Full opinion text
ORDER SAM H. BELL, District Judge. I. INTRODUCTION On December 5, 1986, Richard W. Cooey was convicted in the Common Pleas Court of Summit County, Ohio of two counts of aggravated murder, two counts of aggravated robbery, two counts of kidnaping, one count of felonious assault and and four counts of rape. The court sentenced Cooey to incarceration for 48 to 140 years for the robbery, kidnap-ing, assault, and rape convictions. In addition, it sentenced Cooey to death for the convictions of aggravated murder. Cooey appealed his convictions and sentences, but was denied relief by both the Ohio Ninth District Court of Appeals and the Ohio Supreme Court. After he was denied his petition for certiorari by the United States Supreme Court, he filed a petition for state post-conviction relief. Once again, the state courts denied Cooey his request for relief, and the United States Supreme Court once more denied his petition for certiorari. On October 17, 1996, Cooey filed a petition for a writ of habeas corpus in this court under 28 U.S.C. § 2254. In response, the State of Ohio filed a Return of Writ in opposition. Subsequently, Cooey filed a Traverse in Opposition to the Return of Writ. On April 29, 1997, the court held a hearing on this petition that afforded both parties the opportunity to present their position on various issues relevant to the petition, including the issue of procedural default. Upon consideration, the court finds that at least some of Cooey’s 23 claims of error in his petition were denied by the Ohio courts on procedural grounds and not on their merits. Consequently, in deference to the judiciary’s traditional adherence to the principles of federalism and comity, the court must refrain from considering the merits of those claims. Furthermore, the court finds that Cooey’s remaining claims lack sufficient merit to warrant a grant of the requested writ. As a result, and for the reasons more fully detailed herein, the court shall deny Cooey’s petition for the writ. II. BACKGROUND On the night of August 31, 1986, Wendy Offredo and Dawn McCreery were brutally raped and murdered. At around midnight, Ms. Offredo and Ms. McCreery were driving south along Interstate 77 in Akron, Ohio. Both had just finished working a shift together at a local restaurant. Neither, however, ever reached their destination. Two days later, their bodies were found behind a shopping mall. The police immediately began an intense investigation, and officers soon found their way to the home of Petitioner Cooey. When confronted by the officers, Cooey confessed to having kidnaped, robbed, raped and murdered both women. In addition, he provided the disturbing details of his acts. As Offredo and McCreery’s car drove along the highway that night, it passed underneath a bridge upon which stood Petitioner and three of his friends. The four men had planned to drop chunks of concrete onto cars passing below them. The men quickly acted on their plan, and dropped a concrete chunk through the windshield of a randomly selected car as it sped under the bridge. Offredo and McCreery occupied that randomly selected car, and they quickly pulled over to the side of the road after being struck. The women were then accosted by the four men, who had scurried down from the bridge under the guise of offering them assistance. After accepting the men’s offer of a ride to a telephone to call for. help, the women were subsequently taken to a field just a short distance from the accident scene. There, they were subjected to the rape and ultimately murder by Cooey and his associates. Cooey was indicted by a Summit County grand jury on September 8, 1986. The indictment charged him with two counts of murder in violation of Ohio Rev.Code § 2903.01(A) and (B), including three specifications of aggravating circumstances in violation of Ohio Rev.Code §§ 2929.04(A)(3), (5) and (7). In addition, Cooey was charged with two counts of kidnaping with the purpose of engaging in nonconsensual sexual activity, in violation of Ohio Rev.Code § 2905.01(A)(4), and two counts of rape, in violation of Ohio Rev.Code § 2907.02(A). Finally, Cooey .was also indicted on two counts of aggravated robbery, in violation of Ohio Rev.Code § 2911.01(A)(1), and one count of felonious assault, in violation of Ohio Rev. Code § 2903.11(A)(2). After entering a plea of not guilty to all of the counts, Cooey waived his right to a jury trial. Instead, he elected to be tried before a three-judge panel pursuant to Ohio Rev.Code § 2945.05 and § 2945.06. The panel found Cooey guilty on all counts and specifications. Less than a month later, the same panel convened for a mitigation hearing, pursuant to Ohio Rev.Code § 2929.03(C)(2)(b), and found that any mitigating factors in the case were outweighed by the ease’s aggravating circumstances. Consequently, the panel merged the two convictions of aggravated murder convictions under' § 2903.01(A) into the two convictions under § 2903.01(B). Cooey was then sentenced to a term of incarceration for each of the non-murder convictions and a sentence of death for each of the convictions of murder. Cooey appealed his conviction and sentence to the Ohio Court of Appeals for the Ninth Judicial District. That court affirmed the trial court’s decision. State v. Cooey, 1987 WL 31921, No. 12943 (9th Dist.Ohio App. Dec. 23, 1987). Cooey then filed an appeal to the Ohio Supreme Court. Once again, both the conviction and the sentence were affii'med. See State v. Cooey, 46 Ohio St.3d 20, 544 N.E.2d 895 (1989). Cooey next filed a motion for rehearing before the Ohio Supreme Court, which was subsequently denied. Thereafter, he petitioned the United States Supreme Court for a writ of certiorari. That petition was also denied. Cooey v. Ohio, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991). Having exhausted his rights to directly appeal his conviction and sentence, Cooey then sought to obtain post-conviction relief from the Ohio courts. He filed a petition to vacate or set aside his sentence pursuant to Ohio Rev.Code § 2953.21 in the Summit County Court of Common Pleas. Upon consideration, the court dismissed both the petition itself and a subsequent motion for relief from judgment. State v. Cooey, No. 86-09-1109A (Com. Pl. Summit Cty. July 21, 1992). Cooey then appealed those decisions to the Ohio Court of Appeals for the Ninth Judicial District; which affirmed them, State v. Cooey, 1994 WL 201009 (9th Dist.Ohio App. May 25, 1994), and to the Ohio Supreme Court, which declined to hear the request. State v. Cooey, 70 Ohio St.3d 1465, 640 N.E.2d 527 (1994). Cooey next sought to reopen his direct appeals. That request, and a subsequent request for reconsideration, were denied by the Ninth Judicial District, State v. Cooey, No. 12943 (9th Dist.Ohio App. Jan. 10, 1995), and the Ohio Supreme Court. State v. Cooey, 73 Ohio St.3d 411, 653 N.E.2d 252 (1995); State v. Cooey, 74 Ohio St.3d 1423, 655 N.E.2d 742 (1995). On October 2, 1996, Cooey. filed a petition for a writ of habeas corpus which is now before the court. III. ANALYSIS A. Congress provided for the writ of ha-beas corpus to redress errors in the administration of criminal justice that result in deprivations of life or