Bryan v. Bobby (114 F. Supp. 3d 467, 2015)

Citations

114 F. Supp. 3d 467

Full opinion text

ORDER

JAMES G. CARR, Senior District Judge.

This is a capital habeas corpus case under 28 U.S.C. § 2254.:

In 2000; a jury in the Common Pleas Court of Cuyahoga County, Ohio, convicted the petitioner; Quisi Bryan, of the aggravated murder of Wayne Leon, an Officer of the Cleveland Police Department. The jury recommended that Bryan receive a death sentence, and the trial court adopted the recommendation and sentenced Bryan to death.

Bryan now seeks habeas relief on sixteen grounds.

For the following reasons, I.grant the petition on Bryan’s claim that the prosecution violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by using a peremptory strike to remove an African-American from the venire. The State of Ohio must therefore' release Bryan from’ custody unless, within 120 days of the- entry -of this order, it elects to retry him.

Background

In August, 2000, the Cuyahoga County grand jury indicted Bryan on three counts of aggravated murder, two counts of attempted murder, and multiple counts of firearms-related offenses.

Each aggravated-murder count carried four death-penalty specifications that, if proved, would make Bryan eligible for a death sentence.

The specifications alleged Bryan had killed Officer Leon: 1) while Leon was engaged in his official duties as a police officer, see O.R.C. § 2929.04(A)(6); 2) with the specific purpose to kill a police officer, see id.; 3) to escape detection, apprehension, trial, or punishment for another offense, see O.R.C. § 2929.04(A)(3); and 4) as part of a “course of conduct” in which Bryan had killed or attempted to kill two or more people, see 0.R.C. § 2929.04(A)(5).

With the assistance of two lawyers qualified to handle capital cases, Bryan went to trial on these charges in October, 2000, less than three months after Officer Leon’s murder. According to the Ohio Supreme Court, whose factual determinations are presumptively correct on habeas review, 28 U.S.C. § 2254(e)(1), the .prosecution’s evidence showed that: ,

•Early in 2000, Quisi Bryan, who was at the time married, began living together with Janie-Winston, his 18-year-old girlfriend, at her Cleveland residence. Bryan supported himself by selling drugs and “hitting licks,” i.e., robbing other drug dealers. He owned a revolver, carried a Glock .45_caliber semiauto- • matic handgun, and at all times, kept a shotgun hidden inside Winston’s mattress. At that time, he told Winston that his parole officer was looking fol-ium because he “had got caught up with writing his name on some cashier’s checks and — or traveler’s checks.” He told Winston, though, “I’m going to go in under my own terms.” In fact, Bryan had been indicted for theft and receiving stolen property, and arrest warrants had been issued alleging him to be a parole violator.

Around 11:00 or 11:30 p.m. on Saturday, June 24, 2000, Bryan told Winston that he was leaving the house to “hit a lick.” She did not hear from him again until late the next morning.

Around 11:00 a.m., on Sunday, June 25, 2000, while alone on routine patrol in his police cruiser, Officer Wayne Leon apparently noticed irregularities on the temporary license tag on Bryan’s Pontiac Grand Prix. Leon followed Bryan’s car as it stopped at a Sunoco service station located at the corner of East 40th Street and Community College Avenue.

Officer Leon and Bryan both exited their vehicles after stopping, Leon first inspected Bryan’s temporary tag and noticed that it had been altered. He then obtained Bryan’s driver’s license to run a police check on him and on the vehicle.

Officer Leon and Bryan stood next to the cruiser as Leon called the station using his police radio transmitter on his right shoulder. Leon’s right hand was on the radio transmitter and his left hand was holding Bryan’s driver’s license. As Leon turned his head to talk over the radio, Bryan pulled his Glock handgun from his coat and shot Leon in the face. As Leon lay on the ground, Bryan retrieved his driver’s license, returned to his car, and sped away. Officer Leon died from that gunshot. -•

While waiting at a traffic light next to the Sunoco station, Kenneth Niedham-.mer heard the gunshot and saw a police officer lying on the pavement. Nied-hammer then saw a white Pontiac Grand Prix drive erratically from the Sunoco station.. Niedhammer, who was driving a private security vehicle, pursued the Grand Prix. While in pursuit, Niedham-mer activated the security vehicle’s siren and flashing lights.

Ón East 39th Street, Bryan stopped behind a vehicle driven by Cad Holly Matthews, who was waiting at a stop sign. Bryan exited his Grand Prix and started shooting at Niedhammer. One of Bryan’s shots hit a spotlight on Nied-hammer’s vehicle, which was only six to eight inches from Niedhammer’s head. A ricochet from another shot bruised Niedhammer’s forearm. One of Bryan’s shots, also struck an upstairs bedroom window in Matthews’s nearby home near where Matthews’s granddaughter, her flaneé, and their eight-month-old son were sleeping. Niedhammer stopped, exited his vehicle, and returned fire.

. Following the exchange, Bryan sped away with Niedhammer in pursuit. After a few more blocks, Bryan stopped again, got out of his car, and again fired at Niedhammer. Niedhammer stopped his vehicle behind Bryan’s car and fired two or three shots at Bryan. After a minute or so, Bryan returned to his car and drove away with Niedhammer in pursuit.

Bryan eventually lost control'of' his vehicle and collided with several parked cars and a church van. Although dazed by the crash, Bryan grabbed his backpack and gun and ran away.

After running a short distance from the crash scene, Bryan approached a group of men and asked whether he “could pay somebody to drop him off because guys was after him.” For $30, Barry Philpot drove Bryan to a designated location and dropped him off. Bryan threw his Glock handgun into a nearby dumpster, 'went to his wife Elaine ■ Bryan’s home, and fled in her blue Dodge Spirit.

Bryan then called Winston, told her “that something happened” and that she should pack some clothes.” He met Winston at a supermarket, and they drove to his father’s home. Bryan obtained a handgun from his father’s house and put it under the car seat. Bryan and Winston then drove to Columbus.

While driving to Columbus, Bryan told Weston, “I hope -he don’t die. * * * I shot a police officer in the face.” Bryan explained that a police officer had stopped him, “they exchanged words, and [Bryan] pulled out his gun, put it to his head * * * and [as] the officer was reaching for his [gun] .* * * [Bryan] shot him.” Bryan also said, “I just can’t go back under their terms. I’m going to go under mine. * * * [I]f this man dies, I will never see the day of light again or I will just get life in prison. Janie, I just can’t go back.”

In Columbus, Bryan drove, to an ex-girlfriend’s house and tried unsuccessfully to buy some crack cocaine. He then told Winston, “Well, we going to catch a tram to Pennsylvania. Then from Pennsylvania we going to fly to Florida. Then from there we going to try to leave the country.”

