Full opinion text
MEMORANDUM OPINION AND ORDER ECONOMUS, District Judge. This matter is before the Court upon Alfred Morales’ Petition Under 28 U.S.C. Section 2254 For Writ Of Habeas Corpus By A Person In State Custody (Dkt.# 12) (the “Application”). Morales alleges nineteen grounds for relief in the Application. Also before the Court are Respondent’s Return of Writ (Dkt.# 14) (“ROW”), Petitioner Morales’ Traverse To Respondent Coyle’s Return Of The Writ (Dkt.# 25) (“Traverse”), and Respondent’s Reply To Petitioner’s Traverse (Dkt.# 28) (“Reply”). For the reasons which follow, the Court denies the Application. I. INTRODUCTION In 1985, Morales was convicted by a jury in the Common Pleas Court of Cuyahoga County,- Ohio of aggravated murder and kidnapping and sentenced to death for killing twelve-year old Mario L. Trevino (“Mario”). , II. FACTUAL BACKGROUND The facts as stated by the Ohio Supreme Court are as follows: On the evening of March 2, 1985, Mario L. Trevino, age twelve, was killed in Cleveland. Ohio. The victim, five feet, two inches tall, and weighing ninety-three pounds, had been savagely beaten to death [footnote omitted]. The record reveals the following sequence of events which preceded this tragic conclusion. Appellant, Alfred J. Morales, stands five feet, eight inches tall, weighs two hundred twenty pounds, and is an expert in the martial arts. The Trevino family, Mario being the youngest male member, had known appellant for many years prior to the evening of March 2, 1985. Through their acquaintanceship with appellant, the Trevinos were well aware of appellant’s skill in the martial arts and of his ability to use a variety of weapons for their intended purposes. For a time, Jesse Trevino, the victim’s older brother, and appellant had been friends. ' The friendship ended at a previous time when Jesse refused to commit perjury for appellant, thereby depriving appellant of an alibi regarding the theft of a taxicab. As a result of Jesse’s refusal, appellant pled guilty to the theft offense and was returned [footnote omitted] to the Mansfield Reformatory. While in the Mansfield Reformatory, appellant wrote threatening letters to Toby Trevino, brother of both Jesse and Mario. The letters suggested revenge upon the whole Trevino family, including Yolando Trevino, sister of Jesse, Toby and Mario, who had previously refused to become appellant’s girlfriend. The envelope of one letter contained both a drawing and the letters “D.W.C.S.,” “B.W.” and “D.O.D.” The letters were later shown to mean “Death Will Come Soon,” “Beware” and “Demon of Darkness,” a name appellant used for himself. The drawing on this envelope depicts a heart pierced by a sword. Toby Trevino’s name is printed on the heart and blood is dripping from the tip of the sword. The envelope of the second letter likewise contained a drawing. The second drawing depicts a skull, dripping blood, with a sword passing through it. Beneath the skull is printed the word “DANGER.” On February 19, 1985, appellant was released from the Mansfield Reformatory. During the three-week period between appellant’s release and Mario’s murder, appellant was observed watching the Trevino home while hiding in the bushes of a house near the Trevinos’ residence. During this same time period, appellant stated to a variety of witnesses that he was “going to kill Toby’s ass.” that “he had some killing to do and that he knew he was going back to where he came from,” and that “he had * * * a killing to do, and [that] he knew he was going back * * * [a]nd didn’t care.” On the evening of his death. Mario left home some time after 6:00 p.m. to play video games at a nearby store. After leaving the store, Mario was confronted by appellant who told Mario that the wanted to talk with him regarding the problems between appellant and the Trevino family. Mario accompanied appellant from the store to a secretive location, approximately one and one-half to two miles from the store. It was at this location that appellant murdered Mario. Following the murder, appellant went to the nearby home of an acquaintance to wash the blood from his hands and apply ice to his knuckles to control the swelling. When appellant left that location, he left behind the towel containing the ice for his knuckles and his bloodstained white shirt. Soon after appellant’s departure, the towel and bloodstained shirt were turned over to the authorities. Later that same evening, appellant was confronted by Jesse and Toby Trevino who, having learned that Mario had been seen in the company of appellant, questioned appellant as to Mario’s whereabouts. Appellant responded: “I haven’t seen Mario,” “I’m not taking the rap for nothing I didn’t do. man.” and “[y]ou know, the next time I go into jail, it’s going to be for murder.” Early the next morning, March 3, 1985, Mario’s body was discovered. While notifying the Trevinos of Mario’s death, the authorities were informed of the threatening letters sent by appellant. Appellant was subsequently arrested and his home searched. The search produced a jacket and shoes which were still wet from having recently been washed. After being informed of his constitutional rights, appellant therein provided police with both oral and written statements concerning the death of Mario. In both the oral and written statements, appellant admitted that he had confronted the boy at the beverage store, led him to the secluded location and then brutally beat the child, leaving Mario to die. Appellant was subsequently indicted for kidnapping in violation of R.C. 2905.01, aggravated murder with prior calculation and design in violation of R.C. 2903.02(A) [footnote omitted], and aggravated murder in violation of R.C. 2903.02(B) [footnote omitted] with the specification that the crime was committed while appellant was committing or attempting to commit the offense of kidnapping in violation of R.C. 2905.01. At his arraignment, appellant entered pleas of not guilty to all the offenses charged. These pleas were all subsequently changed to pleas of not guilty by reason of insanity. The indictments were consolidated for trial which commenced on December 2, 1985. On December 18, 1985, the jury returned guilty verdicts on all counts of the indictments. The subsequent penalty hearing resulted in a recommendation by the jury that the appellant be sentenced to death upon the jury’s determination that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt. The trial court, upon completion of its required independent weighing of the mitigating factors against the aggravating circumstances, adopted the recommendation of the jury and imposed the penalty of death. Additionally, the trial court sentenced appellant to a term of confinement of ten to twenty-five years for the crime of kidnapping and life imprisonment for the crime of aggravated murder with prior calculation and design. State v. Morales, 32 Ohio St.3d 252, 252-54, 513 N.E.2d 267, 269-70. III. PROCEDURAL HISTORY A. Direct Appeal In addition to the procedural history of this case set forth in the Factual Background supra, the - Court notes that on direct appeal the Eighth Judicial District Court' of Appeals for Cuyahoga