Full opinion text
MOORE, J., delivered the opinion of the court, in which GILMAN, J., joined. MERRITT, J. (pp. 482-84), delivered a separate opinion concurring in part and dissenting in part. OPINION KAREN NELSON MOORE, Circuit Judge. Petitioner-Appellant James R. Goff (“Goff’) appeals the district court’s denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Goff was convicted in Ohio state court in 1995 of two counts of aggravated murder (each with one capital specification), three counts of aggravated burglary, two counts of aggravated robbery, and one count of grand theft. He was sentenced to death. The district court certified seventeen claims for appeal, but we are primarily concerned with only two. First, Goff asserts that the jury instructions given during the penalty phase of his trial regarding unanimity and mitigating factors were flawed. Second, Goff asserts that his appellate counsel was ineffective for failing to raise a claim during Goffs direct appeal to the Ohio Court of Appeals that Goff was denied his right, under Ohio law, to allocute before sentencing. For the reasons discussed below, we conclude that Goff is entitled to relief on the basis of the second issue, but that recent Supreme Court precedent precludes his first issue. We conclude that Goffs remaining assignments of error are merit-less. We therefore REVERSE the decision of the district court and GRANT Goff a conditional writ of habeas corpus based on Goffs ninth and twelfth assignments of error. I. BACKGROUND On January 24, 1995, a Clinton County, Ohio, grand jury indicted Goff on two counts of aggravated murder (each with a capital specification), three counts of aggravated burglary, two counts of aggravated robbery, and two counts of grand theft with specifications. Following a trial, Goff was convicted of all counts except for one count of grand theft and the grand-theft specifications. At the conclusion of the penalty-phase hearing, the jury recommended that Goff be sentenced to death. The trial judge then conducted his own weighing of the mitigating and aggravating factors and sentenced Goff to death. Goff appealed to the Twelfth District Court of Appeals for Clinton County, Ohio, which affirmed his convictions and sentence. State v. Goff, No. CA95-09-026, 1997 WL 194898, at *31 (Ohio Ct.App. Apr. 21, 1997). Goff then appealed to the Ohio Supreme Court, which affirmed Goffs death sentence and made the following findings of fact: [Myrtle] Rutledge, an eighty-eight-year-old woman, was in the process of moving out of her old farmhouse and into a new doublewide trailer home that was built directly behind the farmhouse. Her daughter, Esther Crownover, had been helping her sort out items from the old house, in which she had lived for forty-seven years. Rutledge decided to purchase some new furniture for her new house, and on September 14, 1994, she and Crownover went to Butler Home Furnishings in Wilmington, Ohio. After purchasing a new mattress, box springs, chair, ottoman, and sofa, Rutledge made arrangements for the furniture to be delivered the next day. Butler Home Furnishings had employed appellant for furniture deliveries for about a year. Harold E. Butler, Jr., the son of the owner, would contact appellant when he had a delivery and then, depending on the item, would get another person to assist appellant with the delivery. Butler Furnishings had also used Manuel Jackson as a delivery person for the seven months prior to September 1994. Appellant and Jackson were contacted to make the delivery to Rutledge on September 15, 1994. When appellant and Jackson arrived with the furniture, Rutledge directed -them to put the new furniture in the new house. Since there was no bed frame in the new house, appellant asked whether Rutledge wanted them to obtain the frame from the old house and assemble the bed in the new house. After they indicated that they would not charge Rutledge any additional money for this service, Rutledge took them into the old house, up to the second floor, and pointed out the bed frame that was to be used with the new bedding. The old house was in a state of disarray from the ongoing moving process. Jackson thought he saw appellant “snooping” through Rutledge’s belongings. Appellant and Jackson disassembled the old bed, took the frame to the new house, and set up the new bed. While Jackson finished the assembly, appellant obtained Rutledge’s signature on the delivery form. Later that afternoon, Rodney Rutledge, the victim’s son, arrived at his mother’s house around 4:00 p.m. to mow the lawn. She showed him her new furnishings that had been delivered that day. When he left (around 5:30 p.m.), his mother’s car was parked in the driveway next to the house. On the night of September 15, Myrtle Rutledge spoke on the telephone to her sister (6:30-7:00 p.m.) and her sister-in-law (around 9:00 p.m.) concerning the upcoming family reunion on Saturday, September 17. On Friday, September 16, 1994, Rutledge’s son drove past his mother’s house six different times during the course of his employment. Each time his mother’s car was not parked in the driveway next to the house. Rutledge’s sister also drove past the house and noticed the ear was not there. On Saturday morning, Crownover went to Rutledge’s home to pick her up for the reunion. The car was not there, and when her mother did not answer the door, Crownover assumed that she had already left for the reunion. When she arrived at the reunion her mother was not there. She went back to her mother’s house, entered, and went upstairs to her mother’s bedroom. There she found her mother’s battered and naked body lying on the floor of the bedroom. A pool of blood was on the bed, as well as the floor area. After ascertaining that there was no pulse, she tried using the phone to call the police, but there was no dial tone. She covered her mother with a blanket and drove to the police station. The police and an ambulance were dispatched. Once it was determined that Rutledge was dead, the police secured the scene and began a criminal investigation. Deputy Sheriff Fred W. Moeller, the crime scene investigator, determined that the door to the victim’s house had been forced open. Someone had apparently tried to enter the home through a window, because the window screen was lying on the ground outside the house, but entry was not made though the window. The phone wires on the outside of the house were cut. No fingerprints were found in the bedroom. In Moeller’s opinion, the room had been cleaned. Other fingerprint smudges were found in the house, but never matched. There was no evidence of blood anywhere else in the house except the bedroom. Denise K. Rankin, a serologist, identified a pubic hair found at the scene as being consistent with a pubic hair obtained from appellant after his arrest. After Moeller left the scene to return to the police station, he was notified that the victim’s car was found on North High Street in the city of Wilmington. He went to the scene, and the keys to the car were found on the floor on the driver’s side. A pink towel was on the front seat of the car, and no prints were found anywhere on the car. Moeller believed that someone had wiped down the car. The deputy coroner testified