While looking for a Columbus hotel, Bryan offered a stranger, Gerald Alfred, money to rent a hotel room for them. During the late afternoon on June 25, Bryan and Winston went- into the hotel room with Bryan’s backpack, which contained .45 caliber and .357 magnum cartridges, parts of a shotgun, two shotgun rounds, and gun-cleaning equipment. Winston placed the handgun that Bryan had obtained from his father’s house underneath the bed in the hotel room.

Bryan told Winston that Alfred was going to help him look for some crack. Bryan left the room and told Winston that he would be “right back,” When Bryan did not return, Alfred drove Winston to the. Greyhound station so that she could return to Cleveland. She put the handgun into Bryan’s backpack and took it with her.

By the time Bryan and Winston had arrived in Columbus, Cleveland police had already identified him as the main suspect in Leon’s shooting by tracing the Pontiac’s temporary license tag. From Elaine Bryan, they obtained a description of the Dodge Spirit that Bryan was driving, and they broadcast a description of Bryan and the Dodge Spirit to police departments throughout Ohio and surrounding states.

Later that same day, Columbus Police Sergeant Tyrone Hollis spotted the Dodge Spirit, stopped his cruiser behind it, and arrested Bryan. As Bryan was being escorted to the police cruiser, he said, “I didn’t shoot the cop. I was there.” When he was in the cruiser, Bryan also blurted out, “I didn’t pull the trigger.”

Police later learned that Alfred had rented a hotel room for Bryan and a young lady. After police located Alfred, he described Winston and said that she was at the Greyhound station. Police then arrested Winston and seized Bryan’s backpack.

Around 3:00 a.m. on June 26, Cleveland Police Detective Michael O’Malley attempted to interview Bryan in Columbus. As Bryan was brought to the roll-call room, he said, “You probably think I’m some kind of animal.” After O’Mal-ley advised Bryan of his Miranda rights, Bryan said that he did not wish to talk about the incident. However, Bryan did say, “I feel sorry for the officer and things aren’t like they seem.”

Following Officer Leon’s murder, police investigators showed eyewitnesses a photo array to identify Leon’s assailant. Neither Geneva Marie Jefferson, who had witnessed the shooting at the Suno-co station, nor Niedhammer was able to identify Bryan from a photo array. Similarly, neither George Abou-Nader nor Donnell. Wingfield, then Sunoco station employees, was able to identify Bryan when first shown his- photograph. However, Jefferson later identified Bryan as the assailant when she saw his picture on television. Wingfield and Abou-Nader also later identified Bryan when shown updated photographs of him. On June 28, Niedhammer identified Bryan from an updated photograph in a second photo array.

During the course of their investigation, police investigators recovered a .45 caliber shell casing at the Sunoco station. At the location of the second shooting, they also found five .45 caliber shell casings and a copper-colored jacket from a bullet. Police also removed a spent .45 caliber bullet embedded in a door of Matthews’s home.

At trial, Cleveland Detective Thomas Lucey testified that the same Glock handgun fired the bullet recovered from Leon’s body and the bullet and copper jacket recovered from the second shooting scene. Each bullet had eight lands and grooves and a right-hand twist. Moreover, unique impressions left on each bullet were characteristic of the manufacturing process of Glock barrels.

According to Detective Lucey, the same Glock handgun ejected the .45 caliber shell casings found at the Sunoco station and at the second shooting scene. This conclusion was based on four points of comparison: firing pin impressions, breech face markings, and extractor and ejector markings.

Following Bryan’s arrest, police found “two unique gunshot residue particles” on-Bryan’s right hand. Gunshot residue was also found on the driver’s door handle inside Bryan’s Grand Prix and in the roof area behind the driver’s side rear window.

Julie Heinig, a forensic scientist, concluded that biological DNA material removed from an inhaler and two cigar butts found in the Grand Prix contained Bryan’s DNA profile. In the case of the inhaler, the probability of finding another individual with the same DNA profile was more than one in a hundred trillion for Caucasians and more than one in a quadrillion for African-Americans.

Dr. Stanley Seligman, a deputy coroner, testified that Leon died as the result of a single gunshot to the head and neck. In addition, the coroner recovered a .44 or .45 caliber, copper-jacketed bullet from Leon’s body. Stippling on . his face showed that Leon was shot from a distance of approximately two and one-half feet. Moreover, the bullet’s trajectory was consistent with testimony that Leon’s face was turned to the right when he was shot.

State v. Bryan, 101 Ohio St.3d 272, 274-77, 804 N.E.2d 433 (2004).

Bryan did not dispute that he killed Officer Leon.

Rather, Bryan claimed he fired the fatal shot as part of a “reflexive motion” Bryan made after seeing Officer Leon reach for his police radio. That claim, and the evidence the defense adduced to support it, led the trial court to issue a lesser-included-offense instruction on voluntary manslaughter.

According to the Ohio Supreme Court:

Bryan testified in his own behalf. He disclosed that he had béen released on parole on November 2, 1998, for attempted robbery, that his parole was scheduled to end on December 2, 1999, and that he had married Elaine in September 1999.

In November 1999, Bryan’s parole officer had informed him that he was being investigated for receiving stolen property and could not be released from' parole because of a pending indictment. Bryan did not return to visit his parole officer, explaining, “I thought * * * I would be arrested.” To avoid arrest, Bryan left his wife and moved in with Winston.

He further admitted that he supported himself by selling drugs and that he owned a .45 caliber Glock, a .357 caliber revolver, and a shotgun. Elaine purchased the Glock in her name because he was a convicted felon.

According to Bryan, Officer Leon stopped him on June 25 for driving with altered license tags. After further inspecting the tags, Leon called them “fictitious.” Leon then started talking into his radio mike, and Bryan was “trying to think of a way to convince him to stop.” Bryan then pulled a handgun, “pointed it at his mike,” and said, “Don’t do that.” Bryan testified that in response, Leon jumped back, pivoted, and his “right hand came down towards his weapon.” Bryan then shot Leon.

Bryan further testified that after the shooting, he drove off at a high rate of speed. Bryan saw a security car following him and stopped behind- Matthews’s car at East 39th Street and Central. Bryan said that he had planned to leave his car and run away. , However, he said, “[a]s soon as I opened the door and jumped out, I was fired on.” Bryan testified that he then fired four or five shots at Niedhammer, got back into his car, and sped away. Bryan denied that he had shot at Niedhammer two. separate times.

