Full opinion text
BOGGS, J., delivered the opinion of the court, in which SILER, J., joined. DAUGHTREY, J. (p. 376), delivered a separate opinion concurring in the judgment. OPINION BOGGS, Circuit Judge. Petitioner-appellant Robert A. Buell appeals the judgment of the district court denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, we affirm. I Buell’s habeas petition relates to his 1984 conviction and death sentence for the sexual assault and murder of eleven-year-old Krista Lee Harrison. On Saturday, July 17, 1982, Krista and a schoolmate were collecting aluminum cans in a ballpark across the street from Krista’s home, in Marshallville, Ohio. Krista was kidnapped from the park that day. Six days later, Krista was found dead in a remote area of Holmes County, Ohio. An autopsy revealed that she had been sexually assaulted by the thrusting of a rigid object against the inlet of her vagina and then strangled to death. The remainder of the factual findings of the Ohio Supreme Court related to this case can be found in State v. Buell, 22 Ohio St.3d 124, 489 N.E.2d 795, 798-99 (1986). II Buell was indicted on November 15, 1983. He received a jury trial. On April 4, 1984, the jury found Buell guilty of aggravated murder and the specification charging Buell as the principal offender who committed the murder of Krista Lee Harrison while kidnapping or fleeing immediately after kidnapping her. The trial court agreed with the jury’s recommendation that a death sentence be imposed and on April 11, 1984, the trial court sentenced Buell to death. Buell subsequently appealed to the Ohio Court of Appeals and the Ohio Supreme Court. Both appeals were denied. On October 19, 1987, Buell filed a post-conviction petition in the Ohio trial court, which was denied.- The petition was appealed to the Ohio Court of Appeals and the Ohio Supreme Court, both of which denied the petition. On September 16, 1992, Buell filed a habeas petition in federal district court. The district court granted a stay of execution to allow the Ohio Court of Appeals to consider Buell’s Application for Delayed Reconsideration relating to Buell’s claim of ineffective assistance of appellate counsel. This claim was denied by the Court of Appeals and the Ohio Supreme Court. On April 1, 1996, Buell filed a second habeas petition in federal district court, raising thirty-three grounds for relief. The petition was denied on July 22, 1999. Ill A This court reviews the district court’s judgment de novo. See Rickman v. Bell, 131 F.3d 1150, 1153 (6th Cir.1997); Lundy v. Campbell, 888 F.2d 467, 469 (6th Cir.1989). The district court’s factual findings are reviewed for clear error. See Rickman, 131 F.3d at 1153; McCall v. Dutton, 863 F.2d 454, 459 (6th Cir.1988). State court determinations of fact are entitled to a presumption of correctness unless the petitioner can demonstrate by convincing evidence that the facts are erroneous on one of the eight bases listed. in 28 U.S.C. § 2254(d). See McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir.1996). The recent amendments to the habeas statutes enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) do not apply to this case because Buell filed his petition for a writ of habeas corpus before the effective date of AED-PA. See Lindh v. Murphy, 521 U.S. 320, 326-27, 337, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Therefore, Buell, “is entitled to have the federal habeas court make its own independent determination of his federal claim, without being bound by the determination on the merits of that claim reached in the state proceedings.” Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Buell may not, however, raise “contentions of federal law which are not resolved on the merits in the state proceedings due to petitioner’s failure to raise them there as required by state procedure.” Ibid. B Buell raises ten claims on appeal: (1) the district judge reviewing Buell’s second habeas petition erred in not recusing himself from the case; (2) the district court erred in ruling that certain of Buell’s claims were procedurally defaulted; (3) Buell’s constitutional right to due process was violated by the trial court’s penalty-phase jury instructions; (4) Buell’s consti- ■ tutional rights were denied by the trial court’s refusal to permit a psychologist’s testimony relating to the credibility of certain witnesses’ identification testimony; (5) Buell was deprived of the effective assistance of trial and appellate counsel; (6) Buell was deprived of his right to confront the witnesses against him by the prosecution’s withholding of exculpatory evidence; (7) Buell was deprived of his right to be present at all critical stages of his trial; (8) Buell was denied his constitutional right to a fair trial as a result of prosecutorial misconduct; (9) Buell was denied his constitutional right to due process as a result of errors in the trial court’s guilt-phase jury instructions; and (10) the Ohio death penalty statute is unconstitutional and violates international law. We will address . each of these issues in turn. 1. Refusal of District Judge to Re-cuse Himself Buell argues that the district court judge reviewing his habeas petition, Judge Paul R. Matia, erred in not recusing himself after Buell filed a motion to disqualify pursuant to 28 U.S.C. § 455(a). In his motion, Buell asserted that Judge Matia had a duty to recuse himself because (1) as a member of the Ohio State Senate in 1981, he had sponsored the bill restoring Ohio’s death penalty and (2) he had expressed support for the death penalty while campaigning for Lieutenant Governor of Ohio in 1982. This claim has not been defaulted and has been properly preserved for appellate review. This court reviews a district court’s refusal to grant a motion for recusal for abuse of discretion. See Easley v. Univ. of Mich. Bd. of Regents, 906 F.2d 1143, 1146 (6th Cir.1990). This court has stated that a district judge must recuse himself where “a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned.” United States v. Nelson, 922 F.2d 311, 319 (6th Cir.1990). Buell provides no caselaw to support his proposition that Judge Matia should have disqualified himself for having sponsored the legislation restoring the death penalty to Ohio or for his statements while campaigning for Lieutenant Governor of Ohio. There is no allegation claiming, nor evidence in the record indicating, that Judge Matia made any statements relating in any way to Buell or Buell’s prosecution. Indeed, the activities upon which Buell’s motion is predicated all occurred prior to Buell’s indictment and conviction. It is well established that a judge’s expressed intention to uphold the law, or to impose severe punishment within the limits of. the law upon those found guilty of a particular offense, will not ordinarily satisfy the requirements of disqualification under Section 455(a). See United States v. Gigax, 605 F.2d 507, 514 (10th Cir.1979); United States v. Haldeman, 559 F.2d 31, 134 n. 302 (D.C.Cir.1976) (citing Knapp v. Kinsey, 232 F.2d 458, 466 (6th Cir.1956)). Judge Mafia’s actions and statements regarding the death penalty are not enough to demonstrate that he should have recused himself. More generally, this court has indicated