that Rutledge died from blunt and sharp trauma to the head, neck, shoulders, and ankle. Her death also resulted from blood loss due to multiple stab wounds, one of which severed the carotid artery. The coroner was unable to determine the time of death. When appellant and Jackson left Rutledge’s house after delivering the furniture on September 15, they purchased some crack cocaine and went to appellant’s house to smoke it. Appellant later returned the truck to the furniture store. Jackson did not see appellant again until 1:00-1:30 a.m. the following morning when he saw him running through an alley. Jackson later saw him on Grant Street. Appellant had changed his clothes from earlier in the day when they had delivered the furniture. Appellant asked Jackson whether he wanted to smoke some crack, showing him what Jackson thought was about $80 worth of crack. Jackson was with Tim Bart, and all three proceeded to appellant’s house. After they smoked the crack, which took a couple of hours, Bart suggested stealing some meat to trade for more crack. They were going to walk to the store, when appellant indicated he knew where there was a car they could use, but it was stolen. Appellant said the car was on North High Street. Bart and Jackson opted not to use the stolen car, and they walked to Bob and Carl’s Meat Store. Bart stole the meat, and he and appellant “took off.” Jackson saw appellant around noon the next day, and appellant asked him to tell anyone who asked, that he (appellant) had been with Jackson from 9:00 p.m. on September 15 until 3:00 a.m. on September 16. Later, on September 17, Timothy Shaffer found appellant playing pool at a game room in Wilmington. Appellant, Shaffer, and David Walls ended up at Shaffer’s trailer, where they smoked three to four “joints.” All three left the trailer and went to buy some crack. After the purchase, Shaffer and appellant went to appellant’s house to smoke the crack. Appellant wanted Shaffer to sign a note saying that he (Shaffer) helped in a crime committed on September 15, but Shaffer refused to sign. Appellant went and stayed at Shaffer’s trailer until September 21. While staying with Shaffer, appellant talked with him about Rutledge’s death. Appellant asked Shaffer what he would do if he killed someone. Appellant then told him he stabbed a lady and bent the blade of the knife. He also choked her. Appellant then told Shaffer he took her car and left it in front of the Mulberry Hill Apartments. After wiping the steering wheel, he drove the car to North High Street, where he left it, and then bought about $90 worth of crack and smoked it. Appellant admitted that he went to Rutledge’s house to rob her. On September 21, Shaffer saw a newspaper article about the Rutledge murder and asked appellant to leave his trailer. About two weeks later, Shaffer received a letter from appellant telling him that his (appellant’s) life was in Shaffer’s hands and to not tell anyone. Shaffer eventually called Colonel Tim Smith at the sheriffs department, and turned over a pair of tennis shoes and a laundry basket belonging to appellant. Shaffer ultimately told Smith all of what appellant had said about the murder. Appellant was arrested on September 21, 1994 on a drug charge. During the interrogation, appellant admitted that he had a crack habit, that he bought crack whenever he could, and that he would steal and trade items to buy crack. He indicated that he delivered furniture to the Rutledge residence, but when questioned about the murder, appellant asked for an attorney and questioning ceased. The state also presented three inmates, Jerry Lee Price, Danny Smith, and Keith Jones, to testify to various statements appellant had made to them regarding the Rutledge crime while incarcerated on the drug charge. Smith’s testimony was excluded, since he failed to identify appellant in court; however, both Price and Jones testified regarding the murder. Jones’s testimony was by far the most damaging. Appellant told Jones that he had delivered furniture to an old lady in her late 80’s. She had given appellant some money when he put the new bed together and later that night he went back to get the rest of the money he saw she had. Appellant entered through the kitchen and found Rutledge in the bedroom. Appellant told him that Rutledge called him “Jimmy,” so he “had to get rid of the bitch.” Jones asked him questions concerning the crime because Jones could not believe appellant could do such a thing to an old woman. Appellant asserted that she had lived her life, and since she could send him to prison, he had to kill her. After he took the money and the car, he went and bought crack. Appellant ran into a friend and they went and smoked it. Appellant said he killed her by himself, using a fishing tackle knife from his house. He told Jones they would never find the knife because he got rid of it. Jones wrote a letter to the prosecutor’s office, although he was not sure he believed appellant, but that he (Jones) had an elderly mother and could not think of something like that happening to her. State v. Goff (Goff I), 82 Ohio St.3d 123, 694 N.E.2d 916, 918-21 (1998). Goff filed a motion to reconsider in the Ohio Supreme Court, which denied the motion on July 22, 1998. State v. Goff, 82 Ohio St.3d 1483, 696 N.E.2d 1089 (1998). Goff then filed a petition for a writ of certiorari with the United States Supreme Court, which denied the writ on June 24, 1999. Goff v. Ohio, 527 U.S. 1039, 119 S.Ct. 2402, 144 L.Ed.2d 800 (1999). Goff also filed a motion for postconviction relief pursuant to Ohio Rev.Code § 2953.21, which the state trial court denied on procedural and substantive grounds without an evidentiary hearing. See State v. Goff (Goff II), No. CA200005-014, 2001 WL 208845, at *1 (Ohio Ct. App. Mar. 5, 2001). The Ohio Court of Appeals affirmed this denial, id. at *10, and the Ohio Supreme Court declined review, State v. Goff, 92 Ohio St.3d 1430, 749 N.E.2d 756 (2001). Additionally, Goff filed a motion for relief from judgment, making claims very similar to those raised in his motion for postconviction relief, which both the trial court and the Ohio Court of Appeals denied. State v. Goff, No. CA2000-10-026, 2001 WL 649820, at *1 (Ohio Ct.App. June 11, 2001). The Ohio Supreme Court again declined review. State v. Goff, 93 Ohio St.3d 1414, 754 N.E.2d 261 (2001). Goff next applied to reopen his direct appeal pursuant to Rule 26(B) of the Ohio Rules of Appellate Procedure, alleging ineffective assistance of appellate counsel, and the Ohio Court of Appeals denied the application on procedural and substantive grounds. See State v. Goff (Goff III), 98 Ohio St.3d 327, 784 N.E.2d 700, 701 (2003). The Ohio Supreme Court affirmed this decision on March 19, 2003, noting that “Goff ha[d] failed to raise a genuine issue as to whether [he] was deprived of the effective assistance of counsel on appeal before the court of appeals, as required by App.R. 26(B)(5).” Id. (internal quotation marks omitted) (second alteration in original). In May 2002, Goff filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Ohio, alleging twenty-five constitutional errors. Joint Appendix (“J.A.”) at 9-72 (Goff Pet. for Writ). Without holding an evidentiary hearing, the