After hitting the church van, Bryan left his vehicle, took his Glock handgun and backpack, and fled on foot. ' Bryan later threw the Glock into a dumpster.

Bryan denied that he intended to kill Officer Leon. Rather, he said, “I just wanted to convince him * * * with the weapon not to call on the mike.” According to Bryan, he said that he “pointed right at the mike” when he shot him. Bryan said that he was “very remorseful” after shooting Leon, insisting “There’s not a day that goes by that I don’t think about it.” During cross-examination, Bryan said that he had pulled the trigger as just “a reflexive motion to [Leon’s] jump.”

Bryan, supra, 101 Ohio St.3d at 277-78, 804 N.E.2d 433.

After hearing this evidence, the jury rejected Bryan’s manslaughter defense and convicted Bryan on all counts, save for one count of aggravated murder (which alleged Bryan killed Officer Leon with pri- or calculation and design (see Doc. 58 at 206)) and one count of improperly discharging a firearm. '

At the penalty phase, the jury unanimously recommended that Bryan receive a death sentence, and the court adopted the recommendation and sentenced Bryan to death. O.R.C. § 2929.03(D)(2), (3) (defining when jury may recommend death sentence and when court may adopt that recommendation). - ■

Direct Appeal

Bryan appealed to the Ohio Supreme Court, raising-nineteen claims:

1.- The trial court erred by having ex parte communications with Juror Bross and removing him- from the jury during trial because of his inability to vote for a death sentence in appropriate circumstances;

2. Ohio’s death penalty statute does not satisfy the Eighth Amendment’s .narrowing requirement;

3. • The trial court erred in refusing to dismiss two veniremembers who were biased in favor of capital punishment;

4. The trial court erroneously excluded a veniremember who was not biased in favor of capital punishment; •

5. The prosecution violated Batson v. Kentucky, 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69] (1986), by using a peremptory strike to remove African-American veniremember Crystal Jones;

6. ■ The trial court erred in refusing to * grant the defense a two-month contin- . uance before trial;

7. The prosecutor committed miscon- " duct by:

(A) cross-examining Bryan about the facts underlying his prior conviction for- attempted robbery;

(B) misstating the law during voir dire; and

(C) urging the jury, during his closing argument at the guilt phase, to have sympathy for Officer Leon and his survivors;

8. The trial court erred in' admitting “other crimes” evidence;

9. Trial counsel were ineffective at the guilt phase because they:

(A) did not move for a change of venue based on adverse pretrial publicity;

(B) did not interview prosecution witness Janie Winston after learning she had given conflicting statements to police;

(i) object to the use of the term “recommendation” for the jury’s decision at the penalty phase;

(ii) request that the trial court define “mitigation” during voir dire;

(iii) object to improper jury, instructions mentioned during voir dire;

(iv) move to strike a juror for cause;

(v) object when the trial court told jurors that the death penalty was appropriate if the aggravating circumstances “outweighed” the mitigating factors;

(vi) object when the trial court and the prosecutor:

(a) - equated the death-penalty specifications in the indictment with the aggravating circumstances that might warrant a death sentence;

(b) defined mitigating evidence as “good things” about Bryan; and

(vii) failed to object to the instruction on reasonable doubt; and

(viii) failed to object to the prosecutor’s closing argument urging the jury to have sympathy for Officer Leon; and

(D) delivered a closing argument that did not portray Bryan in a favorable light

10.The trial court failed to provide the jury with accurate instructions re. the meaning of “mitigation” and that death was appropriate only if the aggravating circumstances outweighed the mitigating evidence beyond a reasonable doubt;

11. The evidence was insufficient to prove Bryan guilty of attempted murder, or that he Committed the murder as part of “course of conduct”;

12. The prosecütor committed misconduct when, in his closing argument at the penalty phase, he: '

(A) suggested the jury had to, sentence Bryan to death to protect the community and to satisfy the community’s outrage; .

(B) referred, to. Bryan as a ticking “time-bomb”; <

(D) argued the facts and circumstances of the crime as aggravating circumstances, in violation of Ohio law;-

13. Trial counsel were ineffective at the penalty phase because:

(A) despite conducting a substantial mitigation-investigation, they decided not to present the bulk of the mitigating evidence they had generated; ■

(B) they failed to object to the prosecutor’s misstatements of law and his improper argument; and

(C) they called Bryan’s mother as a mitigation witness but elicited testimony. from her that was more harmful than helpful;

14. The trial court improperly admitted at the penalty phase all-evidence introduced at the guilt phase;

15. The .trial court failed to merge the “course of conduct” specification with the specification alleging Bryan killed • Officer Leon during the course of his duties;,

16. ■ The trial -court’s instruction on reasonable doubt was improper under Cage v. Louisiana, 498 U.S. 39 [111 S.Ct. 328, 112. L.Ed.2d 339] (1990);

17. Given the cumulative effect of all errors by the trial court, the prosecutor, and defense counsel,' Bryan did not receive a fair trial;

18. The Ohio Supreme Court’s failure to conduct a meaningful proportionality review of death sentences in past eases violated the Due Process • Clause; and

19. The death penalty as applied in Ohio is unconstitutional.

(Doc. 31 at 38-193).

In a decision entered in March, 2004, the Ohio Supreme Court affirmed Bryan’s convictions and death sentence. Bryan, supra, 101 Ohio St.3d at 278-306, 804 N.E.2d 433. The court denied Bryan’s ensuing motion for reconsideration. State v. Bryan, 102 Ohio St.3d 1449, 808 N.E.2d 399(2004).

After obtaining new counsel, Bryan filed,' in August, 2004; an application to reopen his appeal under Ohio Supreme Court Rule of Practice XI, § 6. That Rule permits a condemned defendant to request the state high court to reopen his appeal and consider whether his appellate counsel was ineffective.