that a judge is not automatically disqualified from a case on the basis of having sponsored or voted upon a law in the state legislature that he is later called upon to review as a judge. See Leaman v. Ohio Dept. of Mental Retardation, 825 F.2d 946, 949-50 & n. 1 (6th Cir.1987). This court has stated that sponsorship of a law is similar to the expression of an opinion on a legal issue, which does not create the appearance of impropriety. See id. at 949 n. 1. Furthermore, in ruling on an ineffective assistance of counsel claim predicated on the assertion that a capital defendant’s lawyer should have told him that his state court sentencing judge had previously voted for a statute permitting the death penalty while a South Carolina state senator, the Fourth Circuit stated that, “[o]ne who has voted as a legislator in favor of a statute permitting the death penalty in a proper case cannot thereafter be presumed disqualified to hear capital cases as a judge or predisposed to give a death sentence in any particular case.” Shaw v. Martin, 733 F.2d 304, 316 (4th Cir.1984). Other courts have explicitly held that judges are not disqualified from hearing cases involving legislation they had voted upon or drafted before serving on the bench. See Newburyport Redevelopment Auth. v. Commonwealth, 9 Mass.App.Ct. 206, 401 N.E.2d 118, 144 (1980) (rejecting contention that judge should have recused himself since he was a member of Massachusetts legislature when bill that was subject of litigation was enacted); Williams v. Mayor & Council of the City of Athens, 122 Ga.App. 465, 177 S.E.2d 581, 581 (1970) (trial judge not required to recuse himself where, while previously serving as city attorney, he drafted ordinance banning possession and operation of a pinball machine in city limits and defendant appearing before him was charged with violation of that ordinance); In the Matter of Thomas W. Sullivan, 283 Ala. 514, 219 So.2d 346, 353 (1969) (“A judge is not disqualified to try a case because he had been a member of the legislature enacting a statute involved in litigation before him.”). These cases were noted in Lea-man to support the proposition that it is permissible for a judge to hear cases involving laws passed while the judge served as a legislator. The Leaman court noted that this was the practice of the late United States Supreme Court Chief Justice Fred Vinson and the late Supreme Court Justices Harold Burton and Hugo Black, who “routinely sat on cases involving legislation passed while they were members of Congress.” 825 F.2d at 949. The Leaman court also indicated that only one published case, Limeco, Inc. v. Division of Lime, 571 F.Supp. 710 (N.D.Miss.1983), has taken a contrary position. In Limeco, a senior district judge recused himself from a cáse involving the State of Mississippi’s Division of Lime on the basis that forty-one years prior, while a member of the state legislature, he voted against legislation allowing the state to establish state-run lime-crushing facilities. The judge admitted he had forgotten his vote, stating “the passage of [time] is of such magnitude as to obliterate any recall of a single act which apparently occurred in the pell mell rush of the beginning of a session of the Mississippi Legislature.” Id. at 711. Yet, the judge still recused himself, stating that his vote in the legislature might create a situation in which his impartiality might reasonably be questioned. Ibid. We decline to hold that Limeco correctly states a rule of mandatory recusal and believe the weight of authority to the contrary to be far more persuasive. We hold that a judge who, as a legislator, sponsored or voted for legislation implementing or favoring the death penalty cannot be presumed to be disqualified from reviewing capital cases as a judge. Establishing a rule that a judge must recuse himself in cases involving legislation that had been enacted when a judge served as a legislator would force recusal in an inordinate amount of cases. In addition, it might prevent individuals who are or were legislators from serving as members of the judiciary and from bringing their unique perspectives to the bench. See United States v. Alabama, 828 F.2d 1532, 1543 (11th Cir.1987) (“It appears to be an inescapable part of our system of government that judges are drawn primarily from lawyers who have participated in public and political affairs.”); Home Placement Serv., Inc. v. Providence Journal Co., 739 F.2d 671, 675 (1st Cir.1984) (“It is common knowledge, or at least public knowledge, that the first step to the federal bench for most judges is either a history of active partisan politics or strong political connections.”). Moreover, such a rule does not comport with 28 U.S.C. § 455(a), which states that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” This rule requires a fact-specific analysis of the judge’s prior activity, legislative or otherwise, to determine if disqualification is required. In this case, Judge Mafia’s sponsorship of legislation reinstating the death penalty in Ohio and opinions in favor of the death penalty while campaigning for public office are not sufficient to demonstrate that his “impartiality might reasonably be questioned” in a particular case, any more than support for civil rights laws as a legislator would disqualify a judge from hearing all discrimination cases. We realize that in some cases a judge’s legislative activities may be intimately connected with the facts of a particular case and may therefore require recusal. See, e.g., United States v. Alabama, 828 F.2d at 1543-44 (holding that district judge must be disqualified not because of his “views expressed ... as a political figure and member of the Alabama State Senate” but because “[djuring his tenure in the state legislature, the trial judge actively participated in the very events and shaped the very facts that are at issue in this suit.”). However, there is no allegation in this case that Judge Mafia’s legislative or political activities were specifically connected to Buell’s prosecution. Indeed, the activities occurred before Buell’s prosecution. Moreover, Judge Mafia’s review of the legislation he sponsored was limited to Buell’s contention that Ohio’s death penalty statute is unconstitutional — one of thirty-three grounds for relief Buell presented to the district court. Buell does not provide legal support for the proposition that Judge Mafia was required to recuse himself. Much of Buell’s argument is based on what judges should do. This court’s analysis, however, is based on what judges must do. Judge Matia was not required to recuse himself and did not abuse his discretion in choosing not to do so. 2. Procedural Default Buell contends that the district court erred in determining that certain of Buell’s claims were procedurally defaulted. The parties agree and we concur that Buell’s first and fourth claims have been fully preserved. The State argues that all or portions of the remaining seven claims have been procedurally defaulted. Specifically, the State asserts that all or portions of Buell’s third claim (portion relating to penalty-phase jury instructions and non-unanimous sentencing verdict), sixth claim (portion relating to Roy Wilson’s mental