district court denied each claim. Goff v. Bagley (Goff TV), No. 1:02-ev-307, 2006 WL 3590369 (S.D.Ohio Dec. 1, 2006). Goff filed a motion for a certificate of appealability (“COA”), and the district court certified seventeen claims for appellate review, including whether Goff received ineffective assistance of appellate counsel because his appellate counsel failed to raise the issue of Goffs right to allocution before sentencing. Goff v. Bagley (GoffV), No. 1:02-cv307, 2007 WL 2601096, at *10-11, *15, *21 (S.D.Ohio Sept.10, 2007) We now consider each of Goffs arguments. II. ANALYSIS A. Standard of Review “In a habeas corpus proceeding, this Court reviews a district court’s legal conclusions de novo and its factual findings for clear error.” Smith v. Mitchell, 567 F.3d 246, 255 (6th Cir.) (internal quotation marks omitted), cert. denied, — U.S. -, 130 S.Ct. 742, — L.Ed.2d - (2009). Goff filed his habeas petition in May 2002, after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and, thus, AED-PA governs our review of Goffs claims. Lindh v. Murphy, 521 U.S. 320, 326-27, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). AEDPA provides that (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d) (emphases added). The Supreme Court has explained that [ujnder the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O’Connor, J., opinion of the Court for Part II). We have stressed that “clearly established law under the Act encompasses more than just bright-line rules laid down by the Court. It also clearly includes legal principles and standards enunciated in the Court’s decisions.” Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir.2002). We apply a presumption of correctness to state court findings of fact, and the petitioner may rebut this presumption only “ ‘by clear and convincing evidence.’ ” Bailey v. Mitchell, 271 F.3d 652, 656 (6th Cir.2001) (quoting 28 U.S.C. § 2254(e)(1); citing Seymour v. Walker, 224 F.3d 542, 552 (6th Cir.2000); Sanders v. Freeman, 221 F.3d 846, 852 (6th Cir.2000)). B. Jury Instructions In his first and second assignments of error, Goff argues that the state court’s failure to provide clearer jury instructions on mitigation impermissibly required the jury to reject unanimously a sentence of death, based on unanimous mitigation findings, before considering a life sentence alternative and did not provide adequate guidance on the use of mitigating factors. While the instant appeal was pending, the United States Supreme Court granted certiorari and decided Smith v. Spisak (Spisak III), — U.S. -, 130 S.Ct. 676, — L.Ed.2d - (2010), rev’g Spisak v. Mitchell (Spisak I), 465 F.3d 684 (6th Cir.2006), vacated by Hudson v. Spisak, 552 U.S. 945, 128 S.Ct. 373, 169 L.Ed.2d 257 (2007), reinstated by Spisak v. Hudson (Spisak II), 512 F.3d 852 (6th Cir.2008), the resolution of which controls our disposition of Goffs first jury-instruction claim and counsels against our granting relief on the second. 1. Jury Instructions Regarding “Acquit-first” and Unanimity in Mitigation Factors In his first assignment of error, Góff relies heavily on this court’s acquittal-first jury-instruction opinion in Spisak I, which the Supreme Court reversed in Spi sak III, 130 S.Ct. at 681-84. Indeed, Goff states in his brief that “the identical issue is presented here.” Goff Br. at 19. Goff filed a pre-trial motion for a penalty-phase jury instruction that, “in essence, ... [the jury] need not unanimously reject the recommendation of a death sentence before proceeding to consider the life sentences,” specifically requesting an instruction that: You, the jury, should first consider whether to return a verdict of (recommend a sentence of) death. You must unanimously agree that the aggravating circumstances are sufficient to, and do outweigh, the mitigating circumstances in order to return a verdict (recommendation) of death. If you are unable to agree unanimously that a death sentence is appropriate under this standard of proof, you are to proceed to consider which of the life sentence verdicts (recommendations) to return. You are not required to determine unanimously that the death sentence is inappropriate before you consider the life sentences. J.A. at 904-06 (Mot. for Penalty Phase Jury Instruction). Goff also requested an additional instruction relating the lack of a unanimity requirement in finding mitigating factors. Id. at 889-90 (Mot. to Instruct the Jury on the Lack of Requirement). The trial court rejected both of Goffs proposed instructions, id. at 437, 445-46 (Penalty Phase Hr’g Tr. at 2442, 2450-51), and instructed the jury as follows: In making your decision you will consider all the evidence, the arguments of counsel, and all other information and all other reports which are relevant to the nature and circumstances of the aggravating circumstances or to any mitigating factors including, but not limited to, the nature and circumstances of the offense, and 1) the history and character and background of the Defendant, 2) the youth of the Defendant, and 3) any other factors that are relevant to the issue of whether the Defendant should be sentenced to death. You are to weigh the aggravating circumstances which you have already found against any mitigating factors which you find to exist. You are limited in your consideration solely to your findings in Count 1 and Count 2 relating to the death of Myrtle Rutledge and those aggravating circumstances which you have found to exist. [Explaining findings related to Count 1 and Count 2].... Mitigating factors must be considered collectively when they, are weighed against the aggravating circumstances. The Prosecution has the burden to prove beyond a reasonable doubt that the aggravating circumstance[s], of which the Defendant was found guilty, outweigh the factors in mitigation of imposing the death sentence. To outweigh means to weigh more than or to be more important than. The existence of mitigating factors does not preclude or prevent the death sentence, if you find beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors. However, if you are not convinced by proof beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors, then you must choose one of the two life sentences. You shall recommend death only if you unanimously find by proof beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors. [I]f you do not so find, you shall unanimously sign a verdict for either a sentence of life with parole eligibility after serving 20 years of imprisonment or a sentence of life with parole eligibility after serving 30 full years of imprisonment. Verdict forms with these three options will be furnished to you. Id. at 710-12 (Penalty Phase Hr’g Tr. at 2714-16). As to the verdict forms, the trial court instructed the jury: At this point I want to make a few comments with regard to the verdict forms. You will have you in the Court [sic] six verdict forms. They read as follows, “In the Court of Common Pleas, Clinton County, Ohio,” they will have the same heading, “State of Ohio v. James Goff, Case No. 955 008, Verdict, Recommendation of Death,” and then there is a recitation of the specification to Count 1, and it says, “We, the Jury, being duly impaneled, do hereby find beyond a reasonable doubt