liberty. In general, a prisoner may petition a federal district court for the writ of habeas corpus whenever he is detained in violation of the Constitution or other federal law. This right to petition for the writ is not, however, unlimited. For example, a prisoner must usually first exhaust all available remedies in the state courts before turning to the federal courts for relief. See Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987). The parties in this case agree that the doctrine of exhaustion does not prevent Mr. Cooey from obtaining the relief which he requests in his petition. Nevertheless, they do not agree as to the impact of yet another possible barrier to a prisoner’s request for the writ In its Return of Writ, Respondent specifically argues that a majority of Cooey’s 23 claims may not even be considered by this court under the doctrine of procedural default. Under this doctrine, a federal district court may not ordinarily consider the merits of a prisoner’s federal claim if a state court previously dismissed the claim for failure to comply with state procedural law. In Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594 (1977), the Supreme Court explained the reasons for the doctrine in the context of a state restriction on non-contemporaneous objections: The failure of the federal habeas courts generally to require compliance with a contemporaneous-objection rule tends to detract from the perception of the trial of a criminal case in state court as a decisive and portentous event. A defendant has been accused of a serious crime, and this is the time and place set for him to be tried by a jury of his peers and found either guilty or not guilty by that jury. To the greatest extent possible all issues which bear on this charge should be determined in this proceeding: the accused is in the court-room, the jury is in the box, the judge is on the bench, and the witnesses, having been subpoenaed and duly sworn, await their turn to testify. Society’s resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens. Any procedural rule which encourages the result that those proceedings be as free of error as possible is thoroughly desirable, and the contemporaneous-objection rule surely falls within this classification. We believe the adoption of the Francis rule in this situation will have the salutary effect of making the state trial on the merits the “main event,” so to speak, rather than a “tryout on the road” for what will later be the determinative federal habeas hearing. There is nothing in the Constitution or in the language of § 2254 which requires that the state trial on the issue of guilt or innocence be devoted largely to the testimony of fact witnesses directed to the elements of the state crime, while only later will there occur in a federal habeas hearing a full airing of the federal constitutional claims which were not raised in the state proceedings. If a criminal defendant thinks that an action of the state trial court is about to deprive him of a federal constitutional right there is every reason for his following state procedure in making known his objection. See also Lambrix v. Singletary, — U.S. -,-, 117 S.Ct. 1517, 1522, 137 L.Ed.2d 771 (1997) (noting that “[application of the ‘independent and adequate state ground’ doctrine to federal habeas review is based upon equitable considerations of federalism and comity”). But before it applies the procedural default doctrine to refrain from considering a claim’s merits, the federal court must first determine whether the state court has plainly stated its reliance on procedural, as opposed to substantive, law. The Supreme Court established this “plain statement” rule for habeas corpus petitions in Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). In Harris, the Court considered a petitioner’s claim that his incarceration stemmed from the ineffective assistance of counsel at trial. After the petitioner was convicted, the trial court dismissed his request for post-judgment relief. Subsequently, the state appellate court affirmed. In its affirmance, the appellate court first noted that, on direct review, the petitioner had not raised the ineffective assistance claim. Nevertheless, despite the limitations of the state doctrine of res judicata, it proceeded to determine the substantive merits of the claim. On federal habeas review, the Supreme Court initially observed that the state appellate court considered both the procedural and substantive merits of petitioner’s claim. It then applied the plain statement rule to the claim, and held that the state court had rested its affirmance on the claim’s merits, not its failings under state procedure. Consequently, it, too, proceeded to consider the merits of the claim. [W]e now extend to habeas review the “plain statement” rule for determining whether a state court has relied on an adequate and independent state ground. Applying the “plain statement” requirement in this case, we conclude that the Illinois Appellate Court did not “clearly and expressly” rely on waiver as a ground for rejecting any aspect of petitioner’s inef-feetive-assistance-of-counsel claim. Id. at 265-266, 109 S.Ct. at 1044-1045. See also Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557, 115 L.Ed.2d 640 (1991) (holding that “if the decision of the last state court to which the petitioner presented his federal claims fairly appeared to rest primarily on resolution of those [federal] claims, or to be interwoven with those claims, and did not clearly and expressly rely on an independent and adequate state ground, a federal court may address the opinion.”); O’Guinn v. Dutton, 88 F.3d 1409, 1421 (6th Cir.1996) (“The federal courts may also review constitutional claims where it is unclear whether the claim has been previously determined.”) (Merritt, J., concurring). Even if the court concludes that a particular claim has clearly been procedurally defaulted, it may still consider the claim under certain circumstances. Specifically, the doctrine of procedural default need not apply where the petitioner can demonstrate good cause for his failure to conform to the procedural requirements established by state law and actual prejudice resulting fi-om those requirements. In Wainwright, the Court elected not to establish specific meaning for those terms. Id. (“Whatever precise content may be given those terms by later cases, we feel confident in holding without further explanation that they do not exist here.”); Moore v. Carlton, 74 F.3d 689, 691 n. 3 (6th Cir .1996) (“The Supreme Court in Wainwright .avoided a precise definition for ‘prejudice,’ leaving future cases to define the significance of the term.”) (citing United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)); cf. Nagi v. United States, 90 F.3d 130, 134. n. 1 (“While the precise meaning of “prejudice” is somewhat nebulous, it has been interpreted as an infection of the. entire.proceeding which results in a conviction violative of due process.”) (citing Frady, 456 U.S. at 169, 102 S.Ct. at 1595.). Subsequently, however, the Court has held a petitioner may establish adequate cause-and-prejudice by offering proof of either ineffective assistance of, counsel or an objective factor that