual is “in custody” only where there has been a “formal arrest or restraint on freedom .of movement of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983). The only relevant inquiry is how a reasonable person in the suspect’s position would have understood the situation. A police officer’s undisclosed view that the individual under questioning is a suspect is not relevant to the question of whether that individual is in custody. Stansbury v. California, 511 U.S. 318, 324, 114 S.Ct. 1526, 1529-30, 128 L.Ed.2d 293 (1994). The trial court found that Petitioner was not in custody on the basis of Petitioner’s testimony that he voluntarily accompanied the police to the police station for questioning, and that he understood he was not under arrest at the time of the interrogations. Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the trial court’s factual determination that Petitioner understood he was not under arrest at the time of the interrogations is presumed to be correct unless the petitioner rebuts it by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Petitioner has not attempted to rebut the trial court’s factual determination on that issue. Nor could he, since the trial court based its determination on Petitioner’s own testimony that he believed he was not a suspect and understood he was not under arrest at the time of the interrogations. Notwithstanding his own testimony that he understood he was not under arrest and that there was no formal restraint on his movement, Petitioner argues that he was in custody at the time of the two interrogations, because the interrogations occurred at the police station and because he was a suspect in the case. Petitioner misstates the law. The fact that an individual is a suspect in a criminal case is not relevant to the issue of whether he is in custody for Miranda purposes, as long as the police do not convey to the individual that he is a suspect. Stansbury, 511 U.S. at 324, 114 S.Ct. at 1529-30. Nor is the fact that the interrogation occurred at the police station dis-positive of the issue, because “some suspects are free to come and go until the police decide to make an arrest.” Id. at 325, 114 S.Ct. at 1530. There is no dispute in this case the Petitioner believed both that he was not a suspect, and that he was not under arrest, until the police formally arrested him half an hour after his second interrogation concluded. There is no dispute in this case that the actual decision to arrest did not occur until the time when the second interrogation concluded. These undisputed facts compel a finding that Petitioner was not in custody at the time of the two interrogations. Therefore, Miranda warnings were not required, and admission of his statements at trial was proper. Petitioner’s eleventh challenge to his conviction and sentence is meritless. 2. Failure to Disclose Brady Material In claim number three, Petitioner alleges that the State improperly failed to supply him with three pieces of exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady requires the prosecution to provide an accused with all evidence favorable to him, “where the evidence is material either to guilt or to punishment.” Id. at 87, 83 S.Ct. at 1196-97. The duty to disclose encompasses impeachment evidence as well as exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Petitioner did not raise this claim on direct appeal from his conviction. Thus, the claim is procedurally defaulted unless Petitioner can establish cause for his failure to raise it and prejudice attributable thereto, Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-2507, 53 L.Ed.2d 594 (1977), or that the constitutional error probably led to the conviction of an innocent person, Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649-50, 91 L.Ed.2d 397 (1986). Petitioner does not dispute that he did not raise his Brady claim on direct appeal. He argues, however, that the Court should not find his Brady claim to be procedurally defaulted because the claim arises out of governmental misconduct. That argument lacks merit. It is well established that a habeas petitioner who fails to raise a Brady claim on direct appeal cannot bring such a claim in a collateral attack on his conviction and/or sentence without a demonstration of both cause and prejudice. Gray v. Netherlands 518 U.S. 152, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). With regard to cause and prejudice, Petitioner argues summarily that he “has cause for not earlier presenting this issue in state court. Mason has been prejudiced thereby because he lost an opportunity for federal review of a claim of merit.” (Pet’r’s Traverse at 100.) He makes no factual arguments to support either proposition. He has identified no basis to support a finding of cause for his failure to raise his Brady arguments on direct appeal. Nor has he demonstrated that the exculpatory evidence “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 1952, 144 L.Ed.2d 286 (1999). Accordingly, the Court finds that Petitioner has procedurally defaulted his Brady claim. Furthermore, the Court has conducted an independent review of the materials Petitioner has submitted, and has determined that none of those materials would compel a finding of a Brady violation, even were this Court to consider Petitioner’s Brady claim on the merits. In order to make out a true Brady violation, a petitioner must show not only that the