that the aggravating circumstance outweighs the mitigating factors and recommend to the Court the imposition of the death penalty.” If this is your verdict form you would date it and sign it on one of the lines provided. The next one also refers to Count 1, same heading, but it reads, “We, the Jury being duly impaneled, do not find beyond a reasonable doubt that the aggravating circumstance outweighs the mitigating factors and recommend to the Court that the Defendant receive life imprisonment with parole eligibility after serving 30 full years.” If this is your verdict, then you would date it and you would sign it. The next one has the same heading, “Specification to Count 1, Verdict, Life Imprisonment after 20 full years.” It reads, “We the Jury being duly impaneled do not find beyond a reasonable doubt that the aggravating circumstance outweighs the mitigating factors and recommend to the Court that the Defendant receive life imprisonment with parole eligibility after serving 20 full years.” Again, if this is your verdict form then you would date it and each of you would sign it. Those are the verdict forms with regard to Count — the specification to Count 1. The same three verdict forms exist for specification to Count 2. Again, the “Specification to Count 2” is listed at the top of the page. It says — you would have three forms, “Verdict, Life Imprisonment After 20 Full Years;[”][“]Verdict, Life Imprisonment After 30 Full Years;” and “Verdict, Recommendation of Death.” Each verdict form, if that is your verdict, then you would date it and you would sign it. If it’s the verdict for Recommendation of Death, if that’s your verdict form, each of you must date it and sign it. If it’s Life Imprisonment After 30 Full Years, you would date it and sign it, and if it’s Life Imprisonment After 20 Full Years, then you would date it and you would sign it. ... When all 12 of you agree on a verdict, all of you should sign the appropriate form in ink, as I’ve already indicated to you, and advise the Bailiff and you will then be returned to the Courtroom. Id. at 717-19 (Penalty Phase Hr’g Tr. at 2721-23) (first alteration in original). On appeal, Goff presents a single argument that the trial court impermissibly utilized an acquittal-first jury instruction coupled with an instruction requiring unanimity in finding mitigation factors, and that these instructions were unconstitutional under Spisak I. The Ohio Supreme Court rejected both the acquittal-first and mitigation-unanimity arguments on direct appeal, specifically finding that the instructions were not invalid under State v. Brooks, 75 Ohio St.3d 148, 661 N.E.2d 1030,1040-42 (1996), even though Goff was tried six months before the Brooks decision, and that “[t]he jury was never told that it had to make a unanimous finding on the individual factors before weighing them.” Goff I, 694 N.E.2d at 921-22. The Ohio Supreme Court concluded that “the ‘substance’ of what the jury must determine was included in the charge given; therefore, [Goff] was not prejudiced.” Id. at 922. The district court also rejected Goffs arguments, finding that the instructions did not violate the Supreme Court’s opinions in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), and that this court’s prior decision in Davis v. Mitchell, 318 F.3d 682 (6th Cir.2003), while not a Supreme Court precedent, was also distinguishable. Goff IV, 2006 WL 3590369, at *6-10. Because we are constrained by Spisak III, we agree with the district court. We conclude that the jury instructions and verdict forms that Goffs trial court utilized are conceptually indistinguishable from those at issue in Spisak III, see Spisak III, 130 S.Ct. at 682-84; Spisak I, 465 F.3d at 708-11, as Goff acknowledges in his brief. See Goff Br. at 19 (“Spisak is significant since the identical issue is presented here.”). Therefore, we are constrained to follow the Spisak III Court’s reasoning and to conclude that the jury instructions properly “focused only on the overall balancing question[,][a]nd the instructions repeatedly told the jury to consider] all of the relevant evidence.” Spisak III, 130 S.Ct. at 684 (third alteration in original); see also Hartman v. Bagley, 492 F.3d 347, 362-65 (6th Cir.2007) (distinguishing case from Davis and Spisak I), cert. denied, — U.S. -, 128 S.Ct. 2971, 171 L.Ed.2d 897 (2008). Goff is not entitled to relief on this claim. Although a challenge to the jury instructions based on the perceived requirement “ ‘to unanimously reject a death sentence before considering other sentencing alternatives’ ” might still be available on AED-PA habeas review after the Court’s opinion in Spisak III, see Spisak III, 130 S.Ct. at 684 (quoting Spisak I, 465 F.3d at 709); id. at 688-91 (Stevens, J., concurring), neither Goff nor any previous court below “referred to Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), or identified any other precedent from th[e Supreme] Court setting forth this rule,” and the Court “ha[s] not, however, previously held jury instructions unconstitutional for this reason,” id. at 684, 100 S.Ct. 2382 (majority opinion). Thus, this court need not decide whether any further arguments on this ground could invalidate Goffs jury instructions. See United States v. Hall, 549 F.3d 1033, 1042 (6th Cir.2008). 2. Refusal to Instruct Jury on Meaning of Mitigating Factors In assignment of error two, Goff argues that the trial court committed a constitutional error in refusing to instruct the jury on the meaning of mitigating factors because the instruction given provided “no standard upon which to base their decision” and “le[ft] the jury with the impression that they [we]re to consider mitigation as lessening blame or culpability.” Goff. Br. at 26. Goff requested the following instruction: Mitigating factors are factors that, while they do not justify or excuse the crime, nevertheless in fairness, sympathy and mercy, may be considered by you, as they call for a penalty less than death, or lessen the appropriateness of a sentence of death. J.A. at 896-98 (Mot. to Alter Definition of Mitigating Circumstances). The trial court rejected Goffs alternative instruction, id. at 441-M2 (Penalty Phase Hr’g Tr. at 2446-47), and instructed the jury according to Ohio Rev.Code § 2929.04(B)-(C) as follows: In making your decision you will consider all the evidence, the arguments of counsel, and all other information and all other reports which are relevant to the nature and circumstances of the aggravating circumstances or to any mitigating factors including, but not limited to, the nature and circumstances of the offense, and 1) the history and character and background of the Defendant, 2) the youth of the Defendant, and 3) any other factors that are relevant to the issue of tuhether the Defendant should be sentenced to death. You are to weigh the aggravating circumstances which you have already found against any mitigating factors which you find to exist.... Mitigating factors must be considered collectively when they are weighed against the aggravating circumstances. The Prosecution has the burden to prove beyond a reasonable doubt that the aggravating circumstanee[s], of which the Defendant was found guilty, outweigh the factors in mitigation