state), seventh claim (right to be present at portions of trial), eighth claim (prosecutorial misconduct), ninth claim (guilt-phase jury instructions), and tenth claim (international law and electrocution portions of death penalty challenge) were not presented on direct appeal. In addition, the State argues that portions of Buell’s fifth claim relating to ineffective assistance of appellate counsel were defaulted pursuant to Ohio R.App. P. 26. The Supreme Court has stated that “[i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas corpus review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 749, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 (6th Cir.2000). This court applies a four-part test to determine if a claim is procedurally defaulted: (1) 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; (2) the court must determine whether the state courts actually enforced the state procedural sanction; (3) it must be decided whether the state procedural forfeiture is an adequate and independent state ground upon which the state can rely to foreclose review of a federal constitutional claim; and (4) if the court has determined that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner is required to demonstrate that there was cause for him not to follow the procedural rule and that he was actually prejudiced by the alleged constitutional error. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). The State presents convincing arguments as to Buell’s procedural defaults, which Buell cannot overcome. Ohio courts have set forth a default rule barring consideration of claims that should have been raised on direct appeal. See Cole, 443 N.E.2d at 171; State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104, 108 (1967). Ohio courts have consistently held that claims that can be adjudicated based on facts in the record can only be presented on direct appeal. See, e.g., State v. Lentz, 70 Ohio St.3d 527, 639 N.E.2d 784, 785 (1994). This court has held that this rule is regularly and consistently applied by Ohio courts as required by the four-part Maupin test. See Byrd, 209 F.3d at 521-22. Buell contends that the Ohio state courts did not invoke any applicable procedural rule. Yet the Ohio courts could not invoke a procedural rule against claims that were not brought before it. Buell asserted four claims on direct appeal and in his post-conviction petition, while his habeas petition contained thirty-three claims and hundreds of subclaims. This court has previously stated that a petitioner’s failure to raise his claims in Ohio courts is an adequate and independent state law ground for upholding the petitioner’s conviction and sentence. See Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir.1999). Recently, we stated that a petitioner “cannot obtain federal habeas relief under 28 U.S.C. § 2254 unless he has completely exhausted his available state court remedies to the state’s highest court.” Coleman v. Mitchell, 244 F.3d 533, 538 (6th Cir.2001). Furthermore, we noted that “a petitioner cannot circumvent the exhaustion requirement by failing to comply with state procedural rules.” Ibid. This is precisely what Buell has done. We conclude that portions of Buell’s third, sixth, and tenth claims and his entire seventh, eighth, and ninth claims were procedurally defaulted because they were not presented to the Ohio courts on direct appeal. Buell attempts to use the ineffective assistance of appellate counsel claims that he brought to the Ohio courts as cause to excuse his procedurally defaulted claims. In Edwards v. Carpenter, the Supreme Court held that “an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted.” 529 U.S. 446, 453, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). The Court pointed out that it may be possible for a procedurally defaulted ineffective assistance of appellate counsel claim to “be excused if the prisoner can satisfy the cause-and-prejudice standard with respect to that claim.” Ibid. The State asserts that Buell defaulted his ineffective assistance of appellate counsel claims by failure to comply with Ohio R.App. P. 26. In February 1992, while Buell’s initial habeas petition was pending in federal district court, the Ohio Supreme Court decided State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992). Murnahan held that claims of ineffective assistance of appellate counsel should be raised in a motion for reconsideration before the Ohio Court of Appeals and not in a petition for post-conviction relief. Id. at 1208. The court stated that if “the time periods for reconsideration in courts of appeals and direct appeal to [the Ohio Supreme Court] have expired, [a defendant] must ... apply for delayed reconsideration in the court of appeals where the alleged error took place pursuant to App. R. 26 and 14(B).” Id. at 1209. On September 17, 1992, Buell filed a motion for delayed reconsideration of his direct appeal, raising seventy-one reasons why he had been denied the effective assistance of counsel in his 1985 direct appeal. At the time Mur-nahan was decided and Buell filed his motion for delayed reconsideration, Ohio R.App. P. 26 stated that a party must file its motion for reconsideration “before the judgment or order of the court has been approved by the court and filed by the court with the clerk for journalization or within ten days after the announcement of the court’s decision, whichever is the later.” This period had long passed since the judgment in Buell’s direct appeal was filed on April 1, 1985. However, at the time Buell filed his motion for delayed reconsideration, Ohio R.App. P. 14(B) provided that “The court for good cause shown may upon motion enlarge or reduce the time prescribed by these rules.” The Ohio Court of Appeals denied Buell’s motion on September 21, 1992, stating solely: “Motion by appellant for delayed reconsideration denied per State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204.” The Ohio Supreme Court affirmed on November 17, 1993, stating in pertinent part: “This cause, here on appeal from the Court of Appeals for Cuya-hoga County, was considered in the manner prescribed by law. On consideration thereof, the judgment of the court of appeals is affirmed.” Given the procedural facts of this case we are reluctant to conclude that Buell’s motion for delayed reconsideration was based on an adequate and independent state ground and that, therefore, his ineffective assistance of appellate counsel claims were procedurally defaulted. Both the Ohio Court of Appeals and Ohio Supreme Court decisions denying Buell’s motion for delayed reconsideration offered little explanation for why Buell’s delayed motion was denied. We recognize that the requirement that a state court “clearly and expressly” state that its judgment was based on a state procedural rule applies only when a state court judgment rests primarily on federal law or is interwoven with federal law. See Simpson v. Jones, 238 F.3d at 407, 408; Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir.1996). Therefore, “[w]hen it does not fairly appear that the state court rested its decision on federal grounds or its decision was interwoven with federal law, the presumption that the decision does not rest on independent and adequate state grounds does not apply.” Simpson v. Sparkman, 94 F.3d at 202 (citing Coleman v. Thompson, 501 U.S. at 739, 111 S.Ct. 2546). While the brief opinions of the Ohio courts may have been sufficient to erect a procedural bar in this case, we must conclude that the rule that was applied to bar Buell’s claims was not “firmly established and regularly followed” at the time of the relevant decisions in this case. See Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988); accord Rogers v. Howes, 144 F.3d 990, 993-94 (6th Cir.1998). In Coleman v. Mitchell, this court recently concluded that the denial of a prisoner’s motion for delayed reconsideration by the Ohio courts constituted a procedural default. 