state failed to disclose exculpatory evidence, but that “the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.” Strickler, 119 S.Ct. at 1948. Petitioner first indicates that four days after Dennis’ body was found, Robert Rodeffer stated that he had been present at Dennis’ murder, and gave information about it. The Court has reviewed the contemporaneous reports of Rodeffer’s 'statement. Those reports indicate that Rodeffer was both heavily intoxicated and suicidal at the time, and that he made those statements as part of an evaluation that was being conducted at Marion General Hospital. Both the reports of Rodeffer’s conduct and the content of the assertions Rodeffer made indicate the presence of serious mental health problems. The factual statements Rodeffer made about the cause of death were inconsistent with Dennis’ physical injuries. On these facts, it strains credibility past the breaking point to suggest that there is a reasonable probability Rodeffer’s evidence would have produced a different verdict. It is not at all unusual, after a murder has received widespread media attention, for mentally unstable people to come forward with “information” about the killing that ultimately proves to be inconsistent with the actual facts of the case. Even a cursory review of Rodeffer’s conduct on the night he made his statement, and the content of the statement itself, reveals Rodeffer to be one of those people. The state’s failure to disclose Rodeffer’s statement does not create a Brady violation. Petitioner next indicates that the state failed to disclose the existence of two separate telephone conversations Captain A1 Hayden had with Dennis’ friends Michael and Carolyn Young three days before the jury was impaneled. The evidence adduced at trial showed that Robin Dennis and her husband Chris had spent the night of February 7-8, 1993 at the Youngs’ home after a party at which significant amounts of alcohol were consumed. The morning of February 8, 1993, the day Robin Dennis disappeared, Petitioner Mason and his wife joined the group. Evidence adduced at the trial showed that Robin Dennis and Petitioner had left the Youngs’ house together at about 2:30 that afternoon. Chris Dennis was lying under the coffee table, passed out, from before the time Robin Dennis and Petitioner left the house until between 6:00 and 10:00 that evening. During Hayden’s conversations with the Youngs, both Michael and Carolyn Young indicated that they had moved from Ohio to South Carolina because they were receiving threatening letters and telephone calls from unknown people in connection with the trial. Michael Young told Captain Hayden that when Chris Dennis woke up late in the evening on February 8, 1993, he was angry that Robin Dennis was not there, and said he would kill her when he found her. Carolyn Young said she thought she had seen, several hours after Dennis was last seen alive, the Harley-Davidson T-shirt Dennis was wearing at the time of the murder. Carolyn Young said she thought she had seen Robin Dennis riding in a car on the evening of February 8, 1993, several hours after the prosecution argued that Petitioner killed Dennis. Both Youngs expressed concerns that Chris Dennis might have killed his wife in order to gain the proceeds of her life insurance. Petitioner claims that he was entitled to disclosure of those statements, because they tend to support his defense that Chris Dennis was the real murderer. The Court has reviewed the record. Both Michael and Carolyn Young testified at trial. Michael Young testified on direct examination that Chris Dennis (decedent’s husband) had said “If I find her, I’ll kill her” on the night of February 8, 1993. (Tr. at 2442, line 17-18.) Petitioner had ample opportunity to cross-examine Michael Young as to that statement, and did so cross-examine him. (Tr. at 2477-78.) Carolyn Young testified on direct examination that Chris Dennis showed her a black Harley-Davidson T-shirt a few hours after Robin Dennis disappeared. (Tr. at 2601-03.) She also testified that Robin and Chris Dennis owned at least two Harley Davidson T-shirts, and that the T-shirt Chris Dennis showed her was not the same T-shirt found near the victim’s body. (Tr. at 2604-05.) Petitioner had ample opportunity to cross-examine Carolyn Young about that testimony, and did so cross-examine her. (Tr. at 2684-86.) Carolyn Young also testified on direct examination that she thought she saw the victim alive at about 9:45 on the evening of February 8,1993. (Tr. at 2606-10.) Upon further examination, she testified that she believed the car was the victim’s because it was a beige Skylark with one headlight missing, but that lighting conditions were poor and she was not wearing her glasses, so she was not certain that the individual in the car was Robin Dennis. (Tr. at 2609-10.) Petitioner had ample opportunity to cross-examine Carolyn Young on that issue, and did so cross-examine her. (Tr. at 2677-82.) Carolyn Young’s cousin, Melissa Wright, also testified about Carolyn Young’s statement that she had seen the victim alive on the evening of February 8, 1993, and was cross-examined in detail about her testimony. (Tr. at 2547-48 & 2566-69.) Petitioner attempted to elicit testimony from Carolyn Young on cross examination that she believed Chris Dennis had arranged for his wife to be killed for her life insurance money. (Tr. at 2646.) The trial court refused to allow the