impeded his counsel’s efforts to comply with state procedural law, such as the novelty of the proposed claim. See Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984); Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Furthermore, in at least one case, the Court held that this cause-and-prejudice analysis applies equally in the context of both capital and non-capital cases. See Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). In addition, a, court may consider any claim that was denied on procedural grounds, but which grounds are not strictly or regularly followed. See Bagby v. Sowders, 853 F.2d 1340 (6th Cir.1988) (establishing a four-part inquiry for any district court considering the application of the procedural default doctrine that includes a review of how consistently the state courts apply the procedural-rule at issue). B. This is a capital case. Petitioner has been sentenced to death by the State of Ohio. That sentence, Petitioner argues, was a result of 23 errors at trial and on appeal that individually and collectively denied him of his right to a fair trial. In general, when reviewing any habeas petition, including a petition in a capital case, a district court must defer to the findings of fact made by the state trial court. Congress has long provided for such deference by the federal courts to state court findings of fact under 28 U.S.C. § 2254(d). Under § 2254(d), the court must initially determine if there was a determination of a factual issue in a state court proceeding which is evidenced by written indicia. [Section 2254(d) ] makes no distinction between the factual determinations of a state trial court and those of a state appellate court. Nor does it specify any procedural requirements that must be satisfied for there to be a “hearing on the merits of a factual issue,” other than that the habeas applicant and the State or its agent be parties to the state proceeding and that the state-court determination be evidenced by “a written finding, written opinion, or other rehable and adequate written indi-cia.” Section 2254(d) by its terms thus applies to factual determinations made by state courts, whether the court be a trial court or an appellate court. Sumner v. Mata, 449 U.S. 539, 546, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981). If so, the court must then presume that the determination was correct, unless the applicant can demonstrate any one of the following eight statutory factors: (1) that the merits of the factual dispute were not resolved in the State court hearing; (2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing; (3) that the material facts were not adequately developed at the State court hearing; (4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding; (5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the Státe court proceeding; (6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or (7) that the applicant was otherwise denied due process of law in the State court proceeding; (8) or unless that part of the record of the State court'proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record. 28 U.S.C. § 2254(d). “In addition to minimizing the ‘friction’ between the state and federal courts, the limited nature of the review provided by § 2254 also serves the interest that both society and the individual criminal defendant have ‘in insuring that there will at some point be the certainty that comes with an end to litigation----’” Id. at 550,101 S.Ct. at 771 (citation omitted). 1. In his first claim of error, Cooey asserts that, in accepting his waiver of a jury trial, the trial court effectively denied his right to such a trial under the Sixth Amendment to the United States Constitution. That Amendment provides, in part, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” In addition, Article III, section 2 provides that “[t]he [tjrlal of all [cjrimes, except in [cjases of [ijmpeachment, shall be by [j]ury.” In Gannett Co., Inc., v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), the Supreme Court noted that the trial of a defendant before a jury of his peers advances not only the interests of the defendant himself, but also the interests of the public as a whole. “[T]he public has an interest in having a criminal case heard by a jury, an interest distinct from the defendant’s interest in being tried by a jury of his peers.” Id. (citing Patton v. United States, 281 U.S. 276, 383, 50 S.Ct. 253, 74 L.Ed. 854 (1930)). Nevertheless, the Court has long recognized the right of a defendant to waive his right to jury trial whenever he finds it in his best interest to do so. “Upon this view of the constitutional provisions we conclude that article 3, § 2, is not jurisdictional, but was meant to confer a right upon the accused which he may forego at his election. To deny his power to do so is to convert a privilege into an imperative requirement.” Patton v. United States, 281 U.S. 276, 298, 50 S.Ct. 253, 258, 74 L.Ed. 854 (1930). Courts, however, may “not presume acquiescence in the loss of fundamental rights.” Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (citations omitted). Thus, whenever a defendant attempts to exercise his right to waiver, a court must ascertain two characteristics of the waiver decision. First, the decision to waive one’s right to jury trial must be knowing. Second, the decision to waive must be entirely voluntary. See Id. at 464-465, 58 S.Ct. at 1023. In the instant case, the trial judge learned o'f Cooey’s desire to waive his right to a jury trial at a pretrial hearing. At that hearing, Cooey’s counsel told Judge Winter that “I think he understands what his constitutional rights are in terms of a jury. I think he understands all of the ramifications of the waiver of such a right.” (Tr. Vol. IV at 3.) In response, Judge Winter asked Cooey himself if he understood the nature of his decision to waive his right. First, he asked, “Mr. Cooey, you do understand you have a constitutional right to a jury trial?” Cooey responded, “Yes sir.” Second, he asked, “And after discussions with your attorneys and your family, you have agreed to waive that right voluntarily.” Once again, Cooey answered “Yes sir.” (Id.) No further questions regarding the waiver were asked. Cooey now asserts that he did not voluntarily waive his right to jury trial with full knowledge of the consequences of that waiver. In response, Respondent first notes that the merit of this assertion need not even be considered. Specifically, it notes that the Ohio state courts denied this claim under the doctrine of res judicata. See State v. Cooey, 1994 WL 201009 at *9 (denying Cooey’s claim of invalid waiver under the doctrine of res judicata because the claim could have been raised at trial or on direct appeal and was not raised at all). Consequently, it argues, this court is precluded from reviewing the claim under the doctrine of procedural default. In Maupin v. Smith, 785 F.2d 135 (6th Cir.1986), the Sixth Circuit Court of Appeals summarized all the various considerations of the procedural default doctrine into a form-part test: First, the court must determine that there is a state procedural rule that is applicable to the petitioner’s claim and that the petitioner failed to comply with the rule.... Second, the court must decide whether the state courts actually enforced the state procedural sanction.... Third, the court must decide whether the state procedural forfeiture is an ‘an adequate and independent’ state ground on which the state can rely to foreclose review of a federal constitutional claim.... [Fourth, o]nce the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate under Sykes that there was ‘cause’ for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error. Id. at 138 (citations omitted). Thus, the court must first consider the applicability of the asserted state procedural rule. Under the doctrine of res judicata, a petitioner may not initially assert any claim on collateral review that was or could have first been litigated during direct appeal. In particular, 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 judgment, any defense or any claimed lack of due process that was raised or could have raised by the defendant at the trial, which resulted in that judgment or conviction, or on an appeal from that judgment. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). In his Traverse to the Return of Writ, Cooey acknowledges the adoption and application of the doctrine by Ohio courts. (Traverse at 13.) Nevertheless, he contends that Ohio courts have also adopted a variety of exceptions to the general rule of preclusion. Furthermore, he contends that one of those exceptions in particular is applicable to the instant claim, rendering the general rule inapplicable. In arguing the inadequacy of his waiver, Cooey asserts that evidence outside the record demonstrates his lack of understanding at the time he made the waiver. Cooey then argues that Ohio law exempts such claims relying upon evidence outside the official court record from the res judicata doctrine. For example, in State v. Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985), the Ohio Supreme Court considered the claim, on direct appeal, of a defendant that his counsel’s failure to tender notice of alibi testimony constituted ineffectiveness of assistance of counsel. Upon consideration, the Court denied the defendant’s ineffectiveness of assistance claim as stated. But in dicta, the Court noted that the defendant could bring a separate claim of ineffective assistance on post-conviction review if he was not informed of the decision not to tender the notice. The Court further noted that the failure of the defendant to raise this separate claim on direct appeal would not preclude him, under the doctrine of res judicata, from asserting the claim under the post-conviction relief statute. In the present case ... it is possible that the issue of competency herein could not fairly have been determined without resort to evidence dehors the record. This evidence includes trial counsel’s previous legal experience and his motivations for failing to follow the notice-of-alibi rule. Under these circumstances, res judicata may not be a bar to postconviction relief. Id. at 101 n. 1, 477 N.E.2d 1128. Since Smith, however, at least two Ohio appellate courts have limited this exception to the general rule of res judicata described in Perry. In State v. Coleman, 1993 WL 74756 at *7 (Ohio.App. 1st Dist. Mar. 17, 1993), appeal denied, 67 Ohio St.3d 1450, 619 N.E.2d 419 (1993), the First Judicial District Court of Appeals held that the “[ejvidenee presented outside the record must meet some threshold standard of cogency; otherwise it would be too easy to defeat the holding of Perry by simply attaching as exhibits evidence which is only marginally significant and does not advance the petitioner’s claim beyond mere hypothesis and a desire for further discovery.” Similarly, in State v. Lawson, 103 Ohio App.3d 307, 315, 659 N.E.2d 362 (1995), appeal denied, 74 Ohio St.3d 1404, 655 N.E.2d 184 (1995), the Twelfth Judicial District Court of Appeals found that “to overcome the res judicata bar, evidence offered dehors the record must demonstrate that the petitioner could not have appealed the constitutional claim based upon information in the original record.” (citation omitted). In both cases, the petitioner submitted exhibits outside of the record along with his petition. Nevertheless, both appellate courts held that the petitioner failed to establish that the claim could only be resolved by consulting such evidence. In this case, Petitioner submitted no evidence at all to the state court during post-conviction review beyond the record. Instead, he argues that, before applying the res judicata doctrine, the state court should have conducted a hearing to afford him the opportunity to meet the burden discussed in Lawson and Coleman. In light of the Ohio Supreme Court’s holding in State v. Milanovich, 42 Ohio St.2d 46, 325 N.E.2d 540 (1975), the court finds that it must agree. In Mila-novich, the Court considered a post-conviction petition in which the petitioner claimed that his plea of guilty at trial was induced by a promise from counsel and therefore “deprive[d] ... of the character of a voluntary act.” Id. at 49, 325 N.E.2d 540 (citing Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830 (1941)). The court agreed with the petitioner that the “petition raised a claim which was sufficient on its face to raise a constitutional issue ... and provided a substantive ground for relief.” Id. at 50, 325 N.E.2d 540. Furthermore, it agreed that the lower court must conduct an evidentiary hearing to permit the petitioner the opportunity to substantiate the claim, at least where no motions for summary judgment háve been filed. “In the case of a petition which states a substantive ground for relief and which relies upon matters outside the record, the court should thus proceed to a prompt evi-dentiary hearing, unless the prosecuting attorney files a motion for summary judgment in accordance with Civ.R. 56.” Id. at 51, 325 N.E.2d 540. Thus, in light of Milanovich, Lawson and Coleman would appear to presume that the petitioner has had at least the opportunity to offer evidence in support of his claim. As a result, where, as here, the petitioner has had no such opportunity, the court finds that the limitations on the Smith exception to the Perry rule do not apply. In short, the doctrine of res judicata does not apply to this claim. Respondent next argues that even if the procedural default rule does not apply to this claim, the claim should be denied on it merits. As noted above, Cooey claims that the trial court erred in finding his waiver to be voluntary and knowing. Initially, the court must establish if the trial court’s finding that Gooey’s waiver was knowing and voluntary constitutes a “determination of a factual issue” that requires deference under § 2254(d). In interpreting § 2254(d), the Supreme Court has characterized a variety of assessments made by trial courts that are similar, even if not identical, to the assessment now at issue. See, e.g., Maggio v. Fulford, 462 U.S. 111, 117, 103 S.Ct. 2261, 2264, 76 L.Ed.2d 794 (1983) (per curiam) (characterizing the assessment of a defendant’s competency to stand trial as a factual determination); Wainwright v. Witt, 469 U.S. 412, 429, 105 S.Ct. 844, 854-855, 83 L.Ed.2d 841 (1985) (discussing the nature