Bryan’s application alleged appellate counsel had been ineffective for not raising twenty additional claims:

1. The death sentence was invalid because the indictment alleged Bryan committed the murder to escape detection or apprehension for a “specified offense,” but the proof showed he committed the murder only to avoid detection for violating his parole;

2. Because a parole violation is not an offense for purposes of O.R.C. § 2929.04(A)(3), Bryan could not be found death-eligible under the (A)(3) specification;

3. The death sentence was invalid because the prosecution failed to prove Bryan committed the offense of receiving stolen property or theft, as alleged in the (A)(3) specification;

4. The (A)(3) specification was unconstitutionally vague;

5. Trial counsel were ineffective for failing to move for a change of venue;

6. The venire from which Bryan’s jury was selected did not represent a fair cross-section of the community;

7. The trial judge was biased because he was related to a police officer and had attended Officer Leon’s funeral;

8. The trial court curtailed questioning during voir dire and wrongly denied several defense challenges for cause;

9. The trial court’s instruction on involuntary manslaughter was erroneous;'

10. The trial court engaged in an improper ex parte communication with a juror;

11. Trial counsel were ineffective for failing to prevent the prosecutor from introducing evidence of Bryan’s prior felony conviction and his status as a parole violator;

12. Bryan was denied his right to be present when, during deliberations, the trial court answered the jury’s questions outside Bryan’s presence;

13. Trial counsel were ineffective for failing to conduct an adequate voir dire;

14. Trial counsel were ineffective for failing to examine the video camera mounted on Officer Leon’s dashboard;

15. The trial court “repeatedly and improperly influenced] the nature, scope and duration of the jury’s consideration of the evidence”;

16. Trial counsel were ineffective for failing to introduce “a large quantity of mitigating evidence”;

17. Bryan’s death sentence violated the United Nations Convention on the Prevention and Punishment of the Crime of Genocide;

18. The trial court’s- instructions regarding the death-penalty specifications were vague and confusing;

19. The trial court improperly questioned one of the prosecution’s expert witnesses; and

20. The trial court sustained “nonexistent objections” during defense counsel’s cross-examination of various witnesses.

(Doc. 31 at 451-58).

The Ohio Supreme Court denied Bryan’s application to reopen because Bryan did not file the application within ninety days after the .court had entered its judgment on the merits, as the court’s rules required. (Doc. 31 at 488); see OH Sup.Ct. Prac. R. XI, § 6(A)’.

State Postconviction Review

While his direct appeal was pending, Bryan filed, in December, 2001, a postcon-viction petition in the Cuyahoga County Common Pleas Court. With the assistance of counsel, Bryan raised two claims:

1. Trial counsel were ineffective at the guilt phase for:

(A) not moving for the appointment of a firearms expert; and

(B) electing to have Bryan, with coun- ■ sel’s help, reenact the shooting of Officer Leon; and

2. Trial counsel were ineffective at the penalty phase for not:

(A) retaining . a competent psychologist to -help prepare the defense’s case; ■

(B) interviewing Bryan’s friends and family members; '

(D) adequately preparing Bryan’s mother to testify;

(E) presenting evidence that Bryan would have adjusted well to life in prison;

(F) .conducting an adequate investigation to determine whether Dr. Kale-ta, a psychologist who assisted the defense before and during trial, was competent to prepare a mitigation case; . ...

(G) investigating, preparing, or presenting available mitigation evi- ■ dence;

(H) conducting a reasonable investigation and obtaining a competent psychological expert to testify on Bryan’s behalf;

(I) calling a cultural mitigation expert to testify about the cultural issues Bryan faced as African-American growing up in the inner-city; and

(J) calling a substance-abuse, .expert to testify.

(Doc. 33 at 98-131;. Doc. 35 at 35-45).

In May, 2009, the state trial court denied the petition without holding an evi-dentiary hearing. (Doc. 35 at 132-44; Doc. 36 at 54-57).

Bryan appealed to the Eighth District Court of Appeals, raising the same claims he had raised in the trial court. He also contended the .postconviction trial court should have: 1) permitted him to conduct discovery; and 2) appointed .a neuropsy-chologist.

The appellate court affirmed the denial of postconviction relief. State v. Bryan, 2010-Ohio-2088, 2010 WL 1918606 (Ohio App.) (Bryan II).

Bryan then petitioned the Ohio Supreme Court for leave to appeal, seeking to press the same claims he had raised in the appellate court. On December 15, 2010, the court declined jurisdiction. State v. Bryan, 127 Ohio St.3d 1461, 938 N.E.2d 363 (2010).

Federal Habeas Petition

Bryan filed his § 2254 petition on August 15, 2011, raising sixteen grounds for relief:

1. The trial court violated Bryan’s due process rights by engaging in an ex parte communication with Juror Bross and removing him, sua sponte, from the jury mid-trial;

2. The trial court should have excused Juror McClellan because she was biased in favor of capital punishment;

3. The trial court erred in excusing veniremembers Hawkins and Bailey because their views on capital punishment did not impair them ability to serve on the jury;

4. The Ohio courts violated Bryan’s liberty interest in having the jury death — qualified under the test established in Witherspoon v. Illinois, 391 U.S. 510 [88 S.Ct. 1770, 20 L.Ed.2d 776] (1968), rather than the more lenient test set forth in Wainwright v. Witt, 469 U.S. 412 [105 S.Ct. 844, 83 L.Ed.2d 841] (1985);

5. The prosecution violated Batson by using a peremptory strike to excuse veniremember Jones;

6. The prosecutor committed misconduct during the guilt phase by:

(A) questioning Bryan about the facts underlying his prior conviction;

(B) urging the jury to send a message to the community with its verdict and have sympathy for the victim; and

(C)characterizing Bryan’s involuntary-manslaughter defense as an attempt to “swindle” the jury;

7. The prosecutor committed misconduct during the sentencing phase by:

(A) urging the jury to consider the community’s outrage at the death of a police officer;

(B) arguing the defense was trying to “swindle” the jury by presenting the manslaughter defense;

(D) aligning himself with the jury in arguing, in effect, that “we must” impose a death sentence; and

(E) arguing the lack of mitigating circumstances surrounding the murder was, effectively, an aggravating circumstances supporting a death sentence;

8. Trial counsel were ineffective at the penalty phase because they:

(A) failed to introduce “any meaningful mitigation” evidence;

(B) failed to prepare Bryan’s mother to testify effectively;

(D) failed to call a neuropsychologist to testify about the multiple head injuries Bryan sustained in childhood;

(E) failed to retain a cultural mitigation expert to tell the all-white jury about Bryan’s experience growing up as an African-American in the inner city; and

(F) failed to retain a substance abuse expert;

9. Trial counsel were ineffective at the guilt phase because they failed to:

(A) call a firearms expert to testify that it was necessary to apply only a light amount of trigger pressure to fire the gun that killed' Officer Leon;

(B) exclude evidence of Bryan’s prior felony conviction and status as a parole violator; and

10. Appellate counsel was ineffective for failing to argue that:

(A) the' evidence was insufficient to prove that:

(i) ‘Bryan killed Officer Leon to avoid detection or apprehension for an “offense”; and

(ii) Bryan committed the ■ offenses of receiving stolen property and theft, as alleged in: the. (A)(3) specification;

(B) consequently, because the (A)(3) specification was invalid, the jury’s weighing process was skewed in favor of the death penalty; and

11. The trial court violated Ohio law by failing to merge the capital specifica- ■ tions alleging Bryan killed Officer Leon during the course of his lawful duties and as part of a “course of conduct”;

12. The trial court denied Bryan his right to be present by answering several of the jury’s questions during the guilt-phase deliberations outside of Bryan’s presence;

13. The trial court denied Bryan a fair trial by: ,

(A) admitting “bad acts” evidence; and

(B) leading the jury to believe it was ultimately the court’s responsibility, not- the jury’s, to decide whether Bryan would receive a death sentence;

■14. The Ohio Supreme Court failed to conduct an adequate proportionality review of Bryan’s death sentence, as O.KC. § 2929.05 requires;

15. Ohio’s, execution protocol violates Bryan’s right to be free from cruel and unusual punishment; and

16. The death penalty is unconstitutional because:

(A) Ohio’s system is arbitrary and discriminates .against African-Americans; and

(B) it violates international treaties to which the United States is a party.