testimony because Carolyn Young could not identify a factual basis for her belief. Petitioner questioned both Michael and Carolyn Young about Robin Dennis’ life insurance policy. Thus, the record demonstrates conclusively that Petitioner not only had access to, but actually attempted to proffer at trial, every piece of exculpatory evidence he now alleges he was unfairly deprived of by the state’s failure to disclose Captain Hayden’s telephone conversations with Michael and Carolyn Young. On this record, Petitioner cannot demonstrate a reasonable probability that disclosure of the undisclosed evidence would have produced a different verdict. The state’s failure to disclose Captain Hayden’s telephone conversations with Michael and Carolyn Young does not create a Brady violation. Finally, Petitioner claims that the state failed to disclose pretrial statements of witnesses Ricky McDuffie, Gregory Bruce Allen Jones, Michael Young, Melissa Wright, Carolyn Young, and Chris Dennis that differ from the statements offered by those witnesses at trial. Petitioner has filed nothing with the Court to indicate that any such documents exist, and the Court’s review of the trial transcript demonstrates that Petitioner cross-examined each of the listed witnesses in detail, and frequently used pretrial statements from those witnesses for impeachment purposes. On this record, Petitioner cannot demonstrate a Brady violation arising out of the state’s failure to provide inconsistent pretrial statements from Ricky McDuffie, Gregory Bruce Allen Jones, Michael Young, Melissa Wright, Carolyn Young, and Chris Dennis. Petitioner’s third challenge to his conviction and sentence is meritless. B. Claims Relating to Jury Selection, Conduct, Instructions, and Deliberations Petitioner has raised a number of challenges to the impartiality of the jury. 1. Failure to Transfer Venue In claim number nine, Petitioner claims that it was impossible for him to get a fair trial in the venue in which he was tried because the venire was tainted by pretrial publicity. Petitioner moved for a transfer of venue, but did not raise this claim on direct appeal from his conviction. Thus, the claim is procedurally defaulted unless Petitioner can establish cause and prejudice. Petitioner claims that he has shown , cause and prejudice because the local media coverage was so extensive that his trial attorney’s failure to move for a transfer of venue amounted to ineffective assistance of counsel. As has already been stated, this case arises out of the rape and murder of Robin Dennis, a white woman, by Petitioner Maurice Mason, an African-American man, on February 8, 1993, near Marion, Ohio. The victim’s disappearance and murder were covered in detail by local news media, so that most residents of the area knew something about the crime by the time the case went to trial. The bulk of the media coverage occurred around the time of the victim’s disappearance. Petitioner has identified only two newspaper articles appearing after March, 1993, and none after September of that year. Jury selection began on May 31, 1994. Before conducting voir dire, the trial court had each juror fill out a forty-one question form. The trial court then conducted individual voir dire of each venireperson, out of the presence of the other potential jurors, to determine both the venireperson’s views on the death penalty, and whether pretrial publicity had influenced his or her views on Petitioner’s guilt. A handful of venire members were dismissed for cause after they indicated that they had formed opinions about Petitioner’s guilt. Most of those venirepersons were personally acquainted with either Petitioner or the victim, or a close Mend or relative of Petitioner or the victim. One or two venirepersons indicated that news reports had affected their opinions. None of the individuals who served on the petit jury claimed any detailed knowledge about the case. The Juror who displayed the most knowledge was Juror Downs. Juror Downs indicated during individual voir dire that she had read a few newspaper articles about the murder the previous year. Upon questioning, she stated that: Ms. Downs: I have read, like probably everybody in Marion County; I haven’t read maybe as much as — well, maybe I have. I had a couple sisters that was pretty sick last year and died within a week of each other, so I was going back and forth. And a lot of times, I didn’t read the paper. Attorney Slagle: Do you remember any specifics at all? Ms. Downs: Other than the girl’s body was found and they had picked a — no, I don’t think they picked a suspect up. I think a suspect was already incarcerated and, if I remember right, and I think they was waiting on DNA evidence. (Tr. at 935-36.) No other juror who actually served claimed as much knowledge as Juror Downs. Juror Davis said that he had read an article about the case in the Marion Star, but that he considered it an untrustworthy newspaper, and had not formed any feelings about the case. (Tr. at 1014.) Jurors Bird, Furlong, Haines, Haney, Mahaffey, and Straub stated that they were unfamiliar with the case. After individual voir dire was completed, the trial court conducted general voir dire in the presence of the entire venire. Jurors Crane, Dennis, Gleason, and McGuire were asked during general voir dire whether they had heard anything about the case, and did not indicate that they had heard anything. Every