Full opinion text
CLAY, J., delivered the opinion of the court, in which COLE, J., joined. BATCHELDER, J. (pp. 454-56), delivered a separate opinion concurring in part and dissenting in part. OPINION CLAY, Circuit Judge. Petitioner, Alton Coleman, appeals from the district court order denying Petitioner’s motion, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, to alter or amend the district court order denying Petitioner’s application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and lifting the stay of execution previously entered by the district court. For the reasons set forth below, we AFFIRM IN PART and REVERSE IN PART and REMAND for further proceedings not inconsistent with this opinion. BACKGROUND I. Procedural History On October 10, 1984, a Hamilton County, Ohio, grand jury indicted Petitioner for the aggravated murder of Tonnie Storey, with death penalty specifications, as well as for the aggravated robbery of Storey. On June 15, 1985, a jury found Petitioner guilty of aggravated murder under Ohio Revised Code § 2903.01 with one death penalty specification. The following day, the jury recommended the death penalty for Petitioner. On June 24, 1985, following independent review of aggravating and mitigating factors, the Court of Common Pleas of Hamilton County, Ohio sentenced Petitioner to death. The court then ordered that Petitioner be returned to federal custody, where Petitioner had been serving a twenty-year federal sentence for a 1984 conviction under 18 U.S.C. § 1201(a), the federal kidnaping statute. However, the court reserved the right of the State of Ohio to request custody of Petitioner in order to carry out the Ohio sentence from the Storey case, as well as to carry out a second death sentence, also imposed by the Court of Common Pleas in a separate trial, in connection with the murder of Marlene Walters. The court imposed the death sentence in the Walters case in May of 1985, one month prior to imposing the separate death sentence in the Storey case. On October 7, 1987, the Ohio First Appellate District affirmed Petitioner’s conviction and death sentence in the Storey case, which was upheld by the Ohio Supreme Court. On January 20, 1990, the United States Supreme Court denied cer-tiorari. On January 31, 1990, the Ohio Supreme Court set an execution date of April 24,1990, which, in March of 1990, the Ohio Supreme Court stayed for six months to allow Petitioner to file his post-conviction petition. Petitioner filed his post-conviction petition with the common pleas court on September 4, 1990, raising one hundred and four claims for relief. The common pleas court denied Petitioner’s post-conviction petition, which was affirmed by the Ohio First Appellate District in March of 1993. The Ohio Supreme Court subsequently declined jurisdiction over Petitioner’s appeal. On June 30, 1993, Petitioner filed an application for delayed reconsideration in the Ohio First Appellate District, which the court denied and was later affirmed by the Ohio Supreme Court. On October 7, 1994, the Ohio Supreme Court set Petitioner’s execution date for January 5, 1995. Following a ten-day stay of execution by the district court, on January 6,1995, Petitioner filed petitions for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 in connection with the Storey and Walters cases, which were later consolidated on appeal. On February 10, 1998, the district court denied Petitioner’s § 2254 petitions and lifted the stay of execution previously entered by the district court. On April 14, 1998, the district court denied Petitioner’s motion to alter or amend the district court order pursuant to Federal Rule of Civil Procedure 59(e). Petitioner appeals. II. Criminal History The Ohio Supreme Court provided the following factual findings in connection with Storey murder: On July 7, 1984, [Petitioner] and Debra D. Brown approached the home of the Reverend and Mrs. Millard Gay of Dayton, Ohio. After conversing with Mr. Gay, they stayed at the Gays’ home from July 7 through July 9, 1984. [Petitioner] and Brown accompanied the Gays to religious services in Lockwood, Ohio, on July 9, 1984. The next day, the Gays drove appellant and Brown to downtown Cincinnati and dropped them off. On July 11, 1984 at approximately 10:00 a.m., Tonnie Storey, age fifteen, left her home in Cincinnati wearing rusty brown cutoff shorts, a beige sleeveless blouse with yellow rings, blue tassel shoes and a Michael Jackson button. She was next seen at Bloom Junior High School at approximately 11:45 a.m. by a teacher. Later that same day, between 5:00 and 6:00 p.m., a classmate saw Tonnie on the corner of May and Morgan Streets in Cincinnati in the company of a man and a woman. The classmate identified the man as [Petitioner], When Tonnie had not returned home by 4:30 p.m. that day, her mother called the police and reported her missing. On July 19, 1984, a body was discovered in an abandoned building on May Street by a real estate agent. A Michael Jackson button and a pair of brown shorts with keys in the pocket were discovered in the area where the body was found. The keys identified by decedent’s father belonged to the Storey residence. The body was badly decomposed and identification was made through fingerprints. The body was identified as that of Ton-nie Storey. The cause of death of Ton-nie was homicidal asphyxia. State v. Coleman, 45 Ohio St.3d 298, 544 N.E.2d 622, 624-25 (1989). The Ohio Supreme Court also detailed Petitioner’s other criminal activity during the summer of 1984, which included multiple assaults, thefts, and murders. A summary of this criminal activity is presented in part TV of the discussion section below. III. Mental History On September 4, 1984, the district court referred Petitioner to the Federal Correctional Institution at Butner, North Carolina, for an evaluation of whether Petitioner was competent to stand trial on federal kidnaping charges. Sally Cunningham Johnson, M.D., and Jim Hilkey, Ph. D., conducted the evaluation, which was limited to Petitioner’s mental competency to understand the federal kidnaping charges brought against him and ability to work with an attorney in defending against those charges. Within those parameters, Drs. Johnson and Hilkey found Petitioner to be mentally competent to stand trial. The findings did not address Petitioner’s mental condition at the time of the Storey murder or at the time of the Storey trial. Counsel stipulated to Petitioner’s mental competency to stand trial in the Storey case. Petitioner argues on appeal that the examinations which resulted in him being found mentally competent were limited, and that independent investigation by Petitioner’s counsel into Petitioner’s social and mental history would have led to the presentation of substantial mitigating evidence at the penalty phase of Petitioner’s trial. Petitioner’s personal background, and counsel’s role in investigating that background, are presented in part VII of the discussion section below. DISCUSSION Petitioner’s habeas application to the district court raised forty-eight grounds for relief. The district court found twenty-seven of those grounds to be procedurally