of imposing the death sentence. To outweigh means to weigh more than or to be more important than. The existence of mitigating factors does not preclude or prevent the death sentence, if you find beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors. However, if you are not convinced by proof beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors, then you must choose one of the two life sentences. J.A. at 710-12 (Penalty Phase Hr’g Tr. at 2714-16) (emphases added). The Ohio Supreme Court rejected Goffs argument on direct appeal, concluding that a failure to define “mitigation” was not prejudicial error because “[t]he trial court defined what factors the jury was to consider, and implicit in the trial court’s instruction was that the factors set forth by the defense were factors relevant to whether appellant should be sentenced to death.” Goff I, 694 N.E.2d at 922; id. at 923 (citing Buchanan v. Angelone, 522 U.S. 269, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998)). The district court also rejected Goffs argument on the grounds that the instruction given did not violate state law and that the Constitution did not require the requested mitigation definition. Goff IV, 2006 WL 3590369, at *11-12. We agree. “The Eighth Amendment requires that the jury be able to consider and give effect to all relevant mitigating evidence offered by petitioner.” Boyde v. California, 494 U.S. 370, 377-78, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990); Buell v. Mitchell, 274 F.3d 337, 353 (6th Cir.2001). Because the Supreme Court has held that “the state may shape and structure the jury’s consideration of mitigation so long as it does not preclude the jury from giving effect to any relevant mitigating evidence,” Buchanan, 522 U.S. at 276, 118 S.Ct. 757 (citing Johnson v. Texas, 509 U.S. 350, 362, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993); Penry v. Lynaugh, 492 U.S. 302, 326, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Franklin v. Lynaugh, 487 U.S. 164, 181, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988)), the issue is “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,” Boyde, 494 U.S. at 380, 110 S.Ct. 1190. “Any barrier to such consideration [of mitigating evidence] must fall.” McKoy, 494 U.S. at 468, 110 S.Ct. 1227. However, “ ‘[o]n habeas review, errors on instructions are not reviewable unless they deprive a defendant of constitutional due process.’ ” Mason v. Mitchell, 320 F.3d 604, 638 (6th Cir.2003) (quoting Gall v. Parker, 231 F.3d 265, 321 (6th Cir.2000)). In Buchanan, the Supreme Court explicitly stated that “we have never gone further and held that the state must affirmatively structure in a particular way the manner in which juries consider mitigating evidence.” Buchanan, 522 U.S. at 276, 118 S.Ct. 757. The Court rejected the defendant’s argument that the trial court should have included additional explanations with the state’s pattern instruction, specifically a further explanation of the concept of mitigation stating, “ ‘[i]n addition to the mitigating factors specified in other instructions, you shall consider the circumstances surrounding the offense, the history and background of [the defendant,] and any other facts in mitigation of the offense.’ ” Id. at 273, 118 S.Ct. 757 (first alteration in original). The Court held that a specific instruction “on the concept of mitigating evidence generally” is not constitutionally required. Id. at 270, 279, 118 S.Ct. 757. Here, as the Ohio Supreme Court concluded, the trial court’s instruction essentially tracked the language of the state-law jury instruction, which itself provided more general information on the concept of mitigation than the challenged “all the evidence” instruction upheld in Buchanan, See State v. Holloway, 38 Ohio St.3d 239, 527 N.E.2d 831, 834-36 (1988) (looking to § 2929.04(B)(7) for proper definition of mitigating factors and finding trial court’s use of different definition in subsequent written opinion was harmless error in part because jury was given proper § 2929.04(B) instruction at time). “Where the trial court instructs the jury in accordance with state law and sufficiently addresses the matters of law at issue, no error results and the petitioner is not entitled to habeas relief.” White v. Mitchell, 431 F.3d 517, 534 (6th Cir.2005). Contrary to Goffs assertion, we conclude that the instruction given, considered in the context of the entire instructions and proceedings, see Boyde, 494 U.S. at 377-78, 380-84, 110 S.Ct. 1190, did not fail to provide the jury with a “standard upon which to base their decision” or “leave[ ] the jury with the impression that they [we]re to consider mitigation as lessening blame or culpability,” Goff. Br. at 26, rather than as relevant to lessen the sentence imposed. Neither the use of the instruction given nor the failure to use the proposed instruction violated clearly established federal law under either the Eighth Amendment or the Due Process Clause. See Spisak III, 130 S.Ct. at 683 (finding similar instructions sufficiently “explained the concept of a ‘mitigating factor’ ”); Mason, 320 F.3d at 638-39 (holding that Supreme Court precedent prior to 1994 conviction “did not clearly establish a defendant’s due process right to a jury instruction on the definition of mitigation” and rejecting exact same argument); Buell, 274 F.3d at 353 (upholding similar, but more limited, instruction against challenge that mitigating factors were not appropriately defined). Goff is not entitled to relief on this claim. C. Ineffective Assistance of Appellate Counsel On the first appeal of right, a defendant is entitled to effective assistance of appellate counsel. Mahdi v. Bagley, 522 F.3d 631, 636 (6th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 1986, 173 L.Ed.2d 1090 (2009). As we have previously stated, [e]laims of ineffective assistance of [appellate] counsel are judged under the Strickland standard, which requires that the appellant affirmatively establish (1) that counsel’s performance was objectively deficient; and (2) prejudice, which means that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. (internal quotation marks omitted); Mason v. Mitchell, 543 F.3d 766, 772 (6th Cir.2008) (“Claims of ineffective assistance of counsel have ‘two components: A petitioner must show that counsel’s performance was deficient, and that the deficiency prejudiced the defense.’ ” (quoting Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003))), cert. denied, — U.S. -, 130 S.Ct. 492, — L.Ed.2d - (2009). “To establish that counsel was deficient, ‘the defendant must show that counsel’s representation fell below an objective standard of reasonableness.’ ” Smith, 567 F.3d at 257 (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Prejudice is shown if “there is ‘a reasonable probability that, but for his counsel’s [failings] ..., [the defendant] would have prevailed on his appeal.’ ” Mapes v. Tate (Mapes II), 388 F.3d 187, 194 (6th Cir.2004) (alterations in original) (quoting Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)). In his ninth assignment of error, Goff contends that he received ineffective assistance of appellate counsel due to appellate counsel’s failure to raise the following issues on direct appeal: (1) the trial court’s failure to afford Goff his right to allocution; (2) trial counsel’s failure to recognize that the alternate juror substituted midstream during the penalty-phase hearing tainted that hearing; (3) trial counsel’s failure to recognized the need for a principal-offender instruction during the penalty phase; (4) trial counsel’s failure to request that the trial court give a jury instruction regarding the credibility of informants/accomplices; (5) ineffective assistance of trial counsel for informing the jury during voir dire that Goff would not testify at trial; (6) trial counsel’s failure properly to prepare the psychologist who testified at the penalty-phase hearing; (7) trial counsel’s failure to exclude reference to Goffs request for an attorney during the guilt phase; and (8) trial counsel’s failure to raise an actual-conflict issue. None of these claims are specifically argued under this assignment of error; rather, five of the arguments are presented in conjunction with other assignments of error. The three arguments not so presented-arguments six, seven, and eight — are waived on appeal. See United States v. Hall, 549 F.3d 1033, 1042 (6th Cir.2008) (“ ‘[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.’ ” (quoting United States v. Johnson, 440 F.3d 832, 846 (6th Cir.2006)) (alteration in original)). Each of the remaining arguments are addressed below. 1. Right to Allocution In his ninth and twelfth assignments of error, Goff contends that he received ineffective assistance of appellate counsel because his appellate counsel did not raise the failure of the trial court to afford Goff his right to allocute before sentencing. Bagley contends that this claim is proeedurally defaulted and that, on the merits, this claim fails because (1) there is no constitutional right to allocution, and (2) Goff chose not to make an unsworn statement to the jury during the penalty phase, which allegedly discharged the trial court’s duty with regard to allocution. We disagree with Bagley’s contentions and conclude that Goff is entitled to relief on this ground. Bagley’s contention that Goffs claim must fail because there is no constitutional right to allocution misconstrues the effective-assistance framework. Although it is correct, as the district court noted, that “there is no right to allocution under the federal constitution,” Goff IV, 2006 WL 3590369, at *33 (citing, inter alia, Cooey v. Coyle, 289 F.3d 882, 912 (6th Cir.2002)), there is a constitutional right to the effeefive assistance of appellate counsel, see, e.g., Mahdi, 522 F.3d at 636. If it was both deficient and prejudicial for Goffs appellate counsel to fail to raise the allocution claim, then Goffs constitutional right to the effective assistance of counsel on appeal has been violated, regardless of the fact that counsel’s underlying failure is a matter of state law. See Mason v. Hanks, 97 F.3d 887, 892-94 (7th Cir.1996) (concluding that the fact that an ineffective-assistance-of-appellate-counsel claim is based on a failure to pursue certain state-law claims “poses no impediment to [a petitioner’s] claim of ineffectiveness”); Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir.1984) (“On the one hand, the issue of ineffective assistance — even when based on the failure of counsel to raise a state law claim — is one of constitutional dimension.... On the other hand, the validity of the claim that Alvord’s appellate counsel failed to assert is clearly a question of state law, and we must defer to the state’s construction of its own law.” (citations omitted)), superseded by statute on other grounds; see also Bedford v. Collins, 567 F.3d 225, 237 (6th Cir.2009) (“[T]he invocation of this state-law right [to allocution] could implicate the Sixth Amendment if the prosecution violated state-law rules about the allocution procedure and defendant’s counsel unreasonably failed to object.”), petition for cert. filed (U.S. Jan. 15, 2010) (No. 09-8671); Reutter v. Sec’y for Dep’t of Corr., 232 Fed.Appx. 914, 915 (11th Cir.) (unpublished opinion) (“Even though [petitioner's ineffective-assistance-of-appellate-counsel claim was based on counsel’s failure to raise a state-law issue, ... the ineffective-assistance claim itself was a federal constitutional claim.” (citing Alvord, 725 F.2d at 1291)), cert. denied, 469 U.S. 956, 105 S.Ct. 355, 83 L.Ed.2d 291 (2007); cf. Mapes v. Coyle, 171 F.3d 408, 427-28 (6th Cir.1999) (citing Mason v. Hanks, 97 F.3d at 893-94); Lewis v. Smith, 100 Fed.Appx. 351, 356 (6th Cir.) (same), cert. denied, 543 U.S. 877, 125 S.Ct. 125, 160 L.Ed.2d 129 (2004). We conclude that counsel’s performance was both deficient and prejudicial. Ohio law provides all criminal defendants with the right to allocution before a sentence is imposed. Ohio Crim. R. 32(A)(1) (“At the time of imposing sentence, the court shall ... address the defendant personally and ask if he or she wishes to make a statement in his or her own behalf or present any information in mitigation of punishment.”); State v. Campbell, 90 Ohio St.3d 320, 738 N.E.2d 1178, 1188 (2000). It is the duty of the sentencing court to inform the defendant of this right to allocution, and failure to do so is typically reversible error. See Campbell, 738 N.E.2d at 1190. At the time of Goffs sentencing, there was a substantial amount of caselaw confirming this fact. See, e.g., Silsby v. State, 119 Ohio St. 314, 164 N.E. 232 (1928) (holding that an Ohio statute “impose[s] a mandatory duty upon a trial judge to ask an accused person whether he has anything to say why judgment should not be pronounced against him” and that failure to discharge that duty requires reversal and remand for re-sentencing (syllabus)); State v. Hays, 2 Ohio App.3d 376, 442 N.E.2d 127, 129 (1982) (noting that Ohio Crim. R. 32(A)(1) “require[s] that the accused be granted an opportunity to be heard in mitigation of punishment” (citing Silsby, 119 Ohio St. 314, 164 N.E. 232)); see also City of Defiance v. Cannon, 70 Ohio App.3d 821, 592 N.E.2d 884, 888 (1990) (stating that Ohio Crim. R. 32(A)(1) and Ohio Rev.Code § 2947.05 both “clearly mandate! ] that a court give ... the defendant an opportunity to speak prior to the imposition of sentence,” and that the trial court’s failure to ask the defendant if he or she wishes to allocute requires “remand[] for the sole purpose of resentencing” (citing, inter alia, Silsby, 119 Ohio St. 314, 164 N.E. 232)); accord State v. Hawkins, No. 65344, 1994 WL 505279, at *2 (Ohio Ct.App. Sept. 15, 1994) (unpublished opinion) (same); City of Cleveland v. Justice, Nos. 56883, 56884, 1990 WL 43676, at *5 (Ohio Ct.App. Apr. 12, 1990) (unpublished opinion) (same); State v. Priest, No. 86 CA 29, 1987 WL 10638, at *1 (Ohio Ct.App. Apr.28, 1987) (unpublished opinion) (same); State v. Sullivan, No. E-80-54, 1981 WL 5643, at *3 (Ohio Ct.App. June 12, 1981) (unpublished decision) (same). In the instant case, there is no evidence in the record that the state trial court (common pleas court) ever addressed Goffs right to allocution. Under Ohio law at the time of Goffs direct appeal, this omission was reversible error. Failure on the part of Goffs appellate counsel to raise such an obviously winning