244 F.3d at 540. The circumstances in Coleman differed from this case in several critical respects. The differences illustrate the reasons why, given the unique facts of this case, the procedural bar was not firmly established and regularly followed. First, in Coleman, our court specifically noted that Coleman waited sixteen months after Mumahan was decided before filing his motion for reconsideration. 244 F.3d at 540. Buell, on the other hand, waited seven months. Second, the Coleman court concluded that the rule adopted by the Ohio Supreme Court in Mumahan was well established in Ohio’s First Appellate District — where Coleman filed his motion for delayed reconsideration — long before Mumahan was decided and before Coleman’s case ever arose. Coleman v. Mitchell, 244 F.3d at 540 (citing State v. Rone, Nos. 784088, 820322, 1983 WL 8877 (Ohio Ct.App. June 1, 1983)). In Buell’s case, the Mumahan rule had been well established in Ohio’s Eighth Appellate District, where Buell filed his motion for delayed reconsideration, at least as early as 1988. See State v. Anderson, No. 55504, 1989 WL 65673 (Ohio Ct.App. June 15, 1989); State v. Mitchell, 53 Ohio App.3d 117, 559 N.E.2d 1370, 1371-72 (1988); see also State v. Morales, Nos. 57868, 57869, 1991 WL 8592, at *4 (Ohio Ct.App. Jan. 31, 1991) (McManamon, J., concurring) (“This court consistently has held that [ineffective assistance of appellate counsel] claims are not cognizable under the post-conviction relief statute.” (citing Anderson and Mitchell)). However, in Morales, the Eighth Appellate District recognized that in some cases a defendant could raise a claim for ineffective assistance of appellate counsel in a petition for post-conviction relief. 1991 WL 8592, at *3. Therefore, when Buell filed his motion for delayed reconsideration in September 1992, it was not firmly established in the Eighth Appellate District that a defendant must file his ineffective assistance of appellate counsel claims in a motion for reconsideration, given the conflicting opinions in Mitchell in 1988, in Morales in 1991, and in Murnahan in 1992. Third, the fact that the rule was firmly established and regularly followed in the First Appellate District was reinforced when, in dismissing Coleman’s motion for delayed reconsideration, the Ohio Court of Appeals specifically noted that it was filed ninety days after Coleman’s appellate judgment and that Coleman had not shown good cause for the delay, as required by Ohio R.App. P. 26(B). In Buell’s case, however, the Eighth Appellate District simply stated that Buell’s motion for delayed reconsideration was “denied per State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204.” Given the confusion regarding the proper mechanism for raising motions for delayed reconsideration that existed in the Eighth Appellate District prior to Mumahan, this explanation, unlike that given by the First Appellate District to Coleman, is not sufficient to demonstrate that the Mumahan rule was firmly established and regularly followed in Ohio’s Eighth Appellate District at the time it reviewed Buell’s motion for delayed reconsideration in September 1992. As a result, we are unable to conclude that the Mumahan rule was an adequate and independent state ground to foreclose review of Buell’s ineffective assistance of appellate counsel claims. Although Buell’s claims for ineffective assistance of appellate counsel were not defaulted, Buell’s task is not done. Buell’s ineffective assistance of appellate counsel claims can serve as cause for the procedural default of his other claims only if Buell can demonstrate that his appellate counsel was constitutionally ineffective. See Edwards, 529 U.S. at 451, 120 S.Ct. 1587. To do so, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Buell’s appellate counsel was not deficient for failing to raise on direct appeal nonfrivoulous claims after deciding as a matter of professional judgment not to raise those points. Coleman v. Mitchell, 244 F.3d at 541. Even if Buell’s counsel was deficient for not having raised the defaulted claims on appeal, we have reviewed the substance of each of these claims and have determined that each of them lacks merit. Therefore, Buell is unable to demonstrate that, even if his appellate counsel was deficient, his counsel’s deficient performance prejudiced his defense. Since Buell cannot prevail on his ineffective assistance of appellate counsel claims, these claims cannot serve as cause for purposes of curing his other procedurally defaulted claims. 3. Penalty-Phase Jury Instructions Buell challenges the district court’s determination that his constitutional rights were not violated by the trial court’s penalty-phase jury instructions. Although Buell presents three challenges to the penalty-phase jury instructions, only Buell’s Caldwell claim, the first of his three challenges, was fairly presented to and considered by the Ohio appellate courts. As a result, Buell has procedurally defaulted his two additional claims. Each of Buell’s claims will be analyzed, however. None have merit. a. Instructions at Outset of Penalty Phase Buell’s first challenge is to the trial court instructions to the jury at the outset of the penalty-phase of Buell’s trial. Specifically, Buell takes issue with the following instructions: the jury will be asked to make a recommendation to the court as to the sentence to be imposed on the defendant on the charge of Aggravated Murder and [the defense has] the burden of going forward to present evidence concerning mitigating factors. Buell claims that the first instruction stating that the jury verdict was a “recommendation” improperly diminished the jury’s sense of responsibility for returning a death verdict. See Caldwell v. Mississippi 472 U.S. 320, 328-29, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Buell asserts that this portion of the instruction is misleading as to Ohio law. In addition, Buell states that while the defendant has the burden of going forward, pursuant to Ohio Rev.Code § 2929.03(D)(1), the state bears the burden of proof that the aggravating circumstances outweigh the mitigating factors in a capital murder trial, pursuant to Ohio Rev.Code § 2929.03(D)(2). Therefore, Buell claims that instructing the jury that the defendant had the burden of “going forward” without mentioning the state’s burden of proof was misleading. This claim is unavailing. It is an accurate statement of Ohio law for a trial judge to instruct a jury that their finding that a death sentence is