barred, and the remainder non-meritorious or inappropriately presented in the federal habeas context. On appeal to this Court, Petitioner raises eight issues for review. Because Petitioner’s habeas application was filed in 1995, prior to the passage of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), the preAEDPA standard of review applies. See Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir.1999). Under the pre-AEDPA standard, we presume the correctness of state court factual findings, which are rebuttable only by clear and convincing evidence, and we review determinations of law, or determinations involving mixed questions of law and fact, de novo. Id. (citing Rickman v. Bell, 131 F.3d 1150, 1154 (6th Cir.1997), cert. denied, 523 U.S. 1133, 118 S.Ct. 1827, 140 L.Ed.2d 962 (1998)). I. Procedurally Defaulted Claims A. Adequate and Independent State Ground Petitioner argues that the district court erred when it relied on the Ohio state court’s application of res judicata under § 2953.21 of the Ohio Post Conviction Act to procedurally bar many of Petitioner’s federal constitutional claims raised in his habeas application. In State v. Perry, the Ohio Supreme Court found that Ohio courts should apply the doctrine of res judicata when determining post-conviction relief under § 2953.21: Under the doctrine of res judicata, a final judgment of conviction bars the convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial which resulted in that judgment of conviction or on an appeal from that judgment. 10 Ohio St.2d 175, 226 N.E.2d 104, 108 (1967). Petitioner argues that res judicata under § 2953.21 was not an adequate and independent state ground on which to procedurally bar his habeas claims, and thus did not satisfy federal requirements under Maupin v. Smith, 785 F.2d 135 (6th Cir.1986). Under Maupin, the following is required of a state procedural rule which bars federal review of a habeas claim. First, the rule must apply to the petitioner’s claim, and the petitioner must have failed to comply with the rule. Second, state courts must have actually enforced the rule. Third, the rule must constitute an adequate and independent state ground justifying foreclosure of the federal constitutional claim. “This question generally will involve an examination of the legitimate state interests behind the procedural rule in light of the federal interest in considering federal claims.” Id. at 138. If a state procedural rule satisfies the above three elements, default may nevertheless be excused if the petitioner has shown cause for violating the state procedural rule and prejudice resulting from the alleged constitutional error. Id. Petitioner argues that res judicata was an inadequate procedural bar in this case because he was denied a reasonable opportunity to present his claims in state court in violation of Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955). However, this Court, in Rust v. Zent, 17 F.3d 155 (6th Cir.1994), and Riggins v. McMackin, 935 F.2d 790 (6th Cir.1991), has held that application of res judicata under § 2953.21 is an adequate and independent state ground justifying foreclosure of constitutional claims in habeas. Petitioner argues that Keener v. Ridenour, 594 F.2d 581 (6th Cir.1979), supports his position that application of res judicata under § 2953.21 was not an adequate and independent state ground for barring his habeas claims. In Keener, this Court found: The Ohio Supreme Court has construed the Post Conviction Act to preclude judicial review of new issues in all but a limited number of circumstances. As a result, Ohio post-conviction collateral relief is not coextensive with federal statutory habeas corpus. So long as the Ohio Post Conviction Act, as construed by the Supreme Court of Ohio in State v. Perry, remains unamended, there will be repeated instances in which an Ohio prisoner will present claims, cognizable in federal court, which have never been reviewed by the State courts of Ohio. Keener, 594 F.2d at 590 (footnote omitted). In Riggins, this Court did not address the coextensiveness of procedural default under the Ohio Post Conviction Act and federal habeas. Rather, this Court simply concluded, under Perry, that petitioner was: precluded from raising his due process claim in Ohio state court because he had the opportunity to raise the issue during the course of his direct appeal and failed to do so ... Thus, because Ohio law establishes a procedural bar to [petitioner’s] due process claim, this court will not consider that claim unless [petitioner] establishes [cause and prejudice]. Riggins, 935 F.2d at 793 (citing Perry, 226 N.E.2d at 104). In Rust, citing Riggins, this Court also found petitioner’s habeas claims barred without reference to coextensiveness under Keener. Specifically, this Court found that petitioner was: barred from presenting his constitutional claims to the state courts because he had the opportunity to raise the issues during the course of his direct appeal but failed to do so ... Because [petitioner] failed to raise his constitutional issues in his direct appeal, and because [petitioner’s] procedural default [under the Ohio res judicata doctrine] constituted an ‘adequate and independent’ state ground on which the state relied to foreclose judicial review of his constitutional claims, we may not consider [petitioner’s] constitutional claims unless he can show [cause and prejudice]. Rust, 17 F.3d at 160-61 (citations omitted). This Court in Keener cited several cases in support of its position that “because of the narrow interpretation placed on [Section] 2953.21 by the Ohio Supreme Court, collateral relief is often unavailable or ineffective as a State remedy.” Keener, 594 F.2d at 590. However, these cases concerned forgiveness of the exhaustion requirement for habeas review, not the adequacy of res judicata under § 2953.21 as a state ground justifying foreclosure of a federal constitutional claim. One case, Mackey v. Koloski, 23 Ohio Misc. 1, 413 F.2d 1019, 1021 (6th Cir.1969), stated: [a]s we said in Terrell v. Perini, 414 F.2d 1231 [ (6th Cir.1969)], and Coley v. Alvis, 15 Ohio Misc. 177, 381 F.2d 870 [ (6th Cir.1967)], the Supreme Court of Ohio has interpreted Ohio Revised Code Section 2953.21 ... so narrowly that it would afford the appellant no effective remedy.... We hold that the appellant should not be required to apply for a delayed appeal of the denial of his motion to vacate his sentence in order to exhaust state remedies. This Court’s conclusion in. Keener, after discussion of Terrell, Coley, and Mackey, did not concern whether res judicata un,der § 2953.21 was an adequate and independent state ground justifying foreclosure of federal constitutional claims; rather, Keener found that because petitioner’s claim was not cognizable under § 2953.21, “he has exhausted available State remedies.” Keener, 594 F.2d at 590. Conversely, Rust and Riggins spoke directly to the issue of res judicata under § 2953.21 as an adequate and independent state ground. Rust and Riggins, not Keener, are controlling as to Petitioner’s claim; application of res judicata under § 2953.21 is an adequate