County, Ohio (the “Eighth District”) affirmed Morales’ convictions and sentences in all respects on October 2, 1986. See State v. Morales, 1986 WL 11530 (Ohio App. 8 Dist.). Subsequently, on September 2, 1987, the Supreme.Court of Ohio affirmed the decision of the Eighth District in all respects. See State v. Morales, 32 Ohio St.3d 252, 513 N.E.2d 267. Morales then filed a petition for a writ of certiorari to the Supreme Court of the United States, which denied the petition on January 25, 1988. See Morales v. Ohio, 484 U.S. 1047, 108 S.Ct. 785, 98 L.Ed.2d 871 (1988). On March 21, 1988, the Supreme Court denied Morales’ Motion for Rehearing in Morales v. Ohio. 485 U.S. 972, 108 S.Ct. 1252, 99 L.Ed.2d 449 (1988). On March 22, 1988. Morales filed for a Stay of Execution Pending Exhaustion of State Remedies in the Supreme Court of Ohio, which granted the Stay for a period of six months in order to enable Morales to file a petition for post-cónviction relief. B. Post-Conviction Proceedings Morales then filed his Petition to Vacate or Set Aside Sentence pursuant to Ohio Revised Code § 2953.21 (the “Petition”) on September 21, 1988 in the Cuyahoga County Common Pleas Court. On December 21, 1988, the trial court denied the Petition. On May 11, 1989, the trial court issued Findings of Fact and Conclusions of Law and again denied the Petition. On December 13,1989. Morales appealed the denial of the Petition to the Eighth District, which affirmed the decision of the trial court on January 31, 1991. See State v. Morales, 1991 WL 8592 (Ohio App. 8 Dist.). On March 4, 1991, Morales appealed the decision of the Eighth District affirming the denial of the Petition to the Supreme Court of Ohio, which overruled Morales’ Memorandum in Support of Jurisdiction on October 30, 1991. See State v. Morales, 62 Ohio St.3d 1446, 579 N.E.2d 491. Morales then filed a Motion for Rehearing on October 31, 1991, which the Supreme Court denied on November 20, 1991. See State v. Morales, 62 Ohio St.3d 1466, 580 N.E.2d 786. On April 6, 1992, the Supreme Court of the United States denied Morales’ Petition For Writ of Certiorari. See Morales v. Ohio, 503 U.S. 974, 112 S.Ct. 1595, 118 L.Ed.2d 311 (1992). C. Mwmahan Proceedings On November 16, 1992, Morales filed his Application for Delayed Reconsideration with the Eighth District, thus commencing another avenue of appellate review in connection with his claims of alleged ineffective assistance of appellate counsel, in accordance with State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204. On September 29, 1993, the Eighth District granted the Application for Delayed Reconsideration in part and denied it in part. From this decision, Morales filed a Notice of Appeal in the Ohio Supreme Court on October 27, 1993. On November 24, 1993, Morales filed a Motion for Rehearing of Direct Appeal. On January 12, 1994, the Ohio Supreme Court issued two separate orders. First, the Court denied Morales’ Motion for Delayed Reinstatement of Appeal. Second, the Court affirmed the judgment of the Eighth District with respect to the Application for Delayed Reconsideration. On December 9, 1996, Morales filed the Application herein. IV. INITIAL CONSIDERATIONS A. The AEDPA Applies To The Application The Court notes, as a preliminary matter, that in this case the Application was filed on December 9, 1996, which was subsequent to the effective date of the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore, the AED-PA applies herein. See Williams v. Coyle, 167 F.3d 1036, 1037 (6th Cir.1999). Also see King v. Trippett, 192 F.3d 517, 520 (6th Cir.1999) (citing Nevers v. Killinger, 169 F.3d 352, 357 (6th Cir.), cert. denied, 527 U.S. 1004, 119 S.Ct. 2340, 144 L.Ed.2d 237 (1999) and Harpster v. Ohio, 128 F.3d 322. 326 (6th Cir.1997). cert. denied, 522 U.S. 1112, 118 S.Ct. 1044, 140 L.Ed.2d 109 (1998)). Morales asserts in the Preface and Conclusion of his Traverse, and in his discussion in his Traverse of Ground 9, that the pre-AEDPA standard of review should apply herein. See Traverse at 1-2, 120, and 191. In particular, Morales points to this Court’s previous ruling (Dkt.# 11) granting Morales’ pre-Application motion (Dkt.# 7) for a declaration that AEDPA is inapplicable to his case. Morales asserts that he requested this declaration “so that both parties would know which version of 28 U.S.C. § 2254 was applicable to the proceedings in this case.” Traverse at 1. Morales further asserts that based on the foregoing, Respondent has “scoffed” at the aforesaid declaration and has “proceeded in presenting the arguments in his Return of Writ as if this Court’s order never existed.” Id. Because Morales’ very life hangs in the balance in these proceedings, the Court takes his assertions in this regard very seriously. On the surface, Morales’ arguments about the proper standard of review to be applied in his case appear possibly meritorious. However, this Court has previously considered this same argument in Jackson v. Anderson, No. 1:96 CV 794 (Economus, J. Jan. 14, 2000). In that case, capital habeas petitioner Jackson filed a motion (Dkt.# 65) to hold this Court’s final [merits] decision in abeyance pending the Sixth Circuit’s decision in Cooey as to the applicability of the AEDPA. Jackson filed a contemporaneous separate motion (Dkt.# 66) to hold this Court’s final [merits] decision in abeyance pending the Supreme Court’s decision pursuant to its grant of certiorari in Williams v. Taylor, 163 F.3d 860 (4th Cir.1998), cert. granted, — U.S. -, 119 S.Ct. 1355, 143 L.Ed.2d 516, “to resolve the significant split in the circuits respecting the interpretation of 28 U.S.C. § 2254(d)(1) of the AEDPA.” In Jackson v. Anderson, supra, this Court issued its Memorandum Opinion and Order (Dkt.# 71) denying both of the aforesaid motions without prejudice on January 14, 2000. Since that date,- the controlling decisional law has not changed. Despite Morales’ argument that this Court previously ruled that AEDPA is inapplicable herein, that issue was settled by the Sixth Circuit on February 12, 1999, subsequent to the date that Morales filed his Traverse herein,"and also subsequent to this Court’s declaration herein that AED-PA did not apply to Morales’ case, in Williams v. Coyle, 167 F.3d 1036 (6th Cir.1999). The Court finds that Williams remains dispositive precedent for the proposition that AEDPA applies herein. Moreover, in Jackson, warden Anderson argued against Jackson’s request for permission to re-brief the issues in his habeas petition if the standard of review in his case was altered by a finding that AEDPA did apply. This Court found the warden’s following argument to be well-taken: There is no reason to wait for Williams v. Taylor because Jackson’s claims fail under any of the potential standards that the U.S. Supreme Court could adopt concerning the meaning of 28 U.S.C. § 2254(d). Moreover, the Sixth Circuit has continued to decide habeas cases after the U.S., Supreme Court granted certiorari in the Williams case, so there is no reason for this Court to do otherwise. Morales has not shown that he would succeed on the merits of any of his grounds for relief if he were permitted to re-brief his grounds under the standards established by AEDPA. For instance, in his discussion of Ground 12 in his Traverse at 134-35, Morales contends that Respondent herein wrongly argues that Morales has failed to establish that the trial court abused its discretion in admitting photographs of Mario “under federal standards and precedents.” Travérse at 134 (emphasis sic). But Morales then cites for support for this contention a Sixth Circuit precedent, rather than a U.S. Supreme Court precedent. Unless Morales can also cite to a U.S. Supreme Court precedent in support of this contention, he cannot prevail under AEDPA. B. Standard of Habeas Review Under ■AEDPA . The AEDPA “requires heightened respect for state court factual and legal determinations.” Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir.1998). Under the AEDPA, federal habeas courts must now accord findings of fact made in State court proceedings complete deference, pursuant to the presumption of correctness found in 28 U.S.C. § 2254(e)(1). See Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir.), cert. denied, — U.S. -, 119 S.Ct. 2403, 144 L.Ed.2d 802 (1999). An applicant seeking a writ pursuant to § 2254 may rebut this presumption of correctness only with clear and convincing evidence. Id. Under the AEDPA, 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 applicant shows that 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 proceedings. See 28 U.S.C. § 2254(d)(1) and (2) (as amended by the AEDPA) (emphasis added). In the Sixth Circuit, a writ of habeas corpus “will issue” if the unreasonableness of the state court’s application of clearly established precedent is not debatable among reasonable jurists. The unreasonableness of the application will not be debatable if it is so offensive to the precedent, so devoid of record support, or so arbitrary, as to indicate that it is 'outside the universe of plausible, credible outcomes. King, 192 F.3d at 520 (quoting Tucker v. Prelesnik, 181 F.3d 747, 753 (6th Cir.1999)). Under § 2254(d)(1), if no Supreme Court rule can be said to require a particular result in a particular case,, the “unreasonable application” prong of the inquiry applies. See King, 192 F.3d at 520. Federal courts may entertain a State prisoner’s petition for habeas relief only on the grounds that the prisoner’s confinement violates the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a) (1994). A violation of State law is not cognizable in a federal habeas proceeding unless the violation is of constitutional magnitude. See, e.g., Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). Also see Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (“It is not the province of a federal habeas court to reexamine state court determinations on state law questions.”). Thus, general improprieties occurring in State court proceedings are cognizable only if they resulted in fundamental unfairness, and consequently violated the habeas petitioner’s Fourteenth Amendment right to due process. Relief for violations of federal law will be granted only if the violation rises to the level of a “fundamental defect which inherently results in a complete miscarriage of justice.” Reed v. Farley, 512 U.S. 339, 114 S.Ct. 2291, 2297, 129 L.Ed.2d 277 (1994) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962).) Federal courts apply a standard of harmless error review upon collateral review in habeas proceedings different from the standard of harmless error review which they apply in direct appellate review. This means that for purposes of federal habeas review, a constitutional error that implicates trial procedures must be considered harmless unless it had a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahmson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). The Sixth Circuit has held that the Brecht standard applies to harmless error review in habeas cases even in cases where the federal ha-beas court is the first to conduct harmless error review. See Gilliam, 179 F.3d at 995. V. PROCEDURAL DEFAULT A. Decisional Law Federal courts “will not review questions of federal law decided by a state court if the decision of that court rests upon a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Under this “procedural default” doctrine, federal habeas courts must look to the last explained state court decision to determine whether the State has relied upon procedural default to decide the claim. Ylst v. Nunnemaker, 501 U.S. 797, 805, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir.1991). Applied to the habeas context, the doctrine of procedural default acts to bar federal review of constitutional claims that a State court has declined to address because of the petitioner’s noncompliance with a State procedural requirement. See Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). “In these cases, the state judgment rests on independent and adequate state procedural grounds.” Coleman, 501 U.S. at 730, 111 S.Ct. 2546. For example, the holding of the Supreme Court of Ohio set forth in State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), has been consistently applied by the Ohio courts to bar consideration of federal claims which were not timely asserted in State court proceedings. In Pe?Ti/, the Supreme Court held that constitutional issues cannot be considered in post-conviction proceedings under Ohio Revised Code § 2953.21 et. seq. where the issues have already been or could have been fully litigated by' the prisoner while represented by counsel, either before his judgment of conviction or on direct appeal from that judgment, and thus have been adjudicated against him. Id. at syh para. 7. The Perry Court stated: Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from 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 an appeal from that judgment. Id. at syl. para. 9. In State v. Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 (1976), the Supreme Court recognized an exception to the Perry res judi-cata rule, and concluded that where the record does not disclose that the issue of competent counsel has been adjudicated, the doctrine of res judicata is an improper basis upon which to dismiss an Ohio post-conviction relief petition. Id. at syl. para. 2. The Hester exception to the Perry rule was modified in State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982), as follows: Where the defendant, represented by new counsel upon direct appeal, fails to raise therein -the issue of competent trial counsel, and said issue could fairly have been determined without resort to evidence outside the record, res judicata is a proper basis for dismissing defendant’s petition for post-conviction- relief. Id. at syl. However, in order for Cole to be applicable, the issue must be apparent on the face of the record and appellate counsel must be different than trial counsel. These post-Perry developments and modifications to the doctrine of res judicata, announced in Hester and Cole have led federal habeas courts to conclude that Ohio’s post-conviction relief statute, upon which Perry, rests, satisfies the requirements of due process. It is thus not unreasonable that Perry requires the assertion in direct appeal of ineffective assistance of counsel claims based upon facts in the record. -The United States Supreme Court has recently reaffirmed the principle that it is necessary for a criminal defendant to raise his claims on “direct review” in order for thosé claims to be preserved for federal habeas review: “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent.’ ”. Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998) (citations omitted). “Cause” is a legitimate excuse for the default, and “prejudice” is actual harm resulting from the alleged constitutional violation. ' Magby v. Wawrzaszek, 741 F.2d 240. 244 (9th Cir.1984), cert. denied, 490 U.S. 1068, 109 S.Ct. 2070, 104 L.Ed.2d 635 (1989). The Sixth Circuit has held that when the last explained state court decision determines that the defendant procedurally defaulted by failing to comply with an adequate and independent state court rule, but also contains language to the effect that appellate review is precluded unless it is necessary to excuse the default to prevent manifest injustice, such state court decision should be construed as enforcing the procedural bar, while reserving the right to excuse it if necessary to prevent manifest injustice. See Paprocki v. Foltz, 869 F.2d 281, 285 (6th Cir.1989). Similarly, if the State court decision rests upon procedural default as an “alternative ground,” a federal district court is not required to reach the merits of a habeas petition. McBee v. Abramajtys, 929 F.2d 264, 265 (6th Cir.1991). In determining whether a State court has addressed the merits of a petitioner’s constitutional claim, federal courts must rely upon the presumption that there is no independent and adequate State ground for the State court decision absent a clear statement to the contrary. Coleman, 501 U.S. at 735, 111 S.Ct. 2546. Applying this presumption, the Sixth Circuit has established a four-step analysis to determine whether a claim has been proeedurally defaulted. See Maupin v. Smith, 785 F.2d 135 (6th Cir.1986). On the basis of the Maupin test, a federal habeas court must determine (1) whether the petitioner failed to comply with an applicable State procedural rule; (2) whether the State courts actually enforced the State procedural sanction; (3) whether the State procedural bar is an “adequate and independent” State ground upon which the State can foreclose federal review: and (4) if the above three conditions are met, whether the petitioner has demonstrated “cause” and “prejudice.” Id. at 138. In the event that a federal habeas court determines that a petitioner did not comply with a State procedural rule, and that the rule is an adequate and independent State ground, “then the petitioner must demonstrate cause for not following the procedural rule and prejudice resulting from the alleged constitutional error.” Reynolds v. Berry, 146 F.3d 345, 347 (6th Cir.1998). In the absence of “cause” and “prejudice,” federal courts are barred from undertaking a habeas corpus review of State-court decisions that rest on independent and adequate State grounds. See Lucas v. O’Dea, 179 F.3d 412, 418 (6th Cir.1999) (citing Sykes, 433 U.S. at 82, 97 S.Ct. 2497). Unless the petitioner can demonstrate that there was a “justifiable reason” for his procedural default, and that the claimed constitutional error had a “prejudicial effect on the effectiveness of his defense,” he is not entitled to a review of the State courts’ determinations of the issue. Lucas, 179 F.3d at 418 (citing Coleman, 501 U.S. at 754, 111 S.Ct. 2546) (habeas petitioners carry the burden of demonstrating cause and prejudice in order to overcome procedural default). The “cause and prejudice” analysis also applies to failure to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94, 96 (6th Cir.), cert. denied, 474 U.S. 831, 106 S.Ct. 99, 88 L.Ed.2d 80 (1985). A claim raised in the state Court of Appeals but not in the state Supreme Court cannot be considered in federal habeas. Leroy, 757 F.2d at 100. Also see O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1730, 144 L.Ed.2d 1 (1999). In Calderon v. Thompson, 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998), the Supreme Court stated: In light of “the profound societal costs that attend the exercise of habeas jurisdiction,” Smith v. Murray, 477 U.S. 527, 539, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986), we have found it necessary to impose significant limits on the discretion of federal courts to grant habeas relief. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (limiting court’s discretion to entertain procedurally defaulted claims). Id. at 1500. Therefore, unless a habeas petitioner can show cause and prejudice in connection with a procedural default of a habeas claim, or that his case falls within the “‘fundamental miscarriage of justice’ exception to the procedural default rule,” id. (quoting Coleman, 501 U.S. at 750, 111 S.Ct. 2546), the claim cannot be heard in federal habeas. Attorney error that amounts to ineffective assistance of counsel can constitute “cause” under the cause and prejudice test. See Gravley v. Mills, 87 F.3d 779, 785 (6th Cir.1996). In order to constitute sufficient cause to overcome the procedural default, a counsel’s performance, must be constitutionally deficient. Id. at 785. However, “the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural -default.” Murray v. Carrier, 477 U.S. 478, 486, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). The Sixth Circuit has held that an Ohio court’s denial on procedural grounds of a claim of ineffective assistance of appellate counsel precludes a petitioner from raising the claim as an independent habeas claim in his federal habeas petition. Carpenter v. Mohr, 163 F.3d 938, 945 (6th Cir.1998), cert. granted sub nom, Edwards v. Carpenter, - U.S. -, 120 S.Ct. 444, 145 L.Ed.2d 362 (Nov. 8, 1999). As the Court discussed supra, the courts sometimes “forgive” this type of procedural default of an ineffective assistance claim by a habeas petitioner when he or she was represented by the same counsel at trial and on direct appeal, on the theory that it is unrealistic that trial counsel can effectively argue his or her own “ineffectiveness” on appeal. See, e.g., Mapes v. Coyle, 171 F.3d 408, 421 (6th Cir.1999) (“The only exception to [the] rule [that all assignments of error that were or could have been raised on direct appeal may not be considered in a post-conviction proceeding] occurs when ineffective assistance of counsel is alleged and the petitioner had the same counsel during trial and on direct appeal. Even in its broadest form, this exception encompasses only those claims for which evidence is not contained in the trial record. See State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169, 171 (1982).”). Thus, except for those federal habeas cases arising in Ohio in which the Cole modification to Perry applies, if the petitioner cannot show cause for the procedural default of his habeas claim in a State court and prejudice resulting therefrom or, alternatively, that he is “actually innocent” of his conviction for the offense at issue, his “independent” claims — including his claims of ineffective