claim clearly falls below an objective standard of reasonableness — deficiency is established by the fact that appellate counsel failed to raise the allocution issue on appeal in the face of overwhelming caselaw regarding the right to allocute. Moreover, this same caselaw holds that a sentencing court’s failure to provide the right to allocution requires a remand for resentencing, thereby establishing prejudice. See Mapes II, 388 F.3d at 194 (explaining that prejudice exists if there is a reasonable probability that the appeal would have been successful had the claim been raised). Thus, we conclude that there is a reasonable probability that, but for appellate counsel’s unprofessional errors, the result of Goffs direct appeal would have been different. The Ohio Supreme Court’s conclusion that Goff failed to raise a genuine issue of material fact regarding ineffective assistance of appellate counsel constitutes an unreasonable application of Supreme Court precedent. Bagley contends that Goff decided not to give an unsworn statement and that this decision waived his right to allocution. This argument is meritless. In addition to the right to allocution before the court imposes sentence discussed above, capital defendants in Ohio also have the right to make an unsworn statement at the penalty phase. Ohio Rev.Code Ann. § 2929.03(D)(1) (“The court, and the trial jury if the offender was tried by a jury, ... shall hear the statement, if any, of the offender, and the arguments, if any, of counsel for the defense and prosecution, that are relevant to the penalty that should be imposed on the offender.... If the offender chooses to make a statement, the offender is subject to cross-examination only if the offender consents to make the statement under oath or affirmation.”) ; see also Campbell, 738 N.E.2d at 1190. Although “[§ ] 2929.03(D)(1) permits a capital defendant to make a penalty-phase statement without oath or cross-examination ... [,] an unsworn statement under [§ ] 2929.03(D)(1) is not an allocution under the rule [Ohio Crim. R. 32(A)(1)].” Campbell, 738 N.E.2d at 1190 (emphasis added) (citing State v. Reynolds, 80 Ohio St.3d 670, 687 N.E.2d 1358, 1372 (1998)). “The penalty phase in a capital case is not a substitute for a defendant’s right of allocution [at sentencing].” Reynolds, 687 N.E.2d at 1372. The right to allocution is associated with the sentencing proceeding before the judge, and “[t]he purpose of allocution is to allow the defendant an additional opportunity to state any further information which the judge may take into consideration when determining the sentence to be imposed.” Cannon, 592 N.E.2d at 888. Moreover, “[n]o authority requires a trial court to inform a capital defendant of his right to make an unsworn, penalty-phase statement.” Campbell, 738 N.E.2d at 1190. Bagley correctly notes that the penalty-phase transcript reflects that a conference occurred wherein the parties were slated to discuss Goffs “rights relative to giving [an] unsworn statement.” J.A. at 663 (Penalty Phase Hr’g Tr. at 2668). The contents of that conference reveal that Goffs trial counsel had advised him of his right to make an unsworn statement to the jury, and that Goff declined to so address the jury. Contrary to Bagley’s contention, at the conference the trial judge did not inform Goff of his right to give an unsworn statement; only Goffs counsel addressed him at the conference, although Goff did waive his right to make an unsworn statement on the record. Even if the trial judge had been the one to address Goff relative to making an unsworn statement, the right to make an unsworn statement to the jury at the penalty phase is not equivalent to the right of allocution before the judge imposes sentence. Campbell, 738 N.E.2d at 1190; Cannon, 592 N.E.2d at 888. Thus, even if the sentencing court informed Goff of his right to give an unsworn statement to the jury at the penalty phase, such information could not discharge the sentencing court’s duty to inform Goff about his right to allocution before sentencing by the judge, and any waiver by Goff of his right to give an unsworn statement to the jury would not have impacted his right to allocute. See Campbell, 738 N.E.2d at 1188-90 (“[I]n this context [where the trial court failed to inform the defendant of the right to allocution], we find the doctrine of waiver inapplicable.”). Accepting Bagley’s contention — “that Goff chose not to make an unsworn statement to the jury,” Bagley Br. at 74 — we nevertheless conclude that the trial court failed in its duty to inform Goff of his right to allocute before sentencing by the judge. Accordingly, we hold that Goffs appellate counsel was ineffective for failing to raise on direct appeal the issue of Goffs right to allocution before sentencing and that the opposite conclusion reached by the Ohio Supreme Court in rejecting Goffs Ohio Rule of Appellate Procedure 26(B) application on the merits constitutes an unreasonable application of federal law. 2. Substitution of Alternate Juror During Penalty Phase In his ninth and fourteenth assignments of error, Goff asserts that trial counsel caused a constitutional, structural error when it allowed an alternate juror, who did not deliberate with the jury during the guilt phase, to take the place of a sitting juror during the penalty phase and that appellate counsel was ineffective for failing to raise this issue on direct appeal. Goff presented this claim in an Ohio Rule of Appellate Procedure 26(B) motion to reopen his direct appeal, claiming that ineffective assistance of appellate counsel established cause and prejudice for failing to raise the issue on direct appeal. The Ohio Court of Appeals denied the motion and the Ohio Supreme Court affirmed this denial, concluding that “Goff ... failed to raise a genuine issue as to whether [he] was deprived of the effective assistance of counsel on appeal before the court of appeals, as required by App.R. 26(B)(5).” Goff III, 784 N.E.2d at 701 (internal quotation marks omitted) (alteration in original). The district court rejected Goffs underlying claim of trial-counsel error as procedurally defaulted because Goff did not establish that his appellate counsel was ineffective and thus could not establish cause and prejudice for his failure to raise the underlying claim on direct appeal. Goff IV, 2006 WL 3590369, at *29-30. We also reject Goffs claim. As an initial matter, Goff has cited no caselaw to support his argument that the substitution of an alternate juror-who was present for both the guilt — phase and penalty — phase hearings but did not participate in the guilt-phase deliberation — for a sitting juror before the commencement of penalty-phase deliberations is a constitutional violation, nor could we find any. Moreover, Goffs repeated assertion that the substitution of the juror caused Goff not to be convicted by a unanimous jury is also unsupported by caselaw and defies common sense. A unanimous jury convicted Goff at the end of the guilt-phase proceedings; no later change in the make-up of the jury could alter that fact. Thus, Goff has not established that the substitution of the alternate juror, in and of itself, caused a constitutional violation. As to Goffs ineffective-assistanee-of-appellate counsel claim, at the time of Goffs direct appeal, the Ohio Supreme Court, in a case with materially indistinguishable facts, had held that it did not violate state law to replace a sitting juror with an alternate juror between the guilt and penalty phases. See State v. Hutton, 53 Ohio St.3d 36, 559 N.E.2d 432, 442-45 (1990). Additionally, Goff has not asserted that the substitution procedure used in his case violated state law. Thus, there seems no likelihood that, had Goffs appellate counsel raised this issue, the result of his appeal would have been different, and we cannot say that Goffs appellate counsel was ineffective for not raising a claim that had little to no possibility of success. See Valentine v. United States, 488 F.3d 325, 338-39 (6th Cir.2007) (rejecting a claim of ineffective assistance of appellate counsel where the underlying claim “had little probability of success”), cert. denied, 552 U.S. 1217, 128 S.Ct. 1311, 170 L.Ed.2d 127 (2008). We conclude that Goff is not entitled to relief on this claim. 