of assessing a juror’s impartiality); Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984) (holding that the effectiveness of assistance of counsel is a mixed issue of law and fact). In Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995), the Court attempted to synthesize the somewhat conflicting holding of its earlier decisions. In that case, the Court specifically considered the character of a state-court determination that a defendant was not “in custody” during an interrogation. The Court first noted the essential elements of the “in custody” determination and then asked if an assessment of basic historical facts or a witness’ credibility resolved the issue. After noting that “the crucial question entails an evaluation made after a determination” of witness credibility and basic historical facts, the Court held that the determination was an issue of law, not fact, warranting independent review by a federal habeas court. Id. at 113-115, 116 S.Ct. at 466 (emphasis added). Significantly, the Court contrasted the determination at issue in Thompson with voir dire of a juror or the determination of a defendant’s competency. Unlike the voir dire of a juror, or the determination of a defendant’s competency, which “take[s] place in open court on a full record, the trial court does not have a first-person vantage on whether a defendant was “in custody” for Miranda purposes.” Id. at 114, 116 S.Ct. at 466 (citations omitted). In light of Thompson, the court finds that a trial court’s determination of the knowing and voluntary nature of a jury waiver constitutes a factual determination entitled to deference under § 2254(d). In making such a determination, a trial court ultimately relies upon the credibility of the defendant before it. In addition, as in Maggio, the determination at issue involves an assessment of a subject “in open court on a full record.” Finally, unlike the determination of a defendant’s custody status in Thompson, the trial court’s assessment of Cooey’s waiver will not likely serve as precedent for future cases. Cf. Id. at 113-115, 116 S.Ct. at 466. Thus, unless Cooey can demonstrate that one of the eight factors of § 2254(d) applies, the court must presume that the state court’s finding is correct. Cooey argues that he can nonetheless meet' the burden imposed by § 2254(d) in two ways. First, he argues that the trial court’s limited oral inquiry failed to develop adequately the material facts. See 28 U.S.C. § 2254(d)(3). Second, he argues that evidence outside the record can, by way of an evidentiary hearing, demonstrate how very little he actually understood about the consequences of his waiver decision. Upon consideration, the court disagrees. First, a trial court need not conduct a particularly detailed oral inquiry before finding that a waiver is knowing and voluntary. For example, in United States v. Martin, 704 F.2d 267 (6th Cir.1983), the Sixth Circuit Court of Appeals considered a jury waiver similar to that of Cooey in the instant case. As here, the trial court made only a brief oral inquiry into the defendant’s understanding of his right to trial by jury. THE COURT: Are counsel ready to proceed? MR. TOMCZAK: Yes, your Honor. MR. McDONALD: Yes, Your Honor. THE COURT: I have the impression that there is some question of a waiver of jury trial in this case. MR. TOMCZAK: Yes, your Honor. THE COURT: What is the situation about that? MR. TOMCZAK: First of all, I would like to correct the record. My client’s name is Micky Arrington. I believe an alias appeared on the indictment. Mr. Arrington at this time has been advised of his right to waive trial by jury. At this point, he is willing to waive that right, and the prosecution is willing to consent to the matter being tried to this Court. MR. McDONALD: That is correct, your Honor. THE COURT: Is that a fact, Mr. Arring-ton? MR. ARRINGTON: Yes sir. THE COURT: Do we have a written waiver form? I usually prefer to have a written jury waiver if possible. MR. McDONALD: Does the Clerk have one? THE COURT: The Clerk hasn’t one, apparently. She will get one from her office. We will await her return. (Thereupon, a jury waiver form was signed by the parties.) THE CLERK: If the Court please, the clerk has received the waiver of jury form. Id. at 269-270. The Circuit initially described the importance of juries in criminal prosecutions. It noted that “[t]he purpose of the jury trial is to prevent governmental oppression and arbitrary law enforcement” and that “[t]he protection of a jury affords lies in the interposition of the common sense judgment of a group of impartial laymen between the defendant and the potentially biased prosecutor and judge.” Id. at 271 (citations omitted). The court then described four conditions which must be met for a defendant to be held to have waived his right to jury trial. Criminal defendants may waive their right to trial by jury only if four conditions are met. First, the waiver must be in writing. Second, the government attorney must consent to the waiver. Third, the trial court must approve the waiver. Fourth, the defendant’s waiver must be voluntary, knowing and intelligent. Id. Cooey does not dispute that each of the first three conditions established in Martin were met in the instant case. Instead, he argues that his waiver was infirm in that it was not sufficiently established to be voluntary, knowing and intelligent upon oral examination by the court. • Undeniably, “[t]he safeguard afforded by the jury trial right would be lost if either of these factors were not an attribute of every jury trial waiver. The waiver of this important right is effective only where it is not a product of duress or coercion.” Id. (citation omitted). But as the Circuit held in Martin, “there is no constitutional requirement that a court conduct an on the record colloquy with the defendant prior to the jury trial waiver.” Id. at 274. In fact, in Martin, the Circuit court explicitly declined to mandate that the trial court ask specific questions of a defendant before finding that his waiver is constitutionally sufficient. “[W]e decline to join several courts which have adopted mandatory supervisory rules requiring trial courts to personally interrogate defendants prior to accepting a jury trial waiver.” Id. at 275. Instead, the Circuit elected to merely suggest that trial courts inform defendants of the benefits and burdens of waiving one’s right to jury trial. “At a minimum, a defendant should be informed that a jury is-composed of 12 members of the community, he may participate in the selection of jurors, the verdict of the jury must be unanimous, and that a judge alone will decide guilt or innocence should he waive his jury trial right.” Id. at 274-275 (emphasis added). See also Jells v. Ohio, 498 U.S. 1111, 111 S.Ct. 1020, 112 L.Ed.2d 1101 (1990) (Marshall, J., dissenting) (denying certiorari in a case involving an Ohio trial court’s failure to explicitly describe to a defendant the costs and benefits a jury waiver). Second, the court finds that Cooey is not entitled to an evidentiary hearing as a matter of federal law. “Because § 2254(d) is an express limitation on the district court’s jurisdiction, a district court is without authority to hold an evidentiary hearing on a matter on which the state court has made findings unless one of the factors contained in § 2254(d) applies.” Mitchell v. Rees, 114 F.3d at 577. The court finds none of these factors applicable to the instant case. Consequently, the court shall not hold a hearing on the claim nor disturb the presumption that the trial court’s finding of knowledge and voluntariness was correct. 