and independent state ground for barring habeas review of constitutional claims. However, Petitioner argues that the facts giving rise to the Ohio court’s application of res judicata to his case render the ground inadequate in this particular instance. Petitioner cites James v. Kentucky, 466 U.S. 341, 348, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984), to support his claim that res judicata under § 2953.21 was “not the sort of firmly established and regularly followed state practice that can prevent implementation of federal constitutional rights,” and thus not an adequate state ground on which to rely in barring constitutional claims. The Supreme Court in James noted that a Kentucky rule’s distinction between “instructions” and “admonitions” was “not strictly adhered to” and that the Kentucky Court of Appeals had reached decisions contrary to the rule “in several cases”. James, 466 U.S. at 347-348, 104 S.Ct. 1830. Petitioner’s demonstration of the Ohio courts’ inconsistent application of res judicata under § 2953.21 consists of one case, State v. Howard, 42 Ohio St.3d 18, 537 N.E.2d 188 (1989). In Howard, a conviction was reversed in post-conviction proceedings because of an improper jury instruction. The court could have applied res judicata, in that the instruction issue could have been litigated on appeal, but chose to reverse the conviction instead. However, Howard failed to address the res judicata issue directly. Moreover, even assuming that Howard supported Petitioner’s position, one decision does not likely establish “inconsistent application” of a procedural rule. “[A]n occasional act of grace by a state court in excusing or disregarding a state procedural rule does not render the rule inadequate.” Amos v. Scott, 61 F.3d 333, 342 (5th Cir.1995), cert. denied, 516 U.S. 1005, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995). Further, as discussed above, James referenced “several cases” in support of its finding a Kentucky rule to have been inconsistently applied. We do not find that the Ohio Supreme Court’s failure to apply res judicata in Howard precludes its qualification as an independent and adequate state ground under Maupin. Petitioner then argues against application of the rule of Ohio v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), to his case. In Murnahan, the Supreme Court of Ohio held that claims of ineffective assistance of appellate counsel are not cognizable in post-conviction proceedings pursuant to § 2953.21. Id. at 1208. The Murnahan court instructed that colorable claims of ineffective assistance of appellate counsel, for which the application of res judicata would be unjust, should be presented in an application for delayed reconsideration in the court of appeals where the alleged error took place pursuant to Ohio Appellate Rules 26 and 14(B). Id. at 1209. Defendant in Murnahan, like Petitioner in this case, had pursued his claim of ineffective assistance of appellate counsel by request for post-conviction relief pursuant to § 2953.21. Petitioner argues that the Ohio courts in his case, as in Murnahan, should have permitted Petitioner to apply for delayed reconsideration in the Ohio court of appeals. Murnahan was decided in February of 1992. In June of 1993, Petitioner filed his Mumahan application for delayed reconsideration of his appeal based on ineffective assistance of appellate counsel. In February of 1994, the Ohio First Appellate District found Petitioner’s Murnahan application to be time-barred under Appellate Rule 26(B), which requires applications for reopening to be filed within ninety days after entry of appellate judgment. Appellate Rule 26(B), an amendment to the Ohio Rules of Appellate Procedure, became effective July 1, 1993, after Petitioner had filed his Mumahan application. Former Ohio Appellate Rule 26, in effect at the time of the Murnahan decision, required that applications for reconsideration be filed by the later of the court’s filing of the decision or within ten days of the announcement of the decision, a time limit that the court could extend for good cause under Ohio Appellate Rule 14(B). Ohio Appellate Rule 33(M) states that amendments to the Rules of Appellate Procedure that took effect on July 1, 1993, such as Appellate Rule 26(B), govern proceedings pending on July 1, 1993, except where application of the amended rules to those actions would cause injustice, in which case the former procedure applies. See Ohio v. Reddick, 72 Ohio St.3d 88, 647 N.E.2d 784, 786 (1996). Good cause must be shown for a late filing of a motion for reconsideration under either former Appellate Rules 26 and 14(B) or current Appellate Rule 26(B): “the good-cause requirement of App.R. 26(B) succeeds and incorporates the good-cause requirement of Murnahan and former App.R. 14(B).” Reddick, 647 N.E.2d at 786. Petitioner argues that the sixteen months separating the Murnahan decision from his motion for reconsideration should not bar his claim because during that time he was actively litigating the applicability of Murnahan to his case before the Ohio First Appellate District. However, Petitioner has not offered legal support for the claim that litigating the applicability of Murnahan to his case constituted good cause for filing his Murnahan application sixteen months after the Murnahan decision. Even assuming that Petitioner had shown good cause for his delay in filing for reconsideration, Petitioner, in his habeas application, offered no argument that the claims omitted by counsel' were stronger than those raised by counsel on appeal. “Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.” Gray v. Greer, 800 F.2d 644, 646 (7th Cir.1986). As noted by the district court, appellate counsel for Petitioner raised twelve assignments of error on appeal, which were grounded in dozens of specific issues for review. Petitioner, in the forty-fourth ground for relief in his habeas petition to the district court, identified some seventy-five additional issues which appellate counsel had “failed to raise”. (J.A. at 214.) The Supreme Court, in Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), found that the professional judgment of appellate counsel includes the determination of which colorable claims to raise on appeal, and that appellate counsel is not ineffective when failing to raise every colorable claim. Indeed, the argument for ineffective assistance of appellate counsel may have been stronger had every colorable claim actually been raised: Most cases present only one, two, or three significant questions.... Usually ... if you cannot win on a few major points, the others are not likely to help, and to attempt to deal with a great many in the limited number of pages allowed for briefs will mean that none may receive adequate attention. The effect of adding weak arguments will be to dilute the force of the stronger ones. Barnes, 463 U.S. at 752, 103 S.Ct. 3308 (quoting R. Stern, Appellate Practice in the United States 266 (1981)). Petitioner argues that appellate counsel would have been more effective by raising nearly ninety, rather than twelve, issues on appeal. The Supreme Court in Barnes rejected