assistance — cannot be raised in federal habeas proceedings. See Bousley, 118 S.Ct. at 1611; also see Carrier, 477 U.S. at 494-96, 106 S.Ct. 2639. B. Respondent’s Contention That Morales Has Procedurally Defaulted Fourteen Of His Grounds For Relief Respondent argues that fourteen of the nineteen grounds for relief contained in the Application have been procedurally defaulted under Ohio and federal law. Respondent initially notes: As discussed above [in the Statement Of The Case section of the ROW ] in the Ohio appellate court Morales asserted seven (7) claims at the court of appeals and. again seven (7) claims at the ■ Supreme Court on direct appeal. Thereafter, Morales filed a post-conviction petition with thirteen (13) claims almost exclusively comprised of claims which either were, or could have been, asserted by Morales on direct appeal. Morales also brought a “Murnahan” claiming ineffective assistance of counsel which both the Court of Appeals and Supreme Court found to be procedurally barred. Respondent notes that while the appellate court addressed twenty-one (21) claims in Morales’ Murnahan application, it did so on a procedural basis. The merits of the claims were obviously not addressed, which is readily apparent by the appellate court’s language “... does not- provide a basis for reconsideration;” therefore, the procedural bar maintains. ROW at 32. Respondent next contends that “[i]n performing its waiver analysis, this Court must first determine whether Morales has failed to comply with a state procedural rule. Respondent believes that Morales has failed to fairly present each of the enumerated grounds for relief to the Ohio courts for [the] reasons to follow.” ROW at 34. Respondent then asserts that Morales failed to raise on direct appeal Grounds 1, 4, 5, 6, 7, 8,10, 11,13, 14, 15, 16,17 and 18 asserted in the Application. Id. For this reason. Respondent contends. Morales has “waived” or procedurally defaulted each of these claims. ROW at 32. Respondent addresses each of the aforesaid grounds for relief individually, and tailors his procedural default argument with respect to each ground on the basis of its procedural history. Finally, Respondent argues that under the Maupin test, all of the aforesaid grounds for relief which were not raised on direct appeal have been procedurally defaulted: As stated above, the Ohio Appellate Courts were denied the opportunity to apply their procedural rules on direct appeal. A majority of the above grounds for relief were procedurally presented through the incorrect means of a post-conviction petition where they were properly dismissed on res judicata grounds, a procedural rule, because they should have been brought on direct appeal. Therefore, the first and second parts of the Maupin test have been satisfied. The third Maupin criteria [sic] has also been met as the procedural rule applicable to Morales’ claimfs] is an adequate and independent state ground for relief. The state procedural rule serves the State’s interest in finality and in ensuring that claims are adjudicated at the earliest possible opportunity. Since the Ohio Appellate Courts were deprived [of] the opportunity to enforce the state procedural rule, Morales 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. Morales has failed to demonstrate cause for or prejudice resulting from his failure to fairly present his waived claims to the Ohio Appellate Courts. In addition, Morales cannot rely upon “ineffective assistance of counsel” as cause for his default. Indeed, in Murray v. Carrier, 477 U.S. 478, 486, 106 S.Ct. 2639 (1986), the Court held: the mere fact that counsel failed to recognize the actual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default. Ewing v. McMackin, 799 F.2d 1143, 1149-50 (6th Cir.1986). In the case at bar. Morales cannot use ineffective assistance of counsel to establish cause for his procedural default because Morales’ claims were not addressed on the merits by the state court. See. e.g., Harris v. Lockhart, 948 F.2d 450, 452 (8th Cir.1991); Leggins v. Lockhart, 822 F.2d 764, 768 n. 4 (8th Cir.1987), cert. denied, 485 U.S. 907, 108 S.Ct. 1080, 99 L.Ed.2d 239 (1988). Beyond the four-part Maupin analysis, this Court is required to consider whether this is “an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent ...” Murray, at 496, 106 S.Ct. 2639. In the case at bar, Morales’ waived claims uniformly constitute trivial challenges to well reasoned tactical decisions which do not remotely suggest that but for the claim no reasonable juror would have found Morales eligible for the death penalty-under Ohio law. Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Furthermore, as reflected by the binding factual findings of both the Ohio Court of Appeals and Supreme Court of Ohio, the record contains an abundance of evidence demonstrating Morales’ guilt. Therefore, Morales has waived his right .to assert the above grounds for relief in federal habeas corpus. ROW at 42-43. C. Analysis Of Respondent’s Contentions Concerning Procedural Default For the reasons which follow, with respect to all but one (Ground 4) of the fourteen grounds for relief that Respondent argues are procedurally defaulted, the Court disagrees with Respondent’s Maupin analysis. The Court concludes that, with the exception of Ground 1 (in part) and Ground 4, none of the fourteen grounds has been procedurally defaulted. The claim asserted in Ground 4, and some of the claims asserted in Ground 1, have been procedurally defaulted under Mau-pin. First, in each instance where a claim asserted in one of the two aforesaid grounds for relief has been procedurally defaulted. Morales failed to comply with an applicable state procedural rule, i.e., the doctrine of res judicata set forth in Perry, supra. Second, the State courts actually enforced the State procedural sanction: the Eighth District and/or the Ohio Supreme Court dismissed each of the post-conviction claims on the ground of res judicata. Third, the res judicata rule is an adequate and independent State ground upon which the State can foreclose federal habeas review of the defaulted federal constitutional claims. This third question typically focuses on the adequacy of the State ground. See Reynolds, 146 F.3d at 347. The adequacy of the State ground is determined by examining the State’s legitimate interests in the procedural rule in light of the federal interest in considering federal claims. Id. at 347-48. In this case, Respondent contends that the res judicata rule serves the State’s interest in finality and in ensuring that claims are adjudicated at the earliest possible time. See ROW at 42. The Court concludes that the res judicata doctrine is an adequate and independent rule which satisfies the third Maupin factor. See, e.g., Coleman, 501 U.S. at 731, 111 S.Ct. 2546 (“In the habeas context, the application of the.independent and adequate state ground doctrine is grounded in concerns for comity and federalism.”). Also see Thompson, 118 S.Ct. at 1500 (“In light of ‘the profound societal costs that attend the exercise of habeas jurisdiction,’ Smith v. Murray, 477 U.S. 527, 539, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986), we