2. In his second claim of error, Cooey asserts that the selection of the judicial panel which heard his case deprived him of his rights under the Fourteenth Amendment. Cooey specifically asserts that the trial court failed to comply with the statutory provision providing for the selection of a three-judge panel. Consequently, he argues, in convicting and sentencing him, the trial court ultimately deprived him of his liberty “without due process of law.” After Cooey waived his right to be tried by a jury, Judge Winter quickly set about to secure a three-judge panel, as is required under Ohio law. See Ohio.Rev.Code § 2945.06 (West 1997) (“If the accused is charged with an offense punishable with death, he shall be tried by a court composed of three judges.... ”). The court record, however, is somewhat sparse as to the specific procedure that Judge Winter followed in assembling that panel. After accepting Cooey’s waiver, the judge announced that “[t]he Court will now try and [sic] get a three-judge panel together.” (Tr. Vol. IV at 4.) Unfortunately, no further mention is made of the panel assembly until a journal entry dated after the guilt phase of the trial was completed. In that entry, Judge Winter announced the selection of Judges Bayer and Morgan. (See Writ at ¶ 26.) As before, Respondent initially notes that this claim was held by the Ohio appellate court to have been precluded under the doctrine of res judicata. See State v. Cooey, 1994 WL 201009 at *9. The appellate court held that “[t]his claim was barred by res judicata because it could have been raised at Defendant’s trial or on direct review of judgment of conviction but was not.” As a result, Respondent further notes, this court may not consider the merits of the claim under the doctrine of procedural default. Once again, the court must respectfully disagree. This second claim similarly relies on evidence lying .outside the record. In particular, Cooey argues that such evidence demonstrates that Judge Winter improperly selected the panel, contrary to the express provisions of Ohio. Rev.Code § 2945.06. As noted previously, Ohio courts do not apply the doctrine of res judicata to claims relying upon such outside evidence. Furthermore, those courts that require applicants to demonstrate a modicum of such evidence appear to presume inherently that the applicant was provided either a hearing or an opportunity upon motion for summary judgment. Thus, the court finds that the res judicata, and consequently, the procedural default doctrine, do not apply to Cooey’s second claim. Under § 2945.06, a three-judge panel in a death penalty case shall consist “of the judge presiding at the time in the trial of criminal cases and two other judges to be designated by the presiding judge or chief justice of that court, and in case there is neither a presiding judge nor a chief justice, by the chief justice of the supreme court.” Cooey argues that the trial judge acted in a manner contrary to the statute by securing the remaining members of his panel for the trial. Furthermore, he points to the paucity of the record and effectively argues that the court’s failure to detail the precise nature of the selection process itself constitutes unconstitutional arbitrary and capricious action. Upon consideration, the court finds that this claim of error is invalid. In support of his arguments, Cooey cites the important Supreme Court decisions in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-2965, 57 L.Ed.2d 973 (1978). Neither Furman, Gregg, nor Lockett, however, effectively compels Cooey’s position. For example, in Furman, the Court held that the imposition of the death penalty in the cases before it constituted cruel and unusual punishment in violation of the due process protections of the Eighth and Fourteenth Amendments. Admittedly, as Cooey argues here, in a concurring opinion, Justice Douglas did observe that “[a] penalty ... should be considered ‘unusually1 imposed if it is administered arbitrarily or discriminatorily.” Id. at 249, 92 S.Ct. at 2731-2732 (citation omitted). But Justice Douglas, along with the others who also concurred in the per curiam opinion, addressed the specific issue of how states impose the death penalty itself, not the more general question of applying procedural rules in death penalty cases. Id. at 255, 92 S.Ct. at 2734-2735 (“We have, I fear, taken in practice the same position, partially as a result of making the death penalty discretionary and partially as a result of the ability of the rich to purchase the services of the most respected and most resourceful legal talent in the Nation.”); cf. Gregg, 428 U.S. at 168, 96 S.Ct. at 2922-2923; Lockett, 438 U.S. at 597, 98 S.Ct. at 2960-2961. Moreover, even if a trial court’s violation of § 2945.06 implicates a defendant’s rights to due process and equal protection, this court remains unconvinced that any such violation ever took place.. First, Cooey offers no affirmative evidence to support his assertion that Judge Winter selected his eo:panelists himself. Instead, the record simply reflects that, after accepting Cooey’s wavier of a jury, the judge initiated the process of assembling a panel. Nothing in' the record shows that Judge Winter did anything but follow the precise requirements of the statute by seeking the appointment of his colleagues by either the presiding judge or a justice of the Supreme Court. Second, and more importantly, the Ohio Supreme Court appears to have endorsed as valid the very actions which Cooey asserts as the basis of his claim. In State v. Eley, 77 Ohio St.3d 174, 672 N.E.2d 640 (1996), the Court considered a habeas petitioner’s claim that he was unfairly denied the right to voir dire a three-judge panel selected pursuant to § 2945.06. The Court denied that any such right to voir dire existed, and in doing so held that § 2945.06 permits the trial judge, in addition to the presiding judge and chief justice of the court, to select his co-panelists. “R.C. 2945.06 provides that the three-judge panel is to be composed of three judges: the judge presiding at the time in the trial of criminal cases and two judges to be designated by that judge or by the presiding judge or chief justice of that court.” Id. at 184, 672 N.E.2d 640 (emphasis added). Thus, even if Judge Winter selected his co-panelists precisely as Cooey alleges, his actions would not appear to violate § 2945.06, at least as interpreted by the Ohio Suprepie Court. 