warranted is a recommendation. It is specifically stated in Ohio Rev.Code § 2929.03(D)(2) that if the jury unanimously finds that aggravating circumstances outweigh mitigating factors “the trial jury shall recommend to the court that the sentence of death be imposed on the offender.” The trial court has the discretion to accept or reject this recommendation since it must make the final determination of whether a death sentence is appropriate, according to Ohio Rev.Code § 2929.03(D)(3). Furthermore, the defense has the burden of presenting evidence concerning mitigating factors, as the trial court stated to the jury. Neither of the two contested instructions was contrary to Ohio law. In Caldwell, the Court held that, “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” 472 U.S. at 328-29, 105 S.Ct. 2633. The prosecutor in Caldwell told the jury that if it imposed a death sentence on the defendant, its decision would be subject to appellate review, giving the jury the mistaken impression that the state appellate courts — not the jury itself — would make the final decision on the sentence to be imposed. Id. at 333, 105 S.Ct. 2633. In decisions subsequent to Caldtuell, the Supreme Court has reiterated that “[t]o 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 v. Adams, 489 U.S. 401, 407, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989); see also Scott, 209 F.3d at 877. Unlike in Caldwell, where the jury was given the uncorrected impression that the appellate courts would make the final decision on the imposition of a death sentence, not merely review the appropriateness of the jury’s decision to impose a death sentence, Buell has not demonstrated that the instructions at his trial improperly described the role assigned to the jury by local law. In instructing the jury that they are to make a recommendation as to a death sentence, and that the final decision regarding imposition of a death sentence rests with the trial court, the jury instruction complied with the letter of Ohio law and described with complete accuracy the jury’s role in the sentencing process. By doing so, the jury’s sense of responsibility was not diminished. Therefore, this claim must fail. b. Instructions Prior to Deliberations at Penalty-Phase Buell challenges six portions of the trial court’s instructions to the jury prior to the commencement of deliberations at the penalty phase of trial. First, Buell challenges the trial court’s statement that “[t]he arguments of counsel are not evidence, but merely to assist you in your duty.” Buell claims that this is contrary to Ohio Rev.Code § 2929.03(D)(1), which calls for the jury to consider and hear arguments of counsel. The district court concluded that the instruction set forth the proper legal standard. Nothing in Ohio Rev.Code § 2929.03(D)(1) indicates that the jury instruction was improper. Second, Buell challenges the trial court’s definition of mitigating factors: “These mitigating factors may include, but are not limited to, the nature and circumstances of the offense, the history and background of the defendant, and any other factors which you may find exist from the evidence in mitigation of the sentence.” This instruction is consistent with the Supreme Court’s ruling in Penry v. Lynaugh, 492 U.S. 302, 328, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), in which the Supreme Court held that the jury “must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background and character or the circumstances of the crime.” Third, Buell challenges the trial court’s instruction relating to Buell’s unsworn statement introduced at the penalty phase: “In this case, there has been one witness and that was the unsworn statement of the defendant.” This statement was a fair comment on the evidence. Furthermore, the statement did not restrict the jury from considering the testimony. Indeed, the judge later explicitly stated that the trial jury must consider all the evidence, including the unsworn statement of Buell. Fourth, Buell challenges the trial court’s statements instructing the jury to consider “all of the relevant evidence raised [during the guilt-phase portion of the trial].” Buell claims that this instruction misstates Ohio Rev.Code § 2929.03(D)(1), which states that the jury shall consider “any evidence raised at trial that is relevant to the aggravating circumstances the offender was found guilty of committing or to any factors in mitigation of the imposition of the sentence of death.” While the jury instruction may be a truncation of the Ohio statutory section, Buell cannot demonstrate that it misstates the law or that it prejudiced him. Fifth, Buell challenges the trial court’s instruction that “[i]f all twelve of you find beyond a reasonable doubt that the aggravating circumstances which the defendant was found guilty of committing outweigh the mitigating factors, then you have no choice and must recommend to the court that the sentence of death be imposed upon defendant Robert A. Buell.” Buell contends that this statement, particularly the phrase “you have no choice,” creates a constitutionally impermissible mandatory death penalty. The instruction is in full accord with Ohio Rev.Code 2929.03(D)(2), however. Moreover, the constitutionality of such an instruction was upheld by the Supreme Court in Blystone v. Pennsylvania, 494 U.S. 299, 305, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990). Sixth, Buell contends that statements in the jury instructions that a jury recommendation that the death penalty be imposed is only a recommendation and is not binding on the court had the effect of diminishing the jury’s sense of responsibility. This contention fails for the same reasons that Buell’s Caldwell claim fails. c. Court’s Response to Jury Question During Penalty Phase Deliberations Buell’s final challenge to the penalty-phase jury instructions relates to the trial court’s response to a jury question about a non-unanimous sentencing verdict. During jury deliberations following the penalty phase of Buell’s trial, the jury submitted to the trial court the following question written by one of the jurors: “May I ask the judge if I am undecided on one part and the others are in agreement, will this have any affect [sic] on the recommendation?” Upon receipt of this question, the trial court and counsel for the parties convened in chambers and discussed at length the appropriate response. Buell’s counsel indicated that “what [the juror] wants to know is if ... she disagrees with the rest, what is the effect of an un-unanimous verdict.” Buell’s counsel stated “the law doesn’t tell you what you do in certain circumstances, whether or not it has to be unanimous as it relates to life. It only tells you as it relates to death.” The trial judge asked, “Do you think it’s clear they have to reach a unanimous finding for life imprisonment?” Buell’s counsel responded, “No. Death only. That has to be unanimous; and if they cannot reach a verdict on death, the remaining question is what is the penalty?” In the end, the trial judge decided to instruct the jury that “whichever verdict you reach must be unanimous.” Buell’s counsel objected, stating, “I think the only unanimous verdict has to be for capital punishment; and