juror who was impaneled stated that he or she could remain impartial and decide the case based only on the evidence presented at trial. The jury was sworn on June 2,1994. The issue the Court must decide on Petitioner’s ninth challenge to his conviction and sentence is whether his appellate counsel’s failure to raise the denial of his motion for a transfer of venue was so glaringly deficient that it amounted to ineffective assistance of counsel, and whether he has shown prejudice attributable thereto. If Petitioner cannot show cause and prejudice, his claim is procedurally defaulted. Furthermore, since Petitioner has not ever argued, and does not now argue, that any particular juror actually revealed a disqualifying animus or unfavorable predisposition toward him during voir dire, his claim must be based on a presumption of prejudice, despite the fact that his trial counsel passed every member of the eventual jury for cause, and the trial court found each juror to be impartial. The trial court’s determination that the petit jury was impartial is presumed to be correct unless the petitioner rebuts it by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The facts in the record compel a finding that Petitioner cannot show cause and prejudice for his failure, on appeal, to raise the trial court’s denial of his motion for a transfer of venue. Nor would such a claim have merit even were this Court to consider it. Pretrial publicity, in and of itself, does not inevitably lead to an unfair trial. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791, 2800, 49 L.Ed.2d 683 (1976). A juror’s prior knowledge of the existence of the case, familiarity with the issues involved, or even some preexisting opinion as to the merits, does not in and of itself raise a presumption of jury taint. DeLisle v. Rivers, 161 F.3d 370, 382 (6th Cir.1998). The doctrine of presumed prejudice is “rarely invoked and only in extreme situations,” where the pretrial publicity is so inflammatory that it has “displaced the judicial process, thereby denying the defendant his constitutional right to a fair trial.” United States v. McVeigh, 153 F.3d 1166, 1181 (10th Cir.1998). This case displays none of the circumstances which federal courts have found sufficiently exceptional to merit a presumption of prejudice. No allegation has been made that the newspaper reports of Robin Dennis’ disappearance and death were inflammatory. No allegation has been made that the venire as a whole exhibited indications of prejudice against Petitioner; indeed, only a handful of the 125 venirepersons were disqualified because of fixed opinions about Petitioner’s guilt. Sixteen months passed between the time of the murder and the time of the trial, and the few venirepersons who stated that they had heard about the case generally indicated that their memories had faded. (See Tr. at 1034.) All of the jurors who actually served indicated that they knew little or nothing about the case before the trial. The jury was properly and repeatedly instructed not to read, watch, or listen to any news coverage of the case, or to discuss the trial with anyone, and they were sequestered during their deliberations. On these facts, the Court must defer to the trial court’s factual determination that the jury was not unduly tainted by pretrial publicity. Petitioner’s ninth challenge to his conviction and sentence is meritless. 2. Improper Conduct During Individual Voir Dire In claim number twelve, Petitioner raises a number of challenges to the conduct of the individual voir dire which, he claims, denied him a trial by a fair and impartial jury. Specifically, Petitioner claims (a) that the trial court improperly limited his voir dire on the issue of race; (b) that the trial court improperly refused to remove venireperson Blake for cause; (c) that the trial court inappropriately made its views on the death penalty known to the trial jury; (d) that the prosecutor inappropriately described the “guilt or innocence” phase of the trial as the “guilt phase” during voir dire; (e) counsel failed to examine two female veni-repersons who were domestic violence victims as to that issue; (f) defense counsel inappropriately described some of the mitigation factors Petitioner considered proffering as a “crybaby” defense; and (g) counsel failed to examine the potential jurors about their feelings on the victim being pregnant at the time of her murder. Petitioner has also moved for an eviden-tiary hearing on those claims. Under the AEDPA, Petitioner is entitled to an evi-dentiary hearing only if he can demonstrate he was not at fault in failing to develop the factual basis of his claim in state court proceedings, Michael Williams v. Taylor, — U.S. -, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000), or that his claim relies on “a factual predicate that could not have been previously discovered through the exercise of due diligence; and the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found [him] guilty of the underlying offense,” 28 U.S.C. § 2254(e)(2)(A)(ii) & (B). Petitioner’s claim that he was denied his right to an impartial jury because the trial court improperly limited his voir dire on the issue of race lacks merit. The trial court had each venireperson fill out a forty-one question form that addressed race discrimination, and then spent three days conducting sequestered, individual voir dire of prospective jurors. Each