such reasoning. Petitioner also argues that the district court’s analysis of his ineffective assistance of appellate counsel claim failed to review required considerations as provided in Mapes. In Mapes, this Court suggested eleven considerations “that ought to be taken into account in determining whether an attorney on direct appeal performed reasonably competently.” Mapes, 171 F.3d at 427. Although Petitioner argues that the district court’s analysis of the individual claims not raised by counsel on appeal was insufficient, Petitioner’s habeas application itself lacked any factual specifics underlying those omitted claims. After enumerating the seventy-five claims un-raised on appeal, Petitioner alleged: At the time of [Petitioner’s] appeals, the above issues were recognized and accepted as viable issues by effective attorneys practicing capital litigation and having knowledge concerning the capital litigation process. Prevailing professional norms prescribed that capital appellate counsel must raise these issues on appeal.... The performance of appellate counsel in failing to raise these issues was deficient. Appellate counsel’s performance was below prevailing professional norms of reasonably competent counsel. (J.A. at 223.) Petitioner did not allege in his petition facts which may have lent particular importance to some of the seventy-five omitted claims relative to the strategic value of the twelve claims actually raised on appeal. Even if reviewing the merits of Petitioner’s ineffective assistance of appellate counsel claim, Petitioner’s argument that prevailing professional norms require reasonably competent counsel in capital cases to raise a particular set of at least seventy-five claims on appeal is contrary to Banes and, given the lack of alleged facts underlying Petitioner’s claim, beyond the scope of fact-intensive review under Mapes. Finally, Petitioner argues that the Munahan “substantive showing” standard violates Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as reiterated in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). The Supreme Court clarified in Robbins that states are free to adopt procedures for protecting a defendant’s right to appellate counsel which are different from the procedure presented by the Supreme Court in Anders, so long as such procedures “adequately safeguard a defendant’s right to appellate counsel.” Robbins, at 264, 120 S.Ct. 746. A procedure satisfying the “adequate safeguard” standard is one that “reasonably ensures that an indigent’s appeal will be resolved in a way that is related to the merit of that appeal.” Id. at 279, 120 S.Ct. 746. The Supreme Court in Robbins stated that under Anders, the Fourteenth Amendment requires that prior to dismissing a direct appeal, a state must fairly assess whether such appeal is frivolous. Robbins, 528 U.S. at 270-71, 120 S.Ct. 746. In contrast, merely finding an appeal to be meritless is an insufficient ground for excusing the state’s obligation to address the claim. Petitioner argues that the Muna-han standard, which allows appellate courts to dismiss a Munahan application if no “substantive” showing in support of the ineffective assistance of appellate counsel claim has been made, Murnahan, 584 N.E.2d at 1209, denies defendants their Fourteenth Amendment right under Robbins to adequate and effective appellate review. However, Petitioner’s Mumahan application was not dismissed for failure to make a substantive showing in support of his ineffective assistance of appellate counsel claim; rather, the Murnahan application was dismissed for exceeding the time limit for filing under Appellate Rule 26(B), a procedural bar that does not implicate Robbins or Anders. Due to this late filing, the Ohio appeals court did not review Petitioner’s Mumahan application for substance. Thus, the Murnahan standard that Petitioner is challenging under the Fourteenth Amendment was not applied to his motion for reconsideration. Even if this Court were to find Murnahan’s “substantive showing” requirement invalid under Robbins, Petitioner’s Murnahan application would remain procedurally barred. “A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Lyng v. Northwest Indian Cemetery Protective Assoc., 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988). We find that under Rust and Riggins, res judicata under § 2953.21 is an adequate and independent state ground for barring habeas review of constitutional claims. We also find that Petitioner has not demonstrated good cause for failing to meet Appellate Rule 26(B) filing requirements, and that such procedural default precludes review of the “substantive showing” standard of Murnahan in light of Robbins. B. Ineffective Assistance of Appellate Counsel as Cause Petitioner next argues that even if his claim of ineffective assistance of counsel was procedurally defaulted, nevertheless it may serve as cause for his other procedurally defaulted claims under Carpenter v. Mohr, 163 F.3d 938 (6th Cir.1998). However, the Supreme Court has since held that a procedurally defaulted ineffective assistance of counsel claim can serve as cause to excuse the procedural default of another habeas claim only if the habeas petitioner can satisfy the “cause and prejudice” standard with respect to the ineffective assistance claim itself. Edwards v. Carpenter, 529 U.S. 446, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). Petitioner has not forwarded any cause and prejudice argument in connection with his defaulted ineffective assistance of appellate counsel claim. Thus, under Edwards, Petitioner’s defaulted ineffective assistance of appellate counsel claim may not be used as cause for Petitioner’s other defaulted habeas claims. II. Evidentiary Hearing Petitioner requested an evidentiary hearing in the district court to further develop the factual bases of his constitutional claims. The district court denied Petitioner’s request, on grounds that Petitioner had failed to rebut the presumption of correctness afforded state court findings of fact under 28 U.S.C. § 2254(d). Petitioner argues that because the state procedure provided was inadequate to afford a full and fair hearing, the district court, under Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), was obligated to grant Petitioner an evidentiary hearing. In the alternative, Petitioner argues that the district court, in its discretion, should have granted an evidentiary hearing, under Sims v. Livesay, 970 F.2d 1575 (6th Cir.1992), because Petitioner was denied an evidentiary hearing in state court. Because Petitioner filed for habeas relief prior to the passage of the AEDPA, that statute’s amendments to 28 U.S.C. § 2254(d) do not apply to this case. This Court, in Scott v. Mitchell, 209 F.3d 854, 863 (2000), summarized our standard of review for state court factual findings under pre-AEDPA § 2254(d): “we presume primary, or historical, factual findings by the state courts to be correct, rebuttable only by clear and convincing evidence under one of the eight conditions listed in the pre-AEDPA version of 28 U.S.C. § 2254(d)(l-8).” The district court relied on Mitchell v. Rees, 114 F.3d 571 (6th