for that reason I object to that being read. I think what ought to be told is what they asked.” The trial court stated to the jury: “Whichever verdict you reach, whether it’s a recommendation of the death penalty or a recommendation of life imprisonment, the verdict must be unanimous.” Buell argues that the jury’s question presented the same issue resolved by the Ohio Supreme Court in State v. Brooks, 75 Ohio St.3d 148, 661 N.E.2d 1030 (1996) and that, had Buell’s counsel raised the issue on appeal, the Ohio Supreme Court conceivably would have held, as it eventually did in Brooks, that the trial court should have answered the jury question in the following manner: “A solitary juror may prevent a death penalty recommendation by finding that aggravating circumstances in the case do not outweigh the mitigating factors.” Id. at 1042. To warrant habeas relief, “jury instructions must not only have been erroneous, but also, taken as a whole, so infirm that they rendered the entire trial fundamentally unfair. The burden is even greater than that required to demonstrate plain error on appeal.” Scott, 209 F.3d at 882. Buell contends that the trial court erred in light of Brooks and that the court’s error rose to such a level that it rendered his entire trial fundamentally unfair. Buell relies on this court’s decision in Mapes, 171 F.3d at 413, in which this court ruled that, “[although the trial court did not have the benefit of Brooks, that case clearly establishes that the trial court misapplied Ohio Rev.Code § 2929.03(D)(2) by requiring the jury to unanimously reject the death penalty before considering a life sentence.” Mapes, 171 F.3d at 416-17. The Mapes court adopted the reasoning from Brooks, stating that “[i]f a juror believed his one vote could not affect the ultimate result, he might acquiesce in the death sentence. In this case, the jury instruction undermined the reliability of the jury verdict and risked erroneous imposition of the death sentence, thereby materially prejudicing Brooks’s right to a fair trial.” Mapes, 171 F.3d at 416 (quoting Brooks, 661 N.E.2d at 1042). We note, however, that the jury instructions in Brooks and Mapes were not in response to jury questions, but were “acquittal first” instructions contained in general, penalty-phase jury charges. In both cases the jury was instructed that it must “determine unanimously that the death penalty is inappropriate before you can consider a life sentence.” Mapes, 171 F.3d at 416; Brooks, 661 N.E.2d at 1040. Buell argues that the same principles can be applied to this case. We disagree. In Brooks, the Ohio Supreme Court rejected the acquittal-first jury instruction and indicated that a jury need not rule out the death penalty before considering a life sentence. Id. at 1041-42. Consistent with this holding, the court made clear that a lone juror could prevent the imposition of the death penalty. Ibid. To the extent that Buell challenges the instruction given to the jury in this .case, he is focused on the latter proposition rather than the former. Neither in answer to the juror’s question nor in the jury instructions themselves, did the trial court state that the jury must rule out the. death penalty before considering a life sentence. Instead, the court stated that whatever verdict the jury reached must be unanimous. What the trial court stated to the jury was not contrary to Ohio law. There is no specific language in Ohio Rev.Code § 2929.03(D)(2) limiting jury unanimity to only death recommendations. Moreover, the trial court’s instruction was in full accord with Ohio Criminal Rule 31(A), which requires that verdicts shall be unanimous. Ohio courts and this court have made it clear that both death and life sentences must be unanimous under Ohio law and that jury instructions to that effect are not unconstitutional. Scott, 209 F.3d at 876 (“Brooks did not hold that all instructions requiring unanimous recommendations of life or death in previously decided Ohio death-penalty cases were unconstitutional.”); State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264, 307 (1984) (“we conclude in returning a sentence of life imprisonment under R.C. 2929.03(D)(2), the jury’s verdict must be unanimous”). The focus of Buell’s claim is not on what the trial court stated to the jury, but rather, on what the court did not state to the jury. Buell contends that the trial court erred by not instructing the jury that if they could not come to a unanimous verdict they should advise the court of that fact and that the court would then determine the appropriate sentence. Buell bases this claim on the Ohio Supreme Court’s opinion in Brooks, issued twelve years after Buell’s trial, in which the court concluded that jurors must be instructed “from this point forward” that “a solitary juror may prevent a death penalty recommendation by finding that the aggravating circumstances in the case do not outweigh the mitigating factors.” 661 N.E.2d at 1042. Buell’s claim fails for several reasons. First, Buell is unable to demonstrate any basis in Ohio law for the instruction that he believes should have been given to the jury, an instruction that is distinct from that mandated in Brooks. In Brooks, the Ohio Supreme Court reaffirmed that the jury’s determination that a life sentence is appropriate must be unanimous and that a jury should be instructed of that fact. 661 N.E.2d at 1042 (stating that Ohio statutes and past cases could be made consistent “through a jury instruction which requires the jury, when it cannot unanimously agree on a death sentence, to move on in their deliberations to a consideration of which life sentence is appropriate, with that determination to be unanimous ” (emphasis added)). The court addressed only a jury’s inability to come to a unanimous decision as to a recommendation regarding a death sentence, not a jury’s inability to come to a unanimous decision as to a recommendation regarding a life sentence or, in effect, any sentence. Second, to the extent that Ohio law after Brooks, 661 N.E.2d at 1042, now requires an instruction regarding a lone juror’s ability to prevent the imposition of the death penalty, we have held that this requirement “is prospective only.” Scott, 209 F.3d at 876. Third, even if the Brooks requirement were to apply retroactively to Buell’s case, the failure of the trial court to give such an instruction would be an error under state law that does not provide a basis for habeas relief. See Estelle, 502 U.S. at 71-72, 112 S.Ct. 475. This court has held that it “does not necessarily mislead a jury regarding its role to avoid disclosing what will happen if the jury fails to achieve unanimity.” Coe v. Bell, 161 F.3d 320, 339 (6th Cir.1998). Furthermore, in Jones v. United States, 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999), the Supreme Court discussed the consequence of the district court denying a petitioner’s request for a jury instruction on the consequences of a jury deadlock in the context of the Federal Death Penalty Act of 1994, 18 U.S.C. § 3591. The Court held that the Constitution does not require that a jury in every capital case be instructed as to the consequences of a breakdown in the deliberative process. Jones v. United States, 527 U.S. at 382-83, 119 S.Ct. 2090. Furthermore, the Court noted that various Courts of Appeals, including this court in Coe, have rejected a constitutional unanimity requirement or a requirement of a jury instruction as to the consequences of a breakdown in the deliberative process. Id. at 382 n. 6, 119 S.Ct. 2090. 