have found it necessary to impose significant limits on the discretion of federal courts to grant habeas relief. See. e.g., Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (limiting court’s discretion to entertain procedurally defaulted claims)'.”). Fourth, Morales has not demonstrated cause and prejudice. As to “cause,” cause for a procedural default on appeal “ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim.” Ewing, 799 F.2d at 1149 (quoting Carrier, 477 U.S. at 492, 106 S.Ct. 2639). Morales has not made this showing. Furthermore. Morales may not assert ineffective assistance of counsel as “cause,” because “Rose v. Lundy [455 U.S. 509, 518, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982)] generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a proee-dural default.” Carrier, 477 U.S. at 489, 106 S.Ct. 2639. Morales failed to do this on direct appeal. Moreover, “the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.” Id. at 478, 486. As for the “prejudice” component of the fourth Maupin factor, the prejudice component of the cause and prejudice test utilized in collateral attacks upon a State court judgment is not satisfied if there is strong evidence of a petitioner’s guilt and a lack of evidence to support his claim. See Rust v. Zent, 17 F.3d 155, 161 (6th Cir.1994). Morales has not alleged that there was not “strong evidence” of his guilt; accordingly, the prejudice component “is not satisfied.” Id. at 162. The Court having thus generally determined that Morales cannot show cause and prejudice in connection with the procedural default of the aforesaid claims, unless Morales can show that his case somehow falls within the “ ‘fundamental miscarriage of justice’ exception to the procedural default rule,” Thompson, 118 S.Ct. at 1500 (quoting Coleman, 501 U.S. at 750, 111 S.Ct. 2546), those claims cannot be heard in federal habeas. Id. At this juncture, the Court will recapitulate Respondent’s procedural default argument for each separate ground for relief. The Court will then examine Morales’ arguments in this regard and Respondent’s rejoinder thereto. The Court will then render its opinion with respect to whether each particular ground or claim has been procedurally defaulted, and whether Morales has demonstrated any valid reason to forgive or excuse the procedural default of those of his claims which have been defaulted, so as to permit this Court to address the merits of those grounds. Finally, Court will address the merits of each of the claims asserted in the twelve grounds for relief in the Application which the Court has determined were not procedurally defaulted. In section VI infra, the Court will then examine Morales’ five remaining grounds for relief (those which Respondent does not argue have been procedurally defaulted) on the merits. Ground 1 — Petitioner Morales Was Denied The Right To The Effective Assistance Of Counsel At Trial Of This Case, In Violation Of The Fifth, Sixth, And Fourteenth Amendments To The United States Constitution. In Ground 1, Morales alleges that he was denied his right to a fair trial because he was denied the effective assistance of counsel prior to trial, during the guilt phase of the trial, and during the penalty phase of the trial. Respondent contends that although this claim is “obviously based upon the record.” the claim was not raised in Morales’ direct appeal. ROW at 34. Instead, Respondent argues, Morales “incorrectly” asserted this claim in the Petition in the Eighth District which, citing State v. Cole (1982), 2 Ohio St.3d 112, 114, 443 N.E.2d 169, found that this claim was barred by res judicata, and that direct appeal was the appropriate time to raise the claim of ineffective assistance of trial counsel. Id. The Court finds that the Eighth District did indeed state that Cole held that “res judicata bars an individual from raising ineffective assistance of trial counsel in a petition for post-conviction relief if the individual was represented by different counsel on appeal and the issue of trial counsel’s ineffectiveness could fairly have been determined without resort to evidence dehors the record.” State v. Morales, 1991 WL 8592, *3. The Eighth District concluded with respect to the claim asserted in Ground 1 of the Application: In the instant case, appellant was represented by new counsel on appeal. Furthermore, we find that the issue of trial counsel’s ineffectiveness could fairly be determined without resort to evidence dehors the record. Direct appeal was the appropriate time to raise the claim of ineffective assistance of counsel. Thus, we conclude that res judicata bars consideration of this issue in a post-conviction proceeding. Appellant’s-seventh and ninth assignments of error are not well taken and are overruled. Id. With respect to Ground 1. Respondent asserts that a claim which should have been raised on direct appeal, and which is presented for the first time in a post-conviction petition, is procedurally barred from review in federal habeas. See ROW at 34. As support for this proposition, Respondent relies upon Castille v. Peoples, 489 U.S. 346, 350-51, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989) and Beuke v, Collins, Case No. C1-92-507 (S.D.Ohio, Oct.19, 1995) at pp. 58-71, 99-100. Id. The Court finds that Peoples does not clearly support Respondent’s proposition. The Court further finds with respect to Beuke that Morales is correct in pointing out that the Sixth Circuit remanded that case to State court for further factual development prior to briefing on the merits. See Traverse at 23. Morales contends that “[gjiven the fact that the case has been remanded to state court even without briefing, the case is of little precedential or persuasive value.” Id. The Court agrees. However, this does not end the procedural default analysis with respect to Ground 1. With regard to the issue of whether Ground 1 has been procedurally defaulted, Morales states: Petitioner concedes that some of the instances of ineffective assistance of counsel set forth above appear on the record of this case and should have been raised on direct appeal. In fact. Petitioner specifically argued that in his application for delayed reconsideration based on State v. Murnahan. 