In 2013,1 denied Bryan’s motion to conduct discovery and expand the record. (Doc. 71). Now, after further study of the petition, the Warden’s return, and Bryan’s traverse, this ease is ripe for decision.

Discussion

The habeas corpus statute “bars relitigation” of those claims a state court adjudicated on the merits, unless the “state court’s decision was contrary to federal law then clearly established in the holdings of’ the United States Supreme Court, “involved an unreasonable application of such law,” or “was based on an unreasonable determination of the facts.” Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011); 28 U.S.C. § 2254(d).

A state court’s decision is “contrary to” clearly established federal law only if the court “applies a rule that contradicts the governing law set forth in [Supreme] Court cases” or “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives” at a different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

A state court’s application of. the governing legal rule is unreasonable when the court “err[s] so transparently that no fairminded jurist could agree with the court’s decision.” Bobby v. Dixon, — U.S. -, 132 S.Ct. 26, 27, 181 L.Ed.2d 328 (2011); see also White, v. Woodall, — U.S. -, 134 S.Ct. 1697, 1706-07, 188 L.Ed.2d 698 (2014) (relief available under unreasonable-application clause “if, and only if, it is ’so obvious that a clearly established rule applies to' a given set of facts that there could be no fairminded disagreement on the question”) (internal quotations omitted).

A. Removal of Juror Bross

Bryan’s first claim is that the trial court violated his right to a fair trial by: 1) having ex parte communications with Juror . Bross regarding Bross’s concerns about serving on the jury; and 2) removing Bross from the jury during trial after concluding his views on capital punishment impaired his ability to serve as an impartial juror.

1. Background

On October 30, 2008 — the first day of evidence — Bross approached the trial court and, during an off-the-record exchange, “expressed concern that his photograph had appeared” in a recent edition of the Cleveland Plain Dealer. Bryan, supra, 101 Ohio St.3d at 282, 804 N.E.2d 433.

The photo depicted the jurors attending a jury-view of the gas station where the murder occurred. Id. at 283 n. 1, 804 N.E.2d 433. (Although the Ohio Supreme Court described the photo as depicting only the jurors’ backs, which suggests their faces were not visible, Bross would later testify his stepfather and coworkers had identified him in the photo.).

The judge “briefly talked to Bross and told him not to mention it to any fellow jurors, that [the judge] would look into the matter and discuss it with him sometime later.” Id. at 283, 804 N.E.2d 433. Immediately after its exchange with Bross, the court obtained a copy of the Plain,Dealer and — contrary to repeated misstatements in Bryan’s pleadings (e.g., Doc. 64 at 3)— notified counsel for both sides of his colloquy with Bross. Bryan, supra, 101 Ohio St.3d at 283, 804 N.E.2d 433.

Wheii the trial court spoke with Bross the next day, October 31 — again outside the presence of counsel — Bross again “expressed reservations about continuing as a juror.” Id.

The court therefore conducted an in-chambers voir dire of Bross the next day, November 1, at which both sides were present. According to the Ohio Supreme Court, at that hearing:

Bross stated, “The concern' * * * is that people may recognize, me wherever, at home, at work, on the street or supermarket or other places from that picture [and] it might affect what I have to do as a juror.” During ensuing questions, the trial judge told Bross, “I’ve looked at you for eight days. I wouldn’t be able to identify you from- this photograph.” Bross asserted that the news photograph would not - affect his ability to decide guilt or innocence. However, when asked about deliberating on the death penalty, Bross said, “I’m just thinking that somehow that can be put on me.”

Following Bross’s responses, the trial court stated, “I’m just thinking that this * * * photograph is not the issue. I’m beginning to think that the issue is * * * the possible imposition of capital punishment in this case.” When asked if he could sign a death penalty verdict, Bross said “No” and mentioned that his death penalty views had “evolved” since the trial began. The trial court and ,Bross then had the following discussion:

“Q: This photograph is not — I don't want to call it a false issue. It’s an issue. It’s a concern of yours.

“A: Yes.

“Q: But bottom line is, when we were in the courtroom last week during individual voir dire, your response to the question about whether or not you could sign a death warrant was yeah, * * * you could follow the law?

“A: Yes.

“Q: Today it is no, you could not, is that correct?

“A: That is correct.

“Q: * * * In part that’s due ’to the photograph, but in part it’s due to the fact that the photograph has triggered you -to do some additional thinking; is that fair to.say? .

“A: Yes.”

Over defense objection, the trial judge excused Bross and replaced him with an alternate juror.

Bryan, supra, 101 Ohio St.3d at 283, 804 N.E.2d 433.

2. State Court’s Decision

The Ohio Supreme Court held that the trial court acted properly in. removing Bross from the jury, given his professed inability to sign a death verdict. It also concluded Bryan procedurally defaulted his claim regarding the court’s ex parte communication with Bross:

The standard for determining whether a prospective juror may be excluded for cause is whether that juror’s views on capital punishment would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath.’ ” See State v. Rogers (1985), 17 Ohio St.3d 174, 17 OBR 414, 478 N,E.2d 984, paragraph three of the syllabus, following Wainmight v. Witt (1985), 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841. This test applies whether the juror favors capital punishment or opposes it. See State v. Phillips (1995), 74 Ohio St.3d 72, 86, 656 N.E.2d 643. A trial court’s ruling on a challenge for cause will not be disturbed on appeal unless the trial court abused its discretion. See State v. Wilson (1972), 29 Ohio St.2d 203, 211, 58 O.O.2d 409, 280 N.E.2d 915. Moreover,, the same standards apply where, as in this case, a seated juror informs the court that he or she can no longer follow the law and sign a death verdict.