3. Principal — Offender Instruction In his ninth and fifteenth assignments of error, Goff contends that the trial court should have instructed the jury regarding the definition of principal offender and that appellate counsel was ineffective for failing to raise this issue on appeal. Goff raised the underlying claim in his failed Ohio Rule of Appellate Procedure 26(B) motion. The district court also rejected the claim. We conclude that this claim is meritless. Goffs argument under these assignments of error is confusing, to say the least. It appears that Goff is asserting that, at the guilt phase and at the penalty phase, the jury was not (1) instructed regarding the requirement that Goff be a principal offender in order to be death eligible; (2) instructed regarding the definition of principal offender; or (3) provided verdict sheets that reflected the principal-offender requirement. The record reveals that Goffs assertions are baseless. According to Ohio law, “[t]o be eligible for the death penalty under R.C. [Ohio Rev.Code § ] 2929.04(A)(7) as ‘the principal offender,’ the defendant must have been the actual killer.” State v. Taylor, 66 Ohio St.3d 295, 612 N.E.2d 316, 325 (1993). In the context of aggravated murder, principal offender has been defined as “one who personally performs every act constituting the offense.” State v. Sneed, 63 Ohio St.3d 3, 584 N.E.2d 1160, 1168 (1992) (internal quotation marks omitted). At the guilt phase of Goffs trial, the trial court instructed the jury that “[bjefore you can find the Defendant Guilty of Specification No. 1 under Count 1, you must find that the State has proved beyond a reasonable doubt that ... the Defendant personally committed each act which constituted the aggravated murder, including the act or acts that caused the death of Myrtle Rutledge.” J.A. at 401 (Guilt Phase Hr’g Tr. at 2380) (emphasis added). This instruction correctly defined the term principal offender. See Sneed, 584 N.E.2d at 1168 (holding that a trial court’s instruction defining principal offender as “one who personally performs every act constituting the offense, in this case aggravated murder” was sufficient to comply with Ohio Rev.Code § 2929.04(A)(7) (internal quotation marks omitted)). After receiving this correct instruction, the jury specifically found, via a verdict form, that Goff was the principal offender: We, the Jury, having found the Defendant, James R. Goff, Guilty of aggravated murder as he stands charged in Count 1 of the indictment now further find that the aggravated murder was committed while the said James R. Goff was committing or attempting to commit, or while fleeing immediately after committing or attempting to commit aggravated burglary and the offender was the principal offender in the commission of the aggravated murder. J.A. at 420-21 (Guilt Phase Hr’g Tr. at 2416-17) (reading of verdict form) (emphasis added). There is simply no merit to Goffs assertions, and Goffs appellate counsel was not ineffective for failing to raise such a frivolous claim on direct appeal. Goff is not entitled to relief on this claim. 4. Informant/Accomplice Instruction In Goffs ninth and sixteenth assignments of error, Goff argues that the trial court erred in failing to give a specific instruction to the jury regarding the credibility of testimony by accomplices and informants and that appellate counsel was ineffective for failing to raise this issue on direct appeal. Goff raised the underlying claim as part of his Ohio Rule of Appellate Procedure 26(B) motion, which the Ohio courts denied. The district court rejected this argument, and we conclude that Goff is not entitled to relief on this claim. We have noted that “accomplice instructions as a general matter” are not required, and we have held that a trial court does not violate a defendant’s constitutional rights by failing to give a specific accomplice instruction so long as the jury instructions “ ‘adequately informed the jury regarding the credibility of witness testimony’ ” and “ ‘alerted the jury to the various considerations that it should take into account in weighing testimony.’ ” Scott v. Mitchell, 209 F.3d 854, 883 (6th Cir.2000) (quoting United States v. Carr, 5 F.3d 986, 992 (6th Cir.1993)). In the instant case, the trial court gave the following instruction: You are the sole judges of the facts and the credibility of the witnesses and the weight of the evidence. To weigh the evidence you must consider the credibility of the witnesses. You will apply the tests of truthfulness which you apply in your daily lives. These tests include the appearance of each witness upon the stand, their manner of testifying, the reasonableness of their testimony, the opportunity they had to see, hear, and know the things concerning which they testified about, their accuracy of memory, their frankness or lack of it, their intelligence, their interest and bias, if any, together with all the facts and circumstances surrounding their testimony. Applying these tests you will assign to the testimony of each witness such weight as you deem proper. You are not required to believe the testimony of any witness simply because he or she was under oath. You may believe or disbelieve all or any part of the testimony of any witness. It is your province to determine what testimony is worthy of belief and what testimony is not worthy of belief. J.A. at 397-98 (Guilt Phase Hr’g Tr. at 2373-74) (emphases added). This instruction both informs the jury regarding credibility and alerts the jury to what is properly considered when determining credibility; thus it satisfies the criteria established in Scott. Therefore, the failure to give a specific accomplice instruction did not violate Goffs constitutional rights. Moreover, Goffs appellate counsel was not ineffective for failing to raise this issue on direct appeal. Goff correctly points out that, under Ohio law, “[i]f an alleged accomplice of the defendant testifies against the defendant in a case in which the defendant is charged with ... an offense,” the trial court is required to “state substantially” a specific jury instruction regarding accomplice testimony: The testimony of an accomplice does