3. In this third claim of error, Cooey asserts that the trial court improperly considered evidence obtained in violation of the Fourth Amendment. After placing Cooey under arrest, the police secured a warrant to search Cooey’s apartment and his grandmother’s automobile. Before trial, Cooey moved to suppress the evidence found, but the court denied his motion and considered it in both the guilt and penalty phases of the trial. Cooey now argues- that the trial court’s consideration of the evidence, at least in the penalty phase of the litigation, entitles him to a new trial. Cooey correctly acknowledges that in Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052, 49 L.Ed.2d 1067 (1976), the Supreme Court held that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Nevertheless, he argues that he is entitled to relief because evidence obtained in an unconstitutional search in this case was introduced not only during guilt phase of trial, but also during sentencing. Upon review, the record clearly reveals that some evidence introduced at trial, including the evidence seized from the car, was considered by the court during the sentencing phase of the trial as well. (See Opinion of the Three Judge Panel, State’s Ex. C at 8 (deciding upon Cooey’s sentence on the basis of “evidence presented at trial.”).) The record does not reflect, however, that the court specifically took the evidence seized from the automobile into account when sentencing Cooey. Moreover, even if this court were persuaded that the trial court did consider the automobile evidence at sentencing, it could not agree that Cooey is consequently entitled to a new trial. The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” “The Amendment was primarily a reaction to the evils associated with the use of the general warrant in England and the writs of assistance in the Colonies, and was intended to protect the sanctity of a man’s home and the privacies of life.” Stone v. Powell, 428 U.S. at 482, 96 S.Ct. at 3046 (citations omitted). The Amendment itself only prohibits particular government behavior; it does not provide for any specific remedy or penalty. Consequently, the Supreme Court adopted what has come to be commonly known as the “exclusionary rule,” which prohibits the introduction at trial of evidence obtained in violation of the Amendment. “The exclusionary rule was a judicially created means of effectuating the rights secured by the Fourth Amendment.” Id. Ultimately, the Court held the rule limited both federal and state prosecutors seeking to introduce evidence obtained in violation of the Amendment. See Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921); Warden v. Hayden, 387 U.S. 294, 304-305, 87 S.Ct. 1642, 1648-1649, 18 L.Ed.2d 782 (1967); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). In Stone, the Court adopted a utilitarian approach to the question of whether habeas petitioners can bring Fourth Amendment claims that have been fully and fairly litigated by the state courts. Specifically, the Court treated the issue as one of deciding whether or not to extend the general exclusionary rule that applies to unconstitutionally obtained evidence during trials. “The answer is to be found by weighing the utility of the exclusionary rule against the costs of extending it to collateral review of Fourth Amendment claims.” Stone v. Powell, 428 U.S. at 489, 96 S.Ct. at 3050. The Court then found that, on collateral review, the main cost of the rule, the diversion of the criminal process from the ultimate question of guilt or innocence, outweighed the limited benefit of additionally deterring future violations of the Fourth Amendment. Nowhere in Stone does the Court limit its holding only to claims concerning evidence considered during the trial’s guilt phase. Furthermore, the Court has never adopted such a view in its decisions that follow Stone. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 79, 97 S.Ct. 2497, 2502, 53 L.Ed.2d 594 (1977) (“Only last Term in Stone v. Powell, the Court removed from the purview of a federal habeas court challenges resting on the Fourth Amendment, where there has been a full and fair opportunity to raise them in the state court.”) (emphasis added). Indeed, such a view would not comport at all with Stone’s utilitarian approach. After all, if the deterrence effect of excluding evidence during the guilt phase fades upon collateral review, so too must the effect of excluding evidence at sentencing, which has never been considered strong enough to justify exclusion even during direct review of a trial. See United States v. Jenkins, 4 F.3d 1338, 1344 (6th Cir.1993) (“The district court included the crack cocaine in the total amount of cocaine attributable to the conspiracy for purposes of calculating defendants’ offense levels under the sentencing guidelines. The court held that the exclusionary rule did not apply even though it had ruled that the search was unconstitutional. We agree.”). Consequently, the court finds that it may not exercise jurisdiction over Cooey’s third claim. 4. In his fourth claim of error, Cooey asserts that the trial court impermissibly considered certain photographs of the victims’ bodies during the trial’s sentencing phase. During the trial’s guilt phase, the court admitted 26 color slides depicting the victims at the scene of the crime. . Subsequently, during sentencing, the trial court considered these same photographs when assessing the case’s mitigating and aggravating factors. On direct review, the Ohio Supreme Court found that 11 of the slides were not gruesome. State v. Cooey, 46 Ohio St.3d at 36, 544 N.E.2d 895. Consequently, Cooey asserts, the Court implicitly found that the remaining 15 slides were gruesome, rendering the trial court in violation of the Supreme Court’s edict in Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204-1205, 51 L.Ed.2d 393 (1977) “that any decision to impose the death penalty be, and appear to be, based on reason rather than caprice or emotion.” Once more, Respondent asserts that Cooey’s claim is precluded under the federal habeas doctrine of procedural default. Specifically, he notes that Cooey failed to raise the claim before the lower Ohio appellate court on direct review. As a result, he asserts, the Ohio Supreme Court reviewed the claim only for “plain error,” thereby declining to consider the claim on its merits. Consequently, he concludes, this court is similarly precluded from reviewing the claim’s merits. Upon its own review of the Ohio Supreme Court’s decision, this court cannot agree with Respondent’s characterization of the Ohio Supreme Court’s analysis. After acknowledging that four of the photos were “highly repetitive,” the Court found that the admission of those photos was nevertheless “harmless error.” State v. Cooey, 46 Ohio St.3d at 36, 544 N.E.2d 895. It did not review the claim for “plain error.” When reviewing a claim for harmless error, a court must assess “if the prosecution can prove beyond a reasonable doubt that a constitutional error did not contribute to the verdict.” Satterwhite v. Texas, 486 U.S. 249, 256, 108 S.Ct. 1792, 1797, 100 L.Ed.2d 284 (1988) (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)). In contrast, a court conducting a review for “plain error” must find that “but for the error, the outcome of the trial would have been otherwise.” State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978). Thus, unlike a court reviewing for harmless error, a court reviewing for plain error must defer to the trial court’s judgment unless the petitioner can establish that the error actually affected the verdict which was rendered. The Ohio Supreme Court itself recognized this distinction within its opinion, for it expressly reviewed Cooey’s separate challenge to the prosecutor’s closing remarks under “a plain error standard.”