Here, the trial court did not abuse its discretion. Bross stated that he could not follow the law during the penalty phase and could not sign a death penalty verdict. Thus, Bross was properly excused.

Bryan’s argument that the trial court erred by excusing Bross during trial is ill-founded. Crim.R. 24(F)(1) provides that “[alternate jurors * * * shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties.” Moreover, in State v. Hutton (1990), 53 Ohio St.3d 36, 559 N.E.2d 432, paragraph three of the syllabus, this court held, “Crim.R. 24(F) is not violated in a capital case where an alternate juror is substituted for another juror after the guilt phase verdict, but before deliberations begin in the penalty phase.” Thus, even though the trial had begun, the trial court did not abuse its discretion in excusing Bross once Bross stated had [sic ] that he could no longer follow the law. '

Bryan’s complaint of prejudicial error because of the trial court’s brief ex parte discussions with Bross can also be dismissed. Trial counsel did not object to the ex parte discussions. Moreover, during the hearing in chambers, trial counsel never asked Bross about his ex parte communications .with the trial judge or the effect such communications had upon Bross’s ability to continue as a juror. Thus, Bryan waived all but plain error. See State v. Hessler (2000), 90 Ohio St.3d 108, 121, 734 N.E.2d 1237.

The trial court’s ex parte discussions with Bross were not plain error. To establish prejudice from such ex parte communications, “the complaining party must first produce some evidence that a private contact, without full knowledge of the parties, occurred between the judge and jurors which involved substantive matters.” State v. Jenkins, 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph thirteen of the syllabus. The complaining party must also show actual prejudice. State v. Hessler, 90 Ohio St.3d at 122, 734 N.E.2d 1237; State v. Johnson (2000), 88 Ohio St.3d 95, 107-108, 723 N.E.2d 1054. Here, the trial judge’s discussions with Bross were very brief, and once the trial judge, became aware of Bross’s concerns, a hearing with both counsel was conducted. Thus, the lack of prejudice is manifest.

Bryan, supra, 101 Ohio St.3d at 284-85, 804 N.E.2d 433.

3. Propriety of Removing Bross

“[A] criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecuto-rial challenges for cause.” Uttecht v. Brown, 551 U.S. 1, 9, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007). Therefore, a court may not excuse a veniremember “simply because [he] voiced general objections to the death penalty or expressed conscientious moral scruples against its infliction.” Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

But the State, too, “has a strong interest in having jurors who are able to apply capital punishment within the framework state law prescribes.” Uttecht, supra, 551 U.S. at 9, 127 S.Ct. 2218.

To balance these competing interests, the Supreme Court established the “substantial impairment” test, which asks “whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

Here, the Ohio Supreme Court did not “appl[y] a rule that contradicts” With-erspoon, Witt, or any other Supreme Court precedent. Williams, supra, 529 U.S. at 405, 120 S.Ct. 1495.

Rather, the state court recognized Bryan’s right to a jury that included persons who, despite their personal opposition to capital punishment, could ¡nevertheless apply the law fairly, but concluded Bross’s removal was consistent with that right. Bryan, supra, 101 Ohio St.3d at 284, 804 N.E.2d 433. For that reason, the state court’s decision was not “contrary to ... clearly established Federal law.” 28 U.S.C. § 2254(d)(1).

Nor was the state court’s judgment that the trial court properly excluded Bross “so lacking in justification” as to be unreasonable. Harrington, supra, 131 S.Ct. at 786-87.

Bross testified unequivocally that he could not “sign a verdict form that would call for the imposition of the death penalty in this case,” even if he believed the facts warranted such a sentence. (Doc, 56 at 445).

Near the end of the in-chambers voir dire, moreover, after the defense had had an opportunity to rehabilitate Bross, Bross reiterated he could not, or would not, follow the law:

The Court: ‘But ultimately — and I think "I’ve given everybody an opportunity ■ mow — ultimately, you know, we have got to make a decision tonight, right now, as to whether you could continue. So given everything that has gone on during this case, can you — and really the issue is: can you — if the State of Ohio proves beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors, can you sign a death warrant, in other words, join in on a verdict along with 11 other jurors that would call for the imposition of capital punishment?

Mr. Bross: No.

The Court: All right. We are ging [sic ] to leave it there. I appreciate your candor.

(Id. at 457).

Given this testimony, there was no error in excluding Bross.

The premise of Bryan’s claim to the contrary is that Bross’s views on capital punishment had merely “evolved” since the trial began. (Doc. 18 at 48). Bryan notes that Supreme Court, precedent contemplates that jurors hearing capital cases may change their opinions on the death penalty, given that many jurors likely have not grappled with that issue. E.g., Adams v. Texas, 448 U.S. 38, 50-51, 100 S.Ct 2521, 65 L.Ed.2d 581 (1980).

I of course accept Bryan’s contention that some jurors are likely to come to a capital' case with fluid opinions about the death penalty, and that those opinion^ may “evolve” during trial. But Bryan’s characterization of Bross’s views on capital punishment as having merely evolved is simply not accurate, let alone the only reasonable interpretation of the record.

Under questioning by defense counsel, Bross testified that his inability or reluctance to vote for the death penalty stemmed from a concern that, after his photo had appeared in. the Plain Dealer, people in the community — whether at work, in his personal life, or elsewhere— would recognize, him as having been a juror in Bryan’s case. (Doc. 56 at 446-56).

There is no evidence, moreover, suggesting Bross. reached) that conclusion after some sort of principled internal debate about the propriety of capital punishment generally or in Bryan’s case specifically. Rather, Bross essentially acknowledged .he could not prevent outside influences — primarily the reaction of his friends, family, or coworkers — from affecting his deliberations, and in particular his decision as to the proper penalty.

These comments, and the remainder of his testimony.at the in-ehanihers voir dire, demonstrate Bross was not fit to serve on the jury.

Finally, Bryan contends the trial court’s decision constituted a “tremendous abuse[] of discretion” because: 1) it occurred after jury selection concluded; and 2) Bross was “an ideal juror” from the defense’s perspective. •

There is, however, no prohibition on removing a juror mid-trial — let alone a juror whom the court determines, after a full hearing in which attorneys for both sides participated, is no longer qualified to serve. At bottom, Bryan’s argument is— as the Warden aptly notes — that “since Juror Bross was originally accepted onto thé jury, he should always remain a juror.” (Doc. 59 at 42). As there is no foundation for that argument in any clearly established Supreme Court precedent, I reject it. ■

For these reasons, Bryan is not entitled to relief on his claim the trial court erred in removing Bross from the jury.