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992). (Appendix to ROW, Exhibits EEEE and JJJJ.) The court of appeals addressed the claim — on its merits — and in fact granted reconsideration of one ground presented [footnote omitted], and then dismissed the remaining grounds (Appendix to ROW, Exhibit GGGG, pp. 34-40). Therefore, there is no default problems [sic] as it relates to the ineffective assistance of counsel present on the record. The Respondent ignores the fact that Petitioner also presented the claim of ineffective assistance of counsel in his Petition .for Post-Conviction Relief. (Appendix to Traverse, Tab# 11, Causes of Action One and Two.) Clearly, the issues presented that are supported by de hors the record evidence would not have been defaulted. Most notable is the ineffective assistance of counsel .in the penalty phase. While it may be obvious from the record that no mitigating evidence was presented, it would be impossible to show prejudice on direct appeal without the ability to conduct an investigation and present the court with evidence of what could have been presented. This de hors the record evidence could not be added to the record on direct appeal and would only be properly presented in a post-conviction petition, as Mr. Morales did. Traverse at'74-75. The Court finds that Morales’ aforesaid procedural default argument is, to a certain extent, well-taken. The Court finds, however, that to the extent that the Eighth District held in the post-conviction proceeding that Cole required Morales to raise those of his claims of ineffective assistance which could fairly have been determined without resort to evidence dehors the record in his direct appeal, the Eighth District correctly determined that those claims were procedurally defaulted. As noted by Morales, the Eighth District subsequently decided certain of his claims of ineffective assistance on the merits, pursuant to his application for delayed reconsideration. See Appendix to ROW, Exhibit GGGG at 34-40. Those particular claims have therefore not been procedurally defaulted herein. Pre-Trial Duties Of Trial Counsel With respect to counsels’ pre-trial duties, the Eighth District addressed the claim that trial counsel would not have pursued the “not guilty by reason of insanity defense” had counsel conferred with the defense’s own expert, Dr. Rita Politzer. Id. at 34-35. The crux of Morales’ complaint in this regard is that during the cross-examination of Dr. Politzer, she admitted that she agreed with the position that “voluntary intoxication is not a- basis for the insanity defense. Tr. 1549-50.” Id. at 35. The Eighth District concluded, however, as follows: Dr. Politzer clearly expressed her opinion that, due to a mental illness, appellant did not know that his conduct which resulted in the death of Mario Trevino was wrong. This testimony does not, therefore, reflect a lack of investigation on the part of trial counsel. Id. This Court concludes, with respect to this particular claim, that Morales has not shown that the adjudication of this claim by the Eighth District (and its affirmance by the Ohio Supreme Court) either 1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or 2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1) and (2). The Court thus may not grant a writ with respect to this claim. See King, 192 F.3d at 520. The other “pre-trial duty” claim addressed on the merits by the Eighth District was that trial counsel did not file a motion to dismiss asserting the unconstitutionality of Ohio’s death penalty scheme. The Eighth District opined: “The constitutionality of Ohio’s statutory framework for the imposition of capital punishment had been upheld, however, during the prior year. See Jenkins, supra, paragraph one of the syllabus.” Appendix to ROW, Exhibit GGGG at 35. This Court concludes that with respect to the Eighth District’s adjudication of this claim. Morales has not shown that said adjudication was erroneous pursuant to § 2254(d)(1) or (2). The Court thus may not issue a writ with respect to this claim. King, 192 F.3d at 520. Voir Dire The Eighth District noted that Morales complained that his trial counsel should have objected to the remarks made by the trial judge regarding the break-in of chambers. See Exhibit GGGG at 36. For the reasons discussed infra with reference to Ground 7, the Court concludes that this claim is without merit, and thus overrules it. - The Eighth District rejected Morales’ claim that his trial counsel erred by not questioning prospective jurors about pretrial publicity. That court noted that two of the prospective jurors were questioned about pretrial publicity in the presence of the other prospective jurors. The Court concludes that Morales has not shown that he is entitled to a writ with respect to this claim. King. 192 F.3d at 520. Next, the Eighth District rejected Morales’ claim that his trial counsel erred by failing to object to the error in selecting the special venire pursuant to Ohio Revised Code 2945.18. Exhibit GGGG at 36-37. That court noted that Morales did not specify “what ‘error’ concerns him.” Id. at 36. The Eighth District concluded that Morales had failed to demonstrate any prejudice to him as a result of this alleged error. This Court concludes that Morales has not shown that he is entitled to a writ with respect to this claim. King, 192 F.3d at 520. Guilt / Innocence Phase With respect to the ineffective assistance of trial counsel claims raised by Morales with regard to the guilt / innocence phase of his trial, the Eighth District stated: Appellant complains that trial counsel was ineffective by their failure to respond to the prosecution’s asking appellant’s father whether appellant invoked the defense of not guilty by reason of insanity in other criminal matters. This issue was discussed in Section F, above. Likewise, the issue of the propriety of using numerous photographs was discussed in Section D, above. Furthermore, the issue of the propriety of not recording side bar conferences was discussed in Section Q. above. Appendix to ROW. Exhibit GGGG at 37. This Court concludes that Morales has not shown that the adjudication of any of the guilt / innocence claims raised by Morales in his application for delayed reconsideration resulted in a decision by the Eighth District that was unreasonable to the degree required by 28 U.S.C. § 2254(d) in order for this Court to be permitted to issue a writ with respect thereto. King, 192 F.3d at 520. Penalty Phase Finally, it must be noted that Morales does claim that he is “actually innocent” of the death penalty. See Traverse at 47. Morales contends that “[bjecause no competent sentencing investigation was conducted, the trier of fact did not receive crucial psychological information and information concerning Mr. Morales’ character, history, and background.” Id. In the First Cause of Action asserted in his post-conviction petition, Morales catalogues a list of failures and omissions which allegedly demonstrates his trial counsels’ violation of their duty of pre-mitigation investigation and preparation. The violation of this duty, Morales claims, resulted in trial counsels’ failure to present mitigation evidence to his jury in the penalty phase. Morales fails to show, however, how additional pre-mitigation investigation and preparation would have changed the outcome of the penalty phase of his trial. See United States v. Lewis, 786 F.2d 1278, 1283 (5th Cir.1986); also see Gallego v. McDaniel. 