prospective juror was questioned on his or her attitudes about race and race discrimination. Each prospective juror indicated that he or she would be able to decide the case impartially, and that Petitioner’s race would not affect his or her decision in the case. The record does not reveal even a single instance where counsel attempted to ask a venireperson a question about race and was prevented from so doing. Petitioner has failed to demonstrate that he was unable to voir dire prospective jurors about their attitudes concerning race. Petitioner’s claim that he was denied his right to an impartial jury because the trial court improperly refused to remove venireperson Blake for cause after Mr. Blake indicated that he disapproved of interracial dating also lacks merit. First, it is by no means clear that Mr. Blake should have been excused for cause. Mr. Blake stated that notwithstanding his objections to interracial relationships, he would convict Petitioner only if the prosecution proved all the elements of the charged crimes beyond a reasonable doubt. (Tr. at 801-02.) Second, and more importantly, Petitioner used one of his peremptory challenges to remove Mr. Blake from the panel. A defendant’s right to a fair and impartial jury is not denied or impaired when he chooses to use a peremptory challenge to remove a juror who should have been excused for cause. “So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.” Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80 (1988); accord United States v. Martinez-Salazar, — U.S. -,-, 120 S.Ct. 774, 781-82, 145 L.Ed.2d 792 (2000). Petitioner has not demonstrated that the trial court’s refusal to dismiss Mr. Blake for cause resulted in his being tried by an impartial jury. Petitioner’s claim that he was denied his right to an impartial jury because the trial court inappropriately made its views on the death penalty known to the trial jury lacks merit as well. The following colloquy occurred during individual voir dire of Juror Crane: The Court: And what are your views or your thoughts about the death penalty? Ms. Crane: I think that it should be used, but I don’t think it is used often enough. I mean, it seems like people are sentenced to death, and then they don’t do anything about it anyhow, so it’s not really a deterrent. The Court: Well, we won’t debate that. There’s been a lot of them have been executed recently. Not in Ohio, it hasn’t been. But I agree with you there. (Tr. at 964-65.) The Court agrees that it is not proper for a judge to express his own views regarding the death penalty during a capital murder trial. In the context of this case, however, the trial court’s isolated comment cannot have tainted the venire so as to deny Petitioner an impartial jury. The statement itself was relatively innocuous. Read in context, the Court is merely agreeing that the death penalty is not a significant deterrent to crime- — not expressing a view on the propriety of capital punishment. It is undisputed that eleven of the twelve jurors who served never even heard the statement. From the perspective of the one juror who heard the judge’s statement, Ms. Crane, the statement was a single, offhand comment that occurred toward the beginning of a month-long trial, and not as part of any official instruction on the law or the facts of the case; it is unlikely that Ms. Crane remembered the statement beyond the conclusion of opening statements. Furthermore, the trial court properly cured any taint that might have been created by instructing the jurors to disregard any indication of the trial court’s view of the case. Cf. Scott v. Mitchell, 209 F.3d 854, 878 (6th Cir.2000) (“Allegations of jury bias must be viewed with skepticism when the challenged influence occurred before the jurors took their oath to be impartial.”). Petitioner has not demonstrated that the trial court’s statement deprived him of his right to an impartial jury. Petitioner’s claim that he was denied his right to an impartial jury because the prosecutor inappropriately described the “guilt or innocence” phase of the trial as the “guilt phase” during the voir dire of three jurors who served lacks merit. The prosecutor’s reference to the “guilt phase” was merely a convenient shorthand for the first phase of the trial, and did not create a presumption of guilt. Petitioner’s claim that he was denied his right to an impartial jury because counsel failed to examine two female venirepersons who were domestic violence victims as to that issue lacks merit. The record demonstrates that both jurors who indicated histories of domestic violence were, in fact, questioned about that circumstance to counsel’s satisfaction. Petitioner’s claim that he was denied his right to an impartial jury because defense counsel inappropriately described some of the mitigation factors Petitioner considered proffering as a “crybaby” defense lacks merit. A review of the transcript demonstrates that Petitioner’s counsel questioned venirepersons about whether they considered certain mitigation factors to be a “crybaby” defense in order to identify and weed out potential jurors who would be inclined to rule disfa-vorably to Petitioner. The most effective way of determining whether a venireper-son would consider Petitioner’s mitigation evidence to be a “crybaby” defense was to ask the question. Indeed, if Petitioner’s counsel had failed to inquire into venire-persons’ attitudes regarding mitigation evidence, Petitioner might well have raised that failure as a point of error. Petitioner has not demonstrated that his counsel’s reference to a “crybaby” defense deprived him of his right to an unbiased jury. Petitioner’s claim that he was denied his right to an impartial jury because counsel failed to examine the potential jurors about their feelings relative to the victim being pregnant at the time of her murder lacks merit. The record demonstrates that the potential jurors were, in fact, informed that the victim was pregnant at the time of the murder and were examined about their attitudes regarding the victim’s pregnancy. Petitioner’s twelfth challenge to his conviction and sentence is meritless. No evi-dentiary hearing is warranted. 