4. The Ex Parte Communication

Concurring in Rushen v. Spain, 464 U.S. 114, 125-26, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (Stevens, J., concurring in judgment), Justice Stevens observed:

• [T]he mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation'of any constitutional right. The defense has no constitutional right to be present at every interaction between a judge and a juror, nor is there a constitutional right to have a court reporter transcribe every such communication.

But “[w]hen an ex parte communication relates to some aspect of the trial, tHe trial judge generally should disclose the communication to counsel for all parties.” Id. at 118, 104 S.Ct. 453. The court should also conduct a hearing, “with all interestéd parties permitted to participate,” to “determine the circumstances [of the ex parte communication], the impact thereof upon the juror, and whether or not it was prejudicial[.]” Remmer v. U.S., 347 U.S. 227, 230, 74 S.Ct. 450, 98 L.Ed. 654 (1954).

The defense has the burden of demonstrating the ex parte communication caused actual prejudice. Smith v. Phillips, 455 U.S. 209, 215-17, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). ' '

As noted above, the Ohio Supreme Court rejected this claim because Bryan failed to object in the trial court (thereby forfeiting the claim under state law) and, alternatively, did not show the trial court’s ex parte communication with Bross prejudiced him.

Those holdings prompt two questions: 1) did Bryan procedurally defaulted this claim; and 2) if not, what standard of review — AEDPA’s deferential standard or de novo — applies to my review of the merits of the claim.

I can bypass the first question because, despite the state court’s clear invocation of a procedural bar to reject this claim, the Warden did not argue procedural default. Accordingly, the Warden forfeited that defense. Baze v. Parker, 371 F.3d 310, 320 (6th Cir.2004).

The second question may be academic, as Bryan has effectively conceded § 2254(d) governs my review of the ex parte communication claim.

In pressing this claim in his traverse, Bryan contends “the Ohio Supreme Court’s decision upholding the trial court’s finding ... was both and [sic ] unreasonable application of law as well as an unreasonable determination of fact[.]” (Doc. 63 at 41). Nowhere does Bryan present a specific argument I should review the ex parte communication claim de novo. (Id. at 41-45).

In any event, I conclude that, under Fleming v. Metrish, 556 F.3d 520, 530-32 (6th Cir.2009), the Ohio Supreme Court’s review of Bryan’s claim for plain error whs an adjudication on the merits.

In Fleming,' the Sixth Circuit held that where a state court had reviewed a Miranda claim for “plain error,” after first determining the Miranda claim was forfeited under state law, the state court’s holding that any Miranda violation did not amount to plain error was an adjudication on the merits for purposes of § 2254(d).

The Sixth Circuit explained that a state court’s “[u]se of the plain-error standard of review, as opposed to the. clearly erroneous or de novo standards, simply ma[k]e[s] reversal of the state trial court’s judgment less likely[.]” Id. at 532. It,does not, however, “cause the [state court] to bypass the merits of [the] claim.” Id.

A review of the Ohio Supreme Court’s decision here confirms the Sixth Circuit’s observation in Fleming that plain-error review entails, at least some times, a review of a claim’s merits.

In deciding whether Bryan had shown plain error, the. state court addressed three issues bearing on the merits of Bryan’s claim: 1) the scope of the ex parte communications between the trial judge and Bross; 2) the presence of Bryan’s counsel at the Remmer hearing; and 3) the resulting prejudice, if any. Bryan, supra, 101 Ohio St.3d at. 284-85, 804 N.E.2d 433. . . .

All of these considerations go directly to the merits of Bryan’s claim — namely, whether he showed the challenged communications caused actual prejudice. Smith, supra, 455 U.S. at 215, 102 S.Ct. 940.

I therefore conclude the Ohio Supreme Court’s no-plain-error determination .was an adjudication on the merits. Fleming, supra, 556 F.3d at 532; see also Frazier v. Jenkins, 770 F.3d 485, 506 (6th Cir.2014) (Sutton, J., concurring in part and concurring in judgment) (opining that Fleming “makes clear as day that a state court’s plain-error review of an issue may receive AEDPA. deference when the state court addresses the merits,,,of the federal claim”).

Under that standard, Bryan’s 'claim about improper ex parte communications fails.

The ex parte communications related to a significant aspect .of the trial: Bross’s concerns about continuing to serve, and doing so impartially, on the jury. Appropriately, then, the trial, court immediately apprised counsel for both sides of this development and held a hearing at which both sides could — and did — inquire into the matter.

But given the record'the parties developed at that hearing, ■ the Ohio Supreme reasonably determined Bryan had not proved prejudice.

It is undisputed'Bryan’s lawyers did not ask “Bross about his ex parte communications with the trial judge or the effect such communications had upon Bross’s ability to continue as a juror.” Bryan, supra, 101 Ohio St.3d at 284, 804 N.E.2d 433. Rather, defense counsel focused on what they apparently believed to be the more pressing task: rehabilitating Bross — their “ideal” juror, in Bryan’s words — and trying to ensure he remained on the jury.

Finally, the Ohio Supreme Court found that the conversations between the trial court and Bross concerned only Bross’s ability or willingness about serving on the jury after the Plain Dealer published his photograph. The record reflects the conversations were brief, and that “once the trial judge became aware of Bross’s concerns, a hearing with both counsel was conducted.” Id. at 285, 804 N.E.2d 438.

In these circumstances, it was objectively reasonable for the Ohio Supreme Court to find the ex parte communication between the trial court and Bross did not prejudice Bryan. I therefore deny Bryan’s first claim for relief.

B. Denial of For-Cause Challenge to Juror McClellan

In his second ground for relief, Bryan contends the trial court should have dismissed Juror McClellan for cause because her views on capital punishment substantially impaired her, ability to serve on the jury. ■ ,

The Ohio Supreme Court rejected this claim on direct appeal, holding that .the record supported the trial court’s finding that McClellan was not biased in favor of the death penalty:

During voir dire, McClellan initially revealed a predisposition to vote for the death penalty. When defense counsel asked McClellan about voting for the ..-death,penalty, she said, “If it is recommended, then *, * * I don’t know if I would consider anything other. That is kind of a hard question.” In answering the prosecutor’s follow-up questions, McClellan stated, “I would follow the law.” Questioning continued with the following discussion:-

The Court: Could you impose a sen- . tence less than "death in that case? '

Ms. McClellan: No. ■

The Court: You could not?

Ms. McClellan: No.

The Court: So, in other words, you could not follow the law? If you want to ask me any questions, if you are confused, go ahead.