124 F.3d 1065, 1077 (9th Cir.1997). Morales argues that his trial counsel were ineffective for failing to present a psychological defense or any mitigating evidence. However, “the reasonableness of a strategic choice is a question of law to be decided by the court, not a matter subject to factual inquiry and evidentiary proof....” Provenzano v. Singletary, 148 F.3d 1327, 1333 (11th Cir.1998). There is no per se ineffectiveness when no mitigation evidence is offered; residual doubt (and/or an appeal for mercy) is a proper strategy that can be employed in the place of presentation of mitigation evidence. Stringer v. Jackson, 862 F.2d 1108, 1116 (5th Cir.1988). In Moore v. Johnson, 194 F.3d 586 (5th Cir.1999), the Fifth Circuit recently stated: Notwithstanding the constitutional stature of appropriate mitigating evidence in a capital case, counsel’s failure to develop or present mitigating background evidence is not per se deficient performance. To the contrary, a considered strategic or tactical decision not to present mitigating evidence that is made after a thorough investigation of the law and facts relevant to all plausible lines of defense is presumed to be within the wide range of professionally reasonable assistance defined by Strickland. Stated differently, Strickland requires that we defer to counsel’s decision not to present mitigating evidence or not to present a certain line of mitigating evidence when that decision is both fully informed and strategic, in the sense that it is expected, on the basis of sound legal reasoning, to yield some benefit or avoid some harm to the defense. Id. at 615 (citations omitted). Similarly, in Sidebottom v. Delo, 46 F.3d 744, 754-55 (8th Cir.), cert. denied, 516 U.S. 849, 116 S.Ct. 144, 133 L.Ed.2d 90 (1995), the Eighth Circuit concluded in a capital habeas case that an evidentiary hearing was not required on the petitioner’s claims that his counsel were ineffective for failing to present a psychological defense or mitigating evidence: We conclude that the absence of evidence concerning any mental disease, defect, or extreme disturbance suffered by Sidebottom, coupled with counsel’s legitimate concern of exposing what clearly would have been damaging information, distinguishes this case from previous cases in which we have held that a failure to investigate and/or present evidence of mental disease or defect was both unreasonable and prejudicial. See, e.g., Hill v. Lockhart, 28 F.3d 832 (8th Cir.), cert. denied, 513 U.S. 1102, 115 S.Ct. 778, 130 L.Ed.2d 673 (U.S.1995): Kenley v. Armontrout, 937 F.2d 1298 (8th Cir.), cert. denied, 502 U.S. 964, 112 S.Ct. 431, 116 L.Ed.2d 450 (1991); Thomas v. Lockhart, 738 F.2d 304 (8th Cir.1984). Accordingly, we agree with the district court and the Missouri state courts that counsel performed a reasonable investigation and, after conferring with Sidebottom, made a strategic decision not to present a psychological defense or mitigating evidence. We have previously found that similar decisions do not constitute ineffective assistance of counsel. See, e.g., Whitmore v. Lockhart, 8 F.3d 614 (8th Cir.1993); Laws v. Armontrout, 863 F.2d 1377 (8th Cir.1988) (en banc), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 415 (1989); Wilkins v. Iowa, 957 F.2d 537, 540 (8th Cir.1992). Because we conclude that trial counsel was not ineffective, we do not reach the prejudice prong of the ineffective assistance of counsel analysis. Id. at 754-55. Morales asserts: Petitioner Morales was prejudiced by defense counsel’s inadequate representation at the mitigation phase of his capital trial. That prejudice is most apparent by comparing the evidence presented to the jury at Petitioner’s mitigation hearing (none), and the extensive amount of evidence which was readily available but not presented. (See Exhibits D, E, E2, E3, F, FI, G, H, J, J,K, L, M, N, O, P and Q.) Due to trial counsel’s ineffectiveness in the mitigation phase, the jury in Petitioner’s case was prevented from making an individualized consideration of the appropriateness of the death sentence and of Petitioner’s character, social history and family background as well as other mitigating factors arising from his disadvantaged environment, emotional problems and intellectual deficits. Post-conviction Petition at ¶ 30. It is true that mitigating evidence concerning a particular defendant’s character or background plays a constitutionally important role in “producing an individualized sentencing determination that the death penalty is appropriate in a given case.” Moore, 194 F.3d at 612 (citing Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 875, 71 L.Ed.2d 1 (1982)). Nevertheless, in Morales’ case, it is apparent from the record that Morales’ counsel had ample reason for choosing not to present any evidence in mitigation of punishment other than Morales’ unsworn statement. There was simply too great a risk that the presentation of additional witnesses by the defense in the mitigation phase may have resulted in the elicitation of harmful information upon cross-examination of those witnesses. In particular, there was a genuine risk that the jury might conclude that Morales had failed to adduce any mitigating evidence to counter the aggravating circumstance of his being the principal offender during the commission of the aggravated murder and kidnapping. As in Sidebottom, 46 F.3d at 754, “in the absence of any disease, defect, or extreme disturbance” suffered by Morales, “coupled with counsel’s legitimate concern of exposing what clearly would have been damaging information,” Morales’ trial attorneys “made a strategic decision not to present a[ny] psychological defense [other than the testimony of Morales’ retained psychologist, Dr. Rita Politzer] or [additional] mitigating evidence.” These considerations also make it clear that Morales’ trial attorneys exercised reasonable professional judgment and strategic thinking when they chose not to seek the assistance of a “mitigation expert.” Subsequent to his trial, Morales amassed affidavits from his family members and friends who say they could have testified on his behalf had they only been called by his trial counsel. However, the fact that Morales’ post-conviction attorneys could get affidavits from family and friends reflects a common practice in capital cases once the death penalty has been imposed. Typically, these affidavits state that the affiants could have supplied additional mitigating evidence had they been called by the defense or, if they were called, had they been asked the “right” questions. See Waters v. Thomas, 46 F.3d 1506, 1513-14 (11th Cir.1995). Morales’ case is no exception in this regard. Had Morales actually called the friends and family he identifies as potential mitigation witnesses, however. Morales’ distasteful idiosyncrasies and traits very likely would have been elicited upon cross-examination of these witnesses. The awareness of Morales’ trial counsel of this fact is evident in the record, and constitutes evidence of trial strategy rather than ineffectiveness of counsel. See e.g., Sidebottom, 46 F.3d at 754 (evidence of abusive home life would have opened the door to prior rape on cross-examination). Morales told the jury in his unsworn statement that he had started drinking alcohol at an early age “because I couldn’t deal with a lot of things.” Tr. at 1704. He said that he had a brother “who used to beat me all the time, and I couldn’t understand it.” Id. He told the jury that every time he got drunk he would “end up doing something” and not remember it the next day. Tr. at 1705. Morales also told the jury: “I did a lot of things to that [Trevino] family, and I know that I’ve never done nothing to that family while I was sober. Everything that I have done was because I