4. Exclusion of Expert Testimony on Eyewitness Identification Buell challenges the district court’s finding that the trial court’s decision to exclude the testimony of Steven Penrod, an expert in eyewitness identification, regarding the credibility of an identification witness did not rise to the level of constitutional error. This claim was not proee-durally defaulted, as it was raised and addressed on direct appeal as Buell’s first assignment of error in both the Ohio Court of Appeals and Ohio Supreme Court. The trial court’s decision to exclude expert testimony is an exercise of judicial discretion. See United States v. Harris, 192 F.3d 580, 588 (6th Cir.1999). Moreover, as Buell himself recognizes, ha-beas review does not ordinarily extend to state court rulings on the admissibility of evidence. See Burgett v. Texas, 389 U.S. 109, 113-14, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); Fuson v. Jago, 773 F.2d 55, 59 (6th Cir.1985); Bell v. Arn, 536 F.2d 123, 125 (6th Cir.1976). Buell claims, however, that this error deprived him of fundamental constitutional guarantees under the Fifth, Sixth, Eighth, and Fourteenth Amendments, such that a federal court must inquire into the state ruling on habeas review. See Fuson, 773 F.2d at 59; Bell, 536 F.2d at 125. The State correctly points out in response that “errors of state law, especially errors based on a trial court’s evidentiary rulings, do not, in and of themselves, violate the constitution.” Neumann v. Jordan, 84 F.3d 985, 988 (7th Cir.1996); see also Lundy, 888 F.2d at 473. Buell asserts that the trial court’s decision to exclude Penrod’s testimony violated Buell’s rights at both the fact-finding and penalty phases of his trial. With regard to the fact-finding phase, Buell states that three witnesses claimed to have seen Buell in a ballpark one week before Harrison’s abduction, two witnesses claimed to have seen him in the park on the day Harrison was kidnapped, and one claimed to have seen him leaving the site where • the body was found. Buell states that two of the three witnesses from the ballpark identified Buell only after seeing him on television and in the newspaper sixteen months after he was supposedly at the ballpark. Buell notes that the two eyewitnesses from the park gave similar descriptions of the kidnapper but could not identify Buell in court. The witness who claimed to have seen Buell leaving the site where the body was found claimed to have seen a man driving a raspberry-colored car. The witness’s observation was limited to five seconds as his pickup truck passed the car. The witness identified Buell after seeing him on television and being shown a picture of a van, Buell, and a car. Penrod intended to testify as to the factors involved in the mental processes of identifications and to render his opinion about the accuracy and credibility of the specific identification testimony of the witnesses. The trial court denied the request, stating: “It’s the Court’s opinion that the jury can make the determination on who to believe and who not to believe, using the test that I will describe to them, using their common sense, and they do not need an expert to help them do that.” On appeal, the Ohio Supreme Court stated that “the expert testimony of an experimental psychologist regarding the credibility of the identification testimony of a particular witness is inadmissible under Evid. R. 702, absent a showing that the witness suffers from a mental or physical impairment which would affect the witness’s ability to observe or recall events.” State v. Buell, 489 N.E.2d at 804 (emphasis added). In addition, the court found that “the evidence of the defendant’s guilt was based primarily on physical evidence rather than identification testimony. In light of the substantial physical evidence, it cannot be said that ‘it is more probable than not that the [exclusion] affected the verdict.’ ” Ibid. (internal citations omitted). We agree with the Ohio Supreme Court and conclude, upon the review of the evidence presented at Buell’s trial, that the exclusion of Penrod’s testimony did not affect Buell’s constitutional rights. As to the penalty phase of the trial, Buell notes that Ohio Rev.Code § 2929.03(D)(1) provides that “[t]he defendant shall be given great latitude in the presentation of evidence of the mitigating factors set forth in division (B) of section 2929.04 of the Revised Code and of any other facts in mitigation of the sentence of death.” Buell states that his defense counsel made a tactical decision not to present mitigating evidence regarding Buell’s past, relying instead on residual doubt. Buell argues that the expert testimony should have been allowed as a form of mitigating evidence relating to residual doubt. Buell provides no legal support for the claim that Penrod’s expert testimony is a type of “fact[ ] in mitigation of the sentence of death” contemplated under Ohio Rev.Code § 2929.03(D)(1). All of the factors set forth in § 2929.04, which § 2929.03(D)(1) cross-references, concern “the nature and circumstances of the offense, [and] the history, character, and background of the offender” and are to be considered as mitigating evidence to determine whether the death penalty should be imposed. Penrod’s testimony relates to eyewitness identification that concerns whether Buell committed the offense for which he was found guilty. The testimony does not concern a mitigating factor that should be considered after a finding of guilt is made. Indeed, this court recently noted that Ohio law does not recognize residual doubt, the basis for which Buell claims that Penrod’s testimony should have been admitted, as an acceptable mitigating factor: Our system requires that the prosecution prove all elements of a crime beyond a reasonable doubt. Therefore, it is illogical to find that the defendant is guilty beyond a reasonable doubt, yet then doubt the certainty of the guilty verdict by recommending mercy in case a mistake has occurred. Residual doubt casts a shadow over the reliability and credibility of our legal system in that it allows the jury to second-guess its verdict of guilt in the separate penalty phase of a murder trial.... Residual doubt is not an acceptable mitigating factor under R.C. 2929.0f(B), since it is irrelevant to the issue of whether the defendant should be sentenced to death. Coleman v. Mitchell, 244 F.3d at 544 (quoting State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112, 1123 (1997)). Buell is unable to demonstrate that the exclusion of Penrod’s testimony at either the guilt phase or the penalty phase of his trial rose to the level of constitutional error. Moreover, this court has recognized that a habeas petitioner does not have a constitutional right to the presentation of expert testimony on the reliability of eyewitness identification. See Moore v. Tate, 882 F.2d 1107, 1110 (6th Cir.1989). The court in Moore noted that the examination and cross-examination of a particular witness at trial afforded the jury an adequate opportunity to assess the reliability of the witness’s identification of the defendant. Id. at 1111. The court concluded that while the expert’s testimony may well have given the jurors another perspective from which to assess [the eyewitness’] testimony, we do not believe that this perspective was constitutionally required. Ibid. Although, as Buell points out, Moore did not involve a bifurcated trial, this fact does not affect its applicability to this case since no constitutional error arose either at the guilt phase or the penalty phase of Buell’s trial by the exclusion of Penrod’s testimony. 