Cir.1997), when denying Petitioner’s evidentiary hearing request. Rees held that “[b]ecause § 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.” Id. at 577. Townsend found that “[wjhere the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding.” Townsend, 372 U.S. at 312, 83 S.Ct. 745. Townsend then listed six circumstances in which a federal court must grant an evidentiary hearing to a habeas applicant. Townsend was decided prior to passage of the 1966 amendments embodied in § 2254(d). The 1966 amendments were intended by Congress to limit the exercise of federal court jurisdiction. See Rees, 114 F.3d at 576. In Fowler v. Jago, 683 F.2d 983, 988 (6th Cir.1982), this Court found that the eight exceptions allowing for the setting aside of the presumption of correctness under § 2254(d) “appear to subsume the six Townsend criteria.” In addition, we noted in Fowler that “in order to eliminate the need for an independent federal evidentiary hearing, the district court must examine the findings of the state court to determine whether the state trier of fact reliably found the material facts and rejected the claim on its merits.” Id. at 987. Further, “[u]nder ... § 2254(d) ... the district court must conduct an inquiry into whether the state court has adequately resolved the factual issues contained in the petitioner’s constitutional claim.” Id. at 988. The district court in this case made such an inquiry: [T]his Court has undertaken an independent assessment of the thousands of pages of trial transcripts, exhibits, motions, orders, submissions, and other documents to assess the thoroughness and reasoning of the state courts. In so doing, the Court has found that the state courts realized the essential and constitutional importance of these proceedings and conducted their fact-finding accordingly. Sufficient and extensive evidence was adduced at the ... Storey guilt and punishment phases to establish each essential element of the crimes and the propriety of the sentences given. (J.A. at 325.) Petitioner asserts that the denial of an evidentiary hearing by both the Ohio state courts and the district court denied him the opportunity to develop the factual bases of his claims. Petitioner argues that not one of the Ohio state court factual findings is entitled to the presumption of correctness under § 2254(d), without identifying which specific material facts may rebut such findings. The cases Petitioner cites in support of his evidentiary hearing claim, Correll v. Stewart, 137 F.3d 1404 (9th Cir.1998), and Jones v. Wood, 114 F.3d 1002 (9th Cir.1997), are distinguishable in that defendants in both cases alleged specific facts contrary to state court findings which they anticipated an eviden-tiary hearing would further develop. Petitioner would likely have a stronger claim to an evidentiary hearing if the claim sought something less than a reconsideration of every factual determination made by the Ohio state courts, and was based on something more than the unarticulated facts which Petitioner alleges he was denied from presenting to the state courts and district court. Under Rees, Petitioner has not indicated, aside from mere passing reference, how any pre-AEDPA § 2254(d) exception applies to his case, and thus the district court did not err in denying his request for an evidentiary hearing. III. Juiy Instructions Petitioner argues that improper jury instructions at both the guilt and penalty phases of the trial violated his Fifth, Sixth, Eighth and Fourteenth Amendment rights. Specifically, Petitioner claims that five separate jury instructions violated his constitutional rights. On habeas review of state court jury instructions, the question for a federal court is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)(quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)). A. Specific Intent/Aggravated Murder Petitioner argues that the trial court erred by replacing the element of specific intent, required by Ohio Revised Code § 2903.01(D) to find one guilty of aggravated murder, with proximate cause. Specifically, Petitioner argues that the trial court instructed the jury that to find Petitioner guilty of aggravated murder, the jury need only find that Petitioner was the principal offender in the aggravated burglary, not in the aggravated murder. The crime of aggravated murder under Ohio law states, “no person shall purposely, and with prior calculation and design, cause the death of another[.]” Ohio Rev. Code § 2903.01(A). The trial court instructed the jury as follows: Before you can find the defendant guilty of aggravated murder ... you must find that ... defendant purposely caused [Storey’s] death with prior calculation and design.... Purpose to kill is an essential element of the crime of aggravated murder. A person acts purposely when it is a specific intention to cause a certain result. It must be established in this count, that at the time in question, there was present in the mind of the defendant a specific intention to kill Tonnie Storey.... No person may be convicted of aggravated murder unless he is specifically found to have intended to cause the death of another. (J.A. at 2419-20). Contrary to Petitioner’s assertions, the jury instructions did not communicate that finding Petitioner to be the principal offender in the burglary was sufficient for finding guilt as to aggravated murder. Rather, the jury instructions clearly stated that finding Petitioner guilty of aggravated murder required finding that Petitioner “purposely caused [Storey’s] death with prior calculation and design.” B. Recommendation of Death Penalty Defendant next argues that the trial court’s instructions led jurors to think that the ultimate decision-making responsibility for the death penalty lay elsewhere, in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Caldwell held that a capital sentence is invalid “when the sentencing jury is led to believe that responsibility for determining the appropriateness of a death sentence rests not with the jury but with the appellate court which later reviews the case.” Caldwell, 472 U.S. at 323, 105 S.Ct. 2633. This Court, in Kordenbrock v. Scroggy, 919 F.2d 1091, 1101 (6th Cir.1991)(e% bane), found that a jury instruction and prosecutor’s characterization of a jury’s death sentence as a “recommendation” was consistent with Kentucky law and did not violate Caldwell. Kordenbrock stated that “[i]n order to make out a Caldwell violation, [petitioner] must show that the prosecutor improperly described the jury’s role under state law in order to water down their responsibility.” Id. (citing Dugger v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989)). The relevant Ohio law is Ohio Revised Code § 2929.03(D): If the trial jury unanimously finds, by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on the offender.... [I]f, after receiving ... the trial jury’s recommendation that the sentence of death be imposed, the court finds, by proof beyond a reasonable doubt ..'