. State v. Cooey, 46 Ohio St.3d at 36, 544 N.E.2d 895. Therefore, the court finds that the Ohio Supreme Court considered the merits of Cooey’s fourth claim, and shall itself proceed to do the same. Upon its own independent review of the claim, the court finds that Gooey’s' fourth claim is unwarranted. In Gardner, a case which Cooey himself cites in support of his claim, the Court held that a petitioner was denied due process of law when his death sentence was imposed,' at least in part, on the basis of confidential information ■ which had not been disclosed to either petitioner or his counsel. But nowhere in Gardner does the Supreme Court prohibit a sentencing body from reviewing accurate photographs which depict the details of a defendant’s particular crime. Cooey does not argue that the photographs’ only value lay in their appeal to the panel’s emotions or whims. Furthermore, he fails to establish that the photographs in fact appealed to the panel’s emotions in this case. As a result, the court finds that it must deny Gooey’s fourth claim on its merits. 5. In his fifth claim of error, Cooey argues that the trial court erred in admitting certain statements which the prosecution made during its closing remarks in the guilt phase of the trial. In those remarks, the prosecution referred directly to the effect of the crime not only on the two victims, but also their families as well. In particular, it observed: We have two families, in addition to what these girls were terrorized with, we have two families that have lost the most precious gift we can receive, and that is their children. Now, I don’t — I can’t feel and I don’t know how to feel for them, what they’re going through, and nobody else in this courtroom can feel that, but that gift has been taken away from them for criminal intent that we have a difficult time even understanding. (Tr. Vol. VI. at 343-344.) In response, Respondent notes that Cooey failed to raise the issues on direct appeal to the Ninth Judicial District Court of Appeals. In its direct review of the claim, the Ohio Supreme Court noted that Cooey failed to object to the statements at the time they were made. In addition, it noted that Cooey did not raise the claim on direct review to the Ohio appellate court. Thus, the Court applied Ohio’s contemporaneous objection rule. Under the rule, the Supreme Court may only consider an assertion of error for “plain error” in the absence of an objection at trial or before the lower appellate courts. See State v. Lawrence, 44 Ohio St.3d 24, 27, 541 N.E.2d 451 (1989). The Court found no such plain error, in light of the fact that “[t]he reference [to the impact on the victims] was brief, the evidence overwhelming, and the ease was tried to a three-judge panel.” State v. Cooey, 46 Ohio St.3d at 31, 544 N.E.2d 895. Once again, the State asserts that the procedural default doctrine precludes this court from considering the claim before it. In this instance, the court agrees. In contrast to its review of Cooey’s fourth claim for harmless error, the Ohio Supreme Court clearly limited its review of his fifth claim to one for plain error. Furthermore, it did so in light of the preclusive effect of Cooey’s failure to present the claim to either the trial or lower appellate court. Cooey argues that the Court’s review, however limited, served as a waiver, or “forgiveness,” of any application of the res judicata rule. He notes particularly that in reviewing the claim for plain error, the Ohio Supreme Court necessarily considered the merits of the claim under federal law. In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court considered a similar argument made by another habeas applicant under sentence of death. In that case, an Oklahoma appellate court considered the claim that a defendant is entitled to psychiatric assistance upon a preliminary showing that the defendant’s sanity will be an issue at trial. The Oklahoma court initially rejected the claim on its merits. Subsequently, however, it noted that Ake had failed to present the claim in his motion to the trial court for a new trial. Consequently, it held that the claim had been waived. On direct review by the Supreme Court, the respondent state argued that the Oklahoma appellate court had applied the state’s waiver rule to deny the claim, despite its review of the claim for “fundamental” error. The Court, however, rejected the argument. It first noted the Oklahoma court “made application of the procedural bar depend on an antecedent ruling on federal law, that is, on the determination of whether federal constitutional error has been committed.” Id. at 75, 105 S.Ct. at 1092. Furthermore, it noted that the determination of federal law was “integral to the state court’s disposition of the matter.” Id. As a result, the Court held that no waiver had occurred, arid proceeded to consider merits of the applicant’s claim. In such a case, the federal-law holding is integral to the state court’s disposition of the matter, and our ruling on the issue is in no respect advisory. In this case, the additional holding of the state court — that the constitutional challenge presented here was waived — depends on the court’s federal-law ruling and consequently does not present an independent state ground for the decision rendered. We therefore turn to a consideration of the merits of Ake’s claim. Id. Six years later, however, the Court significantly limited the scope and applicability of Ake. In Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Court again considered the issue of whether a state court’s application of a procedural rale sufficiently implicated federal law so as to preclude federal review under the procedural default doctrine. In Coleman, a federal habeas applicant presented a claim to a federal district court that had been denied by the Virginia Supreme Court under Virginia Supreme Court Rule 5:5(a). That rule requires that any party filing an appeal must first file a notice of the appeal within 30 days of the judgment. Nevertheless, pursuant to its holding in Tharp v. Commonwealth, 211 Va. 1, 175 S.E.2d 277 (1970), the Court considered whether a denial of the “extension would abridge a constitutional right.”Coleman, 501 U.S. at 741, 111 S.Ct.’at 2560. As in Ake, the applicant argued that the state procedural rule required a determination of the claim’s merits under federal law, thereby precluding application of the procedural default doctrine. The Court noted its prior decision in Ake, but held that the decision was distinguishable on two grounds. First, it noted that Ake was presented to the Court pursuant to its authority under 28 U.S.C. § 1257 to directly review judgments of state courts. Conversely, Coleman addressed a post-conviction petition for a writ of habeas corpus under § 2254. See Id. (“Ake was a direct review case. We have never applied its rale regarding independent state grounds in federal ha-beas.”). Second, it held that even if Ake does apply in federal habeas eas