5. Ineffective Assistance of Counsel Buell claims that the district court erred in rejecting his claims of ineffective assistance of trial and appellate counsel. Buell chose not to pursue an ineffective assistance of trial counsel claim on direct review. Buell included an ineffective assistance of trial counsel claim in his post-conviction petition. Since Buell was represented by the same counsel at trial and on direct appeal, it was proper for him to raise his ineffective assistance of trial counsel claims initially in his post-conviction petition. See Cole, 443 N.E.2d at 171. Therefore, these claims were not defaulted and are preserved for habeas review. In Strickland, 466 U.S. at 686, 104 S.Ct. 2052, the Supreme Court held that “the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as .having produced a just result.” The defendant must show that counsel’s performance was deficient and that the performance prejudiced the defense. Id. at 687, 104 S.Ct. 2052. With regard to showing prejudice, the Supreme Court later stated that the component, “focuses on the question whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). However, this court has noted that under Strickland, strategic choices by defense counsel are “virtually unchallengeable.” Meeks v. Bergen, 749 F.2d 322, 328 (6th Cir.1984). Buell refers this court to a catalog of specific instances of alleged ineffective assistance of his trial counsel contained in the seventeenth claim in Buell’s habeas petition. Buell states that “significant examples” include counsel’s failure to (1) interview witnesses Wilson, Baker, and Middleton before trial; (2) learn that they had been hypnotized by law enforcement agents; and (3) learn that Wilson had undergone mental treatment. Buell asserts that the prosecution’s failure to disclose this information created a Brady violation (Buell’s sixth claim), but he also argues that his lawyers should have obtained this information themselves. Buell notes that his trial counsel was furnished with the witnesses’ names and addresses in pretrial discovery and knew the witnesses went through extensive pretrial identification procedures with investigators and would be asked to make in-court identifications. Buell asserts that his trial counsel knew that they would have to challenge the in-court identifications and that therefore, their lack of preparation to confront these witnesses was constitutionally deficient. Buell also contends that his counsel’s failure to investigate mitigating evidence constitutes ineffective assistance, since failure to investigate Buell’s background and develop evidence “produced the scanty penalty phase hearing mitigating [evidence].” Buell asserts that his trial counsel’s decisions “cannot be explained away as trial strategy.” He notes that in Strickland, the Court stated that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” 466 U.S. at 691, 104 S.Ct. 2052. This argument is especially faulty, though, because the precise language quoted by Buell indicates that there should be “a heavy measure of deference to counsel’s judgments.” Ibid. The bulk of allegations that form the basis of Buell’s claims of ineffective assistance of trial counsel concern judgments that his counsel made during the course of their representation of Buell at trial. They do not rise to the level of constitutional ineffectiveness. This is highlighted by the inconsistencies in Buell’s own arguments. To support his fourth claim, that the trial court improperly excluded expert testimony regarding eyewitness identification, Buell asserted that “defense counsel made a tactical decision to not present mitigating evidence regarding Buell’s past, relying instead on residual doubt.” Buell now argues this his trial counsel was ineffective by not conducting investigations necessary to present compelling mitigating evidence. Buell cannot have it both ways. As this court has noted, tactical decisions are “virtually unchallengeable.” Meeks, 749 F.2d at 328. Both the trial court and the Ohio Court of Appeals found as a factual matter that Buell’s counsel performed an extensive pre-trial investigation. To the extent that Buell believes his counsel should have undertaken a different strategy in conducting the investigation and determining how best to advocate on Buell’s behalf, these are tactical decisions that cannot form the basis for an ineffective assistance claim. The great bulk of Buell’s allegations concern strategic decisions that do not amount to constitutionally deficient performance. With regard to the primary claim to which Buell directs this court’s attention, his allegations concerning counsel’s investigation of witnesses Wilson, Barker, and Middleton, we note that Buell’s counsel reviewed the statements of these witnesses before trial. Moreover, Buell is unable to demonstrate how the lack of interviews conducted by his counsel made his trial fundamentally unfair. With regard to Buell’s claim that his defense counsel failed to discover that these witnesses were hypnotized and that one witness had undergone mental treatment, we conclude that even if the actions of Buell’s counsel were considered deficient, he not was not prejudiced for the reasons we discuss below in rejecting Buell’s sixth claim. In the end, Buell is unable to demonstrate how his trial counsel’s performance was deficient and prejudiced his defense. Buell also presents various claims of ineffective assistance of appellate counsel. These claims were not defaulted for the reasons we discussed above in reviewing Buell’s second claim. Buell argues that his appellate counsel was ineffective both during his direct appeal and his post-conviction proceedings. Buell asserts that he was prejudiced by failure of his appellate counsel to raise the issues cataloged as claims twenty-seven and thirty-two in his habeas petition. Buell stresses his appellate counsel’s failure to appeal the trial court’s response to the jury’s unanimity question, a response to which Buell’s counsel made a contemporaneous objection. In addition, he specifically discusses his appellate counsel’s failure to appeal the trial court’s decision not to admit the expert testimony Buell presented regarding eyewitness identification. Even if Buell’s appellate counsel was deficient in failing to raises these claims, we have demonstrated that Buell was not prejudiced by our rejection of Buell’s third and fourth claims in this appeal. Buell cannot support a claim of ineffective assistance of appellate counsel. 6. Withholding of Evidence Buell asserts that the