3. “Death-Qualification” of Jury In claim number thirteen, Petitioner claims that he was denied his right to trial by a fair and impartial jury because the prosecution (a) successfully challenged for cause all potential jurors who stated that their beliefs about the death penalty would prevent them from fairly considering death as a penalty, and (b) used its peremptory challenges to remove three potential jurors who expressed scruples about the death penalty. Both arguments lack merit. It is proper to exclude from a jury, for, cause, a prospective juror who indicates that he or she would not under any circumstances vote for capital punishment. Morgan v. Illinois, 504 U.S. 719, 728, 112 S.Ct. 2222, 2229, 119 L.Ed.2d 492 (1992); Lockhart v. McCree, 476 U.S. 162, 173-76, 106 S.Ct. 1758, 1764-67, 90 L.Ed.2d 137 (1986). It is equally permissible for a prosecutor to exercise a peremptory challenge to remove a potential juror who would hesitate to impose the death penalty. Luckett v. Kemna, 203 F.3d 1052, 1054-55 (8th Cir.2000); Gosier v. Welborn, 175 F.3d 504, 509-10 (7th Cir.1999); Keel v. French, 162 F.3d 263, 271 (4th Cir.1998). The actions of which Petitioner complains do not create a constitutional violation. Petitioner’s thirteenth challenge to his conviction and sentence is meritless. 4. “Acquittal First” Jury Instruction In claim number eighteen, Petitioner claims that the trial court erred by-giving an improper “acquittal first” instruction in violation of Ohio v. Thomas, 40 Ohio St.3d 213, 219-20, 533 N.E.2d 286, 292 (1988). An “acquittal first” instruction is an instruction that allows the jury to consider a lesser-included offense only if they find that the government has failed to prove beyond a reasonable doubt a defendant’s guilt of the greater offense. In this case, the trial court charged the jury that: the first count of the indictment returned in this case charges the Defendant, Maurice A. Mason, with the crime of Aggravated Murder. This charge is founded upon Section 2903.01(B) of the Ohio Revised Code which provides in pertinent part as follows: No person shall purposely cause the death of another while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, rape. Before you can find the Defendant guilty of the crime of Aggravated Murder, as he stands charged in the first count of the indictment, the State of Ohio must prove to each member of this jury, beyond a reasonable doubt, that on or about the 8th day of February, 1993, and in Marion County, Ohio, this Defendant, Maurice A. Mason, purposely caused the death of Robin Dennis while the Defendant was committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, rape. [The trial court then defined a number of terms relevant to the crime of Aggravated Murder.] If you find that the State proved beyond a reasonable doubt all the essential elements of the aggravating circumstances contained in the Specification, your finding must be guilty of the Specification. However, if you find that the State failed to prove any one of the essential elements of aggravated circumstances contained in the Specification, your finding must be not guilty of the Specification to Count 1 of the indictment. If you find the Defendant not guilty of Aggravated Murder, you will then continue with your deliberations and determine whether or not the State of Ohio proved beyond a reasonable doubt all the essential elements of the lesser crime of Murder. (Tr. at 4147-51.) Petitioner did not object to the instruction at trial. Thus, the claim is proeedurally defaulted unless Petitioner can establish cause and prejudice. Petitioner claims that he has shown cause and prejudice because his trial attorney’s failure to object to the instruction amounted to ineffective assistance of counsel. Petitioner did object to the instruction on direct appeal. Notwithstanding Petitioner’s failure to preserve the error below, the Ohio Supreme Court addressed the issue and determined that the instruction given by the trial court did not constitute an improper “acquittal first” instruction. Ohio v. Mason, 82 Ohio St.3d 144, 160-61, 694 N.E.2d 932, 951 (1998); cf. State v. Schultz, 141 N.H. 101, 677 A.2d 675, 678 (1996); Missouri v. Wise, 879 S.W.2d 494, 517 (Mo.1994) (en banc); State v. Daulton, 518 N.W.2d 719, 723 (N.D.1994); Thomas, 40 Ohio St.3d at 220-21, 533 N.E.2d at 292-93; Colorado v. Padilla, 638 P.2d 15, 17-18 (Colo.1981) (ah holding similar instructions not to be “acquittal first” instructions). When a prisoner raises a claim that his jury instructions were constitutionally infirm, the standard the Court applies on habeas review is highly demanding. “[T]he fact the instruction was allegedly incorrect under state law is not a basis for habeas relief.” Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991). Rather, the sole question on a petition for habeas corpus is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Id. at 72, 112 S.Ct. at 482. In this case, the Ohio Supreme Court, which is the final arbiter charged with the interpretation of Ohio law, determined that the challenged' jury instruction did not violate Ohio law. Furthermore, even if the instruction had been an “acquittal first” instruction, such instructions do not violate federal due process principles. Indeed, they are approved, and even mandated, in many states. See, e.g., State v. Abdalaziz, 248 Conn. 430, 729 A.2d 725, 728 (1999); State v. Gagnon, 589 N.W.2d 560, 565-66 (N.D.1999); State v. Mann, 959 S.W.2d 503, 521 (Tenn.1998); State v. Taylor, 141 N.H. 89, 677 A.2d 1093, 1097 (1996); see generally State v. Daulton, 518 N.W.2d 719, 721 (N.D.1994) and cases cited therein. On these facts, where Petitioner’s only claim is that his trial counsel failed to object to a jury instruction that was approved under state law, he cannot show either cause for failing to preserve what would have been a meritless objection, or that his counsel’s failure to preserve that objection prejudiced him in any way. Petitioner’s eighteenth challenge to his conviction and sentence is meritless. 5. Trial Court’s Instructions at Penalty Phase In claim number twenty, Petitioner claims that the trial court’s instructions at the penalty phase of the trial gave the jury inadequate guidance and created an unreliable sentencing determination. The trial court charged the jury as follows: The evidence [in the penalty phase] ... [includes all information which is relevant to] ... any mitigating factors including, but not limited to, the nature and circumstances of the offense and the history, character, and background of the Defendant, and any other factors that are relevant to the issue of whether the Defendant should be sentenced to death. The Prosecutor has the burden to prove beyond a reasonable doubt that the aggravating circumstances of which the Defendant was found guilty outweigh the factors in mitigation of imposing the death sentence. To outweigh means to weigh more than, to be more important than. It is the quality of the evidence that must be given primary consideration by you. The quality of the evidence may or may not be commensurate with the quantity of the evidence. That is the number of witnesses or exhibits presented in this case. It is the quality or importance of the aggravated circumstances and the quality or importance of the mitigating factors which must be considered. The existence of mitigating factors does not preclude or prevent the death sentence if the aggravating circumstances outweigh the mitigating factors. ‡ ‡ ‡ ‡ ‡ You shall recommend the sentence of death if you unanimously, all twelve jurors, find by proof beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors. If you do not so find, you shall unanimously, all twelve, recommend either a life sentence with parole eligibility after serving twenty years of imprisonment or a life sentence with parole eligibility after serving thirty years of imprisonment. (Tr. at 4347-49.) Petitioner raises a number of challenges to the charge. First, Petitioner objects to the trial court’s explanation of the bifurcated trial made at the beginning of voir dire. The trial court explained that the first phase of the trial would determine Petitioner’s guilt or innocence, and that the second phase of the trial, if necessary, would determine the penalty. (Tr. at 715-16.) Petitioner complains that the trial court’s explanation “failed to give the jury any guidance in determining whether a death sentence would be appropriate.” That argument lacks merit. The trial judge’s description of the bifurcated trial procedure was correct, and was not part of the formal charge to the jury. The trial court’s description of the bifurcated trial procedure at voir dire did not render the jury instructions infirm. Second, Petitioner argues that the jury instruction that was given relieved the state of its burden to prove each essential element of the crime beyond a reasonable doubt. That contention is factually incorrect. The transcript reveals that the trial court instructed the jury that they must “find by proof beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors” before the death penalty could be imposed. (Tr. at 4349.) Third, Petitioner objects to the trial court’s failure to define “mitigating factors” or “mitigation” in the jury instructions. That argument lacks also merit. So long as the sentencer is not precluded from considering any constitutionally relevant evidence, no particular instruction is required, and mitigating factors need not be defined. An instruction directing the jury to consider “all the evidence” is constitutionally sufficient. Buchanan v. Angelone, 522 U.S. 269, 118 S.Ct. 757, 761-62, 139 L.Ed.2d 702 (1998). Fourth, Petitioner objects to the introduction of all of the evidence admitted during the guilt phase of the trial at the penalty phase. He argues generally that some of that evidence was not relevant to the penalty phase, although he has not identified any specific evidence fitting into that category. Petitioner’s argument is meritless. It is proper for the jury to consider, during the penalty