Ms. McClellan: I am. I am still confused. You are saying that the aggravating circumstances is proved and it outweighs—

The Court: No. What I’m saying is this: In order to apply the death penalty, the aggravating circumstances must outweigh the mitigating factors.

Ms. McClellan: That’s right.

The Court: * * * If it was just the opposite — let’s say that the prosecution wasn’t able to prove that. * * * Could you then impose life or life with parole at 30 or 25?

Ms. McClellan. I could. I could.

The Court: So what you are saying is you could follow the law?

Ms. McClellan: Yes.

While McClellan was obviously confused by the questioning, her follow-up responses demonstrated her willingness to follow the law, evaluate mitigating factors, and consider a lesser sentence under appropriate circumstances. Given these answers, the trial court did not abuse its discretion in rejecting the challenge to McClellan for cause. See State v. Treesh (2001), 90 Ohio St.3d 460, 469, 739 N.E.2d 749 (juror’s predisposition in favor of imposing death penalty did not require challenge where the juror later stated that she would follow the law and the court’s instructions).

Bryan, supra, 101 Ohio St.3d at 285, 804 N.E.2d 433,

Bryan contends the state court’s decision involved an unreasonable application of the law and an unreasonable determination of the facts. He argues that McClellan, who acknowledged on her jury questionnaire that “her husband ... was murdered” (Doc. 52 at 252), testified un~ ambiguously the death penalty was the only appropriate punishment for Officer Leon’s murder. Bryan also asserts the trial court, , in attempting to clarify McClellan’s answers, misstated the law as to when a death sentence is appropriate.

These contentions lack merit.

Taken as a whole, Juror McClellan’s responses permitted the trial court to find her initial answers were the product of confusion, rather than a sincerely held belief that, no matter what the law might require, a death sentence was the only appropriate punishment for murder.

After both parties and the court had had an opportunity to question her, Juror McClellan- told the court shé- was “still confused” about the legal framework that applied at the penalty phase. ■ (Doc. 52 at 247-248). ■ .

The trial court therefore explained that, “to apply the death penalty, the aggravating circumstances must outweigh the mitigating factors,” and McClellan responded, “That’s right.” {Id. at 248). The court then asked whether “what you [are] saying is you could follow the law,” and McClellan said, “Yes.” {Id. at 249).

Instead of stopping'there, the trial court gave Bryan’s attorneys another opportunity to prove McClellan’s bias. . But in response to defense counsel’s questions, McClellan repeated her understanding of the law and her commitment to following it:

Mr. Saffold: If we reach á second phase of this trial — we don’t have to get to a - second phase of this trial. There may never be a second - phase of this trial. But if we get to a second phase of this trial, that means that Quisi Bryan has been already tried and convicted, and you, if you are on this jury, will have already found him guilty beyond a reasonable doubt of aggravated murder in either counts one, two, three, or all of them.

After having found him guilty of aggravated murder, do you think that you could follow the law, Ms. McClellan, if the law directed you towards ■ not giving the death penalty?

Ms. McClellan: Yes.

Mr. Saffold: So you could consider not giving the death penalty under those circumstances?

Ms. McClellan: Yes.

Mr. Saffold: Now, initially you indicated to me that you couldn’t consider that.

Ms. McClellan: I wasn’t clear on the issues. It’s the level of it—

The Court: All right.

Ms. McClellan: -but I can follow the law.

The Court: All right. Thank you very much. You may step down[.]

{Id. at 249-51).

This evidence shows unambiguously that McClellan understood the law, was willing to consider mitigating evidence; and was not committed to- imposing a death sentence. It also establishes that McClellan’s initial statements that she would not consider a penalty other than death was due to her confusion about the governing law.

It was therefore reasonable for the Ohio Supreme Court to affirm the trial court’s decision permitting McClellan to sit on the jury.

Bryan nevertheless claims the trial court misstated the law in questioning McClellan.

As Bryan notes, a death sentence is proper under Ohio law only if the jury finds, beyond a reasonable doubt, “that the aggravating -circumstances the offender was found guilty of committing outweigh the mitigating factors[.]” O.R.C. § 2929.03(D)(2).

In attempting to gauge McClellan’s understanding of that standard, the trial court asked what McClellan would do if she “thought there was more mitigation than aggravating circumstances. Could you then impose life or life with parole at 30 or 25?” (Doc. 52 at 248). McClellan’s response was “I could.” (Id.).

Bryan contends this was a misstatement of the law because “under Ohio law there is no statutory scenario which specifically requires or discusses the defendant having to demonstrate that the mitigating factors outweigh the aggravators.” (Doe. 63 at '52) (emphasis omitted).

Yet the trial court never said Bryan could avoid a death sentence only if he proved the mitigating factors outweighed the aggravating factors. Rather, the court’s question homed in on one basic corollary of the proposition that a death sentence was proper only if the jury found the aggravating circumstances outweighed the mitigating circumstance.

. Even Bryan allows that, “as a practical matter, the circumstances the trial court described would mean that the state had not met its statutory burden of proving beyond a -reasonable doubt that the aggravating circumstances outweighed the factors in mitigation, rendering a death sentence ... legally forbidden.” (Doc. 63 at 52-53) (emphasis in original).

Finally, Bryan makes much of the unfortunate circumstance that Juror McClellan’s husband had been murdered. He argues that, given her husband’s murder, McClellan would likely adhere to her belief, expressed earlier during voir dire, “that if a person takes a person’s life, and they are found guilty beyond a reasonable doubt .,. they should get the death penalty.” (Doc. 52 at 237).

The short answer is that the trial court, after conducting a thorough voir dire of McClellan, credited her testimony she would follow the law and vote for a lesser penalty if the aggravating circumstances did not outweigh the mitigating evidence.

In othqr words, while McClellan may have held an opinion that death was the only appropriate sanction for murder, the trial court believed her testimony she would set that opinion aside and follow the law in fixing Bryan’s sentence. On habeas review, I presume that credibility finding correct, 28 U.S.C. § 2254(e)(1), and Bryan has offered no evidence — let alone the required clear and convincing evidence — to overturn it.

For these reasons, the Ohio Supreme Court neither unreasonably applied the law nor unreasonably determined the facts in upholding the trial court’s decision allowing McClellan to sit on the jury.

C. For-Cause Removals of Veniremembers Hawkins and Bailey

In his third ground for relief, Bryan argues the trial court excluded venire-members Hawkins and Bailey after erroneously determining they were biased against capital punishment.

1. Background

■ During voir dire, veniremember Matilda Hawkins testified she adhered to a philosophy of “thou shalt not kill. If we killed [Bryan], then we no better. Why not just let him repent maybe for life or something?” (Doc. 53 at 300