. that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, it shall impose sentence of death on the offender. Absent such a finding by the court ... the court ... shall impose one of the following [life] sentences on the offender!.] The trial court instructed the jury as follows: All twelve jurors must agree upon a verdict. If all twelve members of the jury find, by proof beyond a reasonable doubt, that the aggravating circumstance which [Defendant] was found guilty of committing, outweigh the mitigating factors, then you must return such finding to the Court, and as a matter of law, you would have no choice but to recommend to the Court that the sentence of death be ordered. The final decision as to whether the death penalty shall be imposed upon the defendant rests upon this Court after the Court follows certain additional procedures required by the laws, of this State. Therefore, even if you recommend the death penalty, the law requires the Court to decide whether or not the [Defendant ... will actually be sentenced to death or to life imprisonment. (J.A. at 2511-12.) “To establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law.” Dugger, 489 U.S. at 407, 109 S.Ct. 1211. In Kordenbrock, Kentucky law provided that “the jury shall retire to determine whether any mitigating or aggravating circumstances ... exist and to recommend a sentence for the defendant. Upon the findings of the jury, the judge shall fix a sentence within the limits prescribed by law.” Kordenbrock, 919 F,2d at 1101 (quoting Ky.Rev.Stat. Ann. § 532.025(l)(b)). Because the judge’s characterization of the jury’s sentence as a “recommendation” was found, in Korden-brock, not to violate Caldwell, we find the similar characterization of “recommendation” in this case, when Ohio law requires a separate, post-recommendation finding by the court confirming the jury’s sentence, was also not in violation of Caldwell. C. Reasonable Doubt at Sentencing Petitioner argues that the trial judge’s “reasonable doubt” instruction at the penalty phase of the trial violated due process. The district court held this claim to. be procedurally barred because it had not been presented on direct appeal and the Ohio courts had relied on adequate and independent state grounds in barring post-conviction consideration of the claim. Even assuming the claim is not barred, the jury instruction was not improper. We review jury instructions at the selection phase of the capital sentencing portion of a trial to determine “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Buchanan v. Angelone, 522 U.S. 269, 275, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998) (citations omitted). The jury instruction at issue was as follows: The State of Ohio seeks recommendations from you of a death sentence. In order to be entitled to this recommendation the State has the burden of proving by proof beyond a reasonable doubt that the aggravating circumstances which the defendant was found guilty of committing is sufficient to outweigh the factors in mitigation. The defendant has no burden of proof and is given great latitude in the presentation of the mitigating factors. In reaching your verdicts you are instructed that you will consider all evidence presented in the first trial, which you deem to be relevant as fully presented again in this proceeding, along with all additional evidence presented in this proceeding. To outweigh means ... to be more important than.... Remember that reasonable doubt is present when after you carefully consider and compare all evidence, you can not say you are firmly convinced of the truth of the charge. Reasonable doubt is doubt based on reason and common sense. Reasonable doubt is not mere possible doubt because everything relating to human affairs or depending upon moral evidence is open to some possible or imaginary doubt. Proof beyond a reasonable doubt is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his or her own affairs. If, after a full, fair and impartial consideration of all relevant evidence from both trials you are convinced beyond a reasonable doubt that the aggravating circumstances which the defendant was found guilty of committing is sufficient to outweigh the factors in mitigation then the State has proven its right to be entitled to the recommendation of the death penalty. (J.A. at 2503-2504). Petitioner argues that this instruction was doubly flawed. First, the court’s characterization of reasonable doubt as not being “firmly convinced” refers to the clear and convincing evidence standard, not reasonable doubt. Second, instructing the jury that they were to consider whether they had reasonable doubt as to the charge, rather than whether aggravating evidence outweighed mitigating evidence, misdirected the jury toward a conclusion that had already been determined at the guilt phase of the trial. The Supreme Court has discussed trial court definition of the reasonable doubt standard: The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course ... so long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt ... the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof. Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994) (citations omitted). Rather, the Constitution requires, taking the instructions as a whole, that there not be a reasonable likelihood that the jury understood the instructions to allow conviction based on evidence falling below the reasonable doubt standard. Id. Characterizing reasonable doubt as “substantial doubt” or “not a mere possible doubt” does not violate due process. Id. In this case, the court described “reasonable doubt” in several ways, including “not a mere possible doubt,” which was specifically upheld in Victor. Petitioner has not articulated how “firmly convinced”, taken together with the court’s various descriptions of reasonable doubt, created a reasonable likelihood that the jury understood the instructions as establishing a clear and convincing evidence standard for determining whether aggravating factors outweigh mitigating factors. The jury instructions actually provided, both at the beginning and the end of the particular instruction at issue, that “the State has the burden of proving by proof beyond a reasonable doubt that the aggravating circumstances which the defendant was found guilty of committing is sufficient to outweigh the factors in mitigation.” (J.A. at 2503-04.) We find, both under Victor and its own language, that the penalty phase instruction did not violate due process. IV. Prosecutorial Misconduct A. Brady Petitioner alleges prosecutorial misconduct in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.Ct. 1194. Petitioner argues that the State of Ohio failed to disclose exculpatory information possessed by the F.B.I. and the Cincinnati police. Specifically, Petitioner argues that the F.B.I. was in possession of detailed and material background information on Petitioner. Petitioner’s habeas application alleged ten categories of evidence that the State of Ohio had failed to disclose, including exculpatory background profiles and reports concerning Petitioner and members of Petitioner’s family. Petitioner also alleged that the State of Ohio’s failure to disclose such information to Petitioner’s trial counsel directly and adversely affected trial counsel’s ability