phase of a capital trial, all evidence concerning the nature and circumstances of the offense. Furthermore, Petitioner invited reconsideration of all guilt phase evidence by arguing residual doubt at sentencing. The admission of that evidence was not error. Fifth, Petitioner objects to the trial court’s curative instruction that “the Defendant’s right to appeal his conviction will not be limited in any way by your imposition of the death sentence,” (tr. at 4349), given after Petitioner suggested twice during an unsworn statement to the jury that imposition of the death penalty would impair his appeal rights, (tr. at 4279-80). Petitioner argues that the curative instruction violates the rule of law set forth in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). That argument has no foundation. In Caldwell, the prosecuting attorney had stated in closing argument that the defendant’s attorneys “would have you believe that you’re going to kill this man and they know — they know that your decision is not the final decision.... Your job is renewable. They know it.” 472 U.S. at 325, 105 S.Ct. at 2637. The Supreme Court vacated the jury’s imposition of the death penalty in that case, holding that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the death sentence rests elsewhere.” Id. at 328-29, 105 S.Ct. at 2639. The Supreme Court has subsequently explained that Caldwell is relevant only to comments that “mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision.” Darden v. Wainwright, 477 U.S. 168, 184, n. 15, 106 S.Ct. 2464, 2473, n. 15, 91 L.Ed.2d 144 (1986). “To establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law.” Romano v. Oklahoma, 512 U.S. 1, 8-9, 114 S.Ct. 2004, 2009-10, 129 L.Ed.2d 1 (1994) (quoting Dugger v. Adams, 489 U.S. 401, 407, 109 S.Ct. 1211, 1215, 103 L.Ed.2d 435 (1989)). Nothing in Caldwell prohibits a trial court from giving the jury accurate instructions regarding post-sentencing procedures. Caldwell, 472 U.S. at 342, 105 S.Ct. 2633 (O’Connor, J., concurring); Mapes v. Coyle, 171 F.3d 408, 414-15 (6th Cir.1999). The trial court’s instruction in the case at bar did not create a Caldwell violation. The instruction was a correct statement of the law. It did not mislead the jury regarding its role in the sentencing process. The jury was expressly instructed not to consider the subject of appeal in determining Petitioner’s sentence. (Tr. at 4349-50.) No Caldwell violation occurred. Sixth, Petitioner objects to the trial court’s references to “aggravating circumstances” in the plural during the penalty phase of the trial, when only one such aggravating circumstance existed. That argument lacks merit. It is clear from the record that only one aggravating circumstance — rape—was brought to the jury’s attention. In light of that undisputed fact, it cannot be said that the trial court’s slip of the tongue “so infected the entire trial that the resulting conviction violates due process.” McGuire, 502 U.S. at 72, 112 S.Ct. at 482. Seventh, Petitioner objects to the trial court’s denial of his requested instruction that the jury could consider only the circumstance of rape as an aggravating factor in determining whether or not to impose the death penalty. That argument lacks merit. It is not disputed that no other aggravating circumstances were presented for the jury’s consideration. Eighth, Petitioner objects to the trial court’s denial of his requested instruction that the jury consider mercy as a factor in determining whether or not to impose the death penalty. That argument is without merit. It is not improper for a trial court to refuse a requested instruction on mercy. Scott, 209 F.3d 854, 877; Mapes, 171 F.3d at 415-16; Henderson v. Dugger, 925 F.2d 1309, 1319 (11th Cir.1991); accord United States v. Webster, 162 F.3d 308, 326-27 (5th Cir.1998); Davis v. Executive Dir. of Dep’t of Corrections, 100 F.3d 750, 775 (10th Cir.1996). Petitioner and his counsel had ample opportunity to ask for mercy during Petitioner’s unsworn statement to the jury and during counsel’s closing argument, and did so argue. (Tr. at 4322 & 4336.) Ninth, Petitioner objects to the trial court’s denial of his requested instruction that the jury consider residual doubt as a factor in determining whether or not to impose the death penalty. That argument lacks merit. It is not improper for a trial court to refuse a requested instruction on residual doubt. Franklin v. Lynaugh, 487 U.S. 164, 172-74, 188, 108 S.Ct. 2320, 2327, 2335, 101 L.Ed.2d 155 (1988); Hooks v. Ward, 184 F.3d 1206, 1229 (10th Cir.1999). Furthermore, Petitioner’s counsel discussed residual doubt at length during closing argument; thus, it is extremely unlikely that the requested instruction, if given, would have had any effect. Tenth, Petitioner claims that the trial court improperly instructed the jury on all seven mitigating factors in Ohio Rev.Code § 2929.04(B), despite the fact that Petitioner presented evidence on only two of those factors. That contention is factually incorrect. The trial court modified the charge to include reference to only those mitigating factors about which Petitioner presented evidence and the final, “catchall” category. (Tr. at 4347.) Eleventh, Petitioner claims that the trial court improperly instructed the jury that its imposition of the death penalty was merely a “recommendation” to the trial court, and was not binding. ■ He presents no record evide