to adequately present evidence on Petitioner’s behalf at both the guilt and penalty phases of the trial. Brady assures the production of exculpatory evidence material to either the guilt or penalty phases of a trial. In United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the Supreme Court clarified the Brady materiality standard: “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” The Brady rule does not assist a defendant who is aware of essential facts that would allow him to take advantage of the exculpatory evidence at issue. See United States v. Todd, 920 F.2d 399, 405 (6th Cir.1990)(citing United States v. Wilson, 901 F.2d 378 (4th Cir.1990)); United States v. Hicks, 848 F.2d 1, 4 (1st Cir.1988); United States v. Grossman, 843 F.2d 78, 85 (2d Cir.1988). The district court found that Petitioner had not shown that any of the withheld information might have assisted in his defense and concluded that Petitioner had not established that the withheld evidence would have made a difference in the outcome of the trial. We agree with the district court that no Brady violation occurred in this case, but on different grounds. We agree that the State of Ohio is not ultimately responsible for the failure of Petitioner’s counsel to present, at the penalty phase of the trial, any mitigating evidence in connection with Petitioner’s personal background. Therefore, under Todd, we find no Brady violation. However, as detailed in the discussion of ineffective assistance of trial counsel in part VII below, we find that it is reasonably probable that presenting mitigating evidence on Petitioner’s background to the jury at the penalty phase of the trial would have produced an outcome different from the death sentence. We therefore depart from the district court’s finding on the materiality of the background evidence at issue. Material evidence on Petitioner’s background would have been discoverable with minimal investigation by Petitioner’s counsel. Such information was available from varied sources beyond control of the F.B.I., including, as detailed in part VII below, school, hospital and prison records, mental evaluations, family members and acquaintances, as well as Petitioner himself. While the F.B.I. background reports and profiles would likely have provided helpful detail, the essence of Petitioner’s mitigating circumstances, that his life experience had largely been characterized by violence and abuse, was independently available to Petitioner and, importantly, Petitioner’s counsel. Thus, under Todd, the district court did not err in failing to find a Brady violation in this case, although we do not agree with the district court on the materiality of evidence relating to Petitioner’s background, which, had it been presented to the jury, would likely have affected the outcome of the penalty phase of the trial, as indicated by part VII below. B. Prosecutor Testimony Petitioner next argues prosecutorial misconduct on grounds that the Hamilton County prosecutor from the Walters case testified in the Storey case. The prosecutor was not on the prosecution team for the Storey case. The prosecutor testified in order to identify Petitioner’s handwriting. Habeas relief based on prosecutorial misconduct requires that the misconduct be so egregious as to deny petitioner due process. See Donnelly v. DeChristoforo, 416 U.S. 637, 643-45, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Although “federal courts have almost universally frowned upon the practice of a Government prosecutor testifying at the trial of the case he is prosecuting, whether for or against the defendant, and have stated that the practice should be permitted only in extraordinary circumstances or for compelling reasons”, a prosecutor may nevertheless testify so long as they otherwise withdraw from the trial. United States v. Birdman, 602 F.2d 547, 553 (3d Cir.1979). The testifying prosecutor in this case, however, had no other role in the case. Further, the scope of his testimony was narrow and probative, identifying Defendant’s handwriting in several motions from the Walters case, which was then compared to the handwriting on the wall directly where the victim’s body was found in the Storey case. Under Birdman, even if the prosecutor had been assigned to this case, the prosecutor may have subsequently been able to testify upon withdrawing from the trial. Because the testifying prosecutor in this case had no other role in the trial, and testified on the narrow and important issue of identifying handwriting samples, we find that the testimony did not violate due process. C. Other Acts Evidence Defendant argues that the admission of prior bad acts evidence violated due process because the evidence was inflammatory and dissimilar to the Storey case. Although Petitioner characterizes this claim as prosecutorial misconduct, he is actually challenging a state court evidentiary decision. Federal habeas courts review state court evidentiary decisions only for consistency with due process. Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). State court evidentiary rulings do not rise to the level of due process violations unless they “offend ... some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Id. (citations omitted). Although Petitioner argues that the admitted other acts evidence was dissimilar to the Storey case, both the district and state courts explained its relevance. The Ohio Supreme Court stated as follows: The purpose of presenting [the other acts] evidence was twofold. First, the state’s burden of proof on the first death-penalty specification was to show a “course of conduct” on the part of the defendant involving the killing or attempted killing of two or more persons. Second, the evidence was introduced pursuant to [Ohio Revised Code § ] 2945.59 to prove identity by showing that the appellant had used a similar “scheme, plan, or system” in committing other acts. State v. Coleman, 544 N.E.2d at 625. The other acts evidence supported both the course of conduct and similar scheme elements by illustrating, as the Ohio Supreme Court noted, “a unique, identifiable plan of criminal activity.” Id. at 626. The characteristics of this plan included targeting African American pre-teen and teenage girls, theft of automobiles, murder by ligature strangulation, and discarding of corpses in abandoned buildings. Most significant, a bracelet missing from the home of a prior victim was found under the victim’s body in this case. Further, the prejudicial potential of such evidence was lessened by the trial court’s specific instruction to the jury that finding Petitioner guilty of aggravated murder in this case required finding beyond a reasonable doubt that Petitioner had the specific intent to murder Storey. Given the relevance of the other acts evidence to both the death penalty specification’s course of conduct requirement and establishing a common scheme under Ohio Revised Code § 2945.59, as well as the clear jury instruction on the need to find specific intent as to the Storey murder to find aggravated murder in this case, we find that admission of the other acts evidence did not violate due process. D. Guilt and Penalty Phase Arguments Petitioner argues that improper closing arguments by the prosecutor at both the guilt and penalty phases of the trial violated due process. Because Petitioner had not presented these arguments on direct appeal, the district court found them to be procedurally barred. “It is well settled that a prisoner seeking habeas relief in federal court must have presented the claim upon which he seeks relief to the state appellate courts.” Gonzales v. Elo, 233 F.3d 348, 352 (6th Cir.2000). “A habeas petitioner can only overcome procedural default in two instances. First, he can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional error ... Alternatively, a defendant can show that failure to consider the claim will result in a fundamental miscarriage of justice.” Gall v. Parker, 231 F.3d 265, 316 (6th Cir.2000) (citations omitted). Petitioner in this case has neither attempted to demonstrate cause for failing to raise his closing arguments claims before the Ohio state courts nor show a resulting fundamental miscarriage of justice. Accordingly, this Court may not review his prosecutorial misconduct claims in connection with closing arguments at the guilt and penalty phases of the trial. V. Ohio Death Penalty Scheme Petitioner asserts, on several grounds, that the Ohio capital punishment scheme violates the Fifth, Sixth, Eighth and Fourteenth Amendments, as well as Article VI of the Constitution and customary international law, both on its face and as applied to him. First, Petitioner highlights the disproportionate imposition of the death penalty on African-Americans in the State of Ohio as indicating an abuse of discretion by prosecutors in seeking the death penalty, as well as an arbitrary application of the death penalty in violation of the Eighth Amendment under Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Specifically, Petitioner notes the striking racial discrepancy between African American representation in the Ohio population generally (9%), and such representation on Ohio’s death row (49%). However, any statistically-based argument, like Petitioner’s, concerning racial disparities in the application of the death penalty, must confront McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). The Supreme Court in McCleskey established a demanding evi-dentiary standard for finding prosecutorial abuse of discretion in seeking the death penalty: “[b]ecause discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused.” Id. at 297, 107 S.Ct. 1756. The proof not meeting this standard in McCles-key was a statistical study on the imposition of the death sentence in Georgia that found, among other racial disparities, that “prosecutors seek the death penalty for 70% of black defendants with white victims, but for only ... 19% of white defendants with black victims.” Id. at 327, 107 S.Ct. 1756 (Brennan, J., dissenting) (citation omitted). As noted by four dissenting Justices in McCleskey, such racial disparities in the capital sentencing system cast doubt on whether capital sentencing determinations have been, in practice, particularized as required by the Eighth Amendment: “[cjonsidering the race of a defendant or victim in deciding if the death penalty should be imposed is completely at odds with [the] concern that an individual be evaluated as a unique human being.” McCleskey, 481 U.S. at 336, 107 S.Ct. 1756 (Brennan, J., dissenting). Subsequent Supreme Court decisions “have reaffirmed that the Eighth Amendment mandates an individualized assessment of the appropriateness of the death penalty.” Penry v. Lynaugh, 492 U.S. 302, 317, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Nevertheless, McCleskey remains controlling law on the ability of statistically-based arguments concerning racial disparity to establish an unconstitutional application of the death penalty. Although the racial imbalance in the State of Ohio’s capital sentencing system is glaringly extreme, it is no more so than the statistical disparities considered and rejected by the Supreme Court in McCleskey as insufficient to “demonstrate a constitutionally significant risk of racial bias affecting the ... capital sentencing process.” McCleskey, 481 U.S. at 313, 107 S.Ct. 1756. And though the racial imbalance is, to say the least, extremely troubling, we find that the prosecutorial discretion under the Ohio death penalty scheme, and the disconcerting racial imbalances accompanying such discretion, nevertheless fall, under current Supreme Court law, within the “constitutionally permissible range of discretion in imposing the death penalty.” Id. at 305, 107 S.Ct. 1756. Second, Petitioner argues that Ohio’s scheme, as a mandatory death penalty statute, shields death penalty decisions from judicial review in violation of Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). Ohio Revised Code § 2929.03(D) provides that at the sentencing stage of a trial, a jury’s finding that aggravating factors outweigh mitigating factors beyond a reasonable doubt must then result in recommending the death sentence to the court. Unlike Woodson, the Ohio scheme does not mandate the death penalty for any particular crime, and under § 2929.03(D), the death penalty decision making process is not shielded from judicial review. Further, in Boyde v. California, 494 U.S. 370, 374, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), the Supreme Court upheld a nearly identical jury instruction, where a finding that aggravating circumstances outweighed mitigating circumstances mandated recommendation of the death sentence. We find that the Ohio scheme is consistent with Woodson and Boyde. Third, Petitioner argues that because the Ohio scheme does not require proof of a conscious desire to kill or premeditation and deliberation for imposing the death penalty, such imposition may thus be arbitrary in violation of Furman. While the Ohio crime of aggravated murder under § 2903.01(B) includes felony murder, which does not require prior calculation and design, imposing the death penalty for felony murder is consistent with the Eighth Amendment under Tison v. Arizona, 481 U.S. 137, 158, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), where the Supreme Court found that “major participation in the felony.committed, combined with reckless indifference to human life, is sufficient to satisfy the ... culpability requirement” for imposition of the death penalty. We find that Ohio Revised Code § 2903.01(B) is consistent with Tison. Fourth, Petitioner argues that no method of review exists under Ohio Revised Code § 2929.03 to ensure a proper weighing and consideration of mitigating factors against aggravating factors. For states imposing the death penalty, the Constitution requires that the state define the crimes for which death may be the sentence in a way that avoids standardless sentencing discretion by using “clear and objective standards” that provide “specific and detailed guidance.” Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (citations and internal quotation marks omitted). As the district court discussed in detail, the Ohio scheme provides such guidance. First, § 2929